MORTGAGE SALE OF REAL OR PERSONAL PROPERTY BY SHERIFF.

11. SALE BY SHERIFF.] § 11. It shall be lawful for the mortgagor of real estate or personal property to insert in his mortgage a clause authorizing the sheriff of the county in which the property, or some part thereof, is situated, to execute the power of sale therein granted to the mortgagee or his assigns or legal representatives, in which case the sheriff, at the time of such sale, of such county may advertise and sell the mortgaged premises pursuant to such power, and may execute all proper conveyances of the property so sold, in the name of and as the attorney in fact of the mortgagor; and at any sale made as aforesaid, the mortgagee, his assigns or legal representatives, may fairly and in good faith purchase the property, or any part thereof.

MORTGAGE OF REAL ESTATE.

12. CONSTRUCTIVE MORTGAGE.] § 12. Every deed conveying real estate, which shall appear to have been intended only as a security in the nature of a mortgage, though it be an absolute conveyance in terms, shall be considered as a mortgage. [R. S. 1845, p. 105, § 12.

FORECLOSURE OF REAL ESTATE MORTGAGES.

13. DEATH OF GRANTOR OR OWNER OF EQUITY OF REDEMPTION.] § 13. In case of the death of the grantor in any mortgage or trust deed in the nature of a mortgage, such grantor being at the time of his decease the owner of the equity of redemption of the premises so granted, or in case of the death of any person owning the equity of redemption of any premises mortgaged or conveyed in trust as a security for money, no sale shall be made by virtue of any power of sale contained in such mortgage or trust deed, or given in relation thereto; but the same may be foreclosed in the same manner as mortgages not containing power of sale may now be foreclosed at law or in chancery. [L. 1869, p. 410, § 1

14. NOTICE OF SALES UNDER POWER-COSTS.] § 14. In all sales of real estate under a mortgage, or trust deed in the nature of a mortgage, executed after the taking effect of this act, which may be made pursuant to a power of sale, at least thirty days' previous notice of such intended sale shall be given, whether so specified in the power of sale or not. It shall be sufficient to insert in such notice the date of the instrument, names of the grantor and grantee, and of the assigns if any, the amount of indebtedness the instrument was given to secure, the amount claimed to be due, a description of the premises to be sold, and the time, place and terms of the sale; and no sale shall be made except in the county in which the premises are situated. The notice shall be given by publication once in each week, for four successive weeks, in some newspaper or other paper authorized by law to publish legal notices, published in the county or counties where the premises are situated, or if no paper is published in such county, the nearest newspaper published in this state; but in no case shall a notice be given for a shorter time than is required by the mortgage or deed of trust. And in no case shall the mortgagee, trustee, or person making the sale, be entitled to charge as costs of advertisement more than the actual costs necessarily expended in giving notice as herein required.

15. RECITALS.] § 15. A recital in a deed made in pursuance of a power contained in a mortgage or deed of trust, that due notice of the sale had been given, shall be prima facia evidence of the giving of such notice.

16. DECREES FOR BALANCE-EXECUTION.] § 16. In all decrees hereafter to be made in suits in equity directing foreclosure of mortgages, a decree may be rendered for any balance of money that may be found due to the complainant over and above the proceeds of the sale or sales, and execution may issue for the collection of such balance, the same as when the decree is solely for the payment of money. And such decree may be rendered conditionally, at the time of decree

ing the foreclosure, or it may be rendered after the sale and the ascertainment of the balance due: Provided, that such execution shall issue only in cases where personal service shall have been had upon the defendant or defendants personally liable for the mortgage debt, unless their appearance shall be entered in such suits. [See "Chancery," ch. 22, § 44. L. 1865, p. 36, § 1.

FORECLOSURE OF MORTGAGE BY SCIRE FACIAS.

17. PROCEEDING.] § 17. If default be made in the payment of any sum or money secured by mortgage on lands and tenements, duly executed and recorded, and if the payment be by installments, and the last shall have become due, it shall be lawful for the mortgagee, his assigns, or his or their executors or administrators, to sue out a writ of scire facias from the clerk's office of the circuit court of the county in which the said mortgaged premises may be situated, or any part thereof, directed to the sheriff or other proper officer of any county or counties where the defendants, or any of them, may reside or be found, requiring him to make known to the mortgagor, or, if he be dead, to his heirs, executors or administrators, to show cause, if any they have, why judgment should not be rendered for such sum of money as may be due, by virtue of said mortgage; and upon the appearance of the party named as a defendant in said writ of scire facias, the court may proceed to judgment as in other cases, but if said scire facias be returned nihil, or that the defendant is not found, an alias scire facias may be issued. [Declaration unnecessary. See "Practice," ch. 110, § 27. R. S. 1845, p. 304, § 23.

