6. The railroad company, under such a deed, has not a mere easement in the land, but the absolute title, subject at most to forfeiture for nonuser or misuser; and as the value of such possible forfeiture is not susceptible of proof, it seems that the amount to be deducted therefor from what would otherwise be the measure of damages for the breach of a covenant of seizin in the second deed, would be merely nominal.

7. Where the title fails to only a part of the land conveyed, the grantee may recover, in an action on the covenants of seizin and right to convey, (or upon an agreement to convey,) such a proportion of the whole consideration paid as the value of the part to which the title fails bore to the whole purchase price at the time of the purchase, with interest thereon during the time he has been deprived of the use of such part, not exceeding six years.

GUMZ, ADM'R, v. C., M. & ST. P. RY. Co. Filed September 27, 1881.

1. Railroad-Negligence Compulsory Nonsuit.A railroad company is liable for injuries suffered in this state by one of its agents or servants from negligence of any other agent or servant thereof, without contributory negligence on his part, (section 1816, Rev. St. ;) and in case of his death from such injury the action may be brought by his personal representative.

2. Where there or two or more lines of action, any one of which may be taken, and such an agent, with ordinary skill, in the presence of imminent danger, is compelled immediately to choose one of them, and does so in good faith, the mere fact that it is afterwards ascertained by the result that his choice was not the best means of escape is not sufficient to charge him with negligence.

3. In this action for injuries from negligence the court did not err upon the evidence (stated in the opinion) in nonsuiting the plaintiff.

CRAMER AND OTHERS v. HANAFORD AND ANOTHER. Filed September 27, 1881.

1. Directory Statute-New Trial-So much of section 2863, Rev. St., as defines the time (20 days after the term of trial) within which the judge must "file his decision in writing," is merely directory.

2. Written exceptions to the judge's findings cannot be considered on appeal unless incorporated in the bill of exceptions. Section 2870, Rev. St.

3. Where the findings are so indefinite, inconsistent and contradictory as not to authorize judgment for either party, a new trial will be ordered.

4. Under the statutes of this state a married woman, having at the time no separate estate, may purchase property of any person other than her husband, entirely on credit, and thereby make herself liable in an action at law for the contract price.

MICHIGAN.

(Supreme Court.)

PORT HURON v. MCCALL. Filed October 12, 1881. Bonds-Municipal Powers.-Under the provision in the charter of Port Huron which emthe common council to "issue new bonds powers for the refunding of bonds and evidences of indebtedness already issued," the common council may issue new bonds to raise money for the satisfaction of judgments.

Municipal powers are to be construed strictly; but the reason for strictness has little application when they are of a nature to concern no one but the people of the municipality; as for example, when they relate merely to a change in the form of municipal indebtedness. The question in such a case is, what was probably the legislative intent in granting a power?

If a city has obtained money on a particular construction of a power, and then adopts a different construction to avoid payment, it is proper to give some weight to the first construction, if the question is one of doubt.

DAY v. WALDEN. Filed October 12, 1881. Easement.-An easement executed by grant is not lost by neglect of enjoyment for 20 years or more, in the absence of any evidence of occupancy adverse to it.

Whether the owner of an easement who has permitted another without objection to make valuable erections which cannot be enjoyed consistent with his use of the easement, is not by his apparent acquiescence estopped from claiming the easement afterwards, quære.

An easement to take water on one tenement to created as an easement appurtenant to the mill be used for operating a mill on another, when and not to any described parcel of land, is lost when the mill goes to decay or is destroyed and not rebuilt.

owners for injuries caused them by the negligent management of those in charge of it.

An act wrongfully done by the joint agency or co-operation of several persons, or done contemporaneously by them without concert, renders them liable either jointly or severally.

If a passenger upon one vessel is injured by its collision with another in consequence of the negligence of the officers of both, he has a right of action against them jointly, and it is for the jury to fix the liability where it belongs.

Where evidence tends to make out a case for the plaintiff, its force and effect is for the jury, and the supreme court will not attempt to review or weigh it.

The limited liability act of Congress exempting ship-owners from personal liability for injuries caused by the negligence of those in charge of their vessels, does not apply to boats navigating streams connecting the great lakes.

QUINNIN v. REIMERS. Filed October 12, 1881.

Village Plats-Where both parties to a suit respecting lands trace title through conveyances made with reference to a recorded plat, it is immaterial that the plat was never properly acknowledged.

