BURDEN OF PROOF. Continued.
that the sale was for cash on delivery, or that he was induced to part
with the property by the fraud of the purchaser. Martin v. Wirts et
al.,
5. Replevin-Property in defendant.-Under a plea of property in
defendant, or in a stranger, the burden is upon the plaintiff to prove
property in himself. Martin v. Wirts et al.,
DECLARATIONS.
6. Co-owner.-Where there is a community of interest, the declara-
tions of one co-owner, since deceased, as to the ownership of the prop
erty, male while the community of interest existed, may be used
again t the survivor. Abend, Adm'r, v. Mueller,
7. Deceased party.-Upon a question of ownership of property,
after the plaintiff had proved possession and acts of ownership by the
deceased during the last years of his life, it was competent to show his
declarations during the same time, claiming the property as his own.
Abend, Adm'r, v. Mueller,
8. Of agent. Although in general the declarations of an agent re-
specting the subject-matter will bind the principal, yet a declaration in
a letter by an agent, who was also guarantor upon notes of the princi-
pal, respecting the payment of the notes, is not within the scope of his
authority, and does not bind the principal. Bernstein v. Bernstein, 233
GENERALLY.
9. Allegations and proof.-In actions for damages occasioned by
negligence, the evidence must conform to the allegations as to the cause
of the injury. City of Joliet v. Henry,
10. Certified copy of deed. Where the certificate of the official
character of a justice of the peace, attached to a certified copy of a deed,
fails to state that the person taking the acknowledg nent was at the
time of so doing a justice of the peice, such certified copy is not al-
missible in evidence. Phillips v. The People,
11. Conspiracy.-A conspiracy can not be proved by showing acts
of the alleged conspirators, but the conspiracy must be shown as an
independent fact before the acts of one conspirator are admissible
against the other for any purpose. Shields et al. v. M Kee,
12. Excluded.-Evidence offered but excluded can not be considered
in favor of either party as bearing on the issues in the case. Hersey
et al. v. Westover,
13. Foreign deed.-In order to admit a deed executed in another
State in evidence, it must appear that it was executed and acknowledged
in conformity with the laws of such State. Phillips v. The People, 340
14. Impressions of witness.—An impression of a, witness, although
it may convey the idea of a certain degree of recollection, is an equiv-
ocal term, and unless it is made to appear that it is derived from rec-
ollection, it can not be admitted as evidence. Rounds v.. McCormick,
15. Receipt.-A re eipt is prima facie evidence of what it contains,
and casts the burden of disproving it upon him who attacks it. Bauch-
witz v. Tyman,
186
16. Rule excluding, applies only between parties.-The rule exclud-
ing parol evidence to contradict a writing applies only as between
the parties to the instrument, and when the suit is between one of the
parties and a third person, the rule is not applicable. Needles v. Hani-
fan,
303
17. To vary writing.-The rule that parol evidence is not admissible
to vary a written instrument, applies as well to a receipt as to other
writings, so far as such receipt may be evidence of a contract, although
so far as it is evidence of payment, it may be contradicted. Needles
v. Hanifan,
303
18. To vary writing.-Where a written proposition has been ac-
cepted and acted upon, it creates a contract in writing which can not
be varied by parol, neither can parol evidence be admitted to show
what the writer intended by his proposition. Lake v. Freer, 576
WITNESSES.
19. Credibility-Private detective.-The fact that a witness is a
private detective, employed by one of the parties to procure evidence in
the cause, does not itself affect the credibility of a witness, and it is
error to instruct the jury that "courts look upon the evidence of such
persons with suspicion." It is for the jury to judge of the credibility
of the witness. DeLong v. Giles,
1. Proof of lost execution.-Evidence that a paper purporting to be
an execution was issued, and testimony of a justice that if he issued the
paper it must have been in the usual form of a valid execution, without
any statement of its contents, is insufficient to show a valid execution.
Kantzler v. The People,
610
2. Not a trespass.-Where an officer levies upon mortgaged chattels
in possession of the mortgagor, he is not a trespasser. Holladay et al.
v. Bartholomae et al.,
206
3. Failure. To create a liability under the statute for a failure to
return an execution, there must be a valid execution, and it is incum-
bent upon the plaintiff to produce the execution or show its contents,
after preliminary proof of its loss. Kantzler v. The People,
610
EXECUTOR.-See ADMINISTRATION OF ESTATES.
EXCEPTIONS.-See PRACTICE.
EXEMPTIONS.-See ATTACHMENT AND GARNISHMENT-HOMESTEAD.
PERSONAL PROPERTY.
1. Sale of exempt property.-After an execution has become a lien
upon personal property, a purchaser of such property from the debtor,
although it may be exempt, can not hold it as exempt property unless
the debtor makes the schedule required by law. Chapin v. Hoel, 309
2. Schedule.-Whether a failure of the debtor to make a schedule
of property claimed to be exempt within the time given by the officer
holding the execution, forfeits his right of exemption, the court does
not decide; but the officer having given him further time, it was error
to proceed with the levy and sale before such time had expired. Pelkey
v. The People,
82
3. Schedule must be made.-If a judgment debtor would avail him-
self of the law exempting personal property, he must make the sched-
ule required by law. Chapin v. Hoel,
EXTORTION AND UNJUST DISCRIMINATION.-See RAILROADS-
STATUTE OF LIMITATIONS.
'EES AND SALARIES.
GENERALLY.
