CROSS-BILLS. See CHANCERY, 20, 21, 22, 23, 24, 25.

CRYSTAL LAKE ICE COMPANY.

IS PRIMA FACIE AN INCORPORATED COMPANY. Baker et al. v. Adm'r of Backus, 80.

CURRENCY-CURRENT BANK NOTES.

The term "currency" means bank bills, or other paper money,

which passes

as a circulating medium in the business community, as and for the constitu-
"}
"Current bank bills mean precisely the same

tional coin of the country.

thing as "currency." Osgood v. Mc Connell, 74.

See MEASURE OF DAMAGES.

DEBTOR AND CREDITOR.

ONE CANNOT BECOME THE VOLUNTARY CREDITOR OF ANOTHER.

1. One man has no right to constitute another his debtor without his con-
sent. Springdale Cem. Asso. v. Smith et al. 252.

2. So where a mechanic engages to erect a building according to certain
plans and specifications, and at a given price, he cannot recover for extra labor
and materials unless they were furnished at the request of the party who is
having the work done. Ibid. 252.

WHO IS A CREDITOR.

Within the statute of frauds. See STATUTE OF FRAUDS.

DECLARATIONS.

WHEN ADMISSIBLE IN EVIDENCE. See EVIDENCE, 12.

DECREE.

MUST CONFORM TO THE ALLEGATIONS IN THE BILL.

1. If a complainant in chancery recover at all, he must recover upon the
case made by his bill. He cannot state one case in his bill and make out a
different case in proof. If the evidence makes a case variant from the one in
the bill, no decree should pass other than one dismissing the bill, or at least
one for no more than is prayed for. Ohling et al. v. Luitjens, 23.

2. So, where a grantee of land who had surrendered the premises to a prior
incumbrancer, exhibited his bill against his grantor to compel a return of the
purchase-money, alleging it to amount to a given sum, which he prayed might
be returned to him, the evidence showing the consideration paid to have been
a larger sum than that claimed in the bill, a decree rendered for the amount
shown by the proof was held erroneous, because it was for a larger amount
than was claimed in the bill. Ibid. 23.

3. Where the description of land is imperfectly set forth in a bill in chan-
cery, with no averment of mistake in the instrument presented having relation
to the land, and no evidence upon the subject, it would be error to correct the
description of the premises in the decree. Burger et al. v. Potter et al. 66.
MAY BE GOOD AGAINST A PART OF SEVERAL DEFENDANTS.

4. A deeree against several defendants, may be good as against one, though,
by reason of their not being properly in court, not operative as to the others.
Murphy et al. v. Orr, 489.

PRESUMPTION THAT A DECREE REMAINS IN FORCE. See PRESUMPTION, 7.

DECREE-Continued.

WHOSE RIGHTS AFFECTED BY DECREE. See PARTIES, VENDOR AND PUR-
CHASER.

OPENING DECREE. When only constructive service has been had. See CHANCERY

28.

DEDICATION.

BY WHOM TO BE MADE.

1. A dedication of ground for a public highway can be made only by the
owner. A mere squatter upon government land has no such power. Gentle-
man v. Soule, 272. ✔

2.

A trespasser, or even a tenant, cannot grant a valid easement over the
land of the owner. Ibid. 272.

WHAT CONSTITUTES A DEDICATION.

3. Of the intention. To constitute a sufficient dedication there must be the
intention to make it. This intention may be manifested in writing, by declara-
tions, or by acts. Ibid. 272.

4. Of the acceptance. There must also be an acceptance; and where the
public are the donees of the easement, that is usually manifested by acts, such
as taking charge of, and repairing the highway, by the proper county or town
authorities. Ibid. 272.

DELIVERY.

DELIVERY OF PERSONAL PROPERTY.

What is sufficient. The owner of personal property having assigned the
same for the benefit of his creditors, and desiring to retain it for a time, pro-
cured a third person to execute to the assignee a paper, in which he acknow-
ledged the receipt of the property from the assignee, and agreed to deliver the
same to him by a given day, or, in default thereof, to pay him a certain sum
of money.

