Milk v. Moore

Citations

• 39 Ill. 584

Syllabus

<p>1. Trial by jury—in chancery. In chancery the submission of an entire case to a jury is contrary to the practice, and should be discouraged, even when the parties desbe such a trial.</p> <p>2. Our statute has, however, authorized an issue in chancery to be tried by a jury, and this it may be convenient and highly proper to do; but all such issues should be distinct and explicit, presenting, in each, a single question so clearly that it could not but be understood by the jury, and their verdict should be responsive to each.</p> <p>3. But such a trial, or a trial of a feigned issug in a like case, is not merely by the consent of the parties, but is solely under the control of the chancellor.</p> <p>4. The chancellor is the sole judge of the evidence and of its weight; and where he dbects an issue of fact to be tried by a jury to inform his conscience, he may adopt the verdict, or disregard it and render a decree against the finding, or may grant a new trial as he may believe justice demands.</p> <p>5. Burden OP pbooe—to establish a warranty. In a suit to foreclose a mortgage given to secure the fulfillment of a contract by a party who took certain sheep and agreed to make certain returns therefrom to the owner, or in default thereof to pay a stipulated sum of money, the defendant set up an alleged warranty, on the part of the owner, that the sheep were not diseased, but that they were diseased, and many of them had therefore died, it was held, the burden of proof to establish the warranty, was upon the party alleging it.</p> <p>6. Record—costs of—not taxed, when. Subpoenas for witnesses, notices for taking depositions, magistrates’ certificates, copies of fee bills, etc., are properly no part of the record of a case; when such a record is taken up the Supreme Court will not take the time to examine and designate what is recoverable as costs, and tax the same, but will refuse costs.</p>