ABATEMENT.

1. The rule that a plea to the juris-
diction of the Court, or in abate-
ment, must be pleaded at the re-
turn term of the process, and be-
fore the party has entered a full
appearance in the cause, has its
exceptions. One of these excep-
tions is, where the declaration is
not filed at the first term. In that
case the defendant is not bound
to plead either to the jurisdiction
or in abatement, until the plaintiff
is in a situation to call upon him
for a plea. Shepard v. Ogden,

260
2. A mistake in the Christian name
of a plaintiff can be taken advan-
tage of only by plea in abate-
ment. Salisbury et al. v. Gillett et
al.,

290
3. In an action by several plaintiffs,
the defendant cannot avail himself
of the fact of the decease of one
of the plaintiffs, before the com-
mencement of the suit, except by
plea in abatement. Camden et
508
al. v. Robertson,

4. Where a demurrer to a plea in
abatement is sustained, if the de-
fendant files a plea in bar, he
thereby waives his plea in abate-
576
ment. Delahay v. Clement,

See EJECTMENT, 1, 2; PLEADING,
31.

ACKNOWLEDGMENT OF
DEEDS.

See DEEDS.

ACTION.

1. The declaration, in an action of
trespass on the case, stated, that

the plaintiffs made a contract with
the defendant, to slaughter and
dress for him two hundred and
eighty hogs, at the usual price for
such labor, and to commence the
work on a given day, and that the
defendant agreed to furnish them
the hogs at their slaughter-house,
on such day; and that the plain-
tiffs, on the day mentioned, under-
took and entered upon the fulfill-
ing of their part of the contract,
by hiring laborers, building fires,
raising steam preparing tools,
burning a large quantity of wood,
and making divers other material
and expensive arrangements to
perform their part of the contract;
and that they have been put to
great expense and inconven-
ience and damage in consequence
of the same. It further alleged,
that though a notice and request
to the defendant to furnish the
hogs were made, he did not furnish
the same, nor had he paid the
plaintiffs for their trouble,expenses,
&c. At the end of the declara-
tion, $200 damages was laid. On
special demurrer, and on motion
in arrest of judgment, the declar-
ation was held to be good: Held,
that the decision was correct. El-
lett v. Todd et al.,
215
2. The cause of action against a
principal debtor in favor of his
surety, accrues when the surety
pays the debt, not before. Shep-
ard v. Ogden,
260
3. The law is well settled, that
where property has been tak-
en tortiously, and without the as-
sent or knowledge of the plaintiff,
and the same has not been con-

verted into money or money's
werth, and there has been no sub-
sequent promise by the defendant,
to pay for the same, the plaintiff
cannot waive the tort, and recover
the value of the property in an
action for money had and receiv-
ed. Morrison et al. v. Rogers, 318
4. If an illegal act be done, the par-
ty doing or causing the illegal act
to be done, is responsible for all
consequences resulting from the
act. Burton v. McClellan, 437
5. No authority is given, by § 148 of
the Criminal Code, to fire prairies
in the month of December; and a
person setting such fire is bound

to

use every possible diligence
to prevent injury to others; and
to justify such an act on the
ground that he was compelled to
set a back fire to protect his own
possessions from another fire, he
must show the absolute necessity
which existed, at the time, for
such an act, and that every possi-
ble precaution was used to prevent
injury. The onus probandi, in
such case, is with the person set-
ting the fire; the person injured is
not obliged to prove negligence in
order to sustain an action for his
loss.
6. An action against D., for money
had and received to the plaintiffs'
use, is not sustained by proof that
money was received by D. & G.
and others, under an act of Con-
gress, in payment of certain In-
dian debts due D. & G.; and that
the plaintiff and D. & G. were
members of a firm engaged in the
Indian trade, and had outstanding
Indian debts. Davenport v. Gear
et al.,

Ibid.

498

See BANK; CORPORATION; FIC-
TITIOUS CAUSE; LICENSE;
MECHANIC'S LIEN; MILL AND
MILL DAM; MINOR; PARTNER-
SHIP; PEDLER; PROMISSORY
NOTE, 8, 9, 10, 11, 21, 28, 29,
30; TRESPASS.

CUTOR.

1. In an action in the Circuit Court
by an administrator, unless the
defendant interposes a plea that
the plaintiff is not administrator,

in a declaration, and an amend-
ment is made to one of the
counts, which could not have sur-
prised the defendants, or varied
their defence, because the declar-
ation contained another count sub-

stantially the same, it is no cause
for a continuance. Russel et al. v.
Martin,
494
4. In an action by a female for slan-
der, the plaintiff amended her de-
claration, by inserting that she
was "sole and unmarried": Held,
that the amendment was wholly
immaterial, and no cause for a
continuance.
Ibid.

See APPEAL, 2, 5; ATTACHMENT,
6,7; JUSTICES OF THE PEACE,
4; PLEADING, 2, 5; REPLEV-
IN BOND, 9.

APPEAL.