Where in platting a village it turns out that by mistake the blocks are not so long as the plat represents, the deficiency must be apportioned between the lots of the block according to their apparent size as shown by the rap.

And this rule will be applied notwithstanding the explanations upon the plat state that all lots are of full size except those made fractional by a named street; it appearing that according to the plat such street made certain lots fractional, and such last-mentioned lots evidently being all the explanations intended to except.

EGGLESTON v. Wagner. Filed October 12, 1881.

Real Estate Contract of Sale-Assenting the Signing of Instrument.—Where one is present and dictates or assents to the signing of an instrument in his name, and upon his behalf, it is a signing by him, and the authority of the person performing the manual act need not be in writing.

A proposal for the sale of real estate, to make the description sufficient within the statute of frauds, need not be so particular as to render a resort to extrinsic evidence unnecessary, but the terms may be abstract and of a general nature, if sufficient to fit and comprehend the property which is the subject of the transaction, so that with the assistance of external evidence the description without being contradicted or added to, can be connected with and applied to the very property intended.

To constitute a contract of sale, where a proposition on one side, and an alleged acceptance on the other, is relied upon, the acceptance must be of the proposition as made, and the party cannot insist upon anything more than a compliance with the original proposal.

May 19th one partner made a proposal to sell

out to the other his entire interest in the patnership business for a certain sum, purchaser to assume all liabilities. Subsequently he consented to keep such proposition open until July 1st, subsequent business to be transacted on that basis. Before that date considerable changes took place. Indebtedness existing on May 19th was paid off, and the partner making the proposal purchased the interest of the other, the business in the meantime being continued. Held, that the proposal was for the interest as it stood on May 19th, and the person to whom made could not, by tendering on June 30th the amount agreed to be taken, insist upon a transfer of all the other party's rights as they existed on said last-named day, and that such tender and demand did not constitute an acceptance of the proposition so as to make a binding contract.

MINNESOTA.

(Supreme Court)

STATE EX REL. MINNESOTA RAILWAY CONSTRUCTION Co. v. TOWN OF LAKE, WABASHA COUNTY. Filed October 17, 1881.

Mandamus-Where a proceeding in mandamus was pending in this court on and before the seventh day of March, 1881, in which there then. was and now is an issue of fact not finally heard or determined, the defendant, under the second. proviso of chapter 40, Laws 1881, is entitled, upon therein transmitted to the district court of the the request of his attorney, to have the record county in which he resides. For such purpose a town is to be taken as residing in the county of which it is a part. The record to be transmitted consists of the original papers in the proceedings, together with certified copies or transcripts of such proceedings in this court as are not evidenced by original papers.

SIMPSON V. KRUMDICK. Filed October 12, 1881.

Charge to Jury.-If, in a charge to the jury, a general proposition stated to them is incorrect, but in the specific instructions, as applied to the facts of the case, the correct rule is stated, so that this court can see that the jury could not have been misled by the erroneous statement, such erroneous statement will be disregarded.

Requests for instructions to the jury held to have been properly refused, where they assumed the existence of disputed facts.

FARNHAM and others v. TRUSSELL and others. Filed October 17, 1881.

Husband and Wife-Fraudulent Conveyance.The plaintiff claimed that certain lands were conveyed by defendant K. to one T., and by T. to K.'s wife, in fraud of plaintiffs, as K,'s creditors. The evidence reasonably tending to show that K. purchased the land for his wife, and as her agent; that the cash payment for the same,

as well as two deferred payments, were made with her money and separate property; that K. was indebted to his wife in a sum considerably exceeding the unpaid portion of the purchase money for which K. had given his note; that the title was originally taken in K.'s name, without his wife's knowledge or consent; and that the conveyance from K. to T. was made for the purpose, expressly understood and agreed upon between K. and his wife, that T. should convey to her, so that the title should come into her name, in pursuance of and to carry out the design of the original purchase, held, that this was sufficient to warrant the trial court in finding, in effect, that the conveyances were not fraudulent as respects the plaintiffs, and that this action, which was brought to subject the land to their execution against K., should be dismissed.

STATE OF MINNESOTA ex rel LEE v. SCHAAK, County Auditor, etc. Filed October 12, 1881. Mandamus-Redemption.-Before a writ of mandamus will issue to require a public officer to do an official act, there must be a demand upon him to do it. Where, at tax sale, land is sold as one tract, the owner of a part of the tract may redeem the whole, but he cannot redeem a part of it.

ILLINOIS.

(Supreme Court.)

