EVIDENCE. HEARSAY. Continued.
ground of false and fraudulent representations made by him in effecting a sale of Missouri lands to plaintiff, produced a witness who had en- tered the land and had sold the same to one H, and asked the witness, "What did H say to you in connection with the buying?" Held, that an objection to the question was properly sustained as calling for mere hearsay testimony. Drew v. Beall, 164.
QUESTIONING JUDICIAL PROCEEDINGS COLLATERALLY.
15. Generally. It matters not how erroneous the findings, judgments, and decrees of a court of general jurisdiction may be, when drawn in question collaterally, if the court had jurisdiction of the subject-matter and of the parties. They can not be questioned collaterally for mere errors or irregularities. Hobson et al. v. Ewan, 146.
16. A stranger to a judgment can not question its regularity collat- erally. It may be erroneous and voidable, but if the court had juris- diction of the subject-matter and the person, its determination is con- clusive until reversed by an appellate court, unless the judgment is absolutely void. Arnold et al. v. Gifford, 249.
17. Granting letters of administration—the regularity thereof can not be questioned collaterally. See ADMINISTRATION OF ESTATES, 1.
TO PROVE A PARTY'S CONNECTION WITH A CONTRACT.
18. Where A undertook to build a school-house, and entered into a written agreement there for to the school directors, with B and C as sureties for his performance, and A employed the plaintiff to assist him in the work, B and C having nothing whatever to do in the hiring or prosecution of the work, and after the completion of the work, plaintiff settled with A, when there was found to be due the plaintiff $59.50 for work, and $25 for money loaned to pay other hands employed on the work: Held, in such case it was error to refuse to permit B to testify that he and C had nothing to do with the hiring of the plaintiff or any other workmen on the house, and that they did not authorize A to em- ploy plaintiff or any other person, and that they had no interest in the contract except as sureties for A. While such proof was perhaps not necessary, yet it was proper as tending to show they were not liable. Stull et al. v. Hance, 52.
TO EXPLAIN A CREDIT ENTERED BY MISTAKE.
19. Where the plaintiff, in the copy of his account filed with his declaration, by mistake had given defendant a credit of $100, and de- fendant knew some time before the trial that the credit was claimed to have been made by mistake: Held, no error to allow the plaintiff on the trial to explain the credit. Van Horn et al. v. Burroughs et al. 388.
IN AN ACTION FOR SEDUCTION.
20. Of a promise to marry. In an action by a father for the seduction of his daughter, the admission of testimony that defendant had prom-
EVIDENCE. IN AN ACTION FOR SEDUCTION.
ised to marry the daughter, when the jury are instructed not to consider the promise of marriage in aggravation of damages is not erroneous, but proper. Mains v. Cosner, 465.
21. That defendant's parents objected to the association. In such action, the defendant offered to prove that his parents were opposed to his keeping company with plaintiff's daughter, on account of his youth and indiscretion, and that plaintiff had been notified of such fact, not directly from defendant's parents, which the court refused to admit : Held, that the court decided correctly. Ibid. 465.
22. That plaintiff was warned of defendant's habits and character. If the offer had been to prove that plaintiff had been warned against the de- fendant on account of his bad habits or profligate character, the evi- dence would have been admissible. But knowledge of the plaintiff that defendant's parents were opposed to his keeping the company of the daughter on the mere ground of youth and indiscretion would not in- dicate that a seduction was apprehended. Ibid. 465. CERTIFICATES OF ARMY OFFICERS.
23. In an action to recover a stipulated compensation for an enlist- ment for the benefit of a certain town, the plaintiff read in evidence, against defendant's objection, the certificate, not attested by any seal of office, of an enlisting officer of the United States, and a certificate of the acting assistant provost-marshal for the State of Illinois, without official seal, to show the fact of enlistment to the credit of the town: Held, that there was no law making such certificates evidence in the courts of this State in controversies between its citizens. Harbers et al. v. Tribby, 56.
24. In such a case the fact that a person is an officer of the United States army, with power to give certificates of enlistment, can not be shown by proof that he acted as such. A certificate under the seal of the war department is the best evidence of his official character and authority. Ibid. 56.
25. The statements of an agent made at the time of hiring a party to labor for his principal in reference to his employment, is not hearsay, but pertinent and legitimate evidence against the principal in a suit against him by the laborer to recover wages. Mix v. Osby, 193. PROOF IN RESPECT TO AGENT'S AUTHORITY.
26. Where the plaintiff was employed to labor for the defendant by one claiming to act as defendant's agent, the fact that defendant, when called on for pay, was informed by the plaintiff that the agent claimed to be such, and failed to deny the agency, or the agent's authority to employ plaintiff, is competent evidence in a suit by the plaintiff against the defendant. Ibid. 193.
PROOF OF EXECUTION OF AN INSTRUMENT.
27. Whether attesting witness must be produced. The rule which re-
EVIDENCE. PROOF OF EXECUTION OF AN INSTRUMENT.
Continued. quires that the attesting witness to a written instrument shall be called to prove its execution, if within the State, has no application to a case where both parties to the instrument are in court and waive their right to insist on producing such witness. Forsythe v. Hardin, 206.
28. The reason for the rule requiring that the subscribing witness shall be called to prove the execution of a written contract, is to pro- tect the interest of the party sought to be charged. Such party is a competent witness to prove its execution without producing the attest- ing witness. To deny the parties to such contract the right to admit its execution is entirely captious. Ibid. 206.
29. As paramount title. On the trial of an action of ejectment, de- fendant offered in evidence, as paramount title, a tax deed for the premises, made in pursuance of a sale in 1859 for taxes, but did not offer to prove the steps indispensable to a valid tax sale, and did not produce the judgment and precept: Held, that the court did not err in rejecting the deed as evidence. Smith v. Smith et al. 493.
