5. Where A. and B. cultivate a farm jointly, A. furnishing a horse, harness, etc.,
and B. a horse, for their joint use, and B., on being arrested on a criminal
charge, tells A. to take his horse home, that he, B., would be back in a few
days, and A. does so, afterwards using and claiming the horse as his own; this
is a sufficient delivery from B. to A. to enable the former to keep the horse, as
against other creditors of B. Parsons v. Overmire, 48.

6. Where a party sold merchandise, receiving part pay in real estate, the residue to
be paid by indorsed notes, if the vendor takes notes without an indorsement,
and expresses satisfaction with them, the vendor cannot afterwards recover of
the purchaser the amount paid by said notes. Stevens v. Bradley, 244.

7. If any recovery could be had, it would only be upon a cancellation of or return
to the purchaser, at or before trial, of the notes given; the return after the
trial would be too late. Ibid. 244.

8. When wheat is sold in the stack, there is an implied warranty that it is mer-
chantable. Fish et al. v. Roseberry, 288.

The question of fairness in the purchase of bills of exchange, as to whether the
transaction was one of fair business, or designed as a cloak for usury, having
been left to the jury, under proper instructions, their finding will not be inter-
fered with. Earll, etc. v. Mitchell et al. 530.

1. The judgments and orders of court and pleadings, should be embraced in the
record; and if they are copied into the bill of exceptions, it will be at the ex-
pense of the party who has it done. Safford et al. v. Vail, 327.

2. Where a bill of exceptions does not state that it contains all the evidence, the
presumption is in favor of the verdict. Warner v. Carlton, 415.

See PRACTICE.

BILL OF REVIEW.

A bill of review only authorizes the court to decide from a recitation of facts, that
the law was misapplied to them. The sufficiency of the evidence to establish
the facts as found, cannot be questioned. An improper determination of law
may be examined into. Garrett et al. v. Moss et al. 363.

BONDS.

1. A declaration upon an appeal bond is sufficient, which avers that the appeal was ⚫
not prosecuted, and that the judgment appealed from was not paid, and that
the judgment was affirmed. It need not be averred that the order dismissing
the appeal, was filed in the court from which it was taken. Sutherland v.
Phelps, 91.

2. The dismissal of an appeal is equivalent to an affirmance of the judgment.
Ibid. 91.

3. An averment that the judgment appealed from was final, or that the judge of
the court from whence the appeal was taken approved the bond, is unnecessary.
Ibid. 91.

4. If the complainant to a bill upon which an injunction has been granted, is cor-
ruptly 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.

5. A party who has executed a bond as surety, declaring that the principal in it,
who was coroner, had succeeded to the office of sheriff, cannot gainsay the fact,
so as to release himself from liability. Allbee v. People, 533.

See ATTACHMENT. DAMAGES. JUDGMENT.

BOOKS OF ACCOUNT.

Books of account are not admissible as proof, where the party keeps a clerk, or a
person who sometimes acts in that capacity, who can prove the items. Wagge-
man v. Peters, 42.

CERTIORARI.

1. In this State, the common law writ of certiorari may issue to all inferior tribunals,
where such tribunals proceed illegally, and there is no mode of appeal from
such tribunals, or other way of reviewing their proceedings. Chicago and Rock
Island Railroad Co. v. Whipple, 105.

2. On such a writ issues of fact are not to be tried; only by the record in return to
the writ, are the questions of jurisdiction or regularity to be inquired into.

Ibid. 105.

3. By certiorari the evidence taken in the inferior tribunal is not to be brought before
the court, nor can it be shown. Ibid. 105.

4. The common law writ of certiorari was for the purpose of bringing the record of
an inferior court or jurisdiction after judgment before a higher court, to
examine if jurisdiction existed in the lower court, and whether its proceedings
were regular. Chicago and Rock Island Railroad Co. v. Fell, 333.

5. The question of liability of a corporation for committing a trespass, would de-
pend upon a fact, as to the orders and directions of the company to commit or
not the act complained of, and a certiorari, therefore, was not a proper remedy
to authorize a review of the judgment of a justice of the peace, in a case of
trespass. Ibid. 333.

