USA > Illinois > Knox County > History of Knox county, Illinois > Part 6
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ABSTRACTS OF STATE LAWS.
Overseers .- Their duties are to. repair and keep in order the high- ways in their districts; to warn persons to work out their road tax at such time and place as they think proper; to collect fines and com- mutation money, and execute all lawful orders of the commissioners of highways; also inake list, within sixteen days after their election, of the names of all inhabitants. in his road district liable to work on highways. For refusal to perform any of his duties, he is liable to a fine of $10.
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 commissioners, 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 termin- ates. It requires not less than twelve freeholders residing within three miles of the road who shall sign the petition. Public roads must not be less than fifty nor more than sixty feet wide. 'Roads 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 petition of the person directly interested: the damage occasioned thereby shall be paid by the prem- ises benefited thereby, and before the road is opened. If not opened in two years, the order shall be considered rescinded. 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.
A lawful fence is four and one-half feet high, and in good repair, consisting of rails, timbers, boards, stones, hedges, or any other mate- rial 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 mutual
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ABSTRACTS OF STATE LAWS.
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 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 inclose his land upon the inclosure 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 proportion 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 select another fence viewer to act with them, and the decis- ion of any two of them shall be final. The decision must be reduced to writing, and should plainly set out a description of 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 repara- tion 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 liable to the . party injured for all damages which shall thereby accrne, to be determined by any two fence viewers. Where a person shall conclude to remove his part of a 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. A party remov
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ABSTRACTS OF STATE LAWS.
ing a division fence without notice is liable for the damages accruing thereby.
Where a fence has been built on the land of another through mis- take, the owner may enter upon such premises and remove his fence and material within six months after the division line has been ascer- tained. 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.
EMINENT DOMAIN
Is a power to take private property for public use, which exists only in cases where public convenience or necessity demands its exercise. This right may be exercised upon both corporeal property, as land, and incorporeal, as franchises. Eminent domain is distinguished from public domain, which is property owned absolutely by the State in the same manner as an individual holds his property.
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 pre- scription 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.
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ABSTRACTS OF STATE LAWS.
Where stock is found trespassing on the inclosure of another as afore- said, the owner or occupier of the premises may take possession of such stock and keep the same nntil damages, with reasonable charges for keeping and feeding, and all costs of snit, are paid. Any person taking or rescuing such stock so held without his consent, shall be liable to a fine of not less than three nor more than five dollars for each animal rescued, to be recovered by snit before a justice of the peace for the use of the school fund. Within twenty-four hours after taking such animal into his possession, the person taking it up must give notice of the fact to the owner, if known; or if unknown, notices 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 compliance 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 lıis 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 estray was found, giving the residence of the taker-up, and a particular descrip- tion 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 fifteen days from the time of posting such notices, he will apply to have the estray ap- praised. 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 np, 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 familiar 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
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ABSTRACTS OF STATE LAWS.
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.
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 prescribed 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, mis- use, or gross want of skill in use. The lender is liable in case the ani- mal lent is unfit or dangerous, as he thus may occasion injury. The animal should be used only for the purpose and to the extent stipu- lated, 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 tlie purchase. In the case of latent defects exist- ing 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 prac- ticed 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 car- riage, 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 in- jured the hirer is liable for the damage sustained. The hirer is in all cases, answerable for ordinary neglect. If he uses the lired horse as a prudent man would his own, he is not liable for any damage which the horse may receive. If, however, he keeps the hired horse
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ABSTRACTS OF STATE LAWS.
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 purchaser had in good faitlı given the hirer full value for it, as the hirer could give no bet- ter title than he had himself.
Mischievous animals render their owners liable when known to them to be so, and they are responsible when they permit them to go at large, for the damage they may do. 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 re-branded 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 speci- fied time. Good business men always reduce an agreement to writ- ing, which nearly always saves misunderstandings and a long and expensive lawsuit. No particular form is necessary, but the facts must be closely and explicitly stated; and there must be a reasonable con- sideration, 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 misre- presentation by one party to the agreement, or changing of the date, renders the contract void. Each party should retain a copy of the agreement.
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-
ABSTRACTS OF STATE LAWS.
