CHANCERY. Continued.
TECHNICAL DEFECTS IN PLEADING.
7. How questioned. Technical objections to a bill in chancery, to be
available at any time, can only be raised by demurrer. McCloskey v.
McCormick et al. 336.
8. Of a decree providing against a contingent right of dower. In a pro-
ceeding to compel the specific performance of a contract for the sale and
conveyance of land, the court decreed a conveyance, upon payment by the
purchaser of $880, the amount due on the contract, and that in case the
wife of the defendant should refuse to join in the deed, the purchaser
might retain $250 out of the purchase money. Held, that this provision
in the decree, authorizing the purchaser to retain $250 out of the pur-
chase money, as an indemnity against the contingent right of dower, was
erroneous, there being no grounds upon which to base such judicial
action. Humphrey v. Clement, 299.
9. A contract for the sale and conveyance of lands, in order to protect
the purchaser against the consequences resulting from a refusal of the
wife of the vendor to join in the deed, should specify what proportion of
the purchase money he may retain, in the event the wife should refuse to
release dower. In the absence of such provision the purchaser must take
his deed and rely upon its covenants. Ibid. 299.
10. A mere naked verbal promise by a party to convey lands, supported
by no consideration, if not afterward executed by a conveyance, confers
no title, either legal or equitable, in the premises. Holmes v. Holmes, 168.
COMPELLING A RELEASE OF TITLE.
11. A party having a pre-emption right to a certain tract of land, under
the pre-emption clause of the act incorporating the Illinois Central Rail-
road company, died, leaving several heirs. A party purchased the inter-
ests of all the heirs but one, and, paying the purchase money to the com
pany for the entire tract, obtained a deed therefor from the company,
through a commissioner appointed under a decree for that purpose. It
was held, that the heir who had not sold her interest under the pre-emp-
tion, could maintain a bill to compel the party holding the deed from the
commissioner, to release and convey to her, her interest in the land, upon
payment of her proportionate share of the purchase money with interest.
Lester et al. v. White's Heirs, 464.
12. Time should be allowed therefor. Where a defendant to a bill in
chancery, was ruled to answer within a certain time, and after the expira-
tion of the rule, filed his answer, and afterward obtained leave to amend
it, but, instead thereof, filed a cross-bill, and took a rule upon complainant
in the original bill, to answer instanter, and at the same time, and in the
same order, took a pro confesso decree upon his cross-bill, granting him
affirmative relief,-held, that the complainant should have had a reason-
able time given him, to answer the cross-bill. That under such circum-
CHANCERY. ANSWER TO CROSS-BILL. Continued.
stances, to allow defendant to take a pro confesso decree instanter, was
irregular and unreasonable. Holbrook v. Prettyman et al. 311.
SWORN ANSWERS IN CHANCERY.
13. Degree of proof required to overcome them. Where an answer to a
bill in chancery is required to be made under oath, and is responsive to
the allegations of the bill, it must be received as true, unless disproved
by the evidence of two witnesses, or that of one and corroborating evi-
dence amounting to the evidence of another, such answer being evidence
of a higher grade than that of a single witness. Blow et al. v. Gage
et al. 208.
MOTION TO DISMISS BEFORE ANSWER.
14. Although irregular and unknown to correct chancery practice, a
motion to dismiss a bill, interposed before answer, and acted upon by the
court, must be held to have the same effect as a demurrer. Vieley v.
Thompson et al. 9.
DISMISSING BILL WITHOUT PREJUDICE.
15. When proper. Where a bill in chancery is not framed on a basis
such as will entitle the complainant to the relief he seeks, but it is obvious
to the court that he has equities which under a proper bill he could
enforce, the true practice is to dismiss his bill without prejudice. Sheldon
v. Harding et al. 68.
16. Pending leave to amend an answer. Where a defendant in chancery
has obtained leave to file an amended answer, the complainant is under
no obligation to file a replication to the original answer pending such
leave and the amended answer not filed. Holbrook v. Prettyman et al. 311.
