EVIDENCE.

1. After usurious money has been paid, the parties are not competent witnesses
in a suit to recover it back. Lucas v. Spencer, 15.

2. A party who voluntarily submits to a default, impliedly admits that the de-
mand against him is just.

Ibid. 15.

3. A party who sues a railroad company, under the statute, for injuries to cattle,
resulting from omission to fence a road, should show that the road had
been opened more than six months prior to the injury complained of. Ohio
and Mississippi R. R. Co. v. Meisenheimer, 30.

4. Parol evidence is admissible, to show that the consideration of a note has
wholly or partially failed. Morgan v. Fallenstein, 31.

5. The certificate of a county clerk, showing that A. B. was not a justice of the
peace, at the date of an acknowledgment, purporting to have been taken by
him, is some though not conclusive evidence of such fact. Ross v. Hole, 104.
6. A deed may be offered in evidence in ejectment, though not recorded. Ibid.
104.

7. Proof of a tender, though not of that clear and satisfactory character which
convinces the mind beyond doubt, will be held sufficient. Kerney v. Gard-
ner, 162.

8. Where A and B convey a right of way to a mill to C, and B afterwards pur-
chases one-half of the mill, B cannot become a witness for C, who has filed
a bill to restrain A from obstructing the right of way; being an appurte-
nance to the mill, B was therefore interested, and was disqualified. Foulke
v. Walker, 204.

9. The payee and indorser of a note, is not a competent witness to prove that an
assignee had not paid any consideration for a note, or that it had not been
delivered to the assignee. Coon v. Nock, 235.

10. Where a fact is alleged in a bill and admitted by the answer, the admission
is conclusive; and evidence tending to dispute it, should not be considered.
Chadsey v. McCreery, 253.

11. A general objection to the introduction of an instrument as evidence, is not
sufficient; if it is obnoxious to a special objection, that objection must be
stated in the court below. Buntain v. Bailey, 409.

12. In an action to recover a penalty for obstructing a village street, after the
ordinance establishing the offense and the penalty has been given in evi-
dence without objection, evidence of a private act of the legislature legal-
izing the ordinances, was properly excluded from the jury. The statute
might have been proper preliminary evidence, but after the introduction of
the ordinances, it became irrelevant. Town of Lewiston v. Proctor, 414.
13. In an action upon a note, the books of a banker, showing entries made by
third parties without the knowledge of the litigants, are not proper evi-
dence. Such books are not public records, nor do they fall within any recog-
nized class of written or documentary evidence. Barnes v. Simmons, 512.

EXCHANGE.

See INTEREST.

EXECUTION.

1. After a notice has been given to the administrator of a deceased debtor, of
the existence of a judgment against the deceased, in accordance with Sec.
3, Chap. 47, Rev. Stat., the judgment creditor may issue an execution, and
also an alias or pluries, without further notice. Letcher v. Morrison, 209.
2. It is a settled principle of law that the levy of an execution upon personal
property, sufficient to satisfy it, is of itself a satisfaction of the execution.

But this rule is changed by Sec. 30, Chap. 57, Rev. Stat. of 1845-which
provides for the giving of a forthcoming bond. This statute is constitutional.
Martin v. Carter, 294.

3. There is no lawful mode of renewing an execution, except there has been a
return to that already issued by the officer, of his doings thereon. A
justice of the peace cannot renew an execution by any indorsement of his
upon it. Calhoun County v. Buck et al. 441.

4. A constable must, within the time appointed by law, return an execution
with an indorsement of his doings thereon, for the truth of which he is re-
sponsible; but no particular form of indorsement is required. Ibid. 441.
5. One constable cannot hand over an execution to another, so as to relieve
himself from the responsibility of its return according to the statute; if
another constable returns the execution within the statutory time, it may
save him from liability, to whom it was first delivered. Ibid. 441.

6. A railroad tank-house, locomotive and cars, are presumed to be annexed to
the realty, and in fact are a part of it, and are not liable to be sold by
a constable, on an execution from a justice of the peace. Titus et al. v.

Ginheimer et al. 462.

EXECUTORS.

See ADMINISTRATORS. ESTATES.

FAILURE OF CONSIDERATION.

See PROMISORY NOTE.

FORECLOSURE OF MORTGAGE.

See MORTGAGE. SCIRE FACIAS.

FOREIGN JUDGMENT.

Where it is manifest from an inspection of a record, that technicalities in the
forms of actions have been abolished in the State where judgment was ren-
dered, this court will treat the judgment as would the court of the State
where it was rendered, without regard to the rules of the common law by
which different forms of action are designated. Griffin v. Eaton, 379.

FORGERY.

See BOND, 5.

FRAUD STATUTE OF FRAUDS.

