frage, within the meaning of that
word in the Constitution, is not a
subject of enquiry by the judges
of the election.
Ibid.
4. There is no ambiguity in the word
resident. Every man is a resident
who has taken up his permanent
abode in the State.
5. It is only when the judge of the
election allows the exercise of the
elective franchise by one whose
right he suspects, or whose vote
is challenged, without tendering
the oath prescribed by the statute,
that the judge violates his duty.
He does not subject himself to the
penalty for receiving an illegal
vote, by admitting an alien to vote
who has resided in the State six
months immediately preceding
an election, and who is a resi-
dent of the county where his vote
is received, and who is a free white
male inhabitant of the age of
twenty-one years.
Ibid.
Per Smith, Justice:
6. Each State has the undoubted right
to prescribe the qualifications of
its own voters. And it is equally
clear, that the act of naturalization
does not confer on the individual
naturalized, the right to exercise
the elective franchise. The quali-
fication which the voter is requir-
ed to possess, in a Congressional
election, depends entirely on the
laws of the State in which the
elective franchise is exercised,
and is purely dependent on the
municipal regulations of the State.
Idem. 395
7. The term inhabitant is derived
from the Latin habito, and signi-
fies to live in, to dwell in; and is
applied, exclusively, to one who
lives in a place, and has there a
fixed and legal settlement. The
residence, however, is to be bona
fide, and not casual or temporary.
Idem. 396
8. To determine the qualification of
an elector in this State, it would
seem to be wholly unnecessary to
enquire whether the elector was a
citizen of the United States. Ibid.
9. Unless the legislature shall make
citizenship an indisputable qualifi-
cation to the enjoyment of the
elective franchise, and the Consti-
tution clearly admits of the exer-
cise of that power by that body,
the Supreme Court cannot add
such a pre-requisite by construc-
tion. Idem.
409
1. 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. Harlan
v. Scott.
66
2. It is not error for the Court to
strike from the files a plea, filed
without leave, after a defendant's
demurrer has been overruled.
Conradi et al. v. Evans et al., 186
3. A plaintiff may have his own
judgment reversed. Teal v. Rus-
sell et al.,
1. A leading question is not always
objectionable. Forsyth et al. v.
Baxter et al.,
2. It is not error to admit in evidence
the laws of another State, when
they are like our own, even where
there is no averment of such laws
in the declaration.
Ibid.
3. It is not error to exclude parol
evidence of a contract of sale
which is contained in a deed of
assignment, when the written evi-
dence could be produced. Cross
v. Bryant et al.,
42
4. The Supreme Court will not infer
that a deed was excluded from the
jury in the Court below, upon the
technical ground of want of proof
of its due execution, unless that
reason is expressly stated in the
bill of exceptions.
Ibid.
5. Parol proof is inadmissible, in an
action of account, to show that the
defendants admitted that the plain-
tiffs were tenants in common with
them, of the premises, for an ac-
count of the rents and profits of
which the action was brought,
while written evidence existed,
which it was in the power of the
plaintiffs to produce. Bryan et al.
v. Smith et al.,
49
6. Where two persons are jointly
indebted to a third, either has a
right to pay the debt, and call on
his co-debtor to repay his moiety.
The payment may be proved by
either the verbal or written con-
fession of the person to whom the
payment ought to be made; and
his receipt is primâ facie evidence
that the payment has been made.
Ballance v. Frisby et al.,
65
7. Where the plaintiff declares upon
a special contract, there is no rule
better settled, than that the proof
and the allegations in the declara-
tion must correspond. Mastin v.
Toncray,
216
8. A declaration, averring that the
defendant was to deliver to the
plaintiff the pork of nineteen hogs,
is not sustained by proof that he
was to deliver to him all the pork
he could spare.
Ibid.
9. A declaration alleged that the
defendant agreed to deliver to the
plaintiff the pork of nineteen hogs,
and on the trial the Court in-
structed the jury, at the instance
of the plaintiff, that it was not ne-
cessary that the number of hogs
to be delivered should be proved
as alleged: Held, that the instruc-
tion was erroneous.
