666

OTTAWA, APRIL TERM, 1859.

Coon v. Mason County.

REUBEN COON, Plaintiff in Error, v. MASON COUNTY, Defendant in Error.

ERROR TO MASON.

The decision of the Circuit Court under the 38th section of the Road Law in the Revised Statutes, is final.

THE County Court of Mason county ordered a road to be opened, and refused to allow the plaintiff in error any damages for crossing his land; from that decision he appealed to the Circuit Court, which affirmed the order of the County Court. The plaintiff in error then prosecuted his writ of error in this

court.

The defendant in error moved to dismiss the cause from this court because the decision of the Circuit Court was final.

JAMES ROBERTS, for Plaintiff in Error.

LYMAN LACEY, and GOUDY & WAITE, for Defendant in Error.

Per Curiam. This proceeding was under the thirty-eighth section of the chapter entitled "Roads," (Rev. Laws, 1845, Sec. 38,) which provides that the decision of the Circuit Court. shall be final. We are of the opinion that the legislature intended to prohibit the prosecution of a writ of error as well as an appeal.

The point made on this motion, was not considered by this court, in the cases of Hutchins v. De Witt County, 1 Gilm. R. 345, and The County of Sangamon v. Brown et al., 13 Ill. R. 207.

The motion is sustained.

Motion sustained.

INDEX.

ABATEMENT.

SEE PLEADING.

ACCEPTOR-ASSIGNOR-ASSIGNEE.

1. The acceptor of an accommodation or other bill of exchange, is the principal
debtor; giving time to the acceptor does not discharge the maker. Diversy v.
Moor, 330.

2. The acceptor of a bill and the drawer of a note are the principals, the indorsers
are sureties. Ibid. 330.

3. Neglect to bring suit against the drawer of an accommodation bill, on request
by the acceptor to do so, does not discharge the acceptor. Ibid. 330.

4. An accommodation acceptor of a bill, cannot set up as a defense, that he never
received any consideration. Diversy v. Loeb, 393.

ACKNOWLEDGMENT OF DEEDS.

A certificate of acknowledgment to pass the title of the land of a married woman,
should state, that she was made acquainted with the contents of the deed,
or that she was examined separate and apart from her husband, and that
she acknowledged it freely, etc., without compulsion, etc. Garrett et al. v.
Moss, 363.

ACTION.

1. If a justice of the peace acts corruptly, an action will lie against him. Gar-
field v. Douglas, 100.

2. An executor, authorized to lease premises, who has no estate in the premises,
cannot maintain an action for waste. Such action must be by a reversioner
in fee. Page v. Davidson, 112.

3. An executor may maintain an action upon covenants in the lease, against com-
mitting waste. Ibid. 112.

4. In an action of covenant on a lease to recover damages for failure to surrender
possession, where it appeared that the lessor, before the expiration of the lease
sued on, had again leased to another party, who permitted a sub-tenant under
the original lease, to hold over, with an understanding that possession should
be held by such sub-tenant, it was held that a recovery could not be had, the
defendant not being privy to the arrangement between the second lessee and
the sub-tenant. Kennicott v. Sherwood, 190.

5. A party who makes a special deposit of uncurrent bills with a banker, and
afterwards takes them away, cannot recover, upon the assumption that the
bankers had issued similar bills to the plaintiff in the course of business.
Rupert et al. v. Roney, 325.

6. A party who engages to labor for another for a specified time, cannot recover
for his services unless he performs his contract, or is excused by his employer,
or is justified in leaving the service. Angle v. Hanna, 429.

7. That he is called upon to do severe, or unpleasant labor, does not excuse him
for leaving his work. Ibid, 429.

8. The obligee in an attachment bond may recover the damages he has actually
sustained by the wrongful issuing of the writ, without having first brought
suit to recover for the malicious act in suing it out.
Churchill et al. v. Abra-
ham, 455.

