History of Tazewell county, Illinois ; together with sketches of its cities, villages and townships, educational, religious, civil, military, and political history; portraits of prominent persons and biographies of representative citizens. History of Illinois ... Digest of state laws online

to work on highways. For refusal to perform any of his duties he
is liable to a fine of $10.



746 DIGEST OF STATE LAWS.

As all township and county officers are familiar with their duties,
it is here intended only to give the points of law with which the
public should be familiar. The manner of laying out, altering, or
vacating roads, etc., will not be here stated, as it would require
more space than can be spared in a work like this. It is sufficient
to state that the first step is by petition, addressed to the commis-
sioners, setting out what is prayed for, giving the names of the
owners of the lands, if known (if not known, so state), over which the
road is to pass, giving the general course, its place of beginning,
and where it terminates. It requires not less than twelve freehold-
ers residing within three miles of the road, who shall sign the peti-
tion. Public roads must not be less than fifty, nor more than sixty
feet wide. Koads not exceeding two miles in length, if petitioned
for, may be laid out not less than forty feet wide. Private roads
for private and public use may be laid out three rods wide, on peti-
tion of the person directly interested; the damage occasioned there-
by shall be paid by the premises benefited thereby, and before the
road is opened. If n-ot opened in two years, the order shall be con-
sidered recinded. Commissioners in their discretion may permit
persons who live on or have private roads, to work out their road
tax thereon. Public roads must be opened in five years from date
of filing order of location, or be deemed vacated.

FENCES.

The town assessor and commissioners of highways shall be fence
. viewers in their respective towns in counties under township organ-
ization. In other counties, the county board appoints three in each
precinct, annually.

A lawful fence is four and one-half feet high and in good-repair,
consisting of rails, timbers, boards, stones, hedges, or any other
material the fence viewers may deem sufficient. The electors at
any annual town meeting may determine what shall constitute a
legal fence in the town.

Division fences shall be made and maintained in just proportion
by the adjoining owners, except where the owner shall choose to let
his land lie open ; but after a division fence has been built by mu-
tual agreement or otherwise, it shall not be lawful for either party
to remove his part of said fence, so long as he may crop or use such
lands for farm purposes, or without giving the other party one
year's notice in writing, of his intention to move his portion of the



DIGEST OF STATE LAWS. 747

fence. Adjoining owners sliould endeavor, if possible, mutually to
agree as to the proportion that each sha,ll maintain of the division
fence between their adjoining lands; and the agreement should be
reduced to writing, each party taking a copy. When any person
shall enclose his land upon the enclosure of another, he shall refund
the owner of the adjoining lands a just proportion of the value at
that time of such fence. The value of such fence, and the propor-
tion thereof to be paid by such person, and the proportion of the
division fence to be made and maintained by him, in case of his
inclosing his land, shall be determined by two fence viewers of the
town. Such fence viewers have power to settle all disputes between
owners as to fences built or to be built, as well as concerning repairs
to be made. Each party chooses one of the viewers, but if the
other party neglects, after eight days' notice in writing, to make
his choice, then the other party may select both. It is sufficient to
notify the tenant, or party in possession, when the owner is not a
resident of the town in which such fences are situated. The two
fence viewers chosen, after viewing the premises, shall hear the
statements of the parties. In case they can't agree, they shall se-
lect another fence viewer to act with them, and the decision of any
two of them shall be final. The decision must be reduced to writ-
ing, and should plainly set out a description of the fence and all
matters settled by them, and must be filed in the office of the town
clerk.

If any person who is liable to contribute to the erection or repa-
ration of a division fence, shall neglect or refuse to make or repair
his proportion of such fence, the party injured,after giving sixty days'
notice, in writing, that a new fence should be erected, or ten days'
notice, in writing, that the repair of such fence is necessary, may
make or repair the same at the expense of the party so neglecting
or refusing, to be recovered from him with costs of suit; and the
party so neglecting or refusing, after notice in writing, shall be lia-
ble to the party injured for all damages which shall thereby accrue,
to be determined by any two fence viewers. When a person shall
conclude to remove his part of the division fence and let his land
lie open, and havihg giv^en the year's notice required, the adjoining
owner may cause the value of said fence to be asQertained by fence
viewers as before provided ; and on payment or tender of the
amount of such valuation to the owner, it shall prevent the removal.



