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3. The offense of keeping and maintaining a calaboose," by an incorporated
town, is not an offense against the statute, for which an indictment will lie.
Town of Paris v. People, 74.
4. Upon a change of venue in a criminal case, the court granting the order may
take a recognizance from the defendant to appear in the court to which the
venue has been changed. Stebbins v. People, 240.
5. A default and order of forfeiture was taken upon reconizance against the de-
fendant and his surety, judgment was then taken upon the default against
the defendant, and a sci. fa. issued against the surety alone. Upon the
return of the sci. fa., judgment was taken against both cognizors; and the
judgment was reversed because the sci. fa. was issued against the wrong
party. Ibid. 240.
6. In prosecutions for obstructing highways, the rule is, that every averment must
be established, by a clear preponderance of evidence. And it is error to in-
struct the jury that they must be satisfied of the defendant's guilt, beyond
a reasonable doubt, before they could find against him. This latter rule
obtains only in criminal prosecutions, affecting life or liberty. Town of
Lewiston v. Proctor, 414.
1. A certificate of deposit payable in "Illinois currency," cannot be satisfied by
depreciated paper; it must be met by bills passing in the locality in the
place of coin. It might be otherwise if the certificate had been made paya-
ble in Illinois bank paper. Chicago Marine and Fire Ins. Co. v. Keiron,
501.
2. The words "Illinois currency" mean something different from gold or silver,
or their equivalents, and may be used in reference to things of different
values, when applied to the uses of traffic; and on enforcing a contract
using these words, it is proper to show what meaning the parties intended
to give them in their use of them. CATON, C. J. Ibid. 501.
3. Where it appears that a bank received for a customer, by collecting or by
receipt of deposits, funds, which were current, and passed as money in gen-
eral business transactions, without directions to hold the identical funds, it
will have to account to the owner for the sums so received, without diminu-
tion or discount, notwithstanding the bills received by the bank were at the
time or have since depreciated in value. Marine Bank of Chicago v.
Chandler, 525.
4. The special custom of bankers in a particular locality, cannot change values
as fixed by law; and if some persons have been in the habit of receiving
depreciated paper in payment of dues, the right to enforce payments in such
paper does not exist.
Such a right can only arise by contract. Ibid. 525.
5. A general agreement to receive depreciated paper in business transactions,
may be abandoned by common consent, and when this appears, a party who
disregards such agreement cannot hold another to it. Ibid. 525.
1. A custom on the part of a creditor to charge interest on an account past due,
will not authorize its recovery, unless the debtor was informed of the
custom. Rayburn v. Day, 46.
2. The special custom of bankers in a particular locality, cannot change values
as fixed by law; and if some persons have been in the habit of receiving
depreciated paper in payment of dues, the right to enforce payments in such
paper does not exist. Such a right can only arise by contract. Marine
Bank of Chicago v. Chandler, 525.
1. In an action for killing cattle by a railroad company, the plaintiff should
negative by proof that there was no public crossing where the killing
occurred; and should show that the company was bound to fence at that
point. Ohio and Mississippi R. R. Co. v. Taylor, 207.
2. The proof should show that the injury was done upon the road of the company
sued. Ibid. 207.
3. Any person familiar with the kind of property injured, may prove its value;
an expert is not an indispensable witness. Ibid. 207.
4. Where the defendant attempts to recoup, for unliquidated damages, these
damages must relate to the transaction, out of which the controversy has
arisen. Sanger v. Fincher, 346.
1. A decree should not be pronounced against a party not before the court.
Winkelman v. Kiser, 21.
2. A decree should not be entered against the purchaser of mortgaged premises,
whether he be or not a purchaser with notice; the decree should direct a
sale of the premises and a distribution of the proceeds. If he held the
equity of redemption, the sale might bar it, if he failed to redeem. Ibid. 21.
3. It is erroneous to decree a sale of premises in thirty days, where there is not
any redemption from the sale. Moore v. Bracken, 23.
4. In chancery all matters, whether of discretion or of positive law, are subject
to review in a superior court. A bill of review may also be filed in the
same court to correct an error in the original decree. Ibid. 23.
5. Where a default has been taken and a decree entered, pro confesso, which
recites that the defendants have been regularly notified of the pendency of
the suit, by summons or advertisement, a bona fide purchaser under the
decree will be protected, although the record may not furnish any evidence
of a summons or advertisement. Reddick v. State Bank, 145.
