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. Rankin v. Simonds, 352. 32. 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 company being still unsettled. Held, that as the note had not been paid, Rankin might withdraw it at any time, and he could not be allowed to set it off against the fund in his hands. Ibid. 352.

33. 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 entitled to the proceeds. Ibid. 352.

34. A conditional judgment and a scire facias are requisite, as proper preliminaries 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. Anderson, 358.

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

36. It may not be error for a term of court to intervene between a default taken and a scire facias issued against a garnishee. Ibid. 358.

37. 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.

38. 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.

39. Oyer cannot be craved of an instrument not under seal, of which profert is not made. If such an instrument is to be examined by this court, it should be presented by bill of exceptions, demurrer to evidence, by an agreed case, or by a special verdict. Gatton v. Dimmitt, 400.

40. 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.

41. According to the strict rules of practice, a motion in arrest of judgment is a waiver of a motion for a new trial. A party who has filed both motions, and calls up his motion in arrest and has it disposed of, and then allows judgment to be rendered, without directing the attention of the court to the other motion, will be held to have waived his motion for a new trial. Hall v. Nees, 411.

42. A party need not produce or prove a judgment that is not put in issue. Cox V. Reed et al. 434.

43. If heirs are brought into court by scire facias under the statute, to show cause why they should not be made parties to a judgment, it will be necessary to prove up the case de novo against them. Adults cannot demand that more shall be proved against them, when there are infant parties, than if all were adults. Ibid. 434.

44. Actions in attachment must be commenced where the defendant has property, or where he can be found, and service must be upon him or his property. The court does not acquire jurisdiction by issuing two writs, one of which is to another county than that where the process is returnable, although there may be property to attach in such other county. Hinman v. Rushmore et al. 509.

45. In ejectment, before the court can take jurisdiction, it should appear, by affidavit, 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 AMENDMENt, 1.

PRESUMPTIONS.

1. Fraud must always be proved; the law never presumes it. Wright v. Grover et al. 426.

2. A justice of the peace issues a capias upon an oath, an affidavit is not necessary, and the presumption is, that a justice requires all the necessary averments in the oath, such as are commanded by the constitution and laws. Outlaw v. Davis et al. 467.

PRINCIPAL AND AGENT.

See AGENT. AGENCY.

PRIVITY.

A and B, each sent cattle to market, which were sold by the same broker, who, in accounting to the parties, paid A too much, and B, by precisely the same sum, too little; B sued A to recover his deficit. Held, that there was no such privity between these parties, as would create a liability. Hall v. Carpen, 386.

1. If the maker of a note says to the payee, that if he will wait awhile he will pay the note; and that he will pay when he "makes a raise," not being at the time in a condition to pay; the note will be taken out of the statute of limitations. Horner v. Starkey, 13.

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

3. The giving of a note and mortgage by one of two copartners in settlement of a joint debt, does not discharge an account against the firm, unless they were received in satisfaction of it. Rayburn v. Day, 46.

4. If a note is given not under seal, by one of several parties, it will not satisfy the account, unless the parties so intended; and a recovery may be had upon the account, if the note is surrendered. A recovery cannot be had on the account if the note is still held by the creditor. Ibid. 46.

5. 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.

6. An agreement by a party to convey all his title, etc., to land, is a sufficient consideration for a note. If the party giving the note desires more than a quit-claim deed, he should make his bargain accordingly. Kerney v. Gard

ner, 162.

7. A partial failure of consideration may be pleaded to a promissory note given for the purchase of land. Schuchmann v. Knoebel, 175.

8. A party may also recoup in an action upon a note given for land, what he has been compelled to pay in order to remove an incumbrance upon the land. Ibid. 175.

9. 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. 10. 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.

11. A note payable to James G. McCreery, treasurer of the R. I. & A. R. R. Co., is not a note to the company, but to the individual named. Te addition to his name is merely descriptio persona. Chadsey v. McCreery, 253.

12. 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.

13. In an action upon a promissory note, by the assignee against the assignor, the defendant filed a demurrer to the declaration, which was overruled, and he elected to stand by it. It was competent for the clerk to assess the damages. Ibid. 291.

14. An assignment of a note, in order to cut off a defense by the maker, must not only be before maturity, but must be bona fide, and if made for that express purpose, will be invalid. Cooper v. Nock, 301.

15. The payee of a note, before its maturity, put his name upon the back of it, but kept it in his possession until after it became due. He then delivered the note to the attorney of the plaintiff, who was a non-resident. This was not a bona fide assignment, and did not prevent the maker from setting up the defense of usury. Ibid. 301.

16. 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.

17. 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.

18. 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.

19. 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.

20. Held, that the following instrument was negotiable under the statute, and that in an action upon it, a consideration need not be averred or proved: "Due W. B. G. $450, to be paid in lumber when called for, in good lumber, at $1.25." Bilderback v. Burlingame, 338.

21. An instrument admitting a certain sum of money to be due, which may be paid in merchandise, at a fixed price, becomes an absolute money demand, if the payee fails to deliver the merchandise when it is called for. If there were two payees, a refusal by one of them would be sufficient. Ibid. 338. 22. Although a note may bear ten per cent. interest, when a decree is entered upon it, the note is merged; and the decree can bear only six per cent. interest. White v. Haffaker, 349.

23. A note given to a county, is properly assigned, by the clerk of the County Court under its seal. Gatton v. Dimmitt, 400.

24. A note given for the purchase of land, if transferred, does not carry with it to the assignee, the vendor's lien, so that the assignee can enforce it in his own name. Richards v. Leaming et al. 431.