18. NOTICE BY PUBLICATION AND MAIL.] § 18. If a defendant is a non-resident, or hath gone out of the state, or on due inquiry cannot be found, or is concealed within the state, or evades the service of process, the plaintiff or his attorney may file affidavit in the same form as in like cases in chancery, and notice may be given as in such case. [See "Chancery," ch. 22, § 12.

19. JUDGMENT.] § 19. If the defendant appear and plead or set up any defense, or make default after having been served with scire facias or notified as aforesaid, the court may proceed to give judgment, with costs, for such sum as may be due by said mortgagee, or appear to be due by the pleadings, or after the defense, if any be made. [R. S. 1845, p. 304, § 23.

20. SET-OFF, ETC.] § 20. The defendant may plead or set off any defense, and be allowed to set off a demand in his favor, in the same manner, and the same rules shall apply thereto, as if the suit were in any other form of action.

21. SPECIAL EXECUTION-LIEN.] § 21. The mortgaged premises may be sold to satisfy any judgment the plaintiff in such action may recover, and the court may award a special writ of fieri facias for that purpose, to the county or counties in which said mortaged premises may be situate, and on which the like proceedings may be bad as in other cases of execution levied upon real estate : Provided, however, that the judgment aforesaid shall create no lien on any other lands or tenements than the mortgaged premises, nor shall any other real or personal property of the mortgagor be liable to satisfy the same; but nothing herein contained shall be so construed as to affect any collateral security given by the mortgagor for the payment of the same sum of money, or any part thereof, secured by the mortgage deed. [R. S. 1845, p. 304, § 23.

[§ 22, repeal, omitted; see "Statutes," ch. 131, § 5.

AN ACT to revise the law in relation to names. [Approved February 25, 1874. In force July 1, 1874.) 1. PROCEEDING IN CIRCUIT COURT.] § 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly, That if any person, being a resident of this state, and having resided therein six months next preceding the term of court at which the relief herein provided for is sought to be obtained, shall desire to change his name, and to assume another name by which to be afterwards called and known, such person may file a petition in the circuit court of the county wherein he shall reside, praying for such relief; and upon its appearing to the court that the conditions hereinafter mentioned have been complied with, and there appearing no reason why the prayer should not be granted, the court, by an order to be entered on its record, may direct and provide that the name of such person shall be changed in accordance with the prayer in said petition. Whenever any infant has resided in the family of any person for the space of three years, and has been recognized and known as an adopted child in the family of such person, the application herein provided for may be made by the person having such infant in his family. [L. 1859, p. 128, § 1.

2. FORM OF PETITION—AFFIDAVIT.] § 2. Such petition shall set forth the name then held, and also the name sought to be assumed, together with the residence of the petitioner, and the length of time he shall have resided in this state, and shall also state the state or country of his nativity, or supposed nativity, and be signed by the person petitioning, or in case of minors, by the parent or guardian having the legal custody of said minor; and said petition shall be verified by the affidavit of some credible person. [L. 1859, p. 128, § 2.

3. NOTICE OF APPLICATION.] § 3. Previous notice shall be given of such intended application, by publishing a notice thereof in some newspaper published in the county where such person shall reside, or if no newspaper shall be published in said county, then in some convenient newspaper published in this state; which notice shall be inserted for three consecutive weeks, the first insertion to be at least six weeks prior to the first day of the term of the court in which the said petition is to be filed, and shall be signed by the petitioner, or in case of a minor, his parent or guardian, and shall set forth the term of the court at which the petition is to be filed, and the name sought to be assumed. [L. 1859, p. 128, § 3.

AN ACT to revise the law in relation to ne exeat. [Approved March 12, 1874. In force July 1, 1874.)

1. WHEN WRIT MAY ISSUE. § 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly, That writs of ne exeat republica may hereafter be granted, as well in cases where the debt or demand is not actually due, but exists fairly and bona fide in expectancy at the time of making applica tion, as in cases where the demand is due; and it shall not be necessary, authorize the granting of such writ of ne exeat, that the applicant should show that his debt or demand is purely of an equitable character, and only cognizable before a court of equity. [R. S. 1845, p. 381, § 1.

