Volume 9 — Illinois Reports

Trespass on the Case, brought by the appellee in the Kane Circuit Court against the appellants. The cause was heard before the Hon. John D. Catón and a jury, at the April term 1847, when- a verdict of guilty was rendered against the defendants below for $489. Judgment by the Court thereon.

Assumpsit, in the Peoria Circuit Court, brought by the defendants in error against the plaintiff in error as assignor of a promissory note. The cause was heard before the Hon. John D. Catón and a jury, at the May term 1845, when a verdict was rendered in favor of the plaintiffs for ¿¡>249. Upon this verdict judgment was entered.

Debt, in the Mercer Circuit Court, brought by the defendant in error against the plaintiff in error. The defendant was defaulted at the May term 1845, and a writ of inquiry of damages awarded. At the September term 1845, the Hon. Thomas C. Browne presiding, the jury returned a verdict in favor of the plaintiff for the sum of 0112-89, and the Court rendered a judgment accordingly.

Agreed Case from Scott. The controversy originated in the Probate Court of Scott county, in regard to the allowance of a claim against an estate. The claim being allowed by the Probate Court, and a special order being entered, directing that joint and separate debts be paid pro rata, an . appeal was taken to the Circuit Court of that county. The decision of the Probate Court was there affirmed, and a further appeal was taken to this Court.

Assumpsit, in the Fulton Circuit Court, brought by the appellee against the appellant, and heard before the Hon. Norman H. Purple and a jury, at the March term 1847, when a verdict was rendered for the plaintiff below for one hundred and fifteen dollars.

Bill in Chancery for an injunction, &c. in the Madison Circuit Court, filed by the defendant in error against the plaintiffs in error, James Riggin, a judgment creditor, and Andrew Miller, sheriff of said county. The cause came on to be heard before the Hon. Gustavus P. Koerner, at the August term 1847, upon a demurrer to the bill, which was overruled, and the injunction issued by order of the Master in Chancery, was made perpetual.

Bin, in Chancery, in the Schuyler Circuit Court, to foreclose a mortgage, Sec. by the plaintiffs in error against Thomas Wilson and wife, and Hart Fellows. The latter pleaded in bar, that the mortgagees had already foreclosed their mortgage by scire facias, and that the same was fully satisfied by a sale of the mortgaged premises to them. At the August special term 1846, the Hon. Norman H. Purple presiding, the plea was adjudged good and the hill dismissed with costs.

This was an action commenced before a justice of the peace of St. Clair county by the defendant in error against the plaintiff in error. A judgment was there rendered in favor of the plaintiff for $14-37. The defendant appealed to the Circuit Court of said county, and the cause was tried before the Hon. Gustavus P. Koerner and a jury, at the November'term 1847. A verdict was rendered for the plaintiff for $15-46.

Assumpsit, in the Cook Circuit Court, brought by the appellee against the appellants, and heard before the Hon. Jesse B. Thomas, at the November term 1847, on demurrer to pleas, which was sustained. The defendants excepted to the decision, and pleaded the general issue, when a judgment was rendered by the Court for the amount of the note sued, with interest. The defendants then appealed.

Assumpsit, in the Putnam Circuit Court, brought by the appellees against the appellant. The cause was tried by the Hon. John D. Catón, without the intervention of a jury, when a judgment was rendered in favor of the plaintiffs below for the sum of $202-86. The damages laid in the declaration were $191-69.

Assumpsit3 in the Stark Circuit Court, originally Brought by the appellant against the appellee, before a justice of the peace, where the cause was tried by a jury, who found for the defendant. The plaintiff appealed to the Circuit Court, and at the October term 1845, the Hon, John D. Catón presiding, the cause was again submitted to a jury with a similar result.

Assumpsit, in the Lake Circuit Court, brought by the appellee against the appellants, and heard before the Hon. Jesse B. Thomas and a jury at the August special term, 1847, when a verdict and judgment were rendered in favor of the plaintiff below for $255. The case was submitted in this Court upon the written arguments of counsel.

Bill in Chancery for an injunction, &c. in the Washington Circuit Court, filed by the appellant against William Moore, James Smith, John H. McElhanan and John N. Vernor. The case was heard on bill, answers, replications and depositions at the May term, 1847, before the Hon. Gustavus P. Koerner, when the bill was dismissed and the injunction, previously granted, dissolved.

