5. The entry of a justice of the peace, in his docket, cannot be controverted by parol testimony; the record is more trustworthy than parol testimony. Garfield v. Douglas, 100. 6. If the justice acts corruptly, he can be made to answer, criminally and civilly. Ibid. 100. 7. It is competent for a party to show that the consideration expressed in a deed applied only to a part of the land described in it, the vendor not pretending to have a title to some of the land referred to in the deed. Sidders v. Riley, 109. 8. A party who contracts to give a deed with a covenant against incumbrances, does not meet his obligation, by offering such a deed, if the property is actually incumbered. Conway v. Case, 127. 9. Proof of an incumbrance may be shown by the record. And if the mode of proof is irregular, that mode must be objected to, so that another may be adopted. Ibid. 127. 10. It will be presumed that all proper preliminary proof was made to the introduction of the record, as evidence, unless the contrary appears. Ibid. 127. 11. Parties should make specific objections in the Circuit Court to the introduction of evidence, if the propriety of its introduction is to be questioned in the Supreme Court. Ibid. 127. 12. The cancellation of a check upon, and its retention by a bank, is evidence of the payment of it. Ibid. 127. 13. A tender of money will be presumed sufficient, if not objected to. Ibid. 127. 14. 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. 15. The wife of a defendant in execution, is not a competent witness, on a trial of right of property. Ibid. 143. 16. An unauthorized proposition to the president of a railroad corporation, that a person injured by a train of the company, should be sent to a hospital, is improper to go to a jury as evidence, in an action by the injured party against the company. Galena and Chicago Union Railroad Co. v. Dill, 264. 17. Parol evidence cannot be admitted to explain an ambiguity, which is patent. Panton v. Tefft, 366. 18. A sworn answer must be disproved by two witnesses. Ibid. 366. 19. The records of a court in which a suit is pending, are admissible as evidence, and prove themselves. Prescott et ux. v. Fisher, 390. The 20. A bill filed for a divorce, is to be taken against the party filing it, as true. recitals in a decree are conclusive against the party who sought it. Ibid. 390. 21. A vendor of goods with a warranty, is a competent witness, in an action between his vendee and a judgment creditor. Warner v. Carlton, 415. 22. Where a vendee employs his vendor as a clerk to sell goods, although the fact may excite suspicion, it is not per se fraudulent, and may be explained. Ibid. 415. 23. 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. 24. A divorced woman is not a good witness where her former husband is a party. Waddams v. Humphrey et al. 661. See DIVORCE. EJECTMENT. RAILROADS. WITNESS. EXECUTION. 1. The death of a defendant in execution, after its delivery to the sheriff, but before a levy under it by him, will not prevent that officer from proceding to levy and sell. Dodge v. Mack, 93. 2. Execution should not be awarded against an administrator. Granjang v. Merkle, 249. 3. An execution should not be returned before its life is extinct, if diligence is to be shown under it. Chalmers v. Moore, 359. See JUDGMENT DEBTOR AND CREDITOR. EXECUTORS. 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, Administrator, 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 afterwards, then the judgment is to be satisfied out of subsequently discovered and inventoried estate. Ibid. 23. 3. If instead of suing, a 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 balance is adjudged to him, it will be paid out of any estate thereafter discovered and inventoried. Ibid. 23. 4. 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. 5. An executor may maintain an action upon covenants in the lease, against committing waste. Ibid. 112. 6. 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. 7. 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. 8. Where a will directs that the debts of the testator shall be paid out of the avails of personal property unless other arrangements can be made; that a house shall be built; that certain legacies shall be paid his children at their majority, and for that purpose his executors may dispose of real estate; that his wife should have the control of all his property, until the youngest child shall become of lawful age, for the support, education and maintenance of the children; and directs how the property shall be divided: Held, That after the payment of the debts, and the reservation of sufficient estate to satisfy the specific legacies, the residuum should be under the control of the wife, until the event should occur, when, under the will, the remainder was to be distributed, and that the wife received not in fee, but as trustee. In re Estate of Whitman, 511. 9. The wife has not even a life estate in the remainder, but only had the power to control in the interim, before distribution was required, within the limit directed by the will. Ibid. 511. 10. Should the wife attempt to abuse the trust, a court of equity would restrain her, and compel a proper application of the estate. Ibid. 511. 11. Under such a will, the wife is not to account to the Probate Court, until the time fixed by the will for the distribution of the estate. Ibid. 511. 12. Money received on the sale of land, after payment of the debts, and the specific legacies due, after reserving enough for the other legacies, should be paid to the widow. Ibid. 511. See ADMINISTRATOR. FEES-FEE BILLS. 1. The Common Council of the city of Chicago had authority to appoint special collectors, under the charter of 1851, and whether they had this power or not, the collector elected was not justified in withholding monies, upon the ground that the fees received by such collectors belonged to him. Russel et al. v. City of Chicago, 283. 