9

From Justices of the Peace.
1. On appeal to the Circuit Court, in
a criminal case, the Circuit Court
can try the cause de novo. Shirt-
liff v. The People,
2. Where the capias, issued for the
arrest of a person charged with
an assault and battery, stated that
the act complained of was "con-
trary to the law of the State of
Illinois, and in violation of the or-
dinances of the town of Lynville,"
and the cause was placed on the
justice's docket in the name of the
"President and Trustees of Lyn-
ville," and the justice gave judg-
ment in favor of the "President,"
&c.; and on appeal, the Circuit
Court directed the cause to be
docketed in the name of the "Peo-
ple," and tried the cause as be-
tween the "People" and the de-
fendant: Held, that there was no
Ibid.
3. One of several defendants may
appeal from a judgment of a
justice of the peace, though the
other defendants refuse to join in
the appeal. Leggett v. Chrisman,
46
4. The awarding of a writ of resti-
tution upon the dismissal of an
appeal, in a case of forcible de-
tainer, is not error. Harlan v.
Scott,

error.

66

5. A motion to amend a bond on an
appeal from a justice of the peace,
in a case of forcible detainer, is
addressed to the sound discretion
of the Court, and its decision can-
not be assigned for error. Ibid.
6. The statute requiring the parties
to produce, on a trial before a jus-
tice of the peace, all their claims

7.

8.

9.

Where on appeal from a justice
of the peace, the appeal bond was
filed in the clerk's office, one day
before the passage of a law fixing
the time of holding Courts in
Boone county, and the summons
to the appellee, and the superse-
deas were issued after the passage
of the law: Held, that the appeal
was regularly taken, and that the
Circuit Court had jurisdiction of
the cause. Scammon v. Cline, 456
A Circuit Court existed in Boone
county, as soon as a clerk was ap-
pointed by the judge of the cir-
cuit, although the latter failed to
appoint the time for holding the
Court.
Ibid.
An appeal does not lie from a
judgment of a justice of the peace,
upon the award of arbitrators.

Van Winkle et al. v. Beck, 489
10. Semble, That the obligation in an
appeal bond is both joint and sev-
eral, and either of the obligors
may be proceeded against separ-
ately. McConnel v. Swailes, 572
11. The dismissal of an appeal, or

certiorari, is equivalent to a regu-
lar, technical affirmance of the
judgment of the court below, so
as to entitle the party to claim a
forfeiture of the bond, and have
his action therefor.
Ibid.
See AMENDMENT, 2.

From Probate Court.
See WILL.

From Circuit Court.
12. Where on appeal, the record
does not show that final judgment
has been rendered in the Court
below, though the verdict of the
jury appears in the record, the ap-
peal will be dismissed;
an ap-
peal can only be taken from the
judgment of the inferior Court.
Harrison v. Singleton,

22

13. An appeal from the Circuit to
the Supreme Court, where the
judgment is final, and amounts to
$20, exclusive of costs, or relates

to a franchise or freehold, is a
matter of right; and no condi-
tions, except those prescribed in
the statute, can be annexed to
an order granting an appeal. Em-
erson v. Clark,
490
14. The appellants in an appeal,
and the plaintiffs in a writ of er-
ror, may always dismiss their suit
before a decision on the merits;
and the effect of such dismissal is
to leave the parties where they
were before the appeal was taken,
or the writ of error brought. Han-
cock Co. v. Marsh,
492

in full, and the second ratably, if
there should not be sufficient to
pay the whole, and that the sur-
plus, if any, should be paid over to
the assignor. A memorandum was
annexed to the deed, stating that
three creditors were not provided
for in the assignment, for the rea-
son that they held securities by
mortgage: Held, that the condi-
tions of the deed were not fraudu-
lent. Held, also, that the employ-
ing of the assignee, as the agent
of the trustee, to take charge of
the property, did not render the
transaction fraudulent, although
the agreement to employ him as
such agent was made on the same
day that the assignment was exe-
cuted. Cross v. Bryant et al., 43
2. Semble, That the possession of the
property assigned, by the assignor,
as the agent of the assignee, where
a general assignment is made by
a debtor for the benefit of his
creditors, is not fraudulent per se.

Ibid.

See DEBTOR AND CREDITOR;
PROMISSORY NOTE; SCHOOL
LANDS.

ATTACHMENT.

1. An attachment bond which does
not describe the Court from which
the process is to be issued, or to
which it is to be returned, or the
term of the Court, is fatally de-
fective, and a judgment rendered
by default in such a case, will be
reversed on writ of error. Law-
rence v. Yeatman et al.,

2.

17

An attachment bond described the
writ of attachment as "sued out,
returnable on the third Monday of
August next," without any other
description of the Court or term:
Held, that the description was un-
certain and insufficient. Ibid.
3. Where the proceedings are er
parte and in rem, there must be a
strict conformity with the statute.

Ibid.
4. An attachment, in aid of a suit at
law, is process, and is made, by
statute, part of the proceedings in
the suit; it is consequently the
duty of a defendant, desiring to
quash the same, to make his mo-
tion at the return term of the at-