Debt, in the Jo Daviess County Court, brought by the appellee against the appellants, and heard before the Hon- Hugh T. Dickey and a jury, at the April special term, 1847, when a verdict was rendered for the plaintiff below for $94-38 debt, and $100-62 damages. The defendants entered a motion for a new trial and in arrest of judgment, which was overruled and judgment entered Upon the verdict.

Indictment, in the Perry Circuit Court, against the plaintiff in error, charging him with having administered medicine to procure an abortion. The venue was changed to St. Clair county, where a trial was had at the May term, 1846, before the Hon. Gustavus P. Koerner and a jury, when a verdict of guilty was rendered against the accused. The jury fixed the term of his imprisonment in the Penitentiary at one month, and the Court, in addition, imposed a fine of $100.

Assumpsit, in the Jo Daviess Circuit Court, brought by the defendants in error against the plaintiffs in error. Judgment by default was rendered against the defendants below, at the June term 1846, the Hon. Thomas C. Browne presiding, for the sum of $1630-74. The proceedings in the cause, and other material facts, are sufficiently stated in the Opinion of the Court.

This case was heard in this Court upon several pleas in bar of the writ of error, and on demurrer to the same. The material facts are stated in the Opinion of the Court sustaining the demurrer. -

Assumpsit, originally brought in the Gallatin Circuit Court by the defendant in error against the plaintiff in error, whence the venue was changed to the White Circuit Court. The cause was there tried at the April term 1847, before the Hon. William Wilson and a jury, when a verdict was rendered for the plaintiff below for $1270.

Ejectment, in the Warren Circuit Court, brought by the plaintiff in error against the defendant in error. At the June term 1846, the Hon. Norman H. Purple presiding, the plaintiff entered a motion to vacate a judgment previously rendered and grant a new trial, founded on the Opinion of this Court, delivered at the December term 1845, reported in 2, Gilm. 400. The motion was overruled by the Court, and the case was again brought into this Court by writ of error.

Forcible Entry and Detainer, originally brought by the appellee before a justice of the peace of Jo Daviess county. The case was submitted to a jury, but they could not agree upon a verdict, and the counsel of the parties, by mutual agreement, transferred the case to the Jo Daviess County Court. Á motion was made, on affidavit being filed, to dismiss the suit, which was overruled.

Debt, in the St. Clair Circuit 'Court, brought by the appellee against the appellants and heard before the Hon. GustavusP. Koerner and a jury, at the October term 1846, when a verdict was rendered for the plaintiff for $154, in the form stated in the Opinion of the Court. The pleadings, &c. will also be there found, so far as was material to the determination of the case.

Motion to dismiss an appeal from the Gallatin Circuit Court, taken by the Public Officers of Gallatin county, on the hearing of an application for a mandamus, &c. before the Hon. William A. Denning, Associate Justice of the Supreme Court and presiding Judge of the said Circuit Court.

<p>•Appeal from Madison.</p> <p>In taking proof of the execution of a deed by the testimony of a subscribing witness, the bare statement by the certifying officer that such person was “known” to said officer, is neither a literal nor substantial compliance with the requisitions of the statute; nor is the statement of the person testifying as to the execution of the deed, the proof of a “credible witness” required by the statute, that such person is a subscribing witness to the deed.</p> <p>Itis not necessary to state in the certifícate of proof of a deed by a competent and credible witness, as required by the statute, that such witness is “competent and credible.” The law presumes that the officer complied with the directions of the statute by examining a competent and credible witness, but this presumption, however, may be rebutted by proof to the contrary.</p> <p>Where, in taking proof of the handwriting of grantors to a deed, the witness stated that he, as agent of the Illinois Land Company, had frequently seen, and well knew all the signatures of the grantors named in the deed as trustees, and of the subscribing witness as secretary of the same Company, in conned ion with the transactions of said Company, it was held tobe sufficient to show, either that he had seen them write, or had seen documents with their names subscribed thereunto, and recognized by them as genuine in the course of business transactions.</p> <p>Proof that the grantor in a deed, and the subscribing witnesses are deceased, or cannot be had, must be made, preliminary to the examination of a witness to prove their handwriting. In the absence of anything to the contrary, it will be presumed that such proof was made.</p> <p>It is not necessary to state in the certificate of proof of a deed by the testimony of a subscribing witness, that he subscribed his name as such in the presence and at the request of the grantor. The prnof made by the witness, which is required to be stated in the certificate has reference to the execution of the deed by the grantor, and not to the subscription of the name of the subscribing witness thereto as such.</p> <p>The description of land in a deed offered in evidence, was thus: “A certain tract of land situate in Madison county, in the State of Illinois, to wit: The south fractional half of section No. 33, T. 5 N. of It. No. 9, west of the 4th principal meridian.” The declaration in ejectment described the land in the same manner, except as to the meridian, which was called the third principal meridian. It was objected that there was a variance between the declaration and proof: Held, that the words in the deed, “the 4th principal meridian,” were surplusage, Madison County being south of that meridian, and there being no such land as that described as being west of it.</p>

