« ΠροηγούμενηΣυνέχεια »
See APPEAL; FRAUDULENT CONVEYANCE, 2; MARRIED WOMAN; SHER-
IFF; SHERIFF'S SALE; VENDOR AND PURCHASER, 5.
1. Exemption.—Diligence.—Exemption of property from sale on execution
is a right to be asserted at the time and in the manner provided by
law, and by a person showing himself within the statute creating it,
or it is lost.
Boesker v. Pickett, 554
2. Same.-— Action for Possession.— Evidence.—In an action against an of-
ficer for property claimed as exempt, evidence that a schedule con-
taining a description of the property was presented to him and a
demand made to set it apart, and his return showing its seizure, make
a prima facie case.
3. Same.-- Offering Different Schedules.--Whether one claiming exemption
has offered schedules not containing the property claimed in the last,
is a question of fact for the court or jury trying the issue, and at
most he has the burden of explaining his acts.
4. Same.-Sale and Rescission.--Fraud. -- Supreme Court.— That property
claimed as exempt has been sold and regained by a rescission, does
not deprive the owner of his privilege, and where the sale is found by
the trial court to have been without fraud and rescinded the Supreme
Court can not say that its finding was not fully supported by the evi-
5. Same.-—- Allegation of Value.--An allegation, that “Said property does
not exceed in value the sum of $600,” sufficiently shows the value of
the property claimed as exempt.
See EXECUTION; Taxes, 15.
See COUNTY ORDER, 3; JUSTICE OF THE PEACE, 3; PLEADING, 4; PRON-
ISSORY NOTE, 16.
EXTENSION OF TIME.
See PROMISSORY Note, 3.
FEES AND SALARIES.
See CONSTITUTIONAL LAW, 1; COUNTY CLERK, 2.
1. Sheriff': Mileage.-Constructive Fees.--Statute Construed.--Under the fee
and salary law of 1879, Acts 1879, p. 130, which allowed the sheriff
mileage "for each mile necessarily travelled in going and returning
to serve process," and forbade the charging of any constructive fee,
the sheriff was not entitled to charge, for serving a special renire for
jurors in a criminal case, mileage for double the distance from the
court-house to the place where each juror was served. “ Necessarily
travelled " can not mean more than “ actually travelled.".
Board, etc., v. Pressley, 361
2. Same.--Right of Appeal.—The decision of the circuit court in reference
See COUNTY AUDITOR, 2; MORTGAGE, 6; PRACTICE, 8; SPECIAL FINDING;
FINES AND FORFEITURES.
See County CLERK, 2, 4.
See JUDGMENT, 3, 4; MARRIED WOMAN, 1, 2; MORTGAGE; PROMISSORY
Note, 17 to 20; SHERIFF'S SALE, 19.
FOREIGN INSURANCE COMPANY.
See CRIMINAL LAW, 17; INSURANCE, 11.
See EVIDENCE, 5.
See PROMISSORY Note, 11, 12.
See CRIMINAL LAW, 11.
See INJUNCTION Bond, 1; PARTITION.
1. Grounds of Defence.- A matter finally determined by a competent tri-
bunal is considered forever at rest, and the adjudication includes ev-
ery ground of defence which might have been litigated in the case.
Ballard v. Franklin L. Ins. Co., 239
2. Same. — Promissory Note. Answer of Fraudulent Alteration. — Reply.
Where in an action upon a promissory note the maker answers a fraud-
ulent alteration by the plaintiff, as adjudicated in a former action
thereon, a reply that the alteration, if made at all, was made by the
plaintiff's collecting agent without her fault, knowledge, connivance
or consent, is bad.
See CHATTEL MORTGAGE, 5; CONTRACT, 2, 3; EXECUTION, 4; FORMER
ADJUDICATION, 2; FRAUDULENT CONVEYANCE; PROMISSORY NOTE, 7;
TAXES, 8; TOWNSHIP TRUSTEE, 8.
Contract.— Rescission.—Partnership.— Receiver. - Complaint.-- Verdict. --- Judg-
ment. — Excessive Damages. - Vendor and Purchaser.-Complaint in two
paragraphs, alleging fraudulent representations whereby the plaintiff
was induced to purchase for $1,281 an interest in the property, ma-
chinery and trade of a factory worth only $800, and become a partner.
