trustee of the donees for the purpose of distribution on the basis
directed by the donor; and even assuming that the custodian of
the goods was simply the agent of the donor, the donor's death
could not operate to revoke the gift, where complete delivery has
been made before his death.
Ib.
1. Report. Resignation.-Final Report.-Suit on Bond.--Res Adjudi-
cata. Where a guardian files his report and tenders his resigna-
tion and the report is approved and his resignation accepted, such
settlement and resignation are binding on all persons interested
in the estate, as to the matters properly embraced in the report
and its approval by the court, yet it is not final, and is no bar to
a suit on the bond of the guardian, as to matters not properly em-
braced in the adjudication.
State, ex rel., v. Peckham, 198
2. Joinder of Causes of Action.-Plea in Bar.-Res Adjudicata.-Neg-
ligence. A ward may bring suit on his guardian's bond and join
therewith an action to set aside an order approving the last report
of the guardian and discharging him from his trust; and the re-
port of the guardian and order of the court discharging the guard-
ian from his trust constitute no bar to such action, the matters
complained of not being those disclosed in the report and adjudi-
cated by the court, but rather the matters that were concealed
from the knowledge of the court, and were not passed upon in
the order of approval, relating to the negligence of the guardian.
Ib.
1. Justice of the Peace.-Record of Verified by Parol Evidence.-In a
habeas corpus proceeding by a person imprisoned on a mittimus
by a justice of the peace, wherein the correctness of the record of
the justice is denied, it is error to refuse evidence that the affi-
davit set out in the record and purporting to be that on which
a warrant issued for the defendant, and upon which he was tried,
was, in fact, not filed with the justice until after the trial and im-
prisonment of the defendant.
Smith v. Clausmeier, 105
2. Irregularities in Procedure.—Review of Judgment.—In such case,
mere irregularities in the proceedings subsequent to the filing of
the affidavit, constitute no ground for the discharge of the pris-
oner on a writ of habeas corpus; nor can a writ of habeas corpus
be used for the purpose of reviewing a judgment.
Ib.
See DRAINAGE, 4; EJECTMENT; SPECIAL FINDING, 6.
1. Demurrer.-Conclusions of Law.-Error in the overruling of a de-
murrer may be cured by the conclusions of law upon the facts
found.
Ferguson v. Hull, 339
2. Paragraph of Complaint, Overruling Demurrer to.-Judgment.-The
overruling of a demurrer to a bad paragraph of complaint is harm-
less error, where it is evident that the judgment is based upon
another paragraph. Lime City, etc., Building Assn. v. Black, 544
See FRAUDULENT CONVEYANCE, 2; WILL, 6.
See STREETS AND ALLEYS.
HUSBAND AND WIFE.
See DEED, 2; ESTOPPEL, 1; FRAUDULENT CONVEYANCE, 1, 2, 3, 4, 5, 6;
PLEADING, 4; REAL ESTATE, 2, 3.
ILL-WILL.
See CRIMINAL LAW, 16.
IMPEACHMENT.
See EVIDENCE, 4.
INCUMBRANCE.
See REAL ESTATE, 6, 7.
INCHOATE INTEREST.
See PARTIES, 3; REAL ESTATE, 2, 5; STATUTE OF LIMITATIONS, 2; TAX
SALE, 4.
INDEFINITENESS.
See PLEADING, 8, 9.
INDICTMENT.
See AFFIDAVIT AND INFORMATION; CRIMINAL LAW, 2, 6, 11, 12, 14, 22, 42.
INDUCEMENT.
See PLEADING, 11.
INFANT.
See REAL ESTATE, 3.
INFERENCE.
See RAILROAD, 8.
INJUNCTION.
See CIRCUIT COURT, 4; COURT, 2; DRAINAGE, 1; MUNICIPAL CORPORATION, 4.
Contract for Personal Services.-Breach of. School Board. School Teacher. A board of school trustees can not be enjoined from violating its contract with a person for his personal services as a teacher. Schwier v. Zitike, 210
See UNSOUNDNESS OF MIND.
INSTRUCTIONS TO JURY.
See CRIMINAL Law, 5, 19, 20, 29, 41, 42; ÎNTERROGATORIES TO JURY,
1. Irrelevancy.-Correct Abstract Statements of Law.-It is not error to refuse to give instructions which state correct abstract propositions of law, but which are inapplicable to the issues.
