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        {
            "id": 2747110,
            "url": "https://api.case.law/v1/cases/2747110/",
            "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Danny Tobin, Defendant-Appellant",
            "name_abbreviation": "People v. Tobin",
            "decision_date": "1771-10-12",
            "docket_number": "No. 70-17",
            "first_page": "538",
            "last_page": "543",
            "citations": [
                {
                    "type": "official",
                    "cite": "2 Ill. App. 3d 538"
                }
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                "url": "https://api.case.law/v1/volumes/32044078693009/",
                "volume_number": "2"
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                "url": "https://api.case.law/v1/reporters/322/",
                "full_name": "Illinois Appellate Court Reports, Third Series"
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            "court": {
                "url": "https://api.case.law/v1/courts/ill-app-ct/",
                "id": 8837,
                "slug": "ill-app-ct",
                "name": "Illinois Appellate Court",
                "name_abbreviation": "Ill. App. Ct."
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                        "John D. Shulleriberger, Morton Zwick, Director of Defender Project, of Chicago, (Matthew J. Moran, and Norman W. Fishman, of Defender Project, of counsel,) for appellant.",
                        "Robert H. Rice, State’s Attorney, of Belleville, for the People."
                    ],
                    "opinions": [
                        {
                            "author": "Mr. PRESIDING JUSTICE EBERSPACHER",
                            "type": "majority",
                            "text": "Mr. PRESIDING JUSTICE EBERSPACHER\ndelivered the opinion of the court:\nDefendant Tobin was convicted by a jury of the crime of burglary. The court entered judgment upon the verdict and sentenced the defendant to a fifteen to twenty-five year term in the Illinois State Penitentiary. The judgment of the court further provided that the mittimus was to be effective upon release by federal authorities.\nThe defendant has appealed from that judgment and raised the following issues: (1) The State failed to prove lack of authority to enter the premises; (2) The State failed to prove intent to commit a theft; (3) The court erred in allowing testimony concerning the arrest of Sherri Tobin, her possession of a firearm and evidence concerning defendant’s possession of a firearm; (4) The sentence was excessive.\nThe facts giving rise to this case are as follows: On the night of February 9, 1969, at about 11:00 P.M. the defendant, in the company of Sherri Tobin, Daniel Stout, Michael Hume and Eddie Dunn was in an automobile driven by defendant in the vicinity of the Oliver C. Joseph Automobile Agency in Belleville. Their behavior while driving was observed by James Muir who resided nearby. He stated the car stopped by the agency and the driver, identified as Tobin, jumped out and ran across the street and kicked the agency door. The car in the meantime circled the block and picked Tobin up. The car drove away and Muir next observed four men walking up the street to the agency. Muir recognized one of the four as the man who kicked the door. The four men then entered the agency building by the same door previously kicked. Muir then called the police.\nThe police arrived and Officers Rettle and Wobbe observed four men walking through the building. Two other policemen arrived. Rettle observed two of the suspects at the back door. He identified himself and ordered them out. They disappeared back inside the building. The police entered the building and found one suspect lying under a car, After turning on the lights they searched the building. The other suspects were found in the basement. The defendant was hiding behind an air compressor when discovered.\nAfter apprehending all four men the police with Mr. Muir’s help located the car a few blocks away. Sherri Tobin was found in the car asleep. She was carrying a “.38 caliber snub-nosed revolver, fully loaded, with the serial numbers filed off” in the waist band of her slacks. One of the defendants, Hume, testified for the State and said defendant stated earlier in the evening that they would go to Belleville and “make some money”. He also stated that defendant brought a gun into the building.\nThe evidence also showed that the door jamb of the door kicked by defendant was splintered and the door opened by force.\nAdditionally, Mr. Oliver P. Joseph testified that the building was owned by and in the possession of Oliver C. Joseph, Inc., a corporation, engaged in the selling of automobiles.\nAs to the authority to be in the premises, “* * * the law presumes that the presence in a public building for a purpose inconsistent with the purposes for which the building is open to the public is without authority”. (People v. Urban (1971), (Ill.App.2d), 266 N.E.2d 112, 114. Also see People v. Weaver (1968), 41 Ill.2d 434, 243 N.E.2d 245 cert. den. 395 U.S. 959, 89 S.Ct. 2100, 23 L.Ed.2d 746.) Here the defendant (a) had to break open a door to gain admission, (b) at 11:00 P.M., (c) when the buffding was unlit, and (d) hid in the basement upon arrival of the police. Under these circumstances there was sufficient evidence for the jury to believe that his presence was without authority.\nIn regard to the question of intent there is also sufficient circumstantial evidence for the jury to believe that Tobin intended to commit a theft in the building. Intent must ordinarily be proved circumstantially, by inferences drawn from conduct appraised in its factual environment.” (People v. Johnson (1963), 28 Ill.2d 441, 192 N.E.2d 864, 866.) The Court in Johnson went on to say:\n“* * * We are of the opinion that in the absence of inconsistent circumstances, proof of unlawful breaking and entry into a building which contains personal property that could be the subject of larceny gives rise to an inference that will sustain a conviction of burglary. Like other inferences, this one is grounded in human experience, which justifies the assumption that the unlawful entry was not purposeless, and, in the absence of other proof, indicates theft is the most likely purpose.”\nThe circumstances of the entry coupled with Hume’s testimony that Tobin intended to “make some money” in BeUeviHe is sufficient evidence of intent to commit a theft.\nThe third aUeged error relates to Sherri Tobin’s arrest and the question of firearms. It is contended that the evidence of Sherri’s arrest is not only irrelevant but introduced solely for the purpose of bringing in evidence of the .38 cafibre gun to prejudice the jury. In regard to Tobin’s possession of a firearm the only evidence of this is Hume’s testimony. No gun was introduced into evidence.\nWhile the evidence of Sherri’s arrest may not have been essential to the conviction of Tobin, it apprised the finder of fact of the total circumstances surrounding the event and at worst, it is harmless error. The defendant has aHeged prejudice but a careful search of the record discloses none. Such evidence did not prove an element of the crime not estabfished by other properly admitted evidence. People v. Landgham (1970), 122 Ill.App.2d 9, 275 N.E.2d 484; People v. Jones, (1970), 125 Ill.App.2d 30, 259 N.E.2d 585.\nDefendant argues that his sentence was excessive because he received a heavier sentence than his co-defendants who pleaded guilty to the same offense. The record shows that Eddie Dunn and Michael Hume were each placed on probation for a period of five years. Daniel Stout was sentenced to not less than five nor more than ten years. Defendant asserts that he was penalized for having exercised his constitutional right to a trial by jury.\nThe basic principles regarding sentencing are set forth in People v. Jones, 118 Ill.App.2d 189, 254 N.E.2d 843, 847:\n“We recognize that not every offense in a like category calls for an identical punishment. There may be a proper variation in sentences as between different offenders, depending upon the circumstances of the individual case. As a general rule, where the punishment for the offense is fixed by statute, that imposed in the sentence must conform thereto, and a sentence which conforms to statutory regulation is proper. Before an AppeUate Court wiU interfere, it must be manifest from the record that the sentence is excessive and not justified by any reasonable view which might be taken of the record. People v. Hobbs, 58 Ill.App.2d 93, 99, 205 N.E.2d 503 (1965). Disparity of sentences between defendants does not, of itself, warrant the use of the power to reduce a punishment imposed by the trial court. People v. Thompson, 36 Ill.2d 478, 482, 224 N.E.2d 264 (1967).”\nHume had no prior criminal record. The records of the other defendants do not appear in the record on this appeal. Defendant Tobin had a prior burglary conviction as a juvenile on which he served a year, and contrary to the provision of his pretrial bail, he left the State. While gone he became involved with federal authorities as evidenced by the fact that his presence at trial was secured by virtue of a Writ of Habeas Corpus Ad Prosequendum. Tobin was also the apparent ringleader of the burglary. He drove the car, planned the burglary, selected the site and broke open the door. Under the circumstances, we find the factual situation to differ from People v. Jones, supra, on which defendant relies, and a penalty greater than that imposed upon defendant’s accomplices is approved.\nHowever, we do not consider the possibility of rehabilitation to be so remote as to justify a sentence of 15 to 25 years, which as a practical matter leaves little or no room for rehabilitation; nor does such sentence provide for an exercise of the discretion of parole authorities at a time when such discretion may contribute most to rehabilitation. As a result we would consider that the sentence should be modified to provide a minimum of seven years and a maximum of 20 years.\nLastly, defendant claims the court erred in making his sentence consecutive to a possible future federal sentence. We agree. However, the remedy is not necessarily to make the sentence concurrent with a possible future federal sentence as argued by defendant. See Ill. Rev. Stat. ch. 38, pars. 119 — 1 and 119 — 2.\nThe language “Mittimus to be effective upon release by federal authorities” is too broad and does not clearly define what sentence the imposed sentence is to follow. See Ill. Rev. Stat. ch. 38, par. 7 — 1. We would particularly call attention to the fact that ch. 38, par. 7 — l(n) makes provision only for a concurrent sentence with a “previous and unexpired sentence” imposed by a Federal District Court. During the oral argument in June 1971, this Court was advised that the defendant’s involvement with federal authorities to which we have referred is that depicted by United States v. Tobin, 426 Fed.2d 1279, in which defendant’s conviction was reversed and the cause remanded for a new trial in May 1970, and that defendant had not been reprosecuted in that cause.\n“A sentence should be so complete as not to require construction by the court to ascertain its import, and so complete that it will not be necessary for a nonjudicial or ministerial officer to supplement the written words to ascertain its meaning.” People v. Walton (1969), 118 Ill.App.2d 324, 254 N.E.2d 190, 194 — 5.\nThe judgment of conviction is affirmed, the sentence is modified to provide a minimum sentence of seven years and a maximum sentence of twenty years;\nJudgment with sentence so modified is affirmed.\nMORAN and CREES, JJ., concur."
                        }
                    ],
                    "head_matter": "Fifth District\n(No. 70-17;\nThe People of the State of Illinois, Plaintiff-Appellee, v. Danny Tobin, Defendant-Appellant.\n— October 12, 1771.\nRehearing denied December 9,1971.\nJohn D. Shulleriberger, Morton Zwick, Director of Defender Project, of Chicago, (Matthew J. Moran, and Norman W. Fishman, of Defender Project, of counsel,) for appellant.\nRobert H. Rice, State’s Attorney, of Belleville, for the People.",
                    "parties": [
                        "The People of the State of Illinois, Plaintiff-Appellee, v. Danny Tobin, Defendant-Appellant."
                    ]
                }
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        {
            "id": 435537,
            "url": "https://api.case.law/v1/cases/435537/",
            "name": "James A. Whitesides and others, Plaintiffs in Error, v. The People of the State of Illinois, Defendants in Error",
            "name_abbreviation": "Whitesides v. People",
            "decision_date": "1819-12",
            "docket_number": "",
            "first_page": "21",
            "last_page": "22",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 21"
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                "id": 8772,
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                "name": "Illinois Supreme Court",
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                "id": 29,
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                        {
                            "author": null,
                            "type": "majority",
                            "text": "Opinion of the Court. This was a criminal prosecution for a riot, against the plaintiffs in error. Three errors are assigned.\n1. Uncertainty in the indictment, in not averring the year to be the year of our Lord.\n2. The form prescribed by the constitution, in which criminal prosecutions shall be commenced, is not pursued.\n3. There is not such a criminal offense alleged in the indictment, as will make the plaintiffs in error guilty of a riot, if committed.\nOn the first point, the law makes it necessary to have common certainty in every indictment, and nothing can be inferred to aid it. Without inference, the year could not be gathered from the indictment, and therefore it is defective. On the second point, when a constitution or act of the legislature, prescribes a certain form to be used in legal proceedings, it would seem that the court has no power to dispense with that form. Therefore, as the indictment does not pursue the form given in the constitution, that all indictments shall be carried on “ in the name, and by the authority of the people of the state of Illinois,” it is bad.\nOn the third point, the charge in the indictment is, that the defendants made a great noise and disturbance of the peace. This, the court considers too vague and uncertain. In criminal proceedings, the charge should be distinct and positive, and the way and manner in which the great noise and disturbance of the peace was made, should have been stated. For this omission, the indictment\"is also defective. The judgment of the court below must be reversed,\n(a)\nJudgment reversed.\n(a) In an indictment a day certain must be stated, so must also the year, otherwise the indictment will be insufficient, and (in England) the year of the king’s reign is usually inserted; but the year of our Lord is equally unobjectionable. Archbold’s Crim. Pl., 11.\nThe criminal code of 1827, page 157, provides, that “All exceptions which go merely to the form of an indictment, shall be made before trial, and no motion in arrest of judgment, or writ of error shall be sustained, for any matter not affecting the real merits of the offense charged in the indictment.\""
                        }
                    ],
                    "head_matter": "James A. Whitesides and others, Plaintiffs in Error, v. The People of the State of Illinois, Defendants in Error.\nERROR TO POPE.\nIf an indictment does not aver the year to be the year of our Lord, and does not contain the words, “ in the name and by the authority of the people of the state of Illinois,” it is bad.\n(1)\nIn an indictment for a riot, the facts constituting a riot, should be clearly set forth.\n(1) An indictment or complaint which states the year of the commission of the offense in figures only, without prefixing the letters “A. D.” is insufficient. Commonwealth v. McLoon, 5 Gray, (Massachusetts) Rep., 91. State v. Lane, 4 Iredell, 121.\nIn State v. Hodgeden, 3 Vermont Rep., 481, the time of the commission of the offense was stated as follows: “A. D. 1830,” and was held to be sufficient. And similar was the case of State v. Gilbert, 13 Vermont Rep., 647.\nIn Hall v. State, 3 Georgia Rep., 18, the offense was charged to have been committed “ In the year eighteen hundred and forty-six ; ” and the court said they would presume that to mean “ In the year of our Lord.\" The same was held by the Supreme Court of Indiana in Engleman v. State, 2 Carter, 91.\nProm the authorities we think an indictment which alleges an offense to have been committed “in the year,\" &c., would be held good, although the words “ of our Lord,\" were omitted.\nIn McFadden v. Fortier, 20 Ill. Rep., 515, the court referred to the second proposition decided in the case of Whitesides v. The People, and approved of the decision in that case.",
                    "parties": [
                        "James A. Whitesides and others, Plaintiffs in Error, v. The People of the State of Illinois, Defendants in Error."
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        {
            "id": 435638,
            "url": "https://api.case.law/v1/cases/435638/",
            "name": "Amos Chipps, Appellant, v. Thomas Yancey, Appellee",
            "name_abbreviation": "Chipps v. Yancey",
            "decision_date": "1819-12",
            "docket_number": "",
            "first_page": "19",
            "last_page": "19",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 19"
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            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
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                "id": 8772,
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                "slug": "ill",
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                        {
                            "author": null,
                            "type": "majority",
                            "text": "Opinion of the Court.\n*\nThis was an action of debt on a judgment rendered in the State of Kentucky. The defendant pleaded nil debet, to which there was a demurrer, which the court sustained. To reverse this opinion, this appeal was taken. It is considered by the court, that the judgment of the court below, sustaining the plaintiff’s demurrer, to the defendant’s plea, be affirmed with costs,\n(a)\n(1)\nJudgment affirmed.\n* Justice Wilson having decided this cause in the court below, gave no opinion.\n(a) Nil debet is a bad plea in an action of debt brought on a judgment obtained in another State. Armstrong v. Carsars, exr., 2 Dall, 302. Mills v. Duryee, 7 Cranch, 480.\nNil debet is not a good plea to an action of debt on a recognizance, nor to any action founded on a record or specialty. Bullís v. Giddins, 8 Johns., 82.\n(1) In an action of debt brought on a sheriff’s bond, the plea of nil debet is bad on demurrer. Where a bond is'the foundation of an action of debt, nil debet is not a good plea. It is otherwise where the instrument is but the inducement to the action. Davis v. Burton et al., 3 Scam., 42. King v. Ramsey, 13 Ills. R., 622."
                        }
                    ],
                    "head_matter": "Amos Chipps, Appellant, v. Thomas Yancey, Appellee.\nAPPEAL FROM POPE.\nThe plea of nil debet is not a good plea to an action of debt upon a record.",
                    "parties": [
                        "Amos Chipps, Appellant, v. Thomas Yancey, Appellee."
