third Monday of March "next," is a nullity; and notice of publication
founded upon a return to such a process, will not authorize a judgment by
default. Elee v. Wait, 70.
10. A person in the quiet possession of real estate as owner, may obtain an in-
junction to restrain others from dispossessing him by means of process
growing out of litigation to which he was not a party. Goodnough v.
Sheppard, 81.
11. A court of chancery may compel a judgment creditor to exhaust all the
property held by his debtor, before he shall resort to property purchased of
the debtor, but subject to the lien of the judgment. Hurd v. Eaton, 122.
12. Where there are two funds or pieces of property to which one creditor may
resort, while another creditor can only resort to one, he who has the double
resort, must proceed first against the property to which the other cannot
resort. Ibid. 122.
13. Where a judgment creditor may collect from property that his debtor has
not conveyed, but refuses or fails to do so, he may be enjoined from pro-
ceeding against the grantee of his debtor. Ibid. 122.
14. Where a conveyance is in fact a mortgage, it continues a mortgage, although
there may be a change of owners, if each mutation is coupled with the no-
tice of the original transaction. Brown v. Gaffney, 149.
15. The visible possession of premises, is sufficient to charge a purchaser with
notice of all legal and equitable claims of the occupants. Ibid. 149.
16. If a mortgagee purchases the equity of redemption for a grossly inadequate
price, under circumstances which show that the mortgagor was induced to
make the sale by threats from the mortgagee, a court of equity will allow a
redemption. Ibid. 149.
17. A party to recover in chancery, if the allegations in the bill are denied,
must establish his rights by evidence. James v. Bushnell, 158.
18. In chancery practice, the evidence should be preserved in the record, in
order to have the decree sustained. Ibid. 158.
19. In an action on a penal bond, in this State, the breaches are to be assigned
in the declaration; and as many breaches may be assigned in one count as
the necessity of the case requires; or breaches may be assigned by as many
counts as is requisite; in the former case, each breach answers the place
of a count, and is subject to a demurrer, which may be sustained as to some,
and overruled as to others, as if the breaches were stated in separate counts.
Hibbard v. McKindley, 240.
20. If there are several defendants, jointly, or jointly and severally liable, an
averment that the "said defendants have not paid," is sufficient; a perform-
ance by one is a performance by all. Ibid. 240.
21. Where the general breach is considered as a continuance of the special
breaches, a defective averment as to non-payment may be cured by it.
Ibid. 240.
22. If the name of "John" is used three or four times in the bond as one of
the obligees, the use of the name "James" in the latter part of the con-
dition of the bond, will not be fatal, if the context shows that "James"
was inserted by mistake. Ibid. 240.
23. A statutory bond, the form of which is prescribed, will be construed to have
the effect given to it by the statute; and an injunction bond includes the
right of recovery for costs, if such are in terms awarded against the com-
plainant on the dissolution of the injunction. Hibbard v. McKindley, 240.
24. The condition of an injunction bond in reference to damages, authorizes a
recovery, whether the damages are awarded on the dissolution or afterwards,
or in a different proceeding. Ibid. 240.
25. The bond is designed to indemnify against immediate and actual loss; but
not remote injuries; such as slander to credit, resulting from the injunction.
Ibid. 240.
26. A deed, though absolute on its face, may be only a mortgage; this fact may
be established by parol testimony; and a subsequent purchaser, with a
knowledge of the transaction, cannot obtain an absolute title by conveyance
from the mortgagee, so as to prevent redemption by the mortgagor. Shaver
v. Woodward, 277.
27. If a trial is had upon bill and answer, without a replication, the answer must
be considered as true. Mason v. McGirr, 322.
28. A court has not power to decree affirmative relief on an answer; this can
only be done on bill or cross-bill praying such relief. Ibid. 322.
29. A party who has slept upon his rights, failing to use his remedies at law,
cannot, upon mere complaint as to his attorney, obtain relief in equity. He
should show fraud, accident or mistake. Albro v. Dayton, 325.
30. In chancery, the jurisdiction of the court is confined to the county of the
residence of the defendants; service of process upon a resident of another
county is insufficient. Akin v. Lloyd, 331.
