INDEX.

ABANDONMENT.

PROCEEDINGS TO CONDEMN PROPERTY. See RIGHT OF WAY, 3, 4.

OF CONTRACT.

Recovery on part performance. See CONTRACTS, 12.

ABBREVIATIONS.

IN DESCRIPTION OF LAND.

Judicial notice taken of meaning. See DESCRIPTION, 3.

ACCOUNT.

PRESUMPTION AS TO SETTLEMENT.

See SETTLEMENT, 2.

ACKNOWLEDGMENTS OF DEEDS.

BY MARRIED WOMEN.

1. May be overcome by parol evidence. A married woman testified that she never executed a deed of trust which purported to be executed by her and her husband, and acknowledged before a notary public. She further testified that her husband brought her a paper to sign, and when she asked him what it was, she not being able to read, he replied that it was a mere matter of form, and she then made her mark, and her husband handed the paper to the cestui que trust, who was then present, and that no one asked her anything about whether she acknowl. edged her signature or whether she executed the paper. She was fully corroborated in her statements by the testimony of her husband and of three disinterested witnesses who were present: Held, that this evidence was sufficient to overcome the certificate of acknowledgment, and authorize a decree, at the suit of the woman, enjoining a sale under the deed of trust, on the ground of fraud in procuring her signature. Lowell et al. v. Wren, 238.

ACTS OF CONGRESS.

JURISDICTION OF STATE COURTS TO ENFORCE.

See JURISDICTION, 5.

ADMINISTRATION OF ESTATES.

SALE OF LAND TO PAY DEBTS.

1. Prerequisites to filing petition to sell land. Where an order for the sale of real estate by an administrator recites that he has applied the proceeds of all the personal property which came into his possession to the payment of debts of the deceased, and that there is a large amount of such debts still unsatisfied, for the payment of which there are no assets in his hands, and also recites that the administrator fiied an inventory and appraisement of the estate, which were canceled, so far as they related to goods and chattels, for the reason that such goods and chattels never came into the possession of such administrator, for which reason no sale bill could be rendered, etc., it was held, that such recital obviated the objection that there was no inventory, appraisement bill and sale bill filed before filing the petition for sale of real estate. Bostwick et al. v. Skinner et al. 147.

2. Jurisdiction depending on petition when the files are lost. Where the entitling of an order of sale by an administrator shows there was a petition, this will be sufficient to give the court jurisdiction of the subject matter to order the sale, when the sale is attacked in a collateral proceeding. Bowen et al. v. Bond et al. 351.

3. In a proceeding, under the Revised Statutes of 1845, by an administrator, for the sale of land to pay debts, it is not essential to the jurisdiction of the court that the petition should show the lands of which the intestate died siezed, if that fact otherwise appears upon the face of the record, as by recital in the order of sale. Ibid. 351.

4. Order construed as to time of sale. An order "that said petitioners be authorized and empowered to make sale of said land," etc., “and that they be required to make report to this court, at the next term thereof, of their doings in the premises :" Held, that, as the grant of power to sell was general, without restriction as to time, the clause requiring a report at the next term did not limit the exercise of the power within that time, but that the sale might be made after the next term. Ibid. 351.

5. So, where, at a succeeding term, an order was entered extending the time for making sale to the next term, it was urged that was a construction of the limited character of the original order, and limited the administrator to selling by the next term after the last order, but it was held, that such order was only formal, and in no way changed the original order of sale. Ibid. 351.

6. Purchaser not affected because there were no debts at time of sale. Although there may be no debts remaining unpaid at the time of the sale of land by an administrator, that will not render the sale void. A bona fide purchaser at such sale, without notice that there were no debts to be paid, will be protected in his purchase, if the court had jurisdic tion of the subject matter and of the parties interested. Ibid. 351.

ADMINISTRATION OF ESTATES.

SALE OF LAND TO PAY DEBTS. Continued.

7. Notice to purchaser, of irregularity. Where an administrator's sale of land, ordered in 1848, was not made until 1852, and the record showed a continuance giving further time to sell, and various subsequent orders of continuance, it was held, that the lapse of time before selling, and such orders, were not sufficient to put the purchaser upon inquiry as to whether the debts had been paid from other means, before the sale to him. Bowen et al. v. Bond et al. 351.

8. Sufficiency of affidavit to authorize publication. It is not neces sary that an affidavit filed in a proceeding by an administrator or executor for an order to sell lands to pay debts, to authorize the publication of notice, should be entitled in the case. It will be sufficient if it states the necessary facts, and is filed in the case, even if not entitled at all, and without any caption. Harris v. Lester et al. 307.

9. Omission to make guardian of minor defendants a party. In a proceeding by an executor to sell lands to pay debts, the omission to make the guardian of the minor heirs, or devisees, a party, would doubtless be error, in a direct proceeding to reverse the decree; but in a collateral proceeding, the omission to make any person a party, as required by statute, will not render the decree void as to persons made parties, and over whom the court acquires jurisdiction. If the guardian, who is also widow and devisee, is in fact made a party, it matters not that she is not described as guardian. Being in court, she can defend in any capacity she chooses. Ibid. 307.

10. Errors and irregularities not fatal in a collateral proceeding. Mere errors and irregularities, not going to the jurisdiction of the court, will not vitiate a proceeding by a personal representative to sell lands to pay debts, however fatal they might be in a direct proceeding to reverse. Ibid. 307.

