PRACTICE. AFFIDAVIT OF CLAIM BY PLAINTIFF. Continued.

ration was authorized to do so, or the affidavit will be a nullity; and no
affidavit of merits will be required with the plea. Smith v. Lyons, 600.

AFFIDAVIT OF MERITS WITH PLEA.

6. Constitutionality of act requiring it. The legislature is not pro-
hibited by the constitution from requiring an affidavit of merits to be
filed with a plea. It seems it has power to require all pleadings to be
sworn to as a condition precedent to their being filed. Honore v. Home
National Bank, 489.

SETTING ASIDE DEFAULT.

7. Affidavit required. Where a plea, without affidavit, is filed in a
case where such affidavit is required, the plaintiff will be entitled to
judgment by default; and if the defendant, on motion to strike his plea
from the files, asks for leave to file an affidavit of merits with the plea,
it is proper to require him to disclose, by affidavit, the nature of his de-
fense, that the court may see whether it is meritorious or not. Wilder
v. Arwedson, 435.

REINSTATING CAUSE.

8. Discretionary. It is within the discretion of the circuit court to
set aside an order of dismissal, and reinstate a cause on the trial calen-
dar at the same term of court at which it was dismissed; and where
there has been no such palpable abuse of that discretion as will work
manifest injustice, its exercise will not be reviewed in an appellate
court. Combs v. Steele et al. 101.

ORDERING TRIAL BY JURY.

9. Its effect on pending motions for rule to give security for costs, and
for leave to prosecute as a poor person. Where the record shows a mo-
tion by defendant for a rule on plaintiff to give security for costs, and,
three days afterwards, a motion by plaintiff for leave to prosecute as a
poor person, and no formal disposition of either motion, an order of the
court, after the last motion, for a jury to be impanneled to try the
issues, is, in effect, an allowance of the last motion and a denial of
the first. Sterling Bridge Co. v. Pearl, 251.

EXCLUDING ENTIRE EVIDENCE.

10. The exclusion of the whole evidence from the jury is, in effect,
an instruction in the nature of a non-suit, a practice not sanctioned in
this State. Crowley v. Crowley, 469.

11. If evidence tends to prove an issue in a case, it is error to ex-
clude the same, although, in the opinion of the court, it may not be
sufficient to authorize a verdict. Ibid. 469.

12. But if it appears that the verdict must have been the same if the
evidence had not been excluded, the error is one that does not prejudice,
and therefore no ground for a reversal. Ibid. 469.

13. Action of the court below. Where a decree is reversed with di-
rections to the court below to decree the complainant a homestead, if
the property is susceptible of division, otherwise, its value in either of
two modes, and the court finds that it appears, from the evidence, that
the premises are so situated that a homestead can not be assigned, this
will authorize the court to adopt either mode for adjusting the home-
stead right suggested by this court, independent of any agreement of the
parties. King v. Mix et al. 378.

14. Where a cause is decided in this court, and remanded with si e-
cific directions that if a homestead can not be set off, to ascertain its
value in one of two ways, first, by decreeing the complainant $1000 in
lieu of homestead, and such portions of the rents and profits, after de-
ducting all taxes and necessary repairs, as $1000 bears to the whole
value of the property, or by decreeing to her $1000, with six per cent
per annum interest from the time the claimant was expelled, the court
below will be left at liberty to adopt either mode of adjusting the equi-
ties, in case the homestead can not be assigned. Ibid. 378.

OBJECTION TO EVIDENCE.

15. Must be made in court below. On an application by a divorced
father for the custody of his child, he can not assign for error that the
court admitted ex parte affidavits in evidence against him, where the
record shows no objection made to them. Wilkinson v. Deming, 342.

TIME FOR MAKING OBJECTIONS.

To depositions. See DEPOSITIONS, 1, 2.
MODE OF IMPANNELING JURY. See JURY, 1, 2.

PRACTICE IN THE SUPREME COURT.

WHAT MAY BE REVIEWED.

1. Interlocutory order not subject of review. The action of a judge
in imposing terms upon granting a preliminary injunction, can not be
considered in this court. The order granting a preliminary injunction
is interlocutory only, and, therefore, not the subject of review. Hm
ford v. Blessing, 188.

OBJECTIONS BY APPELLEE.

2. No cross-errors assigned. On appeal to this court, the appellee
can not raise an objection in respect to a matter involved in the case,
where he has not assigned cross-errors. The People ex rel. v. Brislin,

423.

ERROR WILL NOT ALWAYS REVERSE.

3. Striking plea from the files. Where a special plea setting up dam-
ages by way of set-off is stricken from the files, and it appears that such
plea was unnecessary, and that all the matters presented by it were re-
ceived and considered under the general issue, by way of recoupment,

PRACTICE IN THE SUPREME COURT.

ERROR WILL NOT ALWAYS REVERSE. Continued.

the judgment will not be reversed for the irregularity in striking the
plea from the files, instead of disposing of the same by demurrer.
Cooke v. Preble et al. 381.

4. Improper instructions and admission of evidence. The giving of
a faulty instruction, especially as an abstract proposition, will afford no
ground of reversal, where it is apparent it could not have prejudiced
the party complaining. Reynolds v. Greenbaum, 416.

5. It is only such error as works an injury to the party complaining,
that will be ground of reversal. The admission of immaterial evidence
of no intrinsic strength or weight is not such an error. Berdell v. Ber-
dell, 604.

6. Trifling errors in the admission of immaterial evidence and in
the giving of instructions which did not interfere with the substantial
justice of the case, where justice is done by the verdict, will not be
grounds of reversal. Stevison et al. v. Earnest, 513.

