to the 1st day of May, 1862. W. then assigned the original to R. Held, that the original lease was to be construed as expiring at 12 o'clock M. of the 1st of May, 1862, and the sub-lease as expiring at 12 o'clock at night of the 30th of April, 1862. And that consequently there was a period of time between the end of the 30th of April and 12 M. of the 1st of May, during which R. had the right of re-entry and of possession of the premises: Id. Jurisdiction Costs on Dismissal — Injunction-Undertaking.—The want of jurisdiction in the Court over the subject-matter of the action will not prevent the defendant from recovering costs, on the dismissal of the complaint; nor will it deprive the defendant of the right to damages upon the injunction-undertaking, when the injunction is dissolved: The Cumberland Coal and Iron Co. vs. The Hoffman Steam Coal Co. The undertaking given on the issuing of an injunction is for the benefit of all the defendants that are enjoined, whether served or not. Hence, if a party, without any service of the summons or injunction upon him, obeys the injunction, he may, without any appearance, have a reference to ascertain the amount of damages sustained by him, by reason of the injunction: Id. Guardians-Their Commissions.-It is not an inflexible rule that the commissions of a guardian cover everything which can be allowed to him for his services respecting the estate of his ward: Morgan vs. Morgan. The rule is not so narrow and restricted that it denies all compensation to a guardian for services of a personal or professional nature, rendered by him for the benefit of the ward, and in doing which he has bestowed personal labor and incurred actual expenses, and which have been usefu. and serviceable to the estate: Id. Promissory Notes.-Where, after two persons had signed a promissory note, not negotiable, a third person wrote his name across the back, and it was thereupon transferred to the payee, who paid value for it: Held, that the person so writing his name upon the back of the note was not an indorser, nor a guarantor, but was a joint promissor with the other signers; the precise locality of his signature upon the note being immaterial: Richards vs. Warring. Landlord and Tenant-Eviction-Apportionment of Rent-Recoupment.—Where a lessee has been evicted from a portion of the privileges granted by the lease, by a paramount title in a stranger, he is discharged from the rent pro tanto, and is entitled to an apportionment, by which rent shall be paid only in respect to the residue: Carter vs. Burr. But in an action for rent, the lessee is not entitled to recoup the value of the lease over and above the rent, nor for rents he might have received, or for special damages incurred by reason of being evicted from a portion of the privileges granted: Id. A lease in fee or in perpetuity is a "L conveyance of real estate," within the provisions of the statute forbidding the implication of covenants; and if it contains no covenants of seisin, warranty, or quiet enjoyment, none can be implied: Id. Sheriff--Liability for neglecting to return an Execution-Measure of Damages. Where a sheriff neglects to collect and return an execution within the time prescribed by law, he is liable to the plaintiff for the damages sustained by his neglect; unless he can show that the defendant in the execution had no property out of which he could have collected the debt: Bowman vs. Cornell, Sheriff, &c. The action against the sheriff, in such a case, is founded upon his neg lect to return the execution, and the amount of the execution is the measure of damages: Id. When a right of action has accrued against a sheriff, for neglecting to return an execution, such right cannot be divested by an appeal being taken from the judgment by the defendant therein, even though the appeal be brought prior to the commencement of the action: Id. Recognisance in a Criminal Case.—A recognisance, taken in a criminal case, conditioned that the prisoner shall appear at the next Court of Oyer and Terminer, to answer to an indictment; that he shall "not depart without leave of the Court;" and that he shall abide its order and decision;" by its terms requires his appearance on the first day of term, and de die in diem during its continuance, unless discharged by the Court: The People vs. McCoy. If the prisoner appears in Court, answers when called, and, without having been surrendered by his bail or ordered into the custody of the sheriff, enters upon his trial, but before the same is finished he departs from the Court without leave, and does not return again to abide the order and decision of the Court, his recognisance is forfeited: Id. A recognisance returnable "at the next Court of Oyer and Terminer," is not void for uncertainty. The next Court of Oyer and Terminer in the county where the indictment was found and is triable, and in which the recognisance was taken, will be deemed the one intended: Id. NOTICES OF NEW BOOKS. REPORTS OF CASES DETERMINed in the SupREME COURT OF THE STATE OF ILLINOIS, at April Term, 1862. By E. PECK, Counsellor at Law. Volume XXVIII. Chicago: E. B. Myers. 