Continued.

ASSIGNMENT. SALE OF LAND UNDER EXECUTION.

nothing for it before bill filed to set aside the sale, such assignee can not set up any equities to defeat the bill. Coggeshall et al. v. Ruggles, 401. ASSIGNMENT OF A MORTGAGE.

2. A mortgage interest, as distinct from the debt, is not a fit subject of assignment. It has no determinate value. If it should be assigned, the assignee must hold the interest at the will and disposal of the creditor who holds the bond. Medley et al. v. Elliot et al. 532.

ATTACHMENT.

PUBLICATION OF NOTICE.

1. Of the computation of the sixty days' time required by the statule. In the computation of time under the section of the attachment act, requiring that sixty days shall intervene the first publication of notice and the term of court, the rule is to exclude the day on which the notice is first inserted in the newspaper, and include the day on which the term commences. Forsyth et al. v. Warren, 68.

REQUISITES OF THE NOTICE.

2. In an attachment suit, the notice of publication recited a date to the writ subsequent to the return term. Such mistaken and unnecessary date, the notice being otherwise in full compliance with the statute, was not regarded as a fatal defect in the notice. Ibid. 68.

JUDGMENT IN ATTACHMENT.

3. When limited to the amount claimed in the affidavit. It is a fatal error for the plaintiff in an attachment in which there is no other jurisdiction obtained in the case except by levying the attachment and publishing the notice, to take judgment for more than the sum claimed in the affidavit and notice, with the subsequently accruing interest. Ibid. 68.

4. Waiver of such error. Nor does the defendant waive such error by coming into court after judgment, though at the same term, and praying an appeal. Ibid. 68.

ATTACHMENT OF BOATS AND VESSELS.

THE LIEN-HOW CREATED.

1. And whether released by a discharge of the property. The lien given on boats and vessels for supplies, etc., is not created by the levy of an attachment writ, but by statute, and the levy is but a means furnished to enforce the lien. Therefore, where a tug boat was discharged from attachment by order of the court on the execution of a bond by the owners, as allowed by the statute, and the attachment suit, under which the levy was made, was dismissed by the plaintiff, it was held that the statutory lien was not thereby released, and a plea in a second suit by attachment, of the discharge of the vessel by the giving of hond in the prior suit, was adjudged bad on demurrer. Tug Boat E. P. Dorr v. Waldron et al. 221.

35-62D ILL.

ATTACHMENT OF BOATS AND VESSELS.

CHARACTER OF THE LIEN CREATED BY STATUTE.

Continued.

2. As distinguished from a maritime lien. A maritime lien does not arise on a contract for materials and supplies furnished to a vessel in her home port; and in respect to such contracts, it is competent for the State legislatures to create such liens as they may deem just and expedient, not amounting to a regulation of commerce, and to enact reasonable rules and regulations for their enforcement. Tug Boat E. P. Dorr v. Waldron et al. 221.

3. The proceedings by attachment given by the statutes of this State against boats and vessels to enforce liens for supplies, etc., have no resemblance to libels in the courts of admiralty, but are of the same character as ordinary suits by attachment, requiring notice to be given of the pendency of the suit; and by them no prior liens are interfered with. They are not proceedings in admiralty such as the district courts of the United States are invested with exclusive jurisdiction over by law. Ibid. 221.

CONFLICT OF LAWS.

4. Jurisdiction of State and Federal courts. The jurisdiction of the United States district courts on the lakes and navigable waters connecting the same, is governed by the act of Congress of February 3, 1845, and is not exclusive, but is concurrent with such remedies as may be given by State laws. Ibid. 221.

OBJECTION AS TO JURISDICTION.

5. Should be made in court below. On appeal from the judgment of the Superior Court of Chicago, rendered in a suit by attachment against a vessel for supplies furnished, it was objected that the proceeding failed to show that the court had jurisdiction, and that the affidavit did not show that the supplies were furnished at the home port of the vessel, and that she was a domestic vessel: Held, that as the objection was one that might have been obviated by amendment, if made in the court below, it came too late when urged for the first time in this court. Ibid. 221.