IN AN ACTION FOR TRESPASS TO THE PERSON.
30. In an action by a female for an assault and battery and assault with intent to commit a rape, a witness for plaintiff testified that de- fendant said, "He and his wife had n't got along first rate, and he had to be too intimate with the hired woman; 66 or, 'was forced to be too intimate with the hired woman." It did not appear who this hired girl was, and the witness did not know who she was. The defendant moved to exclude this testimony for irrelevancy, which the court re- fused to do: Held, that the court erred in not excluding it, as it did not tend to prove the assault charged, and did tend to prejudice the de- fendant with the jury. Sutton v. Johnson, 209.
31. In an action to recover damages for fraud and deceit in the sale or exchange of land-consisting of false representations as to the nature, quality, and value of the land sold-a witness was asked whether de- fendant told him a certain other person had shown him the land: Held, that the question was clearly proper. Whether defendant had seen the land or not, had a material bearing on the question of fraud. Drew v. Beall, 164.
32. The rule in this State is, that when one party introduces and examines a witness, the cross-examination is limited to the facts elic- ited by the examination in chief. When such cross-examination is carried to an unreasonable length upon new matters, and thereby im- proper testimony is obtained, it is error. Bell v. Prewitt, 361.
33. Where in a contest between the mortgagee of chattels and an as-
EVIDENCE. CROSS-EXAMINATION. Continued.
sumed purchaser, the former called the mortgagor and proved by him a single fact, viz.: that the cattle in controversy were the same described in the chattel mortgage; and the court then permitted, against objec- tion, a lengthy examination of the witness by the opposite party in re- gard to the consideration of the mortgage, and various other matters, not elicited in the examination in chief, and wholly disconnected there- with, and a verdict resulted against the mortgagee: Held, that for this error the judgment must be reversed. Bell v. Prewitt, 361.
34. The plaintiff, as a witness in his own behalf, was asked the value of certain land. He had already shown that he was competent to give an opinion of the value of the land. The defendant asked leave to cross-examine him as to his means of knowledge before answering the question, which the court refused: Held, no error. Drew v. Beall, 164. PARTY FAILING TO TESTIFY FOR HIMSELF.
35. Intendment. No intendment should be made against a party be- cause he does not testify for himself. Lowe v. Massey, 47.
IN THE MATTER OF SPECIAL ASSESSMENTS.
Collector's delinquent list-whether admissible. See SPECIAL ASSESS- MENTS, 13.
Proof of notice by commissioners—of the manner thereof. Same title, 4. Proof as to payment. Same title, 14.
IN AGGRAVATION OF DAMAGES.
Proof of pecuniary ability of parties. See MEASURE OF DAMAGES, 4.
In a suit for divorce. See DIVORCE, 5 to 9.
OF THE ORDER OF INTRODUCING TESTIMONY. See PRACTICE, 8.
EXCEPTIONS AND BILLS OF EXCEPTIONS.
1. Necessity thereof. The overruling of a motion for a new trial can not be assigned for error when the bill of exceptions fails to show an exception taken to the ruling of the court. Drew v. Beall, 164. BILLS OF EXCEPTIONS.
2. When they do not purport to contain all the evidence-presumption. When the bill of exceptions does not purport to contain all the evi- dence, it will be presumed that there was other evidence heard suffi- cient to justify the action of the court below. Goodrich v. City of Mi- nonk, 121.
3. How to remedy the deficiency-certificate of the judge-amendment. When the bill of exceptions did not purport to set forth all the evidence, the
EXCEPTIONS AND BILLS OF EXCEPTIONS. EXCEPTIONS. Con- tinued.
party in vacation procured the certificate of the judge who tried the case, without notice to the adverse party, that no other evidence was heard: Held, that such certificate was no part of the record, and could not be considered by this court. Goodrich v. City of Minonk, 121.
4. The party taking a bill of exceptions on discovering that it is im- perfect in not stating that it contains all the evidence, should, on proper notice, apply in open court to have it amended, and then the amended record can be filed in this court. Ibid. 121.
5. When necessary. When the bill of exceptions does not contain any instructions or any ruling of the court thereon, nor exception to any such ruling, this court can not take notice of any. The fact that the clerk has copied into the transcript the instructions given and refused and exceptions, does not make them a part of the record. This can be done only by incorporating them into the bill of exceptions. Drew v. Beall, 164.
6. Unless the contrary is shown, it will be presumed on error, in a suit at law, that the court below decided correctly. Indianapolis & St. Louis Railroad Co. v. Miller, 468.
7. Where it is assigned for error that the court below refused to ad- mit or hear testimony, its relevancy should be made to appear by bill of exceptions, otherwise this court will presume in favor of the ruling below, that such evidence was not pertinent to the issues. Ibid. 468.
8. On appeal to the circuit court from common pleas court of Mattoon- evidence must be preserved by bill of exceptions. See APPEALS, 2.
9. In case of an attachment of a vessel, under the law of this State, in the absence of a bill of exceptions preserving the evidence, this court will presume that every fact necessary to bring the case within the ju- risdiction of the court and establish a cause of action was proved on the trial. Tug boat E. P. Dorr v. Waldron et al, 221.
Whether subject to sale under execution. See RAILROADS, 5.
FORCIBLE ENTRY AND DETAINER.
1. Vendor and purchaser. When a party borrows money and conveys land to secure its repayment with interest, and takes back a contract for the re-conveyance of the land upon payment, the relation of vendor and vendee will not exist between them, and the party making the loan can not maintain forcible detainer to recover possession upon default of pay- ment by the party in possession. Such a case is not within the statute of 1861. West v. Frederick, 191.
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