NEW TRIALS. EXCESSIVE DAMAGES.
further appeared that at the time of the trial he had recovered to a con-
siderable extent; and, even if the injury received was permanent, that
it was not so serious as to disqualify him from business or earning a
livelihood. The jury returned a verdict for $12,000 damages: Held, that
the damages were so grossly and glaringly excessive that a new trial
should have been granted. Chicago City Railway Co. v. Henry, 142.
IN JUDICIAL PROCEEDINGS GENERALLY.
1. Necessity of notice. It is a principle that lies at the foundation of
the administration of justice in all courts and tribunals, that a party to
be concluded must be afforded an opportunity of being heard. Leslie
et al. v. Fischer, 118.
IN THE MATTER OF SPECIAL ASSESSMENTS.
2. Of notice in respect thereto. See SPECIAL ASSESSMENTS, 3 to 6.
ESTABLISHING HIGHWAYS.
3. Necessity of notice of meeting to hear reasons for or against. See HIGH-
WAYS, 4.
4. Liability for injury resulting from excavation in street by an individual—
necessity of notice to municipal authorities. See HIGHWAYS, 5.
PUBLICATION OF NOTICE IN ATTACHMENT.
5. Requisites of the notice. See ATTACHMENT, 2.
6. Computation of time in publishing the notice sixty days. Same title, 1.
ADMINISTRATOR'S SALE OF LAND TO PAY DEBTS.
7. Of the notice of the application. See ADMINISTRATION OF ES-
TATES, 3 to 7.
AS TO CLAIM OF HOMESTEAD.
8. Possession by tenant-not notice to creditor. See HOMESTEAD, 5.
DISPENSING WITH ONE'S SERVICES.
9. Whether notice thereof should be given him. See CONTRACTS, 4, 5.
CORONER'S DEPUTY.
May serve process. See CORONER, 1.
Whether properly appointed. See ELISOR, 1.
FRAUDULENT DEED OF TRUST. See EJECTMENT, 3.
RIGHT OF THE FORMER TO MAINTAIN ORDER IN HIS FAMILY.
Without being liable for trespass. See TRESPASS, 1, 2.
OF THE DISPOSING POWER OF THE MOTHER.
In an action of trespass to recover for personal injuries to a child,
the alleged trespass being the placing of the child, by the defendant, in
a buggy, and driving off with her, when the horse took fright and ran
away, throwing out the child and causing the injury complained of, the
defendant set up the permission of the mother to take the child: Held,
the plea, which merely alleged the permission of the mother, without
averring any authority or circumstance implying an authority on the
part of the mother to give such permission, was defective, as the mother,
as such, is entitled to no disposing power over the person of the child,
the father being the person entitled by law to the custody of his child.
Pierce v. Millay, 133.
1. On bill in equity against an assignee to whom effects were assigned
for the benefit of creditors, to have an indebtedness from the assignor
set off against a judgment recovered by the assignee against the com-
plainant, the proof showed that the debts against the assignor yet un-
paid were inconsiderable in amount, and that there was an abundance
of assets in the hands of the assignee to pay them: Held, that it was
unnecessary to reverse the decree in order that those other creditors
might be made parties. Barton v. Mosher, 237.
2. Where a bill in equity to set aside a tax deed showed that the
purchaser at the sale had parted with all his interest to one of the de-
fendants, it was held that an objection that such purchaser was not
made a party defendant, was not well taken. Reed v. Moffatt et al. 300.
3. On foreclosure. Where the mortgagor, in his life time, has sold
and conveyed the mortgaged premises, his heirs are not necessary par-
ties to a bill to foreclose the mortgage, they having no interest in the
land to be affected. Medley et al. v. Elliott et al. 532.
4. On bill to foreclose a mortgage executed by a husband alone to
secure the payment of purchase money, his wife is neither a necessary
nor proper party defendant. Baker et al. v. Scott, 86.
CHANGE OF NAME OF CORPORATION.
5. After receiving the note sued upon. Where a promissory note was
given to the Illinois Liberal Institute, whose name was subsequently
changed, by an act of the legislature of this State, to that of Lombard
University, the act authorizing the institution by its new name to sue
for and collect all demands: Held, a suit on such note was properly
brought in the new name. Newlan v. Lombard University, 195.
NON-JOINDER OF SECRET PARTNER.
Not pleadable in abatement. See ABATEMENT, 1.
WHO MAY CONTEST A WILL. See WILLS, 19.
1. As to third parties. Where a person holds himself out as a part-
ner to a party giving credit to the supposed firm, and by his conduct
or declarations induces such person to give credit in the honest belief
that he is a partner, he will be held liable as a partner. Poole et al. v.
Fisher et al. 181.
WHAT AMOUNTS TO A PAYMENT.
1. As distinguished from a transfer of the debt. Where the makers of a
series of notes procured from a third party the means with which to
pay the notes then due, under an agreement that the same, when paid,
should be transferred to such third party, and the payees on payment,
at the request of the makers, indorsed such notes in blank and surren-
dered them to the makers, by whom they were delivered to the third
party, the payees not knowing that they were to be re-issued: Held, that
so far as the payees were concerned, this was not a transfer of the notes,
but simply a payment. White et al. v. Fisher et al. 258.
2. In such a case the transaction could not be treated as a purchase
by the makers for the third party, except on satisfactory proof that the
fullest explanation was made to the holders of the notes, and that they
understood it to be a sale to some third party. Ibid. 258.