6. A decree should ascertain the precise amount to be paid, and not leave it to
computation. Smith v. Trimble, 152.
1. Where it appears that the treasurer of schools, the obligor of a bond, pre-
sented it signed and sealed in blank for approval, the penalty not being ex-
pressed, but was afterwards inserted in his presence and with his approval,
but in the absence of his sureties: Held, that while he was estopped by his
consent, his sureties were not holden. People v. Organ, 27.
2. An executed deed may be avoided by erasure, interlineation or other material
alteration; or by an intentional destruction of the seal. Ibid. 27.
3. A deed signed and sealed in blank, with verbal authority to fill the blank,
will be void, unless it has been subsequently acknowledged or adopted by
the party executing it. Ibid. 27.
4. A deed may be valid though not recorded; and may be offered as proof in
ejectment; and then the fact of knowledge of its existence may be brought
home to subsequent purchasers, as touching their good faith, and the duty
of making inquiries as connected with them. Ross v. Hole, 104.
5. A deed executed several years before the maker was, by inquest, found
insane, has the legal presumption of validity in its favor. Lilly v. Wag-
goner, 395.
6. The evidence showing the insanity of a party at the time of the execution of
a deed, must preponderate, or the legal presumption in favor of sanity will
sustain the act. Ibid. 395..
7. A quit-claim, or any other deed which is effectual to convey land, passes to
the grantee the covenants running with the land, unless there be words in
the deed limiting the conveyance. Brady v. Spurck, 478.
1. A party who voluntarily submits to a default, impliedly admits that the de-
mand against him is just. Lucas v. Spencer, 15.
2. Upon a default, a writ of inquiry issues to have the damages assessed, which
may be executed in court or be directed to the sheriff to execute in vaca-
tion. It would be regular for the sheriff to summon a jury from the by-
standers, and have the damages assessed in the presence of the court.
Etna Ins. Co. v. Phelps, 71.
3. On the death of the sheriff his deputy continues to act until a successor to his
principal is qualified. The return to process signed by a deputy, without
reference to the sheriff, where the court below found that it was "duly
served," will be sufficient to uphold a default. If the sheriff was not dead,
the defendant below should have taken steps to show that fact. Timmer-
man et al. v. Phelps, 496.
The case of Ditch v. Edwards, 1 Scam. 127, commented upon and explained.
Depositions taken in one suit, may be used in another between the same parties,
about the same controversy. McConnel v. Smith, 232.
1. If the indorsee of a note desires to hold the indorser liable, he must proceed
to judgment against the maker, at the earliest opportunity. Any negligence
or omission in that regard will release the indorser. Robinson v. Olcott, 181.
2. It is not due diligence for the assignee of a note to delay issuing an execution
against the maker of the note, for more than two months after obtaining his
judgment-and without showing some excuse for such delay, he cannot hold
the assignor. Rives v. Kumler, 291.
A deed conveyed to M. certain premises, extending to the west line of the west
wall of a brick building upon the premises; so that it included the whole of
the west wall; with the reservation that the owners of the ground on both
sides should have the mutual use of the present partition wall. At that
time there was a small one-story brick building on the lot adjoining on the
west. Subsequently, M.'s grantors conveyed this other lot to P., who tore
down this small building, and erected one much higher, and extending
further along on M.'s wall. Held, that the reservation in the deed to M. ex-
tended only to such portions of the west wall as were then used as a parti-
tion between the buildings, and that P. had no right to the mutual use of any
other or greater part of this west wall. Price v. McConnell, 255. ✔
1. Upon a bill for a partition brought by one of the heirs at law, in which it is
suggested that the widow is entitled to dower in the lands sought to be
divided, but the prayer does not ask that her dower be assigned, the court
cannot decree an assignment of dower and appoint commissioners to set it
off. Nor can the court give the widow an estate in fee in one-third of the
land, in lieu of her life estate, for dower. Tibbs v. Allen, 119.
2. A note was given for a piece of land which the payee conveyed by a warranty
deed. Subsequently a right of dower was recovered against the land., Held,
that in an action upon the note, the value of this dower right could be set
off as a partial failure of consideration. McHenry v. Yokum, 160.
3. The tables showing the probabilities of life, by which the value of dower
rights can be computed, are recognized by the courts as the proper means
of proving such value. Ibid. 160.
