Lapas attēli
PDF
ePub

10. A similiter may be put to a plea, at any stage, by any party; and it is not error to proceed to trial without it. Ibid. 140.

11. A judge may, of his own motion instruct the jury, and it may often be his duty to do so. Ibid. 140.

12. The practice of instructing a jury to find for the defendant, as in case of a non-suit, is not adopted in this State. Ibid. 140.

13. The evidence is for the jury, and in case of contrariety, the Supreme Court will not interfere, except under peculiar circumstances. Ibid. 140.

14. A party will be liable for injuries inflicted by a cow or other animal, if the viciousness of the animal is known to the owner; and case, not trespass, is the proper remedy. Ibid. 140.

15. Motions to dismiss, which assume the office of a plea in abatement, should be grounded on objections, appearing on the face of the papers. If extrinsic matters are to be shown, these must be done by plea in abatement. Holloway v. Freeman, 197.

16. Pleas in abatement should be filed in "apt time," the earliest practicable moment; if after a motion seeking the same object, the right to plead may be considered as waived. Ibid. 197.

17. Pleas in abatement must be signed by counsel, and truly specify the parties in the cause. If such pleas show that they and jurats attached to them, have been altered, these alterations, if assigned, may be held among other reasons, as justifying the court below in ruling them out. Ibid. 197.

18. A defendant, after he has introduced paper testimony, cannot contradict it by oral proof, when there is no allegation of fraud in the pleadings. Ibid. 197. 19. A writ of retorno habendo need not be issued and returned at length, before an action can be brought on a replevin bond. It will be sufficient if a return was adjudged, and proof is made of disobedience to the judgment. Peck v. Wil

son, 205.

20. A default admits all the facts well pleaded. Ibid. 205.

21. In an action on a replevin bond, the breach need not be set out broader than the condition, nor need the proof be more extensive than the breach. Ibid.

205.

22. A forfeited replevin bond, is not such a contract, as is contemplated by the third and fourteenth sections of the practice act for the courts of Cook county. Those sections allude to contracts for the payment of money, and a plea to an action on such a bond, should not be stricken from the files for want of an affidavit of merits. Ibid. 205.

23. 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.

24. 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.

25. 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. 26. If a special plea and the general issue are filed, and all matters pleaded specially may be given in evidence under the general issue, it will be presumed the defendant had the benefit of such proof, unless the contrary appears. The omission to answer the plea, will not be cause for reversal of the judgment. Parmelee v. Fischer, 212.

27. Where there is a general demurrer to a declaration containing several counts, some of which are good, the demurrer must be overruled. Anderson v. Richards, 217.

[ocr errors]

28. The misjoinder of a feme covert as defendant, cannot be cured by entering a nolle prosequi as to the wife. McLean v. Griswold et al. 218.

29. Where a covenant is to be implied from statutory words, the very words of the statute must be used. Vipond v. Hurlburt, 226.

30. In an action on a note, a plea which sets up, that the maker being indebted to A. was to pay off any debts due to A., gave the note sued on to B. payable to C., under the belief that A. owed B. the sum payable by the note, and B. had the note indorsed after due by C. to D., who brings the action, and that no consideration passed between any of the parties, all of whom were privy to the facts, and that said note was held for the use of B., will be good on demurrer. Merrill v. Randall, 227.

31. A plea which avers that B. undertook to collect money for A., and apply the same when collected on a note given by A to D., by an arrangement between the parties, and that a sufficient sum had been collected to pay the note, will constitute a good plea of payment. Ibid. 227.

32. 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.

33. 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.

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

35. Japheth and Japhath are too much alike to constitute a variance. Morton v. McClure, 257.

36. A party cannot recover a larger amount than he claims by his bill of particulars filed with his declaration. He may amend his bill of particulars by leave of the court. Ibid. 257.

37. Two unimpeached witnesses, sustaining a plea of set-off, is sufficient. Ibid.

257.

38. An action on a contract must be in the name of the party in whom the legal interest is vested. Dix v. Mercantile Ins. Co. 272.

39. A party suing, who shows he has not any interest in the cause of action, cannot recover. Ibid. 272.

40. Where one of the three partners who had effected an insurance, afterwards and before a loss, assigns his interest to the other two, without any notice to, or consent by the insurers, the two cannot recover on the policy, especially where they so declare in their declaration, and the policy forbids such an assignment. Ibid. 272.

