Boynton et al., impl., etc., v. Robb et al. Pampas, in said De Kalb county, in which said conveyance the said plaintiffs were the cestuis que trust, and that accordingly and in pursuance of said corrupt agreement, the said plaintiffs did forbear, or cause to be forborne, and day of payment given to the said old man Whitney for the space of one year, upon the debt and liability aforesaid, due from said Whitney to the said plaintiffs, and said Hiram E. Whitney did dismiss said bill and allow said injunction to be dissolved, and so these defendants say that the said order of the said Circuit Court, dismissing said bill and dissolving said injunction, was obtained by fraud by the said plaintiffs, and is void and of no effect by reason thereof, as to these defendants, and this they are ready to verify; wherefore they pray judgment," etc. "And for a further plea in this behalf, the defendants say actio non, because they say that on the 11th day of June, A. D. 1857, at Sycamore aforesaid, the said Whitney having good grounds for setting aside the judgment and restraining the collection thereof under executions issued thereon, which are in said declaration set forth, and being then and there a wholly irresponsible person, the said George A. Wood, the person for whose use and benefit this suit is brought, and in whom the equitable interest is, and then and there was, fraudulently combined and confederated with the said Whitney to defraud and injure these defendants in the premises, by procuring him to consent to a dismissal of said suit in chancery and dissolution of said injunction, thereby to render these defendants liable upon said bond for the payment of said judgments, and to that end, it was corruptly agreed between them without the knowledge or consent of these defendants, that if he, the said Whitney, would consent to dismiss his said bill and allow said injunction to be dissolved, that they would, among other things, forbear and extend the time of payment for one year after the same should become due and payable, to one William, father of the said Hiram E. Whitney, a certain debt due from the said William Whitney, the equitable or legal interest to which was then and there in the said George A. Wood; said debt was for the sum of $1,500, and which had fallen due on the 2nd day of June, A. D. 1857, and to secure the payment of which debt the said William Whitney had conveyed, in trust, to one William B. Hovey, the following described land and premises, situate in the county of De Kalb, and State of Illinois aforesaid, to wit: north half of the north-east quarter of section twenty-eight, in township forty north, range five east; also the north-east quarter of the north-west quarter of section twenty-three, in the same range; and that accordingly and in pursuance of said corrupt agreement, the said Wood did forbear, or cause to be Boynton et al., impl., etc., v. Robb et al. forborne, and day of payment given to said William Whitney, upon said debt and liability due from him as aforesaid, and said Hiram E. Whitney did dismiss said bill and allow said injunction to be dissolved, and so these defendants say that the said order of the said Circuit Court, dismissing said bill, was obtained by fraud, by the said Wood, and is void and of none effect by reason thereof, as to these defendants, and this they are ready to verify; wherefore they pray judgment," etc. A demurrer was sustained to these pleas. The law cannot allow parties to recover a judgment, who have become apparently entitled to it by the perpetration of such a fraud as is here confessed. It is the fraud of the plaintiff's below and not the fraud of the principal in the bond, of which the sureties have a right to complain. No matter from what motive the complainant in the injunction suit may have dismissed it, so as it was not brought about by improper inducements by the defendants in that suit, the sureties could have no cause to complain. The sureties took the risk that the complainant had good cause for the injunction, and that he would conduct it in good faith, but they did not undertake that the other parties would not corrupt and bribe him to dismiss a good cause of complaint. The complainant was himself irresponsible, so that a dissolution of the injunction could not hurt him very materially, while it would enable the judgment creditors to collect the amount of the judgment of the sureties. In this state of things they bribe the judgment debtor to dismiss his bill, to enable them to fix the liability upon the sureties. To allow such a fraud and conspiracy as this to triumph, shocks the moral sense of every upright mind, and would be a reproach to the law. Suppose the defendants in the injunction suit had bribed the complainant's attorney to dismiss the bill; suppose a party should conspire with and bribe an agent or partner of another, to do an act for his benefit, would not a court of law crush the attempt of the party to reap the benefit of his corrupt practices? If it would not, we confess to an ignorance of its principles and its spirit. The old and oft repeated principle, that a party shall not take advantage of his own wrong, applies here, or there never was a case for its proper application. We are satisfied the court below, in the hurry of the circuit business, did not fully understand the extent of the averments of these pleas. The judgment must be reversed and the cause remanded. Judgment reversed. BREESE, J. I do not concur in this opinion. The defendants, in neither of the pleas, allege any damage to them by reason of the agreement to dissolve the injunction, even if it were a corrupt Speer v. Cobb. agreement. And although a good cause for an injunction might once have existed, it does not follow, nor is it so alleged in the pleas, that it did exist at the time of the agreement to dismiss the bill. If the defendants were not damaged by the dismissal, and they do not aver they were, they should not be permitted to evade their just responsibility. THOMAS SPEER, Appellant, v. SILAS B. COBB, Appellee. APPEAL FROM COOK COUNTY COURT OF COMMON PLEAS. The payment of a part of a sum of money which is due, does not create an equity in favor of the payor, to entitle him to an indefinite delay, for the payment of the balance. ON October 9th, 1855, Harrison P. Heacox