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

51. 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.

52. A party is entitled to a continuance if a plaintiff does not file an account ten
days before the term, if he has common counts in his declaration. Hawthorn
v. Cooper, 225.

53. If the plaintiff desires to avoid a continuance, he can stipulate against using the
common counts, or enter a nolle prosequi as to them. Ibid. 225.

54. To justify the continuance of a cause by reason of the absence of a witness,
something more than the writing of letters and making inquiries is required.
Stevenson v. Sherwood, 238.

55. A court trying a case in place of a jury, if on announcing a finding, a motion
for a new trial and in arrest are interposed, may render a judgment at a future
day, after the motions are disposed of. Ibid. 238.

56. If the matters alleged in a special plea, may be offered in defense under the
general issue, it will be presumed they were so offered. Ibid. 238.

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

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

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

257.

60. 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 suffi-
cient evidence of possession at the time the suit was brought, which was in
September, 1856. Goodhue v. Baker, 262.

61. 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.

62. 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.

63. A party may take a judgment by nil dicit, to that portion of his demand not
answered by a plea, even though a demurrer may have been filed, at any time
during the term at which the plea is filed, if before final judgment, on payment
of costs of the motion. Safford et al. v. Vail, 327.

64. 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.

65. Objections to the reading of papers to a jury, should be made in the Circuit
Court. Waughop v. Weeks et al. 350.

66. Declarations of a witness before he is called, do not disqualify him., The in-
terest of a witness in the event of the suit, should be established on his voire
dire, or by other testimony. Ibid. 350.

67. Where the evidence as to the persons who compose a copartnership is conflict-
ing, the verdict will not be disturbed. Smith v. Williams, 357.

68. The court may send a jury back under instructions, as to how to correct a
verdict. Ibid. 357.

69. A party cannot complain of an instruction, which favors himself. Ibid. 357.
70. 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. Hadlock v. Hadlock, 384.

71. A verdict in ejectment, which finds that the plaintiff is the owner of the land,
is sufficiently explicit as to title. Ibid. 384.

72. 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.

73. An amendment of the summons by making the amount claimed by it, correspond with the præcipe, is proper. Ibid. 389.

74. Advantage cannot be taken on error, of a variance between the writ and declaration, when the parties were regularly defaulted in the court below. Ibid.

389.

75. A plea in abatement, which avers that a cause of action arose in Logan county, and was specifically made payable there, and that defendant was served in Logan county, with a process issued from Cook county, and that a co-defendant who was served with process in Cook, also resides in Logan county, is not obnoxious to a demurrer. Hamilton v. Dewey, 490.

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

77. A plea of failure of consideration to an action upon a note, should state particularly 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.

78. 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 sbstained, cannot complain. Ibid. 522.

79. 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. 80. A notice should be given a party to produce a paper, if it is supposed to be, or ought to be, in his possession, as a foundation for other proof in relation to it. Holbrook v. Trustees, 539.

81. An application for a continuance, on account of the absence of a witness, should not only show diligence, but that there are no others to prove the same facts, and that the witness may be in attendance at another term. A delay of six months, without serving process on a witness, is a want of diligence. Eames v. Hennessy, 628.

82. A party asking a change of venue, should give notice of his intention at the earliest period. If the cause for the change is known in vacation, notice should be given and the application should be made at chambers. Moss et al. v. Johnson, 633.

83. 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.

84. 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.

85. Affidavits may be read or proof heard, to show that words have been improperly stricken from a judgment; but not to falsify a record by showing that an alteration concerning it was improperly made. Ibid. 648.

86. A court will exercise a more liberal discretion in awarding new trials on feigned issues, than at law. Waddams v. Humphrey, 661.

See ADMINISTRATOR, 2. SECURITY FOR COSTS, 1, 2, 3.

PRACTICE IN COOK COUNTY.

1. The Common Pleas should not assess damages, as if by default, while a plea of the general issue is on file, though verified by an insufficient affidavit. The plea should first be struck from the files. McDonnel v. Harter, 28.

