Imagens das páginas
PDF
ePub

cate from some court of record of the county in which the applicant resides, of his good moral character.

70. Ordered, That the first and second Saturdays of each term be the days on which such examinations shall be had.

71. Ordered, That the committees heretofore appointed in the several grand divisions to examine applicants for such license, be, and the same are hereby discharged; and all rules for the appointment of such committees, are hereby rescinded.

72. Ordered, The licenses which may be granted after such examinations, shall, as at present provided, be issued by the clerk of the grand division in which the successful applicants shall reside.

73. Ordered, The four foregoing rules shall apply to the several grand divisions of the Supreme Court of this State, and shall take effect on the first day of July, 1865.

TIME FOR FILING RECORDS -PLACING CAUSES ON HEARING DOCKET.

74. Ordered, That hereafter, no case shall be placed on the court docket for hearing, unless the record is filed within the time now prescribed by law, or within the further time allowed by the court for filing the record, except in extraordinary cases, the court, upon special application, may order a cause to be placed on the hearing docket. Ordered further, that rule 46 be, and is hereby rescinded.

AN ACT to amend the law allowing appeals to the Supreme Court.

APPROVED February 16, 1865.

APPEALS, IN WHAT CASES THEY WILL LIE-CONDITION OF APPEAL BONDS, BY WHOM PRESCRIBED.

Sec. 1. Be it enacted, etc., That appeals shall be allowed to the Supreme Court from all decrees, judgments and orders of inferior courts, from which writs of error might be lawfully prosecuted; and, in granting appeals, inferior courts shall direct the condition of appeal bonds, with reference to the character of the decree, judgment or order appealed from.

TIME OF FILING RECORDS IN THE SUPREME COURT.

Sec. 2. Authenticated copies of records of decrees, judgments and orders appealed from, shall be filed in the office of the clerk of the Supreme Court, on or before the second day of the succeeding term of said court, provided twenty days shall have intervened between the date of the decree, judgment or order appealed from and the sitting of said Supreme Court; but if ten days, and not twenty, shall have intervened, as aforesaid, then the

record shall be filed, as aforesaid, on or before the tenth day of said succeding term.

DAMAGES ON DISMISSAL OF APPEALS.

Sec. 3. When appeals from decrees, judgments or orders for the recovery of money, and dismissed by the Supreme Court for want of prosecution, or for failing to file authenticated copies of records, as required by law, the court shall enter judgment against the appellant for not less than five nor more than ten per cent damages on the amount recovered in the inferior court; for the collection of which the appellee shall be entitled to execution as on other judgments.

Sec. 4. This act shall take effect and be in force from and after its passage.

[ocr errors][merged small][ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small]

1. AUCTION SALES-preventing competition. After an injunction had issued restraining a mortgagee from selling a portion of the premises under the power of sale contained in the mortgage, the mortgagee and the party procuring the injunction made a secret agreement that the sale should be made, the latter should bid off the premises at a given sum, and the injunction suit should be dismissed. The sale took place, the injunction being still pending, and the premises were bid off as agreed upon. Held, that such an agreement, being secret, tended to prevent competition in bidding, and the sale could be avoided by one holding the fee simple title subsequent to the mortgage, who desired to redeem.

2.

ASSIGNMENT- ·note and mortgage. When a note which is secured by mortgage, is transferred, the mortgage as an incident follows it, and enures to the benefit of the holder of the note. And whether the transfer of the note is legal or equitable, the effect is the same.

3. AUCTION SALES who may be purchaser. A mortgagee to whom a power of sale is given in the mortgage cannot become a purchaser at a sale made by virtue of such power.

[blocks in formation]

Mapps v. Sharpe & Company.

4. And where the note to secure which the mortgage was given, is transferred by the payee to a firm of which he had become a member, all the members of the firm are equally prohibited from purchasing at a sale made by virtue of the power given in the mortgage.

5. It is a universal rule that the officer or person charged with the sale of property at auction, whether by authority of law, or under a power derived from the owner, is prohibited from becoming the purchaser.

6. SUCH SALES VOIDABLE. Where such a purchase has been made, it is not necessary to show that wrong has resulted, as the law will not recognize such a bidder as capable of becoming a purchaser.

7. USURY-forfeiture at law and in equity. Under the statute, when usury is reserved, the creditor forfeits the whole interest taken or reserved, and is allowed to recover the principal sum only.

8. In equity, however, the rule has prevailed, when usury is relied upon as a defense, that it will only be allowed to the extent of the excess beyond the legal rate. In that forum, such excess only is allowed to be relieved against, as the party seeking equity must do equity.

WRIT OF ERROR to the Circuit Court of Will county; the Hon. JESSE O. NORTON, Judge, presiding.

This was a suit in chancery instituted in the Circuit Court by Thomas A. Mapps, the plaintiff in error, against Bernhard U. Sharpe, George N. Sharpe and George Allen.

It appears from the bill, answers and testimony in the case, that on the 24th day of April, 1857, one John G. Royal, being the owner in fee of the south-east quarter of section four, in township thirty-four, north of range nine, east of the third principal meridian, situated in Will county, executed a mortgage upon these premises to Egbert H. White, with a power of sale in the mortgagee, to secure the payment of the sum of one thousand dollars.

On the 22nd day of the same month, two days prior to the execution of the mortgage to White, Royal and his wife conveyed by deed with covenants of warranty, the north half of the same quarter section to Mapps, the complainant, for the consideration of nine hundred dollars. The deed to Mapps was not presented for record until some time in May following, and not until after the mortgage to White had been recorded.

« AnteriorContinuar »