T48 DIGEST OF STATE LAWS.

A party removing a division fence without notice is liable for tlie
damages accruing thereby.

Where a fence has been built on the land of another through
mistake, the owner may enter upon such premises and remove his
fence and material within six months after the division line has
been ascertained. Where the material to build such a fence has
been taken from the land on which it was built, then before it can
be removed, the person claiming must first pay for such material,
to the owner of the land from which it was taken ; nor shall such a
fence be removed at a time when the removal will throw open or
expose the crops of the other party; a reasonable time must be
given beyond the six months to remove crops.

The compensation of fence viewers is one dollar and fifty cents
a day each, to be paid in the first instance by the party calling them;
but in the end all expenses, including amount charged by the fence
viewers, must be paid equally by the parties, except in cases where
a part}' neglects or refuses to make or maintain a just proportion of
a division fence, when the party in default shall pay them.

DBAINAGE.

Whenever one or more owners or occupants of land desire to con-
struct a drain or ditch, through another man's land, the right can
be had only under legislative authority, or is granted or exists by
prescription or by consent of the owner.

Dripping water from one house upon another can be allowed only
where the owner has acquired the right by grant or prescription;
and no one has a right to construct his house so as to let the water
drip over his neighbor's land.

TRESPASS OF STOCK.

Where stock of any kind breaks into any person's inclostire, the
fence being good and sufiicient, the owner is liable for the damage
done; but where the damage is done by stock running at large, con-
trary to law, the owner is liable where there is not such a fence.
Where stock is found trespassing on the inclosure of another as
aforesaid, the owner or occupier of the premises may take posses-
sion of such stock and keep the same until damages, with reasonable
charges for keeping and feeding, and all costs of suit, are paid.
Any person taking or rescuing such stock so held, without his con-
sent, shall be liable to a fine of not less than three nor more than



DIGEST OF STATE LAWS. 749

five dollars for each animal rescued, to be recovered by suit before
a justice of the peace, for the use of the school fund. Within twen-
ty-four hours after taking such animal into his possession, the per-
son taking it up must give notice of the fact to the owner, if known;
or if unknown, notice must be posted in some public place near the
premises.

ESTRATS.

Stray animals are those whose owner is unknown, any beasts, not
wild, found on one's premises, and not owned by the occupant. Any
animals found straying at any time during the year, in counties
where such animals are not allowed to run at large, or between the
last day of October and the 15th day of April in other counties, the
owner being unknown, may be taken up as estraj's. A party who
wishes to detain property as an estray, must show an exact compli-
ance with the law. In order to vest the property of the stray in
him, such acts must appear in detail on the record.

No person not a householder in the county where the estray is
found can lawfully take up an estray, and then only upon or about
his farm or place of residence. Estrays should not be used before
advertised, except animals giving milk, which may be milked for
their benefit. Notices must be posted up within five days in three,
of the most public places in the town or precinct in which the es-
tray was found, giving the residence of the taker-up, and a partic-
ular description of the estray, its age, color, and marks natural and
artificial, and stating before what justice of the peace, in such town
or precinct, and at what time, not less than ten nor more than fif-
teen days from the time of posting such notices, he will apply to
have the estray apprised. If the owner of an estray shall not have
appeared and proved ownership and taken the same away, first
paying the taker-up his reasonable charges for taking up, keeping,
and advertising the same, the taker-up shall appear before the justice
mentioned in above notice, and make an afiidavit as required by
law. All subsequent proceedings are before the justice who is fa-
miliar therewith; therefore we omit them here.

Any person taking up an estray at any other place than about or
upon his farm or residence, or without complying with the law, shall
forfeit and pay a fine of ten dollars with costs. Ordinary diligence
is required in taking care of estrays, but in case they die or get
away, the taker-up is not liable for the same.



