CONTRACTS. RESCISSION OF CONTRACTS.
12. Effect of rescission. And where a party elects to rescind by suing and recovering for a breach of the contract, he cannot afterward insist upon the performance of any of its conditions, unless the contract should be renewed. Graham et al. v. Holloway, 385.
RENEWAL AFTER RESCISSION.
13. The contract may be renewed. The contract may be renewed after such a rescission, either by an express agreement of the parties, or by acts which show an intention to give it new force and effect. Ibid. 385.
14. Relations of the parties after such renewal. But if a contract should be thus revived after having been rescinded by the recovery of a judg ment for a breach of its conditions, the party who had rescinded cannot enjoy the fruits of his judgment and also insist upon the performance of the contract, he cannot hold the two-fold and antagonistic position of a party to the contract, entitled to have its provisions executed, and a judg- ment creditor, whose rights as such are based upon a rescission of that contract. Ibid. 385.
15. So where a purchaser of land from one who held under a contract of purchase, having paid his purchase money, sued and recovered a judg. ment against his vendor for the money paid and interest, as damages for non-compliance of such vendor with his contract to convey, the recovery of such judgment operated as a rescission of the contract; and upon the original vendor filing his bill to subject the land to his lien for unpaid purchase money due from his vendee, such second purchaser who had recovered the judgment, filed his cross bill asserting his rights as a pur- chaser, to the fee in the land after such prior vendor's lien was satisfied, and a decree was rendered recognizing him in that position, and at the sale under that decree he became the purchaser for the sum remaining due the original vendor, which was less than the amount of his judgment, and paid the money. Afterward, upon his attempting to collect his judg. ment, it was held, that, having assumed the position of a purchaser in his cross-bill, and obtained relief as such, he abandoned his position as a judg. ment creditor, and that, upon being reimbursed the amount he had bid at the sale to satisfy the prior vendor's lien, he must enter his judgment satisfied. Ibid. 385.
AUTHORITY OF AGENT TO RESCIND.
16. Presumption. See AGENCY, 5.
CONSTRUCTION OF CONTRACTS.
17. In giving a construction to a contract, the question is: What was the bargain, by a fair and reasonable construction of the words and acts of the parties, and not what was the secret intent or understanding of either of them. Nichols v. Mercer, 250.
18. Construction of a release of one of several co-obligors, as to its effect on the others. See RELEASE, 1 to 6.
19. Construction of a lease as to the length of the term. See LANDLORD AND TENANT, 10.
CONTRACTS. CONTRACTS CONSTRUED.
20. Covenant by a mortgagee to reconvey-nature of the title to be recon- veyed. See MORTGAGES, 6.
21. Ex turpi causa non oritur actio. See ACTIONS, 1, 2.
CONVEYANCES.
WHEN A DEED TAKES EFFECT.
1. A deed takes effect from its delivery. Blake v. Fash, 302.
2. Presumption. The presumption is, that a deed was delivered on the day of its date. Ibid. 302.
Is a sufficient consideration to support a contract. See CONSIDER- ATION, 1.
OF LAND OF A MARRIED WOMAN.
The husband must join in the conveyance thereof. See MARRIED WOMEN, 1.
OF A PRE-EMPTION RIGHT.
Mode of transfer thereof. See PRE-EMPTION, 1.
CORPORATIONS.
MUNICIPAL CORPORATIONS.
1. Of their duty and liability in respect to keeping their highways in safe condition. See HIGHWAYS, 1, 2, 3, 4.
2. Authority of a town to prevent the establishment of a cemetery, under a power" to abate and remove nuisances." See NUISANCES, 1.
COUNTY COURT OF LA SALLE.
OF ITS JURISDICTION.
As extended by the act of 1865. See JURISDICTION, 1.
Franklin county remained therein, under act of 1867. See JUDICIAL CIRCUITS.
COVENANTS FOR TITLE.
COVENANT BY MORTGAGEE TO RECONVEY.
Nature of the title to be reconveyed. See MORTGAGES, 6.
JURY MUST BE IN CHARGE OF SWORN OFFICER.
1. The 189th section of the Criminal Code requires, that the officer having charge of a jury, when they retire to consider of their verdict, shall be sworn to attend them to some private place, and to the best of his ability to keep them together without meat or drink, water excepted, unless by leave of the court, until they shall have agreed upon their
JURY MUST BE IN CHARGE OF SWORN OFFICER.
verdict, nor suffer other persons to speak with them, and when they agree, to bring them into court. Held, that it is error, in a case of felony, to omit to so swear the officer into whose charge the jury are placed. Lewis v. The People, 452.
2. The 190th section declares, that, if any such officer shall knowingly violate his oath, he shall be punished for a contempt of court by fine or imprisonment. These provisions were adopted to secure a fair and impartial trial to the accused, as he not unfrequently is in prison at the time, and is unable to guard his rights. It is the duty of courts to strictly guard human life and liberty from being sacrificed by public pre- judice or excitement. Outside influences should be kept from the jury trying such causes. These provisions of the statute are clear, explicit and peremptory, and cannot be omitted, and when refused it is error. Ibid. 452.
