GUARDIAN. GENERALLY 1. Report of funds on hand-Estoppel.—A guardian and his sureties on his official bond are estopped to deny the truth of his report filed in the county court, showing the amount of funds in his hands as guardian. Ream v. Lynch et al., GUARDIAN'S BOND-See BONDS. 161 HOMESTEAD. FORFEITURE. 1. By absconding.-The right of the wife to a homestead under the statute is not forfeited by reason of the husband having absconded. People v. Stitt, The 294 2. By fraud. Neither fraud nor even the commission of a criminal offense, can work a forfeiture or release of the homestead right. Such release or forfeiture can only be accomplished in the manner provided by statute. The People v. Stitt, 294 GENERALLY. 3. Abandonment of family.-The fact that the husband has absconded from the State, and left his family to take care of themselves, is an abandonment within the meaning of the law relating to homestead exemptions, and it makes no difference what the motive for such abandonment was, whether fear of criminal prosecution or dissatisfaction with his family. The People v. Stitt, 294 4. In mortgaged premises.-Where land is purchased subject to a pre-existing mortgage, the homestead right of the purchaser is contingent upon the payment of the incumbrance; but the right attaches as to all the world, except those claiming under the incumbrance, and if the sum realized upon a sale under the mortgage is more than enough to pay the debt, the homestead right to the extent of $1000 will attach to the excess in preference to all other claims. The People v. Stitt, 294 5. Taken in money.-Under the statute, the homestead right is an estate, and when the land is sold under a pre-existing mortgage, the homestead exemption will attach to the money arising from such sale, as to any excess above the amount required to satisfy the mortgage debt. The People v. Stitt, 294 HUSBAND AND WIFE.-See EVIDENCE-HOMESTEAD. GENERALLY. 1. Crops raised on wife's land.-Notwithstanding the fact that the land on which the crop is raised is the separate property of the wife, the presumption as to crops raised, where husband and wife live upon the land, is that they are the property of the husband as head of the family, and that they were raised by his labor and at his expense. Duncan v. Jackson, IMPEACHMENT OF WITNESSES.-See EVIDENCE. IMPOSING TERMS BY COURT.-See PRACTICE. 119 IMPOSSIBILITY OF PERFORMANCE.-See PERFORMANCE. IMPRISONMENT.-See CRIMINAL LAW. INDEMNIFYING BOND.-See BONDS. INDICTMENT.-See CRIMINAL LAW. INDORSEMENT.-See PROMISSORY NOTE. INSTRUCTIONS. 1. Argumentative.-Instructions that are argumentative, and single 211 3. Breach of hiring contract.-In an action for breach of a con- 517 4. Credibility of witness.-An instruction that if the jury are satis- 5. Law and fact.-An instruction is erroneous if it leaves the jury to 29 6. Must conform to pleadings.-An instruction which allows a plain- GENERALLY. 555 7. As to negligence.-An instruction that, even if the plaintiff is 8. Must be accurate.-Where the evidence upon a particular point is 9. Must be clear.-Instructions should always be couched in clear, in- 29 INSTRUCTIONS. GENERALLY. Continued. of the defendant will not always cure an erroneous instruction on the part of the plaintiff. City of Joliet v. Walker, 267; City of La Salle v. Thorndike, 282 11. Taking from jury question of fact.-An instruction which usurped the province of the jury, upon the question whether the plaintiff was in the exercise of ordinary care at the time of the accident, was properly refused. City of Gilman v. Haley, 349 INTEREST.-See ADMINISTRATION OF ESTATES-EMINENT DOMAIN. INTERLINEATIONS.-See EVIDENCE. INTERPLEADER.-See ATTACHMENT AND GARNISHMENT. JUDGMENTS. 1. Conclusive. Although a judgment in trespass against an officer for selling exempt property, is conclusive against him as to the trespass itself, it is not conclusive that he knew of the condition of the debtor's property, or that he intended to commit a willful trespass. Stanton v. McMullen, 326 2. Failure to serve summons in time.-A sunmons issued by a justice must be served at least three days before the trial; and where the return of the constable showed a service only two days before the trial, the justice had no jurisdiction, and the judgment was absolutely void. Ledford et al. v. Weber, 87 3. Form of, in debt.-In an action of debt upon a municipal bond, where there is a finding for the plaintiff, the proper practice is to find the amount of the unpaid principal as the plaintiff's debt, and assess his damages at the amount of the unpaid interest. Board of Education v. Taft, 571 4. Impeaching. While it is true that a stranger to a judgment, if injuriously affected thereby, may impeach such judgment by showing that the court had no jurisdiction of the person of the defendant, yet where there is jurisdiction of the person and subject-matter, and the judgment is not the result of fraud, and the record affirmatively shows such jurisdiction, and it is material only to establish the fact of such judgment and its legal consequences, the record is conclusive even as to strangers. Koren v. Roemheld, 646; Thatcher v. Maack, 635 5. Setting aside.