2. It is no answer to a scire facias upon a recognizance, to say that the person for whose appearance the recognizance was given, was arrested under a capias in another county. The bail has ample power at all times, anywhere in the State, to compel the appearance of his principal, according to the exigency of the obligation assumed. Brown v. The People, 28. 3. It is no answer to the scire facias, upon a recognizance, to say that the prisoner was in confinement in another county, upon a different charge. The law provides a way for producing a prisoner so situated. Mix v. People, 32. 4. It is not error if two are sued, and judgment is against one, not to sue out a sci. fa. instanter, to make the other a party. Johnson v. Buell, 66. 5. 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, 162. 6. It is error to pronounce judgment on a scire facias on a recognizance, when there is a plea unanswered, averring that the cognizor was dead at the time he should have been produced. Mix v. People, 480. 7. Where there is nothing in the record indicating the time when a writ of scire facias was delivered to the officer, the legal presumption is, that it was delivered on its being issued. The officer is not required to indorse upon the writ the date of its delivery to him. Chickering v. Failes, 507. 8. An officer's return of "not found" is sufficient, and it need not appear by the return that he was unable to make service of the writ during the whole time it was in his hands. Ibid. 507. 9. When a writ is served, the time when should be distinctly stated by the officer, so that it may appear whether the service was ten days before the return day. The return may be dated after the return day. Ibid. 507. 10. 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. Ibid. 507. SCHOOL TAX. See TAX. SEAL. A seal imports consideration, and a declaration upon a sealed bond need not aver any other. Evans v. Edwards, 279. See CIRCUIT COURT, 10. SERVICE OF PROCESS. 1 If a summons issues against "Isaac Underhill,” without any other addition or description, a return of service on "Isaac Underhill" will be good. Underhill v. Kirkpatrick, 84. 2 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. 3. An acknowledgment of service in writing upon the process, might estop the party from denying the sufficiency of the service. Ibid. 348. 4. Where there is nothing in the record indicating the time when a writ of scire facias was delivered to the officer, the legal presumption is, that it was deliv ered on its being issued. The officer is not required to indorse upon the writ the date of its delivery to him. Chickering v. Failes, 507. 5. An officer's return of "not found" is sufficient, and it need not appear by the return that he was unable to make service of the writ during the whole time it was in his hands. Ibid. 507. distinctly stated by the officer, ten days before the return day. Ibid. 507. 6. When a writ is served, the time when should be so that it may appear whether the service was The return may be dated after the return day. 7. An acknowledgment of service on the back of a writ of summons will not authorize a decree by default. A summons and return thereon are necessary to give jurisdiction. Ibid. 507. 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. STATUTES CONSTRUED. 1. The act which authorizes a recovery before a justice of the peace, from a constable, of three times the value of property levied upon by him, if exempted from levy, is still in force. Campbell v. Conover, 64. 2. In Peoria county, a justice of the peace has jurisdiction to try such a case, where three times the value of the property levied upon does not exceed three hundred dollars; in other counties the jurisdiction is limited to one hundred dollars. Ibid. 64. 3 The Common Council of the city of Chicago had power to appoint one or more collectors, in addition to the one elected by the people. Wilder v. City of Chicago, 182. 4. The collector was required to pay the money collected by him into the city treasury, and he could not retain any part of it for any purpose. Ibid. 182. 5. An act which provides for a condemnation of land by an application to the senior county commissioner, in the absence of the circuit judge, may be executed by the judges of the County Court, these latter officers being understood as having taken the place of the county commissioner. Shute v. C. & M. R. R. Co. 436. 6. Before the county judge can be authorized to act, it must appear that the circuit judge is absent from the county. Ibid. 436. 7. If provision is not made by the act for paying the compensation allowed for the land, the party may be restrained from occupying by injunction, until payment is made, but the condemnation will not be invalid. Ibid. 436. 8 An assignee in bankruptcy succeeds to the interest of the bankrupt, and while the court appointing the assignee retains jurisdiction over him, it does not retain jurisdiction over lands, the title to which is transferred by its decree. Chickering v. Failes, 507. 9 An application in another State by a mortgagor for the benefit of the bankrupt law, was not a proceeding having the effect of lis pendens as to parties having an interest in the lands mortgaged. Ibid. 507. 10. The application was not one for the sale of the lands or to affect the interest of mortgagees, and it did not hinder them from enforcing their rights. The decree in bankruptcy operated as a transfer of the bankrupt's interest, as if it had been transferred by deed, and did not affect the interests of other parties. Chickering v. Failès, 507. See ASSESSMENTS. CLAIM AND COLOR OF TITLE. TAXES. SUPREME COURT. 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 indorsement, 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 in chancery is not a final judgment. If the party wishes to bring his case to the Supreme Court, he should have his bill dismissed. Knapp v. Marshall, 63. 5. It is not error, when two are sued, and judgment is against one, if a sci. fa. is not prayed instanter to make the other a party. 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. 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. Moline Water Power, etc. v. Nichols, 90. 8. An objection to the testifying by a witness, should appear in the bill of exceptions; it cannot be stated for the first time in this court. Davis v. Ransom, 100. 9. 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 demurrer, cannot urge his own neglect to his advantage. Ibid. 100. 10. 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. 11. An affidavit filed in the progress of a cause to be considered by this court, should be in a bill of exceptions. Smith v. Wilson, 186. 