Ibid.
10. Where the plaintiff alleged in
his declaration, in an action of
covenant, that the plaintiff and
the defendants, a corporation by
the name of the Board of Commis-
sioners of the Illinois and Michi-
gan Canal, "entered into certain
articles of agreement, sealed with
the seal of the plaintiff, and sealed
by the said defendants, by W. B.
Archer, the Acting Commissioner
of the said Board," and then set
out the agreement in hæc verba,
and alleged a performance of the
same on the part of the plaintiff;
to which the defendants pleaded
non est factum, without verifying
the plea by affidavit: Held, that
the power of the defendants to
make the contract, could not be
questioned under the pleadings,
and that the plaintiff might prove,
by parol, the execution of the con-
tract. Holcomb v. Illinois and
Michigan Canal,
231
11. In an action by the plaintiff, to
recover the contents of notes al-
leged to have been lost or con-
sumed by fire, it is not competent
for him to introduce his own testi-
mony to the jury, to prove their
loss, in order to admit secondary
evidence of their contents. The
proper course is, to present to the
Court an affidavit of the loss, and
then secondary evidence may be
admitted of the contents of the
notes or bills. Dormady v. State
Bank of Illinois,
244
12. The English practice, requiring
a party to give notice of the loss
or destruction of a bill or note, in
order to maintain an action to re-
cover its contents, has never been
introduced into this country. Such
notice is not necessary;
Ibid.
13. A demurrer to evidence must
state facts, and not merely the
evidence conducing to prove them.
One party cannot insist upon the
other party's joining in demurrer,
without distinctly admitting, upon
the record, every fact and every
conclusion, which the evidence
given for his adversary, conduced
to prove.
Ibid.
14. Where a party has been com-
pelled to join in demurrer to evi-
dence, and the party demurring
has not admitted upon the record,
the facts and conclusions which
the evidence tended to prove, the
judgment of the Court below, if
for the demurrant, will be re-
versed, and the cause remanded.
15. In an action, by Isaac and Jesse
Funk, on a promissory note paya-
ble to I. and J. Funk, it is unne-
cessary, unless a mistake in the
names is pleaded in abatement, to
prove the Christian names of the
payees. Vance et al. v. Funk et al.,
264
16. Where an action was brought
against the makers of a note, by
the payees, who were described
in the note by the name of their
firm, Salisbury & Collins":
Held, that it was not necessary,
under the general issue, to prove
the Christian names of the plain-
tiffs, or that they were partners.
Salisbury et al. v. Gillet et al., 290
17. An endorser or assignor of a
promissory note, who acted mere-
ly as the agent of the endorsee or
assignee, in receiving the note as
payee, is a good witness for the
defendant, to impeach the consid-
eration of the note in the hands of
his principal. Webster et al. v.
Vickers,
296
18. An allegation, in a declaration
upon a guarantee of a promissory
note, that the defendant guaran-
tied the payment of the note, and
that, if the plaintiff could not re-
cover the amount thereof of the
maker, by judgment and execu-
tion, that the guarantor would pay
the same, is supported, by evi-
dence, that the defendant guaran-
tied the payment, in case the mo-
ney could not be collected of the
maker; and that suit was insti-
tuted and judgment recovered
against the maker, as soon as a
judgment at law could be ob-
tained; and that execution was
issued and put into the officer's
hands for collection, within sixteen
days from the rendition of judg
ment; and that the said execution
al-
was returned nulla bona;
though suit might have been com-
menced in another court sooner,
but in which judgment could not,
probably, have been obtained so
325
Smith v. Finch,
19. On the trial of an action upon a
promissory note, by the payees
against the makers, a receipt was
produced in evidence, by the de-
fendants, dated on the same day
the note was made, showing the
receipt of a sum of money by the
plaintiffs, which they agreed to
endorse on the note of the defend-
ants. Thereupon the clerk of the
plaintiffs testified that that pay-
ment was endorsed, by direction
of the plaintiffs, on two other notes
of the defendants, held by the
plaintiffs at that time, one dated
in April, 1837, and one in May or
June following; that he had never
seen the receipt before, but, from
his knowledge of the transactions
between the parties, he had no
doubt the money was applied as
stated. The defendants then pre-
sented to said witness a note made
by them to the plaintiffs, dated in
April, 1837, upon which was en-
dorsed a credit of the balance
The witness
due on the note.
