20. Moreover, the complainant in the injunction suit had, under the
authority of the decree therein, conveyed to the same grantee, and it
was a fair presumption that the deed thus objected to was executed in
harmony with, and carrying out the wishes of the complainant, who
had obtained the injunction. Harpham et al. v. Little, 509.
OF THE RECORDING OF A DEED.
21. And herein, of parol evidence. Where a prior deed is sought to
be given in evidence to affect rights claimed under a subsequent deed,
if it be attempted to show by parol that the former deed was recorded,
with a view to notice, the time of the recording should be shown.
Ibid. 509.
22. But parol evidence is not the best evidence to show that a deed
was recorded, and should not be allowed unless the proper foundation
is laid for secondary evidence. Ibid. 509.
23. Where a third person was a party with a solicitor in a transac
tion with clients of the latter, and seeks to hold property thus secured,
the burden is upon him, as it would have been upon the solicitor, to
show that the transaction was in all respects just and fair. Alwood v.
Mansfield et al. 496.
PLAINTIFF'S EVIDENCE MUST PREPONDERATE.
24. A party holding the affirmative of a proposition is required to
maintain it by a preponderance of evidence, which can never be the
case when one of two parties, both equally credible, makes an asser-
tion which is denied by the other. The plaintiff's case, under such
circumstances, is not proved. Broughton v. Smart, 440.
25. The cross-examination of witnesses is largely discretionary with
the court, in its scope, and a judgment will not be reversed because
the court refused to permit a witness to answer a question on cross-
examination, unless it appears that the party may have been injured
thereby. Cooper v. Randall et al. 317.
26. As to what caused the injury complained of. In an action to re-
cover damages for a depreciation in the value of the plaintiff's dwell-
ing house, alleged to have been occasioned from dust and other im-
purities thrown upon and into the house from the defendant's mill, it
is competent for the defendant to prove that such depreciation in value
resulted from some other cause. Ibid. 317.
PROOF OF ASSIGNMENT OF PROMISSORY NOTE.
Under what state of pleading necessary. See ASSIGNMENT, 1, 2, 3.
TELEGRAPHIC DISPATCH AS EVIDENCE. See TELEGRAPHY, 2.
AS TO WHAT IS A CORPORATION NEWSPAPER.
DEGREE OF PROOF REQUIRED.
To rescind a contract for fraud. See FRAUD, 5.
EVIDENCE IN CRIMINAL CASES. See CRIMINAL LAW, 7, 8.
PRESERVATION OF EVIDENCE.
Necessity therefor, on assessment of damages on dissolution of injunc-
tion. See INJUNCTIONS, 8.
PRESERVING EVIDENCE IN CHANCERY. See CHANCERY, 16.
EXCEPTIONS AND BILLS OF EXCEPTIONS.
WHETHER EXCEPTIONS NECESSARY.
1. Where a report of commissioners assigning dower omits to show they
were properly sworn. See DOWER, 2.
EXCEPTIONS TO MASTER'S REPORT.
2. When necessary, and when not. See CHANCERY, 13, 14, 15.
BILL OF EXCEPTIONS.
3. Motions-whether a part of the record unless preserved by bill of ex-
ceptions. Upon appeal from the judgment of the circuit court in an
action on a promissory note, the sustaining of plaintiff's motion to
strike the defendant's plea denying the execution of the note from the
files, being assigned for error, this court refused to consider the same
for the reason that the bill of exceptions did not show any such motion
was made, or any ruling of the court upon it, or that any exception
was taken. Motions of such a character do not become a part of the
record unless made so by a bill of exceptions. Gaddy v. McCleave, 182.
1. An execution is the process of the plaintiff therein; and he has
the right to control it without any interference on the part of attorney
or officer. Morgan et al. v. The People, use of Lewis, 58.
ORDER BY PLAINTIFF TO SUSPEND SALE.
2. Liability of officer for disregarding it. See OFFICERS, 1, 2, 3.
3. Giving such direction by telegraph. See TELEGRAPHY, 1.
4. Pending a levy on realty under former execution. See LEVY, 1.
AWARDING EXECUTION ON DECREE.
5. When proper. See DOWER, 3.
WHAT IS SUBJECT TO LEVY AND SALE.
6. Of title under certificate of register of land office. See SALES, 8.
FORCIBLE ENTRY AND DETAINER.
OF THE POSSESSION REQUIRED.
1. The plaintiff, to recover in an action of forcible entry and de-
tainer, must show that he had, at the time of the alleged entry, the
actual possession of the premises described. A mere constructive pos-
session, such as the fee simple title to the land entered upon draws to
it, is not sufficient. Thompson v. Sornberger, 326.
2. The question of title is not, in any sense, involved in the action.
Ibid. 326.
3. As to the description of the premises. Proof that the plaintiff was
possessed of a part of the premises described in the complaint, does
not authorize a recovery of such part. The act regulating the action
requires a particular description of the premises to be made in the
complaint, and the proof must follow and conform to the description
therein. Ibid. 326.
LIMITATION OF THE ACTION. See LIMITATIONS, 3.
