5. Where a party who was sued for an amount due for the purchase of a lot of
land, defended upon the ground that a part of the lot sold was occupied and
held by others, and that his title thereby failed, to rebut which the plaintiff un-
dertook to prove that only a portion of the land described in the deed was in-
tended to be conveyed; it was held, that the description in the deed must pre-
vail, and that parol evidence could not vary the deed; if the parties were ag-
grieved, they must resort to equity. Wear v. Parrish, 240.
6. Where there are two descriptions of the same premises in a deed, one of which
is complete, and the other has something added which is subordinate and incor-
rect, the incorrect or subordinate part may be rejected as surplusage. Myers
v. Ladd, 415.
7. When land in a conveyance is so described that it cannot be identified; or the
description calls for premises not having an existence, or that cannot be found,
the conveyance is void. Carter v. Barnes, 454.
8. Omissions or mistakes may be corrected in equity so as to make the contract
conform to the intention of the parties, on a proper case made. Ibid. 454.
See PRACTICE, 12. PROMISSORY NOTE.
1. When a plea of the general issue is filed to the whole of a declaration, a demur-
rer to a plea cannot be carried back to the declaration. Wilson v. Myrick, 34.
2. A demurrer to pleas may well be disregarded, after an issue of fact has been
made upon them. A party who goes to trial, without calling up his demur-
rer, cannot urge his own neglect to his advantage. Davis v. Ransom, 100.
3. Taking leave to amend a plea which has been demurred to, will be held as
equivalent to a confession of the demurrer. Haven v. Green, 252.
4. The plea of non est factum in covenants, will not prevent a demurrer to a plea
reaching the declaration. Reeves v. Forman, 313.
See CIRCUIT COURT, 11, 13. PRACTICE. PLEADING.
1. A landlord is limited in his recovery, by the amount stated in his distress war-
rant; he must show on trial that he is entitled to the rent specified, and no
more. Asay v. Sparr, 115.
1. A widow is dowable of wild or unimproved lands. Schnebly v. Schnebly, 116.
2. Except by agreement, dower must be apportioned out of each parcel of land,
and not in a part for the whole. Ibid. 116.
3. In assigning dower, commissioners should have reference to quantity and quali
ty, so that the portion of the widow shall be equal in its yearly value to one-
third of the yearly value of the tract from which it is assigned, taking into
estimation its capacity for production at the time. Ibid. 116.
4. Dower does not attach to land, where the husband has conveyed before he had
either a legal or equitable title. Woolley v. Magie, 526.
5. A, without any title in himself, conveyed land to B, for which he afterwards-
obtained a certificate of purchase from the land office, upon which a patent
was subsequently issued to A; Held, that the wife of A was not dowable of
this land. Ibid. 526.
1. A mortgagee may recover in ejectment against the mortgagor, or those claim-
ing under him, for an installment of the mortgage debt past due, without
notice to the party in possession to quit, before action brought. Carroll v.
Ballance, 9.
2. A lease of premises becomes merged in the fee, when they both unite in the
same person. Ibid. 9.
3. A mortgagee may proceed against the mortgagor by other methods than by
scire facias for installments past due; by sci. fa. he must wait until all are
due. Ibid. 9.
ENDORSEMENT-ENDORSER-ENDORSEE.
See GUARANTOR. PROMISSORY NOTE.
1. A party who goes to trial below without complaint, cannot in this court assign
for error that an accurate copy of the instrument sued on, or of an indorse-
ment, was not filed with the declaration. Chumasero v. Gilbert, 39.
2. A party who neglects to call up his demurrer to a declaration, and has a trial on
the count demurred to, cannot assign error on his own negligence. Gillilan v.
Nixon, 50.
3. The foundation of a motion for a continuance should be preserved in a bill of
exceptions, if error is to be assigned on refusing to grant it. Bishop Hill
Colony v. Edgerton, 54.
4. Sustaining a demurrer to a bill cannot be assigned for error, unless the bill is
dismissed. Knapp v. Marshall, 63.
5. It is not error if two are sued, and the judgment is against one, not to sue out
a sci. fa. to make all the defendants named, parties to the judgment instanter.
Johnson v. Buell, 66.
6. When substantial justice has been done, a judgment will not be reversed,
merely because proper instructions were refused. Schwarz v. Schwarz, 81.
7. An objection to the testifying by a witness, should appear in the bill of excep
tions; it cannot be stated for the first time in this court. Davis v. Ransom,
8. A party may reverse a judgment in his favor on error. Fuller v. Robb, 246.
9. Where a writ of error is made a supersedeas, it does not revive an injunction ;
for this purpose a special order is necessary. Blount v. Tomlin, 530.
