PLEADING AND EVIDENCE. ALLEGATIONS AND PROOF. Continued.
violated; and where, in such a case, the ordinance named in the summons,
as having been violated, is excluded upon the trial, the city cannot pro-
ceed against the defendant on another ordinance of a different character.
The ordinance stated in the summons, to be violated, is the cause of action,
and it cannot be shifted, without consent, to another cause, even if the
magistrate has jurisdiction of that other cause. Gates v. City of Aurora, 121.
6. When they need not correspond. In a bill to redeem, a tender being
unnecessary, an allegation in the bill of a tender, unproved, can not defeat
the pre-existing right. Dwen, Exr., v. Blake, Exr. 136.
7. When the proof sufficient. Where the declaration contains no aver-
ment of a tender but a readiness and willingness to perform, plaintiff
need only show such readiness and willingness to perform. A tender
need not be proved. McPherson v. Nelson et al. 124.
Must correspond. See ALLEGATIONS AND DECREE, 1, 2, 3, 4.
EVIDENCE UNDER PARTICULAR ISSUES.
On the trial of the question as to the value of property, for purposes of taxa
tion. See TAXES, 10, 11 12.
OF HIS POWERS. See IMPOUNDED ANIMALS, 1, 2, 3.
POWERS.
POWERS OF A TOWN.
To prevent the establishment of a cemetery, under a power" to abate and
remove nuisances. See NUISANCES, 1.
WHERE A PART PLEAD SPECIALLY.
1. Where a part of several defendants in trespass plead specially — rights
of the other defendants. An action of trespass is several as to each defend-
ant, and each has a right to make his own defense and to have it tried
without being compelled to rely upon a defective defense made by a co-
defendant. Johnson v. Jones et al. 144.
2. Where one of several defendants in such action pleads specially such
matter as shows the plaintiff cannot maintain his action against either,
and the other defendants plead the general issue only, upon a demurrer
to the special plea being overruled, and the plaintiff abides by his
demurrer, the defendants pleading the general issue have their option,
either to claim the benefit of the judgment on demurrer in favor of their
co-defendant, or to insist on a trial of the issue made by their own plea.
Ibid. 144.
3. If the defendants who plead the general issue only, seek to avail
themselves of the judgment of the court on the special plea of their co-
defendant, and the court permits it, the plaintiff can except, and preserve
against them in the record, the same question raised by his demurrer to
the special plea. Ibid. 144.
4. But, if those defendants pleading the general issue insist upon a trial
of that issue as to them, notwithstanding the ruling upon the demurrer
to the special plea of their co-defendant, then, on such trial, a verdict and
judgment may be had according to the proof. Johnson v. Jones et al. 144.
OF RULES OF PRACTICE.
5. In inferior courts. This court will not reverse a judgment, merely
on the ground, that the court, in rendering it, disregarded one of its
established rules of practice, unless such violation be plain, and likely to
result in injustice. A court is the best interpreter of its own rules.
Mix et al. v. Chandler et al. 174.
PRACTICE IN THE SUPERIOR COURT OF CHICAGO.
6. Construction of the thirty-fourth rule. Under the thirty-fourth rule
of practice, adopted by the Superior Court of Chicago, it is proper for the
court to dispose of a demurrer in a cause, when reached upon the docket
for trial, without any notice; it being the duty of counsel to be present,
and prepared for its disposition, whether upon an issue of fact or law.
Ibid. 174.
7. By pleading over. A party whose demurrer has been overruled, by
pleading over waives any error committed thereby. Camp et ux. v
Small, 37.
IMPROPER REMARKS OF THE COURT.
8. In the hearing of the jury. On the trial of a cause the court remarked
in the hearing of the jury, in reference to a certain statement of a witness,
that "it amounted to nothing," when the evidence was proper for the
consideration of the jury, and it was held, such a remark was error, as it
would tend to exclude the evidence in reference to which it was made
from the consideration of the jury. Kennedy v. The People, 283.