1. Certain county bonds issued on a subscription by the county to
the stock of a railroad company were placed in the hands of a custo-
dian to be delivered to the company upon certain conditions in respect
to the performance of work on the road. The company having in-
curred a debt for work done, gave an order on the custodian of the
bonds for a sufficiency of them to pay the debt, and that order was as-
signed to a third person. Where a suit was instituted for the purpose
of settling conflicting claims for the county bonds, to which the holder
of the order of the railroad company was a party, and it was deter
mined therein that he was not entitled to the bonds under the order,
because at that time the condition upon which the bonds were to be
delivered to the company-the doing of work on the road within the
county—had not been performed, it was held, the adjudication in that
suit, adverse to the holder of the company's order, was not a bar to a
subsequent suit by him to enforce his claim of the same character, on
the basis that after that adjudication the company did do work upon
FORMER ADJUDICATION. WHETHER A BAR. Continued.
the road within the county, and thereby performed the condition upon
which the bonds were deliverable. Thomas v. County of Morgan et al.
479.
2. Effect of a judgment on an appeal from a county court, prematurely
taken, in a proceeding respecting a public road. See APPEALS, 6.
1. The authority of the case of Hathorn et al. v. Lewis, 22 Ill. 395,
in so far as it is held that a chattel mortgage, although wanting in
some of the essentials required by the statute, is nevertheless valid and
binding as to subsequent purchasers with knowledge, is much shaken,
if not entirely overruled, by subsequent decisions of this court, partic-
ularly that of Frank v. Miner, 50 Ill. 447. Lemen et al. v. Robinson, 115.
CREATING A DEBT AGAINST A CITY.
2. Validity of the act of 1867, “to establish a police force for the city
of East St. Louis." The decisions in the cases of Lovingston v. Wider
et al. 53 Ill. 302, and The People ex rel. Wider et al. v. Canty, 55 Ill. 33,
holding that the police commissioners of the city of East St. Louis,
appointed under the act of 1867, had no power to create a debt against
the city, re-affirmed. City of East St. Louis v. Witts, 155.
ADJOURNMENT OF SHERIFF'S SALE.
3. Without further notice-whether sale void or only voidable. Where
a sheriff had given the proper notice of a sale of lands on execution,
he adjourned the sale for one day, at the instance of the plaintiff in
the execution: Held, such adjournment did not render the sale void,
but only voidable. This rule is in conflict with Curtis v. Swearingen,
Breese 139; and the facts in the cases of Thornton v. Boyden, 31 Ill.
200, and Botsford v. O'Conner, 57 Ill. 72, did not require the allusion
made in them to a sheriff's sale, and the remark is regarded as obiter
dictum. Jackson et al. v. Spink, 410.
REMEDIES AGAINST MARRIED WOMEN.
4. So far as the case of Mitchell v. Carpenter, 50 Ill. 470, holds that
the remedy against married women in respect to their contracts rela-
ting to their separate estates under the statute, is not at law, but only
in equity, a question not involved in that case, it is to be regarded as
mere obiter dicta. Cookson v. Toole, 515.
TAKING PRIVATE PROPERTY FOR PUBLIC USE.
5. Who may award the compensation. The determination of what
is "just compensation" for private property when taken for public
use, is a judicial act, which can properly be performed only by the
judicial department of the government, and former decisions of this
court holding the award in that regard, of persons not of the judicial
TAKING PRIVATE PROPERTY FOR PUBLIC USE. Continued.
department, such as the commissioners of the board of public works
in the city of Chicago, to be conclusive, are overruled. Rich et al. v.
City of Chicago, 286.
AS TO THE TIME A FRAUDULENT DESIGN EXISTED.
1. Whether material. Where a person sold to another a quantity
of flour, for cash, to be delivered by a particular day, and a portion
was delivered and paid for previous to that day, and the balance was
delivered on the last day for delivery, which was on Saturday, and on
its delivery the purchaser drew a check on a bank, but on being pre-
sented on the same day, it was dishonored, and the declaration avers
that the delivery was obtained by fraud, on a trial in such a case, it is
error to instruct the jury that if there was such fraud as would allow
the seller to maintain trover or case against the buyer and his partner
who held the flour, a design to defraud the seller must have existed
when the purchase was made. Mathews et al. v. Cowan et al. 341.
CHECK DRAWN WITHOUT FUNDS.
2. Where a person draws a check on a person in whose hands he
has no funds, and who, he has no reason to believe, will honor the
check, the drawer is guilty of a fraud, and in such a case as the pres-
ent, it is error to refuse to so instruct the jury. Ibid. 341.
INFANTS CHARGEABLE WITH FRAUD.
3. Where a minor purchases goods and procures the delivery by
fraud, he will be liable as in tort. The mere fact that he made the
contract, and by fraudulent means obtained possession of the property,
will not shield him from liability to suit, in case or in trover. Ibid.
341.
WHAT WILL AMOUNT TO FRAUD.
4. Knowledge and intent requisite. Fraud vitiates every contract,
but every false affirmation does not amount to a fraud—a knowledge
of the falsity of the representation must rest with the party making it,
and he must use some means to deceive or circumvent. Walker v.
Hough, 375.
5. To justify a court in rescinding a contract, executed by both
parties, on the ground that one of the parties was induced to enter
into it through fraud practiced by the other, the testimony must be of
the strongest and most cogent character, and the case a clear one.
Ibid. 375.
FRAUDULENT ORGANIZATION OF A CORPORATION. See CORPORA-
TION, 1, 2.
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