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law forbids, that a person charged with crime be put in jeopardy
twice for the same offence.
12. Afidavit and Information.-Statute Construed. — Witnesses.— Section 1679,
clause 5, R. S. 1881, construed in connection with sections 1671 and
1756, does not imperatively require the names of the witnesses to be
stated in the body of the affidavit on which an information is based;
and it is error to quash it for the omission to do so. State v. Bunnell, 315
13. Continuance.— Evidence.- Where a fact not constituting the body of the
offence, but a circumstance tending to prove guilt, is to be put in evi-
dence by the prosecution, and the defendant learns the intention of
the State too late to procure evidence which will explain the fact, it
is error to overrule his motion, on proper affidavit, to postpone the
trial so as to give him the opportunity. Kennedy v. State, 379
14. Same.-- Affidarit of Absent Witness.--The affidavit of the absent witness
need not be made a part of the application for a continuance. Ib.
15. Same.-- Burglary.-- Ownership.--- Indictment.-- Lundlord and Tenunt.--
Where the building alleged to have been burglariously entered is in
the possession of a lessee or tenant, it may properly be charged to be
his property, or that of the landlord, sec. 1753, R. S. 1881. Ib.
16. Reserved Question of Law.-- Practice.--Supreme Court.-- Appeal Sustained.--
No Reversal of Julgment.-- Costs.—During the prosecution of a criminal
cause, the prosecuting attorney may, by bill of exceptions, under sec-
tion 1846, R. S. 1881, reserve any point of law for the decision of the
Supreme Court. And, if the defendant be acquitted, the prosecuting
attorney may, within one year, take the reserved case to the Supreme
Court, upon appeal; there shall be no reversal of the judgment, on
such appeal, but the opinion of the Supreme Court shall be the uni-
form rule of decision in inferior courts, and if the decision below is
held to be erroneous, the appellee must pay the costs of appeal.
State v. Tumey, 559
17. Same.- Foreign Insurance Company.-Certificate of Auditor of State.--- Duty
of Agent.—Under section 3765, R. S. 1881, a foreign insurance com-
pany is not required to file, in the county clerk's office, a certificate of
the auditor of State showing that it is authorized to do business in
the county, but it is made the duty of any agent of any such company,
who assumes to act as such agent in the transaction of insurance bus-
iness in any county, to procure and file in the office of the clerk of the
circuit court of the county a certificate from the auditor of State,
showing that he is authorized to act as such agent in the transaction
of insurance business, for such company, in such county.
18. Same.--Embezzlement by Agent.--Illegal Consideration or Premiums. ---De-
fence.--Where an agent of a foreign insurance company is prosecuted
for the embezzlement of the moneys of the company received by him,
in the course of his agency, as embezzlement is defined in section 1944,
R. S. 1881, it is no defence that such agent had not complied with
the requirements of section 3765, R. S. 1881, in regard to his agency,
and had therefore received such moneys for the company, upon an ille-
gal consideration and in the transaction of an unlawful business. 16.
19. Sabbath Desecration.- Indictment.--Sale.--Evidence.--In a prosecution for
desecration of the Sabbath, under section 95, Acts 1881, p. 194, R. S.
1881, section 2000, the indictment alleged that the defendant, on the
4th day of December, 1881, unlawfully engaged in common labor, and
his usual vocation, by selling cigars.
Held, that the indictment was insufficient for failing to allege that the sale
was on some day known and commonly called Sunday.
Held, also, that proof must be made of the sale on some particular Sunday
within a time not barred by the statute of limitation of six months,
section 1594, R. S. 1881.
Gilbert v. State, 565
See EMBLEMENTS; SHERIFF'S SALE, 18, 19.
See INSURANCE, 7.
See CHATTEL MORTGAGE, 4; CONTRACT, 3; FRAUD; GUARDIAN AND
WARD, 8; INJUNCTION BOND; NEW TRIAL, 7; TOWNSHIP; TRESPASS, 2.
See Costs; EVIDENCE, 1 to 3.
1. Claims.- Principal and Surety.—Prior to the statute of 1881 (R. S. 1881,
section 2311), an ordinary suit might be brought against a principal
debtor, and the administrator of his surety; and if the principal was
not served with process, the suit might go on against the administra.
tor alone, unless objection was made by motion before pleading.