2. A trustee, without a stipulation to that effect, cannot claim compensation for 3. A solicitor's fee cannot be taxed as costs in a case. The discretion of a court 4. An officer may recover for his reasonable expenses, in keeping property levied See COSTS. FEIGNED ISSUE. See CHANCERY. FORFEITURE. 1. In contracts for the sale of land to A. B., his representatives or assigns, a cov- 2. A forfeiture may be produced by a reasonable notice of the intention to do so, 3. A payment of a considerable part of the purchase money will not excuse the FRAUDULENT CONVEYANCE. See FRAUDS. FRAUDS-FRAUDS AND PERJURIES. 1. Where an executory contract is in question, alleged to have been founded in 2. Executory contracts are avoided by the statute of frauds; executed contracts 3. If a laborer contracts verbally, to work an entire year, he is entitled to the wages 4. A parol contract, which is required by the statute to be in writing, is as binding 5. If a party agrees to labor for a year for a certain sum, he must labor for that 6. If a party agrees to labor for a fixed period, and quits before that period has 7. Where a party, by the use of fraud and deception, obtains a conveyance, the 8. So long as the parties defrauded, do not ratify the act done by them, they or 9. Where a vendee employs his vendor as a clerk to sell goods, although the fact FUGITIVES. See DEBTOR AND CREDITOR, 5. NEGROES. SLAVES AND SLAVERY. GIFT. 1. A verbal gift without delivery may be resumed. Not so if the gift is evidenced by a writing. Cranz v. Kroger, 74. 2. A parent may resume property given to an infant child, without the consent of the child. Ibid. 74. GUARANTOR - GUARANTEE - GUARANTY. See SURETY. HIGHWAYS AND STREETS. 1. Supervisors in the matter of opening a road, when they dismiss an appeal and adjourn, without any intention of further action, cannot resume the subject, unless notice of the time and place of a future meeting is served on the commissioners of highways, and on the three petitioners before served. Without these, the action of the supervisors is void. Keech v. The People, 478. 2. When a road is located on a dividing line between townships, the commissioners of the towns must create road districts, and allot the expense, etc., of keeping up the road among the districts, as nearly equal as possible, giving each town an equal number of districts, each road district to be attached to the town in which it lies. Without such an allotment, the road cannot be opened; neither of the towns having power to act. Ibid. 478. 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 TOWNSHIP ORGANIZATION. HUSBAND AND WIFE. 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 the absence of proof to the contrary, that the residence of the parties is identical. Prieto et al. v. Duncan, 26. 2. The wife of a defendant in execution is not a competent witness on a trial of right of property. Dexter v. Parkins, 143. See DIVORCE. HEIRS. JUDGMENT DEBTOR AND CREDITOR. INDICTMENT. 1. A conspiracy to obtain goods by false pretenses, is an indictable offense. Johnson v. The People, 314. 2. 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. 3. 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. 4. If the record shows a trial by consent, the defect may be held to be cured; or the omission to enter the plea may be obviated by an order of the court. Ibid. 314. 5. The awarding of a separate trial in criminal cases, is a matter of discretion, not assignable for error. Ibid. 314. INDORSER AND INDORSEE. 1. A party who attempts to plead that another had property, etc., sufficient to satisfy an execution, etc., must set out that such property was subject to the execution, or it will be bad on demurrer. Hamlin v. Reynolds, 207. 2. In an action against an indorser, if he pleads that the maker had property liable to execution, which was known to the judgment creditor and the sheriff, and that they fraudulently designed, etc., to harass the indorser, and returned an execution, no property found; it will not be demurrable. And a party after such a plea had been overruled on demurrer, might not expect to be permitted to make proof of similar facts, under a plea of the general issue. Ibid. 207. 3. If an execution is relied on, as proof of diligence used in the collection of a debt, the process should remain in the hands of the officer, for its whole life; or the fact of the uselessness of its so remaining, should be pleaded. No presumption will be indulged, that the money could not be made, during the remainder of the days it had to run, after return was made. Ibid. 207. 4. In an action by an indorsee against the indorser of a note, the drawer is a competent witness to prove protest and notice. Any evidence which will satisfy the jury of that fact, is sufficient. Eddy v. Peterson, 535. See PROMISSORY NOTE. INFANTS. A parent may resume property given to an infant. Cranz v. Kroger, 74. INJUNCTION. 1. The courts will not interfere by injunction, to prevent the collection of taxes, because there have been irregularities in the assessment. Chicago, Burlington and Quincy Railroad Co. v. Frary, 34. 2. 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 interfere by injunction to prevent the delivery of the deed. Ballance v. Loomis, 82. The Supreme Court has not jurisdiction to issue writs of injunction. Campbell v. Campbell, 664. 3. INSURANCE-INSURANCE POLICIES. See CONTRACT, 15, 16, 17. PLEADING, 38, 39, 40. INTEREST. 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. INTESTATE ESTATES. See ADMINISTRATOR, 1, 2, 3. JUDGMENT. 1. 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. 2. On a judgment against a county, it is erroneous to award an execution. County of Knox v. Arms, 175. 3. 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 v. City of Chicago, 283. 4. A judgment in debt by a justice of the peace, for a gross amount of debt and damages, will not for that reason be reversed. Chicago and Rock Island Railroad Co. v. Whipple, 337. 5. A judgment by default may be rendered against a defendant regularly served with process for an amount greater than is stated in the summons, if within the damages claimed by the declaration. Thompson et al. v. Turner, 389. |