stated that this was one of the
notes upon which the money men-
tioned in the receipt was credited;
and that he had never heard the
defendants say any thing on the
subject. The defendants then
moved the Court to exclude the
evidence of the witness from the
jury. This motion was overruled,
and judgment rendered for the
plaintiffs: Held, that the decision
of the Court was correct; and that
the evidence was admissible as
part of the res gesta. McFarland
347
et al. v. Lewis et al.,
20. Semble, That parol evidence
would not be admissible to prove
the application of a sum of money
paid by a defendant, by endorse-
ment on a note held against him
by the plaintiff, without the pro-
duction of the note, or showing
some legal reason for not produc-
Ibid.
ing it.
21. In an action against the assignor
of a promissory note, the record of
a suit against the makers is ad-
missible in evidence, to show dili-
gence by the institution and pros-
ecution of a suit against them.
354
Harmon et al. v. Thornton,
22. In an action by the assignee
against the assignor of a promis-
sory note, proof that the plaintiff
instituted a suit against the maker,
at the first term of a court having
competent jurisdiction, recovered
judgment, and issued execution,
which was returned by the sheriff,
nulla bona, as to a portion of the
amount of the note, which could
not be collected of the maker, -
is evidence of sufficient diligence
to charge the assignor. It is not
necessary to issue a capias ad
Cowles et al. v.
satisfaciendum.
360
Litchfield,
23, Held, that an affidavit of the re-
lator, setting forth, "that he trans-
mitted to James B. Needles, late
sheriff of Monroe county, for col-
lection," certain fee bills and exe-
cutions, was sufficient evidence of
their having come to the hands of
the defendant, upon a motion for a
rule against him, to return the
same. The People v. Needles, 361
24. The want of recollection of one
witness cannot rebut the positive
testimony of another. Gorham et
al. v. Peyton,
365
25. In an action by an assignee of a
promissory note against an as-
signor, a subsequent assignor is
not a competent witness for the
plaintiff, although the plaintiff had
recovered judgment against him
for the amount of the note and
interest. Hayes v. Gorham et al,
432
26. Where a question is asked a
witness by the plaintiff, which is
objected to by the defendant, and
the objection overruled by the
Court, unless the answer of the
witness appears, the decision of
the Court cannot be assigned for
error. Russel et al. v. Martin,
494
27. Unless a bill of exceptions shows
that illegal testimony has been
received, the decision of a Court
in permitting an illegal question to
be asked, cannot be assigned for
Ibid.
28. The recalling of a witness, after
his examination has been closed,
is a matter of discretion in the
Court, and cannot be assigned for
Ibid.
29. The certificate of a judge of
probate is not admissible in evi-
dence to show who are the heirs
of a deceased person. Greenwood
v. Spiller,
504
30. Hearsay evidence is admissible
to prove pedigree, only where the
facts sought to be established are
ancient, and no better evidence
can be obtained. In such case,
the witness produced to prove who
are the heirs of a deceased person,
should be some one either con-
nected with the family of the de-
ceased, by marriage or blood, or
he should have some personal
knowledge of the family of the
deceased.
31. Where a note is given in con-
sideration of work done under a
contract, after completion and ac-
ceptance of the work, the note is
prima facie evidence that the
work was well done, and the con-
tract fully performed. Swain et
al. v. Cawood,
32. A part failure of consideration
cannot be given in evidence, un-
der the general issue, and notice of
a set-off, or of an entire failure of
consideration.
Ibid.