                    ]
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        },
        {
            "id": 435690,
            "url": "https://api.case.law/v1/cases/435690/",
            "name": "Jonathan Taylor, Appellant, v. Michael Sprinkle, Appellee",
            "name_abbreviation": "Taylor v. Sprinkle",
            "decision_date": "1819-12",
            "docket_number": "",
            "first_page": "17",
            "last_page": "18",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 17"
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            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
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            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
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            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
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            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
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                        {
                            "author": null,
                            "type": "majority",
                            "text": "Opinion of the Court.\n*\nThis was an action of covenant. The fifth plea states, that the consideration failed. This plea was demurred to, and the demurrer sustained by the court. The validity of the fifth plea, is the only point before the court. The plea was filed under the statute,\n†\nwhich introduces a new remedy contrary to the common law, and ought not to be extended too far; and in all special pleas, the manner of avoiding the obligation ought to be shown. As the precise manner is not shown by this plea, it is insufficient, and the demurrer to it was properly sustained. The judgment of the circuit court is affirmed, with five per cent, damages and costs.\n(1)\nJudgment affirmed.\n* Justice Browne having decided this cause in the court below, gave no opinion.\n† Laws of 1819, page 59.\n(1) The principle asserted in this case has been repeated in numerous cases since this decision was made. A reference only to them is necessary. Cornelius v. Vanorsdale, post. Pool v. Vanlandingham, id. Bradshaw v. Newman, id. Sims v. Klein, id. Swain v. Cawood, 2 Scammon, 505. Vanlandingham v. Ryan, 17 Illinois Rep., 25.\nA plea of failure of consideration to an action upon a note, should state particularly in what the failure consisted. General allegations are not sufficient. Parks v. Holmes, 22 Illinois Rep., 522.\nUnder the general issue it is not competent to show a total or partial failure of consideration of a promissory note. Rose v. Mortimer, 17 Illinois Rep., 475.\nUnder a plea of a total failure of consideration, a partial failure can not be given in evidence. Sims v. Klein, post. Swain v. Cawood, 2 Scam., 505."
                        }
                    ],
                    "head_matter": "Jonathan Taylor, Appellant, v. Michael Sprinkle, Appellee.\nAPPEAL FROM GALLATIN.\nIn all special pleas to the consideration of a note, the manner of avoiding the obligation ought to be shown; a failure to do it is error.",
                    "parties": [
                        "Jonathan Taylor, Appellant, v. Michael Sprinkle, Appellee."
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        {
            "id": 435710,
            "url": "https://api.case.law/v1/cases/435710/",
            "name": "François Coleen and Abraham Claypole, Appellants, v. Daniel Figgins, Appellee",
            "name_abbreviation": "Coleen v. Figgins",
            "decision_date": "1819-12",
            "docket_number": "",
            "first_page": "19",
            "last_page": "20",
            "citations": [
                {
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                    "cite": "1 Ill. 19"
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                "volume_number": "1"
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                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
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            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
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                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
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                "data": {
                    "judges": [],
                    "attorneys": [
                        "Kane, for appellants.",
                        "Winchester, for appellee."
                    ],
                    "opinions": [
                        {
                            "author": null,
                            "type": "majority",
                            "text": "Opinion of the Court.\n†\nIt appears from the record in this cause, that the writ issued by the Madison circuit court, on the 31st day of March, 1819, and made returnable to May term following, and that the act creating circuit courts, passed on the same day the writ issued. Although it appears, that the act establishing circuit courts, passed on the 31st day of March, yet the court are clearly of opinion, that it did not take effect until the first day of April, and that the process is therefore void, as the clerk had no authority to issue the writ, and make it returnable to a court not in existence, at the time the writ issued. No appearance could make the writ good. The court below was bound to have quashed it, it differing materially, from process that is voidable merely, where appearing and pleading might cure the defect.\nIt is unnecessary for the court, to notice any other error assigned, as the point already decided, determines the case.\nThe judgment of the court is reversed,\n(a)\n(1)\nJudgment reversed.\n† Justice Beynolds having decided this cause in the court below, gave no opinion.\n(a) An appearance of the defendant by attorney, cures any antecedent irregularity of process. Knox et al. v. Summers et al., 3 Cranch, 496.\nProcess returnable out of term is void, and can not be amended. Cramer v. Van Alstyne, 9 Johns., 386.\n(1) It can hardly admit of a doubt that an appearance cures all defects as to the manner in which a party is brought into court. If a party, without process, pleads to an action, it is too late for him then to say that no process was issued or served on him. He is then in court, and it is immaterial whether he appears in compliance with the mandates of the law, or whether he waives a right which he might have insisted on, and voluntarily places himself in a position in which he is required to make bis defense. The decisions on this question are uniform. In Easton et al. v. Altum, 1 Scam., 250, the court said: “ The authorities are numerous and explicit, that irregularity of process, whether the process be void or voidable, is cured by appearance without objection.” And in Mitchell v. Jacobs et al., 17 Ills. Rep., 236 : “A defendant appearing without objection waives all objections thereto, although the process may be void, or there may have been no service.” To the same effect is Mineral Point R. R. Co. v. Keep, 22 Ills. Rep., 9. The following cases have also been passed upon by the Supreme Court of this State, in each of which this question arose, and received substantially the same solution. Pearce et al. v. Swan, 1 Scam., 269. Vance et al. v. Funk, 2 Scam., 263. Beecher et al. v. James et al. id., 463. Palmer v. Logan, 3 Scam., 57. Bowles’ heirs v. Rouse, adm’r., 3 Gilm., 409. Whittaker et al. v. Murray et al., 15 Ills. R., 294.\nAlthough a general appearance will cure all irregularities as to the issuing or service of process, yet an appearance for the purpose of objecting to such process or service will not have that effect. Mitchell v. Jacobs et al., 17 Ills. R., 236. Anglin v. Nott, 1 Scam., 395. Little v. Carlisle et al., 2 Scam., 376."
                        }
                    ],
                    "head_matter": "François Coleen and Abraham Claypole, Appellants, v. Daniel Figgins, Appellee.\nKane, for appellants.\nWinchester, for appellee.\nAPPEAL FROM MADISON.\nThe act of the General Assembly creating circuit courts, was approved on the 31st of March, 1819, and on the same day a writ issued out of the clerk’s office of the circuit court of Madison county, returnable to the May term following.\nThe writ is void, as the act had no operation until the 1st day of April. Appearance can not make the writ good, that and pleading, will cure voidable, but not void process.",
                    "parties": [
                        "François Coleen and Abraham Claypole, Appellants, v. Daniel Figgins, Appellee."
                    ]
                }
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        {
            "id": 435814,
            "url": "https://api.case.law/v1/cases/435814/",
            "name": "Elijah Smith who sues for the use of William Johnson, Appellant, v. William Bridges, Appellee",
            "name_abbreviation": "Smith v. Bridges",
            "decision_date": "1819-12",
            "docket_number": "",
            "first_page": "18",
            "last_page": "18",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 18"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [],
                    "opinions": [
                        {
                            "author": null,
                            "type": "majority",
                            "text": "Opinion of the Court.\n*\nThe plaintiff below, states in his petition, that he “ holds notes on, &o.” and the instrument on which suit is brought, has not a single feature of a note, inasmuch as it does not appear there was any undertaking by the defendant to pay any person at all.\nAlthough no particular form is necessary to make a note, yet the writing must show an undertaking or engagement to pay, and to a person named in it, or to bearer or holder of the instrument. The judgment of the court below is reversed, and the cause remanded to the court below.\n(1)\nJudgment reversed.\n* Justice Reynolds having been counsel in this cause, in the court below, gave no opinion.\n(1.) A promissory note is defined to be “a promise or agreement in writing to pay a specified sum, at a time therein limited, or on demand, or at sight, to a person therein named or his order, or to bearer.” Chitty on Bills, 516. Walters v. Short, 5 Gilm., 259. All notes must contain the name of the payee, unless payable to bearer. Bailey on Bills, 22.\nNo action can be maintained on an instrument in writing for the payment of money, unless the instrument shows on its face to whom it is payable. Mayo v. Chenoweth, post.\nBills of exchange and promissory notes should be made payable to some person specified, but this may be done without inserting the name, if the payee be so certainly specified or referred to, as to be ascertained by allegations and proofs. Adams et al. v. King et al., 16 Ills. Rep., 169.\nAn instrument purporting to be a promissory note, payable to one of two persons in the alternative, can not be sued on as such. Musselman v. Oakes, 19 Ills. Rep., 81."
                        }
                    ],
                    "head_matter": "Elijah Smith who sues for the use of William Johnson, Appellant, v. William Bridges, Appellee.\nAPPEAL FROM MADISON.\nAlthough no particular form is necessary to make a note, yet the writing must show an undertaking or engagement to pay, and to a person named in it, or to hearer or holder of the instrument.",
                    "parties": [
                        "Elijah Smith who sues for the use of William Johnson, Appellant, v. William Bridges, Appellee."
                    ]
                }
            }
        },
        {
            "id": 435571,
            "url": "https://api.case.law/v1/cases/435571/",
            "name": "James Mason, Plaintiff in Error, v. N. Buckmaster, Assignee of P. Mason, Defendant in Error",
            "name_abbreviation": "Mason v. Buckmaster",
            "decision_date": "1820-07",
            "docket_number": "",
            "first_page": "27",
            "last_page": "28",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 27"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [],
                    "opinions": [
                        {
                            "author": null,
                            "type": "majority",
                            "text": "Opinion of the Court. It is necessary by the common law, to make profert of writings under seal, so as to place them in the power of the court, to give 'the opposite party oyer if required, and to let the court see if the deed is fair and honest on view. From the statute, it is necessary for the party to have oyer of writings not under seal, on which suit is brought, as he is bound to deny the execution of them, under the plea of non est factum, under oath. A copy of the writing on which suit is brought, must be filed with the declaration, and the court can, upon a plea of oyer, compel the production of the original, so that no inconvenience can arise from the want of proferí. There is no error then, on this point.\n(1)\nAs to the second point, the court believe it is never necessary to state a consideration in a case on an assigned note, between the maker and the assignee. The judgment of the court below is affirmed,\n(a)\n(2)\nJudgment affirmed.\n(1) Oyer can not be demanded of a record. If there is a variance between the record declared on and the one offered in evidence, it may be taken advantage of under a plea of nul tiel record. Giles v. Shaw, post. Staten v. The People, 21 Ills., 28.\n(a) In declaring upon a bill of exchange or other simple contract, no proferí is made—so when a deed is stated only as inducement. 1 Chitty’s Pl., 259.\nIn an action by the indorsee of a note, not void in its creation, and indorsed before it became due, against the maker, the consideration can not be inquired into. Baker v. Arnold, 3 Caine’s Rep., 279.\nIf a note has been fraudulently obtained and put into circulation, in an action by the indorsee against the maker, it is competent for the defendant to show a want of consideration. Woodhull v. Holmes, 10 Johns., 231.\n(3)\n(2) An action of debt may be maintained on a bill of exchange by the payee against the drawer, although no consideration be expressed on its face. Dunlap v. Buckingham, 16 Ills., 109.\n(3) Section 11, page 292, Scales’ Compl. Purple’s Statutes, page 773, provides, “ If any fraud or circumvention be used, in obtaining the making or executing of any of the instruments aforesaid, (notes and bonds,) such fraud or circumvention may be pleaded in bar to any action to be brought on any such instrument so obtained, whether such action be brought by the party committing such fraud or circumvention, or any assignee or assignees of such instrument.” This statute has received a construction in the following cases. Woods v. Hynes, 1 Scam., 103. Mulford v. Shepard, id., 583. Adams v. Wooldridge, 3 Scam., 256. In all of which it was held to apply only to cases of fraud in making or obtaining the instrument, and not in the consideration. In Woods v. Hynes, it was alleged that the goods for which the note was given were less in quantity and deficient in quality, from what they were represented; but the court held that that was a fraud in the consideration and not in the making or executing it, and was not a defense to a suit brought by an innocent purchaser without notice."
                        }
                    ],
                    "head_matter": "James Mason, Plaintiff in Error, v. N. Buckmaster, Assignee of P. Mason, Defendant in Error.\nThis was an action of assumpsit brought by Buckmaster, on a promissory note executed by James Mason to Paris Mason, and by him assigned to Buckmaster. Two objections were made by defendant in the court below, to the plaintiff’s declaration : 1. That there was no profert made of the note declared on ; and 2. There was no consideration averred or stated. The court overruled these objections and gave judgment for the plaintiff, to reverse which, the defendant sued out a writ of error, and assigned the same objections as grounds of error.\nERROR TO MADISON.\nIt is not required to make profert of writings not under seal.\nThe statute makes it necessary for plaintiff to give oyer of all writings as the maker is bound to deny their execution under oath.\nIn a case on an assigned note between maker and assignee, a consideration need not be averred.",
                    "parties": [
                        "James Mason, Plaintiff in Error, v. N. Buckmaster, Assignee of P. Mason, Defendant in Error."
                    ]
                }
            }
        },
        {
            "id": 435689,
            "url": "https://api.case.law/v1/cases/435689/",
            "name": "Thomas Cox, Appellant, v. John McFerron, Appellee",
            "name_abbreviation": "Cox v. McFerron",
            "decision_date": "1820-07",
            "docket_number": "",
            "first_page": "28",
            "last_page": "29",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 28"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [],
                    "opinions": [
                        {
                            "author": null,
                            "type": "majority",
                            "text": "Opinion of the Court. It appears, that by the common law, all writs of scire facias were proceeded on in the same manner by the return of two nihils; this was discretionary with the party issuing the process. Our statute gives this writ to the mortgagee, and, no doubt, in giving the writ, all the attributes that belonged to it at common law, were given also. It is to have a common law operation, and possess the common law incidents.\nWe are of opinion that the return of two nihils, is equivalent to a service, and authorized the court to render judgment as in cases where there has been an actual service. The judgment is therefore affirmed.\n(1)\nJudgment affirmed.\n(1) When the statute has provided remedies by writ of scire facias, or summons in the nature of a scire facias, which were unknown to the common law, and which are of a personal character merely, the same must be' executed like any other ordinary process—by personal service on the parties. McCourtie v. Davis, 2 Gilm., 306.\nTwo nihils, in case of scire facias upon a record, or recognizance, are sufficient to give the court Jurisdiction of the persons of the cognizors, and to authorize judgment of execution. Choate v. The People, 19 Ills. R., 63. Sans v. The People, 3 Gilm., 327. Besimer v. The People, 15 Ills. R., 440."
                        }
                    ],
                    "head_matter": "Thomas Cox, Appellant, v. John McFerron, Appellee.\nThis was an action commenced by scire facias in the Randolph circuit court, by McFerron against Cox, to foreclose a mortgage executed by the latter to the former. There were two nihils returned, upon which, the court on motion gave judgment for McFerron. The point made was, whether the return of two nihils on a scire facias was equivalent to the actual service of process, when the defendant can be personally served.\nAPPEAL FROM RANDOLPH\nA return, of two nihils to a scire facias to foreclose a mortgage, is equivalent to an actual service.",
                    "parties": [
                        "Thomas Cox, Appellant, v. John McFerron, Appellee."
                    ]
                }
            }
        },
        {
            "id": 435701,
            "url": "https://api.case.law/v1/cases/435701/",
            "name": "James S. Beaumont, Appellant, v. - Yantz, Appellee",
            "name_abbreviation": "Beaumont v. Yantz",
            "decision_date": "1820-07",
            "docket_number": "",
            "first_page": "26",
            "last_page": "27",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 26"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [],
                    "opinions": [
                        {
                            "author": null,
                            "type": "majority",
                            "text": "Opinion of the Court. The cases cited by the appellant’s counsel, do not apply to this case. It is not necessary that each horse should be particularly described. Mentioning the number of horses, and an allegation that they were the property of the plaintiff, is sufficient. There is no precedent to be found in the books, in which the property is precisely described, as to its shape, color, &c. A recovery in this action could well be pleaded in bar of a suit, for four black geldings, unless the plaintiff should new-assign, and show them to be other and different ones, from those for which this suit is brought.\nAs to the second objection, it is sufficient that the aggregate value of all the horses be set forth in the declaration. The judgment of the court below is affirmed.\n(1)\nJudgment affirmed.\n(1) In trespass for taking and carrying away a quantity of poultry of several descriptions, it is not necessary to state how many there were of each description, the collective value of the whole being stated. Donaghe v. Roudeboush, 4 Munf., 251."
                        }
                    ],
                    "head_matter": "James S. Beaumont, Appellant, v. - Yantz, Appellee.\nThis was an action of trespass de bonis asportatis, brought by Yantz against Beaumont in the court below, for taking and conveying away “ four horses, the property, goods and chattels of the plaintiff, of the value of three hundred dollars.” The defendant demurred to the declaration, and assigned as causes of demurrer, 1. That the horses were not described with sufficient particularity; and 2. That the value of each horse should have been stated in the declaration. The demurrer was overruled, and an appeal taken to this court.\nAPPEAL FROM MONROE.\nA declaration in an action of trespass for taking and conveying away “four horses, the property of the plaintiff,” is sufficiently certain and descriptive of the property taken.",
                    "parties": [
                        "James S. Beaumont, Appellant, v. - Yantz, Appellee."