See SUPREME COURT. WRIT OF ERROR.
See ADMINISTRATOR. PROBATE COUrt.
1. An attorney in fact who makes a conveyance, and all persons claiming under
him with notice, are estopped to deny the fact of his making the deed. Lee v.
Getty, 76.
2. If the deed by the attorney is of record, it is notice, and those taking from him
in his own name are estopped by the first conveyance. Ibid. 76.
1. An answer under oath must be disproved by two witnesses, or one witness with
strong corroborating circumstances. Myers v. Kinzie, 36.
2. The declarations of a grantor, after the execution of a deed, are inadmissible to
prejudice the grantee; so are the declarations of a vendor without deed, unless
the vendee is present, and assenting; and so are the declarations of an assign-
or, who has assigned for the benefit of his creditors, as against the assignees.
Ibid. 36.
3. Where the condition of a bond is, that the obligor shall deliver certain obliga-
tions, as collateral security, it does not authorize him or his sureties to prove
that he was amply able to pay the debt aliunde, in avoidance of an action on
the bond. Stratton v. Henderson, 68.
4. An exemplification of any record or any paper of record in the land office, is
primary evidence, and may be read whenever the original could be. Lee v.
Getty, 76.
5. The employment of an engineer to do service for a corporation, is proved, if it
appears by the testimony of the secretary of the company, and the action of
the board of directors, that he was recognized and consulted as such, and his
plans, etc., were adopted by the board. Moline Water Power, etc., v. Nichols,
6. Where it appears doubtful whether certain witnesses were or not interested in
the event of the suit, no objection having been made to their being sworn, and
the court instructed the jury that such evidence might be disregarded, there is
no error in the reception of their testimony. Ibid. 90.
7. In an action on the common counts for work and labor, it is not necessary that
the plaintiff, who charges for a year's salary, should prove a specific contract.
A variance between the bill of particulars and the evidence, will not defeat a
recovery-there is no material difference between a charge for a year's service
and a charge for a year's salary. Ibid. 90.
8. A chattel mortgage, which the court had declared void as to creditors, may be
offered in evidence as between the parties to it. Davis v. Ransom, 100.
9. An execution offered in evidence which appears by the bill of exceptions to have
been without a seal, was properly excluded. Ibid. 100.
10. Even if there should be a variance between the note described in the declaration
and that offered in evidence, it still might be offered in support of the common
counts. Gilmore v. Nowland, 200.
11. It requires a retainer or fee paid to constitute the relation of attorney and
client. De Wolf v. Strader, 225.
12. An attorney who is requested to prepare a deed or mortgage, no legal advice
being required, is not privileged, and may testify as to what comes to his
knowledge in connection with such a transaction. Ibid. 225.
13. A justice of the peace is a competent witness to prove his docket, and to
explain entries upon it, as also to identify the cause and parties. Haven v.
Green, 252.
14. A notice to counsel two days before trial, to produce a letter to be used as evi-
dence, which he knew would be wanted, is sufficient; if not produced, a copy
may be read. Warner v. Campbell, 282.
15. Where A, the owner of a distillery, contracted with B to furnish a certain
amount of slops to feed cattle; agreeing to deduct from the price, what B.
might expend in erecting pens for his cattle, A furnishing the lumber; changes
being afterwards desired in the plan of the pens, A consented thereto, but re-
fused to furnish any lumber, but agreed to make the deduction from the price
of the slops; in an action by C. against B for the pens, held that A was a
competent witness for C, because if interested, his interest was against the
party calling him. Held also, that parol evidence was admissible to prove the
agreement between A and B, which was in writing, C not being a party there-
to. Silsbury v. Blumb, 287.
16. A person to whom a plaintiff in replevin has given a note for money, with
which to purchase the property replevied, out of the proceeds of which the
note was to be paid, after the payment of the note, is a competent witness for
him. Gray v. Morey, 409.
17. A defendant in an execution under which replevied property was taken, who
has been discharged from the judgment against him, may be examined for the
defendant in replevin, without producing his release. Ibid. 409.
18. Parol evidence is admissible for the purpose of identifying the property actually
mortgaged. Myers v. Ladd, 415.
19. Where there are two descriptions of the same premises in a deed, one of which
is complete, and the other has something added which is subordinate and in
correct, the incorrect or subordinate part may be rejected as surplusage. Ibid
20. Where a plea of usury is interposed to an action on a note, the creditor a
the time the contract was made may be examined in support of the plea,
although he has assigned the note. The general rule disqualifying the assignor
of a note, does not apply when usury is pleaded. Harvey v. Ellithorpe, 418.
21. The credibility of the complaining witness in a bastardy case, is peculiarly
appropriate for the consideration of the jury. Wilson v. People, 434.
