8. The courts will not interfere by injunction, to prevent the collection of taxes, Railroad Co. v. Frary, 34. 9. It will be presumed that a cross-motion made to have a previous motion stricken 10. County Courts can establish rules of practice. Ibid. 197. 11. The court may set aside a judgment by confession, on motion during the term 12. The Circuit Court has jurisdiction on appeal from a justice of the peace, 13. Evidence must be heard, before it can be determined that a justice of the 14. A party may succeed in any form of action, if the justice of the peace had 15. A court trying a case in place of a jury, if on announcing a finding, a motion 16. If the matters alleged in a special plea, may be offered in defense under the 17. The Court of Common Pleas of the city of Aurora has power to issue final 18. Where local courts have jurisdiction to render judgment, they may issue final 19. In actions ex delicto, it is seldom that courts will interfere with the finding of 20. A party may take a judgment by nil dicit, to that portion of his demand not 21. The common law writ of certiorari was for the purpose of bringing the record 22. A writ of certiorari to a justice of the peace, is distinct and separate from an 23. The records of a court in which a suit is pending, are admissible as evidence, 24. A court of law has power to order the opening of a judgment rendered upon 25. The decision of the Circuit Court, under the 38th section of the Road Law in See CIRCUIT COURT. COVENANTS. 1. A party who contracts to give a deed with a covenant against incumbrances, cannot comply, if the property is actually incumbered. Conway v. Case, 127. 2. Where a covenant is to be implied from statutory words, the very words of the statute must be used. Vipond v. Hurlburt, 226. See ACTION. CRIMINAL ACTS-CRIMINAL LAW. 1. A jury should not be sworn for the term, but for the trial of each particular case. Barney v. People, 160. 2. In an indictment for rape, it is erroneous to refuse to instruct the jury, that if they believe the husband of the prosecutrix, an able bodied man, was so near that he might have heard an outcry; that no outery was made, and that the husband and wife, after the offense charged, remained for a time with the accused in friendly intercourse, that these circumstances raise a strong presumption of innocence in the accused. Ibid. 160. 3. A conspiracy to obtain goods by false pretenses, is an indictable offense. Johnson v. People, 314. 4. If a person indicted for a misdemeanor, is put on trial, the right to a final judgment on the demurrer, is supposed to have been waived. Ibid. 314. 5. On an indictment for a misdemeanor, the plea of not guilty must be entered by counsel or the accused without an arraignment. Without an issue there is nothing to be tried, and if this is not shown, it is error to sentence. Ibid. 314. cured; or Ibid. 314. 6. If the record shows a trial by consent, the defect may be held to be the omission to enter the plea may be obviated by an order of court. 7. The awarding of a separate trial in criminal cases, is a matter of discretion, not assignable for error. Ibid. 314. DAMAGES. 1. In an action of debt, a plaintiff cannot recover more than he claims by his declaration, nor can the damages on a penal bond be greater than the ad damnum. Russel et al. v. City of Chicago, 283. 2. In an action to recover damages for work improperly performed by a plasterer, it is erroneous to refuse to instruct the jury, that a warranty might exist in a contract, without the use of any particular word, if such was the intention, and that if the plastering fell off, it may be inferred the work was not well done, unless it be shown that the plasterer was not in fault. Van Buskirk v. Murden, 446. 3. A party who has accepted work, is not held to have waived defects in it, if, like plastering, it may have latent defects, which are not open to inspection. Ibid. 446. See ACTION. NEGLIGENCE. RAILROADS. DEBTOR AND CREDITOR. 1. On the trial of right of property, a recital in the execution of the rendition of the judgment is sufficient proof of the judgment; the claimant, by giving notice, admits the regularity and existence of the proceedings against the defendant. Dexter v. Parkins, 143. 2. A preferred creditor has no greater right to personal property, than a purchaser for a valuable consideration, as against judgment creditors. Ibid. 143. 3. 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, 320. 4. 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 et al. 341. 5. A debtor may sell his estate although he is in debt, provided he does it fairly, for a reasonable consideration, and without fraud. Waddams v. Humphrey, 661. See ASSIGNOR AND ASSIGNEE. JUDGMENT DEBTOR AND CREDITOR. DECREE. is erroneous to decree the payment of money out of a fund belonging to persons not parties to the suit. Prieto v. Duncan, 26. DEEDS. 1. A subsequent agreement under seal, written upon and referring to a former agreement not under seal, which imposes a penalty in case the original contract should not be performed, does not convert such original contract into a deed. Waughop v. Weeks et al. 350. 2. The word "also," in a deed, expressing what is granted thereby, means likewise, in like manner, in addition to, denoting that something is added to what precedes it. Panton v. Tefft, 366. 3. Where a deed has been obtained surreptitiously and placed upon record by the grantee, nothing short of an explicit ratification of the deed, or such an acquiescence, after a knowledge of the facts, as would raise a presumption of express ratification, can give it vitality. Hadlock v. Hadlock, 384. 4. A party who sets up a claim to real estate, founded upon an unrecorded 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. 5. 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. 6. Parties are estopped by the recitals in their deed. Byrne v. Morehouse et al. 603. 7. Where commissioners to allot government land in Galena, decided that A. B. and C. were entitled to the preemption to two lots, and a partition of the same was made by deed between them, each would hold under the partition deed, whatever their anterior rights might have been. Ibid. 603. 8. The delivery of a deed to a stranger, if ratified by the grantee, is good. Morrison v. Kelly, 610. 