                    ]
                }
            }
        },
        {
            "id": 435751,
            "url": "https://api.case.law/v1/cases/435751/",
            "name": "Joseph Cornelius, Plaintiff in Error, v. Simon Vanorsdall, Assignee of John De Rush, Defendant in Error",
            "name_abbreviation": "Cornelius v. Vanorsdall",
            "decision_date": "1820-07",
            "docket_number": "",
            "first_page": "23",
            "last_page": "23",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 23"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [],
                    "opinions": [
                        {
                            "author": null,
                            "type": "majority",
                            "text": "Opinion of the Court. In this case there was a plea alleging a failure of consideration, to which there was a demurrer. The demurrer having been sustained by the court below, this writ of error is prosecuted, to reverse that judgment. It is considered by the court, on the authority of the case of Taylor v. Sprinkle, decided at the last term, that the judgment of the court below be affirmed,\n(a)\n(1)\nJudgment affirmed.\n(a) Taylor v. Sprinkle, ante p. 17. Poole v. Vanlandingham, post p. Bradshaw v. Newman.\n(1) See note to Taylor v. Sprinkle, ante, page 17."
                        }
                    ],
                    "head_matter": "Joseph Cornelius, Plaintiff in Error, v. Simon Vanorsdall, Assignee of John De Rush, Defendant in Error.\nERROR TO ST. CLAIR.\nA plea alleging a failure of consideration is insufficient, without setting out wherein the failure consists.",
                    "parties": [
                        "Joseph Cornelius, Plaintiff in Error, v. Simon Vanorsdall, Assignee of John De Rush, Defendant in Error."
                    ]
                }
            }
        },
        {
            "id": 435779,
            "url": "https://api.case.law/v1/cases/435779/",
            "name": "Jehu Scott, Appellant, v. John Cromwell, Appellee",
            "name_abbreviation": "Scott v. Cromwell",
            "decision_date": "1820-07",
            "docket_number": "",
            "first_page": "25",
            "last_page": "26",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 25"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [],
                    "opinions": [
                        {
                            "author": null,
                            "type": "majority",
                            "text": "Opinion of the Court. Where the plaintiff amends in matters of form only, the defendant is not, for that reason, and as a matter of course, entitled to a continuance. He has however, the right to plead de novo. The judgment of the court below must be affirmed.\n(1)\nJudgment affirmed.\n(1.) The doctrine is well settled that an amendment of a mere formal matter will not entitle a party to a continuance, while an amendment in substance will work a continuance without cause being shown therefor by the opposite party. Rountree v. Stuart, post. Covell et al. v. Marks, 1 Scam., 525. Russell et al. v. Martin, 2 Scam., 493. Webb v. Lasater, 4 Scam., 548. Ills. Marine & Fire Insurance Co. v. Marseilles Manufacturing Co., 1 Gilm., 236. Hanks v. Lands, 3 Gilm., 227. O. & M. R. R. Co. v. Palmer et al., 18 Ills., 22.\nCourts may allow amendments on the trial, if not against positive rules, to secure the ends of justice, if the opposite party is not thereby taken by surprise; if so, a continuance may be allowed. Miller v. Metzger, 16 Ills., 390.\nIt is not error to permit clerical errors to be amended on trial. Hargrave v. Penrod, post.\nSince the foregoing note was prepared, a decision of the Supreme Court has been published in which they use the following language. “ By the uniform rule of practice, the court has no power to permit an amendment of the declaration, in a matter of substance, without granting a continuance if desired by the defendant; nor has the court any power, after verdict, to permit amendments of substance, except upon terms of the payment of costs, setting aside the verdict, and granting a new trial. Where such amendment is made, it becomes essentially a new declsrration, which the party has a right to prepare to defend.” Brown et al. v. Smith et al., 24 Ills., 196,"
                        }
                    ],
                    "head_matter": "Jehu Scott, Appellant, v. John Cromwell, Appellee.\nThe defendant in a court below, the appellant here demurred specially to the plaintiff’s declaration, for informalities therein. The court sustained the demurrer, and gave plaintiff leave to amend, whereupon the defendant moved the court for a continuance, which motion the court overruled. To reverse this opinion, this appeal was taken.\nAPPEAL FROM MONROE.\nWhere the plaintiff amends in matters of form only, the defendant is not, for that reason, entitled to a continuance as a matter of course.",
                    "parties": [
                        "Jehu Scott, Appellant, v. John Cromwell, Appellee."
                    ]
                }
            }
        },
        {
            "id": 435812,
            "url": "https://api.case.law/v1/cases/435812/",
            "name": "John Y. Sawyer, Plaintiff in Error, v. Benjamin Stephenson, Defendant in Error",
            "name_abbreviation": "Sawyer v. Stephenson",
            "decision_date": "1820-07",
            "docket_number": "",
            "first_page": "24",
            "last_page": "25",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 24"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [],
                    "opinions": [
                        {
                            "author": null,
                            "type": "majority",
                            "text": "Opinion of the Court. Granting new trials, rests hi the sound discretion of the court before which the trial is had, and as a general rule, a refusal to grant a new trial, should not be considered as error; unless it appears manifest, that justice is rendered thereby more precarious.\n(1)\nThe first question for consideration is, would the facts disclosed by the affidavit, have justified the court in awarding a new trial, if they had been sworn to by a person not of the jury ? We are satisfied they would, and although new trials should be granted very cautiously for irregular and improper conduct on the part of the jurors in their retirement, when such misconduct is disclosed by an affidavit made by one of the body; yet being fully satisfied of the truth of the facts disclosed in this manner, as also that the juror has not been tampered with, and improperly influenced to swear falsely, and that no such verdict would have been found, if the jury had not listened to such improper testimony, the court would be as much bound to award a new trial on such affidavit, as if the truth of the facts therein contained, had been disclosed, by one not of the jury. The court, therefore, not being able to discover that the case under consideration is at variance with the principles here laid down, are of opinion that the court below acted in a new trial on that affidavit, and the must be affirmed,\n(a)\n(1)\nJudgment affirmed.\n(1) At the time of the rendition of this decision this was unquestionably correct, and has been affirmed in the following cases. Cornelius v. Boucher, post. Clemson v. Kruper, id. Collins v. Claypole, id. Street v. Blue, id. Adams et al. v. Smith, id. Vernon et al. v. May, id. Littleton v. Moses, id. Harmison v. Clark, 1 Scam., 131. But by the act of the legislature of 1837, Purples' Statutes, p. 824. Scales’ Comp., p. 264, sec. 23, it is provided that exceptions may be taken to the opinion of the court in overruling a motion for a new trial. Smith v. Shultz, 1 Scam., 491. This, however, was held to apply only to civil cases. Pate v. People, 3 Gilm., 645. Holliday v. The People, 4 Gilm., 111. Baxter v. The People, 3 Gilm., 368. Martin v. The People, 13 Ills., 341. And there was no similar statute applicable to criminal trials until in 1857, when an act was passed, giving the same right to except for a refusal to grant a new trial in criminal as in civil cases. Laws of 1857, p. 103. Scales' Compl., p. 1216.\nBut the granting of a new trial even since the passage of the act making it eiror to refuse one has never been held a sufficient ground for an exception. Cornelius v. Boucher, post. Hill v. Ward, 2 Gilm., 292. Brookbank v. Smith, 2 Scam., 78.\n(a) The refusal of the court to grant a new trial is not a matter for which a writ of error lies. Barr v. Grats, 4 Wheat., 213. 5 Cranch, 11 ibid. 187. 7 Wheat., 248.\nThe affidavits of jurors to impeach a verdict can not be received. Dana v. Tucker, 4 Johns., 487. Forrester §c. v. Guard, Siddal, & Co., post.\n(1) This, if not overruled, is very strongly doubted in the following cases. Forester et al. v. Guard et al., post. Browder v. Johnson, id. Smith v. Eames, 3 Scam., 81. And we think it is now safe to say that the affidavit of a juror ought not to be admitted to show what transpired in the jury room, or by what process of reasoning they came to their conclusions.\nBut the affidavit of a juror, on a point entirely disconnected with his acts, or the motives for his conduct as a juror, as that he is not an alien, is not objectionable on the grounds on which it has been decided that a juror’s testimony can not be received to impeach his verdict. Guykowski v. The People, 1 Scam., 482.\nAffidavits of jurors can not be received to impeach their verdict, except in cases where a part of them swear they never consented to the verdict; but a verdict maybe supported bysuch affidavits. Smith v. Eames, 3 Scam., 76. Martin et al. v. Ehrenfels, 24 Ills., 187."
                        }
                    ],
                    "head_matter": "John Y. Sawyer, Plaintiff in Error, v. Benjamin Stephenson, Defendant in Error.\nOn a motion for a new trial in the court below, the defendant offered the affidavit of one of the jurors who tried the cause, setting forth, that one of the jurors, who was sworn as a witness in the cause, gave in the jury room, new, other and additional testimony, by reason of which, deponent was induced to give a verdict for the plaintiff, when, if it had not been for such testimony, so given by one of their own body, he, deponent, would have found a verdict for the defendant. The court granted the defendant a new trial. To reverse which opinion, a writ of error was prosecuted.\nERROR TO MADISON.\nGranting new trials, rests in the sound discretion of the court, and as a general rule, the refusal to award one should not be considered as error.\nAn affidavit of a juror who tried the cause, may be received to prove improper conduct on the part of the jury.",
                    "parties": [
                        "John Y. Sawyer, Plaintiff in Error, v. Benjamin Stephenson, Defendant in Error."
                    ]
                }
            }
        },
        {
            "id": 435558,
            "url": "https://api.case.law/v1/cases/435558/",
            "name": "George Naught, Plaintiff in Error, v. Hezekiah Oneal, Defendant in Error",
            "name_abbreviation": "Naught v. Oneal",
            "decision_date": "1820-12",
            "docket_number": "",
            "first_page": "36",
            "last_page": "36",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 36"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [],
                    "opinions": [
                        {
                            "author": "Per curiam.",
                            "type": "majority",
                            "text": "Per curiam.\nIf the cause of action accrued one year or more before the repeal of the statute of limitations,\n*\nstill, the old statute of limitations is a good bar to the action. It is a complete bar before the repeal, and the repeal of a statute does not affect the rights acquired under the repealed statute.\nIf the words in this case were spoken within one year before the repeal of the statute, the old statute will be no bar. But as, in this action, it does not appear at what time the words were spoken, it can not be determined whether the old statute be a bar or not. The judgment of the court must be reversed, and the cause remanded for new proceedings to ascertain the time when the words were spoken.\n(1)\nJudgment reversed.\n* Laws of 1819, page 351. Ib. 141, sect. 8.\n(1) Where a statute is repealed, except as to transactions passed and closed, it must be considered as if it had never existed. Ill. and Michigan Canal v. City of Chicago, 14 Ill., 335.\nIn the construction of statutes of limitations, the rule is, that cases within the reason, but not within the words of the statute, are not barred. Bedell v. Janney et al., 4 Gilm., 208.\nA statute of limitations will not be applied to cases not clearly within its provisions. Hazell v. Shelby, 11 Ill., 9.\nSee note to Mellick v. De Seelhorst, post.\nNote.—I have not been able to find any case decided at December term, 1821, except the case of Moreland v. Pierson, from Gallatin. There were two points made in that case, 1, as it regarded the sufficiency of the breach in the declaration ; and 2, the exclusion of a deposition from the jury. The judgment of the court below was affirmed. The case is one of no importance, and is therefore not reported."
                        }
                    ],
                    "head_matter": "George Naught, Plaintiff in Error, v. Hezekiah Oneal, Defendant in Error.\nThis was an action of slander brought in the circuit court of White county, by Naught v. Oneal. The defendant pleaded the statute of limitations, “ that the cause of action did not accrue within one year from the commencement of the suit.” The plaintiff replied that the words were not spoken within one year previous to the commencement of the suit, but that the action was commenced within one year from the passage of the act of limitations. To this replication the defendant demurred, and the plaintiff joined in demurrer. The court sustained the demurrer, and from that judgment the plaintiff brought this writ of error.\nERROR TO WHITE.\nThe of a statute does not affect rights acquired under the repealed statute.\nIn an action of slander, if the words were spoken within one year repeal of the statute limiting such actions, the old statute will be no bar.",
                    "parties": [
                        "George Naught, Plaintiff in Error, v. Hezekiah Oneal, Defendant in Error."
                    ]
                }
            }
        },
        {
            "id": 435564,
            "url": "https://api.case.law/v1/cases/435564/",
            "name": "Joseph French, Appellant, v. John R. Creath, by George Creath, his next friend, Appellee",
            "name_abbreviation": "French v. Creath",
            "decision_date": "1820-12",
            "docket_number": "",
            "first_page": "31",
            "last_page": "32",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 31"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Starr, for appellant.",
                        "Kane, for appellee."
                    ],
                    "opinions": [
                        {
                            "author": null,
                            "type": "majority",
                            "text": "Opinion of the Court. We are of opinion, that the judgment of the court below ought to be affirmed. It is now too late to make the objection first stated, and as to the second there is no clearer principle that the action is not barred, because the statute creating the offense has been repealed. If the words spoken, had charged an offense to have been committed in another state, which is not punishable here, still they would be actionable,\n(a)\nJudgment affirmed.\n(a) An offense against a temporary statute can not be punished after the expiration of the act, unless a particular provision by laws be made for that purpose. 7 Wheat., 551.\nOne guilty of perjury in proceedings under the bankrupt laws, cannot be prosecuted for the offense, after the repeal of the law. United States v. Passmore, 4 Dall., 372."
                        }
                    ],
                    "head_matter": "Joseph French, Appellant, v. John R. Creath, by George Creath, his next friend, Appellee.\nStarr, for appellant.\nKane, for appellee.\nJohn R. Creath, an infant under the age of twenty-one years, by George Creath, his father and next friend, brought an action, in the circuit court of Jackson, and removed by change of venue to Randolph, against Joseph French, for slander. On the trial a verdict was found for plaintiff, and a motion made by defendant for a new trial, and in arrest of judgment, which were overruled, and an appeal taken to this court where it was assigned for error, 1. That there was no order of the court below, appointing the next friend of the infant plaintiff; and 2. That the slanderous words spoken, charged the plaintiff with the commission of the crime in 1815, and as the law creating the offense with which he was charged, is repealed, no words spoken in relation to that crime are actionable.\nAPPEAL FROM RANDOLPH.\nAn order of the court below, appointing the next friend of an infant plaintiff is not necessary.\n(1.)\n[Vide Laws of 1831, entitled “An Act to amend an act, entitled an act concerning practice in courts of law,” approved January 29,1827.]\nAn action for slander is not taken away, though the statute creating the charged, be repealed,\n(2.)\n(1.) In Robb v. Smith, 3 Scam., 46, it was said by the court in argument, that where a suit was brought by an infant and the infancy was pleaded in abatement, the plaintiff might amend by inserting the name of a prochein amy. The same was also held in Blood v. Harrington, 8 Pick., 552. This case is cited and approved in Heslep et al. v. Peters, 3 Scam., 45. And in a recent case the court held that “ It is not necessary that there should be a guardian, or prochein amy, for a minor at the time of suing out the process. If it were otherwise, the exception should be taken before pleading to the merits.” Stumps v. Kelley, 22 Ill., 140.\n(2.) An action for slander will lie for charging the plaintiff with a crime, the prosecution of which has been barred by the statute of limitations. Van Ankin v. Westfall, 14 Johns., 233.\nThe repeal of a statute docs not affect rights acquired under the repealed statute. Naught v. Oneal, post.",
                    "parties": [
                        "Joseph French, Appellant, v. John R. Creath, by George Creath, his next friend, Appellee."
                    ]
                }
            }
        },
        {
            "id": 435649,
            "url": "https://api.case.law/v1/cases/435649/",
            "name": "George Blair and Wife, Plaintiffs in Error, v. Henry Sharp, Defendant in Error",
            "name_abbreviation": "Blair v. Sharp",
            "decision_date": "1820-12",
            "docket_number": "",
            "first_page": "30",
            "last_page": "31",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 30"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [],
                    "opinions": [
                        {
                            "author": null,
                            "type": "majority",
                            "text": "Opinion of the Court. The omission of a colloquium, showing to what the words spoken, referred, so as to render them actionable, we consider fatal. The declaration is not good at common law, nor under the statute. The declaration does not bring the case within the letter or meaning of the statute. The judgment of the court below is affirmed, with costs,\n(a)\nJudgment affirmed.\n(a) To say that the plaintiff has swore false, or taken a false oath, is not actionable. 8 Johns. Rep., 109. There must be a colloquium of its being in a cause pending in a court of competent jurisdiction, and on a point material to the issue. 13 Johns. Rep., 48. 1 Caine’s Rep., 347. 2 Johns., 10. The term foresworn is not in itself actionable. 6 T. R., 691. 8 East., 427. Vide Laws of Illinois, 1823, p. 82."