41. In an action on a note, a plea which sets up, that the maker and payee of the note were owners of land, and that the payee took a conveyance of the land, in order to sell it on joint account, and gave the note as security for the prompt payment of the purchase money when the land should be sold, that it remained unsold, etc., the payee being anxious to sell, etc., is good, as showing a want of consideration. Marsh v. Bennett, 313.

42. Pleas which profess to answer the declaration, but only answer a part of it, are obnoxious to a demurrer. Ibid. 313.

43. The filing of a duplicate plea does not render an answer to it necessary. It may be struck from the files, or disregarded. Howlett v. Mills, 341.

44. Where a declaration only sets out an indorsement in substance, there is not any variance if the declaration calls the indorsee R. Solon Craig, and the indorsement R. S. Craig. Speer v. Craig, 433.

45. 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. Hanson et al. v. Armstrong, 442.

46. Where the same proof may be offered under the issues in a case, as might be offered under an unanswered plea, it is not ground for a reversal, that a plea is so unanswered. Atlantic Insurance Company v. Wright, 462.

47. A verdict which finds the issue for the plaintiff, and assesses his damages, is sufficient.

Ibid. 462.

48. Where the representatives of an insurance company, express satisfaction with
the preliminary proofs of a loss, as offered by the insured, they cannot subse-
quently withdraw that approval, but will be bound by it. Ibid. 462.

49. If the agent of an insurance company is informed of all the facts connected
with the interest of the assured in the property described in the policy, and
does not require a statement thereof, the company will be bound by his acts,
and cannot avoid the policy because the interest of the insured varies from the
conditions stated in the policy, but will be estopped by the acts of the agent.
Ibid. 462.

50. Where a party by his pleading, brings himself within section two, of chapter
eighty-three, of the Revised Statutes, whether to the writ or jurisdiction, the
suit should abate. Tiffany v. Spalding, 493.

51. In an action of trespass, a plea which alleges that the defendant, as agent of
the plaintiffs in execution, directed the marshal to levy on goods in the hands
of another than the defendant, because they had been fraudulently sold to him
by the defendant, is good, and not obnoxious to a demurrer. McNall v. Vehon,

499.

52. A plea of failure of consideration to an action upon a note, should state partic-
ularly in what the failure consisted. If for mason-work imperfectly done, the
character and kind of imperfection must be set forth. General allegations are
not sufficient. Parks v. Holmes, 522.

53. A defendant who has the benefit of a question under one plea, that he would
have had under another, to which a demurrer has been sustained, cannot com-
plain. Ibid. 522.

54. A party has not the right to continue to present the same defense by different
pleas; when this is done, all but one may be struck from the files. Ibid. 522.
.55. A plea which properly avers the making of a note in Iowa, and that it was
tainted with usury by the laws of that State where the parties to it resided,
and with reference to the laws of which State it was executed, is good. But
if the penalty for usury, by the laws of Iowa, goes to the school fund, that
part of the law will not be executed. Barnes et al. v. Whittaker, 606.

See PRACTICE, 74.

POSSESSION OF LAND.

1. Possession is actual, when there is an occupancy, according to its adaptation to
use; constructive, when there is a paramount title to it; and adverse, when
there is such an appropriation of it as will inform the vicinage that it is in the
exclusive use and enjoyment of some known person. Morrison v. Kelly, 610.
2. An open and visible occupation of land, is notice, to put a party on inquiry.
Ibid. 610.

PRACTICE.

1. A party who submits himself to the jurisdiction of a court by pleading, cannot
afterwards complain of the irregularity of the service of process. He may
give jurisdiction without service of process. Mineral Point Railroad Co. v.
Keep, 9.

2. 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.

Ibid. 9.

3. Corporations are included in the word "person" in the attachment law. Ibid. 9.
4. Where an issue of fact is made up on a plea to the jurisdiction, a judgment of
respondeat ouster is a favor to the party; the judgment quod recuperet, being
authorized. Ibid. 9.

5. A plea to the jurisdiction, should be pleaded in person, not by attorney. Ibid. 9.
6. A court has discretion to allow items of set-off, that have been withdrawn, to be
again filed. Ibid. 9.

7. 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. Ibid. 9.

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

9. Where there are several counts in a declaration, and a special plea with the plea of nil debet, it is error on overruling a demurrer to the special plea, to proceed to render judgment upon the cause of action. Riley v. Loughrey, 97.

