not avail a debtor as a defense, if, after the petition in bankruptcy has
been filed, and before or after his discharge, he makes an unconditional
promise to pay his former creditor. Katz v. Moessinger,
2. After filing petition in bankruptcy.-A promise by the debtor
made after filing his petition, but before he has been adjudicated a bank-
rupt, is binding upon him. It is in contemplation of law a promise to
pay a debt already barred. Kutz v. Moessinger,
536
3. Promise to third persons.-A promise to a stranger, or to one not
legally interested in the debt, and who does not pretend to have authority
from the creditor to call upon the debtor in relation thereto, will not
avail. Bloomfield v. Bloomfield, 261; Katz v. Moessinger,
536
NOTICE. See TRIAL OF RIGHT OF PROPERTY-JUDICIAL NOTICE-Pos-
1. Defect in sidewalk.—Before a city can be charged with liability
for defects in a sidewalk, by reason of not keeping the same in repair, it
must have notice, actual or constructive, of the existence of such defect.
Where there is constructive notice, actual notice need not be proved.
City of Gilman v. Haley,
2. Before justices.-Where a justice, in an attachment proceeding,
the defendant not being served nor appearing, continued the case for
fourteen days only, he lost jurisdiction of the case, and the judgment wa
void. The People v. Jarrett,
566
3. Knowledge of defect in sidewalk.-In order to charge a city with
constructive notice of a defect in a sidewalk, it must appear that the
defect was such as to cause a reasonably prudent man, whose business it
was to look after the repairs of the streets, to suspect its dangerous con-
dition. City of Joliet v. Walker,
267
4. Recording of mortgage.-The recording of a mortgage is notice to
all subsequent purchasers of the rights of the mortgagee in the crops
growing on the mortgaged premises. Rankin et al. v. Kinsey,
NUISANCE.
1. Obstructing water-course.-Whatever obstructs travel on a public
highway or navigable stream, is a common nuisance, and may be abated
by any of the king's subjects. So, where plaintiffs had fastened an old,
disused and nearly sunken boat to a pier in such a way as to impede
navigation of the Chicago river, the defendants, acting under authority
of the Board of Public Works, had a right to remove it as a public nui-
sance, if indeed they did not have right to do so without orders. McLean
et al. v. Matthews,
1. Indemnifying pond.-If there is reasonable doubt as to the owner.
ship of the goods levied upon, or as to their liability to be taken in exe-
cution, the officer may require sufficient security to indemnify him for
taking them. Stanton v. McMullen,
GENERALLY.
2. 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, who undertook the defense of the case, as
to the trespass committed, it is not conclusive that the execution creditor
or the officer knew the condition of the debtor's property, or that they in-
tended to commit a willful trespass. Stanton v. McMullen,
326
SHERIFF.
3. Special deputy.-A deputy sheriff may appoint a special deputy or
bailiff pro hac vice by indorsement on the summons, in the name of the
sheriff. Such appointments must be taken to be the act of the sheriff.
Thrift v. Frittz,
OFFICIAL BONDS.-See BONDS.
OPTION CONTRACTS.-See CONTRACTS.
1. As ground for civil action.-Where plaintiffs brought an action
for destruction of their property by fire, alleging that the loss was the
immediate consequence of the unlawful keeping and storing by defend-
ants of large quantities of kerosene, etc., in violation of a certain ordi-
nance, setting out the ordinance with proper averments, there was a suf-
ficient statement of a cause of action, and a demurrer to the declaration
was improperly sustained. Wright et al. v. C. & N. W. R. R. Co., 438
2. Construction.--Where an or linance which in the first clause enacts
that it shall be unlawful for any person, persons or corporations, etc. etc.,
contains a second clause connected with the first by a copulative conjunc-
tion, the second clause will be construed as applying to and binding upon
the same class of persons mentioned in the first clause, there being noth-
ing to show a contrary intention. Wright et al. v. C. & N. W. R. R.
Co.,
438
3. Fine-Imprisonment.-The imprisonment of an fender for a
failure to pay a fine imposed for violation of an ordinance, is not in satis-
faction of the judgment, but only a means of enforcing payment, and is
no defense to a scire facias against the sureties on the appeal bond of
such offender, to recover the amount of such judgment and costs. The
proviso in the act of 1879 in regard to imprisonment of offenders, is only
a limitation upon the time of such imprisonment. Town of Sheffield v.
O'Day,
339
4. Force of. The legislature has authority to delegate to municipal
corporations like Chicago, the power to pass ordinances, and such ordi-
nances, enacted by the municipality, when within legislative authority,
have the force of laws passed by the legislature of the State. Wright et
al. v. C. & N. W. R. R. Co.,
438
PARKS AND BOULEVARDS.-See EMINENT DOMAIN.
1. Heir of mortgagee.-The heir of a deceased mortgagee is not a
necessary party in a proceeding by the administrator to foreclose the
mortgage, and to correct a misdescription of lands conveyed by the
mortgage. Dayton v. Dayton et al.,
136
2. In execution.-An execution must follow the judgment, as respects
parties, though some of the parties may have been discharged from
liability since rendering the judgment. Brinton v. Gerry,
3. Interest in suit.-A court of law will not inquire whether a plaintiff
sues for himself or as trustee for another. It is sufficient if he has the legal
interest in the subject matter of the suit. Lee v. Pennington et al., 247
4. Misjoinder.-Where the payee of a note, without the knowledge
of the sureties, extended the time of payment in consideration of a third
person signing as surety, a suit against the latter surety, jointly with the
former sureties on the note, is erroneous. They were never jointly liable,
and were improperly joined in the action. Ritchie v. Gibbs,
1. Liability of new member.-Where a party becomes a member of a
firm already existing, and participates in the assets of such firm, includ-
ing those received from a former creditor of the firm, he becomes liable
for such debts in common with the other partners. McCracken v. Mil-
hous,
169
2. Purchase of deceased partner's interest.—A purchase by surviving
partners, from the executors of a deceased partner, of a deceased partner's
interest, will not be set aside except for fraud, mistake or other sufficient
ground. Kimball v. Lincoln et al.,
1. Rule.—Where a debtor makes a payment he has the right to indicate
upon which item of account the payment shall apply. If he does not do
so, the creditor may ordinarily select the item, and if no selection is made
by either, the law will apply the payment as may seem reasonable and
just. Dehner v. Helmbacher Forge and Rolling Mills,
47
GENERALLY.
