2. Time may be of the essence of a contract, and where that is made clearly to
appear, the court will enforce a forfeiture, unless there are circumstances which
will relieve against it. Steele et al. v. Biggs et al. 643.
TOWNS AND CITIES.
See CITIES. CITY OF CHICAGO.
1. Supervisors in the matter of opening a road, when they dismiss an appeal and
adjourn, without any intention of further action, cannot resume the subject,
unless notice of the time and place of a future meeting is served on the com-
missioners of highways, and on the three petitioners before served. Without
these, the action of the supervisors is void. Keech v. The People, 478.
2. When a road is located on a dividing line between townships, the commission-
ers of the towns must create road districts, and allot the expense, etc., of
keeping up the road among the districts, as nearly equal as possible, giving
each town an equal number of districts, each road district to be attached to
the town in which it lies. Without such an allotment, the road cannot be
opened; neither of the towns having power to act. Ibid. 478.
1. The corporators of a railroad are liable, if its lessees should commit a trespass.
So if the road is operated by contractors, while constructing it. Chicago and
Rock Island Railroad Co. v. Whipple, 105.
2. The fact that a justice of the peace renders a judgment in debt, in an action of
trespass, is no ground for a reversal-it is otherwise, if rendered in the Circuit
Court. Ibid. 105.
3. In an action of trespass against a railroad company, for the use of a right of
way, the proceedings of the company procuring the condemnation, are compe-
tent evidence, and are not to be impeached collaterally. All presumptions are
in favor of the regularity of the proceeding. Galena and Chicago Union Rail-
road Co. v. Pound et al. 399.
4. The service of the preliminary notice, was a question in the proceeding, and if
then adjudicated, cannot be attacked indirectly. Ibid. 399.
5. The same land sought to be condemned, must be described in the orders and
judgment of the person who condemns. Ibid. 399.
6. In an action of trespass for seizing personal property, there is no objection to
allowing interest on the value of the goods from the time they were taken
from the possession of the plaintiff. Bradley v. Geiselman, 494.
7. In an action of trespass, a plea which alleges that the defendant, as agent of
plaintiffs in execution, directed the marshal to levy on goods in the hands of
another than the defendant, because they had been fraudulently sold to him by
the defendant, is good, and not obnoxious to a demurrer. McNall v. Vehon,
1. Courts of equity will not assume jurisdiction to establish a trust in every case
where confidence has been reposed or credit given. Doyle et al. v. Murphy et ux.
2: Money delivered to a person to pay debts, which he converts to his own use,
does not enable the heirs of the party who repose confidence, to convert it into
a trust fund. Ibid. 502.
3. If a party abstracts securities not entrusted to him, and substitutes forged secu-
rities in their place, this does not create the relation of trustee, and cestui que
trust. Ibid. 502.
4. Where a testator bequeaths a debt due him, to a legatee, the legatee cannot
resort to a court of equity for its recovery. Ibid. 502.
5. Bills for a marshaling of assets are only entertained in cases where various
creditors claim equitable liens, in priority of others. As where one creditor
may resort to two funds, and another to but one. Ibid. 502.
6. A school trustee is a competent witness to prove the loss of a treasurer's bond,
although he may be a party to the suit. Holbrook v. Township Trustees, 539.
7. A trustee, without a stipulation to that effect, cannot claim compensation for
his services, but may claim for necessary expenditures in preservation or
management of the trust property. Constant v. Matteson, 546.
8. A solicitor's fee cannot be taxed as costs in a case. The discretion of a court
of chancery in awarding costs, must be confined to statutory allowances.
Ibid. 546.
9. Where a trustee is appointed by deed, with a provision that in case of his de-
cease or legal incapacity, that the chancellor shall be vested with all the trusts
and confidences reposed in the trustee named, the chancellor may appoint a
trustee, by virtue of his office, to execute the desire of the grantor, and the
right of the chancellor does not depend upon his acquiring jurisdiction over
the heirs and personal representatives of the cestui que trust. Morrison v.
Kelly, 610.
10. A cestui que trust has such an interest as will enable him to put a purchaser on
inquiry. Ibid. 610.
See WILLS AND TESTAMENTS, 3.
1. Parties or privies to an usurious transaction, have the right to avail themselves
of the defense. Safford et al. v. Vail, 327.
2. A party to a note as surety, afterwards becoming principal to another note,
covering the same with other indebtedness, with a different party, may set up
the defense of usury, to the first note. Ibid. 327.