One paragraph prayed damages, the cancellation of a note given for
part of the purchase-money, the appointment of a receiver, and for general
relief; the other added a prayer to annul the contract. The verdict
found for the plaintiff damages in the sum which had been paid, and
that the note be cancelled, but was silent as to annulling the contract.
Held, that the complaint was good on demurrer.
Held, also, that the damages were excessive, since a judgment in accord-
ance with the verdict would leave the plaintiff owner of the property
Greenewald v. Rathfon, 547
See SHERIFF'S SALE, 4, 5.
1. Creditor's Bill.—Defence.-In a suit by a creditor to set aside a convey-
ance of real estate, alleged to have been executed by his debtor for the
fraudulent purpose of cheating, hindering and delaying the creditor
in the collection of the debtor's indebtedness to him, the answer of the
debtor, to the effect that, at the time of the commencement of the suit,
no part of his indebtedness to the creditor was due and unpaid, will
constitute a complete defence, in bar of such suit. Collins v. Nelson, 75
2. Subsequent Creditor.-Judgment.--Costs.- Execution.- Where one, already
embarrassed beyond his ability to pay, in anticipation of a possible
indebtedness for costs of a lawsuit which he afterwards commences,
and for the purpose of evading payment thereof, conveys real estate
to another, upon a secret arrangement that the latter shall pretend
to own it, that it may escape execution, but hold it for the use of the
grantor, and that his other assets shall be disposed of before the lia.
bility for costs shall accrue, it may be made subject to execution to
satisfy a subsequent judgment for such costs, if other property can not
then be found liable to execution.
Stevens v. Works, 445
See CRIMINAL LAW, 3 to 7.
GRAVEL ROAD COMPANY.
See NEGLIGENCE, 5 to 7.
GUARDIAN AND WARD.
See SET-OFF; WITNESS.
1. Adion on Bond.- Pleading.-- Appraisement. - Sale.—A complaint on a
guardian's real estate bond, to recover for failure to account for the
proceeds of the real estate sold, need not show an appraisement of the
Corbaley v. State, er rel, 62
2. Set-Off.— Answer of Surety.— Parent and Child.-In such an action, the
guardian being the father of the wards, an answer of set-off by the
surety, alleging that the wards were indebted to the guardian in a sum
named," for board, clothing and maintenance,” is bad on demurrer. It
3. Same.-An answer in such case, that, the wards being of tender years
and unable to earn support, the guardian, who was their father, being
destitute of means to support and educate his children and wards, was
compelled to apply thereto the proceeds of said real estate, and now
refuses to make claim against them on account thereof, is sufficient. Ib.
4. Same.-Statute of Limitations.--An answer, in such case, by a surety,
alleging that the cause of action did not accrue within three years
next before the commencement of the action, is bad.
5. Bond.-- Reports.-- Evidence. - In an action upon a guardian's bond,
where the breach assigned is that the guardian had taken the notes of
insolvent persons, without security, for the rents of his ward's real
estate, the guardian's reports to the court are competent evidence for
the purpose of identifying such notes, which were in evidence, as the
notes which had been in possession of the guardian.
French v. State, er rel., 151
6. Parties.- In a suit upon a claim due from the defendant as guardian,
the ward is neither a necessary nor a proper party. Ray v. McGinnis, 451
7. Same.-Claim against Ward's Estate for Money Borrowed by Guardian to
Remove Liens on Real Estate.- Money loaned to a guardian who is au-
thorized by the court to borrow the same for the purpose of remoring
liens from the land of his ward, and who uses it for such purpose,
constitutes a claim against such ward's estate, and the person who
loans it may recover it from such estate.
S. Piemoral from State.—Bond.- Damages.-In an action by a ward, in
1880, upon the bond of his guardian who had, in 1873, removed from
the State without accounting and paying over, the measure of damages
upon recovery was provided by section 163, 2 R. S. 1876, p. 551.
English v. State, ex rel., 455
See INSTRUCTIONS, 2; PRACTICE, 8; SUPREME COURT, 3, 9, 17, 18, 23;
TAXES, 13; VERDICT, 4.
See EVIDENCE, 1; REAL ESTATE, ACTION TO RECOVER, 6.
