ADVERSE INTEREST.-See MORTGAGES.
AGENCY.-See INSURANCE.
GENERALLY.
1. Acts of agent.—Where appellee, as special commissioner, held
notes belonging to Mrs. A., and upon the request and representation of
her husband that he was acting as her agent, delivered the notes to ap-
pellant, who received them as part payment of land bought by Mr. A.,
such order, acceptance and delivery amounted to a receiving of the notes
by Mrs. A., and appellee had no further control over them, and could not
maintain trover for them. Hughes v. Lumsden,
185
ALLEGATION AND PROOF.-See PLEADING.
1. Should correspond.-An allegation that defendant, by the terms
of the sale in question, agreed to practice as physician at Hot Springs,
and send his prescriptions to plaintiff 's drug store, during the remainder
of his natural life, is not supported by evidence that he agreed to send
his prescriptions to plaintiffs while he remained at Hot Springs, and that
he expected to remain there as long as he lived. Brooks v. Gates, 428
ANSWER.-See CHANCERY.
1. When involved.-A bill to foreclose a mortgage and correct a mis-
take therein, involves the question of a freehold, and the appeal should
be to the Supreme Court. McCarty v. Reeve,
GENERALLY.
2. Dismissal-Execution before procedendo filed.-An execution is-
sued upon the dismissal of an appeal in Appellate Court, but before
procedendo filed in the circuit court, is not void; it is but a mere irregu-
larity of which no one but the defendant can take advantage. Shimp v.
Hay,
3. Refusal to allow.-Where a court improperly refuses to allow an
appeal, the proper remedy is by application to the court to which an
appeal lies, for a mandamus to the court below, requiring the allowance
of the appeal. Eager v. Eager,
4. Certificate of importance.-There being no questions of law of
such importance as to require a decision by the Supreme Court, the cer-
tificate is refused. Fuller v. Bates,
32
5. Constitutional law.-The objection that the statute under which
the proceeding was had is unconstitutional, is not within the jurisdiction
of this court to hear. Falch v. The People,
6. Franchise. In proceedings to ascertain the amount of damages
TO APPELLATE COURT-Continued.
that must be paid for land sought to be taken by condemnation, the
question of a franchise is not directly involved, and this court will take
jurisdiction of the appeal. S. E. & S. E. R. R. Co. v. Peters,
300
7. Freehold.-A proceeding for partition involves a freehold, and
this court has no jurisdiction of the appeal. Carter v. Penn,
299
8. Freehold.-A freehold cannot be said to be involved in a case in
which a title is not and cannot be made a proper subject of inquiry and
consideration. Gage v. Board of Directors,
410
9. Second appeal.-Upon a second appeal, this court will not con-
sider any questions which have been passed upon and determined by it
on a former appeal; all such questions are to be regarded as res adjudi-
cata. Ogle v. Turpin,
453
10. Validity of statute.-The case involving the question of the
validity of a statute, this court can take no jurisdiction of the appeal.
City of E. St. Louis v. Trustees, 295; City of Cairo v. Bross,
FROM JUSTICE OF THE PEACE.
11. Appeals to different courts.—Where one party appeals from a
justice to the circuit court, and the other party appeals from the same
judgment to the county court, the court in which the appeal was first
perfected acquired exclusive jurisdiction of the case. Aldrich v. City of
Polo,
12. Bringing in co-defendants.-Where one defendant appeals, the
other defendants must be brought in as provided by statute, or by volun-
tary appearance, before the court can have jurisdiction of the parties,
and a transcript must be filed ten days before the commencement of the
term at which action is taken, before the court can have jurisdiction of
the subject-matter. Steinborn v. Thomas,
515
13. By each party-Jurisdiction.-Where one party to a judgment
before a justice of the peace, takes an appeal to the circuit court, the
other party, if he wishes to appeal, must take his appeal to the same
court. Aldrich v. City of Polo,
45
14. Dismissal.-An appellee has no right to have the appeal dis-
missed for want of prosecution, until the cause is in such a situation as
entitles him to demand a trial. The court must have jurisdiction of the
parties and the subject-matter. Steinborn v. Thomas,
FROM PROBATE.
15. Final orders.—In a proceeding by an administrator to sell real
estate for the payment of debts, an appeal will not lie from that portion
of the order relating to the proof of heirship alone, but must be taken
from the final order in the case. Eager v. Eager,
356
16. To Appellate Court.-This court has jurisdiction of appeals from
probate courts. Eager v. Eager,
APPEARANCE.-See PRACTICE.
APPLICATION OF PAYMENTS.-See PAYMENTS.
ARBITRATOR.-See ARBITRATION.
1. Duty. It is the duty of an arbitrator to keep himself as far as pos-
sible free from any influence that would tend to impair his impartiality or
expose him to suspicion or prejudice. Shear v. Mosher,
119
2. Effect of misconduct.-Where the submission does not require
unanimity in the award, the misconduct of one arbitrator, not participa-
ted in by a majority, may not vitiate the award. So, a conversation by
an arbitrator with a third party upon matters submitted, not shown to
have been procured by a party to the submission, nor to have been sought
by the arbitrator, will not be sufficient to vitiate the award. Shear v.
Mosher,
3. Misconduct.-It is misconduct on the part of an arbitrator, after
he is chosen, to listen to any statement by anybody except in the way of
testimony regularly given, in relation to any matter to be submitted.
Shear v. Mosher,
4. Intendment in favor of.-In the absence of affirmative proof of
fraud, partiality or unfa mess, which are never presumed, every intend-
ment is in favor of the award. Shear v. Mosher,
ASSAULT.-See CRIMINAL LAW.