The party executing the instrument mentioned, never took actual possession
of the property, but allowed it to remain in the assignor's possession, at his
request. This was a sufficient delivery to the former, and the possession of
the assignor was his possession, for the purposes of the instrument. Leverenz
v. Haines, 357.

1. In case of a factor. Where property has been consigned to a commis-
sion merchant to be sold, and a sale is made, it seems the consignor must make
a demand of the consignee, before instituting a suit to enforce the liability of
the latter, unless the consignee delays for an unreasonable time advising the
consignor of his action, or denies his right in the premises. Deshler v. Beers,
368.

2. Note payable on demand. Where a note is payable on demand, the com-
mencement of a suit upon it is held to be a sufficient demand. Hall v. Jones, 38.

DEMAND- Continued.

WAIVER OF DEMAND.

3. What constitutes a waiver. Where a power of attorney was given to
confess a judgment upon a note payable on demand, and authorizing a cogno-
vit to be filed containing a release of all errors which might intervene in the
entering up of the judgment, it was held the cognovit was a waiver of a
demand upon the note, even if a demand were necessary. Hall v. Jones, 38.
WANT OF DEMAND.

4. When objection should be made. The objection that a judgment was
confessed under a warrant of attorney upon a note payable on demand, with-
out any demand having previously been made, comes too late on error. It
should have been made when the judgment was entered, or as soon thereafter
as counsel could be heard, on a motion to vacate the judgment for that cause
and on that ground. Ibid. 38.

.DEMURRER.

CARRIED BACK TO THE FIRST FAULT IN THE PLEADINGS.

1. General rule. A demurrer to any of the pleadings in a cause, brings up
the sufficiency of the pleadings which precede the demurrer, for the court will
not give the party a judgment who was the first to commit an error.
v. Stout et al. 399.

Ward

2. Thus, a demurrer to a plea will be sustained to the declaration, if defect-
ive; and if to a replication, it will be sustained to the plea, if that be defective,
and so on, through the whole field of pleading. Ibid. 399.

3. Exception to the rule. Where, however, the general issue has been
pleaded and special pleas also, a demurrer to a special plea will not be carried
back to the declaration. Ibid. 399.

IN CHANCERY.

4. When necessary. The rule of chancery practice is, when improper parties
are made complainants, the defendant must demur, and cannot make the
objection on error after the bill has been taken for confessed. Burger et al. v.
Potter et al. 66.

OF THE JUDGMENT ON DEMURRER. See JUDGMENT, 1, 2, 3, 4.

DEPOSITIONS.

THEIR REQUISITES.

As regards the time of taking, fixed in the notice. A notice to take a deposi-
tion stated that it would be taken at a certain hour; the caption stated that
the deposition was taken on the day named, "by virtue of the annexed
notice," and the certificate stated that the deposition "was taken at the time
mentioned in the caption thereof." The notice being attached, it was held that
it sufficiently appeared at what hour the deposition was taken. Ills. Cent.
R. R. Co. v. Cowles, 116.

EXCEPTIONS THERETO WHEN TO BE TAKEN. See PLEADING, 16, 17.

DETINUE.

WHEN IT WILL LIE.

To recover title papers.

Should a deed be withheld from the person in whom the title to the land
thereby conveyed is vested, he could, no doubt, recover it by an action of
replevin or detinue. King v. Gilson's Adm'x, 348.

DILIGENCE.

ON APPLICATION FOR CONTINUANCE.

What diligence required to procure absent witnesses. See CONTINUANCE, 2, 3.
DILIGENCE REQUIRED OF A FACTOR. See FACTOR.

DISCRETIONARY.

WHAT MATTERS ARE WITHIN DISCRETION OF COURT.

In the matter of withdrawing pleas. See PRACTICE, 1.

Of amendments. See AMENDMENTS, 1.

Of the allowance of alimony. See ALIMONY, 1.

DIVISIBILITY OF PROPERTY.