2. Uncontradicted Fact.-Assumption as True.-It is not error for the court to assume as true, in an instruction to the jury, an uncontradicted fact. Hawkins v. State, 630
INSURANCE.
See ACCIDENT INSURANCE.
INTENDMENT.
See INTERROGATORIES TO JURY, 1.
See CRIMINAL LAW, 38.
INTEREST.
See TAX SALE, 1.
1. Answers to, When Sufficient to Overthrow General Verdict.-Rule as to.-Presumption.-Intendment.-Answers of the jury to interroga
tories override the general verdict only when both can not stand,
and the antagonism must be apparent on the face of the record
beyond the possibility of being removed by any evidence legiti-
mately admissible under the issues, every presumption being in-
dulged in favor of the general verdict. No intendment can be
made in aid of answers to interrogatories, and they can not con-
trol where their meaning is so uncertain that it can not be defi-
nitely ascertained, nor will the answers control where they are
contradictory or inconsistent with each other.
Shuck v. State, ex rel., 63
2. Answers to.-When in Record. Submission by Court.-Presumption.
-Instructions. In the absence of any showing on the subject, by
the record, where interrogatories to the jury and their answers
thereto appear in the record, it will be presumed that the trial
court did its duty and submitted such interrogatories to the jury,
with instructions to answer the same if they found a general ver-
dict, and the interrogatories and answers are properly before the
court for its consideration. Pennsylvania Co. v. Meyers, 242
3. Irrelevant to Issues.-Refusal to Submit.—Withdrawal.-It is not
error for the court to refuse to submit an interrogatory which is
irrelevant to the issues, nor to withdraw such interrogatory after
it has been submitted.
Balue v. Taylor, 368
See ESTOPPEL, 1; GUARDIAN AND WARD, 2; REAL ESTATE, 2.
See COUNTY COMMISSIONERS, 2.
See ACTION, 1; CONTRACT, 5; DEED, 1; ESTOPPEL, 2; HARMLESS ER-
ROR, 2; NOTICE; PLEADING, 10; SPECIAL FINDING, 4.
1. Form of Question as to, How Saved for Appeal.-Waiver.-An ob-
jection to the form of a judgment must be first made in the court
below, or it will be deemed waived on appeal. Stalcup v. Dixon, 9
2. When Collectible Without Relief, etc.-Special Finding.—Promissory
Note.-Mortgage.-Where a special finding of facts, in an action
on a note and to foreclose a mortgage, discloses the absence of
any finding that the note or mortgage stipulated that the debt
should be collectible without relief from valuation or appraise-
ment laws, a judgment that the indebtedness should be collectible
without relief from valuation and appraisement laws is erroneous.
Duckwall v. Kisner, 99
3. Review of Causes for.-Execution.-Levy of.-Irregularities in.—
Void or Voidable.-Misjoinder of Causes of Action. In an action
to review a judgment, only the errors committed prior to, and in
connection with the judgment can be considered. If there were
anything irregular as to the issuing of the execution, or in the levy
to satisfy the same, or if, for any cause, the execution, or the levy
thereunder, was void or voidable, such matters are not cause for,
and can not be considered in, an action to review the judgment.
The court may review any of its proceedings that enter into, or
are connected with, and form part of, the judgment rendered by
it, but not the acts of an officer, after judgment, in trying to en-
force the collection of the same. For such irregularities a sepa-
rate remedy exists, which can not be joined with an action to re-
view.
Ferguson v. Hull, 339
4. Review of.-Errors of Law.-Questions Brought into Record by Spe-
cial Bill of Exceptions.-New Trial.—Assignment of Error.-Motion
to Strike Out.-Questions pertaining to changes of venue and the competency of jurors must be brought into the record by special bill of exceptions, and then made the ground of a reason for a new trial, and both the exception and motion must be filed with the complaint to review, in order to be available on complaint to review the judgment; and when assignments of error, in such an action, have no proper foundation in the record, they may be stricken out on motion. Graves v. State, ex rel., 406
5. Review of.—Errors of Law.-Complaint, Sufficiency of.—Assignments of Error.-In an action to review a judgment for error of law apparent on the face of the record, the complaint must set out so much of the record in the original cause as may be necessary to present the same questions on appeal; and rulings constituting proper reasons for a new trial can not be considered in review, unless embodied in a motion for a new trial.
