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See SALE, 5.
See NEGLIGENCE, 4.
See JUDGMENT, 4; RES ADJUDICATA.
See CANCELLATION OF INSTRUMENT, 1, 2, 3; CONVEYANCE, 1, 5; CORPO-
RATION, 1, 2, 3, 6; EVIDENCE, 4; FRAUDULENT CONVEYANCE, 3;
STATUTE OF LIMITATIONS, 4, 6.
1. Property Sufficient From Which Debts May be Enforced at Time of
Conveyance.-If, at the time a conveyance is made by a debtor,
he retain property sufficient to pay his debts, and from which the
debts may be enforced, upon execution, his conveyance is not
fraudulent as to creditors, and his subsequent insolvency would
not cause such conveyance to be set aside. Emerson v. Opp, 27
2. Husband and Wife Joining in Conveyance of Husband's Lands for
the Purpose of Retaking it as Tenants by Entireties.-Exemption
from Execution.-Where A, his wife joining him, conveys land
held by him in fee simple to B, without consideration, who, ac-
cording to agreement, immediately reconveys the same to A and
wife as tenants by entireties, A not having property left, over and
above his legal exemptions, to pay his unsecured debts, such con-
veyance was fraudulent as against such debtors, and may be set
Phillips v. Kennedy, 419
3. Special Finding.-Fraud as an Ultimate Fact.-Recovery.-In an
action to set aside a fraudulent conveyance, where the facts are
specially found, there can be no recovery in the absence of a
finding of fraud as an ultimate fact.
4. Preference of Creditors.-Sons Preferring Father.-Where there
is a bona fide preference of creditors by a failing firm, the fact that
the creditor preferred was the father of the debtors does not of
itself render payment to him fraudulent.
Rockland Co. v. Summerville, 695
5. Burden of Proof.-The fact that the grantee was the father of the
debtors does not shift the burden of proof from those alleging
fraud, and require the grantors and grantee to show the good
faith of the transaction.
See NATURAL GAS.
Sufficiency of Petition.—Part of Road Over Route where no Highway Pre-
viously Existed.-No Power in Such Proceeding to Locate and Estab-
lish Highway.—Where a petition for the establishment of a free
gravel road shows on its face that one mile of the proposed im-
provement is to be over a route where no highway exists, but
that it will connect with and join two existing highways, both
of which are included in the petition, but it is not shown in
the report, nor does it appear in the order of the board of com-
missioners establishing the improvement neither is it found by
the decree of the circuit court, that this mile of road is laid upon
new ground for the purpose of straightening any public highway,
nor that better drainage will be secured thereby, nor that any
route of travel for the public will be shortened, nor that there
will be any road changed, improved or affected by this particu-
lar mile of improvement, the petition did not state facts suf-
cient, and the court acquired no jurisdiction over the subject-
matter of the proceeding. The board of county commissioners
has no power, under the statute, to construct a gravel road over
a route where no highway previously existed, except for shorten-
ing, straightening, etc., as above stated. Crow v. Judy, 562
1. When a Continuing One.-G. and P. entered into the following
guaranty: "We hereby jointly and severally guarantee to the
Presbyterian Board of Publication payment for all sales which
may be made by them to Rev. William A. Patton, but our liabil-
ity on this guaranty not to exceed, in any event, $3,000.”
Held, that the guaranty is a continuing one.
Trustees of the Presbyterian Board, etc., v. Gilliford, 524
2. A Continuing One.—Limited Liability.—A guaranty of payment for
goods to be sold from time to time to an amount not exceeding
a specified sum, is continuous until the sums remaining unpaid
reach the designated limit, even though the aggregate of pur-
chases far exceeds it; it being the extent of liability and not the
extent of sales that is limited. Where the amount of the guar-
antor's liability is limited and the time is not, it will be held to
be a continuing guaranty.
3. Additional Security.--The fact that the obligee took additional secur-
ity from the obligor did not lessen the obligation of the grantors.
See BOARD OF CHILDREN'S GUARDIANS, 1.
See COUNTY COMMISSIONERS, 3; SUPREME COURT PRACTICE, 6.
1. Finding for Plaintiff on Paragraph of Complaint.—Errors Relating
Thereto. Where the finding is for the plaintiff, as to a paragraph of
complaint, all decisions in relation to such paragraph, whether
relating to the pleadings, evidence or instructions, if erroneous,
were harmless as to him.