1. Where a purchaser, under a verbal contract for the sale of land, takes pos-
session by consent of the vendor, and makes valuable improvements, and
within the time agreed upon for payment, tenders the purchase money, the
case is taken out of the statute of frauds, and the purchaser is entitled to
a specific performance of the oral agreement. Blunt v. Tomlin, 93.

2. It is no defense for third parties who subsequently purchased of the vendor
with full notice, and before the time for payment had expired, that the
vendor had disaffirmed the verbal contract, and sold to them before the
purchase money was actually paid or tendered. The purchaser is entitled
to protection, if he paid or tendered the money within the time agreed
upon. Ibid. 93.

3. Where a purchaser of land under an oral agreement, has five years in which
to make his payments, so that the contract conflicts with two sections of the
statute of frauds, he may nevertheless be entitled to a specific performance.

The same facts which would take the case out of one section of the statute,
will take it out of the other. In such a case, the court should be more
cautious in examining the evidence of the oral contract. Blunt v. Tomlin, 93.
4. A party, who makes a tender for a deed under a contract, need not part with
the money, until he receives his deed. If the vendor offers to take the
money but refuses to make the deed, this is a refusal of the tender, and it is
a useless ceremony to count out the money after that. Ibid. 93.
5. A tender made in pursuance of a contract for a deed,

fixes the rights of the
parties, as conclusively as if the money had been actually paid. Ibid. 93.
6. The statute of frauds must be pleaded, if it is to be relied upon by the
defendant. He cannot set it up, for the first time, in an instruction. War-
ren v. Dickson, 115.

7. In a bill for specific performance of a parol agreement for the sale of lands,
if the agreement is denied, without setting up the statute of frauds as a
defense, that statute cannot afterwards be insisted upon to bar the suit.
Hull v. Peer, 312.

8. A court of chancery will relieve against judgments obtained by fraud or by
unavoidable accident, if there has been no fault or negligence on the part
of the defendant in making his defense. But not if there has been such
fault or negligence. Hinrichsen v. Van Winkle, 334.

9. Fraud must always be proved; the law never presumes it. Wright v. Grover,
426.

10. A complete transfer of personal property may be made, although the pur-
chaser should not hold continuous possession. If the property is returned
to the possession of the vendor, the fact may create suspicion, but is not
conclusive of the fairness of the transaction. Ibid. 426.

See CHANCERY.

GARNISHEE.

1. The interrogatories to and answers of a garnishee are a part of the record,
and need not be preserved by a bill of exceptions. Rankin v. Simonds,

852.

2. Where no issue is raised upon the answers of a garnishee, they must be taken
as true, and the rights of the parties must be determined by them. Ibid.

352.

3. The garnishee has a right to set up any claim he has against the defendant, to
meet the fund in his hands, which he could set off or recoup in an action
brought by the defendant to recover the fund. Ibid. 352.

4. Rankin, summoned as the garnishee of Elliott, answered, that he had funds of
Elliott's, but that he had delivered to E. a note against the H. & S. R. R. Co.
for collection; that E. owed the company an amount greater than the
amount of the note and still retained the note, his account with the com-
pany being still unsettled. Held, that as the note had not been paid, Ran-
kin might withdraw it at any time, and he could not be allowed to set it off
against the fund in his hands. Ibid. 352.

5. Where garnishees are summoned in an attachment suit, the proper practice is
to enter judgment against the garnishees and in favor of the defendant in
the attachment suit, for the benefit of such attaching creditors as are en-
titled to the proceeds. Ibid. 352.

6. A conditional judgment and a scire facias are requisite, as proper prelimina-
ries to a judgment against a garnishee. The scire facias is to make known
to the garnishee that a conditional judgment has been rendered against him,
assuming him to be a debtor of the debtors in attachment, and that he must
show cause why final judgment should not go against him. Cariker v. An-
derson, 358.

7. A sufficient notice to a debtor under a foreign attachment should be shown
of record. Ibid. 358.

D

8. It may not be error for a term of court to intervene between a default taken and a scire facias issued against a garnishee. Cariker v. Anderson, 358. 9. The date given in the indorsement of a service of process, should be taken as the time of service. A sheriff is not required to date his return. Ibid. 358.

10. A garnishee is not properly a defendant in an attachment suit, to defend against the plaintiff's claim; the judgment should be entered against a garnishee in favor of the defendant in the attachment suit, for the benefit of the creditor or others in attachment, and if there is more due than will pay the attaching creditor, the creditor of the garnishee can control it. Ibid.

358.

GUARANTOR AND GUARANTEE.

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 negli gence or omission in that regard will release the indorser. Robinson v. Olcott, 181.

2. Where a party appears to have executed a bond with another as surety, but whose name has been forged, he will not be liable. Seely v. People, 173.

3. An agreement, between the holder of a note and the principal, to extend the time of payment for a definite period, which is founded upon a good consideration, will discharge the surety; unless the surety consents to the agreement at the time, or subsequently ratifies it. Flynn v. Mudd, 323.