SENDING PROCESS TO FOREIGN COUNTY.
9. Under amendatory act of 1861. Under the act of 1861, amendatory
of our practice act, a sole defendant cannot be sued out of the county
where he resides, or may be found, unless the contract upon which the
suit is brought, was actually made in the county where suit is brought,
and the plaintiff resides in that county. Mahony v. Davis et al. 288.
10. And when a party living in La Salle county gave in that county an
order to the traveling agent of a merchant residing in Cook county, for
the purchase of certain goods, upon which they were sent to him, such
contract cannot be sued upon in Cook county, and process sent to, and
served upon, the defendant in La Salle county. Ibid. 288.
11. Such contract cannot be said to have been “actually made” in Cook
county; as the sense in which those words are used in the act, evidently
has reference to the actual presence of the parties, and not to a construct-
ive presence, in the form of an offer by letter, or verbally transmitted.
TIME FOR MAKING CERTAIN OBJECTIONS.
12. Misjoinder of parties plaintiff. Should the administrator of a de-
ceased partner improperly join with the surviving partner in an action to
recover a debt due the firm, the misjoinder should be objected to in the
court in which the suit was brought,-it is too late to take the objection
in a suit brought upon the judgment rendered in the action in which the
misjoinder occurred. Belton, Admx., v. Fisher, 33.
STRIKING PLEAS FROM THE FILES.
When they amount to the general issue. See PLEADING, 4.
After they have sealed their verdict and separated. See JURY, 1 to 4.
QUESTIONS OF LAW AND FACT. See JURY, 9.
When not necessary. See NEW TRIALS, 1, 2.
OBVIATING GROUNDS FOR NEW TRIAL.
By concessions from the opposite parly. See NEW TRIALS, 15, 16.
PRACTICE IN THE SUPREME COURT.
ERROR WILL NOT ALWAYS REVERSE.
1. Of an improper entry of a verdict. In an action of debt the verdict
was improperly entered by the clerk in damages, but in order to avoid
the granting of a new trial on the motion of the plaintiff, on the ground
that the verdict was too small, the defendant consented that it should be
raised to a larger sum; and, the judgment being so entered, the act of
the clerk in entering the original verdict in damages was not considered
a sufficient reason for reversing the judgment. James v. Morey, 353.
RELEASE OF ERRORS.
2. What constitutes. Where a party recovering a judgment, or decree,
voluntarily accepts the benefits thereof, knowing the facts, he is thereby
estopped to afterward reverse such judgment or decree. The acceptance
operates, and may be pleaded, as a release of errors. Ruckman et al. v.
Alwood et al. 183.
3. When not granted. Where a party brings a record to this court, as-
signs error thereon, and submits the cause for decision upon the transcript
as it then stands, a rehearing will not be granted at his instance, after
the cause is tried and a judgment rendered, upon the ground of an alleged
mistake committed by the clerk below in making the transcript of the
record. McPherson v. Nelson et al. 124.
ENTERING FINAL JUDGMENT THEREIN.
4. When it will not be done. Where, in a proceeding by distress for
rent, a general judgment was rendered and execution awarded upon the
finding of the jury, the Supreme Court will reverse the judgment for the
error, and remand the cause with directions to the court below to enter a
final order in conformity with the statute; but the final order will not be
entered in the appellate court. Storing v. Onley, 123.
PRACTICE IN THE SUPREME COURT.
ENTERING FINAL JUDGMENT THEREIN. Continued.
5. Former decision. In Alwood v. Mansfield, 33 Ill. 452, which was a
case of similar character, the final order was entered in the appellate
court, but it is considered the better practice to remand the cause and let
the final order be entered in the court below. Storing v. Onley, 123.
RENDERING FINAL DECREE THEREIN.
6. Although it be admitted that a decree was for too large a sum, the
Supreme Court will not render a final decree, it having found that prac
tice leads to inconvenience, but will remand the cause, that the proper
decree may be entered in the court below. Pidgeon v. Trustees of
Schools, 501.