JURISDICTION OF COUNTY COURT.

11. To order sale. See COUNTY COURT, 3, 4.

ADMISSIONS. See EVIDENCE, 8.

AFFIDAVIT.

DEFINED.

1. An affidavit is simply a declaration, on oath, in writing, sworn to by a party before some person who has authority under the law to administer oaths. It does not depend on the fact whether it is entitled in any cause or in any particular way. Without any caption whatever, it is, nevertheless, an affidavit. Harris v. Lester et al. 307.

2. Required to set aside default. See PRACTICE, 7.

3. To require affidavit from defendant. See PRACTICE, 1 to 5.

AGENCY.

POWERS OF AGENT-CUSTOM AND USAGE.

1. Where an agency is exercised in respect to matters governed by known usage, it will be presumed, in the absence of proof to the contrary, that the agency is to be conducted in the manner and according to the practice which are allowed and justified by such usage. United States Life Ins. Co. v. Advance Co. 549.

AUTHORITY IN A PARTICULAR CASE.

2. To settle affairs of an insurance company. Where a committee appointed by the stockholders of an insurance company, to settle the affairs of the company as they might deem equitable and best; and, second, that if, in their opinion, the affairs of the company should be wound up, then giving them authority to collect the assets, sell the franchise, and distribute proceeds, after paying debts; and, third, if they should deem it desirable to continue the business, to instruct the central committee to make an assessment, and the committee determined to wind up the affairs, it was held, that they had no authority in that event to settle with and release a subscriber who had wrongfully withdrawn money paid on his subscription and canceled his subscription. The only power the committee had was to collect the same. Melvin et al. v. Lamar Ins. Co. et al. 446.

3. Authority to collect and distribute, does not embrace the power to release without payment. Ibid. 446.

RELEASE BY AGENT WITHOUT CONSIDERATION.

4. A release of a claim by a committee of the stockholders of a corporation, not under seal, and for no consideration, except the waiver of a questionable right to one of the parties for additional compensation as vice-president, and procured by taking advantage of the party's confi dential relation, and his control of the available assets of the corporation, will not be enforced in a court of equity. Ibid. 446.

AGENT ACTING CONTRARY TO PRIVATE INSTRUCTIONS.

5. Acts may still be binding. The acts of a general agent, or one whom a man puts in his place to transact all his business of a particular kind, will bind the principal so long as the agent keeps within the scope of his authority, though he may act contrary to his private instructions. United States Life Ins. Co. v. Advance Co. 549.

SALE BY AGENT FOR HIS OWN BENEFIT.

6. May be avoided by principal. Where one partner sells the undivided moity of his co-partner, as his agent, to another, for his own benefit, and thus acquires the title, without the consent of his co-partner, the latter may disaffirm the transaction and avoid the sale, at his elec tion, if the rights of innocent purchasers have not intervened. Eldridge v. Walker et al. 270.

RATIFICATION OF AGENT'S ACT.

7. When by acquiescence. Where a committee of stockholders of a corporation made a settlement with another stockholder, releasing him

AGENCY. RATIFICATION OF AGENT'S ACT.

Continued.

from a claim, in June, 1871, and suit was brought by certain stockholders to enforce the claim so released, in July, 1873, the delay in bringing suit will not be such an acquiescence in the acts of the committee beyond their power as to ratify their action. Melvin et al. v. Lamar Ins. Co. et al. 446.

ALIMONY. See DIVORCE AND ALIMONY, 5 to 14.

AMENDMENTS.

OF JUSTICE'S SUMMONS.

1. No record required. The statute authorizing justices of the peace, at any time before trial, to amend the summons and other papers in the case, so as to make them conform to the true names of the parties, does not require the justice to make a record showing a request so to do, and by whom made; nor does it require that the request shall be in writing, and preserved with the papers. Wadhams v. Hotchkiss, 437.

2. Where such a change is made as to the name of a party, by the justice, it will be presumed it was made before the trial and upon request, especially where a trial is had upon the merits, and the record fails to show any objection to the change. Ibid. 437.

OF ASSESSMENT ROLL. See SPECIAL ASSESSMENTS, 2.

APPEALS.

WHEN APPEAL WILL LIE.

1.

Whether decree is final. An appeal will lie to the Supreme Court from any decree against a party that will work a deprivation of his property or liberty. Blake v. Blake, 523.

2. A decree against a husband for the payment of money for attor ney's fees and expenses of defending an appeal taken by him from an order committing him to prison for failing to pay money to his wife under a previous order for provisional alimony, rendered in a suit brought by her for divorce, is in the nature of a final decree, and an appeal will lie therefrom. Ibid. 523.

APPEALS FROM JUSTICES.

3. Sending papers to wrong court. Where a party to a judgment rendered by a justice of the peace of Cook county appeals to the Su perior Court, and the appeal bond recites such fact, if the papers by mis take are filed in the circuit court and there docketed, this will not give the latter court jurisdiction, and a transfer of the papers by the clerk to the Superior Court, and its trial there, will not be erroneous. The more regular course is for the circuit court to strike the case from its docket. Wadhams v. Hotchkiss, 437.

APPEARANCE.

ON APPEAL FROM ORDERS RELATING TO ROADS.

Waiver of de

irregularities. See HIGHWAYS, 3, 4.