3. When ground for reversal. If a jury, in a capital case, during the progress of the trial, separate without the authority of the court, their verdict will be set aside, where it appears, that, in consequence of such separation, they were exposed to improper influences, which might have operated to the prejudice of the accused in such manner as to affect their verdict. Russell et al. v. The People, 508.
4. After they have sealed their verdict and separated. See JURY, 1 to 4.
ESTATE AS TENANT BY THE CURTESY.
Effect of act of 1861 on that estate. See MARRIED WOMEN, 2, 3.
1. In trespass for an illegal arrest and false imprisonment. In an action of trespass against a civil officer for illegally arresting and imprisoning the plaintiff, while it is no bar to the action for the defendant to plead that the arrest was made under the order of the President, in time of war, for alleged disloyal practices of the plaintiff, yet such alleged facts may be proved in mitigation of vindictive or exemplary damages, and for the purpose of rebutting the presumption of malice. Johnson v. Jones et al. 144. Mr. Justice BREESE dissenting.
2. Whether recoverable. See MEASURE OF DAMAGES, 1. NEGLECT TO ASSIGN DOWER.
3. When the widow entitled to damages. See DOWER, 5, 6, 7. 4. Measure of damages in such case. See same title, 8, 9, 10.
5. Measure of damages, generally. See MEASURE OF DAMAGES.
DEATH OF ONE OF SEVERAL PLAINTIFFS.
Whether the suit will abate thereby. See ABATEMENT, 1, 2.
WHEN THE ACTION WILL LIE, AND WHEN NOT.
1. Where a party covenants to pay a specified sum of money, annually, for ten years, on a specific day in each year, debt is the proper remedy, notwithstanding the agreement contains other covenants, the performance of which are precedent to the payment of the money. Hoy v. Hoy, 470.
2. The action of debt lies on a lease for the recovery of rent in arrear, on an annuity deed for the recovery of the annuity, and on a mortgage to recover the mortgage debt. Ibid. 470.
3. The action of debt will not lie to recover on a bond for the payment of a sum of money payable by installments, until the last is due; but it will lie to recover money payable at different times, for a specified period of time. Ibid. 470.
DEBTOR AND CREDITOR.
A DEBTOR MAY PREFER HIS CREDITOR.
Where a debtor who is insolvent has property in his possession, a portion of which was purchased with the money of another, the latter has an equitable right to be protected as a creditor, and to be preferred by the debtor over other creditors not so situated. Hart v. Wing, 142.
AS EVIDENCE. See EVIDENCE, 14, 15.
1. When set aside. Where a decree has been rendered against a minor, without a guardian, or appearance by attorney or otherwise, it will be set aside on proper motion made, and the party will be allowed to make any defense to which he is entitled. Hall et al. v. Davis, 494.
2. Cannot be set aside on motion of a person not made a party to the suit. A decree rendered in a suit will not be set aside on the motion of a person who was not made a party to the proceeding. But, where the decree has been set aside on motion of a party entitled to it, such person may then file his cross-bill and have his rights in the case determined. Ibid. 494. MUST CONFORM TO THE ALLEGATIONS. See ALLEGATIONS AND DECREE, 1 to 4.
DEDICATION.
EVIDENCE THEREOF.
Admissibility of a map or plat of a town. See EVIDENCE, 6.
DEED OF TRUST.
OF AN ENTRY BY THE TRUSTEE.
Whether necessary. Under a trust-deed containing a provision to the effect that it should be lawful for the grantee in case of default, to enter in and upon the premises conveyed, and to sell and dispose of the same at auction, after having given notice, etc., it is not necessary, in order that a legal sale of the premises may be had by the trustee, that an entry or demand for possession should first be made by him. Entry in such case is not a condition precedent to the making of the sale. Kiley et al. v. Brewster et al. 186.
DELIVERY OF CUMBROUS ARTICLES.
What is sufficient. An actual removal of the entire mass of corn in a crib, or of any other cumbrous article, is not necessary to constitute a delivery and change of possession. Hart v. Wing, 141.
Effect of delivery to a carrier, in passing title. See SALES, 1.
SALE FOR PAYMENT ON DELIVERY.
What will excuse the vendor for non-delivery. See SALES, 8.
ON SALE OF PROPERTY TO A FIRM.
Effect of delivery to one of the firm. See SALES, 13.
DELIVERY OF A DEED. See CONVEYANCES, 2.
DEMAND.
DEMAND OF A DEBT.
Where a contract specifies no time of payment—whether demand neces sary. See CONTRACTS, 4.
DEMAND FOR DOWER.
What constitutes. See DOWER, 6.
DEMURRER.
JOINDER IN DEMURRER.
Not necessary. See PLEADING, 6.
WAIVER OF DEMURRER.
By pleading over. See PRACTICE, 7.
DEMURRER IN CHANCERY.
When motion to dismiss will answer the same purpose. See CHAN- CERY, 14.
DEPENDENT AND INDEPENDENT COVENANTS. See CONTRACTS, 7. DISTRESS FOR RENT.
WHEN ALLOWABLE. See LANDLORD AND TENANT, 11.
1. The widow is entitled to her dower immediately upon the death of her husband. Bonner et al. v. Peterson, 254.
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