ORRIN P. BISSELL v. THOMAS LLOYD ET AL.-Opinion by DICKEY, J., affirming. Filed Sept. 26, 1881.

1. Lease-Construction as to extent that tenant should repair. Where the lessee of a store-room in a building undertakes to make all needed repairs and alterations in and about such room, the lessor, by implication, will be bound to keep the residue of the building in repair, so as to protect such room.

2. Landlord and tenant-When tenant released from rent for want of repairs.-When a party rents a room in a building for a store-room, undertaking to keep the building, except the particular room, in proper repair, and neglects to repair, so that the building leaks so badly as to render the store-room unfit for the use it is rented, and the lessee leaves the same on that account, the lessor will not be entitled to recover rent for the store-room after it is abandoned.

3. Chancery-Relief when denied for laches.-When a party purchasing a lot of goods from a surviving partner, agreed as a part of the consideration of the sale, to pay all the debts and liabilities of the late firm, a bill in chancery by one who had leased the firm a store-room, to enforce the payment of rent, after a lapse of more than eight years, from a repudiation of the claim for rent by the defendant, will not be enforced on account of the statement of the demand.

4. Judgment-Does not bind one not a party.-One not a party to a judgment against another, is not in any manner concluded by it, although he may have agreed to pay the indebtedness of the defendant.

THE FIFTH NATIONAL BANK V. THE VILLAGE OF HYDE PARK.-Opinion by DICKEY, J., reversing and dismissing. Filed Sept. 26, 1881.

1. Trust-When stranger to fund is chargeable as a trustee.-To charge a stranger to a trust fund as a trustee by reason of participation in a misapplication of the fund, upon the ground that the fund was used in pay

ment of a private debt of the original trustee, it is necessary to show not only that the party sought to be charged was aware that the fund was a trust fund, but also that he was aware that the debt paid by it was at the time in fact a private debt, or such a debt that payment thereof could not lawfully be made out of such fund.

2. If a depositor pays his own debt to a banker by a check upon funds to his credit in a fiduciary capacity, the banker will be affected with knowledge of the unlawful character of the appropriation, and will be compelled to refund the cestui que trust, but the debt paid must be such as that the officers of the bank are aware that the same is really and in truth his own private debt.

3. Where a treasurer of a village borrowed money of a bank on his own note, secured by valuable collaterals, professing at the time to be borrowing the same for the village to pay off its warrants in anticipation of the collection of its taxes, and such money was placed to his account in bank as treasurer, and most of it applied in payment of village warrants, and after the receipt of the taxes he gave the bank a check upon the trust fund in payment of his note, and the bank in good faith believing the debt to have been incurred for the village, accepted the payment and surrendered the note and collaterals: Held that the payment could not be rescinded by the village, and the bank be held responsible for the money so paid it.

THOMAS MOORE v. PATRICK TIERNEY.-Opinion by DICKEY, J., affirming. Filed Sept. 26, 1881.

1. Statute Practice act does not apply to chancery cases. No part of the "act in regard to practice in courts of record" (Ch. 110, R. S. 1874) has any reference to the mode of procedure in chancery cases, except in so far as the language expressly, or by clear implication, refers to such procedure. That is regulated by the act relating to courts of chancery, except so far as is otherwise expressly enacted, or is necessarily implied by subsequent legislation.

2. Practice--Supreme Court reviews questions of fact in chancery cases.-The amendment of sec. 88 of the Practice Act in 1879, by which the class of cases which might be brought directly to this court was changed so as to exclude criminal cases below the grade of felony from the enumeration, and so as to add to the enumeration cases in which the construction of the constitution is involved, and cases relating to the revenue or in which the State is interested, has no effect upon consideration of questions of fact in chancery cases, there never having been any legislation on that subject in either sec. 88 or

89 of that act.

3. Practice in Supreme Court-As to reviewing questions of fact.-It has always been the practice of this court, in reviewing cases in chancery, to examine and determine for itself, the truth as to controverted questions of fact from the evidence in the record, and its duty to do so has not been changed by sec. 89 of the Practice Act or any other legislation.

ASAHEL GAGE v. MAHALA SCALES ET AL.-Opinion by CRAIG, J., affirming. Filed Sept. 26, 1881.