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2. IN FAVOR OF CO-OBLIGORS OR CO-DEBTORS.] § 2. In case of joint, or joint and several obligors or debtors, if one or more of them be about to remove without the jurisdictional limits of this state, taking their property with them, leaving one or more co-obligors or co-debtors bound with them for the payment of any sum of money, or for the delivery of any article of property, or for the conveyance of land at a certain time, which time shall not have arrived at the time of such intended removal, such co-obligor or co-debtor who remains shall be entitled, upon application, to a writ of ne exeat, to compel the co-obligor or codebtor who is about to remove to secure the payment of his part of the sum to be paid, or of the delivery of the property, or to convey, or to join in the conveyance of the land. Also, in cases of security, the writ of ne exeat may issue, on application of a security, against the principal or co-security, when the obligation or debt shall not be yet due, and the principal or co-security is about removing out of the state. [R. S 1845, p. 381, § 2.

3. WHAT COURTS MAY ISSUE.] § 3. The superior court of Cook county, and the circuit courts in term time, and any judge thereof in vacation, shall have power to grant writs of ne exeat. [See "Courts," ch. 37, § 45. R. S. 1845, p. 382, § 8.

4. MASTER IN CHANCERY MAY ORDER.] § 4. When no judge authorized to issue writs of ne exeat is present in the county, or being present, is unable or incapacitated to act, a master in chancery in such county may order the issuing of such writs. [R. S. 1845, p. 99, § 50.

5. BILL OR PETITION-BOND-SUIT ON.] § 5. No writ of ne exeat shall be granted but upon bill or petition filed, and affidavit to the truth of the allegations therein contained. Upon the granting of any such writ, the court, judge or master shall indorse or cause to be indorsed upon the bill or petition, in what penalty bond and security shall be required of defendant. Said court, judge or master shall also take or cause to be taken of the complainant, before the writ shall

issue, bond with good and sufficient surety, in such sum as the court, judge or master shall deem proper, conditioned that the said complainant will prosecute his bill or petition with effect, and that he will reimburse to the defendant such damages and costs as he shall wrongfully sustain by occasion of the said writ. If any defendant to such writ of ne exeat shall think himself aggrieved, he may bring suit on such bond; and if, on trial, it shall appear that such writ of ne exeat was prayed for without a just cause, the person injured shall recover damages, to be assessed as in other cases on penal bonds. [R. S. 1845, p. 381, § 3.

6. VACATION, CLERK DIRECTED TO ISSUE.] § 6. When a writ of ne exeat is granted by a judge or master in vacation, he shall direct the clerk of the court to which the writ is to be returnable to issue the same. [R. S. 1845, p. 382, § 4.

7. HOW RETURNABLE.] § 7. All writs of ne exeat shall be returnable into the court out of which they issue. [R. S. 1845, p. 382, § 4.

8. FORM OF WRIT-TEMPORARY DEPARTURE NO BREACH.] § 8. The writ of ne exeat shall contain a summons for the defendant to appear in the proper court, and answer the petition or bill, and upon the writ being served upon the said defendant, he shall give bond, with surety in the sum indorsed on such writ, conditioned that he will not depart the state without leave of the said court, and that he will render himself in execution to answer any judgment or decree which the said court may render against him; and in default of giving such security, he may be committed to jail, as in other cases, for the want of bail. No temporary departure from the state shall be considered as a breach of the condition of the said bond, if he shall return before personal appearance shall be necessary to answer or perform any judgment, order or decree of said court. [R. S. 1845, p. 382, § 5.

9. SURRENDER OF DEFENDANT.] 89. The surety in any bond for the defendant, as aforesaid, may, at any time before the said bond shall be forfeited, surrender the said defendant, in exoneration of himself, in the same manner that bail may surrender their principal, and obtain the same discharge. [See "Bail, etc.," ch. 16, § 11, seq. R. S. 1845, p. 382, § 6.

10. PROCEEDINGS ON RETURN OF WRIT.] § 10. On the return of the writ of ne exeat, if the same shall have been duly served, the court shall proceed therein as in other cases in chancery, if the time of performance of the duty or obligation of the defendant has expired; if not, then the proceedings shall be stayed until it has expired. [R. S. 1845, p. 382, § 7.

11. QUASHING OR SETTING ASIDE WRIT.] § 11. Nothing contained in the preceding section shall prevent the court from proceeding at any time to determine whether the writ ought not to be quashed or set aside. [R. S. 1845, p. 382, § 7.