When it may be taken in chancery. See CHANCERY, 6, 7.
ACKNOWLEDGMENTS OF DEEDS. See CONVEYANCES, 6 to 26.
FOR MONEY HAD AND RECEIVED.
1. When action will lie. Where a party has received money for a particular purpose, and fails to apply it to that purpose, he is liable in assumpsit for money had and received, to the persons from whom he received it. Hence, where P., a warehouseman, had received several packages of money from F., and this money was sent to P. for the use of B., and at the request of B., and P. did not account for a package of one thousand dollars, F. was entitled to a judgment in assumpsit for the sum not accounted for. Parker v. Fisher et al. 164.
2. And, in such a case, where the evidence showed that P. was not only a warehouseman but was a purchasing agent for F., he could not withhold the money from the person to whom F. owed it, and thus defeat an action by F., in assumpsit, for money had and received, on the ground that he was a mere gratuitous bailee. Ibid. 164.
3. It is also true that, in such a case, B., to whom the money should have been paid by P., could maintain an action against him for the recovery of it, though a recovery by one would be a bar to an action by the other. Ibid. 164.
WHERE A PARTY REQUESTS AN ACT TO BE DONE.
4. No cause of action for injury resulting. A party can have no cause of action for the consequences of an act the performance of which was requested by himself. So, where a ditch was altered, at the request of A., who gave, as a reason, that the water in a pond would thereby become clearer, it was no cause of action, though the result was different. Illinois Central Railroad Company v. Allen, 205.
ACTION FOR RECOVERY OF RENT. See USE AND OCCUPATION, 1, 2, 3. LESSEE OF A RAILROAD.
Liability for injuries done by the trains of one company while running upon the track of another, resulting from the unfenced condition of the road. See RAILROADS, 5, 6, 7.
ADJOURNMENT OF COURT.
Is A JUDICIAL ACT.
And can only be done by the judge himself. See CIRCUIT COURT, 1, 2.
MAY BE TO A SPECIFIED DAY. Same title, 3.
ADMINISTRATION OF ESTATES.
ESTATE OF A DECEASED INFANT.
1. Whether it must be administered upon. Where an infant, who has
a share in moneys in the hands of a guardian, dies in his minority, at an
age incapable in law of contracting debts, his share, on his death, will
vest immediately in his next of kin entitled thereto; and it is not neces-
sary in such case to take out letters of administration on the estate of the
deceased infant, in order to have an account from the sureties of the
guardian, but those in whom the share of the deceased infant has become
vested, may maintain a bill against the sureties of the guardian, and
recover, not only their original interest, if they had any, but also their
respective portions which they took by inheritance from the deceased
infant. Lynch et al. v. Rotan et al. 15.
2. Of the demand required to be made by a distributee. Section one hun-
dred and twenty-six of the statute of wills must not receive a construction
the effect of which would be to discharge the securities of a delinquent
administrator merely as a consequence of his death. So, when it directs
demand to be made of an administrator by a distributee, it must be con-
sidered as having reference to cases where there is an administrator in
being upon whom a demand can be made. The People, for use, etc., v.
Admire et al. 251.
3. Such a demand is in most cases a matter of form, intended to protect
parties from needless costs, and was not designed to be used by the securi-
ties as a shield from liability, after a demand had become impossible.
Ibid. 251.
4. So, where the heirs of P. declared against the securities of C., who
was his administrator, alleging that on final settlement the accounts of C.
showed that there was money in his hands belonging to said estate, that
the county court thereupon ordered him to pay the same to the heirs,
specifying the sum due to each, that C. was dead and the money unpaid;
and the securities demurred to this declaration: Held, that it was good,
though C. had never had an administrator, and therefore no demand had
ever been made on the administrator of C. Ibid. 251.
5. Not always required. Under sections one hundred and twenty-nine
and one hundred and thirty of the statute of wills, the legislature, without
defining the cases in which a bond might not be given, still contemplated
that cases might arise in which administrators would be compelled to pay
legatees or distributees, without having bond and security from them, "to
refund the due proportion of any debt which might afterward appear
against the estate." Ibid. 251.
ADMINISTRATION OF ESTATES. REFUNDING BOND. Continued.
6. So, where an administrator died and no administrator was appointed
for him, it was held, that as the probate court had ordered the deceased
administrator in his life-time to pay to the distributees the sum due to each,
and they were in no default, and there was no person to whom a bond
could be given, in such case no bond was required. The People, for use,
etc., v. Admire et al. 251.