2. In Cook county, where a note is the cause of action, and the declaration besides special, contains the common counts, the affidavit of merits to a plea, may be general, and go only to a part of the damages claimed. Former decisions reviewed. Hurd et al. v. Burr, 29.

3. If a plaintiff shall abandon the common counts, and the defendant shall then refuse to swear that he has a meritorious defense, the plaintiff will be entitled to a judgment. Ibid. 29.

4. If the plaintiff, after a plea filed, shall limit his demand, and the defendant
refuses to make a further affidavit, judgment may pass as by default. Ibid. 29.
5. Judgment against several cannot go, upon service of notice, etc., on one; nor
does filing notice, in the office of the clerk of Cook County Court, meet the
exigency of the statute. Ibid. 29.

6. An affidavit of merits to a plea is part of the plea, and is preserved in the record
without a bill of exceptions. This is the case also, where a plea is stricken
from the files. Whiting v. Fuller, 33.

7. Persons sued jointly, who plead the general issue, may sustain it by an affidavit
of merits, made by one of the defendants. If separate pleas are filed, each
plea must be sustained by an affidavit of merits. Ibid. 33.

8. Where there are joint defendants, and one files an affidavit of merits to a plea
in his behalf, and the other defendant does not make affidavit, the Common
Pleas Court of Cook county may default the party who has not verified, even
at a future term, the suit being pending, on the issues of the other defendant.
Anthony v. Ward, 180.

PRESUMPTIONS.

A court of general jurisdiction will be presumed to have acted upon the necessary
evidence. Granjang v. Merkle, 249.

See PRACTICE, 48.

PRINCIPAL AND AGENT.

See AGENT.

PROBATE COURT.

See GUARDIAN AND WARD. HEIRS. INFANTS.

PROMISSORY NOTE.

1. It is no defense to an action on a note, that it was given to the payee in lieu of
three other notes, given to the husband of the payee. The widow might be
acting as executrix, in her own wrong, or might be the heir; in either case
the notes surrendered would be satisfied. Riley v. Loughrey, 97.

2. 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
remains unsold, etc., the payee being anxious to sell, etc., is good, as showing
a want of consideration. Marsh v. Bennett, 313.

3. Parties or privies to an usurious transaction, have the right to avail themselves
of the defense. Safford et al. v. Vail, 327.

4. A party to a note as surety, afterwards becoming principal to another note,
covering the same with other indebtedness, with a different party, may set up
the defense of usury, to the first note. Ibid. 327.

5. 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.

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

7. 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.

8. 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.

9. 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.

10. Diligence requires the issuance of an execution in the county where the judg-
ment shall have been rendered. Ibid. 359.

11. Property in the possession of the
the claims of others, so that the

359.

maker of a note, should be sold subject to
rights of parties may be ascertained. Ibid.

12. An execution should not be returned before its life is extinct, if diligence is to
be shown under it. Ibid. 359.

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

See INDORSER-INDORSEE. INTEREST. PLEADING, 52.

PUBLIC ROADS AND BRIDGES.

The decision of the Circuit Court under the thirty-eighth section of the road law
in the Revised Statutes, is final. Coon v. Mason County, 666.

See HIGHWAYS AND STREETS.

RAILROADS.

1. If railroad companies, having their officers and offices, do business and have
agents and property in this State, service of process may be made upon such
agents in this State, in the same manner that it may be on agents of local cor-
porations. Mineral Point Railroad Co. v. Keep, 9.

2. If the fact of the agency is denied, the return of the officer as to that is not con-
clusive, this should be put in issue by a plea in abatement. Ibid. 9.

3. Corporations are persons, under the attachment law. Ibid. 9.

4. The corporators of a railroad, are liable, if its lessees should commit a trespass.
So if the road is operated by contractors, while constructing it. Chicago and
Rock Island Railroad Co. v. Whipple, 105.

5. Municipal corporations are not bound to discharge indebtedness elsewhere than
at their treasuries. People ex rel. Peoria and Oquawka Railroad Co. v. Tazewell
County, 147

6. Counties and cities have not the right to make bonds, issued in aid of railroads,
payable in the city of New York. Ibid. 147.