1. Appeal-Whether a freehold is involved.-A bill to set aside a deed for land made on a sale for taxes by one claiming title, on the ground of a redemption from such sale, in which suit the redemption is denied, involves a freehold, and an appeal lies from the Appellate Court. 2. Redemption-From tax sale-Mistake of county clerk as to amount.-When the owner of real estate sold for taxes applied to the county clerk to redeem the same, and paid the sum required of him by the clerk, and took a certificate of redemption, but the clerk by mistake failed to require the payment of taxes subsequent to the sale: Held, that a court of equity had the power to relieve the owner against the mistake of the clerk and protect the title of the owner, upon his paying the amount of the subsequent taxes.

3. Although redemption from a tax sale is a statutory right, yet a party at empting in good faith to make it, may be relieved against the mistakes or frauds of the officers of the law, or of the purchaser. If he has attempted to redeem and has done all he was required to do by those entitled to receive the money, in such case

the sale will be discharged, even though in consequence of the mistake of the officer, he has paid less than the proper amount, if he will pay the deficiency.

4. Redemption-Subsequent taxes, how found.-On application to redeem land from tax sale while the tax books are in the hands of the collector, the county clerk can require the party to present a receipt showing the payment of subsequent taxes, or if they had been paid by the person holding the certificate, a statement from the collector showing the amount paid, by whom and when, and in this manner the proper amount necessary to redeem may be ascertained.

WILLIAM M. HOLMES ET AL. v. ARAMENTIA M. SMYTHE ET AL. Opinion by SCHOLFIELD, J., reversing and remanding. Filed Sept. 30, 1881.

1. Constitutional law-Special legislation-Of the act concerning law associations.-The act of April 4, 1872, entitled "An act to enable associations of persons to become a body corporate to raise funds to be loaned only among its members," is a general law applicable to all the citizens of the State who choose to bring themselves within the relations and circumstances provided for by it, and is not within the prohibition of the Constitution (section 22 of article 4), which declares that the General Assembly shall not pass local or special laws "regulating the rate of interest on money," or "granting to any corporation, association or individual, any special or exclusive privilege, immunity or franchise whatever."

2. Usury-Of contracts with an association organized under the act of April 4, 1872. "to enable associations of persons to become a body corporate to raise funds to be loaned only among its members."-Where a person who is a member of such association obtains a loan of money therefrom, under the system of bidding the highest premium for the loan, as provided for in the act, coupled with other conditions authorized and prescribed therein, the transaction will not be regarded as usurious, although it may result that the borrower will be required, under the provisions of the contract, to pay a greater price for the use of the money advanced to him than would be allowable under the general law regulating the rate of interest. The contract being of such character that it is only upon the failure on the part of the borrower to perform its conditions that such result would follow; the obligation to pay an amount in excess of the legal rate of interest might be regarded as in the nature of liquidated damages, and not in any sense a regulation of interest upon money. This would be the proper view, even treating the transaction as a loan.

3. But a transaction of such character, being in its features and conditions in conformity with the provisions of the act, might rather be regarded as in the nature of a sale by the person to whom the money was advanced, or his shares of stock to the association, than as a loan.

THE PEOPLE EX REL. THE ILLINOIS MIDLAND RAILWAY Co., v. THE SUPERVISOR OF BARNETT TOWNSHIP. -Opinion by SHELDON, J., awarding alias writ of mandamus. Filed Sept. 30, 1881.

1. Attorney-at-law-Presumption as to authority.Where a proceeding purports to have been instituted by the party whose name appears of record, by his attorney, who is an attorney of this court, the presumption of the authority of the attorney will prevail over the bare statement by the defendant to the contrary, unsupported by affidavit.

2. Mandamus-Of an alias peremptory writ of mandamus to the successor in office.-Where a peremptory writ of mandamus has been awarded against the supervisor of a town, commanding him to execute, in behalf of the town, certain bonds to the relator, and the officer has not obeyed the command of the writ, and his term of office has expired, an alias peremptory writ may properly be awarded against his successor in office to compel him to perform the acts which the former had been by the first writ ordered to perform. This is but a repetition of the writ against the same party represented by another person. It is not making a new party, or any amendment in the judgment or record, within any rule not allowing amendments. The duty upon the officer first commanded to execute it, is a continuing duty upon him and his successors in office until it is performed."

3. Office and officer-Tenure of office-Effect of resignation as ending the term before successor is qualified.Where the tenure of an office is fixed for a specified period of time "and until a successor shall be elected or appointed, and qualified," the mere expiration of the specified period of time for the duration of the term of office will not operate to vacate the office, or to impair the powers of the officer to continue in the performance of the duties of the office, nor will the election or appointment alone of his successor have any such effect, for there must be superadded to the election or appointment of a successor, his qualification, in order to the complete divestiture of the prior incumbent of his official authority.

