CLERKS. Continued.
OF THEIR POWERS.
2. Cannot perform judicial acts. The clerks, being only ministerial officers,
cannot be authorized to perform a judicial act, such as rendering a judgment
by default in vacation. Hall v. Marks, 363.
3. May enter judgment by confession. Such a case is not similar to, nor does
it depend upon the power of the clerk to record a judgment confessed in vaca-
tion. Ibid. 364.
OF THE GOOD FAITH REQUIRED.
And the presumption thereof. See same title, 4, 5, 6.
COMMISSIONER OF THE GENERAL LAND OFFICE.
OF HIS POWER TO CANCEL ENTRIES.
Where an entry of land is legal, no act of the land officers can divest the
party making the entry of his equitable title thereby acquired, so as to pre-
vent him from pursuing the legal title in the hands of a subsequent purchaser,
with notice. Forbes v. Hall, 167.
THEIR LIABILITY TO TRANSPORT GOODS BEYOND THEIR OWN LINES.
When a carrier receives goods to carry, marked for a particular place, he is
bound, under an implied agreement from the mark or direction, to carry to
and deliver at that place, although it be a place beyond his own line of car-
riage.
Much more is he bound, when, as in this case, he undertakes expressly to
carry and deliver at such place. Illinois Central Railroad Company v. John-
son, 389.
CONDITIONS.
CONDITIONS PRECEDENT.
Of the time of performing a contract as a condition precedent. See CONTRACTS,
OF DEPENDENT AND INDEPENDENT PROMISES. See CONTRACTS, 2, 3.
CONFESSION OF JUDGMENT. See JUDGMENTS, 1, 2, 3., 4.
CONFLICT OF JURISDICTIONS.
STATE AND FEDERAL COURTS. See JURISDICTION, 6, 7.
CONSIDERATION.
WHAT IS SUFFICIENT.
1. To support an agreement to extend the time of payment. An agreement to
pay the interest on a note, at the rate agreed upon and specified in the note,
and also one hundred dollars every month after the note has matured, until it
is discharged, entered into between the payee and the principal debtor, with-
35-34TH ILL.
out the knowledge and consent of a security on the note, does not constitute a
valid agreement to extend the time for payment; not being supported by a new
consideration, it will not discharge the security from liability on the note.
Woolford v. Dow, 424.
2. Had it appeared that the interest was paid in advance, when by the
terms of the note that was not required, that would have constituted a con-
sideration for the agreement. Ibid. 428.
FAILURE OF CONSIDERATION.
3. What constitutes. Where the consideration of a note is a deed for land
executed by the payee to the maker, and covenants of seizin and against incum-
brances therein contained, the simple breach of those covenants does not
constitute a failure of the consideration of the note. Willets v. Burgess, 494.
4. Where there is a covenant for the conveyance of title to land, and at the
maturity of the note given for the purchase-money, the maker offers to per-
form his part of the contract, and the vendor is unable to convey title, then
the purchaser may rescind the contract, avoid the payment of the note, and
recover back such of the purchase-money as he may have already paid.
Ibid. 494.
5. But where the consideration of the note is a conveyance and the cove-
nants, the remedy of the grantee is upon the covenants, if there be a breach
of them. Ibid. 494.
CONSTITUTIONAL LAW.
WHO MAY EXERCISE JUDICIAL POWER.
1. Only a judicial, not a ministerial officer. The Constitution, in dividing
the powers of the government among the three departments, has designated
the judges and magistrates of the various courts it has created or authorized
to be formed, as the officers authorized to exercise the judicial power of the
State. A mere ministerial officer of a court cannot exercise that power.
Hall v. Marks, 363.
LEGISLATIVE POWER TO CHANGE THE LAW.
2. Every individual in the State is subject to such changes in the remedy
provided for a redress of grievances as the legislature may prescribe, and they
will be enforced if they do not impair the obligation of the contract on which
the suit is brought. Smith et al. v. Bryan, 377.
3. So in the case of banking corporations, like natural persons, in the
exercise of their rights of organization and existence, they are subject to
the control of the legislature by general laws, and those rights which are not
designed to be secured to it as property, are subject to legislative control in
the same manner as the general rights of an individual. Ibid. 377.
CONSTITUTIONALITY OF PARTICULAR LAWS.
