3. Where a declaration complains of A and B, partners, etc., the word partners is descriptive of the persons merely, and a plea that they were not partners, raises an immaterial issue to the averment in the declaration that they made and delivered their note to the plaintiff. Johnson v. Buell, 66.

4. In absence of express proof of a contract, one may be implied from circumstances. Schwarz v. Schwarz, 81.

5. Where a party defends against a claim for services, on the score of relationship, and that the services were compensated by paternal care, etc., he should not, by his pleading, claim a set-off for board, etc.; such charges imply that there was a contract between the parties. Ibid. 81.

6. A scire facias to foreclose a mortgage is not an action; and a plea of usury, or any other defense, cannot be averred against it; except to allege that the mortgage was void, and never a valid lien, or that it has been discharged or released. Carpenter v. Mooers, 102.

7. A special and not a general demurrer, is the proper mode of taking objection to a pleading that is double. Franey v. True, 184.

8. Pleas in abatement, motions to quash the summons, and other motions in the nature of pleas in abatement, must be interposed prior to matters in bar; and if not disposed of before matters in bar are interposed, they will be considered as waived. Gilmore v. Nowland, 200.

9. The general issue, with notice of special matter and special pleas, cannot be pleaded at the same time; and if both are filed, the pleas may be stricken out. Ibid. 200.

10. Taking leave to amend a plea demurred to, is a confession of the demurrer. Haven v. Green, 252.

11. A seal imports consideration, and a declaration upon a sealed bond need not aver anything. Evans v. Edwards, 279.

12. A declaration for slander, charging perjury, need not aver that the evidence given was material, as the statute makes such language actionable per se. If the testimony given was not material, it should be shown by way of defense. Wolbrecht v. Baumgarten, 291.

13. The plea of non est factum in an action of covenant, not being the general issue, a demurrer to pleas will extend to the declaration. Reeves v. Forman,

313.

14. In a declaration in case against a corporation for injuries sustained, the declaration should allege that the defendant was guilty of negligence, and that the plaintiff exercised proper care; and the proof should support the allegations. C. B. & Q. R. R. Co. v. Hazzard, 373.

15. In an action against a railroad corporation, under the statute, "for causing death by wrongful act, neglect or default," a declaration which does not aver, that the railroad causing the death was used in the State and county in which the action was brought, would be defective on demurrer, but is good after verdict. C. & R. I. R. R. Co. v. Morris, 400.

16. Before recovery under this statute, it must be averred and proved, that the deceased left a widow or next of kin, to whom the damages can be distributed. There may be persons isolated or unknown, who do not and would not afford any support to their relatives; in the case of the death of such, there would not be any next of kin sustaining a pecuniary loss. The damage is exclusively for a pecuniary loss, not as a solace. Ibid. 400.

17. Under the law merchant, where the maker of a bill or note has been discharged by the laches of the holder, and the latter sets up a subsequent promise to pay, the subsequent promise to pay need not be averred in the declaration, if the original contract, and all the essential facts that constitute liability are properly set out. Tobey v. Berly, 426.

18. A party amending a pleading should indicate the precise part of it amended and the place of its application, and not leave to the court to decide where the amendment should or should not be inserted. Bourland v. Sickles, 497.

19. A party suing upon a mutual and dependent covenant for a breach of it, must aver an offer to perform, or his declaration will be obnoxious to a demur Ibid. 497.

rer.

See SCIRE FACIAS.

PRACTICE.

1. When a plea of the general issue is filed to the entire declaration, a demurrer to a plea cannot reach the declaration. Wilson v. Myrick, 34.

2. 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.

3. 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.

4. It is sufficient for a clerk, on issuing process, to sign the initial of his christian name. Bishop Hill Colony v. Edgerton, 54.

5. 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. Ibid. 54.

6. A motion for a new trial can only be made at the term at which the verdict may be rendered. It is irregular to allow such a motion two years after verdict. Campbell v. Conover, 64.

7. A party may appear and move the court to quash an attachment, without submitting himself to its jurisdiction. Johnson v. Buell, 66.

8. Where a declaration complains of A and B, partners, etc., the word partners is descriptive of the persons merely, and the plea that they were not partners, raises an immaterial issue to the averment in the declaration that they made and delivered their note to the plaintiff. Ibid. 66.

9. 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. Ibid. 66.

10. If a copy of the instrument declared on in a declaration, is not filed ten days before court, the party may obtain a continuance, but nothing more. Stratton v. Henderson, 68.

11. That the copy of an instrument furnished, varies from that offered on the trial is not material; the copy is no part of the record. The Circuit Court has discretion to authorize a copy to be corrected. Ibid. 68.