1. Allowances by county board.-An allowance of $1,500 by the
county board to a sheriff" to pay his deputies" will be deemed to have
been intended by the board to cover all they thought necessary for
clerk hire, stationery and other purposes. The People v. Gregory
et al.,
2. Allowances for deputy, clerk, etc.-Where the county board fixed
the salary of sheriff for the full term at $2,400, and his expenses for
clerk, deputy, etc., amounted to nearly $1,000, while the fees actually
collected amounted to only $2,440, held, he was not entitled to pay
from the county for fees earned in criminal cases where no costs were
collected. County of Crawford v. Lindsay,
261
3. Approval by county board.-The fact that the county board ap-
proved the reports of the sheriff showing amounts due him for salary and
expenses after deducting fees collected by him, imposed no obligation
upon the county to pay him. County of Crawford v. Lindsay, 261
4. Criminal cases.-The law providing for payment by the county
to the sheriff of fees in criminal cases, where no conviction is had,
applies only in cases where the whole amount of fees collected by the
sheriff is less than his salary as fixed by the county board. County of
Crawford v. Lindsay,
261
5. Must pay over.-It is the duty of the sheriff to pay over all fees
received by him in excess of the allowance made to him by the county
board. The People v. Gregory et al.,
FELLOW SERVANT.-See MASTER AND SERVANT.
FLOODS.-See WATER-COURSES.
FORCIBLE ENTRY AND DETAINER.
1. Holding over.—In forcible detainer for willfully holding over, the
gist of the action is the holding over, and this must be proved by the
plaintiff. Murphy v. Dwyer,
2. Proof. In an action of forcible detainer by a purchaser under a
FORCIBLE ENTRY AND DETAINER.
GENERALLY. Continued.
foreclosure sale, the plaintiff must prove not only a demand for posses-
sion, but also that the defendant neglected or refused to surrender pos-
session after such demand. Hersey et al. v. Westover,
3. Separate occupation.-Testimony tending to show that the parties
held the land in severalty, is admissible in an action of forcible detainer
against them jointly. Springer et al. v. Cooper,
267
4. When not.-The wife of appellant was entitled to possession, and
held the same as heir, in common with other heirs of the former owner.
There was no forcible entry, and her possession was lawful. The pos-
session of appellant, if any, was in right of his wife, and the action
should have been against both appellant and his wife, or not at all, and
the result of a judgment against appellant alone would be the separa-
tion of husband and wife or the ousting of one who had a right of pos-
session, which in either case could not be done. Cofoid v. Bishop, 117
5. Willful holding over.--In forcible detainer for willfully holding
over after termination of the tenancy and notice to quit, the gist of the
action is the holding over, and this must be proved by the plaintiff, or
there can be no recovery. Murphy v. Dwyer,
1. Notice of.-Neither idle gossip nor vague reports in the neigh-
borhood will affect the purchaser's conscience, or put him upon inquiry.
Notice, to affect the purchaser, must be of such a character that to dis-
regard it would be fraud. Mason et al. v. Trustees of Schools et al.,
454
2. Proof.-Fraud must generally be proved by showing such cir-
cumstances as to justify the inference of a fraudulent intent or motive.
The facts proved must justify the inference. Mason et al. v. Trustees
of Schools et al.,
FREEHOLD.-See APPEALS.
GAMBLING CONTRACT.-See CONTRACTS.
GARNISHMENT.-See ATTACHMENT AND GARNISHMENT.
GROWING CROPS.
GENERALLY.
1. Purchaser at foreclosure.-A purchaser at a foreclosure sale is
entitled to the crops growing on the mortgaged premises at the time of
such sale. But if the homestead is not waived in the mortgage, he is
not entitled to so much of the crops as are growing upon the homestead.
Brock v. Leighton,
361
HIGHWAYS.-See ROADS And Bridges.
1. Extent.-Courts will take notice of the subdivisions of town and
city property into lots and blocks, and of the legal subdivisions by gov-
ernment surveys, and where a debtor has a dwelling on any given forty-
acre tract, which, with the buildings thereon, is of the value of $1,000,
his exemption of homestead is confined to that tract. Brock v. Leighton,
361
2. Waiver Growing crops.—Where, by a defect in the acknowledg-
ment of a mortgage deed, the homestead is not waived, a purchaser at a
foreclosure sale under such mortgage is not entitled to the crops growing
on the homestead. Brock v. Leighton,
361
HUSBAND AND WIFE.
1. Expenses of family.-In construing the statute making the
wife's separate estate liable for the expenses of the family, the term,
"expenses of the family," means such expenses as were incurred for, on
account of, and to be used in the family, and what would be included
in the term must, within this limitation, be determined by the circum-
stances of each case. Von Platen et al. v. Krueger,
1. Restoration of rights.-Upon the dissolution of an injunction, it
is proper to undo whatever has been wrongfully done by means of it,
and restore the parties to their former rights. Herrington v. Herring-
ton et al..
GENERALLY.
2. Threatened trespass.-When the injury threatened is a mere
trespass, to be consummated by a single act, and susceptible, in legal con-
templation, to complete reparation by pecuniary damages, a court of
equity will not interfere by injunction to restrain the act threatened.
Herrington v. Herrington et al.,
1. Parent's right of action.-In the case of a parent suing for the
loss of service of a child, the gist of the action is the loss of service, and
the statute limiting the right of action for personal injuries to two
years does not apply. Walier v. Chicago,
1. Bank deposit.-A deposit in bank, subject to the checks of the
depositor, does not draw interest, unless there has been unreasonable and
vexatious delay in payment after demand. First Nat. Bank v. Cole-
2. Loan by an agent.-Where one deposits money with another for
the purpose of loaning it, stipulating that it should net the owner ten
per cent., such person becomes the general agent of the owner, and if he
exacts usury the principal is presumed to have known and authorized
it, and unless such presumption is rebutted the transaction will be
usurious. Stevens et al. v. Meers,
138
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