1863. We have had occasion to state the merits of these reports so frequently, of late, that it will not be necessary to repeat what we have before said. This volume has a less number of pages than most of the preceding volumes of Mr. Peck, but it contains, if we have not been misled by our hasty examination, an unusual proportion of important questions, most of which are decided, as we should judge, in conformity with established precedents. To this, however, there are some few marked exceptions. In the case of Harris vs. Mills, p. 44, it is decided that where a promissory note is secured by mortgage, and has become barred by the Statute of Limitations, that no foreclosure of the equity of redemption will be allowed in a court of equity, unless the mortgage contains a covenant for the repayment of the money. This is at variance with several decisions of the highest respectability in different states, and is not, so far as we now recollect, supported by any authority, except the dictum of Mr. Justice SUTHERLAND in Jackson vs. Sackett, 7 Wendell R. 94, which was never followed in that state. The cases where the contrary doctrine is maintained, so far as now in mind, are Belknapp vs. Gleason, 11 Conn. R. 160, 166; Aegex vs. Pruyn, 7 Paige 465; Reid vs. Shepley, 6 Vt. Rep. 602. We should, without examination, have said that the rate of interest allowable, for the non-payment of money at the time it fell due, was the legal rate of interest of the place of payment, independent of all special contract, as to the rate of interest before the time of payment, where the law allows the parties to stipulate for a higher rate of interest than the common rate. But in Angre vs. McDaniel, p. 201, it was decided that the stipulated rate will continue until judgment. The decision in Stone vs. Atwood, p. 30, that a court of equity wil correct a mistake in an award of arbitrators so as to make it what the arbitrators intended it should be, strikes us as stating the general principle too broadly. In the case before the court the real meaning of the award was apparent from the papers in the case, so that the result was matter of construction merely. But we should hesitate about applying that principle to cases where the intent of the arbitrators was to be made out by extraneous evidence. In such cases we should not be willing to allow that a court of equity could reform the award and make it conform to the alleged, or proved, intent of the arbitrators. The chief ground of the jurisdiction for reforming contracts, in courts of equity, is not the mistake in making such contracts, but the fraud in the party in attempting to enforce them; and that seems in a measure to be wanting in the case of awards of arbitrators. It is unquestionable that a mistaken award may be set aside in a court of equity; but, without examining precedents, we could not subscribe to the doctrine of the dictum of this case, that after setting aside the mistaken award, a court of equity might set up the award intended to have been made. The arbitrators must make their own award, and not a court of equity, as it seems to us. This volume contains many important decisions in regard to the duties and liabilities of railway companies, the powers and duties of courts of equity, and as to the duties arising from commercial guarantees and other commercial paper. It would be impossible to refer to even the most important of the questions here determined. I. F. R. THE STATUTES AT LARGE, TREATIES, AND PROCLAMATIONS of the United STATES OF AMERICA, from December 5, 1859, to March 3, 1863, arranged in chronological order, and carefully collated with the originals at Washington. With references to the matter of each act and to the subsequent acts on the same subject. Edited by GEORGE P. SANGER, Counsellor at Law. Volume XII. Boston: Little, Brown & Co. 1863. This volume, just issued by this well-known law-publishing house, and done up in their usual neat and thorough style of law-book making, is before us. It will be found indispensable to those who have availed themselves of the former volumes of the work, which is regarded as the only reliable source of learning the true state of the statute law of Congress, with convenient references to the decisions of the courts in regard to them. This edition of the Acts of Congress has been made authori tative in all the courts of the country by special act, and has become nearly indispensable in all well-ordered law libraries. I. F R. THE AMERICAN LAW REGISTER. OCTOBER, 1863. SALES AND TITLES UNDER DEEDS OF TRUST. (CONCLUDED.) Sec. 14. Who must execute the power-Acceptance and resignation of trusts— Death of trustee or donee of power. Sec. 15. When all the trustees must concur. Sec. 16. New trustees-How created-By chancery and under the power. Sec. 17. Liability of trustee for acts of co-trustee. Sec. 18. Compensation of trustees, and who liable therefor. Sec. 19. Trustees must act in person-What duties they may delegate. Sec. 20. Trustees must act in good faith for both parties-Diligence-Discretion. Secs. 21-22. Powers of sale strictly construed, and must be precisely conformed to. Sec. 23. Valid, subsisting power lies at basis of the purchaser's title. Sec. 24. Same subject-Exceptions in favor of purchasers under usurious con tracts. Secs. 25-28. Notices of sale-How published-Requisites as to time-PlaceDescription-Truthfulness-Effect of want of notice. Sec. 29. Adjournment of sale-Power to adjourn implied-How and when to be exercised. Sec. 30. Effect of sale in barring redemption-On subsequent incumbrancers- Sec. 31. Trustee's deed-Fraud-Consideration-Covenants-Grantee's title. VOL. XI.-45 (705) |