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CONTRACTS. RESCISSION OF CONTRACTS. Continued.
12. Effect of rescission. And where a party elects to rescind by guing
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be thus revived after having been rescinded by the recovery of a judg.
ment for a breach of its conditions, the party who had rescinded cannot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. Continued.
20. Covenant by a mortgagee to reconvey—nature of the title to be recone
veyed. See MORTGAGES, 6.
OF ILLEGAL CONTRACTS.
21. Ex turpi causa non oritur actio. See ACTIONS, 1, 2.
WHEN A DEED TAKES EFFECT.
1. A deed takes effect from its delivery. Blake v. Fash, 302.
DELIVERY OF A DEED.
2. Presumption. The presumption is, that a deed was delivered on the
day of its date. Ibid. 302.
18 a sufficient consideration to support a contract. See CONSIDER-
OF LAND OF A MARRIED WOMAN.
The husband must join in the conveyance thereof. See MARRIED
OF A PRE-EMPTION RIGHT.
Mode of transfer thereof. See PRE-EMPTION, 1.
1. Of their duty and limbility in respect to keeping their highways in safe
condition. See HIGHWAYS, 1, 2, 3, 4.
2. Authority of a toron 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
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. Continued.
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.
SEPARATION OF JURY.
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.
OF RECALLING A JURY.
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.
MITIGATION OF DAMAGES.
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.
DECREE AGAINST INFANTS.
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.
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 &
crib, or of any other cumbrous article, is not necessary to constitute a
delivery and change of possession. Hart v. Wing, 141.
OF SALES ON AN ORDER.
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 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.
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.
DEPENDENT AND INDEPENDENT COVENANTS. See CONTRACTS, 7.
DISTRESS FOR RENT.
WHEN ALLOWABLE. See LANDLORD AND TENANT, 11.
WHEN THE RIGHT ACCRUES.
1. The widow is entitled to her dower immediately upon the death of
her husband. Bonner et al. v. Peterson, 254.