Imágenes de páginas


GENERALLY. Continued.

5. Report by guardian.-Where a guardian made report to the
county court of the amount of money on hand belonging to his ward,
and such report was approved by the court, and an order entered that
he pay over the balance to his successor in office, such order is conclusive
upon him and the sureties on his guardian's bond. They are estopped
from denying the truth of the report. Ream v. Lynch et al.,

6. School directors.-A township treasurer, by consent and direction
of the school directors, received coupons of the district from the collector
of taxes, in lieu of money due the district, and turned them over to his
successor. In an action against him for money received, which he failed
to pay over to his successor, held, that the directors, by their acts, were
estopped from tendering back the coupons and demanding payment of
the money. Humiston et al. v. Trustees of Schools,


BURDEN OF proof.

1. Promissory note.-Under a plea that the note in suit was indorsed
to plaintiff as collateral security only, the plaintiff, by introducing the
note in evidence establishes a prima facie case, and the burden is upon
the defendant to establish the truth of the plea. Chapin et al. v. Thomp
son et al.,


2. Recitals in municipal bonds.-The recitals of officers invested with
the ministerial duty of issuing the bonds of a school district, as to the
legality of the election authorizing their issue, and the existence of the
facts necessary to their validity, are presumptive evidence of the facts so
stated, and the burden is thereby thrown upon the district to overcome
such presumption. Board of Education v. Taft,


3. Setting aside tax sale.-In a proceeding to set aside a tax sale and
for the cancellation of certificates of such sal, on the ground of a levy
for an illegal purpose, the burden of proof is upon the complainant to
sustain the allegation of an illegal levy. Gage v. Busse et al., 433
4. Trial of right of property.—In a trial of right of property it de-
volves upon the claimant to show affirmatively that he is the owner.
Hansen v. Dennison et al.,


5. Conversations between husband and wife.--Conversations between
husband and wife occurring prior to the execution of the mortgage in
question, and in relation to the subject-matter in controversy, are inad-
missible as evidence in a suit brought by the wife, both on the ground of
public policy, and for the reason that the conversation took place in the
absence of the defendant. Munford v. Miller,

6. Fraud.-Evidence that a conveyance of land and the execution of
a chattel mortgage, were made for the sole purpose of hindering and de-
laying creditors, if otherwise competent, is admissible. Ledford et al. v.

7. General reputation to prove title.-Testimony of a witness that he
knew from general repute and from examination of Brink's Atlas, that

[blocks in formation]

one Dr. L. owned the land in dispute, is inadmissible to prove title to the land. Munford v. Miller, 62

8. Heirs competent, when.-In a proceding by an administrator to establish a personal claim against his intestate's estate, the heirs of the intestate are not incompetent as witnesses. Estate of Douglass v. Fullerton, 102

9. Husband and wife.-A husband is a competent witness in behalf of the administrator of his deceased wife, in proceedings relating to her separate property. Ledford, et al. v. Weber, 87

10. Poverty of plaintiff in actions for injuries.-Evidence of means support and early struggles with poverty is not admissible for the plaintiff in actions for damages occasioned by the negligence of the defendant. City of LaSalle v. Thorndike, 282

11. Proceedings in county court.-The judgment of the county court had in proceedings for judgment for delinquent taxes, offered in evidence by the complainants, does not find that any of the illegal items complained of were included in the city tax, and such judgment appears to have been entered without objection by complainants. Objections to such tax, made by others, cannot avail the complainants as proof of the averments in their bill. Gage v. Busse et al., GENERALLY.


12. Justice's docket-Interlineations.-The docket of a justice of the peace is not within the rule applicable to private writings between individuals which requires explanation of erasures and interlineations. Thatcher v. Maack,


13. Statement of facts in opinion of Supreme Court.-A statement of facts in an opinion of the Supreme Court made in another case, between other parties, though relating to the same levy, cannot be used by complainants in support of the averments of their bill. Gage v. Busse et al. 433


14. Not to impeach judgment.—Where the record affirmatively shows that the court has jurisdiction of the person and subject-matter, and the judgment is not the result of fraud, oral testimony cannot be admitted to impeach the judgment. Koren v. Roemheld,


15. To falsify record.-Parol evidence is not admissible to falsify a record by showing that an alteration whereby the record is made correct, was improperly made. Thatcher v. Maack, SECONDARY.


16. Justice's record.-Justices of the peace are required by law to keep a record of their proceedings and judgments, and such judgments cannot be proved by secondary evidence without first showing the loss or destruction of the record. Comisky v. Breen, 369

17. Objection to.-Objections to evidence on the ground that it is secondary, should specifically state the ground of the objection, so that the opposite party may have an opportunity of removing it. A mere general objection is not sufficient. Board of Education v. Taft,



SECONDARY. Continued.

