ATTACHMENT AND GARNISHMENT.

ATTACHMENT.

1. Before justices of the peace.-A justice of the peace has jurisdiction in attachment only by virtue of the statute, and such jurisdiction must be exercised only in the way pointed out in the statute. So, where in attachment, the defendant not being served or appearing in the cause, the justice continued the case for fourteen days only, he lost jurisdiction and the judgment was void. The People v. Jarrett, 566

2. Illegal levy-Trespass.-Where levy of an attachment writ is made in an illegal or unauthorized manner, the sheriff and plaintiffs in attachment are liable as trespassers ab initio for any subsequent disposition they may make of the property seized under the attachment proceedings. Culver v. Rumsey, 422

3. Irregular levy not aided by after possession.—An irregular levy made by indorsing a levy upon a writ, the property not being in the presence of the officer, is not aided by the fact that the officer subsequently saw the property in charge of a custodian whom he had placed over it. Culver v. Rumsey, 422

4. Levy-How made.-In order to a valid levy of a writ of attachment, the property must be in view of the attaching officer. An indorsement of a levy, made when the property is miles away from the officer making the levy, is a nullity. Culver v. Rumsey, 422

5. Must be a valid levy.-Proceedings by attachment derive their validity wholly from the statute, which in all essential particulars must be complied with. A valid levy of the attachment writ is essential to the jurisdiction of the court over the subject-matter. Culver v. Rumsey, 422 GARNISHMENT.

6. As affected by assignment for creditors.—Where there was an assignment of all the effects of the defendant in attachment for the benefit of creditors prior to the issuance of the writ of attachment, there is an equitable transfer of the estate of the defendant, including the chose in action against the garnishee, which will be protected. Money due the defendant in attachment, cannot, after such assignment, be reached by garnishment at the suit of an individual creditor. Dehner v. Helmbacher Forge and Rolling Mills,

47

7. Generally-Where the land of a defaulting county treasurer was sold under a mortgage, and the proceeds exceeded the amount of the mortgage debt and homestead right, leaving a balance in the hands of the trustee, and in garnishment proceedings against the trustee by the general creditors of the treasurer, the proper town and school authorities interpleaded, claiming a statutory lien upon such money for taxes collected and not paid over, the lien attached by virtue of the statute, and it was not necessary that judgment should first be obtained against the defaulting treasurer. The People v. Stitt,

ATTORNEYS.

GENERALLY.

294

1. Taking possession of property under chattel mortgage.-Where an attorney, acting under directions of the mortgagee, takes proper pos

ATTORNEYS.

GENERALLY. Continued.

session of the mortgaged property, he is not liable for the subsequent
neglect of the custodian in charge, in permitting the property to be sold
under an execution. Gaines v. Becker,

BAILMENT.-See SALE.

GENERALLY.

315

1. Care required of bailee.-In the case of a bailee receiving prop-
erty on trial, with an option to purchase if he likes it, if not to return it,
the bailment not being gratuitous, but contemplating a mutual benefit,
imposes upon the bailee only the obligation of ordinary care in keeping
and returning the property, and a return by an agent to another agent
who undertook to return it to the owner, is not want of ordinary care.
Colton v. Wise,

395

2. Property taken on trial.-A mere option on the part of one party
to purchase a horse if he likes it, and taking the horse upon trial, consti-
tutes a bailment, not a sale, and the relation of the parties is not changed
by the fact that the property was not returned on the day fixed by the
bailor, there being no agreement by the bailee to return on that day. Col-
ton v. Wise,
395

3. When a sale.-An agreement that the bailee may sell the thing
bailed, destroys the character of the transaction as a bailment, and it be-
comes a sale. Brinton v. Gerry,

BIDDING AT SALE.-See SALE.

BILL OF EXCEPTIONS.-See PRACTICE.

GENERALLY.

238

1. Must be signed.-There being no bill of exceptions properly signed,
in the record, and no suggestion of a diminution of the record, the pre-
sumption is that the original bill of exceptions was not signed, and the
judgment will be affirmed. Pierson v. Watters,
400

BONDS.-See MUNICIPAL BONDS.