Ib. 6. Direct Attack.-Notice.-Fraud.-Where a judgment defendant assails a decree on the ground of want of actual notice and fraud in its procurement, it is a direct attack thereon.
Thompson v. McCorkle, 484
JUDICIAL ACT.
See COUNTY COMMISSIONERS, 1.
JUDICIAL NOTICE.
See DRAINAGE, 1; RECORD, 2.
Days of Week.-The court takes judicial notice of the days of the week. Roberts v. Farmers', etc., Bank, 154 JURAT.
See APPELLATE Court; Court, 3; Drainage, 4; Justice of PEACE, 1,2;
JUSTICE OF THE PEACE.
See HABEAS CORPUS, 1.
1. Jurisdiction.-Criminal Law.-Filing of Affidavit, Time of.—Arrest and Production in Court.--To give a justice of the peace jurisdiction over the person of any one charged with a violation of the criminal law, the first step necessary is the filing of an affidavit naming the offense and the person charged with its commission. On the filing of the affidavit, a warrant issues, and on the apprehension and production in court of the defendant, the jurisdiction of the justice over the person is complete. An affidavit filed afterwards comes too late and can not be made to relate back so as to confer jurisdiction at the time of the trial. Smith v. Clausmeier, 105
2. Jurisdiction.-How Shown.-To the record of a court of inferior and limited jurisdiction, as that of a justice of the peace, the same verity is given as to that of a court of general jurisdiction, only after it is shown that such court had jurisdiction of the subject-matter and of the person of the defendant. Recitals in the record showing jurisdiction are not conclusive, and, if denied, evidence aliunde must be adduced to establish the jurisdiction. Ib.
See CRIMINAL LAW, 1.
LANDLORD AND TENANT.
See CONTRACT, 1.
See CRIMINAL LAW, 3, 4, 24.
LAW AND FACT.
See NEGLIGENCE, 1; RAILROAD, 1; SPECIAL FINDING, 1.
LEGISLATURE.
See CIRCUIT COURT, 2.
1. Power of as Affecting Legal Remedy.-Contract.-Impairing Obliga-
tion of. It is competent for the Legislature to change the form of
a remedy or to modify it otherwise as they may see fit, or to re-
peal it where the act does not affect vested rights, but the remedy
subsisting in a State when and where a contract is made and is
to be performed, is a part of its obligation, and any subsequent
law which so affects that remedy as substantially to even lessen
the value of the contract, is forbidden by the constitution, and is
void.
State, ex rel., v. Helms, 122
2. Statute Repealed.—Effect on Remedy.—Action. The repeal of a
statute under which a penalty, forfeiture, or liability has accrued,
does not release or extinguish such penalty, forfeiture, or liability,
unless the repealing act shall expressly so provide; and an action
therefor may be enforced under such act, according to section 248,
R. S. 1881.
See MUNICIPAL CORPORATION, 1.
Duty of Licensor to Licensee.-Liability.—-A licensor owes to a mere
licensee no duty except that of abstaining from any positive
wrongful act which may result in injury to the licensee, and the
licensee takes all risks as to the safe condition of the premises
upon which he enters.
Woodruff v. Bowen, 431
See INCUMBRANCE; TAX SALE, 1, 2.
LIFE ESTATE.
See DEED, 1.
MALICE.
See ILL-WILL.
MANDAMUS.
See APPELLATE COURT.
Township Trustee.-Settlement with County Commissioners.-Refusal of
Board to Make Allowance.-Settlements made by county commis-
sioners with township trustees are not final or conclusive, and in
such settlements the commissioners do not act judicially, but in an
administrative capacity, from which no appeal lies; and if the
board fails and refuses to make the proper allowances in such
settlement, the trustee may proceed against the board by manda-
State, ex rel., v. Board, etc., 207
MARRIED WOMAN.
See NOTICE; TAX SALE, 4.
1. Real Estate. -Tenants by Entirety. · Mortgage. Principal and
Surety. Where land was conveyed to a husband and wife as ten-
ants by entirety, the purchase-money being advanced by a third
party, for which the husband executed his note, and, as security
for the note, the husband and wife executed a mortgage on said
|