4. To enable a surety to interpose the defense to a note that further time has been given to his principal, it is not necessary that his name should appear upon the note as surety; it will be sufficient if he was actually a surety, and this was known to the payee when the note was executed. Ibid. 323.

5. The payment of interest upon a note in advance, is a sufficient consideration to support an agreement for an extension of time to the principal, so as to discharge the surety. Ibid. 323.

6. Where the plaintiff introduces in evidence a note which has indorsed upon it, an agreement extending the time for payment, he will be bound by the agreement although it is not signed by him. Ibid. 323.

GUARDIAN AND WARD.

1. Infants are bound by proceedings by an administrator to sell real estate, although they are not nominally made parties to the proceeding. The case Ex parte Sturms, 25th Illinois R. 390, overruled in part. Gibson v. Roll, 88.

2. If the proceedings of a guardian to sell the estates of infants have not been regular and in conformity to law, they must have an opportunity to correct the errors. But such proceedings are not adverse to the interests of the infant, and if they have been regular, the infant will be bound by them. The case of Mason v. Wait, 4 Scam. 127, examined. Ibid. 88.

3. A proceeding by an administrator to sell the real estate of his decedent, is adverse to the infants, and he must follow the statute in his petition, and give proper notice; if he does this, the sale will be good. The court is to pass upon the sufficiency of the statements in the notice, which calls upon parties to object to the proceedings. Ibid. 88.

4. Strict proof is required against infant defendants, and the record must furnish the evidence to sustain a decree against them, whether their guardian answers or not. No confession by their guardian can bind them. Reddick v. State Bank, 145.

5. 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.

HIGHWAYS AND STREETS.

1. The only office which the common law writ of certiorari performs, is to certify the record of a proceeding from an inferior to a superior tribunal. It is the duty of the inferior body to whom it is directed, to transmit a complete transcript of the record properly certified, to the court awarding the writ; without any statement of facts dehors the record. Commissioners of High

ways v. Supervisors, etc. 140.

2. The superior tribunal, upon an inspection of the record alone, determines whether the inferior tribunal had jurisdiction of the parties and of the subject matter, and whether it has exceeded its jurisdiction, or has otherwise proceeded in violation of law. Ibid. 140.

3. This proceeding is wholly different from a trial under our statutory writ of certiorari, inasmuch as that is a trial de novo. Ibid. 140.

4. Upon an appeal to the board of supervisors from the decision of the commissioners of highways, as to the laying out of a road, it is not necessary that the supervisors should examine the entire road. It will be sufficient if they examine that portion of the road against which the objections are urged. Ibid. 140.

5. Where the commissioners of highways make themselves parties to a proceeding to reverse a decision of the supervisors, by a writ of certiorari, and are unsuccessful, a judgment against them for costs is proper. Ibid. 140.

6. If they were acting in behalf of the town, they should have appeared in its name and not in their own. Ibid. 140.

7. Where the record of proceedings before the commissioners of highways, for laying out of a road, shows that due notice has been given, by posting copies of the petition; upon an appeal regularly taken to the supervisors of the county, the supervisors acquire the jurisdiction necessary to determine the validity of the notices, and their decision upon that point cannot be collaterally attacked. Wells v. Hicks, 343.

8. To prove that in proceedings for laying out a highway the copies of the petition were properly posted, it is not necessary to call as witnesses, the parties who posted them. Their ex parte affidavits attached to the petition are sufficient. Ibid. 343.

9. The statute which requires the commissioners of highways to act within ten days after the expiration of the twenty days' notice, does not compel them to decide the matter within the thirty days; it is sufficient that they commence their work within that time. It would seem that this provision of the statute is directory and not mandatory. Ibid. 343.

10. That the statute regulating appeals, from the commissioners of highways to the supervisors, does not require notice to the party, whose land is affected by the location of the road, is an objection against which this court can afford no relief. It becomes the duty of the owner of the land, to take notice of, and follow up, the appeal. Ibid. 343.

11. In an action to recover a penalty for obstructing a village street, after the ordinance establishing the offense and the penalty has been given in evidence without objection, evidence of a private act of the legislature legalizing the ordinances, was properly excluded from the jury. The statute might have been proper preliminary evidence, but after the introduction of the ordinances, it became irrelevant. Town of Lewiston v. Proctor, 414. 12. In actions before, and upon appeals from, justices of the peace, the defendant has a right to insist upon proof of every material fact necessary to a recovery, just as if all the requisite pleas had been filed. And the plaintiff, if a corporation, must prove its corporate existence. Ibid. 414.

13. A continuous and uninterrupted use of a highway by the public, for more than twenty years, creates a prescriptive right to the use of the road. And this right continues, until it is clearly and unmistakably abandoned. Ibid.