mortgaged a lot of ground in Chicago, to Silas B. Cobb, for $13,380, payable in installments: One for $3,880, payable in one year; another for $2,640, payable in two years; another for $2,480, payable in three years; another for $2,320, payable in four years; and the last for $2,160, payable in five years from the date of said mortgage respectively. The first note was paid. After the second note became due, Isaac Speer paid $1,500 to the said mortgagee, upon said second installment. After the execution of said mortgage, Isaac Speer became the owner of the property in question, and afterwards assigned the property in question, for the benefit of his creditors, to Thomas Speer, the complainant below and plaintiff in error here. The bill was filed to enjoin the sale of the property in question, for residue of the second installment. An injunction was granted, but upon the hearing the bill was dismissed. Thomas Speer appealed. The question presented by this record is, whether or not the payment of $1,500 upon the second installment, is a waiver of the forfeiture and power of sale, vested by the terms of the conditions aforesaid in the appellee. R. S. BLACKWELL, for Appellant. S. B. PERRY, for Appellee. Speer v. Cobb. CATON, C. J. The second note, for $2,640, fell due in October, 1857. A few days after its maturity, the complainant paid the defendant $1,500 on that note, and as he avers, Cobb agreed to postpone the balance of that note indefinitely. In the succeeding April, after six months delay on the balance of the note, Cobb published a notice that he would sell the premises in pursuance of a power of sale contained in the mortgage, to satisfy the balance due on that note, and also the amount due on the three other notes secured by the mortgage, which by its terms, were to mature upon the failure to pay any of the notes or the interest thereon, at the respective times when they should mature. this bill was filed to enjoin this sale, on the pretence of equity, arising on the fact of the payment of $1,500 on the second note, and the indefinite promise of forbearance of the balance due on that note. We confess ourselves unable to see any particular equity arising from either of these causes. There was nothing so extraordinarily meritorious in paying $1,500 on the 13th of October, when it was his duty to have paid $2,640 on the 9th of October. In ordinary dealings among ordinary men, the general conclusion would be that he had come far short of his moral, as well as legal duty, instead of having gone so far beyond his duty as to entitle him to particular consideration in a court of equity. Nay more, at the time he paid the $1,500, it was his duty to have paid not only the whole of the second, but also the three subsequent notes, which, by the terms of the contract, became due and payable on the failure to pay the second note when it matured. Thus far we cannot discover the extraordinary merit on which this equity is supposed to arise. Then is there anything in the promise alleged to have been made by Cobb, at the time he received the $1,500, that he would postpone the balance? This is the language of the bill. It alleges that the complainant "paid to the said Silas B. Cobb, upon said second note above recited, the sum of one thousand five hundred dollars, which said sum of money was then and there accepted and received by said Silas B. Cobb, in part satisfaction of the said last mentioned promissory note, and the said Silas B. Cobb, then and there, in consideration of said payment, and of the promises of the said Thomas Speer, to pay the residue of the said last mentioned note, the said Silas B. Cobb extended indefinitely the time of payment of said residue of said principal and interest." What then was the purport of this promise, waiving the question of consideration, and admitting it to be binding? He promised to extend it without defining the period to which he would extend it. It was equivalent to saying that he would extend it some time, but would reserve the right to himself to determine how long he would extend it. While he agreed to give some indul OTTAWA, Earll, use, etc., v. Mitchell et al. gence, he bound himself to no particular time. He certainly did not mean to say that he would extend the time forever. And if the time of extension was ever to terminate, he reserved the right to fix that time. It is like the case of Doyle v. Teas, 4 Scam. R. 202, where we held that a promise to pay "a certain sum was fulfilled by paying a nominal amount. It was equivalent to some money. So here. The most that can be made of this promise, was that he promised to give some time on the balance. He did so. He waited six months, and then having received no further payments, he commenced proceedings to foreclose his mortgage, and the delinquent debtor now insists that he has a right to have the proceedings stayed by a court of equity. The court below dissolved the injunction, and we think very properly. The decree must be affirmed. Decree affirmed. 22 530 46a 395 STRONG H. EARLL, for the use of Charles G. Patten, Plaintiff in Error, v. JAMES MITCHELL et al., Defendants in Error. ERROR TO STEPHENSON. The question of fairness in the purchase of bills of exchange, as to whether the transaction was one of fair business, or designed as a cloak for usury, having been left to the jury, under proper instructions, their finding will not be interfered with. THIS was an action for money had and received, brought by the plaintiff in error against the defendants in error, to recover back excess of usurious interest over the legal rate, alleged to have been taken by the defendants, of the plaintiff, during the years 1854, 1855 and 1856, and was tried by a jury, before SHELDON, Judge, at December term of Stephenson Circuit Court, A. D. 1858. The plaintiff declared on the common counts, for money had and received by the defendants to plaintiff's use. pleaded general issue-payment and set-off. Defendants It appeared that during a period of time extending from the 12th day of January, A. D. 1854, to the 29th day of March, A. D. 1856, Strong H. Earll was engaged in the business of buying and forwarding produce from Freeport, in Stephenson county, to Chicago, and during the same period, at the same place, the defendants were brokers, and were engaged in the |