EXCEPTIONS TO MASTER'S REPORT.
17. Whether necessary to be taken. Where it appears from the record,
that an improper decree has been rendered, it will be reversed, although
objections may not have been interposed on the coming in of the master's
report. Strang et al. v. Allen, 429.
PRESERVATION OF EVIDENCE.
18. Under our practice, the evidence in chancery proceedings should be
preserved in the record. Quigley et al. v. Roberts, 503.
By a junior incumbrancer or his assignee from the assignee of a prior
mortgage. See MORTGAGES, 23, 24, 25.
Statement of account on bill to redeem. See same title, 26 to 29.
ENFORCING A TRUST. See LIEN, 2.
Reforming instrument therefor. See MISTAKE.
DISSOLUTION OF PARTNERSHIP.
When it will be decreed. See PARTNERSHIP, 1, 2, 3.
CHANCERY. Continued.
RECEIVER TO COLLECT DEBTS.
When appointed, in a suit for a dissolution of partnership. See
TRIAL BY JURY IN CHANCERY.
On a question of alleged insanity. See INSANITY, 1.
OF SALES OF LAND EN MASSE.
Whether they will be set aside. See SALES, 18.
OF A PRE-EMPTION RIGHT. See PRE-EMPTION, 1.
COLLECTOR'S NOTICE.
IN THE CITY OF CHICAGO. See TAXES, 15.
CONDEMNATION OF LAND.
FOR PUBLIC USE.
Its effect on the title. See DOWER, 3.
CONDITION PRECEDENT. See CONTRACTS, 7.
CONFESSION OF JUDGMENT. See JUDGMENTS, 4, 5, 6.
CONFLICT OF LAWS.
POWER OF CONGRESS.
1. Over rights in the States. Congress has no power to interfere with
the remedies furnished by State laws, through State tribunals, for the
injury of one citizen by another. Johnson v. Jones et al. 144.
2. So where a person was illegally deprived of his liberty, under an
order of the President of the United States, the remedy given by the
laws of the State, in favor of the injured party against the person making
the arrest, cannot be taken away by any subsequent act of congress.
Ibid. 144.
JUDGMENTS IN OTHER STATES.
When against an administrator—of their footing in this State. See ADMIN-
ISTRATION OF ESTATES, 6, 7.
ADMINISTRATION OF ESTATES.
Rights of citizens of other States. See same title, 8.
CONSIDERATION.
QUITCLAIM DEED.
Sufficient consideration to support a contract. A quitclaim deed for
land, without reference to the character of title, is, in the absence of fraud,
a sufficient consideration to support a contract. Money paid for such a
conveyance cannot be recovered back, or a plea of failure of consideration
maintained to a note given for such a conveyance, unless fraud has been
practiced on the grantee. Sheldon v. Harding et al. 68.
APPEALS FROM BOARD OF SUPERVISORS.
1. The act of 1861, allowing appeals from the decision of a board of
supervisors to the Circuit Court, in the matter of the equalization of assess-
ments for purposes of taxation, is constitutional. Board of Supervisors of
Bureau County v. The Chicago, Burlington and Quincy Railroad Co. 229.
OF THE RULE OF CONSTRUCTION.
2. This court has repeatedly declared, that it will not pronounce a
statute unconstitutional, except in a case where the violation is plain and
palpable. Ibid. 229.
Power of the legislature to authorize the assessment of benefits. See SPECIAL
ASSESSMENTS, 1.
PENALTY FOR NON-PAYMENT OF TAXES.
Power of the legislature in that regard. See TAXES, 18, 19.
1. Within the meaning of the act of 1861, in relation to sending process
to foreign county. See PRACTICE, 9, 10, 11.
2. Need not be performed in installments. Where a railroad company
agrees to furnish six cars, for an excursion, upon certain notice to be given,
and there was a request for only four cars, a failure to furnish the smaller
number was no breach of the contract. The company had a right to per-
form the contract as an entirety, or could not be required to perform it at
all. Illinois Central Railroad Company v. Demars, 292.