Motion to dismiss a writ of error. In this case, Alexander Young, named as plaintiff in error in the above suit, filed the,following affidavit: “State of Illinois, ) Jo Daviess County. $ Alexander Young being duly sworn, states that he was formerly sheriff of Jo Daviess county and is the plaintiff in error in the suit which he understands is now pending in the Supreme Court of Illinois, entitled Alexander Young, sheriff, &c. v. Benjamin H. Campbell and William Hempstead,…

Ejectment, originally brought by the plaintiff in error against the defendant in error in the Fulton Circuit Court, but subsequently removed into the Peoria Circuit Court, where it was heard before the Hon. John D. Catón, without ° the intervention of a jury, by the agreement of the parties. The Court found the issue for the defendant and rendered judgment accordingly.

The defendant in error sued the plaintiff in error before a justice of the peace, in Hancock county, in March, 1845, for money collected by the latter for them, and which he had neglected to pay over. Judgment was rendered against Be-dell, who appealed to the Circuit Court of that county, and the case was subsequently taken by change of venue into McDonough Circuit Court.

Bill in Chancery, &c„ in the Sangamon Circuit Court, filed by the defendant in error against the plaintiffs in error, to compel the execution of an alleged trust. The substance of the bill and the proceedings thereon are stated.by the Court. A decree for a conveyance, &c. was entered against the defendants below at the July term 1839.

Ejectment, in the Adams Circuit Court, brought by the appellees against the appellant, and heard before the Hon. Jesse B. Thomas and a jury, at the September term 1843. A.t the trial, the plaintiffs offered in evidence a deed from the Auditor, of the premises in controversy, to Stephen B. Munn, assignee of Zophar Case, dated Nov. 8, 1833, founded upon a sale, on the 12th of January, 1833, for the taxes of 1832, without any evidence to support said deed.

Ejectment, in the Adams Circuit Court, brought by the appellees against the appellants, and heard before the Hon. Norman H. Purple and a jury, at the April term 1846. At the trial, the defendants below offered to read in evidence an Auditor’s deed, executed in the usual form, to Walter Mead, for the premises in controversy, reciting that said premises had been sold on the 4th day of January, 1832, for the taxes of 1831, and dated December 19, 1845.

Ejectment, in the Adams Circuit Court, originally brought by Matthias Bruen against Willard Graves. Bruen having died pendente lite, his devisees, the present plaintiffs in error, were made parties to the suit. The cause was heard before the Hon. Norman H. Purple and a jury, at the April term 1846.

This was the case of an appeal from an order of the Probate Justice of Randolph county, allowing an administrator a preference claimed by him over the creditors of the estate. It was taken by agreement from the Probate to the Circuit Court of Randolph county, where, at the November term 1847, a judgment, pro forma, was made affirming that of the former Court, from which, by further agreement, the case was brought by appeal into this Court.

Bill in’Chancery, in the Wayne Circuit Court; to enforce a specific performance of a resulting trust, and also for a partition. The case was heard before the Hon. William Wilson, at the August term 1846, and a decree entered in conformity with the prayer of the bill.

Debt, in the La Salle Circuit Court, brought by the plaintiffs in error against the defendant in error, and heard before the Hón. John D. Catón, without the intervention of a jury. Judgment for the defendant.

