INDEX.

ABATEMENT.

WHAT MUST BE PLEADED IN ABATEMENT.

1. Misnomer. Where a party is sued by his christian name alone, it is his
duty to appear and plead the misnomer in abatement, and give his name in
full. Per BREESE, J., in Hammond v. The People, &c. 446.

MATTER IN ABATEMENT WAIVED IF NOT PLEADED.

2. Matter in abatement, if there be notice to the defendant, in fact, is
waived if not pleaded, and cannot be assigned for error. Per BREESE, J., in
Hammond v. The People, &c. 446.

WHEN THEY CONSTITUTE AN ESTOPPEL. See ESTOPPEL, 1

IN THE RECEIPT OF A COMMON CARRIER, as it affects the burthen of proof. See
EVIDENCE, 14.

ADOPTION OF A FORGED INSTRUMENT. See FORGED INSTRUMENTS.
AFFIDAVIT.

1.

Whether the agent is or is not liable. When one who has no authority
to act as another's agent, assumes so to act, and makes either a deed or a
simple contract in the name of the other, he is not personally liable on the
covenants in the deed, or on the promise in the simple contract, unless it con-
tains apt words to bind him personally. Duncan, Sherman & Co. v. Niles, 532.
When the contract is wholly void. The following instrument was exe-
cuted without authority:

2.

AGENCY. OF THE LIABILITY WHEN AGENT HAS NO AUTHORITY. Continued.
"BELLEVILLE, Ills., 1st August, 1860.
"$10,000. On or before the first day of August, 1861, the county of St.
Clair, Ills., promises to pay John J. Anderson & Co., of St. Louis, Mo., the
sum of ten thousand dollars, for value received, negotiable and payable with-
out defalcation or discount, at the Bank of Commerce in New York city, with
interest from date, at the rate of ten per cent per annum.

"NATHANIEL NILES,

"County Judge of St. Clair County."

Held, that the contract was wholly void, and neither party could be held on
it. Not the county, for they gave no authority to the judge to bind them;
not the judge, for there are no apt words in it sufficient to bind him. Ibid. 532.
3. Remedy against pretended agent. Had the judge falsely represented him-
self as the agent of the county, and authorized to obtain this money, and did
so obtain it, he might be reached by a special action on the case for the fraud,
or in some other appropriate action, but not on the note itself. Ibid. 532.
4. Remedy against assumed principal. Or the county might be sued in
assumpsit, if they, in fact, received the money. Ibid. 532.

OF THE MANNER OF ONE BECOMING AN AGENT.

5. As it may affect his responsibility.

Whether one performs acts of agency
for others, under an employment by them, or as a volunteer, can make no dif-
ference as to his responsibilities growing out of that relation. Dennis et al. v.
Mc Cagg et al. 429.

AGENT CANNOT DEAL WITH THE MATTER OF HIS AGENCY.

6. In equity, an agent is disabled from dealing in the matter of his agency,
on his own account. Dennis et al. v. Mc Cagg et al. 429.

7. Trustees and others sustaining a fiduciary and confidential relation, can-
not deal on their own account with the thing, or the persons falling within
that trust or relationship.

This rule is applied to all persons in whom there is a trust and confidence
reposed, which would bring in conflict the interest of the trustee and cestui que
trust. Ibid. 429.

8. In a suit in chancery to subject lands to the payment of purchase-
money remaining unpaid under a contract of purchase, a decree passed,
directing that in the event of non-payment of the money within a given time,
the land should be sold. A third party, assuming to act in behalf of the
defendants in the decree, either by employment or voluntarily, paid over his
own money to the complainant within the time prescribed in the decree, and
took a deed from him for the premises in his own name. Held, that the party
making the redemption held the title thus acquired in trust for the benefit of
those for whom he was assuming to act, and as security only for his advances.
Ibid. 429.

