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ACTIONS AND DEFENSES.-Continued.

when Appellate Court's finding of facts precludes a recor-

ery from city for breaking of sidewalk while plaintiff was
moving a heavy iron safe across it..........

249
Statute of Frauds is no defense to executed contract... 283
plea not responsive to the allegations of the declaration is
open to demurrer. .....

283
what facts do not preclude recovery by injured servant... 328
contributory negligence of miner is no defense to action

against mine owner for willful violation of statute .... 333
when more than $1000 is involved in an action ex contractu,
though the ad damnum is for $1000, only.......

339
when contractor may sue on common counts though he has
not obtained the architect's certificate....

339
defense of adequate remedy at law must be raised below.. 430
right of maker of assigned note to set off demands against
the payee....

... 460
maker of note may set off note of payee obtained by him
for less than its face value.

... 460
plaintiff's motion to dismiss suit on note is properly denied
where defendant has filed plea of set-off.....

... 460
equity will refuse its aid to either party to a contract to
compromise a criminal offense except in some cases where
he parties are not in pari delicto ....

... 546
what must be shown to justify equity in lending its aid to
the less guilty party to an illegal contract.

546
when conveyances made as security for money borrowed
to settle defalcation will be enforced....

546
when refusal to direct a verdict for defendant is proper in

action against railroad company for damage to land from

overflow of water from ditch on right of way.. ... 571
when laches is a good defense to bill to set aside deed for
non-delivery......

... 594
when bill to enjoin a suit on appeal bond will not lie. 617
in an action at law a release of damages cannot be im-

peached for fraud not inhering in its execution but which
only goes to the consideration...

... 631
in an action on the case, a release executed after issue

joined may be given in evidence under the general issue. 632

ADMINISTRATION.- See EXECUTORS AND ADMINISTRA-
TORS.

ADVERSE POSSESSION.

one entering into possession of a street by lease from city

cannot claim his possession is adverse because of city's
want of power to make the lease....

320

AFFIDAVITS.

PAGE.
an affidavit for continuance for absence of witness should
show due diligence in issuing a subpoena.....

176
when affidavit for a continuance for absence of a witness
shows that his testimony is immaterial.....

176

AMENDMENTS.

nunc pro tunc order cannot be made to supply a failure to

make an order, but only to supply some omission in the
record of an order already made.......

456
what a sufficient memorandum to permit the entry of an
order nunc pro tunc. ......

485
when order of court allowing an amendment of a demurrer

is of itself an amendment.......
if a decree is reversed and the cause remanded generally,

the trial court may allow amendments to the bill and
hear additional evidence. ...

.... 516
court may, after term at which condemnation judgment

was rendered, make an order fixing the time for taking
property.........

579

... 485

APPEALS AND ERRORS.

party has no right to complain of error in opponent's in-
struction when a like error appears in his own ...

10
what will estop a party to complain that the proof is not
within the allegations of the declaration.....

10
what does not render special interrogatories prepared by
the court erroneous.....

11
when special interrogatory is properly refused.....

11
in action by miner for master's willful violation of statute,

an instruction may be given stating general duties of

mine managers in the language of the statute ..... 41
when appellant cannot complain of error in counting bal-

lots not bearing initials of any judge of election.... 59
assignments of error upon the facts are not open to review

in the Supreme Court on an appeal from the Appellate

Court in a suit at law ...
instructions must be considered as one charge in determin-
ing whether error in instruction is harmful .

76
all given instructions must appear in the abstract of rec-

ord in order to authorize consideration of alleged error
in giving them......

79
when Appellate Court has no power to dismiss appeal of
its own motion, for defects in appeal bond....

101
objections to appeal bond are waived by joinder in error.. 101
in absence of certificate of importance Supreme Court can

not hear appeal in garnishment unless it appears from

the record that amount involved is at least $1000........ 157
test as to amount involved in garnishment case..

157

76

.... 369

APPEALS AND ERRORS.—Continued.

PAGE.
when pleadings must be resorted to to determine amount
involved in garnishment appeal......

.... 157
affidavit filed in pursuance of section 1 of Garnishment act

may be regarded as a pleading in determining amount

involved under section 8 of Appellate Court act......... 157
admission of incompetent evidence in a criminal case can

not be assigned as error if the accused testified to the
same matter in his own behalf.......

170
what should be embraced in Appellate Court's finding of
facts on reversing without remanding....

... 197
what not such a finding of ultimate facts as is required to
be recited by section 88 of the Practice act.....

197
party cannot avail of error committed at his instance .. 239
party cannot complain of court's modification of his spe-

cial interrogatories which should have been refused.... 239
when proper for plaintiff in personal injury case to state,

on re-direct examination, that defendant's offer to put
him to work was upon condition that he sign a release.. 328
when judgment of Appellate Court is conclusive ..... 333
when more than $1000 is involved in action ex contractu al-
though the ad damnum is for $1000, only.....