31. Where the name of a party is used in a bill in chancery, upon which issues
are formed, without objecting that such name was improperly used, it is too
late, when proof is being taken upon the merits, to attempt to show a want
of authority for the use of the name. Johnson v. Thompson, 352.
32. If one of the parties to a bill has paid usurious interest upon a loan, to
secure which a mortgage has been given, he has a right, before the matter
is adjusted, to claim an allowance for the usury; although the bill may have
ben filed by his creditors to restrain the sale of the mortgaged premises.
Ibid. 352.
33. An injunction to prevent the sale of mortgaged premises will be made per-
petual, where it appears that the party executing the mortgage was rendered
imbecile by habitual drunkenness, and reduced to a condition verging upon
insanity, by the mortgagee, who had obtained complete power over the
mortgagor; the mortgagce not being able to show that he had given any
valid consideration for the mortgage. Van Horn v. Keenan, 445.
34. A, in anticipation of a purchase of land, proposed to B to become interested
with him in it. B did not accept the proposition, but loaned money to A,
with an option reserved to B to take an interest. B did not give any notice
to A of his intention to take the interest; did not pay or offer any money
beyond the loan with which to secure the property, but waited till it
appeared that the purchase was a profitable one, then filed his bill. Held,
that B could not establish a trust in A for his benefit. Had he contributed
to the payments as they fell due, and treated the transaction as a purchase,
it might have created a resulting trust in favor of B. Loomis v. Loomis,
454.
35. A contract to furnish materials for a mill at Marseilles, if it does not appear
that the defendant has more than one mill at that place, will be a sufficiently
definite description of property, to enable the creation of a mechanics' lien.
Strawn v. Cogswell, 457.
36. A decree under a mechanics' lien, should require at least ninety days' notice
of the time of sale, and if the amount be large, six months' notice of the
day of sale, will not be an unreasonable time. Ibid. 457.
87. Courts of equity are invested with jurisdiction to decree a new trial at law,
where a judgment has been obtained by fraud, mistake, or accident. How
v. Mortell, 478.
38. Where a court of equity directs a judgment at law in ejectment to be set
aside and the possession restored, its jurisdiction is ended, and the parties
should be left to a court of law for an adjudication of their rights. Ibid.
478.
39. An averment in a petition for a lien, which avers that materials were fur-
nished, to be paid for in a reasonable time, does not show that the delivery
and payment were to be within three years; this is a substantial defect,
which can be reached by a general demurrer. Kinzey v. Thomas, 502.
40. If it appears that a petitioner for a mechanics' lien has taken other security,
either on property or of persons, to satisfy him for his labor and materials,
the statutory lien will be discharged. Ibid. 502.
41. In no case should a decree for the sale of property under a mechanics' lien,
be within a less time than the life of an execution; and if the amount to be
paid is large, a longer time than the life of an execution should be given
for payment. Ibid. 502.
1. A depositor may draw checks upon his banker at pleasure, for the whole or
any part of moneys to his credit in bank; and each holder of a check may
recover the amount expressed in it. A depositor should draw his check in
good faith, and not to multiply suits. Chicago Marine and Fire Ins. Co. v.
Stanford, 168.
2. A check drawn for "current funds" entitles the holder to demand coin, or
its equivalent. Galena Ins. Co. v. Kupfer, 332.
3. If a word has a general, well-defined signification, it is not competent to
change that meaning by evidence; but if a word has not a definite ascer-
tained signification, its local meaning may be proved. The case of Moore
v. Morris, 20 Ill. 255, considered and qualified. Ibid. 832.
4. Where the drawer of a check has not provided proper funds for its payment,
but offers depreciated paper, the holder of the check is not liable for
any depreciation to the paper, which may result from his refusal to take it.
Ibid. 332.
CIRCUIT COURT AND CLERKS.
1. Where an award has been set aside by a court, the matters in difference cannot, without the consent of parties, be referred back to the same arbitrators. Smith v. Smith, 56.
2. When an award has been set aside, the court proceeds with the case, as if it it had never been referred. After an award, unless there is a stipulation otherwise, the power of the arbitrators with the case is at an end. Ibid.