9. It was held, in view of the confidential relation existing between the
parties, to be immaterial whether the time of redemption had expired or not,
when the money was paid and the conveyance made to the agent. In either
those for whom he was professing to redeem were entitled to the benefit
of his acts. Ibid. 429.

case,

AGENCY- Continued.

AGENT MUST NOT WITHHOLD FACTS IN DEALING WITH PRINCIPAL.

10. Where the agent who had thus acquired title, subsequently obtained
from the parties interested, conveyances for their interest, they being ignorant
of the fact that the agent had already redeemed the land, it was held not to
avail him. It was his duty to have put them in possession of all the facts
known to himself. Ibid. 429.

EXTENT OF AGENT'S RESPONSIBILITY TO HIS PRINCIPAL.

11. And where he had sold a portion of the premises to parties who were
not apprised of the equity of the principal parties in interest, their title would
be protected. But the agent, who had thus put the title beyond their reach,
can be compelled to indemnify his principals for the loss and injury thereby
sustained, either by requiring him to pay over the purchase-money he received
for the land, with interest, or the present value of the land, as may be deemed
most equitable. Ibid. 429.

ALLEGATIONS AND PROOFS. See PLEADING AND EVIDENCE.
ALIMONY.

ITS ALLOWANCE DISCRETIONARY.

1. The allowance of alimony is a matter of discretion with the court, to be
exercised in view of all the circumstances of the case. Jolliff v. Jolliff, 527.
OF THE MODE OF ALLOWANCE.

2. It seems not to be essential to the validity of a decree for alimony that a
specific sum should be allowed. Ibid. 527.

3. So, upon granting a divorce at the suit of the wife, the court decreed
that she should "hold her present homestead as alimony, with the right to
rent the same until the youngest child becomes of age, and, also, all the per-
sonal property in her possession." Held, that there was no error in the assign-
ment of the alimony. Ibid. 527.

4. Limiting it to the full age of the youngest child, if an error, is one of
which the wife might complain, but certainly not the husband, as she might
live beyond that time. Ibid. 527.

5. There was, too, a peculiar propriety in so limiting the homestead, as by
the statute it is such until the youngest child arrives at the age of twenty-one
years. Ibid. 527.

AMENDMENTS.

HOW FAR IN THE DISCRETION OF THE COURT.

1. In civil proceedings in courts of common law, all amendments, if no
statute interposes to prevent, are in the discretion of the court, and are
allowed or refused, as the court may deem most conducive to the furtherance
of justice, under the particular circumstances of the case before it. Jackson
v. Warren. 331.

ALLOWED UPON TERMS.

2. Costs continuance. It is usually the case that the court, on granting
leave to amend, imposes terms upon the party; and if the amendment is
material, and calculated to surprise the opposite party, a continuance is granted
if demanded. Ibid. 331.

AMENDMENTS. ALLOWED UPON TERMS.

Continued.

3. So, where an amendment of the complaint in an action of forcible entry
and detainer was allowed upon the party paying all the costs up to the time
of granting the leave to amend, and for which an execution was awarded, and
the cause was thereupon continued, there was held to be no error. Ibid. 331.
WHAT IS AMENDABLE.

4. Title of a cause, as to parties' names. Where a suit is instituted in the
individual names of school directors, in reference to a matter in which they
are only interested in their corporate capacity, it is proper to amend the title
of the cause by striking out the individual names of the directors and sub-
stituting their corporate name.

The individual names, in such case, are regarded as surplusage. Shoudy
v. School Directors, &c. 290.

5. Complaint in forcible entry and detainer. Jackson v. Warren, 331.
AMENDMENT OF BILL IN CHANCERY AT THE HEARING. See CHANCERY.
WHETHER CONTINUANCE ALLOWED by reason of amendment. See CONTINU-

ANCE.

APPEALS.

WHEN AN APPEAL WILL LIE.

1. When allowed by statute. It may well be said an appeal will not lie in
a given case, because there is no statute allowing it; appeals are allowed by
statute, and can be had in no case unless so allowed. Per Mr. JUSTICE BREESE,
in Hammond v. The People, &c. 446.

