Continued.

APPEAL. FROM BOARD OF SUPERVISORS.

cuit Court, in the matter of equalizing assessments for taxation. Board
of Supervisors of Bureau Co. v. The Chicago, Burlington and Quincy
Railroad Co. 229.

2. Constitutionality of the act. The act of 1861, allowing appeals in
such cases is constitutional. Ibid. 229.

APPEALS AND WRITS OF ERROR.

WHEN THEY WILL NOT LIE.

From decision of Circuit Court in proceedings to locate highways.
Under the 38th section of the statute relative to public roads, and the
authority of the case of the County of Sangamon v. Brown, 13 Ill. 210,
the decision of a Circuit Court, in proceedings brought to that court for
locating a public highway, is final, and cannot be appealed from. Marion
· County v. Harper, 482.

ASSESSMENTS.

FOR PUBLIC IMPROVEMENTS.

ASSESSMENT OF DAMAGES.

See SPECIAL ASSESSMENTS.

ON JUDGMENT UPON DEMURRER.

Admissibility of evidence. See PLEADING AND EVIDENCE, 3.

ASSIGNMENT.

INDORSEMENT IN BLANK.

1. What may be written over it. The rule is firmly established, that the
holder of commercial paper with a general indorsement may fill it up
with any contract consistent with such paper, and in accordance with the
agreement of the parties when the indorsement was made. Also, such
indorsement may be filled up at any time before or at the trial. The con-
tract of assignment and that of guaranty are not the same, but different.
Croskey v. Skinner, 321.

2. Effect of filling up the blank improperly. Where a holder fills up a
general indorsement with both an assignment and a guaranty, and the
indorser files a plea denying the guaranty, verified by oath, the holder
may abandon his claim to a recovery under the guaranty, and, upon proper
proof of diligence or insolvency, recover on the assignment; and, when
the question of authority to write the guaranty is withdrawn, the court
will not, in the absence of evidence, presume that it was unauthorized.
Even if the wrongful writing of a guaranty in such an indorsement
could be held to be an alteration of the contract of assignment and could
have that effect, there must be evidence that it was wrongful. Ibid. 321.

3. There being no doubt of the right to fill up the indorsement with an
assignment, it is not perceived how filling in the guaranty could affect
the assignment, whether authorized or not at the time. But if it could
be so held, the court would not presume a want of authority in the absence
of proof. It does not matter whether the assignment were filled up before
or on the trial. The writing of an unauthorized guaranty over such an

ASSIGNMENT. INDORSEMENT IN BLANK.

Continued.

indorsement in no wise affects, alters or modifies the contract of assign-
ment. Croskey v. Skinner, 321.

FORECLOSURE BY SCIRE FACIAS.

Where the note is assigned, foreclosure in the name of the payee. See

MORTGAGES, 21.

ASSIGNEE OF TITLE BOND FOR LAND.

Whether liable for unpaid purchase money due the first vendor. See
PURCHASERS, 3.

ASSIGNMENT FOR THE BENEFIT OF CREDITORS.

PREFERENCE OF CREDITORS.

1. Is allowable. A debtor in failing circumstances may make an assign-
ment for the benefit of his creditors, and in so doing, he may make a
preference in favor of a portion of his creditors. Blow et al. v. Gage
et al. 208.

2. But to be valid, it must be done in good faith; for if intended to
delay creditors, or otherwise, for fraudulent purposes, or if the preference
be a secret trust, it is void. Ibid. 208.

3. Transactions of this character are required to be fairly and honestly
made, and, to that end, they will be rigidly scrutinized. Ibid. 208.
PROVISION FOR PAYMENT OF DAMAGES.

4. When incurred in relation to the execution of the trust. It is no
objection to a deed of assignment, that it contains this language:
"deducting and retaining all such costs, charges, damages, expenses and
disbursements, as shall be sustained, incurred, or reasonably due, for or in
relation to the execution of the trusts." The use of the word "damages"
therein, does not vest in the trustee power to squander the assets, by the
charge of fictitious damages. Ibid. 208.