                        }
                    ],
                    "head_matter": "George Blair and Wife, Plaintiffs in Error, v. Henry Sharp, Defendant in Error.\nThis was an action of slander brought in the Washington circuit court by Blair and wife, against Sharp. Prom the agreed case, it appears, that the only words charged in the declaration to have been spoken of the plaintiff by the defendant, were, that the plaintiff “ had swore a lie.” There was no colloquium showing how, or on what occasion the lie was sworn. The court below declared the declaration insufficient, and that the words as stated, were not actionable. To reverse that judgment, a writ of error was sued out by plaintiff.\nERROR TO WASHINGTON.\nAn omission of a colloquium, in a declaration for slander in charging the plaintiff with swearing a lie, is fatal.\n(1)\n(1) Such was the rule of the common law, but it is now materially changed in this state, by statute. Section 2, page 1137, Scate’s Comp’l. Purple’s Statutes, page 1126, provides that, “It shall be deemed slander, and shall be actionable, to charge any person with swearing falsely, or with having swore falsely, or for using, uttering or publishing words of, to, or concerning any person, which in their common acceptation, amount to such charge, whether the words be spoken in conversation of and concerning a judicial proceeding or not.” And under this statute the court held that “ Words which, in their common acceptation, amount to a charge of having sworn falsely, are actionable, whether spoken of and concerning a judicial proceeding or not; and are none the less actionable because the declaration avers that they were spoken in a conversation concerning a judicial proceeding.” “It is not necessary that the words spoken in a conversation concerning a judicial proceeding, should be spoken under such circumstances as to impute the crime of pequry.” Sanford v. Gaddis, 13 Ills., 329.\nIn an action of slander for words used charging false swearing, where the defendant by his pleas has based his defense on the fact that the plaintiff was guilty of perjury, he will be required to prove the fact of the perjury. He must make out the defense which he has chosen in his pleadings, even though he was not obliged to charge perjury in order to justify the words spoken. Hicks v. Rising, 24 Ill., 566\nThe first section of the statute above referred to also provides that “ If any person shall falsely use, utter or publish words which, in their common acceptation, shall amount to charge any person with having been guilty of fornication or adultery, such words so spoken shall be deemed actionable, and he, she or they, so falsely publishing, speaking or uttering the same, shall be deemed guilty of slander.” And under that section of the statute the court said: “Words, which in their common acceptation, amount to a charge of fornication, are slanderous, and are actionable without colloquium or innuendo; and the latter, if used, is at most but surplusage.” Elam v. Badger, 23 Ill., 498.\nIn an action of slander for words charging the plaintiff with fornication or adultery, no reference need be made in the pleadings to the statute on that subject, id.",
                    "parties": [
                        "George Blair and Wife, Plaintiffs in Error, v. Henry Sharp, Defendant in Error."
                    ]
                }
            }
        },
        {
            "id": 435754,
            "url": "https://api.case.law/v1/cases/435754/",
            "name": "George Brazzle and James Hawkins, Plaintiffs in Error, v. David Usher, Defendant in Error",
            "name_abbreviation": "Brazzle v. Usher",
            "decision_date": "1820-12",
            "docket_number": "",
            "first_page": "35",
            "last_page": "35",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 35"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [],
                    "opinions": [
                        {
                            "author": null,
                            "type": "majority",
                            "text": "Opinion of the Court. The appearance of the parties cured the defect, if any, arising from the failure to file a plea. The statute of amendments will apply in this case, to cure the irregularity. The judgment of the court below must be affirmed.\n(1)\nJudgment affirmed.\n(1) If one of several pleas be not answered, and the parties go to trial without any objection on the part of the defendant, the irregularity is cured by the verdict. Ross v. Redick, 1 Scam., 74. Armstrong v. Mock, 17 Ill., 166. Kelsey v. Lamb, 21 Ill., 559. Stumps v. Kelley, 22 Ill., 140. Puterbaugh v. Elliott et al., id. 157.\nA declaration contained two counts, upon one of which there was an immaterial issue, and the other was wholly unanswered. After judgment for plaintiff the defendant assigned for error, that judgment was entered on the immaterial issue, and that the second count was unanswered. Upon these assignments of error the court said: “ Will the non-joinder of an issue on the second count, or the immaterial issue, justify the reversal of the judgment for such causes 1 We think not: the statute of amendments and jeofails has provided against any error arising from such causes, and the defendant can not now assign either for error.” Graham v. Dixon et al., 3 Scam., 118. The grounds upon which this decision would seem to be based are—that going to trial without a plea was an error in favor of the defendant, and of which he could not afterwards complain. Kitchell v. Bratton, 1 Scam., 301. Arenz v. Reihle et al., id., 340. Bailey v. Campbell, id., 47. Clemson v. State Bank, id., 45. Thorn v. Watson et al., 5 Gilm., 27. On the count which was unanswered the plaintiff might have taken judgment ,by default, and the defendant was not injured by his not doing so.\nIn the following cases defects have been held to be cured by verdict. State Bank v. Batty, 4 Scam., 201. Hamilton et al. v. Cook County, id., 527. Selby v. Hutchinson, adm’r, 4 Gilm., 327. Sullivan v. Dollins, 13 Ill., 88. Burst v. Wayne, id., 599. Spencer v. Langdon, 21 Ill., 192. Loomis v. Riley, 24 Ill., 307."
                        }
                    ],
                    "head_matter": "George Brazzle and James Hawkins, Plaintiffs in Error, v. David Usher, Defendant in Error.\nUsher brought an action of trespass, vi et armis, against Brazzle and Hawkins, in the Gallatin circuit court, and recovered a verdict and judgment against them. To reverse which judgment, they sued out a writ of error, and assigned for error, that there was no plea filed in the cause, and that a trial was had without a plea. It appears from the record, that the parties, by their attorneys, were present at the trial, and made no objections to the proceedings as they were.\nERROR TO GALLATIN.\nIf parties appear and go to trial without a plea being put in, it is such an irregularity as will be cured, after verdict, by the statute of amendments.",
                    "parties": [
                        "George Brazzle and James Hawkins, Plaintiffs in Error, v. David Usher, Defendant in Error."
                    ]
                }
            }
        },
        {
            "id": 435800,
            "url": "https://api.case.law/v1/cases/435800/",
            "name": "John Thornton and others, Appellants, v. George Smiley and John Bradshaw, Appellees",
            "name_abbreviation": "Thornton v. Smiley",
            "decision_date": "1820-12",
            "docket_number": "",
            "first_page": "34",
            "last_page": "34",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 34"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [],
                    "opinions": [
                        {
                            "author": null,
                            "type": "majority",
                            "text": "Opinion of the Court. The court knows of no power in the administrator, by virtue of the trust conferred on him by law, to loan the money belonging to the estate ; if he does it, he acts upon his own responsibility, and renders himself liable to the estate. The note was made to West alone, and for that reason, the suit should have been commenced in his name, and a joinder of his co-administrators was improper, as no right of action, to recover the amount of the note, existed in them. Without determining any other question, for this ground alone, the court affirms the judgment,\n(a)\n(1)\nJudgment affirmed.\n(a) Vide Toller’s law of executors, page 480, where it is declared, that in equity, an executor may be compelled to pay interest, if he suffers the money of the estate to lie idle in his hands. This would seem to authorize a loan, or any other investment of the trust money.\nAn administrator is not liable to pay interest upon assets in his hands, unless under special circumstances. Dexter v. Arnold, et al., 3 Mason, 248.\n(1) Admitting that the administrator had no right to loan the money, how could the defendant take advantage of it 1 He executed his note to the plaintiff as administrator, and to him it was immaterial whether he was liable to the administrator personally, or in his representative character. Persons interested in the estate might, perhaps, object that the administrator had transcended his duty, and might hold him responsible for it; but if they are content with his actions it is not easily perceived how the defendant can complain.\nIn Marsh et al. v. The People, 15 Ill., 284, it was held that when three were appointed administrators, each was liable for the acts of the others. If we are right in the proposition that the defendant could not object that the note was not the property of the estate, then it would follow that each being liable for the acts of all the others, all would have a right to join in an action for the recovery of the money."
                        }
                    ],
                    "head_matter": "John Thornton and others, Appellants, v. George Smiley and John Bradshaw, Appellees.\nSmiley and Bradshaw, executed their note to Hezekiah West, as administrator of the estate of Weaver, deceased, for a sum of money, to recover which this action was brought in the name of said West and John Thornton and Mary his wife, late Mary Weaver, who were joined with West, in the administration on the estate of Weaver. The money was loaned by West alone, to Smiley and Bradshaw, and the note executed to him alone as administrator. An objection was made by defendants to the improper joinder of parties, which the court sustained, and gave judgment for the defendants. To reverse which, the plaintiffs appealed.\nAPPEAL FROM UNION.\nIf one of two administrators, loans the money of the estate, he does it upon his own responsibility, and an action to recover it back, should be brought in his own name alone.",
                    "parties": [
                        "John Thornton and others, Appellants, v. George Smiley and John Bradshaw, Appellees."
                    ]
                }
            }
        },
        {
            "id": 435806,
            "url": "https://api.case.law/v1/cases/435806/",
            "name": "Joseph Cornelius, Plaintiff in Error, v. John Boucher, Defendant in Error",
            "name_abbreviation": "Cornelius v. Boucher",
            "decision_date": "1820-12",
            "docket_number": "",
            "first_page": "32",
            "last_page": "33",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 32"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [],
                    "opinions": [
                        {
                            "author": null,
                            "type": "majority",
                            "text": "Opinion of the Court. On the first point, there is no case within the recollection of the court, in which it has been considered error, to grant a continuance. The third objection will depend very much upon the same principle, that granting continuances and new trials, is so much a matter of discretion, that an appellate court can not undertake to inquire into the proper exercise of that discretion, in a case like the present. The court, however, must not be understood as saying, that in no case would it make the inquiry. If a case was brought up, upon bill of exceptions containing all the facts, it would furnish this court with the means of forming an opinion, as to the proper exercise or abuse of the discretion of the court below.\n(1)\nThe second error assigned, is considered equally untenable. The swearing the jury, is matter of form, and if not objected to at the time, an irregularity in the manner of swearing them, can not afterwards be assigned as error. There is no judgment of the court upon the point, and the jury is presumed to take into consideration the whole matter, and if their intention is manifest, the court will set right mere matters of form. The cases of Thompson v. Button, 14 Johns. Rep., 84; and Hawks v. Crofton, 2d Burrow, 698, are authorities in support of this opinion. The judgment of the court below is affirmed.\n(2)\nJudgment affirmed.\n(1) See note to the case of Sawyer v. Stevenson, ante, page 24.\n(2) The decisions are abundant that formal objections must be taken before trial, or if not they are waived. Curtis v. The People, post. Guykowski v. The People, 1 Scam., 479. Stone v. The People, 2 Scam., 338. Townsend v. The People, 3 Scam., 329. Conolly v. The People, 3 Scam., 477.\nA jury should not, at the commencement of a term, be sworn for the whole term, but should be sworn for the trial of each particular cause. Barney v. People, 22 Ill., 160."
                        }
                    ],
                    "head_matter": "Joseph Cornelius, Plaintiff in Error, v. John Boucher, Defendant in Error.\nThis was an action of covenant, brought in the St. Clair circuit court, by Cornelius against Boucher ; on the trial a verdict was found for the defendant, and a motion made by plaintiff for a new trial, which was overruled, and judgment entered on the verdict for the defendant. To reverse this judgment the plaintiff prosecuted this writ of error, and assigns for error, 1. That the affidavit of the defendant for a continuance, at the July term 1848, was not sufficient to authorize a continuance. 2. That there were three issues of fact made up, and the jury were sworn to try but one issue, and it does not appear, upon which they found their verdict; and 3. That the court erred in not granting a new trial on the affidavit of the plaintiff.\nERROR TO ST. CLAIR.\nGranting continuances and new trials rests in the discretion of the court and a refusal of either, cannot be assigned as error.\nSwearing the jury, is matter of form, and an irregularity in swearing them not objected to at the time can not be assigned as error.",
                    "parties": [
                        "Joseph Cornelius, Plaintiff in Error, v. John Boucher, Defendant in Error."
                    ]
                }
            }
        },
        {
            "id": 435530,
            "url": "https://api.case.law/v1/cases/435530/",
            "name": "Isaac Clark, Appellant, v. Joseph Cornelius, Appellee",
            "name_abbreviation": "Clark v. Cornelius",
            "decision_date": "1822-12",
            "docket_number": "",
            "first_page": "46",
            "last_page": "46",
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                {
                    "type": "official",
                    "cite": "1 Ill. 46"
                }
            ],
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                "volume_number": "1"
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                "full_name": "Illinois Reports"
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            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
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                    "opinions": [
                        {
                            "author": "Justice John Reynolds.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice John Reynolds.\nThe act defining the duties of justices of the peace, gives the justices jurisdiction in all cases of contract for the payment of money, where the sum demanded does not exceed one hundred dollars.\n*\nUnder this act, a justice has no power to investigate any account or other claim, exceeding one hundred dollars. When the credit is applied to the claim exhibited, it reduces it below one hundred dollars, yet the justice would have to investigate the whole amount of $176, as the credit was not applied to any particular item or charge in the account, so as to extinguish it. This power, the legislature never intended to give justices of the peace. We are of opinion that the circuí court decided correctly that the justice had no jurisdiction, and we, therefore, affirm the judgment.\n(1)\nJudgment affirmed.\n* Laws of 1819, page 185.\n(1) This decision was followed and approved in the following cases: Maurer v. Derrick, post. Ellis v. Snider, id. Blue v. Weir et al., id. But this is now changed by statute. The provisions of the statute giving jurisdiction to justices of the peace, now in force, are as follows:\n“Justices of the peace shall have jurisdiction in their respective counties, to hear and determine all complaints, suits and prosecutions of the following description:\n“ In actions of debt on bonds, contracts, agreements, promissory notes, or other instruments in writing, in which the amount claimed to be due does not exceed one hundred dollars.\n“ In actions of assumpsit upon any contract or promise, verbal or written, express or implied, for a valuable consideration, in which the amount claimed to be due does not exceed one hundred dollars.\n“In suits for money claimed to be due upon unsettled accounts, in which the balance claimed to be due does not exceed one hundred dollars.” Scales’ Comp., page 686. Purple’s Statutes, page 662. There are also other provisions giving jurisdiction to justices, but these are the principal ones which relate to the decision in question."
                        }
                    ],
                    "head_matter": "Isaac Clark, Appellant, v. Joseph Cornelius, Appellee.\nClark exhibited to a justice of the peace for St. Clair county, an account amounting, in all the items, to $176, against Cornelius, on which account there was given a credit of $77, leaving a balance due of $99. The justice gave judgment in favor of Clark, from which Cornelius appealed to the circuit court. The circuit court decided, that the justice of the peace had no jurisdiction, and dismissed the suit; from which decision Clark appealed, and assigned that decision as error.\nAPPEAL FROM ST. CLAIR.\nA justice of the peace has no power to investigate an account exceeding $100, though it may be reduced by credits to a sum less than $100.",
                    "parties": [
                        "Isaac Clark, Appellant, v. Joseph Cornelius, Appellee."
