2. Where an affidavit of newly discovered evidence discloses nothing
but cumulative evidence, and which, if introduced on the trial, could not
have changed the result, a motion for a new trial based on it is properly
denied. Bulliner v. The People, 394.

CHANCERY-GRANTING NEW TRIAL AT LAW.

3. In order to justify a court of chancery in setting aside a judgment
at law and granting a new trial, the case must appeal strongly to the
chancellor for relief. It is by fixed and determinate rules alone that this
jurisdiction will be exercised. It is never done capriciously or as a
matter of mere discretion, nor because the court of chancery may differ
from the jury on the finding of the facts upon the evidence. Brown v.
Luehrs, 195.

4. Nor will the new trial be granted unless the judgment has been
obtained by fraud, accident or mistake, and without fault on the part of
him who asks it. Ibid. 195.

5. If, however, a party has made every effort in his power to discover
evidence and fails, when afterwards discovered, courts of equity treat
this as an accident, and will, when satisfied that such newly discovered
evidence would have produced a different result if it had been known in
proper time, and that the judgment is unjust, grant a new trial. But all
these elements must concur before the relief will be granted. Ibid. 195.

6. In this case, a witness had given his deposition, which was read
on the trial of a suit at law, in which he testified that he had paid to one
of the parties, for the other, a considerable sum of money, and the find-
ing and judgment were the result of that testimony. Subsequently, and
after the judgment was rendered, the same witness gave a second depo-
sition, in which he stated that his former testimony, in regard to the
payment of the money, was not true. The application for a new trial
was based upon this second deposition, the party relying upon it to over-
come the former. But on the facts appearing, it was considered the sec-
ond deposition should not be given that effect. Moreover, the party
seeking relief had not used proper diligence in ascertaining from the
witness before the trial the grounds of the testimony he was apprised
the witness was intending to give. Upon the whole case the relief was
denied. Ibid. 195.

NOTICE.

WHAT AMOUNTS TO NOTICE.

1. To a subsequent purchaser. Where a purchaser of land knows at
the time of his purchase that another person has for years claimed the
land and paid taxes thereon, it is his duty, before making his purchase,
to go to such claimant and ascertain from him what title he has, and if

he fails to make such inquiry, he will be chargeable with knowledge of
all facts which he might thereby have learned, and will hold subject to
the equitable rights of the claimant under an unrecorded bond for title.
Whatever is sufficient to put a purchaser upon inquiry is good notice of
all facts which the inquiry would have disclosed. Redden et al. v. Miller
et al. 336.

OF NOTICE SUBSEQUENT TO PURCHASE.

2. Effect of such notice in respect to unpaid purchase money. In order
to the protection of a subsequent purchaser who does not receive notice
of prior equities until after his purchase, it must appear that he has ac-
tually paid the purchase money, or, if he has paid a part of the purchase
money before receiving notice, he will be protected to that extent, but no
further. Ibid. 336.

OF NOTICE BY POSSESSION.

3. The actual possession of a part of a tract of land by a purchaser
thereof, before and at the time of the cxecution of a deed of trust by his
vendor upon the entire tract, is notice to the party taking such incum-
brance of the rights of the purchaser. Small et al. v. Stagg, 39.

RECITALS IN recorded deed.

4. As notice to subsequent purchasers. Where a deed for land sold un-
der a power in a mortgage, reciting correctly all the facts showing a
right to make the sale, is recorded in apt time, the record thereof will
affect all persons thereafter claiming under the mortgagor with construc-
tive notice that there had been a valid sale under the power, although
the deed may be defectively executed so as not to pass the legal title.
Gibbons et al. v. Hoag, 45.

PURCHASER FROM ONE WHO HELD WITHOUT NOTICE.

5. Effect of notice to such subsequent purchaser. A purchaser of land
from a prior bona fide holder who acquired the legal title, as shown by
the records, for a valuable consideration, without notice of any outstand-
ing equity, will be protected against such equity, even though he himself
had notice thereof. Peck v. Arehart, 113.

FACTOR PLEdging goods OF HIS PRINCIPAL..

6. Effect of want of notice by the creditor receiving the pledge of the
character in which his debtor held the goods. See FACTOR, 2.

ON SUBMISSION TO APPRAISEMENT OF THIRD PERSONS.

7. Whether notice of their meeting is required. See ARBITRATION, 1.
SURETY SIGNING BOND IN BLANK.

8. Of notice to the obligee as to surety signing upon condition. See
BONDS, 6 to 9.

OFFICERS.

MAKING PROFIT ON PUBLIC FUNDS.

1. Where a treasurer of public funds receives interest from the use or loaning of such funds, such interest will not belong to the officer as the perquisites of his office. City of Chicago v. Gage et al. 593.

ERRORS OF JUDGMENT.

2. Liability of officers therefor. Public officers to whom matters may be submitted for their determination, the consideration of which requires an exercise of their deliberative judgments are not answerable in damages for mere errors of judgment unaccompanied with malice or bad faith. McCormick v. Burt et al. 263.

3. School directors-suspension of pupils. School directors are invested by the statute with certain discretionary power in regard to the suspension or expulsion of scholars from the public schools. In the exercise of that power they must deliberate and judge and decide, and if they but err in their judgments, without malice, or intention to wrong the scholar, they can not be held liable in a suit for damages for their action in that regard. Ibid. 263.

PROPERTY LEVIED UPON TAKEN IN REPLEVIN.

4. Officer protected on failure to sell under the levy. See REPLEVIN, 2.

OFFICIAL BONDS.

LIABILITY OF SURETIES.