6. A writ of certiorari to a justice of the peace, is distinct and separate from an
appeal; and if the writ of certiorari should be dismissed in the Circuit Court,
an appeal or writ of error should be prosecuted to reform that judgment. On
the hearing in the Supreme Court to revise the judgment of the justice on
appeal, the judgment on the certiorari cannot be examined. The Same v.
Whipple, 337.

CHANCERY.

1. Where a subpoena in chancery is served upon husband and wife, by leaving a
copy for the wife with the husband, at her place of residence, etc., it will be
presumed, in absence of proof to the contrary, that the residence of the parties
is identical. Prieto v. Duncan, 26.

2. Where a bill to foreclose a mortgage, sets it out, with a copy of the acknowledg-
ment, etc., and states that the date of the mortgage, the signing, etc., and
"that it was executed as aforesaid," the averments will be sufficient to show
that the party complained of executed it. Ibid. 26.

3. It is erroneous to decree the payment of money, out of a fund belonging to per-
sons not made parties to the suit. Ibid. 26.

4. An injunction to prevent the collection of taxes will not be granted, because of
irregularities in the assessment. Chicago, Burlington and Quincy Railroad Com-
pany v. Frary, 34.

5. Although an absolute conveyance may be shown by parol testimony to have
been given as a security only, yet such evidence must be so strong as to over-
come all doubts, before the court will so decree. Hartnett v. Ball, 43.

6. A party who seeks to set aside a judgment by a proceeding in chancery, so as
to obtain a new trial, must show himself clear of all laches, and also that every
effort on his part was made to prevent the judgment against him. Ballance v.
Loomis, 82.

7. A party is not bound to answer such portions of a bill as are demurred to, until
the demurrer has been passed upon. Ibid. 82.

8. If different lots of land have been sold en masse, (although they may have been
previously offered separately,) greatly below their value, the courts may inter-
fere by injunction to prevent the delivery of the deed. Ibid. 82.

9. If a respondent neglects to join in a demurrer to a bill, but argues it, it will be
intended that the issue of law was made up. Puterbaugh v. Elliott et al. 157.
10. It is not error to dismiss a bill, on demurrer, if it is without equity. If the
equities are defectively stated, the bill may be retained for amendment. Ibid.

157.

11. The rule that equity will not relieve against the neglect of a party in a suit at
law, who has not made a proper defense, or to move for a new trial, will de-
pend upon the fact, that he knowingly had a day in court. Owens v. Ranstead,
161.

12. The return of an officer to a writ, is only prima facie evidence of the facts
stated by it; in a proper case made, equity will relieve against the effects of
it. The remedy by action against the officer, for a false return, is not always
an adequate remedy. Ibid. 161.

13. A judgment obtained by means of a false return and without any notice to the
defendant, may be relieved against, in equity. Ibid. 161.

14. A Circuit Court has not the right to prevent a party from offering oral evi-
dence, in a chancery case. Ibid. 161.

15. The rules and orders of a court regulating practice, should be placed upon the
records of the court. Rules of court cannot rest in parol; nor can any discre-
tion in the application of them be exercised, unless such discretion is author-
ized by the rules themselves. Ibid. 161.

16. Rules of court should have a reasonable publicity, and should only operate
prospectively. Ibid. 161.

17. In a matter of divorce it will be presumed that the court granting it, if it
received admissions as evidence, properly scrutinized the evidence, so as to be
satisfied that the admissions were made in sincerity and without fraud. Ber-
gen v. Bergen, 187.

18. The allowance of alimony is discretionary with the court; so also is the allow-
ance for the support of infant children. Ibid. 187.

19. The Circuit Court may set aside a

judgment by confession, on motion, during
the term at which it was rendered. This exercise of discretion is not matter
for review in the Supreme Court. Bolton v. McKinley, 203.
20. If the conscience of the court in reference to the exercise of this discretion, is
aided by the trial of a feigned issue, and the finding is in favor of vacating the
judgment, the case then stands for pleading and trial. Ibid. 203.

