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Opinion of the Court.

warrants the course pursued in this case, and there is a necessity for so construing the law, for in very many cases it would be difficult, if not impossible, to decide upon the propriety of laying out a new road without involving the consideration of a necessity for the old road, should a new one be determined on; the latter being to be so laid out as to render the old road useless, and to save multiplicity of proceedings to attain the same end, the petition can rightfully embrace both objects.

The main ground of controversy between these parties seems to be, first, that the commissioners of highways failed to act on the sixth day of November, 1873, the day on which, according to the notice, they were to meet, and that they made no adjournment to any other day, to hear reasons for and against laying out the new road, or vacating the old road.

The answer to this is, and the record shows, that the commissioners met on that day pursuant to the notice, and went upon and viewed the line of the road, and thereafter, on the same day, announced they would not order the new road to be established. This decision was not committed to writing until the 8th day of November, and was filed on that day, in the office of the town clerk. This, we think, was a substantial compliance with section seventy-three. It can hardly be held here was an adjournment of the meeting, for a public announcement was made of the final decision of the commissioners on the sixth, the day of their meeting. The decision was committed to writing on the eighth, and filed with the town clerk within the ten days required by the statute.

It is claimed, secondly, that appellant failed to comply with the statute as to the necessary steps in perfecting his appeal, he not giving notice of the time and place when such appeal would be heard.

Section 99 provides, that any person interested in the decision of the commissioners of highways, may appeal from such decision to three supervisors of the county outside of the town, etc., by giving a written notice of such appeal to the said commissioners of highways, and to at least three of the petitioners, and also to the same parties a notice when and

Opinion of the Court.

where such appeal will be tried, at least three days before such trial, within ten days after such decision has been filed in the office of the proper clerk; and shall also present a written petition to some justice of the peace of the county, asking for an appeal, and stating on what grounds the appeal is taken; and, by section 102, shall file with the justice of the peace, or town clerk, a sufficient bond, which was done. The adverse decision of the highway commissioners was filed in the office of the town clerk on November 8th. On the 13th of that month, appellant, Anderson, presented his petition to one Dunkle, a justice of the peace of the county, asking for an appeal, stating therein the grounds on which the appeal was taken.

Notice of the appeal was served in writing on all these commissioners of highways, and on three of the petitioners, by the 15th of November; that three supervisors, naming them, outside of the town of Sparta, had been duly summoned by Dunkle, a justice of the peace, and that they would meet at the Founen school house, in the town of Sparta, on the 24th of November, 1873, at ten o'clock in the forenoon, for the purpose of hearing the appeal and determining the same, and also the purpose of the appeal.

The supervisors were duly served with the summons, and fixed the 28th day of November as the day of their meeting at the Founen school house.

Notice to hear the appeal on the 28th was duly served on the highway commissioners, and three petitioners.

On the 28th of November, at the Founen school house, the selected supervisors, the three highway commissioners, and two of the petitioners for the road, met at the hour appointed, and, by common consent, the hearing of the appeal was postponed until the 5th day of December following, at the Founen school house, at ten o'clock on the morning of that day, and the same publicly announced, and a notice thereof posted on the front door of the school house.

On this fifth day of December, at the time and place specified, the three supervisors, the three commissioners of high

Opinion of the Court.

ways, and parties interested and their attorney, appeared to hear and determine the appeal. After examining the route of the proposed road, and hearing the reasons for and against, the supervisors reversed the order of the highway commissioners, and decided the road should be laid out, as prayed, and publicly announced this as their decision, on the 5th of December, 1873.

Counsel for appellee is mistaken in supposing the notice of the meeting on the 28th of November was not served ten days previously. That notice was in time, as appears in the record. The notice of the adjournment to the 5th of December was posted on the 28th of November, and was regular. The ground assumed by counsel is, that notice of the meeting on the 28th of November not having been served in time, the supervisors acquired no jurisdiction to hear the appeal on the 5th of December.