ON SALES UNDER MECHANICS' LIENS. See MECHANICS' LIENS, 1, 2, 3.

DIVORCE.

JURISDICTION OF COUNTY COURT OF GRUNDY COUNTY. See JURISDICTION.

EJECTMENT.

WHEN IT WILL LIE.

1. As against a purchaser. Where a party enters into possession of prem-
ises under a contract of purchase, holding a bond for a deed, of the usual form,
and fails to comply with the terms of the purchase, the vendor is at liberty to
treat the contract as rescinded and regain the possession by an action of eject-
ment. Dean v. Comstock, 173.

NOTICE TO QUIT.

2. Whether required. When a vendor of land elects to treat the contract
of sale as rescinded, by reason of a non-compliance with the terms, he may
bring ejectment against the purchaser, who entered under the contract, with-
out giving him notice to quit. Ibid. 173.

EXTENT OF RECOVERY.

3. Must conform to the declaration. Under a declaration in ejectment for
the entire premises, an undivided interest less than the whole cannot be
recovered. Murphy et al. v. Orr, 489.

MISJOINDER OF PARTIES PLAINTIFF.

Of its effect. See PARTIES, 21.

ERROR.

WHAT CONSTITUTES ERROR.

1. Oj the misjoinder of parties complainant, in chancery. The rule of chan-
cery practice is, when improper parties are made complainants, the defendant
must demur, and cannot make the objection on error after the bill has been
taken for confessed. Burger et al. v. Potter et al. 66.

!

2. When non-joinder of parties. The non-joinder of a mere formal party
cannot, generally, be assigned as error; but that of an indispensable party can
be. Baker et al. v. Adm'r of Backus, 80.

3. As to right of a complainant to assume a fiduciary character. Where a
bill in chancery is exhibited by three executors, two only of whom were
appointed in the will, the third having been appointed by the county court, if
it is objected that the county court had no authority to add the third executor,
that should be taken advantage of by plea. It is too late to raise the objec-
tion on error. Burger et al. v. Potter et al. 66.

4. Of the identity of a cause on the record. Whether an order of court
entered in a cause is so entitled as to the names of the parties, as to show in
what cause it was entered, is a question of identity, not of error. Telfer v.
Hoskins, Heiskell & Co. 166.

5. In case of the exercise of discretionary power. It is held that all amend-
ments in civil cases at common law, where no statute intervenes, are within
the discretion of the court, and, in saying there was no error in granting leave
to amend the complaint, the court added: "Even if error could be assigned in
the exercise of a discretionary power of this nature." Jackson v. Warren, 331.
In the matter of a special assessment. See SPECIAL ASSESSMENTS.
WHO MAY ASSIGN ERROR.

6. A party who asks an erroneous instruction may well complain if it be
given with such modification by the court as to prejudice his cause, such mod-
ification itself not being the law. Morgan et al. v. Peet, 281.

For non-joinder of parties. See PARTIES.

ERROR WILL NOT ALWAYS REVERSE.

7. Improper instruction. Although an instruction may be objectionable, a
judgment will not be reversed for that cause, when, upon the whole record, it
appears that the right is with the party in whose favor the instruction was
given, and that justice has been done. N. Eng. Fire and Mar. Ins. Co. v.
Wetmore et al. 220.

WHEN OBJECTION MUST BE FIRST TAKEN.

8. Want of jurisdiction in chancery. Should a party resort to a court of
chancery for relief when he has an adequate remedy at law, the want of juris-
diction must be brought in question by the pleadings, or it will be regarded
as waived. The objection cannot be made for the first time, on error. Ohling
et al. v. Luitjens, 23.

9. Of omission to make demand. The objection that a judgment was con-
fessed under a warrant of attorney upon a note payable on demand, without
any demand having previously been made, comes too late on error. It should'
have been made when the judgment was entered, or as soon thereafter as
counsel could be heard, on a motion to vacate the judgment for that cause and
on that ground. Hall v. Jones, 38.

RELEASE OF ERRORS. See RELEASE OF ERRORS.