Corbaley v. State, ex rel., 62
2. Widow's Rights Under Section 28 of Statute of Descents.— Growing Wheat.-
A widow, occupying land for the year after the death of her husband,
under section 2492, R. S. 1881, is entitled to the husband's share of
wheat planted on the land by a tenant before the husband's death,
which ripened and was harvested during such year. Jones v. Jones, 292
3. Claim.-- Pleading.--Promissory Note.-Consideration.— Supreme Court.-
The testator executed to the appellee a paper as follows: “July 5th,
1870. When I am gone, for value received, I promise my grandchild,
Sarah E. Roll, to pay her or order five hundred dollars, with inter-
est from date ten per cent. Jonas Williams. Lucy, this is due to Sis,
when I am done with it—is for staying with you. Jonas Williams."
Held, that this, with the affidavit required, was a sufficient complaint upon
a claim against an estate.
Held, also, that the instrument, duly proved, sufficiently established a con-
sideration for its execution, so that the Supreme Court would not dis-
turb an allowance upon it.
Hathaway v. Roll, 567
See PRINCIPAL AND AGENT, 1; RAILROAD, 3.
See City, 2; EVIDENCE, 4, 8, 9; MARRIED WOMAN, 2 to 4; MORTGAGE,
1,2; PLEADING, 4; SHERIFF'S SALE, 21 ; STATUTE OF FRAUDS; Taxes,
6, 13; VENDOR AND PURCHASER, 3, 4; VOLUNTARY ASSIGNMENT.
See County AUDITOR; TOWNSHIP TRUSTEE, 4 to 7.
See REVIEW OF JUDGMENT, 1.
DEFECTS CURED BY VERDICT.
See PLEADING, 7; PRACTICE, 13; VERDICT, 4.
See INSANITY, 3; INSURANCE, 2; PROMISSORY NOTE, 4.
See ASSIGNMENT OF ERROR, 1; JUDGMENT, 1; PLEADING, 3, 8; PRACTICE,
14 to 17; PROMISSORY NOTE, 8; TowNSHIP TRUSTEE, 3.
DEMURRER TO EVIDENCE.
See INSURANCE, 7.
1. Practice.-A demurrer to the evidence admits all facts which the evi.
dence tends to prove, and all such inferences as can be reasonably
drawn therefrom, but forced and unreasonable inferences are not ad-
Willcuts v. Northwestern, etc., Ins. Co., 300
2. Same.—Effect of.—The effect of a demurrer to the evidence is to con-
cede the truth of all the facts of which there is any evidence against
the demurring party, and to prevent him from insisting upon the
benefit of evidence in his favor, if there is a conflict in the evidence. Ib.
3. Same.- Where the plaintiff demurs to the evidence of the defendant,
his own evidence can not be considered, and if, upon the evidence of
the defendant alone, with every reasonable inference which might be
drawn therefrom, a jury might rightfully find for the defendant, the
demurrer should be overruled.
Hagenbuck v. McClaskey, 577
See SHERIFF's SALE, 2.
See DECEDENTS' ESTATES, 2; REAL ESTATE, ACTION TO RECOVER, 6;
See CITY; DRAINAGE, 2; EVIDENCE, 8, 9; MORTGAGE, 6, 7; REAL ESTATE,
ACTION TO RECOVER, 1; SHERIFF's SALE, 17; STATUTE OF FRAUDS;
Taxes, 1 2, 3, 5; TURNPIKE COMPANY, 3.
See PROMISSORY NOTE, 15.
See EXECUTION, 1; PROMISSORY NOTE, 17 to 20.
See INSANITY, 2, 3.
See SUPREME COURT, 1, 10, 13.
DITCHES AND DRAINS.
1. Alimony.-Supreme Court.—The Supreme Court will not disturb an al-
lowance for alimony, unless there has been an abuse of discretion by
the trial court.
Buckles v. Buckles, 159
2. Alimony.- Attorney's Fees. - Antenuptial Contract.-- Supreme Court.-- Where
See County CLERK, 2.
1. Board of Commissioners. Appeal to Circuit Court.—Under the provisions
of section 1 of the act of March 13th, 1879, to enable the owners of
wet lands to drain or reclaim them, etc., the proceedings of the board
of commissioners of the county, in the cases therein provided for, were
judicial and not discretionary; and from all decisions of such com.
missioners, in such cases, any person aggrieved thereby might appeal to
the circuit court of the proper county.
Bryan v. Moure, I
2. Same.— Uncertainty of Petition.— Description.- Motion in Arrest.-An ob-
jection to the petition for a ditch or drain, on the ground of vagueness
or uncertainty in the description of the route of such ditch or drain,
can not be reached by a motion in arrest of judgment, but only by a
motion to make such description more certain and specific. Ib.