3. A defendant who has entered his appearance and moved to continue a cause, cannot afterward plead to the jurisdiction. Roberts v. Thomson, 79.
4. A motion to continue a case, because a copy of the note on which the action is brought is given, with the names only of the payees written on the back, may properly be overruled. Ibid. 79.
5. The legislature may require pleas to the merits to be accompanied by an affi. davit of merits. Ibid. 79.
6. On a default taken,
ble in currency.
7. The court has the
the court may assess the damages upon a certificate paya-
Northern Bank of Illinois v. Zepp, 180.
discretion, upon proper cause shown, to allow a plea of
ejectment, after the twenty days fixed by the notice have expired.
Conlee, 219.
8. The statute of frauds is presumed to have been pleaded before a justice of the peace. Williams v. Corbet, 262.
9. It is not error for the Circuit Court to strike a written plea from the files of a case, appealed from a decision of a justice of the peace. Ibid. 262.
1. A provision in, or amendatory of an act incorporating a college, which prohibits the sale of ardent spirits within a distance of four miles, although no such object or subject is named in the title of the bill, is not unconstitutional. O'Leary v. County of Cook, 534.
2. Such a provision, although in a private or local law, incorporating a college, is so germain to the primary object of the charter, as not to conflict with that provision of the constitution, which declares that no private or local law shall embrace more than one subject, which shall be expressed in the title. Ibid. 534.
1. A judgment cannot be confessed on the day a warrant of attorney and note bear date; although the note is payable on demand. Waterman v. Jones,
2. A judgment cannot be confessed on a warrant of attorney, which had been
executed more than a year and a day, unless an affidavit is filed, showing that
the maker is alive, and that the debt or some portion of it is still due; and
a rule of court or an order of a judge in vacation must be obtained, grant-
ing leave. Hinds v. Hopkins, 344.
3. A writ of error may be obtained to review a judgment by confession; save
where the authority to confess is sufficient, and the record by proof, or
legal presumption, shows the debt to be due. Ibid. 344.
1. A provision in, or amendatory of an act incorporating a college, which pro-
hibits the sale of ardent spirits within a distance of four miles, although no
such object or subject is named in the title of the bill, is not unconstitu-
tional. O'Leary v. County of Cook, 534.
2. Such a provision, although in a private or local law, incorporating a college,
is so germain to the primary object of the charter, as not to conflict with
that provision of the constitution, which declares, that no private or local
law shall embrace more than one subject, which shall be expressed in the
title.
CONSTRUCTION OF STATUTES.
1. Commissioners of highways, before opening a road, should give eight days'
preliminary notice; and twenty days' further notice should be given of an
appeal to the supervisors. Corley v. Kennedy, 143.
2. The supervisors should give thirty days' notice of the time they will meet to
hear the appeal; this notice to be given after the filing of the order in the
office of the town clerk. Ibid. 143.
3. The appeal may be by various persons at different times; but they should be
heard at the same time. Ibid. 143.
4. An act which exempts a railroad corporation from the duty of ringing a bell,
or blowing a whistle, as required by the thirty-eighth section of the general
railway act of 1849, may be repealed by another act, in amendment of the
charter of the company so exempted, and rejected by such company, so as
to render the company liable, for a breach of such duty. Galena and Chicago
Union R. R. Co. v. Appleby, 283.
5. The legislature may change remedies, but cannot make contracts for parties.
The law of 1861, in relation to mechanics' liens, will not save a lien; it
affects the original contract, which was beyond the power of the legislature.
Kinney v. Sherman, 521.
6. A provision in, or amendatory of an act incorporating a college, which pro-
hibits the sale of ardent spirits within a distance of four miles, although no
such object or subject is named in the title of the bill, is not unconstitu
tional. O'Leary v. County of Cook, 534.
7. Such a provision, although in a private or local law, incorporating a college,
is so germain to the primary object of the charter, as not to conflict with
that provision of the constitution, which declares, that no private or local
law shall embrace more than one subject, which shall be expressed in the
title. Ibid. 534.
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