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Syllabus. Opinion of the Court.

WILLIAM PICKERING

v.

WASDEN DRIGGERS.

CHANCERY-jurisdiction of, to set aside sheriff's sale-laches. Inadequacy of consideration alone, unaccompanied by other ground of interference, is rarely, if ever, held a sufficient reason for setting aside a sheriff's sale of real estate. And even if so considered, a delay of seventeen years in seeking the relief, while unexplained, would prevent the action of the court in that regard.

WRIT OF ERROR to the Circuit Court of White county; the Hon. JAMES M. POLLOCK, Judge, presiding.

Messrs. CREBS & CONGER, and Mr.WILLIAM J. ALLEN, for the plaintiff in error.

Mr. T. B. TANNER, for the defendant in error.

Mr. CHIEF JUSTICE LAWRENCE delivered the opinion of the Court:

This is a bill in chancery, filed in 1866, to set aside a sheriff's sale of real estate, made in 1849, on the ground of inadequacy of consideration. The inadequacy was, no doubt, very great; but that alone, unaccompanied by some other ground of interference, is rarely, if ever, held a sufficient reason for setting aside a sale, and certainly can never be so regarded after a lapse of seventeen years from the making of the sale. Even if the court could have given the desired relief, if asked in time, the delay alone, while unexplained, would prevent its action at this late day.

The decree of the circuit court dismissing the bill, is affirmed. Decree affirmed.

5-59TH ILL.

Syllabus. Opinion of the Court.

WILLIAM S. SMITH, Sr. et al.

V.

AMERICUS CORNELL et al.

EVIDENCE-presumption. A party purchased of another a lot of mules at a specified price per head. In an action by the vendor against the purchaser for the price of a portion of the mules, the rest having been paid for, the plaintiff declaring on the common counts, to which the general issue was filed, with a notice of set off, the defendant relying upon an agreement that the payment was to be settled with a third person, it was held, the plaintiff having proven the sale of the mules to the defendant, it devolved upon the latter to show that the purchase was not in the usual course of business, and that some special contract or agreement was made in reference to the purchase, to rebut the presumption that the money was to be paid to the vendor.

APPEAL from the County Court of Bond county; the Hon. ENRICO GASKINS, Judge, presiding.

Messrs. S. A. & A. C. PHELPS, for the appellants.

Mr. S. P. MOORE, for the appellees.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action of assumpsit, brought by appellees, in the Bond county court, against appellants, to recover the price of a portion of a lot of mules, which were sold by appellees to appellants on the 2d day of November, 1869. The declaration contained the common counts, and to it the general issue was filed, with a notice of set off. A trial by jury was had, resulting in a verdict in favor of plaintiffs, when a motion for a new trial was entered, but overruled by the court, and judgment rendered upon the verdict, from which an appeal is prosecuted to this court, and various errors are assigned on the record.

The parties were sworn, and their evidence is in conflict as to the ownership of the property sold, and as to the payment of the purchase price. Defendants claim that five of the ten mules purchased belonged to one Jenkins, and that Cornell agreed to sell them, and let the defendants settle

Opinion of the Court.

with Jenkins; but this is positively and unequivocally denied by Cornell, who sold the mules to Smith, Jr. There is no dispute that appellants purchased ten mules of appellees at $125 per head; and having proved that fact, it devolved upon appellants to prove that the purchase was not in the usual course of business, and that some special contract or agreement was made in reference to the purchase, to rebut the presumption that the money was to be paid to the vendor. Appellant Smith, Jr., testifies to a special arrangement, but Cornell denies it. Smith says five of the mules belonged to Jenkins. Cornell admits that he had mules belonging to Jenkins, but denies that he agreed to sell them to appellants, and permit them to set off the amount against their claim on Jenkins.

In this conflict of evidence, the jury have given credit to Cornell, and we fail to perceive anything in the record which indicates that they did wrong in so doing. It was their province to weigh the testimony, and give weight to such as they believed to be true, and reject such as they were unable to believe.