9. The delivery of a deed to one other than the grantee, having an interest in the land, is good. Ibid. 610. See CHANCERY. CONVEYANCE. FRAUDS. DELIVERY. 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 suthicient delivery from B. to A. to enable the former to keep the horse, as against other creditors of B. Parsons v. Overmire, 58. DEMURRER. 1. A plea which professes to answer the whole cause of action, but only answers a part, is obnoxious to a demurrer. Moir v. Harrington, 40. 2. A party is not bound to answer the part of a bill demurred to until after the demurrer is decided. Ballance v. Loomis et al. 82. 3. Pleas which profess to answer the declaration, but only answer a part of it, are obnoxious to a demurrer. Marsh v. Bennett, 313. 4. If an unanswered demurrer is on record, and the party filing it goes to trial by consent, it will not be cause for reversal of the judgment. Parker v. Palmer et al. 489. See PLEADING. PRACTICE, 49, 74. DEVISE. See WILLS AND TESTAMENTS. DILIGENCE. 1. Where it is designed to recover against the indorser of a note, action must be brought against the maker, at the first term of any court having jurisdiction, although there may not be ten days between the time the note falls due, and the commencement of the term. Chalmers v. Moore, 359. 2. As an evidence of diligence against the maker of a note, an execution should be levied on goods, and the right of property therein tried, if the goods are in the possession of the maker. Ibid. 359. 3. Diligence requires the issuance of an execution in the county where the judg ment shall have been rendered. Ibid. 359. 4. Property in the possession of the maker of a note, should be sold subject to the claims of others, so that the rights of parties may be ascertained. Ibid. 359. DIVORCE. 1. 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. Bergen v. Bergen, 187. 2. The allowance of alimony is discretionary with the court; so also is the allowance for the support of infant children. Ibid. 187. 3. A bill filed for a divorce, is to be taken against the party filing it, as true. The recitals in a decree are conclusive against the party who sought it. Prescott et ux. v Fisher, 390. 4. A deserted wife may acquire property and control it and her person, and may be sued as a feme sole, and if divorced and again marries, her husband will be jointly liable with her for debts contracted. Ibid. 390. 5. Alimony will be granted in proportion to the the ability of the person who is to pay it. judicial exercise of discretion, which may be v. Foote, 425. wants of the party asking it, and The allowance depends upon a inquired into on appeal. Foote 6. An allowance for alimony may be increased or diminished. Ibid. 425. 7. A divorced woman is not a good witness, where her former husband is a party. Waddams v. Humphrey, 661. DOLLAR, OR CHECK MARK. See ASSESSMENTS, 8. CITIES. CITY OF CHICAGO, 6. EJECTMENT. 1. The award of a new trial in a first ejectment suit, wipes out the verdict; no judgment can be rendered on it, nor is it a bar to any proceeding. Edwards v. Edwards, 121. 2. Uncontradicted proof that the defendant in an action of ejectment, commenced building a brick house on the premises, in 1848, and that he and his family had resided in the same since 1849 or 1850, the trial taking place in 1858, is sufficient evidence of possession at the time the suit was brought, which was in September, 1856. Goodhue v. Baker, 262. 3. A verdict in ejectment which finds the defendant guilty, and the estate established in the plaintiff to be an estate in fee, is responsive to the issue, and is sufficient. Ibid. 262. 4. The motion for a new trial in ejectment, upon common law grounds, may be granted, but if applied for under the statute, the conditions required must be complied with. Ibid. 262. 5. A verdict in ejectment, which finds that the plaintiff is the owner of the land, is sufficiently explicit as to title. Hadlock v. Hadlock, 384. 6. Where a deed has been obtained surreptitiously and placed upon record by the grantee, nothing short of an explicit ratification of the deed, or such an acquiescence, after a knowledge of the facts, as would raise a presumption of express ratification, can give it vitality. Ibid. 384. 7. Where a judgment in ejectment does not award the plaintiff possession of the land, the Circuit Court at a subsequent term may correct it, or the Supreme Court may do so on appeal. Ibid. 384. 8. Before a party can introduce the copy of a deed, he must lay the proper foundation, and then he must introduce a copy from the record book, not the book itself. Hanson et al. v. Armstrong, 442. 9. It is not necessary in ejectment, to make any other party than the occupant a defendant; a judgment against him binds all persons who are in privity. Ibid. 442. 10. In an action of ejectment, where the party has the statutory right to a new trial on payment of costs, a new trial at common law will not so readily be granted in any case, and especially because of the absence of counsel. Walker v. Armour, 648. 11. The want of a similiter in actions of ejectment, is cured by a verdict, or the defendant may add it if he chooses, as a matter of form. The plea of not guilty is the issue. Ibid. 648. See CLAIM AND COLOR OF TITLE. ERROR. See WRIT OF ERROR. ESTOPPEL. 1. 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. 2. Parties are estopped by the recitals in their deed. Byrne v. Morehouse et al. 603. 3. Where commissioners to allot government land in Galena, decided that A. B. and C. were entitled to the preemption to two lots, and a partition of the same was made by deed between them, each would hold under the partition deed, whatever their anterior rights might have been. Ibid. 603. EVIDENCE. 1. The written memoranda, taken at the time a deceased witness testified, in a suit between the same parties, may be read in evidence. The correctness of such memoranda may be disputed, and the jury must pass upon them. Mineral Point Railroad Co. v. Keep, 9. 2. If money is advanced to a sub-contractor, the principal contractor will only be held for the amount advanced by his authority. Ibid. 9. 3. 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. Waggeman v. Peters, 42. 4. Proof of detention of property, may be made by any circumstances which go to satisfy the jury. If a party refuses to listen to a demand of property, it may be satisfactory. Cranz v. Kroger, 74. |