18. What is not.-There is no provision of the statute making the
record of a vote of the people of a school district upon the question of
borrowing money, the only primary evidence on that question or its re-
sult; and where it is sought to prove by oral testimony that no such vote
was ever had, such evidence is not secondary. Board of Education v. Taft,


19. Malicious prosecution.—In such actions the plaintiff must show
that the prosecution has been legally determined in his favor, and where
he alleges his discharge upon the hearing before the justice, proof of
such averment must be made by the record, and if the court is compelled
to reject the offered record under the rules of evidence, the plaintiff can-
not supply its place by oral testimony. Comisky v. Breen,

20. Title under execution sale.-In an action upon a replevin bond
for failure to return property, where the defendants claim title under an
execution sale, it is necessary for them to show a valid judgment and an
execution issued thereon. Ledford et al. v. Weber,


21. Setting aside tax sale.-Where the only proof in support of the
allegation that the levy was for an illegal purpose, was a transcript of
the proceedings in county court upon judgment for delinquent taxes, and
a copy of an opinion of the Supreme Court, in another case, holding the
levy illegal, the evidence was not sufficient to sustain the averments of
the bill. Gage v. Busse et al.,

22. Competency.-The widow of a mortgagor, and legatee under his
will, is not a competent witness for the defendants in an action to foreclose
the mortgage, to prove the defense of usury.-Mester et al. v. Zimmer-
man et al.,

23. Impeaching a witness-Conviction of crime.--In an action for de-
ceit in the sale of goods it is improper to admit in evidence, for the pur
pose of affecting the credibility of a witness, the record of his conviction
upon an indictment charging him of conspiracy with another to defraud
the plaintiffs in the sale of the goods in question. Lamkin v. Burnett
et al.,

24. Interest.-Interest in the event of a suit does not necessarily de-
tract from the credibility of a witness, nor is it correct to instruct the
jury that when a witness testifies against his own interest his testimony is
entitled to greater weight than when testifying in favor of himself. In-
terest of a witness may be taken into consideration in judging of the wit-
ness' credibility. Estate of Douglass v. Fullerton,

25. Renunciation of interest.-A son of a mortgagor who had been
made a party defendant to the foreclosure proceedings, but who by his
answer disclaimed all interest in the event of the suit, and who had form-
ally renounced the legacy left him by the mortgagor in his will, is a com-
petent witness upon the question of usury, when called by the other de
fendants. Mester et al. v. Zimmerman et al.,




1. Justifying under.-Although an execution is fair upon its face, yet when a constable seeks to justify under it, as against a strange to the judgment, he must show that the execution is supported by a valid judgment. Thatcher v. Maack,



2. Manual caption.-It is not necessary, to constitute a valid levy upon property that the officer should remove it or touch it. It is enough that having the property in view and where he can control it, he does assume dominion over it with the expressed purpose of holding under the writ. Gaines v. Becker,


3. What subject to.-Where a farm is leased upon shares, if the relation of landlord and tenant exists, the property in the crop is in the tenant until division, and until division the landlord's part cannot be levied upon; but if the parties are tenants in common of the crop, the landlord, before division, has such an interest as may be levied upon. Hansen v. Dennison et al.,



4. When does not attach.-Where a sale was made in June, conditional upon the property proving satisfactory, and payment by cash and notes and mortgage was not made until July, the title of the property remained in the vendors until the latter date. The sale and making of the notes and mortgage were simultaneous acts, and between them there was no point of time when an execution lien against the vendee would attach to the property. Pitt's Sons Mfg. Co. v. Poor, 24 PARTIES.

5. Must follow judgment.-An execution, as to parties, must follow the judgment upon which it is based, notwithstanding that some of the parties may have been discharged from liability by matters arising after judgment. Brinton v. Gerry, 233



1. Selling exempt property.-While a judgment in trespass against an officer for selling exempt property is conclusive against him as well as against the execution creditor, as to the trespass committed, it is not conclusive that the officer and execution creditor knew of the condition of the debtor's property, or that they intended to commit a willful trespass. Stanton v. McMullen,




1. Expression of opinion.-Whether a plaintiff can get no more or is likely to recover no more by an action at law, than is offered to her in settlement, although made in the form of a positive representation, is after all but the mere expression of opinion, and is not a representation


GENERALLY. Continued.

upon which the party has a right to rely. Am. Ins. Co. v. Crawford, 29
2. Instruction as to.—An instruction is erroneous if it leaves the jury
to determine first, what were the legal rights of the parties, and then to
inquire whether one of the parties made false and fraudulent representa-
tions in regard to the same. Am. Ins. Co. v. Crawford,


3. Must be of material matter.-Where the position of the parties is
that of adversaries, the law will not authorize either of them after a set-
tlement has been made, to seek redress because of misrepresentation, un-
less it was of a material matter upon which it was proper for him to rely,
and upon which he did rely. Am. Ins. Co. v. Crawford,







1. Presumption.-There is no presumption of law that a mortgagor
gave a mortgage on land he did not own. Munford v. Miller,





1. As applied to jurisdiction of Appellate Court.-In a proceeding
for partition of a tract of land held by several as tenants in common,
the parties claiming to hold their undivided portions in fee, the question
of a freehold is directly involved within the meaning of the statute re-
lating to the jurisdiction of the Appellate Court. Johnson et al. v. John-
son et al..


2. Creditor's bill.-Where a bill in chancery is filed, alleging that
shortly before complainant obtained the judgment mentioned, the de-
fendant was the owner of certain land, but that he had conveyed the
same for the purpose of defrauding the complainant, the question of
freehold is involved within the meaning of the statute relating to the ju-
risdiction of the Appellate Court. Whitehead v. Alexander et al., 506






« AnteriorContinuar »