WHEN THE PROPER REMEDY.

2. Judgment in wrong name. If it be an error in a justice of the peace to
render a judgment against a party by his christian name alone, the remedy to
correct it is by appeal. Per BREESE, J., in Hammond v. The People, &c. 446.

APPLICATION FOR INSURANCE.

OF ITS OFFICE, AND EFFECT AS A WARRANTY of the uses to which the property
insured shall be applied. See INSURANCE.

ASSESSMENTS, SPECIAL. See SPECIAL ASSESSMENTS.

1. When suit against the maker of a note would be unavailing. Where an
assignee seeks a recovery against the assignor, upon the ground that a suit
against the maker of the note would have been unavailing, the fact that the
maker was solvent at the maturity of the note will not affect the liability of
the assignor, unless it appear that such solvency continued until a suit against
the maker could have been made availing. White v. Clayes, 325.

2. It cannot be said a suit against the maker would be unavailing, if even
a portion of the debt could be made by the employment of proper diligence.
If a sum could not be realized by such suit, beyond the expense, then it would
not be necessary. But if such portion of the debt could be made, as to be
useful and advantageous, although not sufficient to pay the entire debt, the
suit would not be unavailing. Ibid. 325.

-

ASSIGNMENT ASSIGNOR-ASSIGNEE. LIABILITY OF ASSIGNOR. Continued.
3. Should an assignee rely upon the use of diligence against the maker, by
which he had been enabled to make only a part of the debt, he could only
recover from his assignor the balance remaining unpaid. White v. Clayes, 325.
4. So if he seek to recover upon the other ground, that a suit against the
maker would have been unavailing, and it appear that by the use of proper
diligence against the maker, a portion of the debt could have been realized,
he may recover against his assignor in such action, the residue of the debt
which could not have been made by suit against the maker, but only to that
extent. Ibid. 325.

5. Upon a subsequent promise to pay. When an indorser of a promissory
note promises to pay the same, after such laches on the part of the holder as
would operate to release him from his liability, with knowledge of the facts
which would constitute such release, he will be held liable on his new promise,
regardless of the question of the solvency or insolvency of the maker. Mor-
gan et al. v. Peet, 281.

6. The fact that the indorser believed he was still liable upon his indorse-
ment, at the time of making the new promise, would not affect his liability
upon such promise, if it could be shown he had knowledge at the time, of
such facts as would operate to discharge him, because he must be presumed
to know the law. Ibid. 281.

7. This knowledge on the part of the indorser may be shown by facts and
circumstances. Ibid. 281.

8. If he did not know the facts at the time of making the new promise, it
would not be binding upon him. Ibid. 281.

9. No new consideration is necessary to support such a promise, when
made with a knowledge of the facts. Ibid. 281.

ASSIGNMENTS IN BLANK.

10. May be filled up on trial. If a party by purchase and delivery, has
acquired a note by a general assignment, and sues upon it, he may fill in the
indorsement to himself at any time previous to reading it in evidence on the
trial. Burnap v. Cook, 168.

OF SPECIAL INDORSEMENTS.

11. Cannot be altered. But where the indorsement is special, a holder
other than the assignee named, has no right to strike it out and write another
to himself over the name of the assignor, because the legal title had already
vested in the assignee named in the original indorsement. Ibid. 168.
CONSIDERATION OF ASSIGNMENT.

12. By whom it may be questioned. In an action by the assignee of a note
against the maker, it is not a question that affects the rights of the parties,
whether any, or what consideration was paid for the note by the assignee.
The equities between the assignee and his assignor do not concern the maker.
Ibid. 168.

EQUITABLE ASSIGNEE BEFORE MATURITY.

13. How far protected. An equitable assignee of a promissory note, who
has paid value for it, will not be affected by any equities existing between the
original parties to the note. Van Buskirk v. Day et al. 260.