ALLOWANCE OF DAMAGES.

5. Where a trustee, in an effort to execute his trust justly, renders him-
self liable to damages, which are awarded against him, he will be allowed
to retain the amount thereof out of the fund. Ibid. 209.

EXPENSES OF THE TRUST.

6. Are always allowed. The law allows all reasonable charges, costs,
expenses and disbursements, to be paid out of the fund, but they are
always subject to be reviewed by a court of equity; and such disburse-
ments will be allowed, whether provided for in the deed or not. Ibid. 209.
EMPLOYMENT OF THE DEBTOR.

7. By the trustee. Where the trustee employed the debtor to assist
him in the settlement of the affairs of the firm, the management of the
trust fund remaining strictly under the control of the trustee, such em-
ployment will not be considered as a badge of fraud, unconnected with
other facts tending to prove fraud. Ibid. 209.

OF A DEBT DUE A FORMER PARTNER.

8. The fact that a debtor, making an assignment for the benefit of his
creditors, includes in the list of preferred creditors a debt fairly and

ASSIGNMENT FOR THE BENEFIT OF CREDITORS.

OF A DEBT DUE A FORMER PARTNER. Continued.

honestly incurred by him, in buying out a former partner, and for money
loaned to him by such retiring partner after his withdrawal, cannot be
regarded as a fraud upon the creditors. Blow et al. v. Gage et al. 209.
SALE BY ONE PARTNER TO ANOTHER.

9. What is proof of insolvency. It is no evidence that a firm is insol-
vent, because, if forced to wind up its business at a particular time, it
would be unable to pay all of its liabilities. And it is no fraud upon the
creditors, for one of its members to sell out to the other partners at such a
time his interest in the partnership, and to be so there must be proof of
such fraudulent design. Ibid. 209.

PURCHASES BEFORE ASSIGNMENT.

10. Whether fraudulent. Purchases made by a firm some time before an
assignment, arriving subsequently, the title thereto vests in the assignees,
the seller having failed to exercise the right of stoppage in transitu.
Ibid. 209.

11. Purchases made by a party, on credit, at a time when he knew he
could not pay his debts, will not, for that reason alone, be regarded as
fraudulent. Ibid. 209.

12. But the rule is otherwise as to purchases made in contemplation of
an assignment. Ibid. 209.

NOTICE OF FAILURE.

13. Need not be given. There is no rule of law that requires a debtor to
give notice of his failure. Ibid. 209.

FRAUD MUST BE PROVED.

14. The fraudulent design of a debtor in making an assignment must
be proved, and cannot be established by mere suspicion; but can only be
sustained upon satisfactory proof of the fact. Ibid. 209.

ATTACHMENT.

RESIDENCE- WHAT CONSTITUTES.

Within the meaning of the attachment act. Whether a person who
moves from New York to Illinois gains a residence in this State, within
the meaning of our attachment law, is a question of intention deducible
from facts and circumstances.

In 1859 a party, formerly a resident of Medina, New York, came to
DeKalb county, Illinois, and purchased a farm which he cultivated and
lived on from the spring of 1861 to August 1864, but never moved his
wife thereto from Medina.

While thus living on his farm he voted in this State and spoke of
Illinois as his residence, and declared his intention to make the farm his
permanent home, and said his wife would join him on the decease of her
mother, who was then too old to be removed. In May, 1864, his property
was attached on the ground that he was not a resident of Illinois.

Held, that these facts and circumstances manifest a residence, and,
therefore, that the attachment would not lie. Wells v. The People, etc. 40.

ATTORNEY AT LAW.

OF HIS AUTHORITY.

1. And when it ceases. An attorney usually has the power to receive his client's money in the case in which he is employed, and this, by virtue of his retainer. The fact of employment implies such authority, unless limited, and even then a client would be bound, unless the party paying the money to the attorney had notice of the limitation. Ruckman et al. v. Alwood et al. 183.

