USA > Illinois > Hancock County > History of Hancock County, Illinois, together with an outline history of the State, and a digest of State laws > Part 93
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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 mn- 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 sneh 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
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fence. Adjoining owners should endeavor, if possible, mutually to agree as to the proportion that each shall 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 conelude to remove his part of the division fence and let his land lie open, and having given the year's notice required, the adjoining owner may cause the value of said fence to be ascertained 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.
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A party removing a division fence without notice is liable for the 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 party neglects or refuses to make or maintain a just proportion of a division fence, when the party in default shall pay them.
DRAINAGE.
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 inclosure, the fence being good and sufficient, 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 rescning such stock so held, without his con- sent, shall be liable to a fine of not less than three nor more than
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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.
ESTRAYS.
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 estrays. 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 affidavit 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.
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If a man finds estrays 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 horse 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 an estray 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 latent 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
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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 give 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 AND BRANDS.
Owners of cattle, horses, hogs, sheep or goats, may have one ear- mark and one brand, which shall be different from his neighbors', 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 prima-facie 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 always 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 discovery 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.
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GENERAL FORM OF AGREEMENT.
THIS AGREEMENT, made the third day of November, 1878, between Damon Clarke 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, Ill., during the month of December of this year, nine hnn- 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, ILL., May 1, 1879.
Thirty days after date I promise to pay F. M. Chapman, 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 sumu of money alone; unless paid when due, it is payable in money. To hold au 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 expressed.
The limit of time in which action may be brought on a note is 10 years
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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 $150, receives in consideration a shawl and five 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, Ill., this sixth day of March, in the year one thousand eight hundred and seventy-nine. JOHN JONES. '
[SEAL]
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
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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 goods sold and delivered after the stipulated term of eredit 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 it has been wrongfully detained (for whoever receives money not his own, and detains it from the owner unlawfully, must pay interest therefor: 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
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month shall be considered a calendar month or twelfth of a year, and for less than a monthi, a day shall be figured a thirtieth part 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 face. 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 of 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 effect until the death of the testator,
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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 her dower, stating it to be in lieu thereof. Such bequest, however, will not exclude her from her dower, provided she prefers it to the bequest made in the will. Unless the husband states distinctly that the bequest is in lieu of dower, she is entitled to both.
In case a married woman possesses property and dies without a will, her husband is entitled to administer upon such property in preference to any one else, provided he be of sound mind.
Notice requiring all claims to be presented against the estate shall be given by the administrator within six months after being qualified. Any person having a claim and not presenting it at the time fixed by said notice, is required to have summons issued noti- fying the executor of having filed his claim in court. Claims should be filed within two years from the time administration is granted on an estate, as after that time they are forever barred, unless other estate be found that was not inventoried. Married women, infants, persons insane, imprisoned, or without the United States, in the employment of the United States, or of this State, have two years after their disabilities are removed to file claims. Claims are classified and paid ont of the estate in the fol- lowing manner:
1st. Funeral expenses.
2d. The widow's award, if there is a widow; or children, if there are children and no widow.
3d. Expenses attending the last illness, not including the physi- cian's bill.
4tlı. Debts due the common school or township fund.
5th. All expenses of proving the will and taking out letters testamentary or of administration, and settlement of the estate, and the physician's bill in the last illness of the deceased.
6th. Where the deceased has received money in trust for any purpose, his executor or administrator shall pay out of his estate the amount received and not accounted for.
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7th. All other debts and demands of whatsoever kind, without regard to quality or dignity, which shall be exhibited to the court within two years from the granting of letters.
Award to the widow and children, exclusive of debts and legacies or bequests, except funeral expenses :
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