4. No distinction in this regard is to be taken between a resignation and the expiration of the time fixed for the holding of the office. A resignation and its acceptance, ends the term of office, the same as the expiration of the time of the tenure of the office does, and no more effectually. Whatever power there is in the latter case to act officially until the qualification of a successor must exist equally in the case of a resignation.

5. In this case a peremptory writ of mandamus was awarded to compel the supervisor of a town to execute, in behalf of the town, certain bonds to the relator. The supervisor did not obey the command of the writ. After his term of office expired and his successor was duly elected and qualified, à rule was entered againsf the latter to show cause why an alias peremptory writ should not be awarded to compel him to perform the acts which his predecessor in office had been by the former writ ordered to perform. The respondent, among other things, gave as a reason why the alias writ should not issue, that prior to the entering of the rule he had resigned his office of supervisor and his resignation had been accepted, and that his successor in office had been elected. But it did not appear that the person so alleged to have been elected, had qualified. So the rule was made absolute, and the alias peremptory writ was awarded against the respondent, notwithstanding his resignation.

DAVID B. HUTCHINSON ET AL. v. JOHN A. CRANE ET AL. -Opinion by WALKER, J., affirming. Filed Sept. 30, 1881.

1. Party-Holder of notes indorsed in blank.-Where the payee of a note delivers the same indorsed iu blank to indemnify a member of firm as his security, and suit in equity is afterwards brought in the name of the firm to enforce payment of such note, the maker of the note cannot be heard to object that the suit is brought in the name of the firm instead of that of the individual partner. They will be presumed to be the legal holders as against the maker, who had no interest as to the party entitled to payment.

2. Assignment-Of note by vendor of land carries his security. Where a bond is given for a deed to land to be made upon payment of the notes given for the unpaid price, the bond and notes will constitute one contract, and they will be treated in equity as a security, in the nature of a mortgage, and a sale and assignment of the notes will pass the security, which may be enforced in the name of the assignee.

3. Deed-Set aside when possession obtained by fraud, without delivery.-Where the purchaser of land under a bond for a deed, induced his vendor to make a deed to be left with the assignee of the notes given for the purchase money, for delivery only upon payment of such notes, and fraudulently obtains possession of such deed without payment, and puts the same upon record, such deed will be set aside as to him and a purchaser from him, with notice of the fraud, and the land be ordered sold for the payment of the notes.

JAMES W. LAMBERT ET AL. v. CATHARINE S. HARVEY ET AL. Opinion by MULKEY, J., affirming. Filed Sept. 30, 1881.

1. Will-Devise, when to take effect.-When a testator directed that as soon as could advantageously be done after the death of his widow, all his notes, &c., te collected, and all his property, real and personal, be sold, and after paying the expenses of executing the will, his daughter, A, should be paid $1,000, and the remainder of his estate be given to his daughter, B, if living when the will should be executed, but if not living, her part to

be given to her daughter, C, and appointed B his executrix: Held, that the disposition made by the will was not to take effect until after the death of his widow, and then the division was to be made with reference to the condition of things as then existing.

2. Where a will provided for the conversion of all the testator's property into money on the death of his widow, and its division among his two daughters, but directed that if his daughter B should not be living "at the time this will shall be executed," her share should be given to her daughter; Held, that the words "at the time this will shall be executed," referred to the time of converting the estate into money and distributing it under the will.

3. Will-When property descends to heirs.-When real estate is directed by a testator to be sold and converted into money after the happening of a certain contingency, and no disposition is made of such estate in the meantime, it will descend to the heirs-at-law of the testator, subject to sale under the power at the proper time.

4. Will-Whether executrix takes legal title.-Where the executrix of a will is directed to sell the testator's real estate and divide the proceeds of the sale between certain devisees, she takes only a power of sale, that beiug all that is necessary to execute the will, and no legal estate in the land.

JACOB A. GOODELL v. ROSWELL W. DEWEY.-Opinion by MULKEY, J., affirming. Filed Sept. 30, 1881.

1. Chattel Mortgage-Mortgagee may purchase at his own sale by consent of mortgagor.-A purchase by a mortgagee at his own sale under a chattel mortgage will not be set aside and a redemption allowed, when the sale and purchase was made with the consent and under an understanding with the mortgagor.