ATTORNEY AT LAW.

PRESUMPTION AS TO HIS AUTHORITY.

1. When an attorney enters the appearance of a party to a suit, it will be presumed that he had authority; but the presumption is not conclusive, and may be rebutted if done in apt time. Leslie et al. v. Fischer, 118.

2. The practice does not require a written retainer, and, as it would be a breach of professional duty in an attorney to enter an appearance without authority, until overcome by proof it will be presumed that it was proper and authorized. Ibid. 118..

OF AN ATTORNEY'S LIEN. See LIENS, 1.

BAILMENT.

BURDEN OF PROOF.

In action by bailor against bailee. See EVIDENCE, 4, 5.

BILLS OF EXCEPTIONS. See EXCEPTIONS AND BILLS OF EX-
CEPTIONS.

BOARD OF PUBLIC WORKS OF CHICAGO.

AWARDING CONTRACTS ON PUBLIC BUILDINGS.

1. Whether the courts will control the discretion of the board in that regard.
By the charter of the city of Chicago, the board of public works was
made a distinct branch of the city government, having charge and su-
perintendence of all the public improvements of the city, and all con-
tracts were required to be awarded by said board "to the lowest relia-
ble and responsible bidder or bidders." The board advertised for
sealed proposals for the construction of a new "lake tunnel," of the
estimated cost of $400,000, reserving the right to reject any bid for
certain causes. The contract was awarded to Steele & McMahon, who
were not the lowest bidders. The complainants, whose bid was about
$4,000 less, filed their bill in equity to restrain the board and Steel &
McMahon from entering into the performance of the contract, and to
compel the board to award the contract to complainants; also claim-
ing that, as tax payers, they were entitled to demand the letting of the
work to the lowest bidder. The court below dismissed the bill: Held,
that the decree was right; and that, so far as the bill sought to have
the contract awarded to complainants, it was in the nature of a manda-
mus, and would not lie, as the board was invested with a discretion,
which, in the absence of fraud, the courts would not seek to control;
that the complainants had no clear legal right to the relief sought;
and that the claim of injury as a tax payer was equally inadmissible as
a ground for maintaining the bill. Kelly et al. v. City of Chicago et al.
279.

BURDEN OF PROOF. See EVIDENCE, 4, 5, 6; WILLS, 23.

CHANCERY.

JURISDICTION IN CHANCERY.

1. When there is a remedy at law. Where one partner borrowed
money for his individual use, for which he gave his note, with the
other partner as security, and the latter, after a dissolution of the part-
nership, was compelled to pay the same, after which he filed a bill in
equity, to have the sum so paid set off upon a note given by him to his
co-partner on the dissolution: Held, that the complainant had an ade-
quate remedy at law by an action of assumpsit. Dewey et al. v. Eckert,

218.

WHEN A CAUSE MAY BE SET FOR HEARING.

2. It is error to proceed to the hearing of a cause in equity and
render a final decree therein at the same term of court at which repli-
cation is filed to the answer.* Beveridge et al. v. Mulford et al. 177.

3. When one of the defendants to a bill in chancery, being inter-
ested in the land sought to be affected by the bill, had answered, and
the court proceeded to hear the cause and render final decree at the
same term at which replication was filed, both as to the defendant who
had answered, and another defendant who had acquired an interest in
the land from his co-defendant, there being no evidence of acquiescence,
it was held error. The case as to the defendant who had not answered
should not have been finally disposed of before the hearing as to his co-
defendant. Ibid. 177.

BILL TAKEN AS CONFESSED.

4. Of the proofs. Where a bill is taken as confessed, the court may,
in its discretion, require proof as to any or all the allegations of the
bill, or render a decree without proof. And no distinction is made in
this respect between bills sworn to and those not sworn to. Benneson
v. Bill et al. 408.

REMOVING CLOUD UPON TITLE.