                    ]
                }
            }
        },
        {
            "id": 435536,
            "url": "https://api.case.law/v1/cases/435536/",
            "name": "James Mason, Appellant, v. Robert Wash, who sues for the City Bank of New York, Appellees",
            "name_abbreviation": "Mason v. Wash",
            "decision_date": "1822-12",
            "docket_number": "",
            "first_page": "39",
            "last_page": "42",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 39"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
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            },
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                    "opinions": [
                        {
                            "author": "Chief Justice Reynolds,",
                            "type": "majority",
                            "text": "Chief Justice Reynolds,\nafter stating the facts of the case, delivered the opinion of the court. In this case, the court is called upon to say, whether sufficient facts are shown in the pleadings to authorize the plaintiff below to recover. This depends, we conceive, upon the sound construction to be given to our act of the legislature, making promissory notes assignable.\n*\nWe can not give to that act the same construction that is given to the statute of Anne. The provisions of the two statutes are different; the statute of Anne, places promissory-notes upon the same footing with inland hills of* exchange— ours does not. Ours makes notes for the payment of property assignable—the statute of Anne does not. That statute was passed for the furtherance of commerce, and to suit the convenience and interests of a greatly commercial people. Ours was enacted at a time when but few persons inhabited the country, and whose pursuits were domestic and agricultural. Our statute expressly declares that the assignor shall not be liable, until due diligence has been used by the holder to obtain the money from the maker. To give our statute the same construction that the statute of Anne receives, would, in the opinion of the court, defeat the intention of the legislature, and the obvious understanding of the people. Hence, we are irresistibly led to conclude that the diligónce contemplated by our statute is diligence by suit, when that course will obtain the money. No suit then, having been commenced and prosecuted against the makers of this note, as appears from the pleadings, the declaration is insufficient, and no recovery can be had thereon under the laws of this state.\n(1)\nBut here we are met by an argument, that the right of action accrued under the laws of New York, the contract having been made there, and that the laws of that state must furnish the rule of decision in this case. It is a sufficient answer to that argument to remark, that the laws of New York were neither pleaded, nor proved in the court below, and that this court can not, ex officio, take notice of the laws of a foreign state,\n(a)\n(2)\nHere we might stop; but as the question which is the foundation of the third error assigned, may again be raised in the court below, it will be best, once for all, to settle it, and in doing so, it will be useless, and accounted a vain boast of learning to enter into argument or reasoning upon the subject, it having been settled by the highest judicial tribunal known to our government. The contract in this case was made after the passage of the bankrupt law of New York, and the discharge obtained under that law. But as the supreme court of the United States has determined that the discharge is equally unavailing whether the contract was made before or after the passage of the act, this court feels itself bound to yield to that opinion, how much soever some of the court might be disposed to question its correctness. We presume, however, it is founded upon the fact that the power to pass bankrupt laws is delegated to the general government, and hence, the states are restricted.\n(b)\nSome other questions were raised in the argument of this cause, but as they relate principally to the sufficiency of the testimony to authorize the finding of the jury, are not of a character to require the interfering hand of this court. The judgment below must be reversed, the appellant recover his costs, and the cause remanded to the court below for new proceedings to be had, not inconsistent with this opinion.\nJudgment reversed.\n* Laws of 1819, page 1.\n(1) Under the statute of this state there are three contingencies in which an assignor of a promissory note may become liable : 1, where the assignee, by the exercise of due diligence, prosecutes the maker to insolvency : 2, where the institution of a suit against the maker would be unavailing : 3, where the maker has absconded or left the state when the note falls due, or when suit should be brought. Crouch v. Hall, 15 Ill., 264.\nThe following cases have been decided on each of these propositions :\nFirst. Due diligence, &c.\nThompson v. Armstrong, post. Tarlton v. Miller, id. Wilson v. Van Winkle, 2 Gilm., 684. Curtis et al. v. Gorman, 19 Ill., 141. Allison v. Smith, 20 Ill., 104. Sherman v. Smith, id., 350. Nixon v. Weyhrich, id., 600.\nThe diligence required in making the collection from the maker of the note, is such as a prudent man would use in the conduct of his own affairs. Nixon v. Weyhrich, 20 Ill., 600.\nIf an execution is relied on, as proof of diligence used in the collection of a debt, the process should remain in the hands of the officer, for its whole life; or the fact of the uselessness of its so remaining, should be pleaded. No presumption will be indulged that the money could not be made, during the remainder of the days it had to run, after return was made. Hamlin v. Reynolds et al., 22 Ills., 207. Chalmers v. Moore, id., 359.\nWhen it is designed to recover against the indorser of a note, action must be brought against the maker at the first term of any court having jurisdiction, although there may not be ten days between the time' the note falls due, and the commencement of the term. Chalmers v. Moore, 22 Ill., 359.\nSecondly. Where a suit would have been unavailing.\nHumphreys v. Coller et al., 1 Scam., 47. Harmon et al. v. Thornton, 2 Scam., 354. Cowles et al. v. Litchfield, id., 360. Bledsoe v. Graves, 4 Scam., 385. Bestor v. Walker et al., 4 Gilm., 15. Pierce v. Short, 14 Ill., 146. Crouch v. Hall, 15 Ill., 263. Roberts v. Haskell, 20 Ill., 59.\nThirdly. Where the maker has absconded or left the state when the note falls due or suit should have been brought.\nHilborn v. Artus et al., 3 Scam., 346. Schuttler v. Piatt, 12 Ill., 419. Crouch v. Hall, 15 Ill., 263.\nThe liability of the assignor on account of the maker’s absence from the state, depends materially on the question whether the note was assigned before or after maturity. If assigned before maturity, although the maker resides out of this state, and was so known to all the parties at the time of the assignment, still if he is out of the state when the note becomes due, or suit should have been brought, the assignor will be liable, and the assignee is not required to prosecute him- to insolvency in the foreign jurisdiction. Schuttler v. Piatt, 12 Ill., 419. But if the note is assigned after maturity, and the maker is out of the state at the time, the assignee can only recover of the assignor by showing that he used due diligence by prosecuting a suit against the maker, or that such suit would have been unavailing. Crouch v. Hall, 15 Ill., 264.\n(а) Foreign laws are facts which must be proved before they can be received in a court of justice. 3 Cranch, 187.\nForeign statutes can not be proved by parol, but the common law of a foreign country may be shown by the testimony of intelligent witnesses of that country. 1 Johns. Rep., 385.\n(2) Such is the rule as to the statutes of other states. Crouch v. Hall, supra. Merritt v. Merritt, 20 Ill., 65 ; but in the absence of all proof to the contrary, the courts will presume that the common law prevails in the states of the Union. Id.\nThe common law of another state may be proved by parol. Id. Statutes of other states can not. Hoes v. Van Alstyne, 20 Ill., 201.\n(b) A discharge under the insolvent law of another state is no bar to a suit brought by any creditor, named in the insolvent’s petition, against such debtor in New York. White v. Canfield, 7 Johns., 117.\nVide King v. Riddle, 7 Cranch, 168. 4 Wheat., 122. Ibid, 209. Ogden v. Saunders, 12 Wheat., 213. Thompson v. Armstrong, post."
                        }
                    ],
                    "head_matter": "James Mason, Appellant, v. Robert Wash, who sues for the City Bank of New York, Appellees.\nThis action was commenced against the defendant below, who is plaintiff here, upon his liability as assignor of a promissory note. The declaration averred, that the note was executed by S. S. and C. Porter, at New York, and made payable six months after the date thereof, to James Mason or order.— That on the day of the execution of the note, and before its payment, James Mason, at New York, assigned the note to Robert Wash—that on the day the note fell due, and was payable, it was presented at New York to the makers for payment, and that payment by them was refused, of which the assignor, Mason, had notice. To this declaration the defendant demurred, which the court overruled. The defendant then plead, among other pleas, his discharge under the bankrupt laws of New York, to which the plaintiff demurred, and -which demurrer the court sustained. A motion was also made by defendant in arrest of judgment, which the court overruled, but gave judgment for the plaintiff. To reverse which an appeal was granted, and the appellant assigned for error among others, 1. The judgment1 of the court in overruling his demurrer to the declaration; 2. Overruling his motion in arrest of judgment; and 3. In sustaining the plaintiff’s demurrer, to the defendant’s special plea of a discharge under the bankrupt laws of New York.\nAPPEAL FROM MADISON.\nOur act making promissory notes, &c., assignable, is not to be construed in the same way as in the statute of Anne, as they are different in their provisions and objects.\nUnder our statute an assignor of a note is not liable, unless due diligence by suit against the maker has been used where that course will obtain the money.\nThe laws of another state must be pleaded or proved—this court can not ex-officio take notice of them.\nA discharge under the bankrupt law of New York is no bar to a suit brought here on a contract made before the discharge.",
                    "parties": [
                        "James Mason, Appellant, v. Robert Wash, who sues for the City Bank of New York, Appellees."
                    ]
                }
            }
        },
        {
            "id": 435546,
            "url": "https://api.case.law/v1/cases/435546/",
            "name": "Joseph M. Street, Plaintiff in Error, v. The County Commissioners of Gallatin County, Defendants in Error",
            "name_abbreviation": "Street v. County Commissioners",
            "decision_date": "1822-12",
            "docket_number": "",
            "first_page": "50",
            "last_page": "51",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 50"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
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            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
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                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
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                    "opinions": [
                        {
                            "author": "Justice John Reynolds.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice John Reynolds.\nThis is a mandamus to restore Street to the office of clerk of the county commissioners’ court of Gallatin county. It is proved to this court, that the commissioners have been served with said writ and made no return thereto; but the record of the county commissioners’ court, containing all the matters of fact in relation to the case, was produced by said Street, which record this court received for the return to the writ, and acted on it accordingly.\nAs the statute law of this state requires the cause of removal to be stated on the records of the court, and there appearing on the record returned here, no cause of removal stated, it is considered by this court, that the said county commissioners’ court had no power to remove said Street and appoint another clerk to said court, therefore it is ordered that a peremptory mandamus issue, if necessary, to restore said Street to his office."
                        }
                    ],
                    "head_matter": "Joseph M. Street, Plaintiff in Error, v. The County Commissioners of Gallatin County, Defendants in Error.\nERROR TO GALLATIN.\nA peremptory mandamus will issue to a county commissioners’ court to compel them to restore a clerk, the cause of whose removal is not stated on their records.",
                    "parties": [
                        "Joseph M. Street, Plaintiff in Error, v. The County Commissioners of Gallatin County, Defendants in Error."
                    ]
                }
            }
        },
        {
            "id": 435548,
            "url": "https://api.case.law/v1/cases/435548/",
            "name": "James Foley, Plaintiff in Error, v. The People, Defendants in Error",
            "name_abbreviation": "Foley v. People",
            "decision_date": "1822-12",
            "docket_number": "",
            "first_page": "57",
            "last_page": "59",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 57"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
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                "data": {
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                    "opinions": [
                        {
                            "author": "Chief Justice Reynolds.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nChief Justice Reynolds.\nAt a special term of the circuit court held in the county of Madison, on the 25th day of November, 1822, an indictment for larceny was found against the said Foley, upon which indictment his conviction accrued.\nThere are several errors assigned ; but the only one which we deem material, is, the objection to the jurisdiction. In ascertaining the jurisdiction, or what is necessary to authorize a special term of the circuit court, we must look to the 40tli section of the act entitled “ Ah act regulating and defin ing the duties of the justices of the supreme court.” By that section it is expressly enacted, “ That whenever any person shall be in the custody of the sheriff of any county, charged with any capital offense, or any other offense which by law shall not be bailable, it shall be the duty of the sheriff to give information,” &c. It was contended in the argument, and indeed such is the opinion of Justice Reynolds, who tried the cause, that this statute ought to be construed to embrace every case where the prisoner was in custody, and unable to give bail. In consequence of this opinion, and the serious manner with which it was contended for by the counsel, we have given the subject the most mature consideration. In doing so, we have not been able to give to that statute such latitude of construction. The words of the statute are clear, express, unambiguous and admit of no doubtful construction.\nThe words of the statute are, “ That whenever any person shall be in the custody of the sheriff of any county, charged with any capital offense, or any other offense which by law shall not be bailable,” .&c. Now to ascertain when any offense is bailable, we must look to the law, and it does seem to us to be a perversion of plain language to say that we must look to the fact of the party’s ability to procure bail, to ascertain whether by law he is bailable. But it is contended we must be governed by the intention of the legislature. I ask how is that intention to be ascertained? Must we seek for some hidden intention which the language of the. law will not justify, or when the language is plain and admits of no construction, shall we not take it as we find it ? If the statute was ambiguous in its provisions, then we might have recourse to construction to ascertain the true meaning; but when otherwise, we are satisfied to take the law as it is, and if it is defective, leave it to be remedied by the legislature, and not by strained constructions. Having settled this question, we will consider whether larceny is bailable by law; if it is, it is a case not provided for by the statute. In settling this question, we need only have recourse to the constitution of our state. By the 13th section of the eighth article of that instrument it is provided, “ That all persons shall be bailable by sufficient securities, unless for capita] offenses, where the proof is evident or the presumption great.” Larceny, by our statute, is not made capital; the punishment is by fine and whipping. Hence it comes within the letter and spirit of the constitution. It was urged in the argument, that as the prisoner appeared below and pleaded to the indictment, he waived, or acknowledged jurisdiction.\nIt will only be necessary to answer to that argument, that where the court has not jurisdiction of the subject matter, consent will not give it.\n(1)\nWe might then, after settling these questions, proceed to reverse the judgment of the court below, but believing as we do, that the court below having been called for the purpose of taking cognizance of an offense of which they had no jurisdiction, it had no legal existence, and consequently was no court. Hence we can not undertake to reverse the proceedings of that body ; having no such control over it; but as an opinion was asked for by the prisoner, and the jurisdiction supported by the attorney general, we conceived it right to give an opinion that the law hereafter may be understood.\n(1) See note to Cornelius v. Coons et al., ante, page 37."
                        }
                    ],
                    "head_matter": "James Foley, Plaintiff in Error, v. The People, Defendants in Error.\nERROR TO MADISON.\nThe words, “ any other offense which by law shall not be bailable,” as used in the 40th section of the act defining the duties of justices of the supreme court, apply, not to the ability of an offender to procure bail, but to the character of the offense.\nLarceny is an offense bailable by law.\nConsent can not give jurisdiction.",
                    "parties": [
                        "James Foley, Plaintiff in Error, v. The People, Defendants in Error."
                    ]
                }
            }
        },
        {
            "id": 435549,
            "url": "https://api.case.law/v1/cases/435549/",
            "name": "William D. Noble, Plaintiff in Error, v. The People, Defendants in Error, on an indictment for Forgery",
            "name_abbreviation": "Noble v. People",
            "decision_date": "1822-12",
            "docket_number": "",
            "first_page": "54",
            "last_page": "57",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 54"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
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                "data": {
                    "judges": [],
                    "attorneys": [],
                    "opinions": [
                        {
                            "author": "Justice John Eeynolds.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice John Eeynolds.\nWilliam D. Noble was indicted for forgery, and found guilty in the St. Clair circuit court. To reverse that judgment, Noble prosecuted this writ of error, and assigned four errors, to wit:\n1. A juror, Moses Short, formed an opinion but had not expressed it.\n2. David Rankin, the person intended to be injured by the forgery, and the person who would in case of conviction, receive a moiety of the judgment, was admitted as a witness against said Noble.\n3. On account of the religious principles of said Rankin, he not believing in the doctrine of receiving punishment after death for crimes done in this life, although he believed in the existence of a God and a future state.\n4. The record of a civil suit was admitted in evidence, to show the amount that said Noble intended to defraud said Rankin of.\nOn the first point the law and constitution provide that all men shall be tried by an impartial jury; but as the mind of man is so organized, it is almost impossible for a jury to be perfectly impartial. Slight impressions will appear on the minds of any person who will at all think of any subject—this is unavoidable. These impressions will go on step by step on the mind, until they are confirmed into complete opinions. Yet the law can not draw any distinction between the most hasty impression, and a confirmed opinion ; therefore all these grades of opinion must be treated alike, and ought not to disqualify the person from acting on the jury. It is quite different when these opinions are expressed—every person wishes to appear to the world consistent-—therefore there is a strong partiality for these opinions when expressed, so much so, that it disqualifies. a person so situated from acting on a jury. This pride of opinion to act consistent, exists in every person, but as there was in this cas^ no expression of this opinion, I think there is no error in this respect,\n(a)\n(1)\nThe second point presents a question important to the public, yet I think one of easy solution. From necessity and public policy, the person on whom the forgery was committed must be admitted to prove it, although our statute gives such person one-half of the judgment so recovered against the accused. If this were not the law, forgeries would go unpunished. This is an exception to the general rule of an interested person being a witness. This interest must be left to his credit. If the witness be manifestly biased by his interest, the jury can detect him. With this view of the subject, I think Rankin was a competent witness ; therefore in this there is no error,\n(b)\n(2)\nThe third error brings in discussion the religious principles of said Rankin. I conceive the law to be, that all persons who believe in the existence of a God and a future state, are on this account good witnesses. The witness believed in a God and a future state of existence, yet he did not believe in being punished hereafter for crimes done in this life ; yet as he believed in the great essential matters as the law requires, he is considered a good witness,\n(c)\n(3)\nOn the fourth point I will barely remark, that the record appears to me to be the best evidence to prove the amount which the said Noble intended to defraud the said Rankin of. Therefore on all these matters I am of opinion the judgment of the court below ought to be affirmed.\nJudgment affirmed.\n(a) Jurors must be free from all exceptions. 2 Johns. Rep., 194. The proper question to be propounded to a juryman is, “ Have you made up and delivered an opinion, that the prisoner is guilty or innocent of the charge laid in the indictment 1” 1 Burr’s Trial, 418.\n(1) The law in relation to disqualification of jurors from having formed opinions is very fully discussed in the case of Smith v. Eames, 3 Scam., 77. Breese, Justice, who delivered the opinion of the court in that case, said: “ If a juror has made up a decided opinion on the merits of the case, either from a personal knowledge of the facts, from the statements of witnesses, from the relations of the parties, or cither of them, or from rumor, and that opinion is positive and not hypothetical, and such as will probably prevent him from giving an impartial verdict, the challenge should be allowed. If the opinion be merely of a light and transient character, such as is usually formed by persons in every community upon hearing a current report, and which may be changed by the relation of the next person met with, and which does not show a conviction of the mind and a fixed conclusion thereon, or if it be hypothetical, the challenge ought not to be allowed; and to ascertain the state of the mind of a juror, a Ml examination, if deemed necessary, may be allowed.” The principles enunciated in this case have, ever since, been adhered to by our court. Gardner v. The People, 3 Scam., 83. Sellers v. Same, id., 412. Vennum v. Harwood, 1 Gilm., 659. Baxter v. The People, 3 Gilm., 368. Neely v. The People, 13 Ill., 687.\nIn Thompson v. The People, 24 Ill, 60, a person was called as a juror who, on being examined on oath as to his qualifications, said he had conversed with a witness in the case, and formed an opin: on as far as he heard—that he believed what he heard, but that he had not formed an opinion as to the guilt or innocence of the prisoner. It was held by the court that he was not incompetent.\n(b) The English rule is, that a party whose signature is alleged to be forged can not be received to testify in support of an indictment for the forgery. 2 Stark. on Ev., 582. This rule is adhered to in Connecticut, Vermont and North Carolina. In New Hampshire, Massachusetts, Pennsylvania and New York, he is held to be competent. 4 Johns. Rep., 296.\n(2) The present statute in relation to qualifications of witnesses in criminal trials is as follows : “ The party or parties injured shall, in all cases, be competent witnesses, unless he, she or they shall be rendered incompetent by reason of his, her or their infamy or other legal incompetency other than that of interest. The credibility of all such witnesses shall be left to the jury as in other cases ” Scates' Comp., page 377. Purple’s Statutes, 361, Sec. 15.\n(c) The proper question to be asked of a witness is, whether he believes in God, the obligation of an oath, and in a future state of rewards and punishments. 1 Stark. Ev., 82, note (r)\nThe witness must believe that divine punishment will be the consequence of perjury. Ibid., 80.\n(3) A person who has no religious belief, who does not acknowledge a Supreme Being, and who does not feel himself accountable to any moral punishment here or hereafter, but who acknowledges hi.; amenability to the criminal law, if he foreswear himself, can not become a w.tness. Central Military Tract R. R. Co. v. Rockafellow, 17 Ill., 541.\nThe unbelief of such a person is best established by the testimony of others ; though he may be permitted, sworn or unsworn, to explain any change of belief, and leave the court to determine as to his competency. Id.\nThe authorities on this question are stated fully in the opinion of Scates, C. J., in this case."