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 Galesburg, Ill., during the month of December of this year, nine hundred bushels of corn, in the following lots, and at the following specified times, namely : one hundred bushels by the fifth of December, 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 fulfillment of this contract on the part of the party of the first 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 stipu- lated 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.
DEEDS.
A deed is a sealed instrument in writing, on paper or parchment, conveying lands and appurtenances thereon from one person to another, duly signed, sealed and delivered. The law in this State provides that an acknowledgment must be made before certain per- sons authorized to take the same. These officers are : master in chancery, notary public, circuit or county clerk, justice of the peace, United States Commissioner, or any court of record having a seal, or any judge, justice, or clerk of any such conrt. The instrument shall be attested by the official seal of the officer taking the acknowledg- ment. The deed takes effect npon its delivery to the person anthor- ized to receive it.
To render a deed valid, there must be a sufficient consideration. To enable a person to legally convey property to another, the follow- ing requisites are necessary: 1st. he or she must be of age ; 2d. must be of sane mind; and, 3d, he or she must be the rightful owner of the property.
Any alterations or interlineations in the deed should be noted at the bottom of the instrument, and properly witnessed. After the acknowledgment of a deed, the parties have no right to make the slightest alterations. An alteration after the acknowledgment in favor of the grantee vitiates the deed. The maker of a deed is called the "grantor;" the person or party to whom the deed is delivered, the " grantee." The wife of the grantor must acknowledge the deed, or else, after the death of her husband, she will be entitled to a one-third interest in the property, as dower, during her life. Her acknowledg- inent of the deed must be of her own free will and accord.
By a general warranty deed the grantor engages to secure the grantee in any right or possession to the property conveyed against all persons whatsoever. A quit-claim deed releases what interest the grantor may have in the land, but does not warrant and defend against
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ABSTRACTS OF STATE LAWS.
others. We do not give any form for a deed, as printed forms are used by all. Deeds should be recorded without delay.
WILLS.
The legal declaration of a person's mind, determining the manner 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 language 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 a 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 forfeit the sum of twenty dollars per month. Inventory to be made by executor or administrator within three months from date of letters testament- ary 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, and can be canceled 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 property; but the husband can will the wife a certain amount in lieu of her dower, stat- ing 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.
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ABSTRACTS OF STATE LAWS.
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 notifying the execu- tor 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 out of the estate in the following 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.
4th. Debts due the common school or township fund.
5th. All expenses of proving the will and taking out letters test- amentary 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.
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 :
1st. The family pictures and wearing apparel, jewels and orna- ments of herself and minor children.
2d. School books and the family library to the value of $100.
3d. One sewing-machine.
4th. Necessary beds, bedsteads and bedding for herself and family.
5th. The stoves and pipe used in the family, with the necessary cooking utensils; or in case they have none, $50 in money.
6th .. Household and kitchen furniture to the value of $100.
7th. One milch cow and calf for every four members of her family.
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ABSTRACTS OF STATE LAWS.
8th. Two sheep for each member of her family, and the fleeces taken from the same, and one horse, saddle and bridle.
9th. Provisions for herself and family for one year.
10th. Food for the stock above specified for six months.
11th. Fuel for herself and family for three months.
12th. One hundred dollars' worth of other property suited to her condition in life, to be selected by the widow.
The widow, if she elects, may have in lieu of the said award, the same personal property or money in place thereof as is or may be ex- empt from execution or attachment against the head of a family.
ADOPTION OF CHILDREN.
Children may be adopted by any resident of this State, by filing a petition in the circuit or county court of the county in which he resides, asking leave to do so; and if desired, may ask that the name of the child be changed. Such petition, if made by a person having a husband or wife, will not be granted unless the husband or wife joins therein, as the adoption must be by them jointly. The petition shall state name, sex, and age of child, and the new name, if it is desired to change the name; also, the name and residence of the pa- rents of the child, ir known, and of the guardian, if any, and whether the parents or guardians consent to the adoption.
The court must find, before granting decree, that the parents of the child, or the survivors of them, have deserted his or her family or such child for one year next preceding the application; or if neither is living, that the guardian (if no guardian, the next of kin in this State capable of giving cousent) has had notice of the presentation of the petition, and consents to such adoption. If the child is of the age of fourteen or upwards, the adoption can not be made without its con- sent.
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