APPEAL.

1. Construction.-A bond given on appeal to an appellate court is to
be regarded as a mere security for payment of the judgment appealed
from, and whatever discharges that judgment discharges also the liabili-
ty of the obligors on the bond. Cook v. King et al.,
GENERALLY.

549

2. Ambiguity.-Where a bond describes the obligees as "Board of
Trustees of Township No. 5, Range No. 9," but omits the name of the
county, there is a latent ambiguity that may be aided by averment. Trus-
tees of Schools v. Rodgers et al.,

33

3. Suit on Pleading.—Where a bond is made to a corporation by a
name varying from the true name, the plaintiffs may sue in their true
name, averring in their declaration that the defendants made it to them
by the name mentioned in the bond. Trustees of Schools v. Rodgers
et al.,

83

BONDS. Continued.

GUARDIANS.

4. Suit on.-An action upon a guardian's bond, for failure to pay over to a successor, cannot be sustained if the declaration fails to allege the due appointment of the successor. Mere profert of letters of guardianship attached to the declaration is not sufficient. The People v. Steele et al.,

20

5. Suit on-Failure to make report. In a suit upon a guardian's bond for a failure to make report when required by the court, the declaration should allege that the guardian was required by the court to make a report. The People v. Steele et al.,

INDEMNIFYING BOND.

20

6. Irregularities in sale.-In a suit upon an indemnifying bond, the fact that the execution under which the property was sold directed the collection of a greater rate of interest than allowed by law, or the fact that the sale was adjourned for five instead of ten days, cannot be used by the obligor as a defense. At the most, these were mere irregularities, voidable at the option of the execution debtor, within a reasonable time. Stanton v. McMullen, 326

7. Officer may require.—If there is reasonable doubt as to the ownership of the goods levied upon, or as to their liability to be taken in execution, the officer may require sufficient security to indemnify him for taking them. Stanton v. McMullen, 326

8. Suit upon.-While it is true that a promise to indemnify another for known acts of trespass cannot be enforced, yet the rule has never been extended to cases where parties in the prosecution of their legal rights, in good faith, have committed an unintentional wrong against another. To defeat a recovery in such a case, it should be shown that the parties were acting in bad faith, intending to make use of the writ to oppress the debtor; and as bearing upon the question of good faith, the fact that the debtor did not furnish a schedule claiming the property as exempt, as required by law, and thus place the officer in possession of full information concerning the property, has an important bearing. Stanton v. McMullen, 326

OFFICIAL.

9. County treasurer's-Lien.-The statute makes the bond of the county treasurer a lien upon his real estate. Where the treasurer acquires land incumbered by a mortgage, and such land is sold to satisfy the mortgage, the lien of his official bond will attach to the proceeds of such sale in preference to the claims of other creditors, after the mortgage debt and homestead right are satisfied. The People v. Stitt, 294 REPLEVIN.

10. Breach.-A judgment for defendant in the replevin suit constitutes a breach of the replevin bond, and when admitted in evidence is conclusive of a right to recover upon the bond; saving to the plaintiff in replevin the right to prove title to the property in mitigation of damages. Rankin et al. v. Kinsey,

215

11. Suit on. In a suit upon a replevin bond for failure to return property, where the defendants claim title under an execution sale, it is

BONDS.

REPLEVIN. Continued.

87

necessary in order to support such title for them to prove a valid judg-
ment, and an execution issued thereon. Ledford et al. v. Weber,
SUIT ON.

12. Allegation and proof.—In an action upon a township treasurer's
bond, alleging that he had received money of the school district which he
had neglected to pay over to his successor, proof that he had received
from such collector coupons upon bonds of said district, does not meet the
allegation in the declaration, and fails to establish a case for the plaintiff.
Humiston et al. v. Trustees of Schools,
122

CARE.

GENERALLY.