Tucker v. Roach, 275
2. Overruling Demurrer to Paragraph of Answer.-Trial and Finding
on Another Paragraph.-The overruling of a demurrer to a second
paragraph of answer, if error, was harmless where the trial and
the special finding in favor of the defendants were upon the first
paragraph of answer.
Miller v. McDonald, 465
See CONTRACT, 2.
See BRIDGE, 6; CONTRIBUTORY NEGLIGENCE, 1; GRAVEL ROAD; NEG-
LIGENCE, 6; STREETS AND ALLEYS.
1. Proceeding to Locate and Open.-Remonstrance.-Nature and Effect
of. A remonstrance in a proceeding to locate and open a high-
way is in the nature of an answer to the petition, and raises the
issue to be disposed of before the county board, and upon appeal
to the circuit court.
Bronnenburg v. O'Bryant, 17
2. Amendment of Petition.-When Properly Made.-Presumption.—
After the proceedings have been instituted, and before the ques-
tion of jurisdiction is determined, it is clearly within the discre-
tion of the board to permit an amendment of the petition, and
where the contrary is not made to appear, it will be presumed
that the amendment was properly made.
3. Viewers.-Appointment.-Oath.-Inference.-Where it appears that
viewers were appointed, and their report shows that they were
sworn, it will be inferred that they were sworn to do the thing
they were appointed to do.
4. Viewers.-Report by Two.-A report by two viewers is suffi-
5. Locating and Opening.-Affecting Two Counties.-Damages, How
Paid. In a proceeding to locate and open a highway in two
counties, the damages declared assessed shall be paid equally by
See FRAUDULENT CONVEYANCE, 2; MORTGAGE, 2; WILL, 7.
Wife Purchasing Real Estate and Taking Title in Husband's Name.--
Suretyship of Wife.-Debtor and Creditor.-Where a married
woman bought real estate, giving her note, secured by mortgage
thereon, in part payment of the purchase-price, and took the title
in the name of her husband, the relation of debtor and creditor
was not created between the husband and vendor, and conse-
quently the wife could not occupy the position of surety for her
Collins v. Stanfield, 184
See LIEN; TITLE, 5.
See CRIMINAL LAW, 1.
See MARRIED WOMAN, 3; MUNICIPAL CORPORATION, 2; RAILROAD, 8, 10.
1. Right of Street Railroad to Cross Steam Railroad at Street Crossing.
-Street Railroad's Right Founded on Public Easement.—Subject
to no Conditions Other than those Placed on the General Public.-
Since it is the settled law of this State that a street railway is
not an additional burden to that of the easement which the gen-
eral public has in the street, and that the street railway com-.
pany's right to use the street is founded on that easement, it must
be held that the right of a street railway to cross over the tracks
of a steam railway laid on such street is subject to no conditions
other than those to which the general public is subject in travel-
ing over such streets. Hence, it is not error to enjoin a steam
railway company from interfering with a street railway company
where the latter is proceeding to construct a proper crossing at
its own expense. And the same principle applies where the
crossing is in a public highway not a street.
Chicago, etc., R. W. Co. v. Whiting, etc., R. W. Co., 297
2. Contract.-City.-Right to Substitute Electric for Gas Lights.--In-
definite Terms.-Where a contract between a city and a gas com-
pany for lighting the city streets for a term of twenty-three years
provides that if, at any time thereafter the city shall determine
that electric lights shall be substituted for gas lights the gas com-
pany "shall make the substitution of such electric lights instead
of as many street lamps as may be agreed upon between the city
and the company (the price at which said electric lights shall be
furnished to be fixed by an equitable agreement between the
city and the company,") such contract is not sufficiently certain to be specifically enforced, and if the city determines to substitute electric lighting prior to the expiration of the contract, injunction will not lie, at the suit of the gas company, to restrain the city from proceeding to secure such lighting by competitive bids. Gas Light, etc., v. City of New Albany, 660 3. Adequate Remedy at Law.--When an injury may be fully compensated in an action at law for damages where the wrongdoer is solvent, the extraordinary remedy of injunction will not lie. Ib.
See UNSOUNDNESS OF MIND.
INSTRUCTION TO FIND FOR PARTY.
See ACCIDENT INSURANCE, 1.
INSTRUCTIONS TO JURY.
See CONTRIBUTORY NEGLIGENCE, 2, 4; CRIMINAL LAW, 5, 6, 7; INTOXICATING LIQUORS, 7; MASTER AND SERVANT, 4; SPECIAL VERDICT, 1, 2, 3, 4.