10. If three parties are served with process, and only one appears and pleads, the others being in default, on a judgment being entered against the party pleading, if he appeals, it is no defense to either of the others that such appeal is pending; that fact does not deprive the Circuit Court of jurisdiction as to the other defendants. In such a case a scire facias need not be issued against the parties in default; proceedings can be had against them upon the process of summons already served. Day v. Gelston, 102.

11. The fact that a justice of the peace renders a judgment in debt, in an action of trespass, is no ground for a reversal-it is otherwise if rendered in the Circuit Court. Chicago and Rock Island Railroad Co. v. Whipple, 105.

12. 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. Ibid. 105.

13. 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.

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

[ocr errors]

15. Proof of an incumbrance on land 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. Conway v. Case, 127.

16. 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. 17. 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.

18. The cancellation of a check upon, and its retention by a bank, is evidence of the payment of it. Ibid. 127.

guardian, or prochein amy, for a minor were otherwise, the exception should Stumps v. Kelley, 140.

19. It is not necessary that there should be a at the time of suing out process. If it be taken before pleading to the merits. 20. A similiter may be put to a plea, at any stage, by any party; and it is not error to proceed to trial without it. Ibid. 140.

21. A judge may of his own motion instruct the jury, and it may often be his duty to do so. Ibid. 140.

22. The practice of instructing a jury to find for the defendant, as in case of a non-suit, is not adopted in this State. Ibid. 140.

23. The evidence is for the jury, and in case of contrariety, the Supreme Court will not interfere, except under peculiar circumstances. Ibid. 140.

24. A party will be liable for injuries inflicted by a cow or other animal, if the viciousness of the animal is known to the owner; and case, not trespass, is the proper remedy. Ibid. 140.

25. 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. 26. 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.

27. A jury should not be sworn for the term, but for the trial of each particular case. Barney v. People, 160.

28. 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 pend upon the fact, that he knowingly had a day in court.

161.

new trial, will deOwens v. Ranstead,

29. 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.

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

31. A Circuit Court has not the right to prevent a party from offering oral evidence, in a chancery case. Ibid. 161.

32. 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 discretion in the application of them be exercised, unless such discretion is authorized by the rules themselves. Ibid. 161.

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

34. If exceptions are not taken to instructions, the Supreme Court cannot consider them. Sedgwick v. Phillips, 183.

35. If on a trial of right of property, there is evidence tending to show property in the claimant, it is erroneous to instruct the jury that he fails to show any right, and they must find against him. Craig v. Peake et al. 185.

36. It will be presumed that a cross-motion made to have a previous motion stricken from the files, and referring to rules, was sustained under the rules referred to. Holloway v. Freeman, 197.

37. County Courts can establish rules of practice. Ibid. 197.

38. Motions to dismiss, which assume the office of a plea in abatement, should be grounded on objections, appearing on the face of the papers. If extrinsic matters are to be shown, these must be done by plea in abatement. Ibid.

197.

39. Pleas in abatement should be filed in "apt time," the earliest practicable moment; if after a motion seeking the same object, the right to plead may be considered as waived. Ibid. 197.

40. Pleas in abatement must be signed by counsel, and truly specify the parties in the cause. If such pleas show that they and jurats attached to them, have been altered, these alterations, if assigned, may be held among other reasons, as justifying the court below in ruling them out. Ibid. 197.

41. A defendant, after he has introduced paper testimony, cannot contradict it by oral proof, when there is no allegation of fraud in the pleadings. Ibid. 197. 42. 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. 43. 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.

44. 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.

45. A default admits all the facts well pleaded. Peck v. Wilson, 205.

46. A writ of retorno habendo need not be issued and returned at length, before an action can be brought on a replevin bond. Ibid. 205.

47. In order to review a case in the Supreme Court on a judgment pronounced on demurrer, an exception to such judgment is unnecessary; nor need it be preserved in a bill of exceptions. Hamlin v. Reynolds, 207.

48. In an action for lost baggage, it is proper to instruct that damages may be assessed for such articles of necessity and convenience, as passengers usually carry for their personal use, comfort, instruction, amusement or protection, having regard to the length and object of their journeys. Parmelee v. Fischer,

212.

49. If a special plea and the general issue are filed, and all matters pleaded specially may be given in evidence under the general issue, it will be presumed the defendant had the benefit of such proof, unless the contrary appears. The omission to answer the plea, will not be cause for reversal of the judgment. Ibid. 212.

« iepriekšējāTurpināt »