1. Rule of construction. While the liabilities of sureties are to be strictly construed, it is not the duty of courts to aid them to escape liability by technical and hypercritical construction. If the law has been substantially complied with in taking and approving official bonds, the sureties will be bound. Cawley et al. v. The People, use, etc. 249. WITHIN WHAT TIME BOND TO BE FILED.

2. Whether limitation in the law is mandatory, or merely directory. The charter of a city provided that all city officers who were required to give bonds for faithful performance of official duties, should "file their bonds with the city clerk within fifteen days after their election," etc. The charter further provided that when bonds should not be filed with the city clerk within fifteen days after the official canvassing of the votes, "the person so in default should be deemed to have refused said office, and the same should be filled by appointment as in other cases." And in case a bond so filed should not be approved, and a satisfactory bond should not be filed within fifteen days after such disapproval, the person so in default should "be deemed to have refused said office, and the same should be filled as above provided." And further, the charter made it "the duty of the clerk to notify all persons elected to office, of their election, and unless such persons should respectively qualify within fifteen days thereafter the office should become vacant." It was held, these

OFFICIAL BONDS. WITHIN WHAT TIME BOND TO BE FILED. Continued.

provisions in respect to the time within which the official bonds were
required to be filed, were not mandatory, but merely directory. The
municipal authorities were empowered, in their discretion, to declare a
vacancy, or to waive the default as to the mere time of filing bond, and
to accept and approve it when afterwards filed. The mere default in
that regard would not, of itself, operate to vacate the office. City of
Chicago, v. Gage et al. 593.

3. So, in this case, a person who had been elected to the office of
treasurer of such city, lodged with the city clerk, within the fifteen days
limited in the charter, a form of a bond, signed by himself and his sure-
ties, but in blank as to the names of the obligors, the penalty, the date of
the instrument, the name of the office, and the time of the election, and
this paper remained in the hands of the clerk until after the expiration
of the fifteen days, and was then withdrawn by the principal obligor,
the blanks filled by his direction, and the bond then approved and
accepted by the city council as the official bond of the treasurer. It
was held, it was entirely competent for the city council to waive the
default as to the time of filing the bond, which was but a ground of for-
feiture, not a forfeiture of itself. And so far as concerned the liability of
the sureties on the bond, the apparent implied authority with which they
had clothed their principal to make use of and deliver it as his official
bond, by signing and sealing the same and leaving it with him, was
a continuing authority, until some step should be taken by them towards
its revocation. They would be liable upon the bond to the same extent
as if it had been filed within the time limited by the charter. Ibid. 593.

4. Where the condition of the bond, in such case, recited that the
principal obligor was to hold the office "for the period of two years, and
until his successor should be duly elected and qualified, or until said
office should be otherwise legally vacated," these latter words would not be
regarded as having reference to the contingency of not filing the bond
within the time limited by the charter, and that if not filed within that
time the sureties were not to be liable. The words would be deemed to
refer to something to take place after the delivery and acceptance of the
bond, and the meaning of the bond was construed to be that the sure-
ties guaranteed that the officer elect should execute his official duties
during his full term as fixed by law, unless, after the execution and
delivery of the bond, the office should be legally vacated. Ibid. 593.

5. The provision of law requiring a county treasurer to file or renew
his official bond on or before the first day of December next after his
election is not mandatory, but directory. The neglect to file such bond
in the prescribed time is but a ground of forfeiture of office, and is not a
forfeiture of itself, and a subsequent approval of his bond filed at a
later day is a waiver of a right to declare a vacancy in the office.
Cawley et al. v. The People, use, etc. 249.

6. As affecting liability of sureties. The constitutional provision making a
defaulter of public moneys ineligible to any office of trust or profit, pre-
supposes that the default shall be ascertained and fixed by judicial or other
legal authority. Until this is done the acts of such officer will be valid
and binding, and his sureties will be liable for them. Cawley et al. v.
The People, use, etc. 249.

CONCEALING FACTS FROM SURETY-FRAUD.

7. And herein, of the power of the county board. A county board whose
duty it is to approve the official bond of a county treasurer, is under no
obligation to communicate to the sureties on his bond the fact that their
principal had made and was in default as treasurer in a preceding term,
even if they have knowledge of such fact, where the sureties make no
inquiry of the board or any of its members in regard to the fact, and the
failure of the board or any member thereof to seek the sureties and give
such information, even if it was known, is no fraud on the sureties.
Ibid. 249.

8. If a portion of the members of a county board, or all of them,
know of the default of a county treasurer in his preceding term and fail
to make it known to the sureties on his bond for the new term before its
approval, no inquiry being made of them, such concealment can not bind
or affect the interests of the county. It may be, if the board on a settle-
ment had found the principal a defaulter and entered on their record
that he was not, that persons thus injured might claim there was fraud,
but the court is not prepared to hold that even this would release the
sureties of such bond. It is not within the scope of their authority to
release such sureties without any consideration therefor. Ibid. 249.

PROCURING ADDITIONAL SURETIES.

9. Effect of withdrawal of bond for new sureties before approval. The
filing of the official bond of a county treasurer with the county clerk is
only a conditional delivery, depending on its approval and acceptance by
the county board. Until its approval the delivery is not complete, and
where a committee of the board, appointed to investigate the sufficiency
of the security, are not satisfied and require additional sureties, the
withdrawal of the bond and procuring its execution by several other
persons will not release the original sureties, and is not an unauthorized
alteration of the bond. Ibid. 249.

10. How far sureties bound by action of their principal in procuring other
sureties. Where sureties on an official bond entrust it to their principal,
imposing no restrictions on him, it will be presumed that they intend to
invest him with authority to procure a sufficient number of additional
sureties to insure its approval, without reference to the time when it
shall be done. Ibid. 249.

44-95 ILL.