Bruner v. Battell

Citations

• 83 Ill. 317

Syllabus

<p>1. Evidence—of deceased party, when non-resident defendant is let in to defend after decree. Where a complainant in a bill for specific performance against a non-resident defendant, on default, testifies to payment of the purchase money, before the master, which is reported, and, after decree and the complainant’s death, the defendant is allowed, under the statute, to make a defense, the master’s report of the complainant’s testimony is admissible in evidence, and it is error to refuse the same.</p> <p>2. If a master’s report of proofs taken is competent evidence on the original hearing, on default of the defendant, it can not be rendered incompetent because the defendant is subsequently permitted to come into court and make a defense.</p> <p>3. Decebe—opening, to allow defense by a non-resident. Where a nonresident defendant, whose default has been taken, is allowed, under the statute, to make a defense, the original decree stands until it is vacated on the final hearing, and it is presumed to be correct until overcome by evidence, and the court, on the final hearing, should consider all the evidence, as well that in the record as that which may be adduced after the defendant is let in to defend.</p> <p>4. Witness—competency of, to prove transaction with a deceased person, as against heirs. On bill for specific performance, the agent of the vendor is not a competent witness, after the vendee’s death, as against his widow and heirs, to testify that a payment, indorsed hy him upon the contract, was made by mistake, and that it was not, in fact, made. If the testimony of the deceased vendee, taken in his lifetime, before a master in chancery in the cause, is admitted in evidence, showing the payment, then such agent is competent to testify in answer to it.</p> <p>5. Same—competency of agent before act of 1867. An agent is acompetent witness to prove that he acted according to the directions of his principal and within the scope of his duty, but if the cause depends