7. Authorities representing counties and cities are not compelled, when the inhabi-
tants thereof have voted in favor of issuing bonds to aid in constructing rail-
roads, to issue the same, or to subscribe for the whole stock; there is a discre-
tion resting with such authorities in that regard. Ibid. 147.

8. Only a proposition to aid in the construction of one railroad should be submitted
to the people. Ibid. 147.

9. Where the question of damages for a right of way is fairly submitted to a jury,
no benefit being likely to result to the owner of the land, and the company
not being absolutely bound to erect a fence, etc., the Supreme Court will not
disturb the verdict. Tonica and Petersburg Railroad Co. v. Unsicker, 221.

10. The Supreme Court will not disturb the verdict, assessing damages for a right
of way, merely because such damages are large; when the owner of the land
is not to receive any particular benefit for the location of the road. Same v.
Roberts, 224.

11. 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 im-
proper 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.

12. An act which exempts a railroad company from ringing a bell or sounding a
whistle at a road crossing, is not unconstitutional. Ibid. 264.

13. An omission to give a signal, by sounding a bell or whistle, is not of itself evi-
dence of negligence. Ibid. 264.

14. A railroad company, and a traveler on the highway, have correlative rights, and each must use proper caution where there is danger of a conflict. Neither has a superior right, except as it results from the difficulties and necessities of the case. Ibid. 264.

15. The delivery of a baggage check by a railroad company, is prima facie evidence that the company has the baggage. Davis v. Michigan Southern and Northern Indiana Railroad Co. 278.

16. If on a change of passage from one railroad to another, the agent of the road does not find the baggage which is checked, he should give immediate notice to the owner, or the company owning the road on which the passenger embarks, will be held liable. Ibid. 278.

17. The owner of lost baggage should not be permitted to prove the value of the articles in which it is packed. So of other articles, the value of which may be established from description. Ibid. 278.

18. A revolver is included in personal baggage. Ibid. 278.

19. In an action of trespass against a railroad company, for the use of a right of way, the proceedings of the company procuring the condemnation, are competent evidence, and are not to be impeached collaterally. All presumptions are in favor of the regularity of the proceeding. Galena and Chicago Union Rail

road Co. v. Pound et al. 399.

20. The service of the preliminary notice, was a question in the proceeding, and if then adjudicated, cannot be attacked indirectly. Ibid. 399.

21. The same land sought to be condemned, must be described in the orders and judgment of the person who condemns. Ibid. 399.

22. The averments and proof should correspond. Moss et al. v. Johnson, 633. 23. A person who obtrudes himself upon a locomotive or cars, cannot recover, if he sustains injury. Ibid. 633.

24. A person who has a contract with parties running a road, as an employee, going upon a railway train, with full knowledge of the condition of the road, and its management, cannot recover for injuries he may sustain. Ibid. 633.

RECOGNIZANCE.

The Supreme Court will not inquire into the reasons why the legislature requires certain conditions in a recognizance. Van Blaricum v. People, 86.

See SCIRE FACIAS.

RECORDING ACTS.

1. The recording of a deed, is notice to a purchaser, although recorded after a conveyance to the grantor of such purchaser, if the fact is brought to his knowledge, or such notice of it as ought to have instigated inquiry, before conveyance to the purchaser. Morrison v. Kelly, 610.

2. A cestui que trust has such an interest as will enable him to put a purchaser on inquiry. Ibid. 610.

3. Under the registry laws, notice of a prior conveyance is as effectual as the registry of the deed. Ibid. 610.

RECORD.

A record should show the scire facias, not by recital, but by giving a copy of it; or the judgment upon it will be reversed. It is the duty of the district attorney to see to the regularity of such proceedings. Campbell v. People, 234. See AFFIDAVIT. DIVORCE. EVIDENCE.

REPLEVIN - REPLEVIN BOND.

1. 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. Wilson, 205.