We have no doubt the appearance of the three commissioners and two of the petitioners before the supervisors on the 28th of November, was a full appearance, and waived whatever informality there might have been in the notice, and the postponement to the 5th of December, by common consent, was proper. No argument can be drawn from the fact that, in the summons of the justice of the peace to three supervisors, he fixed the day of meeting on the 24th of November. The statute does not and did not give him the power to select the day of meeting. That is for the supervisors to do. Section 100 provides, it shall be the duty of the justice of the peace to cause to be summoned three supervisors of the county, to hear such appeal, and said supervisors shall fix upon a time and place when said appeal will be heard by them.

These supervisors, on being summoned, fixed upon the 28th of November as the time, and the Founen school house as the place, of which all parties interested had due notice, and then and there personally appeared. There can be no question of jurisdiction, nor can we perceive any error in its exercise. The meeting on the 5th of December cured, we think, any irregu

Syllabus.

larity, if there was any, in the adjournment on the 29th of November.

There is no point made on the proceedings to assess damages, nor on the subsequent proceedings of January 26, 1874. As presented to us by this record, we are of opinion the proceedings to lay out this road and vacate the Lime Kiln road, were in substantial compliance with the statute, and the parties interested should not have been enjoined in their attempt to carry into effect the order of the supervisors on appeal.

The injunction, having been improvidently granted, should have been dissolved on the answer of appellant, and on the merits, as disclosed on the hearing. The principal objections relied on by appellee do not exist in fact, and no cause appears for equitable interference.

The decree is reversed and the bill dismissed.

Decree reversed.

PETER STRAUBHER et al. Exrs.

v.

JACOB MOHLER.

1. WITNESS-when party competent in his own behalf in suit against an executor. A claimant who is prosecuting a claim against the estate of a deceased person is a competent witness in his own behalf, in relation to what was done and said at a settlement between him and the executor of the estate, about which a witness produced by the executor has testified.

2. SETTLEMENT-presumed to embrace all items of account on both sides. A strong presumption arises, that a settlement of accounts between parties embraces all the items each has against the other that are due, and this presumption is so strong, that it devolves upon the party asserting the contrary to prove that an item omitted was not due, or that it was omitted by consent of parties, or by accident and unintentionally by the party claiming it.

3. ADMISSIONS-weight to be given to evidence of, a matter for the consid eration of a jury. Whilst it may be true, as a general rule, that evidence of the admissions of parties is unsatisfactory, it is not necessarily and per se of that character. It may or may not be so, according to the circumstances

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Opinion of the Court.

attending it, from which the jury are to determine what weight it is entitled to, without any interference in that respect on the part of the court.

APPEAL from the Circuit Court of Peoria county; the Hon. J. W. COCHRAN, Judge, presiding.

Mr. S. S. PAGE, and Messrs. CRATTY BROs., for the appellants.

Messrs. BURNS & BARNES, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

Appellee presented a claim in the probate court of Woodford county, against the estate of Joseph Belsley, deceased. A trial was had in that court, and the cause was removed, by appeal, to the circuit court of that county, but the judge having been counsel in the case, the venue was changed to the circuit court of Peoria county. In the county court, the jury found for the defendants a verdict for 73 cents, but on a trial in the circuit court, the jury found for the plaintiff $1100 over and above a note introduced as a set-off by the executors of the estate, on which a judgment was rendered, allowing the claim against the estate for the sum found by the jury, and the executors appeal. Various errors have been assigned on the record, and we shall consider such as we regard as having force or plausibility.

It is first urged, that the court below erred in permitting appellee to testify in his behalf, the person being dead for whom he transacted the business and from whose estate he was seeking to recover for services rendered. It appears that he was called to rebut the evidence of Dent as to a settlement, which occurred between him and the executors of the estate after Belsley's death. This evidence clearly falls within the first exception to the second section of the statute entitled "Evidence and Depositions." Appellee was called to prove what was done and said at the settlement between him and the executors, and this is clearly and expressly sanctioned by this clause of the statute. His evidence only related to what Dent had testified was done or said at that settlement, and,

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