ment creditors, after the execution by it, of such mortgage or trust deed.
G. & C. U. R. R. Co. v. Menzies, 121.
5. A judgment debtor may show in the Circuit Court, on an appeal taken from the
judgment of a justice of the peace, that he has satisfied such judgment, by re-
sponding to garnishee process served on him in favor of the creditors of his
judgment creditor. Minard v. Lawler, 301.
6. A defendant, on appeal from a justice's judgment, can present any matter of
defense he may have, which did not exist at the rendition of the judgment by
the justice. In such case, the Circuit Court should protect the party from sur-
prise. Notice of any particular defense to be presented need not be given.
Ibid. 301.
7. A written account need not be filed by either party, the whole resting in proof,
where the justice had jurisdiction. İbid. 301.
8. On appeal from the judgment of a justice of the peace, the trial being de novo,
anything may be proven which shows that the plaintiff has no existing cause
of action. Ibid. 301.
9. A person who acknowledges he is indebted at the time of the service of gar-
nishee process upon him, and contracts to aid the attaching creditors to collect
their debt, is not relieved because some person does an unauthorized act, and
gives up property, which fixed his indebtedness, to the defendant in the attach-
ment. Farrell v. Pearson, 463.
10. In garnishee proceedings, the judgment should be in favor of the debtor who
is the creditor of the party garnisheed. Ibid. 463.
See ATTACHMENT. PRACTICE.
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 assignor,
who has assigned for the benefit of his creditors, as against the assignees.
Myers v. Kinzie, 36.
1. If a guarantee is placed upon a note at the time of its execution, and so is a part
of the original transaction, no new consideration is necessary to be averred in
support of it; but when it is entered into subsequently, it is otherwise. Joslyn
v. Collinson, 61.
2. Any operative agreement founded upon a valuable consideration, by which the
holder of a note agrees to give time to the maker, without the assent of the in-
dorsers or sureties, will release them, and this whether before or after the ma-
turity of the note. Warner v. Campbell, 283.
3. The acceptance of interest in advance constitutes such an agreement as will dis-
charge a surety. Ibid. 283.
4. A banker held two notes made by A, one of which was signed by B, as surety,
one of which was due, and the other to fall due shortly; A called and asked to
pay his note due, and the teller of the bank gave him the second note not then
matured, and erased the indorsement of the banker; the payee of this note,
five months afterwards, obtained it and brought his action against the surety;
Held, that after this lapse of time the surety had a right to suppose the note
had been paid, and may have been injured by the delay, and the insolvency of
the other maker, and was not liable. Brown v. Haggerty, 489.
See PROMISSORY NOTE. SURETIES.
A petition for a writ of habeas corpus should set out the evidence given to support
the commitment. The court will otherwise presume in favor of the conduct
of the committing officer. Ex parte Klepper, 532.
1. A sale under a trust deed executed prior to the passage of the law of 1857, does
not come within the provisions of the Homestead Exemption Act. Ely v.
Eastwood, 107.
2. Prior to the amendatory act of 1857, the homestead might be sold under a power
of sale in a mortgage. Smith v. Marc, 150.
3. The homestead is protected from a forced sale by judicial process, but not from
any other kind of sale. A formal release or waiver is necessary to subject it
to a forced sale. Ibid. 150.
A party indicted for an assault with an intent to commit murder, may be convicted
of an assault with a deadly weapon with intent to inflict a bodily injury, the
jury finding that the circumstances of the assault showed an abandoned and
malignant heart. Beckwith v. People, 500.
See GUARANTOR. PROMISSORY NOTE.
1. A temporary injunction restraining the payment of a note by the makers and
guarantor, is no bar to a recovery upon the note. Campbell v. Gilman, 120.
2. Where a petition by an administrator for the sale of real estate, states enough
to require the court to act, its orders and decisions are binding until they are
reversed; they cannot be attacked collaterally. Iverson v. Loberg, 179.
3. Where a writ of error is made a supersedas, it does not revive an injunction;
for this purpose a special order is necessary. Blount v. Tomlin, 530.
1. A voluntary deed of assignment for the benefit of creditors, containing author-
ity to the assignee, to sell and dispose of the property with all convenient
diligence at public or private sale, as he may deem most beneficial to the in-
terests of the creditors, and with all reasonable dispatch to collect the debts
assigned, is not therefore fraudulent and void as to creditors. Sackett v.
Mansfield, 21.
2. A voluntary assignment is not vitiated because it delays creditors; it must ap-
pear to have been collusively designed to do so, and the intent is a question of
fact. The good or bad faith of the transaction stamps its character. Ibid. 21.
3. Wherever the law may imply a discretion, a discretion may be given in the
assignment. Sackett v. Mansfield, 21.
4. Where personal property is assigned, and passes at once into the hands of the
assignee, the deeds of assignment need not be recorded. Myers v. Kinzie, 36.
5. To make a deed fraudulent, both parties must concur in the intent to commit
the wrong. Ibid. 36.
6. An assignment for the benefit of creditors, although it may delay them, does
not therefore contravene the statute of frauds. Ibid. 36.
7. The declarations of an assignor for the benefit of creditors, are inadmissible to
predjudice the grantee. Ibid. 36.
1. Where substantial justice has been done, a judgment will not be reversed, be-
cause proper instructions were refused. Schwarz v. Schwarz, 81.
2. An instruction which states what acts a party must do before he can rescind a
contract is erroneous; it should state the law of the case, leaving the facts to
the jury. Gehr v. Hagerman, 438.
1. Where the preliminary notice and proofs under a policy of insurance, when pre-
sented to the representative of an insurance company, are received without ob-
jection, and remain in his possession for several weeks, without notifying the
insured that a formal defect will be availed of, it will be held that such objec-
tions have been waived by the insurers. Great Western Ins. Co. v. Staaden, 360.