CAUSE FOR OPENING JUDGMENT.

7. Pendency of other cases. The fact that there are a large number
of other cases pending in the court below involving the same questions
decided by this court in a particular case, is no ground for opening the
judgment therein. Such decision is no impediment to the trial of the
other cases.
When they are tried they may be brought to this court,
and then the propriety of the former decision may be examined. But-
ler v. Walker, 345.

PRESUMPTIONS.

OF LAW AND FACT.

1. Presumption as to defendant's residence. Where it appears that
the defendant was served with process in the county where the suit is
brought, it will be presumed, in the absence of contrary proof, that he
resided in that county at the time. Honore v. Home National Bank, 489.
2. As to effect of custom on contract. See CONTRACTS, 5.

3. That suit by corporation is brought in proper name. See COR-
PORATIONS, 1.

4. In respect to subscription. See SUBSCRIPTION, 3.

5. As to amendments in justice's courts. See AMENDMENTS, 2.
6. As to jurisdiction of superior courts. See JURISDICTION, 2.
7. As to the manner of the death of a party. See INSURANCE,
19, 20.

8. On settlement of accounts. See SETTLEMENT, 2.

9. Who filled up application for insurance. See INSURANCE, 1.
10. That evidence sustains verdict. See EXCEPTIONS AND
BILLS OF EXCEPTIONS, 4.

PROCESS.

WHERE IT MAY BE SERVED.

1. Only within the jurisdiction. The process of a court has vitality
and may be enforced anywhere within its jurisdiction, but beyond this
it has no vitality, and a service beyond the jurisdiction of the court
confers no jurisdiction over the person of the defendant. Isett v.
Stuart, 404.

AS A JUSTIFICATION.

An officer armed with a writ of

2. To an officer serving the same.
restitution issued by a justice of the peace in a forcible detainer suit,
where the justice has jurisdiction, may enter the premises forcibly in
order to execute the writ, and, having so entered, it is his duty to re-
move whatever chattels or property may be in the house, doing as little
damage as possible to effect the purpose, and which will be the natural
consequence of his duty to remove the same, and he will not be liable,
unless he shall wantonly injure the chattel property. Miller et al. v.
White, 580.

3. Is not, as against one not a party to the suit. Where judgment
is rendered in favor of a landlord against his tenant for the possession
of demised premises, in an action of forcible detainer, for holding over
after the expiration of the term, and such tenant, by collusion, sublets
the premises to another person, he remaining in the same as before,
and the subletting is secret and unknown to the landlord at the time of
the suit, and such sub-tenant is dispossessed, the latter will not be en-
titled to maintain an action against the landlord and officer in trespass
for executing the writ of possession; and the same rule applies if the
subletting is a mere pretense to hold the possession through another.
Ibid. 580.

PROMISSORY NOTE.

DEFENSE AGAINST HOLDER.

1. When not indorsed. A person not the payce of a promissory
note, who becomes the owner thereof without its having been as-
signed, holds it subject to the same defense that it would be in the
hands of the payee. Sturges v. Miller et al. 241.

2. Against one not purchaser for value. A promissory note in the
hands of one who is not a purchaser thereof for value, is subject to the
same defenses that it would be in the hands of the original holders.
Ibid. 241.

PURCHASERS.

WHO MAY BECOME A PURCHASER.

1. After the trust is executed, trustee may buy property. After a
trustee has made a sale, under his power as trustee, in good faith, and
has fully discharged his trust, so that he no longer occupies confidential
relations to any one claiming the property, he is not by law forbidden
to deal with what was the trust property the same as a stranger, and,

PURCHASERS. WHO MAY BECOME A PURCHASER. Continued.

acting in good faith, he may become the owner by purchase or other
wise. Bush et al. v. Sherman, 160.

PURCHASER WITHOUT NOTICE.

2. A party purchasing land, the title coming through one holding
the legal title of record, without notice of any secret trust claimed to
exist under a verbal agreement with the holder of the legal title, will
be protected against the claim under the trust. Pratt et al. v. Stone et
al. 440.

3. A writ of error to reverse a decree dismissing a bill to avoid a
title, is a new suit, and affords no notice to any one of anything until
it is sued out. Therefore, a purchaser for a valuable consideration paid
after the order of dismissal, and before the issuing of the writ of error-
without other notice, will be protected against the equities of the com,
plainant. Eldridge v. Walker et al. 270.

Of irregularities or errors respecting sale by administrator. See
ADMINISTRATION OF ESTATES, 6, 7.

QUO WARRANTO.

WHEN IT LIES.

1. Not against municipal corporation. An information in the nature
of a quo warranto, on the relation of a private individual, will not
lie against a municipal or public corporation, such as a city, village,
town, county, township, or the like. Per MCALLISTER, BREESE and
WALKER, JJ. City of Chicago v. The People ex rel. etc. 496.

2. Does not lie to contest election to adopt a charter. An election for
the adoption of a charter, by a city, town or village, can not be contested
by quo warranto. Per WALKER, J. Ibid. 496.

RAILROADS.

NEGLIGENCE IN RAILROADS. See NEGLIGENCE, 2 to 13.

RECEIVER.

EFFECT OF APPOINTING.

1. On parties' rights. The appointment of a receiver does not deter-
mine any right nor affect the title of either party. He is the officer of
the court, and his holding is that of the court for him from whom the
possession is taken. He holds for the benefit of the party ultimately
entitled, and when this is ascertained he will be considered his receiver.
Coates v. Cunningham, 447.

RECORDS.

PAPERS FILED IN A CAUSE.

1. The papers of a cause, when filed, under our statute, become a
part of the record, and transcripts are made by copying files and the