5. Character of relief which may be given. On bill to remove a cloud
caused by a tax title acquired without service of any notice on the
parties in possession, the circuit court decreed that the holder of the
tax title convey his title to complainant. There was nothing in the bill
showing that there was any contract, trust relation, or other equitable
grounds requiring the party to convey his tax title: Held, that the de-
cree was erroneous. The proper decree in such case is, to perpetually
enjoin the holder of the outstanding title, his heirs and assigns, from
asserting the same. Reed v. Reber et al. 240.

6. Defective tax title. Equity has jurisdiction to entertain a bill to
remove a cloud upon title occasioned by an outstanding tax title, when
no notice of the sale for taxes, and of the time when the redemption
will expire, was served upon the parties in possession before taking out
a deed, as required by the constitution. Ibid. 240.

7. A court of equity will entertain jurisdiction of a bill by the
owner of land who is in possession, to remove a cloud upon his title
consisting of an illegal tax deed obtained upon it. Lee v. Ruggles, 427.

8. Terms of decree-refunding taxes to defendant. On bill to set aside a
tax deed on complainant's land, on the ground that the taxes for which
the land was sold were illegally assessed for drainage purposes, and the

"After replication is filed, the cause shall be deemed at issue and stand for
hearing." Laws 1872, p. 334, sec. 29.

CHANCERY. REMOVING CLOUD UPON TITLE.

Continued.

deed was a cloud upon the title, it was objected that the bill should
have offered to refund to the defendant the taxes discharged by him in
his purchase: Held, that, as it appeared the taxes were illegal, and no
charge upon the land, and it did not appear by the bill that any ben-
efit had been bestowed upon the land by drainage, or otherwise, the de-
fendant had no equitable claim to have the taxes paid by him refunded.
Lee v. Ruggles, 427.

SETTING ASIDE SHERIFF'S SALE.

9. Of the terms imposed. In 1855, A, as principal, and B, as surety,
executed a note for three hundred dollars. In 1857, the surety becom-
ing doubtful of the solvency of A, purchased of the latter a pair of
horses and a buggy for four hundred and twenty-five dollars, and agreed
to pay three hundred dollars of the price upon the note, which he failed
to do. In 1861, judgment was recovered on the note against both,
which judgment was transferred to one Beasley, who, being indebted to
A for corn to the amount of four hundred or four hundred and fifty
dollars, agreed with A to apply this debt in payment of the judgment,
and the judgment was left unsatisfied for the benefit of A. About six
months afterward, Beasley had the lands of B sold on execution, un-
der the judgment, and received a certificate of purchase, which he
assigned to a son of A, without any new consideration. B filed a bill
to set aside the sale, on the ground that the judgment was satisfied be-
fore the sale, and only kept in apparent life for the purpose of selling
his property. The court below set aside the sale on that ground:
Held, on appeal, that A, by the arrangement with Beasley, would, in
equity, be regarded as having paid the judgment, except so far as it
would be just to allow him to hold the certificate of sale as a security
for the money paid by him, which B ought to have paid; that the sale
should be set aside upon terms requiring B to do equity by paying the
amount due from him on the judgment. Coggeshall et al. v. Ruggles,
401.

OF AN EQUITABLE MORTGAGE.

10. Where the vendor of land, after the sale, loans the vendee
money, taking back an assignment of the contract to secure its repay-
ment, with an agreement that it shall be forfeited if the money is not
repaid when due, the transaction will be regarded as an equitable mort-
gage. Fitzhugh et al. v. Smith, 486.

FAILURE OF A DEFENDANT TO ANSWER.

11. Effect upon his rights. Where the holder of such mortgage, who
is also vendor, is made a party defendant in a petition by creditors of
the vendee seeking to establish a lien against the premises embraced
in the contract as against the vendee, the petition alleging that the
vendee holds the land under a contract of purchase from the vendor,
and he fails to answer and disclose his rights as such mortgagee, but
suffers such creditors to take a decree for the sale of the vendee's in-