760 DIGEST OF STATE LAWS.

If a man finds estravs in his field he is not bound to retain them
for the owner, but may drive them off" into the highway without
being liable to an action. But a person who chases a hor&e out of
his field with a large fierce dog, commits an unlawful act, and is
liable for any injury which the act occasions. A person who takes
anestray to keep for the owner, but does not pursue the course pre-
'scribed by statute, is not liable to an action unless he uses the same
or refuses to deliver it on demand. Riding a horse to discover the
owner is not " use."

HORSES

Are animals of a domestic nature. Under the age of four years
they are called colts. A borrower of a horse is liable for negligence,
misuse, or gross want of skill in use. The lender is liable in case
the animal lent is unfit or dangerous, as he thus may occasion
injury. The animal should be used only for the purpose and to the
extent stipulated, and not by a servant.

If he dies from disease, or is killed by inevitable accident, the bor-
rower is not liable. Defects which are manifest, open and plain to an
ordinary observer, and those also which are known to the buyer, are
not usually covered by a general warranty. The former requires
no skill to discover them, and the latter may be objected to or
acquiesced in at the time of the purchase. In the case of lateiit
defects existing in such a condition that they could not be detected
by the buyer, and are known to the seller, who fails to disclose them
to the buyer, the latter practices a constructive fraud, unless the
animal is sold " with all faults." By consenting to purchase the
horse " with all faults," the purchaser takes upon himself the risk
of latent or secret defects, and calculates the price accordingly.
But even this kind of a purchase would be voidable if the seller
had purposely, and to deceive the purchaser, covered, filled up,
patched, plastered, or otherwise practiced fraud to conceal any
defects, and he would be liable.

Hiring out a horse and carriage to perform a particular journey,
carries with it the warranty of the person letting the horse and
carriage, that each of them is fit and competent for such journey;
but, if a horse is hired for one purpose, and is used for another and
is injured, the hirer is liable for the damage sustained. The hirer
is in all cases answerable for ordinary neglect. If he uses the
hired horse as a prudent man would his own, he is not liable for



DIGEST OF STATE LAWS. 761

any damage which the horse may receive. If, however, he keeps
the hired horse after a stipulated time, or uses it differently from
his agreement, he is in any event liable. If the hirer sells the horse,
the owner may recover its value of the purchaser, though the pur-
chaser had in good faith given the hirer full value for it, as the
hirer could mve no better title than he had himself.

Mischievous animals render their owners liable when known to
them to be so, and they are responsible for the damage they may do
when they permit them to go at large. Any person may justify
the killing of ferocious animals.

MARKS ANB BRANDS.

Owners of cattle, horses, hogs, sheep or goats, may have one ear-
mark and one brand, which shall be different from his neiglibors',
and may be recorded by the county clerk of the county in which
such property is kept. The fee for such record is fifteen cents. The
record of such shall be open to examination free, of charge. In
cases of disputes as to marks or brands, such record is primafacie
evidence. Owners of cattle, horses, hogs, sheep or goats, that may
have been branded by former owners, may be rebranded in presence
of one or more of his neighbors, who shall certify to the facts of
the marking or branding being done, when done, and in what brand
or mark they were re-branded or re-marked, which certificate may
also be recorded as before stated.

ARTICLES OF AGREEMENT.

An agreement is virtually a contract by which a certain person
(or persons) agrees or contracts to perform certain duties within a
specified time. Good business men alwa3's reduce an agreement to
writing, which nearly always saves misunderstandings and long
and expensive lawsuits. No particular form is necessary, but the
facts must be clearly and explicitly stated ; and there must be a
reasonable consideration, else the agreement is void.

Unless it is expressly stipulated that the agreement is binding for
a longer time, the contract expires at the end of one year. Every
agreement should state most distinctly the time within which its
conditions are to be complied with. A discov^ery of fraud, or mis-
representation by one party to the agreement, or changing of the
date, renders the contract void. Each party should retain a copy of
the agreement.



"752 DIGEST OF STATE LAWS.

GENERAL FORM OF AGREEMENT.