4. Act authorizing clerks to enter judyments by default in vacation. That
portion of the act of February 16, 1857, relating to the practice in the 13th
judicial circuit, which professes to confer upon the clerks of the courts in that
circuit, power to render judgments by default in vacation, is unconstitutional.
That is a judicial power which cannot, under the Constitution, be conferred
upon a mere ministerial officer. Hall v. Marks, 363.
CONSTITUTIONAL LAW. CONSTITUTIONALITY OF PARTICULAR LAWS. Continued.
5. Act of 1861 amendatory of the general banking law. It was not essential
to the validity of that act, that it should be submitted to a vote of the people.
Smith et al. v. Bryan, 374.
6. Nor is the act obnoxious to the objection, that if applied to banks
which were already organized at the time of its passage, it would impair the
obligation of contracts. The amendatory act does not affect the contract, but
simply makes the remedy more efficient. Ibid. 376, 377.
WHEN STATUTES TAKE EFFECT.
See STATUTES, 1, 2, 3, 4.
CONTINUANCE..
OF THE GROUNDS FOR A CONTINUANCE.
1. To give security in recognizance time to arrest and surrender his principal.
A party arrested upon a criminal charge, entered into a recognizance for his
appearance at the December term, 1862, of the Circuit Court; not appearing
at that time, the recognizance was taken for and declared forfeited. A scire
facias was issued and served upon the securities, who appeared and pleaded
at the April term, 1863, and the cause was continued for that term. At the
August term, 1863, the securities applied for a continuance, upon affidavit of
one of them, setting forth that on the first day of the then present month,
having procured a certified copy of the record, a letter from Gov. Yates to the
secretary of war, and a power of attorney from his co-sureties, he started to
Washington city; that he was advised it was needless to have gone sooner on
account of the rigid rules adopted after the battle of Gettysburg, which were
still being adhered to; that affiant went to Washington and applied to the
secretary of war, who refused to give an order on Col. Hecker or any other
authority for the surrender of the principal, who was a private in Col. Hecker's
regiment in the army of the Potomac, in which he had enlisted after his
release on the recognizance; that affiant then made application to the provost
marshal, who alone was authorized to grant passes to the army of the Potomac;
that he refused a pass to cross the lines of the army for any purpose, and was
obliged to return; that affiant used every diligence to procure the arrest of
the principal, who was being held under military rules and discipline so that
he could not be arrested; that affiant had been at great cost, and believed if
the cause was continued he could be arrested and surrendered.
Held, that the securities used reasonable diligence to arrest and surrender
their principal, and that under the peculiar circumstances of the case and the
condition of the country, a continuance should have been granted, and
the fullest time allowed them to produce him. Gingrich et al. v. The People,
2. When the principal in a recognizance enlists in the army. The sureties
pleaded to the scire facias that their principal, after his discharge on bail, and
before the term of the court at which he was recognized to appear, withouts
their knowledge or consent enlisted as a private in the military service of the
United States, and as such was ordered into the State of Virginia, where he
still remained, under military authority, not at liberty to surrender himself,
nor could his sureties arrest and surrender him in satisfaction of his recog
CONTINUANCE. OF THE GROUNDS FOR A CONTINUANCE. Continued.
nizance, and that they could not procure his custody by habeas corpus or
otherwise. The court was inclined to think this did not present a good
defense, but grounds for a continuance merely. Gingrich et al. v. The Peo-
ple, 448.
Sickness of principal. The sureties also pleaded that, at the time of the
taking of the forfeiture of the recognizance, and for a long time previous,
the principal was, and at all times since had been, in the State of Virginia;
was sick and disabled, insomuch that he could not be removed nor brought
and surrendered to the court or any officer by his sureties, without great
danger of the loss of his life. This was regarded, not as a good defense, but
as presenting only grounds for a continuance. Ibid. 448
TO WHOM A PROMISE MAY BE MADE.
1. A promise made by the drawee of a bill of exchange, to any person
interested in having the bill paid, as to the drawer, to accept the bill, will
inure to the benefit of the holder. Jones et al. v. The Council Bluffs branch of
the State Bank of Iowa, 319.
TIME OF THEIR ESSENCE✶ -SPECIFIC PERFORMANCE.
2. Parties may make time material. No rule is more firmly settled than
that parties may make time of the essence of a contract. Heckard v. Sayre,
142.