                        }
                    ],
                    "head_matter": "William D. Noble, Plaintiff in Error, v. The People, Defendants in Error, on an indictment for Forgery.\nERROR TO ST. CLAIR.\nAn opinion formed, if not expressed, does not disqualify a juror. „\nA person whose name is forged, is a competent witness to prove the forgery, although upon conviction, he receives one-half of the fine imposed. His credibility is left to the jurjc\nAll persons who believe in the existence of a God and a future state, though they disbelieve in a punishment hereafter for crimes committed here, are competent witnesses.",
                    "parties": [
                        "William D. Noble, Plaintiff in Error, v. The People, Defendants in Error, on an indictment for Forgery."
                    ]
                }
            }
        },
        {
            "id": 435566,
            "url": "https://api.case.law/v1/cases/435566/",
            "name": "Wm. Beer, H. Beer, and Thomas Beer, Plaintiffs in Error, v. Daniel Philips, Defendant in Error",
            "name_abbreviation": "Beer v. Philips",
            "decision_date": "1822-12",
            "docket_number": "",
            "first_page": "44",
            "last_page": "44",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 44"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
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            },
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                    "judges": [],
                    "attorneys": [],
                    "opinions": [
                        {
                            "author": "Chief Justice Reynolds.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nChief Justice Reynolds.\nThis was an action of trespass quare clausum fregit, commenced by Philips against the Beers in the court below. The defendants below pleaded not guilty, and liberum tenementum. Upon the first plea, issue was taken, and to the second, the plaintiff replied specially—to this special replication the defendant demurred, and the court overruled the demurrer. The judgment of the court in overruling this demurrer is assigned for error. We have not deemed it material to set out the facts disclosed by the replication, because we think the case can be disposed of without a decision upon its merits. After the decision of the court, overruling the demurrer, the defendant rejoined to the replication, and took issue thereon. This we consider was a complete waiver of the demurrer. If the court below erred, the defendants in that court, to have availed themselves of that error, should have abided by their demurrer, and not traversed the replication. After abandoning the demurrer, they can not assign the decision upon it for error. The judgment of the court below is affirmed.\n(1)\nJudgment affirmed.\n(1) Such is the rule of pleading to the merits. Peck v. Boggess, 1 Scam., 281. Buckmaster v. Grundy, id., 312. Gilbert v. Maggord, id., 471. McFadden v. Fortier, 20 Ill., 509. But it is otherwise in pleas in abatement. It was once so held in Delahay v. Clement, 2 Scam., 575; but this decision was overruled in the same case in 3 Scam., 201. And it is now settled that if a demurrer to a plea in abatement be sustained, and the defendant answer over, he is not thereby precluded from examining the decision on the demurrer in an appellate court. Delahay v. Clement, 3 Scam., 201. Weld v. Hubbard, 11 Ill., 574.\nIf an unanswered demurrer is on record, and the party filing it goes to trial by consent, it will not be cause for reversal of the judgment. Parker v. Palmer et al., 22 Ill., 489."
                        }
                    ],
                    "head_matter": "Wm. Beer, H. Beer, and Thomas Beer, Plaintiffs in Error, v. Daniel Philips, Defendant in Error.\nERROR TO ST. CLAIR.\nIf, after the decision of the court, overruling a demurrer, the defendant rejoins to the replication and issue is taken thereon, it is a complete waiver of the demurrer.\nAfter abandoning a demurrer, the decision upon it can not be assigned for error.",
                    "parties": [
                        "Wm. Beer, H. Beer, and Thomas Beer, Plaintiffs in Error, v. Daniel Philips, Defendant in Error."
                    ]
                }
            }
        },
        {
            "id": 435574,
            "url": "https://api.case.law/v1/cases/435574/",
            "name": "John Bloom, Appellant, v. Conrad Goodner, Appellee",
            "name_abbreviation": "Bloom v. Goodner",
            "decision_date": "1822-12",
            "docket_number": "",
            "first_page": "63",
            "last_page": "64",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 63"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [],
                    "opinions": [
                        {
                            "author": "Chief Justice Reynolds.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nChief Justice Reynolds.\nGoodlier sued out his writ of forcible detainer, under an act of the legislature, entitled, “ an act against forcible entry and detainer,” from two justices of the peace of St. Clair county, and obtained a verdict and judgment of restitution. To reverse that judgment, Bloom, by writ of Certiorari, removed the case into the circuit court. On the hearing of the cause, the circuit court affirmed the judgment of the justices. There are many errors assigned for the reversal of this judgment, and those which we deem at all material or worthy to be noticed, we will consider, as follows :\n1. Eleven jurors only signed the verdict.\n2. The court in their instructions to the jury did not correctly define a forcible detainer.\n8. The trial before the justices was held at Belleville, when it ought to have been held at the premises.\n4. The court permitted new evidence to be given to the jury after argument of the cause had been commenced by the counsel.\nThe statute requires that all the jurors should sign the verdict. In the record and proceedings before the justices, it appears that twelve jurors were summoned and sworn, and the verdict appears to have been entered as the verdict of the whole ; hence we are bound to conclude that the omission has been occasioned by the mistake of the clerk; we are the more confirmed in that opinion, when we find that this objection was not raised in the circuit court. It being then a mere clerical mistake, can not operate to reverse the judgment.\n2. Did the justices correctly define a forcible detainer ? We think the justices were rather cramped and contracted in their views of this subject. Actual force is necessary to constitute this injury, and such force as is spoken of in the statute. This is the more evident, when we consider that peaceable holdings over or detainers, are provided for in the act entitled, “ An act as to proceedings in ejectment, distress for rent and tenants at will holding over.” However, as the jury have found that the detainer was committed forcibly, and with a strong hand, the instruction of the justices, though not sufficiently broad, has worked no injury, and ought not therefore to be cause for the reversal of the judgment.\n(1)\n3. The trial was at Belleville when it ought to have been on the premises. It is a sufficient answer to this objection, that the law does not require that the inquisition should be on the premises; it is, therefore, discretionary with the justices.\n4. New testimony was heard after argument of the cause was opened by counsel. This is at all times and before all courts matter of discretion—and before justices of the peace, much more ought that discretion to be indulged. We can not say that in this particular that discretion has been abused.\n(2)\nLet the judgment of the circuit court be affirmed, and the defendant recover his costs.\nJudgment affirmed.\n(1) This is now changed by statute, Sec. 1, p. 582, Purple’s statutes, Scate’s Comp., 521, provides that if any person shall willfully and without force hold over, &c., they shall be deemed guilty of a forcible entry and detainer, or a forcible detainer, as the case may be.\n(2) Affirmed in Russell et al. v. Martin, 2 Scam., 495. Welsh et al v. The People, 17 Ill., 339."
                        }
                    ],
                    "head_matter": "John Bloom, Appellant, v. Conrad Goodner, Appellee.\nAppeal From St. Clair.\nThe Statute in relation to forcible entry and detainer requires that all the jury should sign the verdict. A mere clerical mistake, omitting the name of one of the jurors, can not operate to reverse a judgment. Under the act of 1819, actual force is necessary to constitute a forcible detainer, and the inquisition can be held at any other place than the premises.\nIt is discretionary with a court to hear evidence after the argument of a cause is opened by counsel.",
                    "parties": [
                        "John Bloom, Appellant, v. Conrad Goodner, Appellee."
                    ]
                }
            }
        },
        {
            "id": 435632,
            "url": "https://api.case.law/v1/cases/435632/",
            "name": "William Thompson, Appellant, v. George Armstrong, Appellee",
            "name_abbreviation": "Thompson v. Armstrong",
            "decision_date": "1822-12",
            "docket_number": "",
            "first_page": "48",
            "last_page": "50",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 48"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [],
                    "opinions": [
                        {
                            "author": "Chief Justice Reynolds,",
                            "type": "majority",
                            "text": "Chief Justice Reynolds,\nafter stating the facts of the case, delivered the opinion of the court. The court is called upon to say, whether, from the state of facts as set out by the plaintiff, he has used due diligence to obtain the amount of the note from the maker. This the court can not do. It is not averred where the note was assigned. Suit then, having been commenced in Kentucky, the court can not know how many terms of the court in that state intervened, (if any) between the assignment of the nove and the suing out the writ original against the maker, and for aught that appears, suit may have been commenced at the first term after the assignment. The court is inclined to think this ought to appear from the declaration, and that therefore the first count is defective as being too uncertain.\nThe next objection taken, and which we are called upon to decide, is, that the note was not assignable. If we consider this objection, it will be by presuming a fact not averred, to wit, that the note was assigned in this state. Yielding to that presumption, and the court can not entertain a doubt, but that agreeably to the spirit and true intent and meaning of the statute authorizing assignments, the note in this case was properly assignable.\n*\nThat statute authorizes the assignment of notes for the direct payment of money, or for the direct payment of a specific article of property; a fortiori, then, when the note is for a stipulated sum of money to be paid in property.\nThe next question presented for the consideration of the court is, whether the averment of the insolvency of the maker, in the second count of the declaration, be sufficient to excuse the use of due diligence. Upon this point, it does seem to the court, that the human mind can not be brought to doubt. If there is an utter incapacity to pay, whence the necessity of resorting to the law ? The law never requires the performance of a vain and useless act, and surely, a suit would be worse than idle, against a man who is utterly in-insolvent, and would have no other tendency than to multiply costs and increase the party’s demand. If the court is correct in this view of the subject, the court below erred in sustaining the general demurrer to the whole declaration. It is therefore considered by the court, that the judgment of the court below be reversed, that the plaintiff, recover his costs, and that this cause be remanded to the circuit court of Madison, for new proceedings to be had not inconsistent with this opinion,\n(a)\n(1)\nJudgment reversed.\n* Laws of Territory, 1807, page 48.\n(a) Cases on assigned notes, against the assignor. Mason v. Wash, ante, page 39. Tarlton v. Miller, post. Lusk v. Cook, post.\n(1) See note to the case of Mason v. Wash, ante, page 39."
                        }
                    ],
                    "head_matter": "William Thompson, Appellant, v. George Armstrong, Appellee.\nThis was an action commenced by the plaintiff, the appellant, against the appellee, in the Madison circuit court, upon his liability as assignor of a promissory note. The note was executed in the state of Kentucky by one Colston 0. Wallis, on the 30th day of August, 1814, for the payment of a certain sum of money in pork, at a stipulated price, made payable to the defendant on the first day of January, 1817. On the second day of March, 1815, the note was assigned by the defendant to, the plaintiff. The declaration contains no averment of the place of assignment. It further appeared, that on the first day of June, 1818, the plaintiff commenced an action in the Muhlenburgh circuit court, state of Kentucky, against the maker of the no'te, and prosecuted him to insolvency. The second count in the declaration, contains all the preceding averments, with the addition, “that at the time the note became due and payable, the maker was insolvent, and entirely unable to pay the said note or any part thereof, and has ever since continued, and still is, insolvent and unable to pay the same.” To this declaration there was a demurrer, which the court sustained, and thereupon the plaintiff appealed, and assigns for error the judgment of the court below in sustaining the defendant’s demurrer.\nAPPEAL FROM MADISON.\nThe assignor of a note for the payment of money or a specific article of property, is not liable, unless due diligence has been used to recover of the maker, and a suit in June, 1818, upon a note made in August, 1814, and payable in January, 1817, which was assigned in March, 1815, is not due diligence.\nA note for the payment of a certain sum of money “ which may be discharged in pork,” is assignable.\nAn averment of the insolvency of the maker, is sufficient to excuse the use of due diligence.",
                    "parties": [
                        "William Thompson, Appellant, v. George Armstrong, Appellee."
                    ]
                }
            }
        },
        {
            "id": 435653,
            "url": "https://api.case.law/v1/cases/435653/",
            "name": "S. Moore, Plaintiff in Error, v. J. Watts, S. Crocker and M. Wells, Defendants in Error",
            "name_abbreviation": "Moore v. Watts",
            "decision_date": "1822-12",
            "docket_number": "",
            "first_page": "42",
            "last_page": "43",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 42"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [],
                    "opinions": [
                        {
                            "author": "Chief Justice Reynolds.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nChief Justice Reynolds.\nThis is an action of assault and battery and false imprisonment.\nThe defendants pleaded specially in substance, that the said Watts being a justice of the peace—that the defendant, Wells, appeared before the said justice, and made oath that the said plaintiff had entered her inclosure and carried off a quantity of her grain—that thereupon the said justice issued his warrant, upon which the plaintiff was arrested and committed. Under this proceeding the defendant justifies.\nThe plaintiff replied, that the assault and battery and false imprisonment was committed of the defendants’ own wrong, and without any legal process, founded upon a charge of felony, sworn to before said justice. Upon this replication issue was taken. The affidavit, warrant and commitment, were read in evidence to the jury, and the court instructed the jury that they were a complete justification to the defendants. It is to this instruction the plaintiff excepts, and we are called upon to say whether it is correct. We will here remark that the plea contains an averment that the affidavit meant, that-the plaintiff feloniously entered the inclosure of the said Wells, and carried off her grain. This kind of innuendo, if we may use the expression, can not alter the sense, or extend the meaning of the words. We will now consider, does_ the affidavit give to the justice jurisdiction ? If it does, then was the officer who acted under it, justified. By the 17th section of the act defining the powers and duties of justices of the peace, it is provided,\nThat it shall be lawful for any justice of the peace, upon oath being made before him that any person hath committed, or that there are just grounds to suspect that he or she hath committed any criminal offense within his county, to issue his warrant, &c. Can this provision be construed to extend to mere civil trespasses? we think not: and the affidavit shows nothing more. Then we must say the court erred in instructing the jury that the affidavit and proceedings under it justified the defendants. If the justice had not jurisdiction, and this is apparent, both from the affidavit and warrant, the officer who acts under his process, can not thereby claim to be justified. Let the judgment of the court below be reversed, the plaintiff recover his costs, and the cause remanded for new proceedings to be had not inconsistent with this opinion.\n(1)\nJudgment reversed.\n(1) There is some conflict in the authorities as to what extent an officer is justified in serving process which is void; but we think the weight of decisions establishes this principle—that if the process is, on its face, legal, it is a full justification to the officer serving it, unless he had notice outside of the writ that it was irregular. But if the process itself contains evidence of its irregularity, or if the officer is notified in any other manner, then he will be a trespasser. Such clearly is the purport of the decisions in this state Barnes v. Barber, 1 Gilm., 401. McDonald v. Wilkie, 13 Ill., 25. Stafford v. Low, 20 Ill., 152. In this last case the court, in speaking of a capias, said: “But like any other void process which is regular on its face, it would protect the officer executing it, as he need look no further than to the writ.” See also the following cases. Lattin v. Smith, post. Collins v. Waggoner, id. Flack et al. v. Ankeny, id. Hull v. Blaisdell et al., 1 Scam., 332. England v. Clark, 4 Scam., 487. Wentworth v. The People, id., 534. Parker v. Smith et al., 1 Gilm., 414. Bybee v. Ashby, 2 Gilm., 165 Stow v. Gregory, 3 Gilm., 576. Guyer v. Andrews, 11 Ill., 496. Cook v. Miller, id., 610. Teft v. Ashbaugh, 13 Ill., 603. Martin v. Walker, 15 Ill., 378.\nThough the rule is believed to be as stated, yet the decision was unquestionably correct in this case; for the plea sets out the affidavit, and shows the insufficiency of the proceedings in issuing the warrant, but does not pretend to allege a want of knowledge of such irregularity in the defendant.\nAlthough an officer executing a ca. so. upon an insufficient affidavit may protect himself by pleading the process, yet if he should refuse to execute it he would not be liable; nor would he be liable for an escape under it. Tuttle v. Wilson, 24 Ill., 553."