25. If a declaration avers that a note is made payable to the plaintiffs by the name and style of Curtis and Baker, such a note may be read in evidence,

although they declared in the names of Edwin Curtis and Joseph Baker, without alleging that they were partners, or that the note was made payable in any joint character. Wright v. Curtis, 514.

RAILROADS.

1. 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.

2. Before a party can recover for injury to property, he must show that he is either the absolute or qualified owner of it. Ohio and Mississippi R. R. Co. V. Jones, 41.

3. In an action against a railroad corporation resulting from injuries to property, because of an omission to fence its road, it should appear that the road has been open for use for six months prior to the injury. Ibid. 41.

4. If an action is brought against a railroad company under the statute, and the negligence charged results from an omission to erect a fence, the declaration should show that the accident did not happen at a place where the company is not bound to maintain a fence. Illinois Central R. R. Co. v. Williams, 48. 5. A town or village, within the meaning of the statute requiring railroad corporations to construct fences, may exist, although there is no plat of the same, dedicating streets, etc., in the manner pointed out by the statute in that regard. Ibid. 48.

6. A railroad company cannot appeal to the Circuit Court from an assessment of its property for taxation by a board of supervisors. If any remedy exists, it may be by certiorari. Ohio and Misssissippi R. R. Co. v. Lawrence County, 50.

7. The provision of the constitution granting the right of appeal, needs legislative action to make it available. Ibid. 50.

8. A railroad company is not required to keep a patrol at night along the road, to see that the fence is not broken down. If the fence is sufficient, and all reasonable diligence is used to keep it up, the company will not be guilty of negligence in that particular. Illinois Central R. R. Co. v. Dickerson, 55. 9. For purposes of taxation property should be assessed at its present value, and not at its prospective value. The State v. Illinois Central R. R. Co. 64. 10. In assessing the value of a railroad, for purposes of taxation, the inquiry should be, what is the property worth, to be used for the purposes for which it was designed, and not for any other purposes to which it might be applied? Ibid. 64.

11. In such a case, if the property is devoted to the use for which it was designed, and is in a condition to produce its maximum income, one very important element for ascertaining its present value, is the amount of its net profits. Ibid. 64.

12. This, however, should not be the absolute standard of value. There should be taken in connection with it, the inquiry, what would a prudent man give for the property as a permanent investment, with a view to present and future income? Ibid. 64.

13. The act of February 14th, 1855, amendatory of the revenue law, which directs that the track or superstructure of a railroad shall be denominated "fixed and stationary personal property," was intended to create a species of personal property not before known to the law. For non-payment of taxes upon this property, the collector may levy upon the rails and remove them from the track, for the purpose of selling them. Maus v. Logansport, Peoria and Burlington R. R. Co. 77.

14. This act has reference only to the collection of the revenue, and does not change the character of such property for other purposes. Ibid. 77.

15. Section 14, of the amendatory act of 1858, which provides that real property

shall be liable for taxes on personal property, and vice versa, has no application to this "fixed and stationary personal property;" such property must bear its own burden of taxation. Maus v. Logansport, Peoria and Burling

ton R. R. Co. 77.

16. It is within the province of the legislature to provide that property, which is attached to the freehold, so as to become a part of it by the common law, may be regarded as personal property, for all purposes, or for any special purpose. Of this character is the act of Feb. 14th, 1855, which directs that the track and superstructure of a railroad, together with the improvements at stations, shall be denominated personal property, for the purposes of collecting the revenue. Ibid. 77.

17. The law does not require any different words to be used in proving a case against a railroad company, from those used in ordinary cases; it is only requisite that the mind should be convinced of the existence of the necessary facts. Ohio and Mississippi R. R. Co. v. Irvin, 178.

18. The presumption is, that the houses compose a village; if an animal is killed beyond the houses, the presumption is, that it is killed beyond the village; if the town extends beyond the houses, the defendant should show the fact. Ibid. 178.

19. Every one is supposed to have some idea of the value of such property as is in general use; and it is not necessary to have a drover or butcher to prove the value of a cow. Ibid. 178.

20. A subscriber to the capital stock of a railroad company, who agrees to be subject to the rules and regulations which may from time to time be adopted by the directors, cannot avoid payment, because the charter has been amended, reducing the number of days of notice to be given, if the amendment of the charter has been accepted. Illinois River R. R. Co. v. Beers, 185. 21. Amendments to charters may be accepted in divers ways. Ibid. 185. 22. A declaration against a railroad corporation for killing cattle need not negative the possibility that the animals may have been killed at a farm crossing. If the road is not properly fenced at such crossing, the company will be liable for injuries, and if it were properly fenced, that is matter of defense. Great Western R. R. Co. v. Helm, 198.

23. 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.

24. The proof should show that the injury was done upon the road of the company sued. Ibid. 207.

25. Any person familiar with the kind of property injured, may prove its value; an expert is not an indispensable witness. Ibid. 207.

26. Where the name of a corporation consists of several words, the transposition, omission or alteration of some of them, may not be regarded as important, if it is evident what corporation is intended. Chadsey v. McCreery, 253. 27. A note payable to James G. McCreery, treasurer of the R. I. & A. R. R. Co., is not a note to the company, but to the individual named. The addition to his name is merely descriptio personæ. Ibid. 253.

But

28. The board of supervisors alone, have the power to order an election to determine whether the county will subscribe to stock in a railroad company, and to issue the bonds therefor; and they cannot delegate their power. this rule does not prevent the board of supervisors, after they have taken all necessary action in the matter, from directing that the bonds shall be signed by the county judge. The county judge then becomes merely the instrument, by which the action of the board is manifested. Clarke v. Board of Supervisors, 305.

29. In ordering an election, to determine whether a county will subscribe for stock to aid in building a railroad, it is improper to submit the question, whether two different roads shall be so aided, by a single vote; so that the