339
error can only be assigned upon some ruling of the court

or some refusal or failure to rule.........
when instruction concerning damages is not erroneous.... 369
a franchise is involved in quo warranto proceedings where

the controversy is as to the legality of the organization

of a village and its right to exercise municipal powers.. 377
Appellate Court should not dismiss appeal, of its own mo-
tion, for an irregularity in the bond.......

393
in chancery cases the taxing of costs is ordinarily in the

discretion of the court, and its action will not be dis-

turbed, on appeal, unless an abuse of discretion is shown. 398
certificate of importance must be obtained and an appeal
must be allowed within the time fixed by law.......

456
provision for obtaining certificate of importance does not
extend time allowed for taking appeal.......

.... 456
error in sustaining a demurrer to replication is harmless,

where the issue raised by the replication is otherwise

raised and the plaintiff given the benefit thereof........ 461
it is error for the judge who has heard the evidence in a

criminal case to allow another judge to hear the argu-

ments, give instructions and receive the verdict...... 493
facts under which the question of the degree of danger at-

tending performance of work is properly left to the jury. 509
whether the operation of machinery with a twisted belt

is dangerous is not a matter of such common knowledge
that it is error to hear expert testimony on the subject. 509

APPEALS AND ERRORS.-Continued.

PAGE.
special interrogatories are properly refused which do not

relate to the ultimate facts or which assume an eviden-
tiary fact to be proven...

509
insertion of words “intentionally” and “corruptly” before

word “willfully,” in instruction concerning right of jury

to reject testimony of false witness, is not improper .... 514
party cannot, by instruction, limit the purpose for which

excluded evidence was offered, so as to render the court's
ruling in excluding it erroneous......

... 521
question to be determined on appeal in will case where the

jury were instructed to find for the defendants.... 528
if a decree is reversed and the cause remanded generally,

the trial court may allow amendments to the bill and
hear additional evidence....

546
Supreme Court does not weigh the evidence in reviewing

action of trial court on peremptory instruction.......... 571
when refusal to direct a verdict for defendant is proper in

action against a railroad company for damage to land

from overflow of water from ditch on right of way.... 571
when testimony offered to cure insufficient description of
improvement is properly rejected.......

576
when damages may be allowed by Appellate Court upon
ground that appeal is prosecuted for delay...

• 581
Appellate Court's finding of facts construed..

631
when the Appellate Court may enter judgment without re-
manding the cause....

631

ARCHITECTS’ CERTIFICATES.-See BUILDING CONTRACTS.

ASSAULT.

the actions of the people surrounding accused at time of

an alleged assault with intent to murder, and their dec-

larations then made, are part of the res gesta..... 176
what a proper question on cross-examining a prosecuting

witness in trial for assault with intent to murder........ 176

ASSESSMENT FOR TAXATION.-See TAXES.

ASSIGNMENT.

liability of assignor of stock for unpaid balance, to pay the
debts of the corporation......

382
right of maker of assigned note to set off demands against
the payee......

... 460
assignee of unendorsed note should give notice to maker

to protect himself against a payment or after-acquired
cross-demands against the payee ..

460
maker of a note may set off note of payee obtained by him
for less than its face value.....

... 460

ASSUMED RISK.-See MASTER AND SERVANT.

BAILMENTS.

PAGE.
public warehouse defined—what does not make a mill, gran-
ary or store a public warehouse....

... 270
liability of mill owner who receives wheat for storage ... 270
effect where the mill owner is authorized to mix and grind

stored wheat, in case of loss of mill by fire. ... ... 270
liability of pledgee of a note who accepts another note in
payment of the one in pledge...

... 385

BALLOTS.

ballots are the best evidence of the result of an election if
they have been properly preserved ...

... 58
whether ballots have been properly preserved is a question
of fact under the circumstances proven.....

58
ballot bearing one initial of judge of election is valid...... 58
ballot bearing the full name of a judge of election may be
counted....

58
etfect where circles at head of two tickets contain crosses. 58
ballot is invalid where tickets not marked by cross in cir-
cle are erased by pencil marks....

... 58
whether a ballot bears such distinguishing marks as ren-
ders it invalid is largely a question of fact...

... 58
when ballots may be counted, on contest, which are con-
tained in envelope marked "defective"...

58
ballots numbered by judges of election by misunderstand-

ing of the law may be counted if otherwise good........ 59

BILLS AND NOTES.

commercial paper issued by a municipal corporation with-

out statutory authority is void, even in the hands of an
innocent holder for value before maturity....

... 355
act of 1865, relative to issue of refunding bonds by counties
and cities, construed.....

... 355
power of a municipal corporation to issue original bonds

does not imply power to issue refunding bonds.......... 355
liability of pledgee of a note who accepts another note in
payment of the one in pledge...

... 385
right of maker of assigned note to set off demands against
the payee ·

.. 460
assignee of unendorsed note should give notice to maker

to protect himself against a payment or after-acquired
cross-demands against payee.

... 460
maker of note may set off note of payee obtained by him
for less than its face value.....

460
plaintiff's motion to dismiss suit on note is properly denied
where defendant has filed a plea of set-off..

460

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