Haskell v. Brown

Citations

• 65 Ill. 29

Syllabus

<p>1. Chancery practice—amendment of answer on hearing. On the hearing of a suit in chancery, the court permitted the defendants to amend their answer, which was not sworn to, so as to admit proof of new facts in defense, against the objection of the complainant: Held, that this was a matter of discretion in the court, and as the answer was a mere pleading, the amendment was properly allowed to avoid a variance.</p> <p>3. Foreclosure—equitable set-off or recoupment. Where a party subscribing to the capital stock of a railroad company, executed his note for his subscription, secured by mortgage on real estate, and the company at the same time guarantied to him that his annual dividends should pay the interest on the note, and that in consideration of the transfer of those dividends the company would pay the interest on the same, and indemnify the maker against the payment of any interest, and against the payment of the principal also, and it happened that there were no dividends, and the stock was worthless at the maturity of the note: Held, that, as against the company, on bill to foreclose, the facts could be set up as a defense, on the ground of recoupment or equitable set-off, and that the same rule applied to a purchaser of the note and mortgage before maturity on bill by him to foreclose.</p> <p>3. Assignment—to cut off defense. Where a railroad company negotiated one of its bonds, and delivered with it .the note of the defendant as security, but without indorsement, but the bond contained an assignment of such note, which was made transferable with the bond, and not otherwise: Held, that the bond of the company was the principal and the note the incident, and was not transferred as an independent instrument, and that such a transfer of the note should have put the party receiving it and all others purchasing it, upon their guard as to any defenses the maker might have.</p> <p>4. Same—rule in equity. But even had the note been indorsed in the usual mode before