2. The power of an attorney ceases upon the termination of the relation, after which any and all acts of an attorney, whether in the matter of receiving the benefits of a judgment, or decree, releasing errors of record, or otherwise, are unwarranted, being without authority, and therefore do not bind the client. Ibid. 183.

THEIR BRIEFS SHOULD BE DECOROUS.

3. It is expected that attorneys, in their briefs in the Supreme Court, will abstain from indulging in unkind remarks or allusions toward the judge who tried the cause below, and that they will be decorous to opposing counsel. Belton, Admx., v. Fisher, 30.

AURORA, CITY OF.

SUMMONS.

For violation of ordinance-requisites of summons. See PROCESS, 2.

AUTHENTICATION.

RECORDS OF FOREIGN JUDGMENTS.

1. When the transcript of the proceedings and judgment in a suit tried before a justice of the peace in another State, is authenticated in such manner as to be admissible in evidence, under the laws of such State, in other counties than that in which the judgment was rendered, then the authentication is sufficient in this State. Belton, Admx., v. Fisher, 35.

2. Transcript of judgment rendered by a justice of the peace in Wisconsin. Where a transcript of a judgment rendered by a justice of the peace in the State of Wisconsin has attached thereto the certificate of the clerk of the Circuit Court of the county in which the justice resides, under the seal of the court, specifying that the person subscribing the transcript was, at the date of the judgment, a justice of the peace of such county, that is a sufficient authentication to render the transcript admissible in evidence in the courts of this State. Ibid. 35-6.

LOSS OF NOTE BY EXPRESS COMPANY.

Liability of the company. See EXPRESS COMPANY, 1, 2.

BELLIGERENTS.

WHO ARE BELLIGERENTS.

And subject to what law. See PERSONAL LIBERTY, 3, 4, 5.

BILLS OF EXCEPTIONS. See EXCEPTIONS AND BILLS OF EXCEP. TIONS, 2 to 6.

BILL TO REDEEM. See MORTGAGES, 23, 24, 25.

BLANK INDORSEMENT. See ASSIGNMENT, 1, 2, 3.

BOUNDARIES.

OF GRANTS UPON WATER COURSES. See GRANT, 1, 2, 3.

BURDEN OF PROOF. See EVIDENCE, 5.

CHANCERY.

JURISDICTION.

1. When the right must be first established at law. Where three persons, in possession respectively of certain lands, viz., A of those lying upon the east bank of a river, B of those lying upon the west bank, and C of an island in the center, made their respective entries for the same at the government land office on the same day, and which lands had been separately surveyed and purchased by them as distinct tracts,—held, in a suit in chancery brought by A against the others to settle their respective rights to the use of the water bounding these grants, that a court of equity could not acquire jurisdiction in such case, to settle the legal rights of the respective parties to the water course, until after the right and its infringement had been established in a court of law. Stolp et al. v. Hoyt, 219.

2. That the rights of the respective parties in the water are sufficiently certain to be easily determined by a court of law for any infringement thereof by either. Ibid. 219.

3. Where there is a defense at law. Where it appears that a full and complete defense might have been interposed at law, a court of equity will not relieve. Gold, Admr., et al. v. Bailey, 491.

4. So, when a judgment is obtained against an administrater, equity will not interfere to relieve against it at the suit of an heir of the deceased, it appearing by the bill, that the grounds upon which impeachment of the judgment was sought constituted a good defense, and might have been interposed in the suit at law, and no fraud or collusion in obtaining it was alleged against the administrator. Ibid. 491. MULTIFARIOUSNESS.

5. When it must be objected to. The objection that a bill is multifarious cannot be raised for the first time in this court. It should be made in the court below, either by demurrer, plea or answer. Henderson et al. v. Cummings, 325.

6. Waiver thereof. And, where a party files his answer, and goes into an examination of the testimony on the merits, he will be considered as having waived such objection. Ibid. 325.