This Agreement, made the third day of November, 1878, between
Damon Chirke of Macomb, county of McDonough, State of Illinois,
of the first part, and William Hays, of the same place, of the
second part.

WITNESSETH, That the said Damon Clarke, in consideration of
the agreement of the party of the second part, hereinafter contained,
contracts, and agrees to, and with the said William Hays, that he
will deliver in good and marketable condition, at the city of Gales-
burg, 111., during the month of December of this year, nine hun-
dred bushels of corn, in the following lots, and at the following
specified times, namely: one hundred bushels by the fifth of Decem-
ber, three hundred bushels by the fifteenth of December, and the
balance by the thirtieth of December.

And the said William Hays in consideration of the prompt ful-
fillment of this contract on the part of the party of the second
part, contracts to, and agrees with the said Damon Clarke, to pay
for said corn fifty cents per bushel as soon as delivered.

In case of failure of agreement by either of the parties hereto, it
is hereby stipulated and agreed that the party so failing shall pay
to the other, one hundred dollars, as fixed and settled damages.

In witness whereof we have hereunto set our hands the day and
year first above written : Damon Clarke,

William Hays.

NOTES.

A note is legal, worded in the simplest way, so that the amount

and time of payment are mentioned. The following is a good form:

$100 Chicago, III., May 1, 1S79.

Thirty days after date I promise to pay F. M. Chapmaiij
or order, one hundred dollars, for value received.

S. T. Lewis.

To make a note payable in anything else than money, insert the
facts instead of the sum of money alone; unless paid when due, it
is payable in money. To hold an indorser of a note, due diligence
must be used by suit in collecting of the maker, unless suit would
have been unavailing. Notes payable to person named or to order,
in order to absolutely transfer title, must be indorsed by the payer.
Notes payable to bearer may be transferred by delivery, and when
so payable, every indorser thereon is held as a guarantor of pay-
ment unless otherwise expi-essed.

The limit of time in which action may be brought on a note is
10 yeara



DIGEST OF STATE LAWS.



753



If the note is payable to a person or order, or to a person or
bearer, to a person or his assigns, or to a cashier of an incorporated
company, such notes are negotiable.

When transferring a note, the indorser frees himself from respon-
sibility, so far as the payment is concerned, by writing on the back,
above his signature, without recourse to me in any event.

A note is void when founded upon fraud. Thus a note obtained
from a person when intoxicated, or obtained for any reason which
is illegal, cannot be collected. A note given on Sunday is also void.

No defense can be made against negotiable paper purchased
before maturity for good consideration in the usual course of busi-
ness, without knowledge of facts impeaching its validity, except
fraud was used in obtaining the same. Thus if A gives his note
to B for $15<), receives in consideration a shawl and live pieces of
cloth. The former was represented to be worth §75, and the cloth
the best imported English goods. When, in fact, the shawl was
only worth $8, and suits made of the cloth wore out in less than
six weeks, long before the note was due. B, however, had sold the
note to C, who did not know the circumstances, and before it was
due — A would be obliged to pay it.

JUDGMENT NOTE.

For value received I promise to pay Ewing Summers, of Gales-
burg, or order, two hundred dollars, with interest, on the first day
of January next. And, further, I do hereby empower any attorney
of any court of record in Illinois, or elsewhere, to appear for me,
and after a declaration filed therefor, to confess a judgment against
me in the above sum, as of last, next, or any subsequent term, with
cost of suit, release of error, etc., with stay of execution until said
first day of January.

Witness my hand and seal at Galesburg, 111., this sixth day of
March, in the year one thousand eight hundred and seventy-nine.
[seal] John Jones.

INTEREST.

Interest is the compensation which is paid by the borrower of
money to the lender for its use. When the debtor expressly under-
takes to pay interest, he is bound to pay it; but if a party has
accepted the principal, he cannot recover interest in a separate
action. During the course of dealings between parties, a promise
to pay is implied, and the debtor is bound to pay. So also on an



754 DIGEST OF STATE LAWS.

account stated, whenever the debtor knows precisely what he is to
pay, and when he is to pay it, after a demand ^of payment; but
interest is not due on a running account, even when the items are
all on one side, unless otherwise agreed upon. Where the terms of
a promissory note are that it shall be paid by installments, and on
the failure of any installment the whole is to become due, interest
on the whole becomes payable from the first default. Where, by
the term of a bond or promissory note, interest is to be paid annu-
ally, and the principal at a distant day, the interest may be recov-
ered before the principal is due.