12. A bill of exceptions need not show that a note was formally admitted in evidence by the court, and formally read to the jury, if it appears that the note was in evidence and the jury acted upon it. Schwarz v. Herrenkind, 208. 13. A party may reverse a judgment in his favor on error. Fuller v. Robb, 246. 14. 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. 15. The Supreme Court will examine the whole record, the facts as well as the law, and reverse or affirm a case as justice shall require, although a jury may have passed upon it. A jury should not show by verdict the appearance of being governed by passion, prejudice or unworthy motives. C. B. § Q. R. R. Co. v. Hazzard, 373. 16. 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. 17. 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. See CITY OF CHICAGO. ERROR. PRACTICE. SUPerior Court. SUPERSEDEAS. 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. SURETIES. See GUARANTOR. GUARANTEE. PROMISSORY NOTE. TAXES-TAX TITLE. 1. While personal property generally follows the residence of the owner, and is there taxable, yet if permanently located elsewhere, it may be taxed where so located. Mills v. Thornton, 300. 2. A party who complains of a school tax as levied in a certain district, must show that the property was not taxable in such district. Ibid. 300. 3. An assessment for opening a street in the city of Peoria is not a tax, nor is such an assessment repugnant to the provisions of the constitution relative to taxation. City of Peoria v. Kidder, 351. 4. The mode pointed out for raising assessments by the act incorporating the city, to compensate for opening streets, is proper and equitable. Ibid. 351. 5. A party who has redress at law, and neglects his remedy, cannot resort to chancery. Ibid. 351. 6. The city of Peoria has the right, under its charter, to extend streets, and make assessments, and a court of equity will not interfere with its authority. Ibid. 351. 7. A part of a building erected as a church, which is rented for other than religious purposes, is taxable, notwithstanding the rents are to be applied, after payment of a mortgage, to provide other places of worship. Methodist Church v. City of Chicago, 482. 8. The intent of the law exempting buildings from taxation which are erected for religious worship is, that such buildings shall be used for sacred and not for secular purposes. Ibid. 482. 9. The part of a building used exclusively for religious purposes may be exempt from taxation, and the part not so used may be taxed. Ibid. 482. 10. The payment of taxes by a trustee, tenant or mortgagee, while their relations are not adverse to the cestui que trust, landlord or mortgagor, is not such a payment as is required by the statute of limitations. Chickering v. Failes, 507. 11. Persons holding these relations must assume an adverse attitude in regard to the property, and the taxes paid by them must be paid in such attitude to come within the meaning of that statute. After such adverse attitude has been assumed, all acts done by the person assuming it are by law presumed to be done in furtherance of such new attitude. Ibid. 507. 12. A decree of foreclosure, which is insufficient to bar an equity of redemption, is nevertheless sufficient claim and color of title under the statute, where it is not procured by fraud or in bad faith. Ibid. 507. 13. Bad faith, within the meaning of the statute, cannot be established by showing notice of the claims of other persons to the property, or by showing a knowledge of legal defects, which prevent the color of title from being an absolute one. Ibid. 507. 14. Where there is no fraud, and no proof showing that the color of title was acquired in bad faith, the court will hold that it was made in good faith. Ibid. 507. 15. The same requisites are required to establish claim and color of title under the ninth as under the eighth section of the statute. Ibid. 507. 16. To render the payment of taxes within the statute, they must be paid by the person having the claim and color of title. Ibid. 507. 17. A payment by executors is not sufficient, without it appears that the will under which they act vests in them some title, or requires them to pay the taxes. Ibid. 507. 18. In order to take the benefit of the limitation under claim and color of title, the payment of taxes must be by the person who holds the color of title. If the taxes for any year of the seven are paid by one in whom the title is not existing, the limitation fails. Fell v. Cessford, 522. See ASSESSMENT. CHANCERY. CLAIM AND Color of TITLE. TENDER OF MONEY. Where a vendor admits he had not, nor has any title to land he has contracted to convey, a tender of money is an unnecessary preliminary by a purchaser before bringing an action to recover money paid on such contract. Smith v. Lamb, 396. TENANT. See LANDLORD AND TENANT. TITLE TO LAND. A had a judgment against B; C held a deed of trust upon certain lands from B; A sold the lands on his judgment. More than twelve months after the sale, C had a transfer from A of his certificate of purchase; D, being a judgment créditor of B, within fifteen months from the sale on the execution of A, redeemed the land and took the sheriff's deed. C filed his bill to remove the cloud cast upon his title by the deed held by D. Held, that C had not any title to the land that could be clouded, and that D held the land without any reference to the trust deed of C, or the assignment to him by A. Jones v. Thompson, 177. See CHANCERY. CLAIM AND COLOR OF TITLE. TAXES. TOWNS AND CITIES. 1. The authorities of a city have the undoubted right to alter the grades of streets at their discretion, and to compel the owners of property to conform thereto; and if this is done with reasonable care and diligence, no liability arises from their acts. Roberts v. City of Chicago, 249. 2. Courts will not inquire whether the grade adopted is the best or not. Ibid. 249. 3. If the authorities should act wrongfully, with a bad intent, damages might be recovered. Ibid. 249. 4. If a city is authorized to construct a highway in a particular manner, but does it in a different one, it will be answerable in damages to a party sustaining injury upon it, as much as though it had not exceeded or deviated from its authority. City of Pekin v. Newell, 320. 5. The Common Pleas Court of the city of Aurora, has not jurisdiction to send original process beyond the city limits, nor could the power be constitutionally granted. It is otherwise as to final process. Covill v. Phy, 432. 6. A laborer employed by the city can recover his wages, although the officer, whose appropriate business it was to direct the labor, disobeyed his superiors by not suspending work. City of Chicago v. Roth, 456. See ACTION. ASSESSMENTS. CITY OF CHICAGO. TRESPASS. See ACTION, 5, 6. ATTACHMENT, 1. STATUTES CONstrued, 1, 2 |