3. Of the terms necessary to be employed to make time of the essence of the
contract. In contracts relating to land, time is not considered as necessarily
of their essence, but it may be made essential by an express stipulation of the
parties, or it may be deemed so from the nature of the property, or the pur-
poses for which it was purchased, or from other circumstances specially
surrounding the case. Milnor v. Willard et al. 38.
4. Time is made essential in contracts by various forms of stipulations to
that effect; one of which is an agreement that the prompt payment of the
money shall be a condition precedent, and that time shall be considered as of
the essence of the condition, without any formal stipulation in regard to a
forfeiture, or the right of the vendor to declare the contract forfeited if the
condition is not complied with. Ibid. 38.
5. Another form of stipulation by which time is made essential is an
agreement that if the money is not promptly paid the contract shall be null
and void. Ibid. 38
NOTE BY REPORTER. The effect of the non-performance of contracts within
the time stipulated, and numerous questions connected with the general doctrine
on that subject, will be found illustrated in the following cases: Tyler v. Young, 2
Scam. 446; Smith v. Brown, 5 Gilm. 314; Glover v. Fisher, 11 Ill. 666; Kemp v. Hum-
phreys, 13 id. 573; Bishop v. Newton, 20 id. 180; Chrisman v. Miller et al., 21 id. 227;
Morgan v. Herrick, adm'r, ib. 481; Wynkoop v. Cowing et al., ib. 570; Murphy v. Lock-
wood, ib. 611; Steele et al. v. Biggs et al. 22 id. 643; Dennis et al. v. McCagg et al., 32 id.
TIME OF THEIR ESSENCE-SPECIFIC PERFORMANCE. Continued.
6. Still another form of stipulation, by which time is made material, is an
agreement that if the vendee shall make default, the contract may be declared
void at the option of the vendor. Milnor v. Willard et al. 38.
7. The precise phraseology in which such an agreement is expressed is
unimportant. The essential element of the agreement on the part of the
vendee is, that he undertakes to make payment of the purchase-money at
the very time stipulated as a condition to the continuance of his rights under
the contract. Ibid. 38.
8. So, where a party sells lands, agreeing to convey on the happening of a
certain event, and the purchase-money is not to be paid until the conveyance
is made, in an action at law to recover the purchase-money, time in the making
and tendering of the deed becomes material. Sanford v. Emory's Adm'r, 468.
9. Whether any, and what, acts are necessary to vacate a contract by reason of
non-performance within the time stipulated. When there is no special provision
in regard to the termination of the rights of the vendee, they cease ipso facto
upon his non-compliance with his agreement. Milnor v. Willard et al. 38.
10. But cases may arise where, from the peculiar phraseology of the agree-
ment, providing for the termination of his rights, an election so to do, on the
part of the vendor, might be necessary. Ibid. 38.
11. Where the contract, however, provides that prompt performance on
the part of the purchaser, shall be a condition precedent to the sale, and that
time shall be of the essence of the condition, the rights of the vendee cease
ipso facto upon his non-performance within the time stipulated. Ibid. 38.
12. In a case where the vendor agreed to convey on the happening of a
certain event, the purchase-money not to be paid until the conveyance was
made, the time of making and tendering the deed being material, it is neces-
sary, in order to put the purchaser in default in regard to the non-payment of
the price, the vendor should, within a reasonable time after the event, on the
happening of which he agreed to convey, tender the deed. Sanford v. Emory's
Adm'r, 468.
13. It is held, that it does not follow from the fact that neither party to a
contract is in a position to compel a specific performance that it is thereby
rescinded. And the rule is laid down that when one party fails in performing
a contract at the proper time, the other, if he means to rescind it, should give
a clear notice of his intention. Ibid. 468.
14. And where a purchaser of land under an executory contract goes into
possession, it seems, before he can rescind by reason of non-performance on
the part of the vendor, he is bound to restore the property, or offer to restore
it. Ibid. 468.
15. To what extent stipulations in regard to time may be relieved against.
While courts will relieve from forfeiture in cases where it has been incurred
without fault, yet they have never undertaken to declare immaterial the time
when a contract is to be performed, when the parties have agreed that it
should be otherwise. Milnor v. Willard et al. 38.
16. A court of equity has no more right than a court of law to dispense
with an express stipulation of parties in regard to time, where it is made of
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