12. A default precludes a party from raising the question as to the validity of his indorsement of the note sued on. Underhill v. Kirkpatrick, 84. 13. If the court inquires of counsel if he desires to address the jury, and counsel replies that he only wishes for time to prepare instructions, which is granted, and the instructions are refused, it is discretionary with the court, whether the counsel afterwards shall or not address the jury. Herrington v. Pouley, 94. 14. It is regular for the clerk to assess damages on overruling a demurrer. Campbell v. Gilman, 120.

15. Where a party neglects to file his printed abstracts and points, or any argument, the court may refuse to examine the record, and dismiss the cause. Butterworth v. Brown, 156.

16. If a party proceeds to the hearing of a cause in chancery without the answer of one of the respondents, it is his own fault; the oath of such a party being waived, his deposition may be taken by complainant, or his testimony orally, it appearing that he has not any interest in the case. Ibid. 156.

17. The practice of demurring to an answer is not to be tolerated. Stone v. Moore, 165.

18. An answer is in the nature of a plea, and should either deny the facts stated in the bill, or show some new matter in avoidance of the facts admitted. Conclusions of law should not be set up in an answer; any number of defenses may be set up by it, as a consequence of the same state of facts. Ibid. 165. 19. If an answer is objectionable, exceptions should be taken to it; if not, it should be set down for hearing. If obnoxious to exceptions, a further answer will be required, and if not filed in the time directed, the bill may be taken for con

fessed. If a supplemental answer is insufficient, which is to be filed at the costs of the delinquent party, he may be proceeded against for contempt. Stone v. Moore, 165.

20. If exceptions are not taken, and no replication is filed, the answer is taken as true, and is to be set for hearing on bill, answer and exhibits, without other evidence, unless it be matter of record, referred to in the answer. Ibid. 165. 21. An exception to testimony and the reasons for it should appear in a bill of exceptions. If objection is made to the entire testimony of a witness, and a part of it is proper, the exception will fail. Myers v. People, 173.

22. The copy of an instrument indorsed on a declaration is no part of it, and a bill of exceptions is requisite to inform the court in relation thereto. Franey v. True, 184.

23. A special and not a general demurrer, is the proper mode of taking objection to a pleading that is double. Ibid. 184.

24. In an action by an indorsee of a note, if the indorsement is correctly set out in the declaration, a copy of the name of the indorser need not be given with a copy of the instrument. Ibid. 184.

25. A party who is not in a condition to be forced to proceed, cannot force his adversary to do so. Smith v. Wilson, 186.

26. A court has not discretion at a term subsequent to the rendition of its judg ment, to set it aside, but it may amend in matters of form, after notice given. Ibid. 186.

27. A party is entitled to notice of a proceeding to reinstate a cause. Ibid. 186. 28. In this case the appellee below, on the dismissal of his cause in the Circuit Court, should have prayed an appeal, or sued out a writ of error. Ibid. 186. 29. Pleas in abatement, motions to quash the summons, and other motions in the nature of pleas in abatement, must be interposed prior to matters in bar; and if not disposed of before matters in bar are interposed, they will be considered as waived. Gilmore v. Nowland, 200.

30. The general issue, with notice of special matter and special pleas, cannot be pleaded at the same time; and if both are filed, the pleas may be stricken out. Ibid. 200.

31. Where a rule of the Circuit Court requires amendments to pleadings to be on a separate piece of paper, it is no objection to such an amendment that another has been made and noted on the margin of the declaration. And should such an amendment be filed without leave, it would not furnish a reason for striking the entire declaration from the files. Ibid. 200.

32. 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. Ibid. 200.

33. It is for the court to decide whether an instrument has a seal or not; but on a question as to the alteration of an instrument by affixing a seal, the jury may decide. Schwarz v. Herrenkind, 208.

34. A motion to quash a capias ad respondendum, does not affect the right of the plaintiff to proceed to a trial of the cause. Although it is a better practice to dispose of such motions before trial, it is not error not to do so. Phillips v. Kerr, 213.

35. The Superior Court of Chicago, after default, may hear evidence on the assessment of damages, and the same presumptions will support the finding of the court as would the finding of a jury. Ibid. 213.

36. A petition for a certiorari to bring up proceedings had before a justice of the peace, must stand on its merits; affidavits in support of or against it cannot be read. Davis v. Randall, 243.

37. If an applicant for a certiorari asserts that he was misled by the opposite party, he should state how and by what he was misled; and must show diligence, by an inspection of the justice's docket, or otherwise, and should not be chargeable with negligence. Ibid. 243.

38. In assumpsit a party must recover against all or none, unless some of the defendants make a personal defense, such as lunacy, infancy or bankruptcy. Fuller v. Robb, 246.

39. Where several are sued, and judgment is recovered against a part only, if the judgment is set aside, it should be set aside as to all. Ibid. 246.

40. 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.

41. A notice to counsel two days before trial, to produce a letter to be used as evidence, which he knew would be wanted, is sufficient; if not produced, a copy may be read. Warner v. Campbell, 282.