Bill ‘IN Chancery, originally filed by the defendant in error against the plaintiffs in error, in the Peoria Circuit Court. The bill was taken pro confesso against the infant defendants, and a specific performance decreed at the September term 1836, the Hon. Thomas Ford, then Circuit Judge, presiding.

Assumpsit, in the Knox Circuit Court, brought by the appellee againt the appellant, and heard before the Hon. Norman H. Purple and a jury, at the November term 1846. The jury rendered a verdict for the plaintiff for $462-50, upon which there was judgment.

This case originated before a justice of the peace of Kendall county, who rendered a judgment in favor of the plaintiff for §54, and the defendant appealed to the Circuit Court. It was there heard before the Hon. John D. Catón and a jury at the April term 1847, when a verdict was rendered for the plaintiff for $37-78, for which sum the Court rendered a judgment, and for five-sixths of the costs.

Ejectment, in the St. Clair Circuit Court, brought by the appellee against the appellant, and heard before the Hon, Gustavus P. Koerner and a jury, at the May term 1847. Verdict and judgment for the plaintiff.

Motion made by the appellant against a collector, in the Circuit Court of Washington Count)', the Hon. Gustavus P. Koerner'presiding, at the October term 1847, that he pay over the sum of tí,2398-97, due the county. The motion was disposed of by the Court, who rendered a judgment in favor of the defendant for costs. From this judgment the plaintiff appealed to this Court.

Bill in Chancery to foreclose a mortgage, See. filed in the Peoria Circuit Court hy the defendant in error against the plaintiff in error. The case was heard upon the bill and answer before the Hon. John D. Catón, at the May term 1847, when the usual decree of foreclosure was rendered.

Certiorari, in the. Jersey Circuit Court, brought by the plaintiffs in error against the defendant in error, and heard before the Hon. Samuel D. Lockwood, at the May term 1847. Certiorari dismissed.

The proceedings in the cause are stated by the Court in their opinion. The appeal was dismissed at the November special term, 1846, the Hon. Samuel D. Lockwood presiding.

Bill in Chancery to foreclose a mortgage, and to correct mistakes therein, filed by the defendant in error against the plaintiffs in error, in the La Salle Circuit Court The cause was heard at the November term 1842, before the Hon. John D. Catón, when a decree of foreclosure, &c. was rendered.

Agreed Case, from McHenry county. In this case, the following agreement was filed, together with the written arguments of counsel, to wit: “This was an action of debt brought by plaintiff against the defendant as sheriff of McHenry county. The declaration was in debt for an escape on ca. sa. The defendant filed a general demurrer.

Bill in Chancery, in the La Salle Circuit Court, filed by the appellees against the appellants, April 21, 1845, to set aside a sheriff’s sale en masse of divers tracts of land and town lots. The sale was vacated by a decree at the November term 1846, the Hon. John D. Catón presiding.

This cause was argued and decided at the December term 1846, of this Court, (3 Gilm. 311,) when the judgment of the Circuit Court of Tazewell county was reversed. At the present term, J. T. Stuart, for the appellees, applied for a re-hearing of the case, upon the facts set forth in the statements of the counsel, and in several affidavits filed therewith, due notice of the intended application having been given to the adverse party.

Assumpsit, in the Lake Circuit Court, brought by the appellee against the appellant, and heard before the Hon. Jesse B. Thomas and a jury at the September term 1847.- Verdict and judgment for the plaintiff below for £713-30.

This case was heard in the Jo Daviess County Court, before the Hon. Hugh T. Dickey, at the September term 1847, when a former judgment of the Court at the July term in favor of the appellees, who were plaintiffs below, for $503-25, was in all things affirmed.

Bill in Chancery for discovery, &c. in the Jo Daviess County Court, filed by the plaintiff in error against the defendants in error. There was a demurrer to the bill for want of jurisdiction, which was heard before the Hon. Hugh T. Dickey, at the July term 1846, when the same was sustained, the injunction dissolved and the hill dismissed.

Bill in Chancery, &c. filed in the Randolph Circuit Court, by the plaintiff in error against the defendant in error, and heard upon bill, answer, replication and testimony taken in the case; at the April term 1843, before the Hon. James Semple, when the bill was dismissed with costs.