1. An action of ejectment is within the purview of the statute requiring security
for costs; and if the plaintiff is a non-resident he must give security for
costs before instituting suit; which is commenced by serving the declara-
tion and notice. Farnsworth v. Agnew, 42.
2. If it appears from the bill of exceptions, that a plaintiff in ejectment was a
non-resident at the time of the service of the declaration and notice,
although the affidavit of the defendant to that fact is not saved in the bill
of exceptions, the judgment dismissing the action for want of security will
be upheld. Ibid. 42.
3. A deed may be valid though not recorded; and may be offered as proof in
ejectment; and then the fact of knowledge of its existence, may be brought
home to subsequent purchasers, as touching their good faith, and the duty
of making inquiries as connected with them. Ross v. Hole, 104.
4. In ejectment, before the court can take jurisdiction, it should appear, by affi-
davit, that the declaration and notice to appear and plead, have been served.
A sheriff's return will not give jurisdiction. O'Donnell v. Howes, 510.
See COUNTY CLERK. MANDAMUS.
1. It is erroneous to decree a sale of premises in thirty days, where there is not
any redemption from the sale. Moore v. Bracken, 23.
2. In cases tried by the court, errors may be assigned as to the law and fact
upon the judgment. Metcalf v. Fouts, 110.
3. Upon a writ of error in a chancery cause, the Supreme Court will not pre-
sume that any evidence was given in the court below, except what appears
in the record. Reddick v. State Bank, 145.
4. The absence of a summons from the record, cannot be supplied by the return
of a certificate of the clerk to a writ of certiorari, that there had been a
summons which was lost, nor by the recital in the notice of publication,
that it had been issued. Smith v. Trimble, 152.
5. Upon a writ of error, this court looks only to the transcript of the record.
If papers have been lost from the files, or mutilated, they may be supplied
in some cases by the Circuit Court upon satisfactory evidence, after a proper
notice to the opposite party. This court has no authority to permit a party
to supply, by proof, any part of the record. Smith v. Trimble, 152.
6. Proceedings for the sale of land by an administrator will be reversed, if the
record does not show any petition by the administrator. Monahon v. Van-
dyke, 154.
7. It is error for the Circuit Court to order a sale of land by an administrator,
when the notice has been published but thirty days, while the statute re-
quires a publication for six weeks, before the presentation of the petition.
Ibid. 154.
8. It is error to award the plaintiff greater damages than he claims in his decla-
ration. Rives v. Kumler, 291.
9. Although the bill of exceptions does not purport to contain all the evidence,
and therefore the refusal to grant a new trial on the weight of evidence,
cannot be considered; yet as there was evidence, showing the refusal of an
instruction erroneous, the judgment will be reversed. Sidwell v. Lobly, 438.
10. This court will not reverse a judgment, merely because another might be
more acceptable. Bowen v. Dutton, 515.
1. The covenant that the grantor is seized of an estate in fee simple, is satisfied,
if he has a seizin in fact, by having entered into possession, claiming a fee
simple in the land. Watts v. Parker, 224.
2. An entry into possession, under a paper title, claiming the fee, and the peace-
able possession for more than twenty-six years, make a seizin in fee simple.
Ibid. 224.
3. Possession and payment of taxes for seven years, under claim and color of
title, will satisfy the covenant of seizin in fee simple. Ibid. 224.
4. A deed purporting to claim land must be under seal. Ibid. 224.
5. A party may show possession and payment of taxes under claim and color of
title; although his chain of title may show a deed not under seal. Ibid.
6. On an application by a guardian for license to sell the real estate of his wards,
they need not be made parties to the proceedings, nor is the appointment of
a guardian ad litem required. Smith v. Race, 387.
See ADMINISTRATOR. ATTORNEY. PROBATE COURT.
1. Where it appears that the treasurer of schools, the obligor of a bond, pre-
sented it signed and sealed in blank for approval, the penalty not being ex-
pressed, but was afterwards inserted in his presence and with his approval,
but in the absence of his sureties: Held, that while he was estopped by his
consent, his sureties were not holden. People v. Organ, 27.
2. Morrison purchased a piece of land under an execution against James
Duncan, and filed his bill to set aside conveyances which vested the title to
the land in John Duncan, alleging them to be fraudulent. Subsequently the
land was sold by the administrator of John Duncan, under an order of court,
as his property. Morrison received the proceeds of this sale for a claim
which he held against the estate of John Duncan. Held, that this did not
estop Morrison from asserting his title to the land. Letcher v. Morrison,
209.
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