1. Burden of Proof.-An instruction that the plaintiff "in a civil case, where he has established his complaint, that is, the vital, material facts set out in the complaint, should recover," is not harmful if, considered in connection with other instructions, the case is properly given to the jury.
Salem Stone and Lime Co. v. Griffin, 141 2. Intoxicating Liquors.-Application for License to Sell.-Duty of Jury.-"Lobby."-In a case involving the fitness of an applicant for liquor license, the court refused the following instruction: "In passing upon this case, you will be governed by the law and the evidence, and it is your duty not to allow yourselves to be influenced by the presence of a lobby in the court room opposed to the granting of the plaintiff's petition."
Held, that in so far as the instruction informed the jury that they should decide the case according to the law and the evidence, free from passion or prejudice, and without being influenced by public sentiment or popular clamor, it was correct; but in so far as it characterized the people in attendance upon court as a lobby who had packed the court room with intent to influence the jury to decide the case without regard to the evidence, the instruction was objectionable, as being itself calculated to prejudice the jury against the remonstrants. Lynch v. Bates, 206 3. Credibility of Witnesses.-Stated Generally.-Where, in instructing the jury, the credit that ought to be given to witnesses is stated generally, without making particular allusion to any witness or class of witnesses in the case, there can be no well founded objection thereto.
4. "Should" and "May."-Province of Jury.-In such case, the matter predicated should be introduced by the word "may" instead of "should," as the word "should" in that connection seems, in a measure, to invade the province of the jury. 5. Invasion of Jury's Province.-An instruction that "when witnesses are otherwise equally credible and their testimony otherwise entitled to equal weight, greater weight and credit should be given to those whose means of information were superior; and, also, to those who swear affirmatively to a fact, rather than to those who swear negatively, or to a want of knowledge or a want of recollection," is bad as invading the province of the jury. Jones v. Casler, 382
6. Refusal to Give.-When not Available Error.-Unless the record
shows that it contains all of the instructions given no available
error can be based on the court's refusal to give instructions
Board, etc., v. Nichols, 611
See ACCIDENT INSURANCE; PARTIES, 1.
See APPEAL, 5.
INTERROGATORIES TO JURY.
Untrue Answers.-Remedy.-That answers to interrogatories are un-
true or not supported by the evidence is no reason for returning
them to the jury for further answers, but such fact can only be
taken advantage of by a motion for a new trial, made in deter-
mining whether the general verdict is supported by the evidence.
Board, etc., v. Nichols, 611
See CANCELLATION OF INSTRUMENT, 2, 3.
See CRIMINAL LAW, 2; INSTRUCTIONS TO JURY, 2.
1. License.-Remonstrance by Nonresidents of Township.-Striking Out.
While the statute (section 5314, R. S. 1881), authorizes only
voters of the township wherein it is proposed to sell intoxicating
liquors to remonstrate against the granting of a license, yet the
refusal to strike out a remonstrance filed by voters of another
township is harmless if a proper remonstrance, specifying the
same grounds, is filed and prosecuted to the end.
Fletcher v. Crist, 121
2. Query, whether, upon an application for license to sell intoxicat-
ing liquors in a town situated partly in three townships, and the
giving notice to the citizens of the three townships, any citizens
may remonstrate except those residing in the township in which
the proposed place of sale is situate?
3. Sufficiency of Remonstrance.-How Tested.-The sufficiency of the
facts stated in a remonstrance against the granting of a license to
retail intoxicating liquors may be tested by demurrer, but not by
a motion to strike out parts thereof.
4. Motion to Strike Out Separate Specifications.-The overruling of a
motion to strike out separate specifications in a remonstrance is
not available error.
5. Juror.-Disqualifying Opinion.—Challenge.-One who, upon his
voir dire, says that he has a strong prejudice against saloons,
which, however, he thinks he can lay aside; that he hardly be-
lieves a man can be moral and sell liquor, and that he is opposed
to granting license to any person to sell liquor under any cir-
cumstances, is not competent to sit as a juror upon the trial of
an application for license to sell intoxicating liquors, and an error
in overruling a challenge for cause is not cured by a peremptory
6. Partial Juror.-One who upon his voir dire, in such a case, says
that he thinks it is evidence of immorality for a man to engage
in the sale of intoxicating liquors, is not impartial, and a chal-
lenge for cause should be allowed.