FORMER DECISIONS. Continued.
REMEDY BY INJUNCTION.
The case of Mitchell v. Warfield, 20 II. 159, explained in The Board of
Supervisors of Iroquois County v. Keady et al. 296. See INJUNCTIONS, 1.
FORMER RECOVERY.
AS REGARDS A PRINCIPAL AND HIS AGENT.
It seems the owner of property alleged to have been injured upon a railroad
by neglect of duty on the part of the engine driver, may elect to sue either
the driver or the company; but when the jury have found in an action against
the company that there was no negligence, it is a bar to a recovery against the
agent. Chicago and Rock Island Railroad Co. v. Hutchins, 108.
FRAUDULENT CONVEYANCE.
VOLUNTARY CONVEYANCE FROM FATHER TO SON.
1. Whether in fraud of creditors. The fact that a party has paid the
entire purchase-money for a tract of land, and procured the title to be made
to his son, does not, of itself, establish fraud as to creditors of the father. If
no debts existed at the time of the conveyance, there could be no fraud, as
there could have been no design to hinder and delay creditors. Mixell et al. v.
Lutz, 387.
2. Persons giving credit to the father after the conveyance, have no right
to complain, as they could not have looked to the property as security for their
debts. Ibid. 387.
3. Or if there were, at the time, creditors who were intended to be
hindered and delayed by means of the conveyance, still, those whose debts
were created subsequently could not allege against it. The deed would remain
valid and binding until avoided by some creditor who had been thereby
defrauded. Ibid. 387.
4. Should such creditors as were defrauded by the conveyance, by a
resort to equity procure it to be canceled, and the property subjected to the
payment of their debts, and there was more than sufficient for that purpose,
no doubt a subsequent creditor who has reduced his debt to a judgment
before the surplus is disposed of, may subject it to the payment of his debt.
Ibid. 387.
5. How affected thereby. The purchaser of personal property sold to him by
A., acting as agent for B., cannot defend against a suit for the purchase-money,
on the ground that B.'s title, which had been derived from A., was fraudulent
as to creditors. Root v. Wood, 283.
WHETHER A HOUSE IS A PART OF THE FREEHOLD. See REPLEVIN, 4.
BY WHAT NAME OR STYLE A PARTY MAY BE GARNISHEED. See PARTIES, 2.
SETTING ASIDE JUDGMENT AGAINST GARNISHEE.
Is discretionary. See ERROR, 1.
GOLD DEPOSIT.
MADE BEFORE THE "LEGAL TENDER
In what it must be paid. See "LEGAL TENDER" ACT.
GOVERNMENT HORSES.
OF BRANDS UPON THEM.
1. As required by the regulations. The army regulations require that all
horses, as soon as acquired by the government, shall be branded with the
letters "U. S"; and when such horses are condemned and sold, they are
required to be branded with the letter "C." Bergen et al. v. Riggs, 174.
2. As evidence of their ownership or sale. If a horse is found in the posses-
sion of an individual with the government brand "U. S." upon it, that fact,
unexplained, would overcome the presumption of ownership in the individual,
created by mere possession. Ibid. 174.
3. But if the horse is branded also with the letter "C.," that is evidence
that the government has parted with its title, when found in the possession of
an individual. Ibid. 174. See POSSESSION, 3, 4, 5.
GOVERNMENT LAND SALES. See COMMISSIONER OF THE GENERAL
LAND OFFICE.
CITATION TO GUARDIAN TO ACCOUNT BEFORE PROBATE Court.
1. Nature of the proceeding. The citation to a guardian to account before
the Probate Court is not in the nature of the action of account at law or in
equity it is not a suit within the meaning of the statute of limitations -
but is a means of ascertaining a delinquency, so that suit may be brought for
the amount of the delinquency, so adjudged by the Probate Court, against the
obligors in the guardian's bond. Gilbert v. Guptill, 112.
2. No judgment is rendered in
Ibid. 112.
such a proceeding before the Probate Court.
3. But the finding is res judicata. The finding by the Probate Court of the
amount due from the guardian, and a direction to pay it over to the adminis-
trator of the ward, is not a judgment; it fixes the amount of the recovery
under the bond, and is res judicata as to the amount. Ibid. 112.