3. Same.-- Judgment of Circuit Court.- Mandate to County Board.-Practice.-
In such a proceeding, it was competent for the circuit court, on an
appeal thereto, under the provisions of section 5778, RS. 1881, to
send the proceeding down to the county board, with an order how to
proceed, and to require such board to comply with the final determi-
nation of such court in the premises.
See CRIMINAL LAW, 4, 5; PLEADING, 8.
See REAL ESTATE, ACTION TO RECOVER; SHERIFF'S SALE, 13, 15, 20;
Contested Election -- Quo Warranto.—Jurisdiction.--Statute Construed. The
right to an office may be contested and tried upon information filed in
the circuit court, under sections 749 and 750, 2 R. S. 1876, pp.
299, notwithstanding the special statutory provisions for the contest
State, es rel., v. (rallagher, -5.53
See CRIMINAL LAW, 18.
See DECEDENTS' ESTATES, 2.
Sheriff's Sale.— Redemption.- Landlord and Tenant.-Crops.-The law farors
the right of one who sows to reap, but, if he knows he can not reap
before the expiration of his right of possession, he sows at his peril;
so, where an execution defendant remains in possession of real estate
sold on execution during the year for redemption and puts in a crop
which will not mature until after the year expires, and he fails to
redeem he is not entitled to such crops.
Thomas v. Noel, 383
EMPLOYER AND EMPLOYEE.
See NEGLIGENCE, 1.
ENDORSER AND ENDORSEE.
See PROMISSORY NOTE, 17 to 20.
See SPECIFIC PERFORMANCE, 3; Township TRUSTEE, 4; TURNPIKE COM-
See VENDOR AND PURCHASER, 3.
See ARBITRATION AND AWARD, 3; BILL OF EXCEPTIONS, 4; CHATTEL
MORTGAGE, 5; City; CONTRACT, 1, 5; CORPORATIONS, 2; COUNTY
CLERK, 5; COUNTY ORDER, 3; CRIMINAL LAW, 10, 13, 19; EXECU-
TION, 2; GUARDIAN AND WARD, 5 ; INJUNCTION Bond, 1; INSURANCE,
2; JUSTICE OF THE PEACE, 5; LIQUOR LAW; NEGLIGENCE, 6; New
TRIAL, 3, 4; PRACTICE, 2, 6, 7, 9, 10, 14; PRINCIPAL AND AGENT, 1;
PROMISSORÝ NOTE, 1, 13; RAILROAD, 3, 4, 6, 8; Real Estate, Ac-
TION TO RECOVER, 6; SHERIFF'S SALE, 12, 20, 21; SUPREME Court.
4 to 6, 11, 12, 17, 20, 22, 23; Taxes, 5, 12, 13; TURNPIKE COMPANY,
2; WILL, 3, 4.
1. Witnesses. - Heirs.--Statement of Party.-On trial of an action against
heirs, founded on a contract with the ancestor, to obtain title to real
property, a party incompetent under section 499, R. S. 1881, to testify,
can not call from a witness his own statements of fact made to the
witness before and during examination.
Cottrell v. Cottrell, 87
2. Same.- What may not be given in evidence directly, can not be given
3. Same.- Conversation.-A party who is an incompetent witness to give
in evidence a conversation with a deceased person, can not give it in
evidence as rehearsed by him to another.
4. Tax Title. - Auditor's Deed. -- An auditor's deed upon a tax sale, put in
evidence by the defendant (who sought to show title in himself), failed
to recite that the owner of the land was without personal property out
of which the taxes could have been collected. Without other proof,
or any assurance of an intention to make such proof, it is not error to
reject such a deed, offered in evidence, to the defendant from the pur-
chaser for taxes.
Woolen v. Rockafeller, 208
5. Foreign Statutes. - Authentication.-A statute of another State, authen-
ticated as required by the act of Congress, R. S. 1881, sec. 454, is ad-
missible in evidence, though the authentication be not in conformity
with the statute of this State, R. S. 1881, sec. 457. Ansley v. Meikle, 260
6. Record.—Bill of Exceptions. - As evidence, a record of court is an entire
thing, and all proper parts of it are to go in evidence if any of it be
admitted; but this does not include bills of exceptions and other pa-
pers incidentally connected with the proceedings.
State, ex rel., v. Hawkins, 486
7. Same.-Objection.— Practice. -An objection to reading a record in evi-