Scire Facias, in the Lee Circuit Court, issued upon a recognizance, &e. heard before the Hon. Thomas C. Browne upon a general demurrer. Demurrer overruled and judgment against the defendants below.

Attachment, under the Act entitled “din diet authorizing the seizure of boats and other vessels by attachment in certain cases,” in favor of John Jackson, against the schooner General Thornton, on the 30th of April, 1842, and served on the same day.

Indictment, for having in possession a counterfeit Bank note, &c., originally filed in the La Salle Circuit Court. The case was subsequently taken by change of venue into the Grundy Circuit Court. At the June term 1847, an order was entered of record, appointing a term of the Court to .he held on the 15th of November following.

Debt upon a replevin bond, in the Madison Circuit Court, brought by the plaintiff in error against the defendants in error, and heard before the Hon. James Semple and a jury, at the May term 1843. Verdict and judgment for the defendants.

The plaintiff in error, with one other person, executed a note to Joseph Thompson, the nominal defendant in error. His joint and several promissor appeared before a justice of the peace and confessed a judgment for the amount of the note, no process having been issued. Subsequently, the justice issued process against the present plaintiff in error, which recited the previous proceedings before him.

Ejectment, in the Jo Daviess Circuit Court, by change of venue, having been originally commenced in the County Court by the appellee against the appellant. The cause was finally heard in the Circuit Court at the October term 1847, the Hon, Thomas C. Browne presiding, when the jury rendered a verdict in favor of the plaintiff.

This action was originally brought before a justice of the peace of Knox county, to recover the penalty provided by the Road Law of 1841 for an obstruction. The defendant; recovered a judgment for costs before the justice, against the County Commissioners of Knox county, from which an appeal was taken by them to the Circuit Court.

Bill in Chancery, &c. in the Pike Circuit Court, filed by the defendant in error against the plaintiffs in error, and heard before the Hon. Samuel D. Lockwood, at the September term 1844.

SOmE FAOIA5, to foreclose a mortgage, issued from the Cook County Court, at the instance of the defendants in error, against the plaintiffs in error. The cause was heard before the Hon. Hugh T. Dickey, on demurrers to pleao~ The demurrers were sustained, and the defendants bronght their writ of error to reverse the decision of the Conrt,

Debt, originally brought in the Pike Circuit Court by the appellees against the appellant and Mark W. Delahay, whence the venue was changed by consent of parties, to the Scott Circuit Court. The cause was heard before the Hon. Samuel B. Lockwood and jury. Verdict for the appellees.

Covenant, in the St. Clair Circuit Court, brought by the defendants in error against the plaintiffs in error. The cause was heard at the May term 1846, the Hon. Gustavus P. Koerner presiding, when a judgment was rendered for the plaintiffs below for $1975, damages.

Petition for a mechanics51 lien, filed in the Madison Circuit Court by the defendant in error against the plaintiffs in error, and heard at the August term 1847, before the Hon. Gustavus P. Koerner, when a decree was rendered for $901*25, in favor of the petitioner, and a sale of the premises ordered to satisfy the same.

Bill in Chancery, for a ne%v trial, &c. filed in the Peoria Circuit Court by the appellant against the appellee, and finally heard before the Hon. John D. Catón, at the October term 1847, when the injunction was dissolved and the bill dismissed.

<p>Appeal from Winnebago.</p> <p>Payment of the consideration money and possession of land under a parol contract, is sufficient to take a case out of the Statute of Frauds.</p> <p>It is the province of the Court to enforce a contract which the parties have made—not to make a contract for them, and then enforce it.</p> <p>A. being about to enter land, called on B. for a specified sum of money due him, B. was unable to pay the debt, and told A. to hire the money on the best terms he could for him, and that he would pay him whatever he had to pay. The money was procured at an exorbitant rate for three years, &c., and the land was entered in the name of the person who loaned the money. B. was informed of the arrangement and approved of it, but neglected to do as he had agreed in regard to payment. A. was accordingly obliged to pay it to save the land: Held, that A. was entitled to receive of B. the amount paid by him to the lender, as he acted as B’s agent only.</p>