1. In suit by a town against an individual to recover for injuries resulting
from an excavation in a street by the latter. Where a town, when sued by
a person for an injury received from falling into a pit dug by a party in
the street, in front of his premises, settled the claim of the injured
party by payment of $300 before any judgment, and without any notice
to the party creating the nuisance, and then brought an action on the
case against such party to recover the sum so paid, the declaration con-
taining no allegation that the town had any notice of the nuisance, or
statement of any facts from which notice might have been inferred or
implied: Held, that the declaration was bad on general demurrer.
Fahey v. Town of Harvard, 28.
2. In such a case, before the town is entitled to recover of the wrong-
doer the sum so paid, it must show by the pleadings and proof that the
town was legally liable to the injured party. Ibid. 28.
WHEN THE PLAINTIFF MAY DECLARE GENERALLY.
Where there is an express contract. See PLEADING AND EVI-
DENCE, 8.
WHETHER PLAINTIFF MUST DECLARE SPECIALLY. See PLEADING
AND EVIDENCE, 5, 6, 7.
1. As to designating parties in the singular or plural number. A de-
claration upon an arbitration bond, which was executed by a party to
the arbitration and his security, stated that the said plaintiff and the
said defendants, described in said bond and the condition thereof, en-
tered into an agreement to arbitrate. The condition of the bond re-
cited that the plaintiff and only one of the defendants sued had entered
into the agreement: Held, that an objection to the bond on the ground
of variance was properly overruled, Noyes v. McLaflin, 474.
2. Where the words plaintiff or defendant are used in the plural or
singular number, they will be regarded as being used in the number
which the context shows was intended. Ibid. 474.
3. As to amount of recovery. A declaration for a specific sum, averring
that the amount has reached the defendant's hands to the use of the
plaintiff, is good for any portion of the sum which may be proved.
Tuttle v. Ridgeway, 515.
4. Of a contract to effect a sale to another. An allegation is a declaration,
of a contract, that if the plaintiff would bring about and effect a sale
for defendant of his lumber yard and materials, defendant would permit
plaintiff to retain one-third interest in the premises and materials, and,
in addition thereto, would give him one-third of one-half for effecting
the sale, it seems, is not sustained by proof that defendant offered
plaintiff if he would make sale of two-thirds of the concern, he would
retain one-third and give plaintiff one-half of that, for selling the other
two-thirds, and that plaintiff might account for the rest. The pleading
and proof is variant. Lincoln v. Stowell, 84.
RECOVERY UNDER THE COMMON COUNTS.
5. Or whether the plaintiff must declare specially. Where goods are to be
paid for by bill of exchange, or promissory note, and the defendant has
refused to give it, if the suit is brought before the expiration of the
credit, the plaintiff should declare specially. Van Horn et al. v. Bur-
roughs et al. 388.
6. But where work is done under an agreement to extend the time
of payment to a given time, upon condition that a note shall be given
bearing interest, upon the completion of the work, a failure to give the
note will authorize the bringing of suit at any time thereafter, and in
such case the plaintiff need not declare specially. Ibid. 388.
PLEADING AND EVIDENCE. RECOVERY UNDER THE COMMON COUNTS.
Continued.
7. In a suit upon a note purporting to be executed by A and B
there was no service or appearance by A. B denied the execution of
the note, verified by his oath, and the proof showed that he never did
execute it. The proof further showed that the payee of the note sold
A a mare on condition that B would sign a note with A to him for the
price, and that B had said he would sign it: Held, that this was not an
original undertaking of B for the purchase and payment of the mare,
and that plaintiff could not recover the price of the horse of B under
the common counts. Cox v. Straisser, 383.
8. Where there is an express contract. While it is true that there is no
liability by implication of law upon an express contract, executory in
its provisions, yet where there has been full performance, and nothing
remains to be done but the payment of the money; or where there has
been only part performance, and the remainder has been waived or
prevented, and the work performed has been accepted, a recovery may
be had for the contract price of the service performed, under an indebi-
tatus assumpsit. Catholic Bishop of Chicago v. Bauer, 188.
AS BETWEEN LANDLORD AND TENANT.
Of the crops raised by the tenant, where the landlord reserves the property in
them as security-right of possession. See LANDLORD AND TENANT, 4.
DECLARATION BEFORE SECOND TERM.
1. Where the plaintiff's summons was made returnable to the No-
vember term, 1870, of the circuit court, which was, in fact, served within
ten days before that term, but no indorsement of service was made until
Feb. 7 following, the commencement of the second term after suit
brought, and the court dismissed the suit on motion of the defendant
because no declaration had been filed ten days before the second term:
Held, that the dismissal was proper. Howell et al. v. Albany City Insurance
Co. 50.
TIME FOR MAKING CERTAIN OBJECTIONS.
2. Generally. It is a rule of general application in courts of law
that if a party acquiesces in the mode of conducting a cause by his ad-
versary, by failing to object and except in apt time, then whether the
objection pertain to the introduction of evidence, the measure of dama-
ges, or instructions to the jury, he will be precluded from raising it in
the appellate court. Kankakee & Illinois River R. R. Co. v. Chester, 235.
3. As to the mode of assessing damages for right of way. In a proceeding
to condemn a strip of land for a right of way by a railroad company
through a party's farm, consisting of several tracts, both parties, on the
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