delivered the opinion of the Court:
Appellee in this ease filed a bill in the Eord circuit court, against appellants, to foreclose a mortgage given on a tract of land in that county, to secure three promissory notes, amounting in the aggregate to $1000. This is a second suit commenced in that court to foreclose the same mortgage. The first bill was filed by the same complainant against the same defendants. That ease was heard, a decree rendered, and appealed to this court, where the decree was reversed, and the cause ordered to be remanded, but the order was not applied for or issued within two years, and the Case became discontinued.
On the trial of this case it was proved that the records and files in the former case were destroyed by the burning of the clerk’s office of that court. On the hearing appellants offered and read in evidence copies of two depositions of defendant Dowden, taken and read in evidence on the trial in the .former case. The copies were from the transcript of the record in this court, and were properly certified to be true copies by the clerk of this court. They were read on the hearing, subject to the objections of complainant.. There had been filed among the papers of this case, at or before the hearing, an agreement between counsel of the respective parties, that counsel for defendants might, on the hearing, read the transcript of the record in this court, but being unable to procure leave to withdraw it for the purpose, on an application he procured the copies thus certified, and complainant’s counsel objected because they were copies. In deciding the case the court, it is claimed, declined to consider the copies of these depositions. When the case was heard and submitted at the April term, 1882, the court took the ease under advisement, to be decided in vacation, and on the 30th day of August following, a final decree foreclosing the mortgage was filed, entitled of the preceding April term, and recorded by the clerk as of that term. Subsequently appellants’ counsel, on the 4th day of October, 1882, applied to the judge in vacation for an order for a rehearing, but the application was denied, and defendants perfected an appeal to the Appellate Court for the Third District, where the decree of foreclosure was affirmed, and they appeal to this court.
The first question we shall consider is, whether the judge erred in refusing, on the application in vacation, to grant a rehearing of the case. We regard the 47th section of chapter 37 as settling the practice in such cases. It provides that where a cause or matter is taken under advisement, and it is decided in vacation, the judgment, decree or order may he entered of record in vacation, but such judgment, decree or order may, for good cause shown, be set aside, or modified, or excepted to -at the next term of the court, on motion filed on or before the second day of the term, of which the opposite party, or his attorney, shall have reasonable notice, and if not so set aside or modified, it shall thereupon become final. This section afforded appellants the opportunity, at the December term, 1882, to apply and show cause for setting aside the decree and obtaining a re-trial. The statute does not contemplate such an application in vacation, nor can we see the slightest necessity for such a practice, as all can be had by an application in term time that could be in vacation. Where the statute has prescribed one mode of accomplishing a purpose, which is full and complete, it must be presumed that other modes were intended to be excluded. Nor were defendants deprived of, this right by the decree being entitled of, and the clerk recording it as of, the April term. That could be done only as prescribed by the 48th section of the same act. That section requires the consent of the parties to authorize a decree rendered in vacation to be entered as a decree of the term at which the case was submitted and taken under advisement. The record in this case shows no such agreement, and inasmuch as appellants took no steps to set aside the decree at the December term, they have waived all right to have the decree set aside, and to have a re-trial.
Inasmuch as the copies of the depositions of Dowden were read in evidence, they must be considered, unless complainant’s objection was well taken. Were they properly admitted under the agreement that the record might be read? We think they were. In substance and in fact there was not a particle of difference between that portion of the transcript and the true copies that were read. It is a mere quibble to say that they are not the same in substance, or to say that complainant was taken by surprise, or that he sustained a particle of injury by reading the copies instead of the originals as contained in the transcript on file in this court. Although copies were not specifically named in the agreement, they were within the implication and spirit of the agreement, and were properly admitted, and should have been considered by the court below. But we, on an appeal in a chancery case, consider all the evidence properly in the record, and must consider the depositions in connection with the other legitimate evidence in the case.
Having disposed of these preliminary questions, we shall proceed to consider the ease on its merits. Does the evidence sustain the decree ? There is no question that the notes were given for the purchase of a patent right to a brake for wagons, etc. There was no other consideration for the notes or the mortgage securing them. Had appellants been fully satisfied the brake was worthless, why did they not, in the years that have elapsed since the decree was reversed, have a brake constructed, and its quality fully tested? It would have required but slight expense or trouble. It was not done, and no doubt because it would in all probability have proved to be all that it wras represented. None of the witnesses, except one, pretend ever to have seen a brake made from this model, and he only saw it attached to a wagon standing still. It is not probable that he could, from the standing wagon, form a correct opinion as to its working in descending a hill, when its operation would be tested. None of the other witnesses ever saw anything more than the model, and they say that they had seen others that were worked on the same principle, and this was worthless. They only state their opinions. They do not state or explain the principle, or give any reason why it would not work. Although they say they are experts, we fail to see they were.
■ Again, independent of that, the defence fails for other reasons. It is claimed that the invention was not new, and that fact is proved by the evidence, and not being true, there was a fraud perpetrated on appellants, and the consideration had failed. On turning to the answer we find that no such representation is alleged to have been made when Wilson purchased. The allegations and proofs must agree to render a ^defence available. Whatever the proofs may establish, there is no allegation in the answer that the patent was represented to be a new invention, and hence this evidence has no application to the answer, as that is not set up as a defence. The other representations were only such as are usual in commending an article for sale, and were not fraudulent, and require no further consideration. Moreover, appellants, so far as we can see from the record, have never offered to release or cancel the deed conveying to them the right to manufacture and vend the brake, nor do they offer in their answer to do so, but so far as we can see they still hold the right to manufacture and vend the brake. Even if there was fraudulent representation set up as a defence, or failure of the consideration in the purchase, appellants should have restored, or offered to restore, the title to the patent to the vendors. They have no right to hold that and escape paying the consideration for the notes and mortgage. What else the proofs may show, there is no allegation or proof that the title was reconveyed, or offered to be reconveyed. This, of itself, precludes appellants from insisting upon the defence
Eor these reasons the decree of the court below is affirmed.
Decree affirmed.
Mr. Justice Scott : I d,o not concur in this opinion.