21. This practice not approved of. Error will not lie to correct the finding under
the feigned issue, the judgment thereon not being final. Ibid. 203.,

22. Equity will not restrain the collection levied by officers de jure or de facto, be-
cause of irregularities in their levy or collection. Merritt v. Farris et al. 303.
23. A bill cannot be sustained to enforce an agreement by a debtor, to pay one
creditor in preference to others, where such creditor has no greater right than
others, to such funds. Boomer et al. v. Cunningham et al. 320.

24. If a man stands by, and suffers another to purchase land, to which he has a
mortgage, or title, without making the facts known to the purchaser, he will
be estopped in equity from exercising his legal right. Cochran v. Harrow, 345.
25. A bill of review only authorizes the court to decide from a recitation of facts,
that the law was misapplied to them. The sufficiency of the evidence to
establish the facts as found, cannot be questioned. An improper determina-
tion of law may be examined into. Garrett et al. v. Moss et al. 363.

26. A sworn answer must be disproved by two witnesses. Panton v. Tefft, 366.
27. Where a party, by the use of fraud and deception, obtains a conveyance, the
parties who have made it, may disregard it and convey to a third party, who
may establish the fraud in equity, and be protected in his rights. Whitney v.
Roberts, 381.

28. So long as the parties defrauded, do not ratify the act done by them, they or
their grantees will be sustained in their equitable rights. Ibid. 381.

29. A party who sets up a claim to real estate, founded upon an unrecordered
deed, from a brother, must show such facts as were sufficient to put any one
upon inquiry who was dealing with the estate. Negligence in giving notice to
those to whom it was known the estate was about to be conveyed, might
amount to an estoppel. Clark v. Morris et al. 434.

30. The fact of possession by such a party must be considered, in connection with
all the circumstances surrounding it; as to who was the head of the family;
how far the conveyance was kept concealed; the motives for the conveyance;
the consideration, and all the incidents affecting the transaction. Ibid. 434.
31. On petition by executors for license to sell real estate to pay debts, and to build
a house, etc., and to interpret the will, the court not having jurisdiction under
the statute, should dismiss the proceeding. Bennett, etc. v. Whitman et al. 448.
32. In such a case, the court has not power to determine the duty of the executors.
The proper proceeding is in chancery; and in that case, the evidence upon
which a decree is based should be preserved of record, or recited in it. Where
all the essential facts are not shown, the decree will be erroneous. Ibid. 448.
33. Courts of equity will not assume jurisdiction to establish a trust in every case
where confidence has been reposed or a credit given. Doyle et al. v. Murphy

et ux. 502.

34. Money delivered to a person to pay debts, which he converts to his own use,
does not enable the heirs of the party who reposed confidence, to convert it
into a trust fund. Ibid. 502.

35. If a party abstracts securities not entrusted to him, and substitutes forged se-
curities in their place, this does not create the relation of trustee, and cestui que
trust. Ibid. 502.

36. Where a testator bequeaths a debt due him, to a legatee, the legatee cannot
resort to a court of equity for its recovery. Ibid. 502.

37. Bills for the marshaling of assets are only entertained in cases where various
creditors claim equitable liens, in priority of others. As where one creditor
may resort to two funds, and another to but one. Ibid. 502.

38. The payment of a part of a sum of money which is due does not create an
equity in favor of the payor, to entitle him to an indefinite delay, for the pay-
ment of the balance. Speer v. Cobb, 528.

39. A court of equity will not enjoin a tax for mere errors, if it is attempted to be
levied by an officer de facto, under authority incident to his office; but may do
so, if the levy is by one without pretense of authority, or color of office to
which such a right is an incident. Munson v. Minor, 594.

40. Where a trustee is appointed by deed, with a provision that in case of his de-
cease or legal incapacity, that the chancellor shall be vested with all the
trusts and confidences reposed in the trustee named, the chancellor may ap-
point a trustee, by virtue of his office, to execute the desire of the grantor, and
the right of the chancellor does not depend upon his acquiring jurisdiction
over the heirs and personal representatives of the cestui que trust. Morrison
v. Kelly, 610.