Interest is collectible in the following cases: For £:oods sold and
delivered after the stipulated term of credit has expired; if there be
no credit, then from the time of sale; on judgment debts, from the
rendition of judgment; on money obtained by fraud, or where ii
has been wrongfully detained (for whoever receives money not his
own, and detains it from the owner unlawfully, must pay interest
tlierefor: hence a public officer retaining money wrongfully is lia-
ble for the interest); on money paid by mistake, or recovered on a
void execution; on money lent or laid out for another's use; and
rent, from the time that it is due.

When the rate of interest is specified in any contract, that rate
continues until full payment is made. A debt barred by the
statute of limitations and revived by an acknowledgment bears
interest for the whole time.

Computing Interest. — In casting interest on notes, bonds, etc.,
upon which partial payments have been made, every payment is to
be first applied to discharge the interest; but the interest is never
allowed to form a part of the principal, so as to carry interest.
When a partial payment is made before the debt is due, it cannot
be apportioned part to the debt and part to the interest, but at the
end interest shall be charged on the whole sum, and the obligor
shall receive credit for the interest on the amount paid until the
interest becomes due.

The legal rate of interest is six per cent. Parties may agree in
writing on a rate not exceeding eight per cent. If a rate of interest
greater than eight per cent, is contracted for, the penalty is a for-
feiture of the entire interest, and only the principal can be
recovered.

In computing interest or discount on negotiable instruments, a



DIGEST OF STATE LAWS. 756

month shall be considered a calendar month or twelfth of a year,
and for less than a month, a day shall be figured a thirtieth ])art of
a month. Notes bear interest only when so expressed; but after
due they draw the legal interest, six per cent., even if not stated.
Notes payable on demand or at sight draw no interest until after
presentation or demand of the same has been made, unless they
provide for interest from date on their tiice. If "with interest" is
included in the note, it draws the legal rate from the time it is
made. If the note is to draw a special rate of interest, higher than
the legal, but not higher than the law allows, the rate must be
specified.

WILLS.

The legal declaration of a person's mind, determining the man-
ner in which he would have his property or estate disposed of after
his death, is termed a will. No exact form of words is necessary
in order to make a will good at law, though much care should be
exercised to state the provisions of the will so plainly that its lan-
guage may not be misunderstood.

Every male person of the age of twenty-one years, and every
female of the age of eighteen years, of sound mind, can make a
valid will. It must be in writing, signed by the testator, or by
some one in his or her presence, and by his or her direction, and
attested by two or more credible witnesses. Care should be taken
that the witnesses are not interested in the will.

The person making the will may appoint his or her executors;
but no person can serve as such executor if he or she be an alien at
the time of proving the will, if he be under twenty -one years ot
age, a convict, a drunkard, a lunatic, or an imbecile.

Persons knowing themselves to have been appointed executors,
must, within thirty days after the death of deceased, cause the will
to be proved and recorded in the proper county, or present it and
refuse to accept. In case of failure to do so, they are liable to for-
feit the sum of twenty dollars per month. Inventory to be made
by executor or administrator within three months from date of let-
ters testamentary or administration.

The person making a will is termed the " testator " (if a female,
the " testatrix ").

A will is of no force and eflfect until the death of the testator,



756 DIGEST OF STATE LAWS.

and can be cancelled or modified at any date by the maker. The
last will made annuls the force of all preceding wills.

A will made by an unmarried woman is legally revoked by mar-
riage; but she can take such legal steps in the settlement of her
property before marriage as will empower her to dispose of the
same as she may choose after marriage. No husband can make a
will that will deprive the wife of her right of dower in the prop-
erty; but the husband can will the wife a certain amount in lieu of