9. The plaintiff in an attachment, cannot excuse himself, because he has acted in
good faith. Ibid. 455.

10. If the complainant to a bill upon which an injunction has been granted, is
corruptly induced to dismiss his bill, so that the sureties in the injunction bond
may become liable, an action against them on the bond will not be sustained.
Boynton v. Robb et al. 525.

11. Where a note is given, payable within three years from date, with interest
annually, at ten per cent., the payee may sue for and recover the interest, at
the expiration of each year.
Walker v. Kimball, 537.
See ADMINISTRATOR, 1, 2, 3, 4,
AND INDORSEE, 1, 2, 3.

5, 6, 7. CONTRACT. EJECTMENT. INDORSER
JUSTICE OF THE PEACE.

ADMINISTRATOR.

TRESPASS.

1. A party bringing suit against an administrator or executor, is entitled to a
judgment, although his claim was not presented within two years, if it is not
otherwise barred. Peacock v. Haven, Adm'r, et al. 23.

2. The judgment is to be satisfied in due course of administration of the estate
inventoried, if the claim is presented within two years; if presented after-
wards, then the judgment is to be satisfied out of subsequently discovered and
inventoried estate. Ibid. 23.

3. If instead of suing, the party having a claim against the estate, is sued by the
representative of it, he can plead his claim by way of set-off, and if any bal-
ance is adjudged to him, it will be paid out of any estate thereafter discovered
and inventoried. Ibid. 23.

4. To recover costs in an action against an executor or administrator, there should
be proof of a compliance with the requisitions of the statute in that regard.
Averments to that effect need not be made in the declaration. Granjang v.
Merkle, 249.

5. A court of general jurisdiction will be presumed to have acted upon the neces-
sary evidence. Ibid. 249.

6. If an administrator is sued before the expiration of the year, he can plead the
fact; the declaration need not make the averment that a year has lapsed.
Ibid. 249.

7. Execution should not be awarded against administrators. Ibid. 249.

8. If land is sold on execution, in the lifetime of the defendant, but after his death
it is redeemed by a judgment creditor, it becomes the estate of the decedent,
and the title is vested in his heirs at law. The proceeds of redemption from
sale, are received by the officer as a first bid, to be advanced upon by others,
the land remaining as the property of the judgment debtor. Turney v. Young,

253.

9. To divest the heirs, they must have notice of some proceeding against them, for
such purpose. Ibid. 253.

10. The revival of a judgment against the administrator, does not create such a
lien against the real estate of the deceased, as that a fi. fa. can issue for its
sale. Ibid. 253.

See EXECUTORS.

ADVERSE POSSESSION.

See POSSESSION OF LAND.

AFFIDAVIT.

1. An affidavit before a notary of another State, if he certifies that he is author-
ized to administer oaths, will authorize the issuing of an attachment in aid of
a summons. Mineral Point Railroad Co. v. Keep, 9.

2. Affidavits may be read or proof heard, to show that words have been improp-
erly stricken from a judgment; but not to falsify a record by showing that an
alteration correcting it, was improperly made. Walker v. Armour, 658.

AGENT.

An agent, acting under power of attorney, is a competent witness to prove that
his principal ratified a sale made by such agent. Head v. Bogue, 117.

AGREEMENTS.

See CONTRACT.

ALIMONY.

1. Alimony will be granted in proportion to the wants of the party asking it, and
the ability of the person who is to pay it. The allowance depends upon
a judicial exercise of discretion, which may be inquired into on appeal.
Foote v. Foote, 425.

2. An allowance for alimony may be increased or diminished. Ibid. 425.

AMENDMENT.

An amendment of the summons by making the amount claimed by it, correspond
with the præcipe, is proper. Thompson et al. v. Turner, 389.

APPEALS.

The dismissal of an appeal is equivalent to an affirmance of the judgment. Suth-
erland v. Phelps, 91.

See BOND. PLEADING.