ADMINISTRATOR OF WARD.
4. His rights and remedies as against the guardian. The administrator of
one who has been under guardianship, can bring all actions, resting in con-
tract, which the ward himself might have brought, provided such actions are
brought within the time limited by law. Ibid. 112.
5. This being so, such administrator has the right to the securities given
by the guardian for the protection of his ward. Ibid. 112.
6. And having this right, it follows that he has the right to use the means
the law gives to ascertain for what amount, on accounting before the Probate
Court, the guardian and his sureties are responsible under his bond. Ibid. 112.
LIMITATION.
In proceeding by citation to a guardian to account before the Probate Court. See
LIMITATIONS, 11.
GUARDIAN AND WARD. LIMITATIONS. Continued.
The act of accounting before the Probate Court will take the case out of the opera-
tion of the statute. See same title, 12.
CITATION TO GUARDIAN TO ACCOUNT BEFORE PROBATE COURT.
7. Guardian may be compelled to testify. The proceeding by citation to a
guardian to account before the Probate Court, may be likened to a bill for
a discovery, wherein it is necessary to sift his conscience, to get at facts of
which he alone could have any knowledge. When he has rendered his
account, and made oath that it is just and true, the court has a right to inter-
rogate him as to its correctness, and upon his guardianship generally. Gilbert
v. Guptill, 112.
DUTY OF GUARDIAN AS TO MONEY OF WARD.
8. Guardian chargeable with interest for neglect. A guardian allowed the
money of his ward to remain in the hands of his brother-in-law from year to
year, without any security and without the approval of the court; and the
loss of the money being chargeable to his own negligence and disregard of
the statute, it was held, that on taking his account before the Probate Court
he should be charged with the moneys he received, and compound interest
thereon, at six per cent. from the day he received it, until his ward become of
age, and interest on the amount, from the day it was demanded by the admin-
istrator of the ward, to the time of entering the final order. Ibid. 112.
9. After the ward attains his majority. After the ward has attained his
majority, the guardian has no right to loan his money, or use it in any manner,
but is bound to have it on hand to pay over on demand; so he is not charge-
able with interest after that time, unless it be shown he made profits out of
the money. Ibid. 112.
LIABILITY OF GUARDIAN AFTER HE IS OUT OF OFFICE.
10. Must still account. Although a guardian may be out of office, he is
still liable to account before the Probate Court, and this liability continues as
long as his bond remains in force. Ibid. 112.
IMPEACHMENT.
OF A WITNESS.
Of the foundation therefor. See WITNESS, 17.
As a remedy in restraint of administrative power.
1. To prevent the removal of a county seat. A board of supervisors being
about to act in the relocation of a county seat, in pursuance of a pretended
election held for that purpose, certain citizens of the county filed their bill in
chancery, and prayed an injunction to stay the action of the board of super-
visors, alleging there was no law authorizing the removal. A perpetual
injunction was decreed in the court below, and on appeal the Supreme Court,
disposing of the case upon the main question, did not wish to be understood
as expressing any opinion as to the propriety of the remedy resorted to. The
court said, an act of administration like this, likely to produce taxation, is not,
ordinarily, a matter of private or individual concern; it is an affair altogether
public, and the appropriate remedial process against an abuse of administra-
tive power, tending to taxation, would seem to be a proceeding in behalf of
the State. And it seems the case of The People ex rel. Mitchell v. Warfield,
20 Ill. 159, is not to be understood as recognizing the propriety of such a pro-
ceeding as this. In that case the court simply recognized the existence of an
injunction in a suit in which no question was made as to who were proper
parties. The question is regarded as undetermined in this State. The Board
of Supervisors of Iroquois County v. Keady et al. 296.
TO PREVENT THE OPENING OF A ROAD.
2. The law regulating the location and opening of roads in counties where
township organization has been adopted, requires that a road shall be opened
within five years after it has been located; and to meet the requirements of
the law, the entire road as located must be opened within that time. Yet if
only a portion of the road should be opened within the proper time, the act
would be done under color of law, and could be justified in an action for
damages. So where it is attempted to open a portion only of such a road,
only one day before the expiration of the five years, and it is apparent the
other portions cannot be opened within the proper time, a court of chancery
will interpose by injunction to prevent the opening of the portion as proposed.
