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such cases, to suits which are instituted directly for the purpose of determining the right to the franchise or the title to the franchise. The language of the statute applies to the cases in which the franchise is involved. Now, in this case, the injunction restraining the defendant, in the court below, from the exercise of this right is founded expressly upon the decision of the court that the right is not possessed; hence, although the direct object of the suit is not to oust the defendant from the possession of the franchise, yet the right to the franchise is wrapped up or involved in the controversy. In fact the controversy is made to turn upon the question of the possession of the right by the railroad company.

The application to dismiss the proceedings out of this court must be overruled.

Application overruled.

WALKER, CRAIG and SCHOLFIELD, JJ., concur in the conclusion that this case does involve a franchise, and that application to dismiss must be overruled.

Filed at Ottawa May 18, 1880-Rehearing denied September 13, 1880.

1. MECHANIC'S LIEN-time of commencing suit as against one made a party after filing the petition. Under the statute which provides that a mechanic's lien shall not be enforced as against incumbrancers unless suit be instituted within six months after the last payment for the labor and materials shall have become due, if one not made a party at the time of filing the petition shall afterwards be made a party defendant, as to such defendant the suit will be regarded as commenced at the time he was made a party, and not before.

2. PARTIES-petition for mechanic's lien — incumbrancer by deed of trust. Where it is sought to enforce a mechanic's lien, under the statute, against an

Opinion of the Court.

incumbrancer whose debt is secured by deed of trust appointing a third person as the trustee, it is not enough that the trustee be made a party,—the owner of the indebtedness himself, as his interest alone is to be affected by the decree, is an indispensable party.

APPEAL from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook County; the Hon. S. M. MOORE, Judge, presiding.

Mr. GEORGE C. FRY, for the appellants.

Mr. F. C. INGALLS, and Mr. WILLIAM LAW, Jr., for the appellees.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

When this cause was heard on the former appeal, it was adjudged petitioners were entitled to a lien for the amount due them for work and labor done and materials furnished in erecting the building on the premises, as against the owner of the fee. 90 Ill. 380.

On the remandment of the cause to the Superior Court a decree was rendered in conformity with the opinion of this court declaring a lien in favor of petitioners on the premises, but subject to an incumbrance in favor of a defendant not made a party when the original bill was exhibited. That decree on appeal was affirmed in the Appellate Court, and petitioners again bring the case to this court.

There is no disagreement as to the facts, and the controversy now is, which has priority, the mechanic's lien or the mortgage incumbrance? The last work done by petitioners was on the 29th of July, 1873, when the building was turned over to the owner and the work was then accepted by him as having been done in conformity with the contract, and on that day the owner became obligated to pay the balance due under the contract. On the 29th of May, 1873, the owner of the property, his wife joining with him, executed a deed of trust to Henry L. Hammond, as trustee, to secure a loan of money made by defendant Laurence to the

Opinion of the Court.

owner of the property embraced in the deed. The original petition herein was filed on the 18th day of December, 1873, to which Hammond was made a party, but Laurence, the owner of the indebtedness secured by the trust deed, was not made a party until July 3, 1874, when the petition was amended by making him a party.

It is provided by our statute that no creditor shall be allowed to enforce the lien given by the mechanic's lien law as against or to the prejudice of any other creditor or incumbrancers, unless suit be instituted to enforce such lien within six months after the last payment for labor or materials shall have become due and payable." The remedy given the mechanic or material-man is purely statutory, and unless enforced in the manner and within the time prescribed in the statute, he can have no lien that will prevail against other creditors. It will be observed that, although the suit was instituted against the owner, and trustee named in the deed of trust, within six months after the last payment for work done by petitioners became due, the party owning and holding such indebtedness was not made a party until long after the expiration of that period. It is insisted it was sufficient to make the trustee a party to bar the rights of the cestui que trust. A contrary construction of the section of the statute cited has been sanctioned by a number of recent decisions of this court, so that it need not now be discussed as a new question.