-A judgment rendered without jurisdiction is void and may be attacked collaterally in any court of equity where its validity is called in question. A court of equity has jurisdiction to enjoin or vacate such a judgment, although the defendant may have a right to have such judgment reversed on appeal or error. Follansbee et al. v. Scot486 tish Am. Mtg. Co. et al., JUDGMENT NOTE.-See PROMISSORY NOTE. JUDICIAL ACT. GENERALLY. What is not.-A judicial act can only be performed by one who was a judge at the time the act was done. Russell v. Sargent, JUDICIAL NOTICE. GENERALLY. 98 1. Judges. This court will take judicial notice of the persons who are judges of the circuit court. Russell v. Sargent, JUDICIAL SALE.-See SALE. JURISDICTION.-See COURTS-PRACTICE-CHANCERY. JUSTICES OF THE PEACE. APPEAL FROM. 98 1. Dismissal on call.-On an appeal from a justice, the trial in circuit court should be de novo, and it is error to dismiss an appeal on call for want of prosecution, without proof by plaintiff of a cause of action. Eichelberger v. Garvin. ATTACHMENT. 129 2. Notice. Where a justice of the peace, in an attachment, the defendant not being served nor appearing, continued the case for fourteen days only, he lost jurisdiction of the case, and the judgment was void. The People v. Jarrett, DOCKET. 566 3. Interlineations.-The docket of a justice of the peace is not within the rule applicable to private writings between individuals which requires explanation of interlineations and erasures. Thatcher v. Maack, 635 4. Presumptions in favor of.-Where a docket of a justice of the peace shows that the court had jurisdiction of the person and subjectmatter, nothing will be intended to be out of his jurisdiction which does not affirmatively appear to be so. Thatcher v. Maack, 635 GENERALLY. 5. Action against.-If an officer having a limited authority, do an act beyond his authority, trespass will lie against him, but if the act, though erroneous, be done within the limit of his authority, he will be protected. The People v. Jarrett, 566 6. Consolidation of claims.-The statute relating to consolidation of claims in suits before a justice, contemplates the setting off of mutual demands existing before the commencement of the suit. So where a suit was brought by a single plaintiff against two defendants upon a draft, it was not the duty of the defendants to bring forward as a defense in such suit, a claim for deceit in the sale, on which the draft was given, against the plaintiff and another person. Lamkin v. Burnett et al., 143 7. Consolidation of claims.-Where goods are sold upon credit, to be paid in installments to be represented by notes, and the vendee fails to give the notes as agreed, the vendor, if he brings suit for a breach of the contract in failing to execute the notes, cannot sue before a justice of the peace for such breach as each installment becomes due. An action for a breach of the contract is single, and indivisible, and a judgment therein is a bar to any subsequent proceed ing to recover the amount of a second installment. Manton v. Gammon et al., 201 8. Impeaching judgment.-A judgment of a justice of the peace cannot be impeached collaterally, except upon jurisdictional facts, or for fraud or collision. Thatcher v. Maack, 635 9. Continuance.-Where, in a suit before a justice, the defendant did not appear, but an attorney appeared for him, and upon application, the justice continued the case for thirty-three days for the purpose of taking depositions, the plaintiff not consenting to such continuance, the act of the justice in continuing for a longer time than that allowed by statute operated as a discontinuance of the case. Crichton v. Beebe, 272 JURISDICTION. 10. Service of summons.—A summons issued by a justice must be served at least three days before the trial; and where the return of the constable shows a service only two days before the trial, the justice has no jurisdiction and his judgment is absolutely void. Ledford et al. v. Weber, 87 JUROR. GENERALLY. 1. Conduct. The conduct of a juror in talking to the witnesses about the case, after he had been sworn, and before verdict, held, very culpable. Woolsey v. White, LANDLORD AND TENANT.-See EMINENT DOMAIN. CONDEMNATION OF LAND. 277 1. Estate of tenant may be taken.-The estate of a tenant for years is liable to be taken by the public by virtue of the right of eminent domain, upon precisely the same terms as other estates in land, viz., compensation. City of Chicago v. Garrity et al., 474 2. Tenant liable for rent.—Where land held by a tenant for years is taken by condemnation proceedings, the tenant remains liable for the entire rent, according to the terms of the lease. The condemnation of the land does not operate to extinguish the lease, as between landlord and tenant. City of Chicago v. Garrity et al., 474 GENERALLY. 3. Holding over.-All contracts of leasing, as well as other contracts, expire by their own limitation, and require no notice from either party to terminate them. Fort v. McGrath, 302 4. Lands held in common.-Where lands owned by several were inclosed in a common field, and one of the tenants hired of another his right of pasture in the common field for one year, but on the following year put into the common field only his own proportion of cattle, to which he was entitled as common owner with the others, there is no implied holding over under the former tenancy. The lease expired by its own limitation. Fort v. McGrath, 302 |