Green et al. v. Green, 327.
TO PREVENT IRREPARABLE WRONG.
3. The fact that no damages could be recovered for opening the portion of
the road under the circumstances mentioned, confers jurisdiction upon a court
of equity to prevent an injury for which a recovery could not be had at law,
and brings the case within the rule that equity will restrain an act which, if
performed, would produce irreparable wrong and injury. Ibid. 327.
TO PREVENT A USELESS ACT BEING DONE.
4. Moreover, the opening of a part only of the road within the five years,
would not prevent the entire road being vacated, so the act would have been
useless to the public and injurious and expensive to the owner of the land.
The law never requires the performance of a useless act, and chancery will
interpose to restrain its performance when attended with injury to others.
WHEN THERE IS A DEFENSE AT LAW.
5. Injunction will be refused; and herein, what constitutes a defense at law.
Where the obligor in a bond, against whom suit has been brought, files a bill
for an injunction against its further prosecution, upon grounds which would
be available as a defense at law, the injunction should not be granted. Beau-
champ et al. v. Putnam, 381, 382.
6. So, where a party executed a bond in a given penalty, conditioned for
the conveyance of a tract of land by the obligor, within a stipulated time,
and pending an action upon the bond in the name of the obligee for the use.
of his assignee, to recover damages for the non-fulfillment of the condition,
the obligor caused a deed to be made to such assignee which vested in him a
perfect title to the premises, and which he accepted, subject to, but not waiv-
ing, any claim which he might have by reason of not receiving the title at the
propor time. Held, that the title becoming vested in the assignee for whose
WHEN THERE IS A DEFENSE AT LAW. Continued.
use the suit was brought, its acceptance was either an absolute bar of the
action at law, or a bar pro tanto in mitigation of damages, and the defense
arising therefrom could be made entirely available by appropriate pleas in that
action; and there could be no reason for invoking the aid of a court of chan
cery to enjoin the proceedings at law. Beauchamp et al. v. Putnam, 381, 382
SHOULD CONFORM TO THE EVIDENCE.
1. Although it is true, as a general proposition, that possession of chattels
is prima facie evidence of ownership, yet when such possession is attended
with circumstances tending to rebut the presumption, it is error to instruct
the jury that possession is evidence of ownership, and thus exclude a con-
sideration of those circumstances. Bergen et al. v. Riggs, 174, 175.
SHOULD NOT ASSUME THE GUILT OF THE ACCUSED.
2. A party on trial upon a criminal charge asked the court to instruct the
jury that, if they found from the evidence that the defendant bore a good
character for honesty, it should have great weight in his favor. The court
qualified the instruction by adding, "if the jury believe there is any doubt of
his guilt." The qualification was objectionable on the ground that it amounted
to a declaration by the court that there was no doubt of the prisoner's guilt.
Jupitz v. The People, 516.
PARTIES, IN CASE OF ASSIGNMENT BY THE ASSURED.
1. When the assignee may sue—and when not. A fire insurance policy is
not assignable so as to enable the assignee to bring suit upon it in his own
name. Peoria Marine and Fire Ins. Co. v. Hervey et ux. 46.
2. But an action of assumpsit will lie, by the assignee of such a policy,
upon the express agreement and promise of the insurance company to pay the
assignee for any loss, when a renewal receipt is issued to him, after the assign-
ment, and the payment by such assignee of the premium on the renewal.
Ibid. 46.
3. Such a promise upon the renewal, and payment of the premium by the
promisee, is a new undertaking for a valuable consideration, for the breach of
which an action of assumpsit will lie by the assignee and promisee. Ibid.
46.
1. Vacating the same at the instance of the plaintiff. After a judgment was
entered by confession, the defendant was allowed to plead, the judgment
remaining as security to the plaintiff. Pending the trial of the issue, the
plaintiff asked leave to take a nonsuit, and also moved the court to vacate
the judgment; and there seems to be no reason why that should not be done.
Indeed, the nonsuit, to which the plaintiff had a right, would have operated
to vacate the judgment, as that rested on the recovery on the issue made up.
Gordon v. Goodell, 429.
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