See NEGLIGENCE, 5 to 7; TOWNSHIP.
i. Obstruction.- Vacation.-A public highway is not vacated by the tem-
porary turning out of travel from the main track and the use of ad-
joining land temporarily to avoid an obstruction.
Davis v. Nicholson, 183
2. Same.- Penalty.-Such temporary divergence will not excuse the felling
of a tree across the obstructed main track, in violation of sec. 24, 1
R. S. 1876, p. 860; R. S. 1881, sec. 5082.
HUSBAND AND WIFE.
See MARRIED WOMAN; MORTGAGE, 4; SHERIFF'S SALE, 1; VOLUNTARY
Wife's Inchoate Interest Subject to Incumbrances Existing at Time of Marriage. -
The inchoate interest acquired by the wife in real estate owned by
the husband at the time of the marriage is subordinate to existing
incumbrances, whether recorded or not, and whether she had notice
of them or not.
Godfrey v. Craycraft, 476
IMPEACHMENT OF PUBLIC OFFICER.
See CONSTITUTIONAL LAW, 3.
See CHATTEL MORTGAGE, 2.
See CRIMINAL LAW, 9, 15.
See CORPORATIONS, 3, 4; CRIMINAL LAW, 4, 12; TURNPIKE COMPANY, 6.
See Taxes, 6, 16.
1. Action on.—Judgment in Another Action not a Bar.--Transcript.- Evidence.
1. Contract. Unsoundness of Mind. The contract of an insane person,
whose disability has not been judicially determined, is voidable only,
and not void.
Fay v. Burditt, 4.33
2. Same.—Disaffirmance.-- When Contract of Insane Person will not be Set
Aside. --An insane person, unless his insanity had been judicially de
clared before the contract was made, has not the same unqualified
right, as an infant or married woman, to disaffirm his contract; and
when there is nothing in his appearance, conversation or conduct to
indicate his mental incapacity, and he makes a contract with one
without notice of his condition, which is in itself fair and just, and
such contract becomes so far executed that the parties can not be
placed in statu quo, it will not be set aside.
3. Same.-Chattel Mortgage.--Title to Property.- Posression.— Demand.- Re-
plevin.-A chattel mortgage executed by an insane person, whose men-
tal unsoundness has not been judicially determined, will vest the title,
and, after default in the condition, the right of possession of the chattel
in the mortgagee; and actual possession obtained under it can not be
made wrongful without a disaffirmance. In such case, there must be,
therefore, a disaffirmance before an action can be maintained to re-
cover the chattel from the mortgagee.
Semble, that a party to a contract should not be allowed to disaffirm on ac-
count of insanity, without restoring what he had received, or offering
to make compensation therefor, if the other party acted in good faith,
and the contract itself was fair.
4. Same.- Instructions. --Burden of Proof.--Shifting of Burden.-In an action
by the mortgagor of a chattel, to recover possession on the ground of
his insanity when he made the mortgage, it was not error to instruct,
"That the plaintiff must have established, by a preponderance of evi-
dence, that he was insane at the time he executed the note and mort-
gage;" nor in refusing to instruct“ That if the plaintiff had established
by a preponderance of the evidence, that he was of unsound mind
prior to the making of the chattel mortgage, then the burden of proof
is cast upon the defendant to show that the plaintiff was of sound
mind at the time,” etc. The burden of proving insanity is on the one
who alleges it.
Quære, whether it is quite accurate to say that the burden of a particular
affirmative issue ever shifts in the course of the trial from one party
to the other.
See Costs, 2; GUARDIAN AND WARD, 5; PROMISSORY NOTE, 3, 17.
See CRIMINAL LAW, 17, 18.
1. Fire Insurance.-- Pleading.-Condition Precedent.—“Fulfilled” and “Per-
formed” Equivalent. –The allegation in a complaint, in an action upon
an insurance policy, that "the plaintiffs duly fulfilled all the condi.
tions of said agreement and insurance on their part,” is sufficient.
The word "fulfilled " is equivalent to the word “performed," as used
in sec. 84 of the code, R. S. 1881, sec. 370. na Ins. Co. v. Kitiles, 96
2. Same.--Notice, Proof and Demand.--In such case, a further allegation
of due notice and proof of loss, and demand of payment, constitutes
no part of the general allegation of performance, but only shows that
an action had accrued.
3. Same.—Insurable Interest at Time of Loss. — Complaint.—A complaint on