In Dunphy v. Riddle, 86 Ill. 22, it was held, a suit in mechanic's lien proceedings, although commenced against the owner of the property, can not be considered as commenced against a creditor or incumbrancer having an interest in the property until he is made a party, and unless he is made a party within six months after the last payment for work done or materials furnished becomes due, the mechanic or materialman can obtain no priority as against such creditor or incumbrancer. To the same effect is Crowl v. Nagle, 86 Ill. 437. Scanlan v. Cobb, 85 Ill. 296, was a proceeding to set aside

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and cancel a deed of trust on account of the alleged insanity of the grantor, and it was held the person whose debt was secured, as well as the trustee, was an indispensable party to the bill.

The case of Gaytes v. Franklin Savings Bank, 85 Ill. 256, is more nearly like the one at bar, both as to facts and the principle declared. There, as in this case, the trustee named in the deed of trust was made a party, but not the person whose debt was secured, and the holder of such indebtedness was declared to be an indispensable party, for the reason his interest alone would be affected by the decree-the trustee having no real interest in the subject matter of the controversy. That is precisely the case here. Laurence, whose debt was secured by the trust deed, was not made a party by amendment to the petition within six months after the last payment became due the mechanics for work done for the owner of the property, and under the construction given to the statute he will not be allowed to enforce his lien to the prejudice of such incumbrancer.

The decree will be affirmed.

Decree affirmed.

95 583 122 213

95 583

ISRAEL G. HEAPS

V.

CHARLES DUNHAM et al.

Filed at Ottawa May 18, 1880-Rehearing denied September 13, 1880.

1. CONSPIRACY-defined. A conspiracy may be regarded, a combination of two or more persons, by a concerted action, to accomplish a criminal or unlawful purpose, or a purpose not in itself criminal by unlawful or criminal

means.

2. Where a person, arrested upon a charge of bastardy, makes a settlement in respect thereto, giving his notes for an amount agreed upon with the persons managing the prosecution, if the persons who instituted and were prosecuting the suit in behalf of the woman interested, honestly believed

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from her statements that the charge was true, and were thereby induced to act in the matter, they could not properly be charged with conspiring to extort money from the accused unlawfully, even though as a matter of fact the person so charged was not guilty of the offence.

3. DURESS-what constitutes—in avoidance of a contract. It is not enough to establish duress, that a party was imprisoned at the time of making a promise or executing a contract in respect to the subject concerning which he had been arrested. Imprisonment, when lawful, is by no legal intendment an abridgement of the free and voluntary volition of the mind in the management of business transactions. To put the party under duress, the imprisonment must be unlawful, or there must be an abuse of or an oppression under lawful process or legal detention.

4. So, where a person had been arrested upon a charge of bastardy, under a warrant regularly issued, and while under arrest but not actually in prison, or even under such restraint as would prevent him from going where he pleased, he executed his promissory notes in settlement of the subject matter of the charge, it was held, the party was under no such duress as would enable him to avoid the contract.

5. CONSIDERATION—agreement not to prosecute for a crime. A promissory note given in settlement of a crime is without consideration, and can not, while it remains in the hands of the payee, be enforced in a court of law or equity.

6. CONTRACT-in settlement of bastardy. It is competent for a person charged with bastardy to compromise the matter with the woman alleged to have become pregnant, and if the party so charged, upon being arrested under a warrant issued in such proceeding, shall enter upon a settlement, not induced by fraud or oppression, and shall give his promissory note for a sum of money for the benefit of the alleged injured party, such settlement will be conclusive upon the person charged, in respect to the question whether the woman was, in fact, pregnant or not.

7. CONSIDERATION-compromise of doubtful claim. In order to render an agreement to forbear, and the forbearance of a claim, a sufficient consideration for a promise to pay money, it is essential that such claim shall be sustainable, at law or in equity, in favor of the person to whom or for whose benefit the promise is made.

8. SAME-settlement of threatened prosecution for seduction. The right of action for the seduction of a female in her minority is in the parent, who is entitled to her services. So, a promise to pay money on the agreement of the female herself to forbear in respect to a threatened prosecution for her alleged seduction is without consideration.