41. The Supreme Court has not jurisdiction to issue writs of injunction. The jus-
tices of this court will not award such writs, except under extraordinary
circumstances. Campbell v. Campbell, 664.

See CONTRACT. FORFEITURE. MECHANICS' LIEN. SECURITY FOR COSTS,
1, 2, 3. TIME. WILLS AND TESTAMENTS, 3.

CHATTEL MORTGAGE.

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 pur-
chaser will not thereby be disturbed. Ibid. 45.

3. To impeach the sale of personal property, it is necessary to show that both ven-
dor 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.

5. A chattel mortgage which authorizes the mortgagor to retain possession of the property, to use and enjoy the same, according to the usual course of retail trade, is not good-but if it authorizes possession of the goods to be taken, and possession is taken under the power, the possession so taken is not vitiated, because of the vicious provision in the mortgage. Read et al. v. Wilson, 377. 6. The fact that the mortgagors were continued in the store, under their old sign, and sold goods, for the benefit of the mortgagees, will not destroy the apparent good faith of the transaction. Ibid. 377.

7. A chattel mortgage which is good as to the parties executing it, will hold, as to third parties who purchase with knowledge; such purchasers not considered as bona fide. The purchasers acquire only the right of redemption. Hathorn et al. v. Lewis, 395.

8 To give a creditor the right to be substituted, in the place of the surety of his debtor, the relation of debtor and creditor must exist between the creditor and the surety. The claim on the surety must be valid, binding, and capable of being immediately enforced. Constant v. Matteson, 546.

9. If the relation of creditor and debtor has never existed between a creditor and the surety, or having existed, has ceased, there cannot be any substitution to the rights of a surety. Ibid. 546.

10. If a surety is liable for the immediate payment of a debt, owing by his principal, he may pay it and resort at once to any funds of the principal he holds as an indemnity, without waiting for the money to be collected by a resort to an action at law. Ibid. 546.

11. In chancery, if the creditor applies to be subrogated to the rights of a surety, the fund pledged to indemnify the surety, will be directly appropriated to the payment of the debt for which the surety is liable, if the surety has the immediate right to satisfy the debt and resort to the indemnity in his hands. Ibid.

546.

12. If property is conveyed to a trustee for the payment of a debt, if the trustee fails so to apply it, a court will compel its application to that purpose. Ibid.

546.

13. Where a debtor gives his surety a mortgage to indemnify him against loss, the property mortgaged can only be applied, when the surety has either paid the debt or has become immediately liable for its payment, and until then, a court of equity will not interfere. Ibid. 546.

14. Possession of mortgaged chattels, by the mortgagor, is fraudulent as to creditors and purchasers, unless such possession is provided for by the mortgage. After the time for possession by the debtor has passed, if he keeps the property, it is equally fraudulent, and subsequent liens or purchasers will be preferred to such prior mortgagee. Ibid. 546.

15. If there are several mortgages, all over due, and the mortgagor holds the property contrary to the conditions of them, any mortgagee who first takes possession of the property, acquires a preference over the others, without regard to the date of the mortgage. Ibid. 546.

16. Upon the forfeiture of the condition of the mortgage, the legal title vests in the mortgagee, and becomes complete in time, if he takes possession. Ibid.

546.

CIRCUIT COURT-CIRCUIT CLERK.

1. Counties should pay for printed blanks, such as summons, subpoenas, etc., furnished by the clerk of the Circuit Court for the use of his office. County of Knox v. Arms, 175.

2. The Circuit Court may set aside a judgment by confession, on motion during the term at which it was rendered. The exercise of such discretion is not subject to review by the Supreme Court. Bolton v. McKinley, 203.

3. The decision of the Circuit Court under the 38th section of the road law in the Revised Statutes, is final. Coon v. Mason County, 666.

See COURTS. JUSTICE OF THE PEACE.