2. Assuming debt of another.—A mere promise by a debtor to pay the
note of his creditor given to a third party, and in this manner liquidate
his own debt, does not release the debtor from his obligation to pay the
note held against him, and is no defense to an action against him by his
creditor, unless it is also shown that he has performed his promise, either
by payment or cancellation of the assumed debt. Irwin v. Atkins et al.,
17
3. Voluntary.-Where a plaintiff voluntarily pays money that the
defendant was legally bound to pay, and the defendant afterwards prom-
ises to repay the plaintiff, the law will imply a request, the express prom-
ise being proved; but in the absence of an express promise or acts
amounting to a ratification of the payment, no recovery can be had.
Fowler v. Hall,
332
1. Impossibility.—Where a person agrees to do an act by a certain
time, and before that time arrives does something which renders it impos-
sible for him to perform the act, an action may be brought before the
time for performance arrives. Lee v. Pennington et al.,
1. Necessary allegations.-In a suit upon a guardian's bond, for a
failure to turn over money to his successor, and failing to make report
when required by the court, the declaration should allege the due ap-
pointment of the successor, and that the guardian was required by the
court to make a report. The People v. Steele et al.,
2. Negligence as cause of action.-Negligence not averred in the
declaration to be the cause of the injury, will not support a general ver-
dict for the plaintiff. C. R. I. & P. R. R. Co. v. Henry,
REPLICATION.
3. Effect. To a replication to a plea of set-off, the defendant inter-
posed a demurrer which was overruled, and defendant stood by his de-
murrer; Held, that the effect of overruling a demurrer to a replication
would be to sustain the replication as a complete answer to the plea, and
the defendant electing to stand by his demurrer, thereby put his plea out
of the record, so far as his deriving any benefit therefrom. Borchsenius
v. Canutson,
4. Bond made in wrong name.-Where a bond is made to a corpora-
tion by a name varying from the true name, the plaintiffs may sue in
their true name, and aver that the bond was made to them by the name
mentioned in the deed, Trustees of Schools v. Rogers et al.,
33
5. Plea and instructions.-Where the plea was that the note in
question was indorsed as collateral security for thirty dollars owed plain-
tiff by the defendant, and the instruction was to the effect that the note
was indorsed as coliateral security for the sum of four hundred and forty-
four dollars owing to plaintiff by the indorser's husband, the instruction
was not responsive to the issue made by the plea, and was mislead-
ing. Chapin et al. v. Thompson et al.,
288
1. As notice. Actual possession of land by a purchaser is notice to
one who takes a trust deed or mortgage thereon from another, of his
rights in the premises. Layman v. Willard et al.,
PRACTICE.-See INSTRUCTIONS.
ALLEGATION AND PROOF.
1. Must correspond.—In a suit against an officer upon his official bond
for money received for a school district, and a failure to pay over to his
successor, proof that he had received coupons of a school district does not
meet the allegations in the declaration, and fails to establish a case
for the plaintiff. Humiston et al. v. Trustees of Schools,
122
APPEALS.
2. Final order.-A decree for separate maintenance is a] final order
that may be appealed from. Hunter v. Hunter,
253
CONTINUANCE.
3. Affidavit.-An affidavit disclosing what the affiant expected to
prove by an absent witness; that he knew of no other witness by whom
the same facts could be proved; that the witness, unknown to affiant,
had recently removed to California, and that immediately upon learning
of such removal, affiant had made diligent search to learn his where-
abouts, and had just learned his residence, and that he expected to obtain
the deposition of such witness before another term of court, is sufficient
to support a motion for continuance. Sprague v. Heaps,
447
DAMAGES.
4. Assessed by court.-In a suit upon a guardian's bond, damages
may be assessed by the court. The People v. Steele et al.,
20
EXCEPTIONS.
5. Failure to file proper bill of.-Where there is no proper bill of ex-
ceptions filed in a cause, the judgment will be affirmed. Vanarsdale et
al. v.
Andrews,
6. Must be signed.-Where there is no bill of exceptions properly
signed, in the record, and no suggestion of a diminution of the record,
the presumption will be that the original bill of exceptions was not
signed. Pierson v. Watters,
400
GENERALLY.
7. Decree against evidence.-Where the decree is not supported by the
evidence the cause will be remanded. Ill. West Ex. R. R. Co. v. Gay,
404
8. Failure to make out a case.-Where a plaintiff wholly fails to make
out a case, he cannot assign error upon instructions. Wilcox v. Raddin,
594
9. Form of judgment 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, and render
judgment with execution for both. Board of Education v. Taft, 571
10. Imposing terms.—Where a party to a suit is in default, and to
maintain his standing in court is compelled so ask for indulgence, the
court, on granting his motion, may impose terms in its descretion, but
the terms imposed must be reasonable and not inconsistent with the
ordinary rules of law. A rule that the party pay to the opposite party
$25 to reimburse him for expenses in investigating responsibility of
surety offered on an appeal bond, and that the appellant furnish appellee
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