                        }
                    ],
                    "head_matter": "S. Moore, Plaintiff in Error, v. J. Watts, S. Crocker and M. Wells, Defendants in Error.\nERROR TO ST. CLAIR.\nA warrant for a felony founded upon an affidavit which stated “ that A. B. entered the inclosure of Ó. D, and carried off her grain,” is no justification to the officer who issued it, nor to the officer who executed it, as the affidavit contains no words importing a felony. All the parties to such a warrant are trespassers.",
                    "parties": [
                        "S. Moore, Plaintiff in Error, v. J. Watts, S. Crocker and M. Wells, Defendants in Error."
                    ]
                }
            }
        },
        {
            "id": 435658,
            "url": "https://api.case.law/v1/cases/435658/",
            "name": "James Bell and John Bell, Plaintiffs in Error, v. Zadock Aydelott, Defendant in Error",
            "name_abbreviation": "Bell v. Aydelott",
            "decision_date": "1822-12",
            "docket_number": "",
            "first_page": "45",
            "last_page": "45",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 45"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
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                "data": {
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                    "opinions": [
                        {
                            "author": "Justice John Reynolds.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice John Reynolds.\nThe long and uniform practice in this state has been for the jury to inquire of damages in the presence of the court. This mode is the more easily given in to, when we reflect that this inquiry of damages is had, in the presence, and under the immediate care and direction of the court. If it be absolutely necessary from the old law, as it was contended, for this writ to be executed in the presence of the sheriff, this likewise is done, for generally the sheriff is in the court. This will answer the ends of form, and form it must be, as the substantial ends of justice will be answered by the assessment of damages before the Court. We are therefore of opinion, that the judgment of the circuit court be affirmed.\n(a)\n(1)\nJudgment affirmed.\n(a) The executing a writ of inquiry is an inquest of office, and the officer who presides, acts ministerially, and not judicially. 2 Johns. Rep., 63. If it appears that important questions of law will arise on the execution of the writ, the court will order it to be executed by a judge at the circuit. Ibid., 107. Tidd’s Prac., 513. 4 T. R., 275. 2 Bos. & Pull., 55.\n(1) A writ of inquiry may be executed in vacation, as well as in term time. It may be executed at any place within the sheriff’s bailiwick. The statute has not changed the common law in this respect. Vanlandingham v. Fellows et al., 1 Scam., 233.\nIf any irregularity take place in the execution of a writ of inquiry, the proper way is to apply, upon affidavit, to the circuit court to set the inquest aside. Id.\nA writ of inquiry may be executed before the sheriff at any place within Ms bailiwick, and a want of notice to the defendant, on executing the writ, can not be assigned for error; nor can the sufficiency of the writ, the proper practice being to move the court below to quash it. Moore v. Purple, 3 Gilm, 149."
                        }
                    ],
                    "head_matter": "James Bell and John Bell, Plaintiffs in Error, v. Zadock Aydelott, Defendant in Error.\nAydelott brought an action of assault and battery, in the Gallatin circuit court, against the Bells. Judgment was entered against them for default of a plea, and the court, on motion of the plaintiff, ordered the sheriff to impannel a jury instanter to ascertain the damages. The jury, instanter, and in the presence of the court, assessed the damages, upon which the court rendered a judgment. The error assigned was, that the court ought to have awarded a writ of inquiry to the sheriff, who should have executed it by a jury, not in the\" presence of the court.\nERROR TO GALLATIN.\nThe long and uniform practice in this state, has been to execute writs of inquiry of damages, in the presence of the court, and there is no irregularity in it.",
                    "parties": [
                        "James Bell and John Bell, Plaintiffs in Error, v. Zadock Aydelott, Defendant in Error."
                    ]
                }
            }
        },
        {
            "id": 435668,
            "url": "https://api.case.law/v1/cases/435668/",
            "name": "Augustus Collins and Anson Collins, Plaintiffs in Error, v. John Waggoner, Defendant in Error",
            "name_abbreviation": "Collins v. Waggoner",
            "decision_date": "1822-12",
            "docket_number": "",
            "first_page": "51",
            "last_page": "53",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 51"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [],
                    "opinions": [
                        {
                            "author": "Chief Justice Reynolds.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nChief Justice Reynolds.\nThis was an action of trespass for entering the defendant’s close and taking and carrying away his personal goods. The plaintiffs here, who were defendants below, pleaded a judgment obtained by them before one David Moore, a justice of the peace in and for the county of Madison, against the said Waggoner. That on said judgment an execution issued, directed to any constable of Madison county, whereby such constable was commanded to levy upon the goods and chattels of the said Waggoner. That said execution came to the hands of one Isaac McMahon, then a constable of said county; that said constable, by virtue of said execution, and by the direction of the plaintiffs, entered the close and took and carried away the goods, &c., as averred in the declaration ; which entering and carrying away was the same trespass complained of, and of no other were they guilty.\nTo this plea said Waggoner replied: That the cause of action on which the judgment mentioned in said plea was rendered, arose before the first of May, 1821. That there was no indorsement on said execution in the plea mentioned, as is required in and by the twenty-seventh section of the act of the legislature of the state of Illinois, entitled “an act establishing the State Bank of Illinois.” That said Waggoner did, at different times, before the said trespass was committed, tender to the said Isaac McMahon the full amount of the said execution, and then and there offered to pay the same in notes of the said Bank, or to replevy the same for three years, as by law he might do, all of which the said Isaac McMahon refused to accept, permit or suffer, and whereupon the said defendant committed the trespass as in the declaration alleged, and this he is ready to verify. To this replication there was a demurrer, and that demurrer overruled by the court belowi To reverse that judgment this writ of error is prosecuted. Three objections are raised, one to the declaration, and two to the replication: 1. The action is misconceived. 2. The replication is a departure from the declaration, showing a trespass in McMahon only; and 3. There is no law authorizing a replevy of three years as averred in the replication.\nAnd first, is the action misconceived. The injury complained of is the forcibly entering the close of the said Wag-goner, and taking and carrying away his goods and chattels. Surely it can not be contended seriously that for this injury, case is the remedy. If the refusal to take bail, or to permit the party to replevy was the foundation of the complaint, then case would lie; but if, after such refusal, the officer proceeds to levy and distress, trespass can be supported. We will consider the second and third objections together, viz.: That the replication is a departure from the declaration, and shows a trespass in McMahon, the constable only, and that there is no law authorizing a replevy of three years. The first of these objections we think is well taken, and we have no doubt, if it had been raised below, (which we think was the duty of the counsel to have done, and the practice of raising objections here, which might have been urged below, this court can not but reprobate,) would have been sustained. Although the cause of action arose before the first of May, 1821, yet the plaintiffs in the execution, had their election to indorse that state paper would, or would not be received. If they did not elect to indorse that state paper would be received, we conceive from the law, the defendant had the privilege to replevy the debt for three years. The statutes upon this subject are complicated, but this seems to be the true construction, that upon all contracts entered into before the first of May, 1821, if the plaintiff in an execution, does not indorse that paper of the State Bank of Illinois, or either of its branches, will be received, the defendant will have the right to replevy for three years. It clearly appears in this case that notwithstanding the plaintiffs did not indorse on their execution, yet they had a right to direct the officer to levy, until thé offer to pay or replevy was made, nor does it appear from the replication, for it is not so averred, that the plaintiffs ever had notice of the offer made by the said Wag-goner to the said constable, to pay or replevy the said execution, and until they had notice of that fact, the plaintiffs could not be liable. The replication showing a trespass in McMahon only, is a departure from the declaration, and therefore bad.\n(1)\nLet the judgment below be reversed, and the costs abide the event of the suit in the court below, and the cause remanded with leave to the plaintiff in that court to amend his replication.\nJudgement reversed.\n(1) This is a familiar rule of pleading. Hite v. Wells, 17 Ill., 88."
                        }
                    ],
                    "head_matter": "Augustus Collins and Anson Collins, Plaintiffs in Error, v. John Waggoner, Defendant in Error.\nERROR TO MADISON.\nIf a replication departs from the declaration, it is error.\nUpon all contracts made before the first of May, 1821, the defendant had a right to replevy for three years, unless the plaintiff indorsed on the execution, that paper of the State Bank of Illinois would be received in discharge of the execution.",
                    "parties": [
                        "Augustus Collins and Anson Collins, Plaintiffs in Error, v. John Waggoner, Defendant in Error."
                    ]
                }
            }
        },
        {
            "id": 435729,
            "url": "https://api.case.law/v1/cases/435729/",
            "name": "Thomas Gill, Appellant, v. James Caldwell, Appellee",
            "name_abbreviation": "Gill v. Caldwell",
            "decision_date": "1822-12",
            "docket_number": "",
            "first_page": "53",
            "last_page": "54",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 53"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [],
                    "opinions": [
                        {
                            "author": "Chief Justice Reynolds.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nChief Justice Reynolds.\nThis was an action of slander commenced by the plaintiff here, against the defendant, in the court below, for charging him with swearing false in a certain judicial proceeding before one Thomas Kennedy, a justice of the peace.\nThe declaration avers that said Gill “ was sworn regularly and legally by the said justice, and then and there took his corporal oath.” From the bill of exceptions taken in the cause, it appears that on the trial below, the justice of the peace, Kennedy, testified, “that there was before him the trial mentioned in the declaration, that he administered to said Gill what he conceived to be an oath, that Gill swore by an uplifted hand, that no bible was used, and that Gill was not asked how he took his oath.” The defendant’s counsel then moved to exclude the testimony of Kennedy, it not proving a legal oath administered, nor such an one as would support the averment in the declaration, which motion the court below sustained, and excluded the testimony, and this we are called upon to correct. If the said Gill was sworn by an uplifted hand, it surely can not be said to be a departure from the declaration; the only question to be settled is, is it that kind of oath which the law recognizes ? The pure principle of the common law is, that oaths are to be administered to all persons according to their own opinions, and as it most affects their consciences.\nThis certainly is the best test of truth, and it was upon this ground the legislature enacted the statute which is supposed to govern this case. By their act of 1807, after authorizing oaths by uplifted hands, they declare that oaths “ so taken by persons who conscientiously refuse to take an oath in the common form, shall be deemed and taken in law to have the same effect with an oath taken in the common form.” We conceive that the man who swears by an uplifted hand, elects to do so, and the ceremony of refusing to swear upon the testament, or in the usual form, is perfectly idle. The statute does not vary the common law in this respect, and we conceive that the oath taken as set out in the bill of exceptions is valid, legal, and comports with the averments in the declaration. The judgment below must therefore be reversed, the plaintiff recover his costs, and the cause remanded for new proceedings to be had not inconsistent with this opinion,\n(a)\n(1)\nJudgment reversed.\n(a) By the common law, every witness is sworn according to the form which he holds to be the most solemn, and which is sanctified by the usage of the country or of the sect to which he belongs.\nIt was formerly doubted whether the oath must not be taken on the Old or New Testament, but it is now settled that it need not. 1 Wilson, 84. Cowper, 390.\nA Jew is sworn upon the Pentateuch, and a Turk upon the Koran; and in Erance, anciently, the witness, if a layman, raised his right hand, or if a priest, placed it upon his breast. Phil. Ev., 20.\nVide Rev. Laws of 1827, page 308.\n(1) Affirmed in the case of McKinney v. The People, 2 Gilm. Rep., 540."
                        }
                    ],
                    "head_matter": "Thomas Gill, Appellant, v. James Caldwell, Appellee.\nAPPEAL FROM CRAWFORD.\nSwearing a witness by an uplifted hand, is a legal swearing, independent of the statute.\nOaths are to be administered to all persons according to their opinions, and as it most affects their consciences.",
                    "parties": [
                        "Thomas Gill, Appellant, v. James Caldwell, Appellee."
                    ]
                }
            }
        },
        {
            "id": 435737,
            "url": "https://api.case.law/v1/cases/435737/",
            "name": "Bryan, Morrison, and Davidson, Appellants, v. John Primm, Appellee",
            "name_abbreviation": "Bryan, Morrison, & Davidson v. Primm",
            "decision_date": "1822-12",
            "docket_number": "",
            "first_page": "59",
            "last_page": "62",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 59"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [],
                    "opinions": [
                        {
                            "author": "Chief Justice Thomas Reynolds.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nChief Justice Thomas Reynolds.\nThis was a suit in chancery, commenced by Primm, for the purpose of setting aside a contract made with James W. Davidson and wife, and to erjoin a judgment obtained against himself by Bryan and Morrison upon a note executed under said contract. The bill alleges that sometime in July, 1808, Primm purchased of said Davidson and wife a certain tract of land lying in St. Clair County, which land descended to the wife of said Davidson as heir at law of one Peter Zip, deceased ; that said Davidson and wife were to execute to him such deeds as would completely vest in him the same title which the said Zip, deceased, had in the premises. That, accordingly, said Davidson and wife, together with one Jane Everett, who claimed an interest in the premises, did execute to him a deed for said land—that in consideration of such purchase, he agreed to pay the said Davidson the sum of eight hundred dollars, for the payment of which, he executed his note to the said Jane Everett for the sum of two hundred and sixty-six dollars ; and for the balance of said purchase money, beside a small part paid, he executed his notes to the said Davidson. The bill further shows that at the time of making said contract, and of the execution of the deed aforesaid, the said wife of Davidson, who was the sole heir to the said Zip, was under the age of twenty-one years, and that since she has arrived at full age, has refused to execute a deed for said land, without the payment of an additional sum.\nIt is further shown, that after the note executed to the said Jane Everett became due, it was assigned to Bryan and Morrison, who purchased the same through their agent, William Atchison,—that said Atchison had a full knowledge of all the circumstances under which said note was executed. The said Bryan and Morrison commenced suit upon said note and recovered judgment.\nThe prayer of the bill is to perpetually enjoin said judgment and cancel the notes given pursuant to said purchase. An injunction to stay the collection of said judgment was granted by the judge in vacation. The bill as to Davidson and wife was taken pro confesso. Bryan and Morrison answered, setting forth their ignorance of all the circumstances under which said note was executed—that they are the innocent purchasers of said note—deny knowing that their agent had any knowledge of said circumstances, but do not deny that their agent possessed such information. During the progress of the suit in the court below, the injunction was dissolved and the said Bryan and Morrison proceeded and collected their judgment. Upon the final hearing of the cause, the court below decreed that the notes should be can-celled, and that Bryan and Morrison refund to the said Primm the money so collected. To reverse this decree this appeal is prosecuted. We will first consider whether the bill contains equity, if so, whether that equity attaches upon the note in the hands of Bryan and Morrison.\nThe knowledge by Davidson of his wife’s being under age at the time of executing the conveyance, and not disclosing that fact to Primm, is surely a suppression of the truth; add to this the fact of his wife’s disagreement to the contract after she arrived at full age, and I think it will not be contended that the bill contains no equity. Between Primm, then, and Davidson and wife, the decree ought to be affirmed.\n(1)\nThe next inquiry is, does this equity extend to Bryan and Morrison. They do not deny that Atchison, their agent, had knowledge of Primm’s equity. This of itself would be notice to them.\n(1)\nBut regardless of this fact, the note was assigned to Bryan and Morrison after it became due. Under this circumstance, they took it subject to all the equity which attached in the hands of the original payee.\n*\n* It was contended in the argument by the counsel for the plaintiff, that the court erred in decreeing the money to be refunded by Bryan and Morrison, when the bill did not pray for such relief.\nIt will be remembered, that the prayer, as to them, is for a perpetual injunction, that after the injunction was dissolved, they proceeded and collected their judgment. Could not the court then decree the money to be refunded? We have no hesitation in saying they could. Otherwise, the complainant would be turned round and compelled to seek his redress by an action at law. If the injunction had been made perpetual, without this additional relief, the same absurdity would have followed.\n(2)\nLet the judgment of the court below be affirmed and the defendant recover his costs,\n(a)\nJudgment affirmed.\n(1) The same defense may be set up against the assignee of a note, which was transferred after its maturity, as could be made against the original payee. Tyler v. Young et al. 2 Scam., 444; Sargeant v. Kellogg et al. 5 Gilm., 273 ; Walter v. Kirk et al. 14 Ill., 55. And so is the statute. Purple's statutes, p. 772, Sec. 8. Scates’ Comp., p. 292.\nAn assignee of a note takes it subject to any defense existing between the maker and the payee which appears on the face of the note, or of which he had notice at the time of the assignment; and in such case it is immaterial whether the note was assigned before or after it became due. Frink et al. v. Ryan, 3 Scam., 324.\n(1) The same is held in Rector v. Rector et al. 3 Gilm., 119, and Doyle et al. v. Teas et al. 4 Scam., 250.\n* Laws of 1819, page 1.\n(2) In Isaacs v. Steele, 3 Scam., 103, the court said they had no doubt that under the prayer for general relief, a court of chancery may decree that which is not specifically prayed for, and grant more than is asked. And again in Manchester et al. v. McKee, 4 Gilm., 519. “The general prayer is sufficient to authorize the granting of any relief which the statement of the bill would warrant.” See also Alexander et al. v. Tams et al., 13 Ill., 225. Vansant v. Allmon, 23 Ill., 30.\n(a) The complainant is not confined to the particular relief prayed for in the bill, but, under the general prayer, is entitled to such a decree as the nature of the case may require. Beebe and others v. Bank of New York, 1 Johns. Rep., 529."