1. Affidavit of notice.-In making assessments for improvements,
where the statute requires notice to be sent to the owners of land by the
commissioners, the affidavit required by the statute showing that such
notice was sent, need not set out the notice. Falch v. The People, 351
2. Notice by publication.—Publication of the statutory notice in a
daily paper, from Thursday up to and including the following Tuesday,
is a sufficient compliance with the statute. Falch v. The People, 351
1. Burden of proof.-Where, in an affidavit for attachment, the
plaintiff alleges that the defendant has fraudulently conveyed or assigned
his effects, and fraudulently concealed or disposed of his property, so as
to hinder and delay his creditors, and issue is taken upon such affidavit,
the burden is upon the plaintiff to establish by a preponderance of evi-
dence, some one, at least, of the causes alleged. Towle v. Lamphere,
399
GENERALLY.
2. Practice. Upon the trial of an issue in attachment, resulting in
favor of the defendant, the jury should render a formal verdict before
the court quashes the attachment; a failure to do so, however, is not an
error calling for a reversal. Towle v. Lamphere,
399
1. Power to make contracts.-An attorney employed to defend a suit
has power to sue out a commission to take depositions, and to employ a
competent person to execute the same. Fairchild v. M. C. R. R. Co.,
1. Right to apply to debt of depositor.-Where a depositor in a bank
is indebted to the bank by bill, note or other independent indebtedness,
the bank has the right to apply so much of the funds of the depositor to
the payment of his matured indebtedness as may be necessary to satisfy
the same. So, where a bank held the note of a depositor for a certain
sum,
the bank could on the morning of the last day of grace upon such
note, apply to its payment any money of the depositor then remaining on
deposit in such bank. Home Nat. Bank v. Newton,
1. International bank.—The question of the validity of the charter of
the International Bank of Chicago, has been decided in favor of the bank
in the case of The People v. Loewenthal, 93 Ill., 191. Jenkins v. Bauer,
634
BILL OF EXCHANGE.
GENERALLY.
1. Lost at gaming-Innocent holder.-Where the payee of a bill of
exchange, having lost the same at gaming, indorsed it over to the winner,
the indorsement is void, and the property in the bill still remains in the
payee; and the rule is the same although the bill may have passed into
the hands of a bona fide holder. No more effect can be given to it than
to a forged instrument. Com. Nat. Bank v. Spaids,
493
2. Paid to wrong party.-If a bill of exchange be payable to A, or
A's order, the acceptor is bound to ascertain that the person presenting it
is the one entitled to payment; and if he makes payment to one not en-
titled to it, the real owner of the bill may recover its amount from such
acceptor. Com. Nat. Bank v. Spaids,
493
BILL OF LADING.
GENERALLY.
1. Not conclusive.-A bill of lading, as between the parties, is open
to explanation, and either party may show that the actual quantity
shipped is different from the amount stated in the bill.
of lading was conditioned that "all deficiency in cargo to be paid for by
the carrier and deducted from the freight, and any excess in cargo to be paid
for to the carrier by the consignee," held, that the consignor was entitled
to the excess, if any, over the amount shown in the bill, and the carrier
could not hold it as his own. Wallace & Kingman v. Long,
504
CHANCERY.-See NEW TRIALS-PRACTICE.
1. As evidence.-Where an answer under oath is required by the bill,
it must prevail against the bill, so far as it is responsive to the allega-
tions in the bill, and is not disproved by the testimony of two witnesses.
Richeson v. Richeson,
204
2. As pleading.-An answer in chancery, not sworn to, performs the
office of a mere pleading. The fact that there are other parties to a suit
who should be joined, cannot be brought to the notice of the court by a
mere averment in an offer to amend an answer, unsupported by evi-
dence. Battenhausen v. Bullock,
GENERALLY.
3. Amending decree.-A court of chancery has no power to revise
its original decree at a subsequent term, by changing one of its direc-
tions in respect to possession of the mortgaged premises. Such an alter-
ation is not an error in fact that may be cured by motion in the court
below. Kihlholz v. Wolff,
371
4. Remedy at law.-An objection that a complainant has an adequate
remedy at law, comes too late in this court; after a defendant in chan-
cery has filed his answer he submits to the jurisdiction fo the court, and
he cannot object that complainant has a remedy at law. Whittington v.
Ross,
234
INJUNCTION.
5. When granted.-When the injury complained of-obstruction of
highway—is undeniably a nuisance, and irreparable mischief will ensue,
a court of equity will not await the result of a trial at law, but will in-
terfere at once; but it will not do so until the issue has been tried at law,
where the thing sought is not unavoidably a nuisance, but only some-
thing which may perhaps prove to be so upon trial. Richeson v. Riche-
son,
204
1. Duty of city.-It is the duty of a city to exercise reasonable dili-
gence to keep and maintain its sidewalks in a reasonably safe condition
for the use of persons having occasion to use them for any legitimate
purpose, and it is only for a neglect of such duty that the city becomes
liable for an injury resulting from their use. City of Monmouth v. Sulli-
2. Fencing and railings.-Cities are not required to erect barriers
along sidewalks sufficient to prevent travelers from voluntarily leaving
the walk for their own convenience. If there is a dangerous place so
near the walk as to expose travelers to danger in the ordinary and legiti-
mate use of the walk, the city should be required to erect a railing to pro-
tect those using the walk for the purpose for which it was designed. City
of Monmouth v. Sullivan,
3. Negligence. It is gross negligence for a person to step off the in
ner edge of a sidewalk without first making an investigation as to the
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