PRE-EMPTION.
OF THE NATURE OF THE INTEREST.
1. And of the mode of transfer. The interest acquired by a pre-emption
right is not a mere chattel interest which can be transferred by parol, but
requires a written instrument to pass such right or title. Lester et al. v.
White's Heirs, 464.
2. May be taken on execution - or on death of owner, descends to the heir.
It is a right which may be taken on execution; or upon the death of the
owner, it descends to the heir, and will not go to the executor or adminis-
trator. Ibid. 464.
PRESIDENT OF THE UNITED STATES.
Of the power of the President to deprive a citizen of his liberty, in time of
peace or war. See PERSONAL LIBERTY, 1 to 10.
PRESUMPTIONS.
PRESUMPTIONS OF LAW AND FACT.
1. Presumption in support of a judgment below, in the absence of evidence
from the record. See EXCEPTIONS AND BILLS OF EXCEPTIONS,
2, 3, 4, 6.
2. As to sufficiency of service of process in a suit in another State. See
JUDGMENTS, 1.
3. As to the identity of persons, where the same name occurs.
NAMES, 4.
4. Presumption as to identity of persons where there is a variance in the
name. See NAMES, 3.
5. Where bill of exceptions in transcript has no seal, presumption that
original had none. See EXCEPTIONS AND BILLS OF EXCEPTIONS, 4.
6. As to the time of the delivery of a deed. See CONVEYANCES, 2.
7. As to negligence, where property is lost while in the hands of a bailee.
See NEGLIGENCE, 4.
8. Finding upon nul tiel record—when presumed correct. See EXCEP-
TIONS AND BILLS OF EXCEPTIONS, 2.
PRESUMPTIONS OF LAW AND FACT.
9. Presumption as to authority of an agent. See AGENCY.
10. And as to the continuance of such authority. Same title, 4.
11. In support of a verdict, where the evidence does not appear. See
EXCEPTIONS AND BILLS OF EXCEPTIONS, 6.
12. Presumption that a law was constitutionally passed. See STAT-
UTES, 1.
PRINCIPAL AND AGENT. See AGENCY.
1. Its sufficiency. When the venue of a writ is, "State of Illinois, Jack-
son county," and the process was directed to "the sheriff of Jasper county,"
commanding him to summon the defendants "to appear before said Circuit
Court, on the first day of the next term thereof, to be holden at the court
house, in Murphysboro," etc.,-held, that in this no ambiguity existed;
the place where the court was to be held, and where the defendants were
summoned to appear, being certain. Hall et al. v. Davis, 494.
CITY OF AURORA.
2. Requisites of summons for a violation of an ordinance thereof. The
charter of the city of Aurora prescribes the mode in which suits shall be
brought before the police magistrates of the city for a violation of any of
its ordinances, requiring to be stated in the summons the ordinance
alleged to have been violated. Gates v. The City of Aurora, 121.
IN PROCEEDINGS BY QUO WARRANTO.
What process necessary to bring the respondent into court. See QUO
WARRANTO, 1, 2.
SENDING PROCESS TO FOREIGN COUNTY. See PRACTICE, 9, 10, 11.
HOW FAR A PROTECTION TO AN OFFICER. See OFFICER, 1.
REVERSAL OF JUDGMENT OR DECREE.
1. Its effect upon the rights of the purchaser. If a judgment or decree
be reversed for error after sale of property thereunder, it is a settled prin-
ciple of the common law coeval with its existence, that the defendant
shall have restitution of the purchase money, and the purchaser shall
hold the property sold, except where the plaintiff in the judgment or
decree becomes purchaser and still holds the title. Fergus et al. v. Wood-
worth et al. 374.
2. The rule of notice lis pendens does not apply to a purchaser under a
decree of foreclosure who is not a party to the record. The law does not
require such purchaser to inspect the record, and to see that it is free from
errors. He only has to see that the court has jurisdiction, and there is
such a judgment or decree, unreversed, as authorizes the sale. Ibid. 374.
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