2. If the certificate required from the nearest notary is given to C. Staaden when
the policy is to Nicholas Staaden, it will be fatal unless the mistake shall be
cured by proper averments. Ibid. 360.
3. The want of a seal to such a certificate will probably be cured by a verdict.
Ibid. 360.
1. Where a note is executed in Illinois payable in New York, it is proper to allow
six per cent. interest in the judgment, without an averment as to what interest
is allowable in New York. Chumasero v. Gilbert, 39.
2. Interest may be recovered upon a sum agreed upon as due. Bishop Hill Colony
v. Edgerton, 54.
3. If there is no design to conceal usury, ten per cent. or a greater sum may be
agreed upon as interest, for a delay in the payment of money, though no spe-
cific time for forbearance is agreed upon. Ibid. 54.
4. If the affidavit for a capias states a sum due with interest, the interest may be
added in the judgment. Phillips v. Kerr, 213.
See PRACTICE. PROMISSORY NOTE. USURY.
1. Where a note is executed in Illinois payable in New York, it is proper to allow
six per cent. interest in the judgment, without an averment as to what interest
is allowable in New York. Chumasero v. Gilbert, 39.
2. 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.
3. A judgment draws interest with it, whether it is so expressed or not; any excess
over six per cent. included as principal in a judgment, may be recovered in
equity. Dooley v. Stipp, 86.
4. It is regular for the clerk to assess damages on overruling a demurrer. Camp-
bell v. Gilman, 120.
5. If the affidavit for the capias states a sum due with interest, the interest may
be added in the judgment. Phillips v. Kerr, 213.
See GARNISHEE, 10. INTEREST, 1, 2, 3.
1. Although a juror states he has not formed and expressed any opinion of the
guilt or innocence of the accused, has no bias or prejudice, and can give him
a fair trial, yet if he declares that he has read a published statement of a
house-breaking, and that if accused was one of those named in the publication,
he has an opinion of his guilt or innocence, not based upon any hypothesis of
the truth of the publication, he is disqualified. Gray v. People, 344.
2. A prisoner ought not to be forced to encounter a pre-existing opinion, deliber-
ately formed, which the juror believes to be true, and which the prisoner would
be obliged to overcome. Ibid. 344.
3. An affirmative plea throws the burden of proof on the defendant, and gives him
the right to open and conclude to the jury. Harvey v. Ellithorpe, 418.
1. A party may appear and move to
to the jurisdiction of the court.
quash an attachment and not submit himself
Johnson v. Buell, 66.
2. An acknowledgment of service on the back of a writ of summons will not au-
thorize a decree by default. A summons and return thereon are necessary to
give jurisdiction. Chickering v. Failes, 507.
See CIRCUIT COURT. JUSTICES OF THE PEACE.
1. In proceedings before a justice of the peace, and on appeal therefrom, the party
must, if he deny the execution of any instrument in writing, whether sealed
or not, upon which an action has been brought, or which shall be offered in
defense or set-off, do so by affidavit. Whether the instrument offered, and on
which the action is brought, be the original or not, if the execution of it is not
denied, it is evidence. Griswold v. Trustees, etc. 41.
2. Both parties may appeal from the decision of a justice; and if only one party
appeals, he may dismiss his appeal against the wish of the other. Bacon v.
Lawrence, 53.
3. 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.
4. A judgment debtor may show in the Circuit Court, on an appeal taken from
the judgment of a justice of the peace, that he has satisfied such judgment, by
responding to garnishee process served on him in favor of the creditors of his
judgment creditor. Minard v Lawler, 301.
5. A defendant, on appeal from a justice's judgment, can present any matter of
defense he may have, which did not exist at the rendition of the judgment by
the justice. In such case, the Circuit Court should protect the party from sur-
prise. Notice of any particular defense to be presented need not be given.
Ibid. 301.
6. A written account need not be filed by either party, the whole resting in proof,
where the justice had jurisdiction. Ibid. 301.
7. On appeal from the judgment of a justice of the peace, the trial being de novo,
anything may be proven which shows that the plaintiff has no existing cause
of action. Ibid. 301.
8. A justice of the peace, who acts at the instance of the city of Chicago, not de-
signated as a police magistrate, may recover from the city fees earned by him
in his official capacity. Such fees earned by a member of the council, do not
come within the prohibition of the charter, forbidding aldermen from receiving
compensation for their services. De Wolf v. City of Chicago, 443.
See ATTACHMENT, 1. CIRCUIT COURT. CITY OF CHICAGO. OFFICER, 1.
1. A lease is merged in the fee, when they unite in the same person. Carroll v.
Ballance, 9.
2. 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.
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, 221.
See CHANCERY. EXECUTION. LIEN. TROVER.
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.
See MECHANICS' LIEN. MORTGAGE.
See CHANCERY. CLAIM AND COLOR OF TITLE MECHANICS' LIEN.
1. It is not required that a crime shall have been committed before probable cause
for an arrest can exist; facts may exist which will create a belief of crime,
when the quo animo with which the act was done will change its character.
Ross v. Innis, 259.
2. Where a party consults with competent legal counsel in good faith, to ascertain
what course to pursue in reference to acts done by another, and such counsel,
after proper deliberation and examination into the facts, advises an arrest for
a criminal offense, the party causing the arrest should not be held to respond
in damages, for want of probable cause for his action in the premises. Ibid.
1. An acknowledgment by a wife to convey the fee of her separate estate, will be
sufficient, although it contains all that is required for that purpose, as also
all that is required to release her dower. Redundancy does not vitiate an
acknowledgment. Chester v. Rumsey, 97.
|