2. Sale under power in Mortgage-When made to mortgagee by consent will not be set aside.-Where the mortgagor and his wife gave the mortgagee an absolute conveyance of the mortgaged premises in full satisfaction of the indebtedness, and the mortgagee, to avoid certain judgment liens, made a sale under a power in his mortgage of the property to one who immediately conveyed back to the mortgagee, without paying anything on the purchase, and the mortgagee then surrendered the notes and the mortgagor's deed, and received possession of the premises, and held them without any claim or objection by the mortgagor, for over three years, and it appearing that the property was worth but little more than the indebtedness, and no fraud or overreaching being shown, it was held, that a bill to set aside the sale and allow a redemption was properly dismissed.

CHARLES E. REYNOLDS v. MARY ANN MCCURRY ET AL. -Opinion by MULKEY, J., reversing and remanding. Filed Sept. 30, 1881.

1. Partition—Jurisdiction of subject-matter.-Lands not held in joint tenancy, tenancy in common or co-parcenary are not subject to partition, either at common law or under the statute, and the court will have no jurisdiction of the subject-matter of a suit for partition, and therefore the proceeding will be absolutely null and void

2. A bill by an infant to set aside a sale of his lands under a proceeding by his guardian to assign dower and for partition between the infant and his mother, which shows that an abundance of means for his support came to the guardian, and that such infant was the sole owner of the land, subject only to the dower of his mother, and that the guardian and mother entered into an unlawful combination for the purpose of converting his estate to their own use, under which a decree of sale was procured and the sale made, is not obnoxious to a general de

murrer.

3. Infant-Not bound to tender the purchase money paid to his guardian before avoiding guardian's sale.Where a guardian under a void decree sells the land of his ward, and appropriates the purchase money to his own use, the ward will not be required to restore to the purchaser the price paid by him as a condition` precedent to having the sale set aside.

4. Infant-When must restore consideration to repudiate contract.-It is the general rule that when the con

ANDREW J. RICHARDS v. THE PEOPLE OF THE STATE OF ILLINOIS.-Opinion by MULKEY, J., affirming. Filed Sept. 30, 1881.

1. Practice-Facts not open to consideration on error in this court;-In a suit to recover a penalty for obstructing an alleged highway, depending upon the question of fact whether land at the place obstructed had been dedicated for a public road, this court on appeal or error is concluded by the finding of facts by the Appellate Court, and can only review questions of law properly preserved in the record.

2. Same-Allowing security for costs after motion to dismiss.-There is no error in allowing a plaintiff in an action upon a penal statute to file security for costs after a motion to dismiss the suit for want of such security.

1. Appeal-Whether a freehold is involved.-When an interpleader is filed in an attachment suit, by a third person claiming title to the land levied upon, and the plaintiff in attachment claims that the defendant in the writ has a life estate, upon which an issue is formed as to the ownership of the land at the time of the levy, and a trial is had, a freehold is involved, and an appeal lies directly to this court.

2. Curtesey-Requisites to estate by.-There are four things necessary to make a tenancy by the curtesey-marriage, seizin of the wife, issue born and death of the wife. If no issue is born prior to the time the estate was abolished, July 1, 1874, the marriage, seizin and death of the wife, will not invest the husband with the estate.

3.

Will-Devise to a married Woman, when excludes estate of curtesey in husband.—When a testator provided in his will that no part of the property given should ever, in any event, be liable in whole or in part towards the payment of any debt of her husband, but that all of it should be held and kept free from such liability, it was held, that by necessary implication the husband of the devisee was excluded from any estate by the curtesey, even if that had not been abolished.

ANDREW RICHARDS V. THE PEOPLE, ex rel. ALFRED THOMPSON. Opinion by MULKEY, J., affirming. Filed Sept. 30, 1881.

1. Appeal-Whether freehold or franchise is involved. -A bill to enjoin a party from obstructing a highway, the existence of which is denied, does not involve a freehold or a franchise within the meaning of the statute relating to appeals to this court and writs of error.

2. Same-When it lies to this Court from Appellate Court. The statute making the right of appeal from the Appellate to this court depend in certain cases upon the amount in controversy, or of recovery in the court below, has no application when the object of the suit is not to recover a debt or damages, or some specific article of property, either personal or real. In all other cases an appeal lies to this court.

3. Error-Reversing on facts in chancery suit.-Where a number of witnesses have been examined orally on the hearing of a bill in chancery, and a finding had by the Circuit Court which is affirmed in the Appellate Court, the decree will not be reversed on the evidence, unless this court can see that the conclusion reached was clearly against the weight of the evidence.