ARBITRATION-AWARD.

1. Unless the submission requires it, it is not necessary that an award should be pub-
lished, or that notice of it should be given to the parties. Nor need it be in
writing. Denman v. Bayless, 300.

2. The terms and directions of the submission, should control the arbitrators.
Ibid. 300.

3. It is not error to refuse to let one of the arbitrators testify, that he did not in-
tend to surrender the award, after it had been agreed upon and signed, unless
the losing party should consent. Ibid. 300.

ASSESSMENTS.

1. A judgment for an assessment against lots or lands within a city, should be
special, and a precept should issue against the lots or lands assessed. A gen-
eral judgment and execution would be wrong. Brown v. City of Joliet, 123.
2. On an appeal from the County to the Circuit Court, in matters of assessment,
the trial is de novo, and the Circuit Court does not acquire by appeal any juris-
diction beyond that of the County Court. Ibid. 123.

3. Before a court can render judgment for an assessment, the amount assessed
should appear in dollars and cents; but the return of the commissioners, ap-
pointed to make the assessment, may be amended under the statute of Jeo-
fails. Ibid. 123.

4. The law raises a presumption in favor of the regularity of all proceedings levy-
ing assessments, which must be rebutted by showing affirmatively, that some-
thing was omitted or improperly done, if they are to be defeated. McAuley
v. City of Chicago, 563.

5. An additional notice to parties interested, is not required, where an assessment
is postponed from one meeting of the Common Council to another. Ibid.

563.

6. In making assessments for public improvements, in the city of Chicago, the
costs of engineering, superintending and collecting, may be included. Gibson
v. Same, 566.

7. The Common Pleas Court, has the same authority to continue a case for
assessments, that it has to continue any other case. Ibid. 566.

8. In showing an assessment, there must be something to indicate clearly what the
figures used, stand for, or are intended to represent. Ibid. 566.

See CITY OF CHICAGO.

ASSIGNMENT FOR BENEFIT OF CREDITORS.

The mere assent of a creditor that his debtor may make an assignment for the
benefit of his creditors, does not have the effect to release the debt. Howlett
v. Mills, 347.

ATTACHMENT.

1. An affidavit before a notary of another State, if he certify that he is authorized
to administer oaths, will authorize the issuing of an attachment in aid of a
summons. Mineral Point Railroad Co. v. Keep, 9.

2. Corporations are included in the word "person" in the attachment law. Ibid. 9.
3. The obligee in an attachment bond may recover the damages he has actually
sustained by the wrongful issuing of the writ, without having first brought suit
to recover for the malicious act in suing it out. Churchill et al. v. Abraham,

455.

4. The plaintiff in an attachment, cannot excuse himself, because he has acted in
good faith. Ibid. 455.

ATTORNEY AND CLIENT.

See FEES.

BANKS AND BANKING.

1. The cancellation of a check upon, and its retention by a bank, is evidence of its
payment. Conway v. Case, 127.

2. A party who makes a special deposit of uncurrent bills with a banker, and after-
wards takes them away, cannot recover, upon the assumption that the bankers
had issued similar bills to the plaintiff in the course of business. Rupert et al.
v. Roney, 325.

BARGAIN AND SALE.

1. A party who purchases personal property of a mortgagor, for a good considera-
tion, it remaining in his possession, at the time of the purchase, will be pro-
tected, if the transaction on the part of the purchaser, was one of good faith.
Brown v. Riley, 45.

2. If such property is afterwards loaned to the vendor for a temporary purpose, or
if the vendor is in the employment of the purchaser, the rights of the purchaser
will not thereby be disturbed. Ibid. 45.

3. To impeach the sale of personal property, it is necessary to show that both
vendor and purchaser designed to delay creditors. Ibid. 45.

4. A chattel mortgage designed to delay and hinder creditors, will not affect an
honest purchaser of the property. Notice must be brought home to the pur-
chaser. Ibid. 45.