42. Although the court might set aside a third verdict, where there is not any evidence to sustain, or for a gross misdirection of the court, it will not do so unless in a very plain case. Wolbrecht v. Baumgarten, 291.

43. Where a case is submitted to arbitrators, under an order of court, if the matters referred should not be decided before the next term of the court, their powers do not expire with that term; but it is their duty to proceed subsequently, and discharge their duty by an award. Evans v. Hitchcock, 295.

44. Where a defendant abides by his demurrer to a declaration in assumpsit for goods sold, the court is left to assess the damages, which will be for the amount admitted by the demurrer, and interest. Herrington v. Stevens, 298. 45. The defendant upon the inquest cannot set up any other contract, or introduce a substantive defense; but may cross-examine witnesses, or make proof to reduce the damages, and if the inquest is taken in open court, may ask instructions. Ibid. 298.

46. The court has the discretion to refuse a plea, where a party has chosen to stand by a demurrer. Ibid. 298.

47. 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.

48. 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 surprise. Notice of any particular defense to be presented need not be given. Ibid. 301.

49. A written account need not be filed by either party, the whole resting in proof where the justice had jurisdiction. Ibid. 301.

50. 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.

51. The plea of non est factum in an action of covenant not being the general issue, a demurrer to pleas will extend to the declaration. Reeves v. Forman, 313. 52. It is for the jury to decide whether an order on another person was taken for collection merely, or as payment, when the amount thereof should be collected. Stephens v. Thornton, 323.

53. Whether an order was accepted in satisfaction of a debt, or in discharge of a demand against the party giving it, should be left to the jury. Unless the party was to be discharged, no new consideration was necessary to make the promise to pay the order binding. Ibid. 323.

54. A service of process which states that the party served was informed of the contents of the writ, and that he accepted service, is insufficient. Maher v. Bull, 348.

55. An acknowledgment of service in writing upon the process, might estop the party from denying the sufficiency of the service. Ibid. 348.

56. After an appearance and trial, a defendant cannot object to any defect in, or even a want of a writ or attachment bond. Cruikshank v. Cogswell, 366.

57. During the progress of a trial, a new bond in replevin may be substituted for the original, with a change of sureties, for the purpose of making a witness of one of the sureties on the first bond. Gray v. Morey, 509.

58. 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. 59. Litigants absent themselves from court at their peril, and if a case on trial is suspended for any cause, the court may proceed with the docket, and dispose of other cases. Tullis v. Henderson, 442.

60. It is not improper, with consent of parties, to send a jury to examine a locality, and during the absence to proceed with other cases on the docket, as if such jury was not empanneled. Ibid. 442.

61. A judge who takes a case under advisement, cannot recall the witnesses before him and examine them in the absence of counsel. Notice of an intention to recall the witnesses should be given, so that the party may be present and cross-examine if he chooses. Hurd v. Lill, 496.

62. A party amending a pleading should indicate the precise part of it amended and the place of its application, and not leave to the court to decide where the amendment should or should not be inserted. Bourland v. Sickles, 497. 63. A party suing upon a mutual and dependent covenant for a breach of it, must aver an offer to perform, or his declaration will be obnoxious to a demurrer. Ibid. 497.

64. A proceeding to foreclose a mortgage by scire facias is at law, and is governed by the practice of courts of law, and not of courts of equity. No persons but the mortgagor, or, in case of his death, his executor or administrator, are required to be made parties to such a proceeding. The assignee in bankruptcy of the mortgagor is not a necessary party, aliter where a bill in chancery is filed to foreclose a mortgage. Assignees in bankruptcy, as well as subsequent purchasers and incumbrancers, are required to take notice of proceedings by scire facias, and to protect their own rights. Chickering v. Failes, 507. 65. 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.

66. There must be ten days' notice, in writing, with proof, before the court will grant a rule to join in error, of the intention to revive a suit by the representative of a deceased plaintiff in error. If the party defending is a non-resident, there must be publication, as in other cases. West v. Biggs, 533.

No matter in what way a prisoner appears before a judge of the Circuit Court, his offense may be inquired into, and a recognizance given by himself and sureties will be obligatory. Mix v. People, 32.

PROBATE COURT.

1. A proceeding by an administrator to sell real estate is not a chancery proceeding. Moline Water Power Co. v. Webster, 233.

2. An allowance by the probate court of a claim against an estate is not conclusive against an heir in this proceeding, and he may contest its validity. Ibid. 233.

3. Equitable claims may be allowed by the probate court, and it would seem that real estate may be sold for their payment. Ibid. 233.

4. Debts against a copartnership of which a decedent was a member, the partnership assets being exhausted, may become equitable claims against his estate, but not to be paid until after his individual debts have been liquidated. Ibid.

233.

5. An order for the sale of the real estate of a decedent must specify whether it shall be sold for cash or on a credit, and on what credit. Ibid. 233.