3. A court of law has power to order the opening of a judgment rendered upon a
cognovit, where usury is alleged to constitute a part of the judgment, and
hear the parties; and reduce the amount or set the judgment aside. Fleming
et al. v. Jencks et al. 475.
4. 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 inter-
fered with. Earll v. Mitchell et al. 530.
5. A plea which properly avers the making of a note in Iowa, and that it was
tainted with usury by the laws of that State where the parties to it resided,
and with reference to the laws of which State it was executed, is good. But
if the penalty for usury, by the laws of Iowa, goes to the school fund, that part
of the law will not be executed. Barnes et al. v. Whittaker, 606.
1. Advantage cannot be taken on error, of a variance between the writ and declar-
ation, when the parties were regularly defaulted in the court below. Thompson
et al. v. Turner, 389.
2. Where a declaration only sets out an indorsement in substance, there is not any
variance if the declaration calls the indorsee R. Solon Craig, and the indorse-
ment R. S. Craig. Speer v. Craig, 433.
A party asking a change of venue, should give notice of his intention at the earliest
period. If the cause for the change is known in vacation, notice should be
given and the application should be made at chambers. Moss et al. v. John-
son, 633.
1. Where the evidence as to the persons who compose a copartnership is conflict-
ing, the verdict will not be disturbed. Smith v. Williams, 357.
2. The court may send a jury back under instructions, as to how to correct a ver-
dict. Ibid. 357.
3. A party cannot complain of an instruction, which favors himself. Ibid. 357.
See COURTS. SUPREME COURT.
Where goods are erroneously shipped to a fictitious person, and after remaining
unclaimed, are sold by the warehousemen, the surplus proceeds, after paying
charges, belong to the shipper. Boilvin et al. v. Moore et al 318.
When wheat is sold in the stack, there is an implied warranty that it is merchant-
able. Fish et al. v. Roseberry, 288.
See ACTION. EXECUTOR, 4, 5.
1. Where a will directs that the debts of the testator shall be paid out of the avails
of personal property unless other arrangements can be made; that a house
shall be built; that certain legacies shall be paid his children at their majority,
and for that purpose his executors may dispose of real estate; that his wife
should have the control of all his property, until the youngest child shall become
of lawful age, for the support, education and maintenance of the children;
and directs how the property shall be divided: Held, That after the payment
of the debts, and the reservation of sufficient estate to satisfy the specific lega-
cies, the residuum should be under the control of the wife, until the event should
occur, when, under the will, the remainder was to be distributed, and that the
wife received not in fee, but as trustee. In re Estate of Whitman, 511.
2. The wife has not even a life estate in the remainder, but only had the power to
control in the interim, before distribution was required, within the limit directed
by the will. Ibid. 511.
3. Should the wife attempt to abuse the trust, a court of equity would restrain
her, and compel a proper application of the estate. Ibid. 511.
4. Under such a will, the wife is not to account to the Probate Court, until the
time fixed by the will for the distribution of the estate. Ibid. 511.
5. Money received on the sale of land, after payment of the debts, and the specific
legacies due, after reserving enough for the other legacies, should be paid to
the widow. Ibid. 511.
1. The written memoranda, taken at the time a deceased witness testified, in a
suit between the same parties, may be read in evidence. The correctness of
such memoranda may be disputed, and the jury may pass upon it. Mineral
Point R. R. Co. v. Keep, 9.
2. If a party relies upon the promise of a witness to be present at a trial, he cannot
obtain a continuance if the witness does not attend. Day v. Gelston, 102.
3. An agent, acting under power of attorney, is a competent witness to prove that
his principal ratified a sale made by such agent. Head v. Bogue, 117.
4. The wife of a defendant in execution, is not a competent witness, on a trial of
right of property. Dexter v. Parkins, 143.
5. Declarations of a witness before he is called, do not disqualify him. The in-
terest of a witness in the event of the suit, should be established on his voir
dire, or by other testimony. Waughop v. Weeks et al. 350.
6. A vendor of goods with a warranty, is a competent witness, in an action between
his vendee and a judgment creditor. Warner v. Carlton, 415.
7. In an action by an indorsee against the indorser of a note, the drawer is a com-
petent witness to prove protest and notice. Any evidence which will satisfy
the jury of that fact, is sufficient. Eddy v. Peterson, 535.
8. A divorced woman is not a good witness where her former husband is a party.
Waddams v. Humphrey et al, 661.
A writ of error will not lie, while the case is pending in the court below. Oder v.
Putman, 38.
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