1. In being cured of an injury.-In actions for damages for injuries
received by reason of the negligence of others, the only care required of
the plaintiff, in respect to being cured of the injuries received, as affecting
the rule of damages, is ordinary care and prudence in employing a skill-
ful physician, such as an ordinarily reasonable, careful person would use
under like circumstances. City of LaSalle v. Thorndike,
282

2. In being cured of injury—Question of fact.—The question whether
a plaintiff used ordinary care to properly treat and care for himself after
the injury, may, with great propriety, be left to the jury, and if they
should find the pain and suffering endured by him to have been aggra-
vated by his want of care in being restored, he should not be allowed to
recover damages for any additional pain occasioned by his own negli-
gence. City of Gilman v. Haley,

CASE. See ACTIONS.

CAUSE OF ACTION.-See ACTIONS.

CERTIORARI.-See ACTIONS.

CHAMPERTY.

GENERALLY.

349

1. Champertous agreement.-Whether an agreement between the
plaintiff and his attorney, by which the latter is to pay the expenses and
carry on the case for a share of the amount recovered, is champertous,
and if so, can be set up as a defense to plaintiff's cause of action, the
court do not decide. C. & N. W. R'y Co. v. Boller et al.,

CHANCERY.

CREDITOR'S BILL.

625

1. Answer in, not traversable.-A creditor's bill is a bill for relief as
well as discovery, but the relief is dependent upon the discovery, and
where the answer not only fails to discover assets, but denies their posses-
sion, the allegations of the answer cannot be traversed, and the court
proceed to try such traverse, and grant relief in case the defendant is
found in possession of assets. U. S. Ins. Co. et al. v. Cent. Nat. Bank
et al.,
426

CHANCERY. Continued.

CROSS-BILL.

2. Must relate to subject-matter of bill.—While the cross-bill must relate to the subject-matter in controversy in the original bill, it is not necessarily restricted to the issues in the original cause. Where the subjectmatter of the original bill was an attack upon defendant's rights in certain lands, it is no departure from the case for her, in turn, to seek to have her title ascertained and declared. Follansbee et al. v. ScottishAm. Mtg. Co. et al., 486

3. To vacate judgment at law.-Where the original bill sought to enforce against defendant's property certain judgments entered by confession against him, it is germane to the original bill to set up, by way of cross-bill, the illegality of such judgments, and seek to have them set aside and vacated. Follansbee et al. v. Scottish-Am. Mtg. Co. et al., 486

4. When necessary.-Where defendants in proceedings for foreclosure set up a title derived from sheriff's sale, except as to the part set out as a homestead, it is error to decree that a sale under the foreclosure should first be made of the part set out as a homestead, without defendants file a cross-bill for that purpose. Erlinger et al. v. Boul,

40

5. When necessary.-Whenever, in chancery, it becomes necessary to bring all the rights of all the parties fully before the court, so that complete equity may be done, as well to the defendants as the complainants, resort must be had to a cross-bill. Follansbee et al. v. Scottish Am. Mtg. Co. et al., 486

DECREE.

6. Appeal from.-A decree for separate maintenance is such a final order as may be appealed from. Hunter v. Hunter, GENERALLY.

253

7. Decree against evidence.-The court being of opinion that the decree is not supported by the evidence, the cause is remanded. Ill. West Ex. R. R. Co. v. Gay, JURISDICTION.

404

8. Fraud as an element of.-Where a bill supplemental to an execution is filed for the purpose of setting aside a fraudulent conveyance, a court of chancery obtains jurisdiction on the ground of fraud. But where the defendants are not charged with fraud, and their answers deny any liablity, a court of chancery can proceed no farther against them. U. S. Ins. Co. et al. v. Cent. Nat. Bank et al., 426

9. General rule.-The general rule is that where the matter of the bill merely concerns personal chattels and sounds in damages, the remedy is at law, and chancery will not interfere merely on the ground that the defendant is prosecuting an action of replevin which is groundless; nor in the ordinary case of a repetition of trespasses by the same person. Pindell et al. v. Quinn et al., 605

10. Remedy at law.—A judgment rendered without jurisdiction is void, and may be attacked collaterally in any proceeding in which its validity may be called in question. It is clearly within the jurisdiction of courts of