The Ottawa free trader. [volume] (Ottawa, Ill.) 1843-1916, 1845-04-11
TAWA, ILLINOIS, FRIDAY, APRIL IL, l845.


which will hearty notice, and that is whcr,
, there are sevaral creditors their issues may b,
tried separately, and the want preparation il
| ono shall not delay the other; although tn,
court may if it think proper delay ordering
sale on our claim ill all the issues are tried.
, variety of questions of fact may arise where
, no direct issues are found by the plcadngs, and
especially under the Goth section. 1t secures &c
the liens oitho mechanic priority over previous
incumherances upon the buildings created and
materials furnished; land upon questions arts.
ing between previous incumhcrances and credit
ors under the provisions Of this act, The previous
incumbrancer shall he preferred 10 the extent oil
the value of the land at the time Of making the
contract. And the court shall ascertain by jury
or otherwise, as the case may require, wha, pro
portion Of any sale shall be paid 10 the several
tpartes in interest All the contraver-
sizes contemplated by this section must
arise between creditors aud incumbranccrs alone.
And in case of several lien creditors, and several
previous incnmbrarcers, TIE provision Of the
sections proposes that the various questions of
fact TO he ascerlaincd, may be altogether too
complex TO admit of jury trial for it says "the
court shall ascertain by jury or otherwise as The
case may require, what proportion Of the pro-
ceeds of any sale shall he paid to the several par
ties in interest" Whenever, in the opinion Of
the court, the circumstances of the case should
require it, it would he its duty to resort to the
usual modes, known TO chancery courts to ascer.
tain the necessary facts TO enable it TO make a
proper final ORDER
We will now inquire more particularly into
the nature of the relief which may be granted by
the court. This we shall see is as broad and
universal as the varied and complicated rights of
the various parties may require and ia as com
! pc,e and comprehensive as that which is ever
granted by the courts Of chanccry. Several por-
| TONS oi the statute, bearing more or less upon
the recaf TO be granted, have already been stated,
and hence it will only be necessary to refer TO
such other portions of the act as bear Oh tina,
branch # the inquiry.
By the 1lth section it is declared that "upon
questions arising between different creditors 10
preference shall lie given TO him whese contract
was first made BY creditors here is menl
such as claim n lien under the provisions of this
act. The Goth section provides that the court
shall ascertain the amount due each creditor, and
shall direct the application Of the proceeds Of
sales tn he made TO each in proportion 10 their
several amounts. The 18th section provides
that creditors whose claims are not due. may
have the amount ascertalncd which shall be al
lowed them, dcducllng interest, To he computed
tn the time when they would become due The
l4lh and 10 h sections provide for the order of
sale. The 18Th section provides for making the
representatives of deceased persons, parties as
though it was suit in chancery." AS before
stated, the 20'h sections secures TO the lin Of
The mechanic a priority over the previous in
cumbranccrs, upon the building erected and the
materials furnished The 22l section saws
creditors who flc bills or petitions under this
act, may contest the validity Of membranes, as
MS well IN regard to amount rs to their justice
And any incumhrance whether by mnrlgnse.
judgement, or otherwise, charged and sworn TO
I've fraudulent in respect TO such creditors, or in
respcc, to creditors generally may be SET aside 10y
the court, and the premises made subject TO the
lien, discharged from such fraudulent, ncum-
hrancc," 1t may well be asked wha, greater
power fur granting the most full and complete
relief which any case may call for, is Possessed
Ivy court Of chancery
II is as broad as any cxigency can possibly re-
quire--as comprehensive as justice, under any
circumstances can ever demand.
When we look then to the parties TO the suit,
the mode of proceeding expressly pointed oct in
the oct and the relief to bc administered, we find
in all its features strictly chanccry proceeding
aud nothing else, and on explicit declaration in
the act that it should be, could not have made ii
more so.
But, as il to remove all doubts if any could
exist after these ample provisions, MS to the ma
ture Of this proceeding. the 23d seclisI says I'm
proceedings under this act. the courts are vested
with all the powers ofcoufts OF chanccry and shall
be governed by the rules of proceedings and deci.
sons in these courts 70 far as may be ccessary Ia
carry into foil and complete effect the the prnvi.
sons hereof, and so far as those rules Of proceed.
ing and decisions are applicable to cases and
questions presented for adjudication and dec
sion.
But the nature Of the right created and remedy
afforded, would seem To render it proper sub
jcct for chaucary jurisdiction.
The act creates n latent secret lien. which ma,
, he enforced as against all the world 1.-THE sui
is commenced within six months after the de-
, mand falls due. While as to the proprietor fo
, whom the building is erected there is no miia
ton. 1t is unkonwn to the world like vcndo
lien or a resulting trust; and as Appropriated,
could the courts of law enforce them, as 10 carr,
( out the object contemplated by this act.
have examined this statute more cxtensivcl,
than should have done, had | not undcrstoo,
, that the same construction has been uniiorml,
giveu 10 it in the circuit courts whenever ih
question has been presented. that was given il
this case; but the more attentiveyI have exam
lined this act, the more | have examined nnt
condensed it, the more I am convinced that it i
] purely, in all It's features chancery proceeding
TO be governed by the rules and practice Of thcs
2 courts
II this conclusion be correct il would seem to b
] conclusive that the rules of evidence should h
adopted which exists in courts of chanccry ,nstca
Y of those which obtain in courts Of law, except i
G the admissibli,y Of parole proofs, which is ex
. pressly provided for by the act. We must {
course adopt the rules Of one court or the olhe
c else suitors will never know on what they are
!, dcpend-elsc the rules of evidence will be eve
Y huctualing and uncertain until every immagir
C AIRY question has been settled in this court.
y the nature If the proceeding is 10 have any il
l. fuence, | think not a doubt can he felt as |
e which is the proper rule. But even il it wei
d doubtful as TO which side Of the court this pr,
j. cecdng properly belongs, the s!ighics, reneciio
y must convince u.s. not only Of the propricty. b,
Q Of the absolute necessity Of adopting the ruI,
:, Of evidence known to the courts of equity. B