33. Quere, Whether an objection to
a witness for the plaintiff, on ac-
count of his being the security for
costs, should not be made before
trial. Eldredge et al. v. Hunting-
ton,
538
See ACTION, 4, 5; BILL OF Ex-
CEPTIONS; CRIMINAL LAw;
DEATH; DEED; Demurrer TO
EVIDENCE; EJECTMENT; Is-
STRUCTIONS; MINOR; PARTI-
TION; PARTNERSHIP; PEDLER;
PRACTICE; PROMISSORY NOTE;
TRESPASS; USE AND OCCUPA-
TION; VARIANCE; WARRANTY;
WILL.
An execution from a probate jus-
tice of the peace, for a sum ex-
ceeding $100, may be directed to
any constable of the county. Har-
rison v. Singleton,
In the Courts of Illinois, the clerk
enters the judgment on his re-
cords, when rendered, and costs
are awarded without any specifi-
cation of the amount. He subse-
quently makes up his costs with-
out any taxation by the Court, and
inserts them in the writ of fieri
facias. Whenever a second or
alias writ issues, the costs attend-
ant on the first writ, are included
with the additional costs, in the
second writ, and those of an alias,
in like manner, in a pluries, if it
issue; hence the alias and pluries
cannot correspond with the origi-
nal writ of fieri facias, and a vari-
ance between them, in the amount
of costs, is not material. Bryan
et al. v. Smith et al.,
49
3. The Circuit Court of Madison
county has authority to issue an
execution upon a judgment recov-
4. An execution may be issued after
several years have elapsed from
the issuing of previous executions,
where the first execution was is-
sued within a year and a day from
the rendition of judgment. Lamp-
sett v. Whitney,
442
5. Neither the lands nor the credits
of a deceased person can be
reached by execution, Greenwood
504
v. Spiller,
See JUDGMENT, 9; MANDAMUS, 8;
OFFICER; RIGHT OF PROPER-
EXECUTOR.
See ADMINISTRATOR.
EXEMPLIFICATION.
1. In the transcript of the record, the
name of the judge and a locus si-
gilli should appear at the end of
the bill of exceptions, else the Su-
preme Court will not recognise the
bill of exceptions as a part of the
record. Unless the name of the
judge is copied with the bill of ex-
ceptions, the Court will presume
that he did not sign it. Jones v.
Sprague,
56
2. A transcript of the record of a
Circuit Court, which is not certi-
fied under the seal of the Court, is
a nullity, and a writ of certiorari
cannot be granted in such case;
but the cause must be stricken
from the docket. Cowhick v. Gunn
et al.,
See CRIMINAL LAW, 1, 2.
Ex parte EXAMINATION.
1. An examination of a witness by
the sole arbitrator, in the absence
of both parties, is not an ex parte
examination. The term ex parte
implies an examination in the
presence of one of the parties, and
in the absence of the other. Lin-
coln et al. v. Cook,
See CHANCERY, 22.
FICTITIOUS CAUSE.
1. Where the Court have reason to
suppose that a cause is not a real,
but a fictitious proceeding, proof
will be required that the action is
not feigned. Spragins v. Hough-
ton,
FIERI FACIAS.
See EXECUTION.
FIRING PRAIRIES.
1. If an illegal act be done, the party
doing, or causing the illegal act
to be done, is responsible for all
consequences resulting from the
437
Burton v. McClellan,
2. 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 pos-
sessions from another fire, he must
show the absolute necessity which
existed at the time for such an act,
and that every possible precaution
was used to prevent injury. The
onus probandi, in such case, is
with the person getting the fire;
the person injured is not obliged
to prove negligence in order to
sustain an action for his loss. Ibid.
FLOODING LANDS
See MILL AND MILL DAM.
FORCIBLE DETAINER.
1. The awarding of a writ of restitu-
tion upon the dismissal of an ap-
peal, in a case of forcible detainer,
is not error. Harlan v. Scott, 66
2. 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-
Ibid.
not be assigned for error.
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