WHERE NO TIME OF PAYMENT SPECIFIED.
3. When due. Where time of payment is not specified in a contract,
the law will presume that it was intended by the parties to be paid in a
reasonable time. Niemeyer v. Brooks, 77.
4. Necessity of a demand in such case. And in such case, where a
reasonable time has elapsed and payment has not been made, it is not
necessary to make a demand before bringing suit. Ibid. 77.
CONTRACTS PAYABLE IN GOLD.
5. Are payable in legal tender notes. A contract for the payment of a
certain sum of money "in gold," may be discharged by the payment of the
same sum in legal tender notes. This rule applies as well in a suit in equity
for a specific performance, as in an action at law upon the contract. Hum-
phrey v. Clement, 299.
EXCUSE FOR NON-PERFORMANCE.
6. On a sale of grain— tender unavailing. Where a party through his
agent purchases grain to be delivered at a future day, and he fails to fur-
nish his agent with means to pay for it, and it is proved that the property
would not have been received if a tender had been made, and that the
CONTRACTS. EXCUSE FOR NON-PERFORMANCE. Continued.
grain was ready for delivery under the agreement and offered to be
delivered, and it was refused, then there was a right of recovery. Mc-
Pherson v. Neison et al. 124.
DEPENDENT AND INDEPENDENT COVENANTS.
7. What is a condition precedent- and of the necessary averments in
respect thereto. Where an agreement under seal contains a number of
covenants to be performed by one party, and the other party, in considera-
tion of such covenants, agrees to perform an act, the first are precedent
covenants, and their performance must be averred and proved to warrant
a recovery on the latter and dependent covenant. Hoy v. Hoy, 469.
RESCISSION OF CONTRACTS.
8. What constitutes. Jones, the owner of certain lands which were
incumbered by deeds of trust, conveyed the same to one Lloyd, subject to
all recorded mortgages, for which Lloyd executed to him his note for
$4,200. Subsequently Jones and Lloyd effected a settlement with the
owner of the incumbrances, by which Jones and Lloyd and wife quit-
claimed the premises to the mortgagee, Lloyd, and the mortgagee at the
same time executing a contract whereby the latter agreed to convey the
lands to Lloyd upon the payment of $2,330.30, the amount found to be
due to the mortgagee upon such settlement, in ten years at ten per cent
interest. Held, that this transaction between the parties must be regarded
as a rescission of the sale of the premises by Jones to Lloyd. Jones v.
Miller, 181.
9. Whether notice required — and of the manner of exercising the right.
In an action of forcible entry and detainer by vendor against vendee,
under a contract making time of the essence of the agreement, and giving
vendor the right to rescind and hold vendee as tenant at will in case of
failure to make payments as stipulated, it appeared that default was made
and notice of rescission served on vendee's wife during his absence in the
military service of the government, as a volunteer soldier; the court
instructed the jury that the contract could not be rescinded except by per-
sonal notice, and that notice upon vendee's wife while he was thus absent
was not sufficient; held, that the instructions were erroneous; that the
contract required no personal notice of rescission to be served on vendee,
and that the right of rescission, being reserved by the vendor to be exer-
cised at his option in case of default, could be asserted by the vendor in any
manner manifesting an intention to rescind, and that the absence of vendee,
however meritorious, did not change the terms of the contract or furnish
immunity from the consequence of its violation. Murray v. Schlosser, 14.
10. By acts of the parties. As a general rule, a breach of contract by
one party absolves the other from a performance of its terms and condi-
tions. When such breach occurs, the other party is at liberty to rescind
the agreement. Graham et al. v. Holloway, 385.
11. As to the mode of rescission. The party having the right to rescind
may manifest his intention to do so in a variety of modes; one of which
is by suing, and recovering damages sustained by the breach. Ibid. 385.
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