7. Powers of the administrator. The estate of an intestate, being under
the full power and control of the heirs, an administrator has no power, nor
is he bound, to protect the realty in any manner, not even to the extent of
paying the taxes assessed against it. The cases of Wallbridge v. Day et al.
31 Ill. 379; Smith et al. v. McConnel et al. 17 id. 135, and Stone et al. v
Wood, 15 id. 177, discussed and affirmed. Phelps, Admr., v. Funkhouser
et al. 401.
8. An administrator has the power to apply for an order of court to sell
the real estate of the intestate, but he has no power to involve the estate
in litigation, under a pretense of removing an incumbrance, with a view
to a better price when it shall be offered for sale. He must take the estate
as he finds it, and, if incumbered, sell subject to such incumbrance.
Ibid. 401.
9. Who may bring suit to remove cloud from estate of an intestate.
Under our statute, the estate, both real and personal, of an intestate, de-
scends to his children, if any, or to his heirs, whoever they may be, and they
alone, as such representatives, have power to bring suits regarding the
title to land, to remove a cloud, or any incumbrance upon it. Ibid. 401.
10. How to remove an incumbrance upon land, when the administrator
has obtained an order of sale. If it is desirable for the administrator to
expose the lands of his intestate, which are incumbered by mortgage, to
sale for the payment of debts, the course to pursue is for the administrator
to obtain an order to sell it, and to prevent the anticipated sacrifice, the
heir may enjoin the sale until he can make an effort to set aside the mort-
gage. Ibid. 401.
ADMINISTRATOR'S SALE OF LAND.
11. Notice of the application—its requisites. An administrator gave
notice that he would present a petition "at the next term of the Shelby
Circuit Court, to be holden at the court-house in Shelbyville, on," etc., and
the notice was published in a newspaper in Shelby county. Upon an ob
jection that the notice did not specify in what county or State the court
was to be held at which application was to be made, it was held sufficient.
Moore et ux. v. Neil et al. 256.
12. Recital in decree cures defective certificate of publication. A defect
in a certificate of publication of such notice, in not stating the first and
last days of the publication, is cured by a recital in the decree that "it
appearing to the court that notice according to law was given of the
pendency of this cause." Ibid. 256.
13. The presumption arises from such a recital that the court received
other evidence than the certificate of the date of the publication. Ibid. 250
40-39TH ILL.
14. Report of the sale. It is not essential to the validity of an adminis-
trator's sale of land, that he should make a report thereof to the court.
Moore et ux. v. Neil et al. 256.
Whether affected by irregularities in granting letters of administra
tion. In an action of ejectment, an administrator's deed made under a
decree of court, cannot be excluded as evidence because the probate court
had erred in granting him letters. Wright v. Wallbaum et al. 555
ADMINISTRATOR PURCHASING AT HIS OWN SALE.
16. Effect thereof, in equity and at law. In equity, the simple fact that
an assignee, trustee, commissioner, executor or administrator becomes a
purchaser at his own sale, will render the sale invalid, and it will be set
aside by the court. Lockwood v. Mills et al. 602.
17. But at law a different rule prevails. In that forum, in order to
invalidate the sale, it must not only appear that the party acting in a
fiduciary character purchased at his own sale, but it must also appear that
the sale was accompanied with fraud. Ibid. 602.
IRREGULARITY IN GRANTING LETTERS.
18. When and how availing. Although the probate court may fail to
observe the requirements of the law in granting letters of administration,
yet, having jurisdiction of the subject and of the person, and being
thereby fully empowered to act by refusing or granting such letters, a
person so appointed becomes the administrator de facto, and the regularity
of his appointment cannot be questioned in a collateral proceeding.
Wight v. Wallbaum et al. 554.
19. Whether the act of granting letters of administration be a judicial
or a ministerial act, the whole tenor of the legislation of this State shows
that it was never designed in a proper case for the grant of letters, that
any mistake as to their character should be held to render them and all
acts performed by the executor or administrator, void. It must have been
intended in such cases that the letters should be good, and the acts valid
until they should be revoked. Ibid. 555.
20. Hence, where an administrator with the will annexed had been
appointed, whether the will was properly proved or not, could not affect
the validity of the letters or of a sale of the property made by the admin-
istrator. Ibid. 555.
IN CASE OF DEATH OF ONE PARTNER.
Of the relative rights and duties of administrator of deceased partner and
the survivor. See PARTNERSHIP, 8 to 14.
JUDGMENT FOR COSTS.
Against an administrator. See COSTS, 1.
WHEN RENT GOES TO THE ADMINISTRATOR. See RENT, 4.
Purchasers at administrator's sales-how far protected. See PURCHAS.
ERS, 4 to 8.
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