We are not prepared to say that they should have given credit to Smith's, rather than Cornell's, evidence. Appellants have failed, by a preponderance of evidence, to establish the special agreement relied upon, and the proof warranted the finding of the jury.

We perceive no force in the objection, that the court admitted improper evidence. The portion objected to may have been remote, but it tended to shed light upon the transaction, and was not, so far as we can see, calculated to either mislead or confuse the jury.

We find no error in the record, and the judgment of the court below is therefore affirmed. Judgment affirmed.

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1. CRIMINAL LAW-return of indictment into open court. Before a party can be legally tried on an indictment, it must appear from the record, that the indictment was returned by the Grand Jury into open court. Such fact not appearing in the record, a motion in arrest of judgment should be allowed.

2. THE MINUTES OF THE JUDGE are no part of the record, and although they show the indictment to have been so returned, that does not have the force or effect of a record.

3. MALICIOUS MISCHIEF—what constitutes. Upon the trial of a party on an indictment for malicious mischief, it appeared there was a controversy between the prosecutors and the defendant, in regard to the possession of a certain lot of ground, the defendant being in the actual possession. Upon the prosecutors attempting to run a division fence across the lot, the defendant took up the posts and tore off the boards, while the fence was in process of erection, and forbade them from making the fence, protesting they had no right to do so, and that he was paying rent for the whole of the premises: Held, an instruction offered by the defendant, that if the jury believed, from the evidence, he was in possession of the premises and paying rent, they should find him not guilty, should have been given. The statute in regard to malicious mischief, (R. S. Ch. 30,) does not apply to cases of this kind, where opposition is made by a claimant of premises of which he is in actual possession, to the erection of a fence across the same without his consent.

4. VENUE-in criminal cases, must be proved. The failure, in a criminal case, to prove the county in which the offense was committed, is fatal to a conviction.

WRIT OF ERROR to the Circuit Court of Clinton county; the Hon. SILAS L. BRYAN, Judge, presiding.

This was a prosecution for malicious mischief. The indictment charges the defendant with maliciously breaking, tearing, and pulling down a plank and post fence, and destroying the same. It appears, the fence so alleged to have been torn down and destroyed, was in process of erection by the prosecuting witnesses, across a lot of ground in the actual possession of the defendant, and which he claimed he was entitled

Opinion of the Court.

to as their lessee. The prosecutors contended he was only entitled to a part of the premises.

Mr. G. VAN HOOREBEKE, for the plaintiff in error.

Mr. WASHINGTON BUSHNELL, Attorney General, for the people.

Mr. JUSTICE BREESE delivered the opinion of the Court: This was an indictment in the Clinton circuit court, for malicious mischief, and a verdict of guilty and a fine imposed.

To reverse this judgment defendant brings the record to this court, assigning for error, that his motion in arrest of judgment was overruled, and the refusal of the court to give the instruction asked on his behalf.

These points we are of opinion are well taken. The record does not show that the indictment was brought into court by the Grand Jury. There is nothing tending to show this but the minutes of the judge, which he is not required to keep, and which he does keep for his own convenience merely, and have not the force or effect of a record. It is admitted, the clerk of the court made no entry on his minutes of the fact. McCormick v. Wheeler et al. 36 Ill. 114.

It was held by this court in Gardner v. The People, 20 ib. 430, that before any party can be tried on an indictment, it must appear from the record that it was returned into open This fact does not appear, and being absent the judgment should have been arrested.

court.

It would appear from the evidence, there was a controversy between the prosecutors and the defendant, as to the possession of this lot, the defendant being in actual possession, and on the prosecutors attempting to run a division fence across it the defendant took up the posts and tore off the boards, while the fence was in process of construction. The defendant forbade them from making the fence, protesting they had no right so to do, and that he was paying rent for the whole premises.

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