1. If a judgment creditor enters into an agreement to stay his execution, it becomes
dormant as to other parties, and he loses any lien made by a levy under it.
Ross v. Weber et al. 221.
2. An officer who should refuse to proceed upon a second execution, where the
first had been stayed by an agreement between the parties to it, would be lia-
ble for a false return. Ibid. 221.
1. In equity, the assets of a deceased and of insolvent partners, if there be partner-
ship and separate property, will be distributed by paying the firm debts out of
the proceeds of the joint estate, and the individual debts out of the separate
estate. The joint and individual debts should be kept distinct, and the assets
of the two estates marshaled accordingly. Joint creditors must first resort to
the joint fund, and the creditors of the individual partners to their separate
property; upon the inadequacy of either of these, then the joint or separate
estate may be applied, according to the exigency of the case. If there is
no joint fund, nor any solvent partner, joint creditors may participate equally
with a private creditor in the estate of a deceased partner. Should there be
a surplus of the joint fund, the creditor of an individual partner may resort to
that. Pahlman v. Graves, 405.
2. A creditor of a copartnership which had assigned for the benefit of creditors,
after the death of one of the firm, took a judgment against the survivors, and
execution thereon having been returned unsatisfied, filed his claim for probate
against the separate estate of the deceased partner, which was allowed. Held,
that the claim of the creditor was provided for in the assignment, and that he
must proceed against the joint before he can resort to the separate estate, and if
he desires an equitable adjustment of the joint and separate claims, he must
make the assignee a party to the proceeding. A return of nulla bona to the
execution, would not relieve him from this duty. Ibid. 405.
3. Where a copartnership fund is liable, the creditor of that fund should proceed
in equity against those controlling it, and subject that fund to his payment,
before he resorts to the separate property of the copartners. Ibid. 405.
4. The County Court has not equitable jurisdiction where third parties are to
be brought in, and copartnership, or other complicated and conflicting interests
are to be adjusted. The cases in 19th Ill. R., p. 349, and 21st Ill. R., p.
204, qualified and explained. Pahlman v. Graves, 405.
See ADMINISTRATOR. CHANCERY. CLAIM AND COLOR OF TITLE. MORT-
GAGE. PROBATE COURT. TAXES.
1. An express company will be liable for loss, where it appears that its agent
locked money entrusted to it in a safe, but took so little and such bad care of
the keys, that a burglar had easy access to them, and stole the keys and
money. Express Company v. Baldwin, 504.
2. If it appears that express companies do deliver packages before entry on the
delivery book, nevertheless there must be an actual delivery, or an offer to
delivery before they can be released from liability as common carriers. Ibid.
FAILURE OF CONSIDERATION.
See DEEDS. PROMISSORY NOTES.
See MORTGAGE. SCIRE FACIAS.
FRAUD-STATUTE OF FRAUDS.
1. To make a deed fraudulent, both parties must concur in the intent to commit a
wrong. Myers v. Kinzie, 36.
2. Where a credit to another is entered on the books of copartnership, to satisfy a
debt due from one of the copartners, leaving an excess due to the creditor of
the copartner, he may recover such excess from the firm, if the transaction
has been ratified by the copartners, without any writing, in compliance with
the statute of frauds. Corbin v. McChesney, 231.
3. If fraud and circumvention are used to procure the execution of a note, and the
payee is informed of it, it is void. It is otherwise in reference to fraud in the
consideration of the note. Easter v. Minard, 494.
4. If it appears that a suit on a note is brought in the name of a person who is not
the beneficial holder, the same defense can be made as if the suit were in the
name of the payee. Ibid. 494.
1. In garnishee proceedings it is advisable to enter the judgment against the gar-
nishee in favor of the defendant in the attachment suit. Gillilan v. Nixon, 50.
2. Where a debtor of one of two joint contractors is garnisheed and a judgment is
obtained against him, the party whose debtor has been garnisheed may make
his co-contractor contribute for his part of the debt satisfied by the garnish-
ment-although the debtor garnisheed has been granted time for the payment
of the judgment against him. Ibid. 50.
3. Money of a corporation which has been, in advance of its being earned, set
apart by its board of directors to the payment of interest on its bonds, secured
by mortgage or trust deed on its road and franchises, and to raise a sinking
fund for their redemption, is not subject to garnishee process issued by a judg
ment creditor of said corporation. G. & C. U. R. R. Co. v. Menzies, 121.
4. Where a corporation had given a mortgage or trust deed of all its property, tolls,
incomes, franchises, etc., to secure the principal and accruing interest on its
bonds, its revenues so pledged are not liable to a garnishee process by its judg
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