                        }
                    ],
                    "head_matter": "Bryan, Morrison, and Davidson, Appellants, v. John Primm, Appellee.\nAPPEAL FROM ST. CLAIR.\nA suppressio veri in relation to any important fact affords ground for the interference of a court of equity to annul the contract.\n(1)\nThe assignee of a note, after it becomes due, takes it subject to all the equity exist ing between the original parties to it.\nNotice of an equity, to an agent, is notice to his principal.\nThough a bill for an injunction does not pray that the money be refunded, yet such relief can be granted, and a decree therefor is not erroneous.\n(1) In a sale of land by a guardian, a mere suppressio veri, does not constitute fraud in the sale; but if there was a suggestio falsi the question would be different. Mason v. Wait et al., 4 Scam., 127.\nFraud may consist as well in a suppressio veri as in a suggestio falsi; for in either case, it may operate to the injury of the innocent party. Lockridge v. Foster et al., 4 Scam., 569.\nThese decisions of our court are apparently conflicting, and, to a casual reader, might be calculated to mislead. Indeed the cases of Bryan & Morrison v. Primm, and Lockridge v. Foster et al., do not justify the syllabus of the reporter. In each of those cases there was a positive false affirmation which authorized the decision of the court; and in the last case the language of the opinion was as stated by the reporter; but it was not called for by the case—was a mere dictum of the court—and with all due deference to the very able judge who delivered the opinion, is not, we think, warranted by the law. How far a person is bound, -when dealing with another, to communicate facts purely -within his own knowledge, is a question about which great diversity of opinion has existed. Cicero held that a man was bound to communicate every fact within his knowledge, which was unknown to the one with whom he was dealing, and which might operate on the other in making the contract. Some modern jurists and moralists of eminence have adopted this doctrine. Although this may be and is true in morals, yet the courts of America have not seen fit to adopt so rigid a rule. Thus Chancellor Kent says “From this and other cases it would appear that human laws are not so perfect as the dictates of conscience; and the sphere of morality is more enlarged than the limits of civil jurisdiction. There are many duties that belong to the class of imperfect obligations, which are binding on conscience, but which human laws do not, and can not undertake directly to enforce.” 2 Kent's Comm., p. 490.\nTo constitute a suppressio veri such a fraud as will authorize a court to interfere and declare the contract void, there must be something more than a failure to communicate facts within the knowledge of the party—there must be concealment. Such concealment may be by withholding the information when asked for it, or by making use of some device to mislead. Or there may be cases in which such suppression would be held to be a fraud when no act was done by the party chargeable with it; such as where from the peculiar situation of the parties—“ when the person stands in the relation of trustee or quasi trustee to another, as agent, faetor, steward, attorney, or the like, if he would purchase of his principal or employer, any property entrusted- tc his care, he must deal with the utmost fairness, and conceal nothing within his knowledge which may affect the price or value.” 2 Kent's Comm., p. 490. Or where one party possesses a knowledge of facts which, from the situation of the property, the other can not know, a súppression of such facts would render a contract invalid.\nThe conclusion to which we arrive is, that unless the case comes within some of the exceptions arising from the peculiar situation of the parties, a mere failure to communicate facts within the knowledge of one party and unknown to the other, does not make it fraudulent; in other words, the party must do some act to mislead. A late writer has so fully expressed our views on this subject, that we avail ourselves of the following extract from his truly valuable work: “If the seller knows of a defect in his goods which the buyer does not know, and if he had known would not have bought the goods, and the seller is silent, and only silent, his silence is nevertheless a moral fraud, and ought perhaps on moral grounds to avoid the transaction. But this moral fraud ha s not yet grown into a legal fraud. In cases of this kind there may be circumstances which cause this moral fraud to be a legal fraud, and give the buyer his actior on the implied warranty, or on the deceit. And if the seller be not silent, but produce the sale by means of false representations, then the rule of caveat emptor does not apply, and the seller is answerable for his fraud. But the weight of authority requires that this should be active fraud. The common law does not oblige a seller to disclose all that he knows, which lessens the value of the property he would sell. He may be silent, leaving the purchaser to inquire and examine for himself, or to require a warranty. He may be silent, and be safe; but if he be more than silent—if by acts, and certainly if by words, he leads the buyer astray, inducing him to suppose that he buys with warranty, or otherwise preventing his examination or inquiry, this becomes a fraud of which the law will take cognizance. The distinction seems to be—and it is grounded upon the apparent necessity of leaving men to take some care of themselves in their business transactions—the seller may let the buyer cheat himself ad libitum, but must not actively assist him in cheating himself.” 1 Parsons on Contr., 461. See also 1 Story’s Eq., Sec. 203-8.\nA mere false representation does r ot constitute fraud. The party must know the representations to be false, and must use some means to deceive and circumvent. Sims v. Klein, post.\nBrand can not exist without an intention to deceive. Miller v. Howell, 1 Scam., 499.\nWhere a party, by the use of fraud and deception, obtains a conveyance, the parties who have made it may disregard it and convey to a third party, who may establish the fraud in equity, and be protected in his rights. Whitney v. Roberts, 22 Ill., 381.",
                    "parties": [
                        "Bryan, Morrison, and Davidson, Appellants, v. John Primm, Appellee."
                    ]
                }
            }
        },
        {
            "id": 435764,
            "url": "https://api.case.law/v1/cases/435764/",
            "name": "Samuel Tufts, Plaintiff in Error, v. Thomas K. Rice, Defendant in Error",
            "name_abbreviation": "Tufts v. Rice",
            "decision_date": "1822-12",
            "docket_number": "",
            "first_page": "64",
            "last_page": "65",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 64"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Starr, for plaintiff in error.",
                        "Smith, for defendant in error."
                    ],
                    "opinions": [
                        {
                            "author": "Chief Justice Reynolds.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nChief Justice Reynolds.\nThis was an action of assumpsit, for the non-performance of a contract. To the declaration, the defendant pleaded the statute of limitations. To this plea there was a demurrer, and the demurrer overruled by the court below.\nTo reverse that decision, this writ of error is prosecuted.\nThe statute, limiting actions in cases like the present, was approved March 22d, 1819, [Laws of 1819, page 141,] and limits the time in which actions on the case upon promises shall \"be commenced, to five years. As that statute has not run five years, it can not operate as a bar to this action.\nIt is not necessary now to decide, whether, if the five years had run under the territorial government, it would not have been a bar, and might have been pleaded. It will be time enough to settle that question, when brought before us ; we can only say at present, that we incline to the affirmative of that question.\nLet the judgment be reversed, the plaintiff recover his costs, and the cause remanded for new proceedings to be had, not inconsistent with this opinion.\n(1)\nJudgment reversed.\n(1) As a general rule, a statute is to operate in futuro only, and is not to be so construed as to affect past transactions. A retrospective effect will not be given it unless it clearly appears that such was the intention of the legislature. If it is left doubtful what was the real design, the statute must be so construed as to have a prospective effect only. Jones, adm. v. Bond, post. Bruce v. Schuyler, 4 Gilm., 221. Thompson v. Alexander, 11 Ill., 55. Marsh v. Chestnut, 14 Ill., 227."
                        }
                    ],
                    "head_matter": "Samuel Tufts, Plaintiff in Error, v. Thomas K. Rice, Defendant in Error.\nStarr, for plaintiff in error.\nSmith, for defendant in error.\nTufts brought his action of assumpsit, at the April term, 1822, of the Madison circuit court, against Rice, on a promissory note, for the payment of twenty-five dollars, executed by Rice to Tufts, at Boston, and dated the tenth day of April, 1812. To this action, Rice pleaded the Statute of Limitations, that he did not undertake or promise, within five years next before the commencement of the suit. To this plea, there was a demurrer, and joinder, and judgment for the defendant on the demurrer. The plaintiff brought his writ of error, and assigned for error, besides the general error, that the court below gave judgment in favor of the said Rice, and against the said Tufts, on the demurrer of the said Tufts, to the plea of said Rice.\nERROR TO MADISON.\nAn action of assumpsit was commenced in 1822, upon a contract made in 1812, to which the statute of limitations was pleaded. This statute was passed in 1819, and is no bar to such action. .\nIt seems, that if the five years had run under the territorial government, it might have been pleaded in bar.",
                    "parties": [
                        "Samuel Tufts, Plaintiff in Error, v. Thomas K. Rice, Defendant in Error."
                    ]
                }
            }
        },
        {
            "id": 435775,
            "url": "https://api.case.law/v1/cases/435775/",
            "name": "Joseph Cornelius, Appellant, v. David Coons and Parker Jarvis, Appellees",
            "name_abbreviation": "Cornelius v. Coons",
            "decision_date": "1822-12",
            "docket_number": "",
            "first_page": "37",
            "last_page": "38",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 37"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [],
                    "opinions": [
                        {
                            "author": "Chief Justice Reynolds.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nChief Justice Reynolds.\nIt is a sufficient answer to the second error assigned, that the judgment of the court, and this appeal, were both had ,by consent entered of record. Without such consent, no appeal would lie upon an order dissolving an injunction, it being an interlocutory, and not a final judgment. The correctness of the judgment in dissolving the injunction, can not be questioned. If the bill contained any equity, it is completely destroyed by the defendant’s answer. The judgment of the court below is affirmed,\n(a)\n(1)\nJudgment affirmed.\n(a) No appeal from an interlocutory decree dissolving an injnnction. Young v. Grundy, 6 Cranch, 51.\n(1) The general rule is well settled—that an appeal or writ of error will not lie from an interlocutory order; it must be a final adjudication or judgment to enable a party to have it reviewed by an appellate court. Pentecost et al. v. Magahee, 4 Scam., 326. Fleece v. Russell et al., 13 Ill., 31. Hayes v. Caldwell, 5 Gilm., 33. Woodside v. Woodside, 21 Ill., 207 ; and it is also equally as well settled that consent of parties will not confer jurisdiction on a court which has no jurisdiction of the subject matter. The People v. Scates, 3 Scam., 353. Foley v. People, post. Allen v. Belcher, 3 Gilm., 595. Ginn et al. v. Rogers, 4 Gilm., 135. Williams v. Blankenship, 12 Ill., 122. Randolph County v. Ralls, 18 Ill., 29. The rule established by the case last cited is, “ That jurisdiction of the subject matter can not be conferred upon a court by consent of the parties, nor can want of it be waived; but when the law confers upon the court original jurisdiction of the subject matter, full appearance, without objection, confers upon the court jurisdiction of the person, and it may then adjudicate.\" The same distinction is taken in the other cases cited.\nThe jurisdiction of the supreme court in existence when this decision was made was fixed by the constitution of the state, and was as follows: “ The supreme court shall be holden at the seat of government, and shall have an appellate jurisdiction only, except in cases relating to the revenue, in cases of mandamus, and in such cases of impeachment as may be required to be tried before it.” Constitution of 1818, Article 4, Section 2. The present constitution is substantially the same. Article 5, Sec. 5.\nErom these principles we think it follows, that the order appealed from being interlocutory only, the supreme court had no jurisdiction over it; that that court possessing only appellate jurisdiction, the consent of parties could not confer jurisdiction ; and that consequently the decision of the court was erroneous.\nAnd this view, it is believed, is sustained by the reasoning of the court in subsequent cases, although the question here has never been directly before the court. In Crull et ux. v. Keener, 17 Ill., 246, in speaking of cases authorized to be certified to the supreme court from the circuit court, Caton, C. J. said: “ Nothing can be more manifest than that this was never designed to allow a case to be taken to the supreme court till a final decision had been made in the circuit court, so that it could be taken up in the ordinary way by filing a complete record.” And again in Cunningham v. Loomis et al., id. 555, which was attempted to be taken to the supreme court in the same manner: “ However clear we might be that the circuit court decided correctly, so far as that decision went, yet, as there is no final order in the case, this court has no jurisdiction to affirm or reverse the decision. The judgment which was rendered was but interlocutory. It could not be final, till the damages were assessed. Should we affirm the judgment it would not be an end of the case. As yet, the plaintiffs’ judgment is for nothing. It merely determines that they are entitled to recover something. How much they are entitled to recover, is a question still pending before the circuit court, which has exclusive jurisdiction over it. That question may be tried in that court at the same time we are heaving this cause here, and bythe timethis decision is made, the condition of the cause may be very different from what it was when this case was brought up.”"
                        }
                    ],
                    "head_matter": "Joseph Cornelius, Appellant, v. David Coons and Parker Jarvis, Appellees.\n' Cornelius exhibited his bill in chancery, in the St. Clair circuit court, praying an injunction to enjoin Coons from the collection of certain judgments which he had obtained against Cornelius, before Clayton Tiffin, a justice of the peace, and also to enjoin Jarvis, the constable, from collecting the executions issued upon those judgments. An injunction was awarded by the judge in vacation. Jarvis answered, setting forth his powers to act as constable, by virtue of the executions. Coons answered, and denied every material allegation in the complainant’s bill. Upon a hearing of the cause upon bill and answers, the court dissolved the injunction. The errors assigned, question the correctness of the court below in dissolving the injunction, and in rendering that judgment in vacation.\nAPPEAL FROM ST. CLAIR.\nAn appeal will lie, by consent entered of record, from an interlocutory order dissolving an injunction.",
                    "parties": [
                        "Joseph Cornelius, Appellant, v. David Coons and Parker Jarvis, Appellees."
                    ]
                }
            }
        },
        {
            "id": 435817,
            "url": "https://api.case.law/v1/cases/435817/",
            "name": "Joseph R. G. Poole, Appellant, v. Oliver C. Vanlandingham, Appellee",
            "name_abbreviation": "Poole v. Vanlandingham",
            "decision_date": "1822-12",
            "docket_number": "",
            "first_page": "47",
            "last_page": "48",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 47"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [],
                    "opinions": [
                        {
                            "author": "Justice John Reynolds.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice John Reynolds.\nThis was an action of debt, to which there were seven pleas; the five last were demurred to, and the demurrer sustained, and to reverse that opinion this appeal is prosecuted. The 3d plea states that the note in this case was given without any good or valuable consideration. 4th plea alledged that the consideration had wholly failed. 5th plea is a plea of nil debet. 6th plea stated that $500 were paid in discharge of the debt of $700. 7th plea states that said Poole never received any consideration from any person named in said note. The 6th plea of nil debet is a good plea. This is a good plea to all simple contract debts; it will put in issue all the matter contained in the second plea which was withdrawn.\n(1)\nOn this ground therefore, if no other, the judgment must be reversed, and the case remanded to the court below, so the plaintiff may withdraw his demurrer and take issue on said plea of nil debet. Yet as there are other pleas, on which the demurrer is taken, it will perhaps be right to give some opinion on them. The 3d and 7th pleas contain the same matter, to wit: that there was not given nor received any good or valuable consideration for said note. The statute law of this state gives rise to these pleas, which show a kind of negative defense to the action, and such matter of which the plaintiff must take the affirmation; therefore there can be no necessity, although urged to the contrary, for the defendant to show in what manner the consideration was not given by one party, or received by the other,—in reality a negative can not be shown or proven.\n(2)\nOn these pleas-it is necessary for the plaintiff to go on and allege in what manner the consideration was given and received.\nTherefore those pleas are good. The 4th plea is certainly had, as it is necessary for the defendant, when the consideration is alleged to have failed, to show in what manner it has failed. This allegation ought to have stated with as much precision, as the allegations in a declaration are set out. For this reason, the demurrer to this plea ought to be sustained.\n(3)\nThe fifth plea is a kind of plea of accord and satisfaction ; it is surely a novel one, yet I think it a good plea under our statute. The judgment of the court below ought to be reversed, and the case remanded to be proceeded on as above stated,—the costs to abide the event of the suit.\nThe judgment is reversed on the above grounds, except as to the pleas of the want of consideration ; on these the court is divided—therefore as to these the judgment is affirmed,\n(a)\nJudgment reversed.\n(1) In a suit where a bond is the gist of the action, nil debet is not a good plea; but where it is inducement merely, it is a good plea. Davis v. Burton et al, 3 Scam., 41. King v. Ramsay, 13 Ill., 622.\n(2) It is said this is overruled by the cases of Stacker et al. v. Watson, 1 Scam., 207; Vanlandingham, v. Ryan, 17 Ill., 25; Topper v. Snow, 20 Ill., 434; and if it was meant by the court to say that the plaintiff must take the affirmative in proving that there was a consideration, then there can be no question but that it was erroneous. But such I apprehend was not their intention. They were passing only on the question of the sufficiency of the pleadings ; and when confined to that it is not readily seen that there is any error in the opinion. Suppose a note to be given without any pretense or show of consideration, how could a defendant do more than aver that it was given without any consideration f\n(3) See note to Taylor v. Sprinkle, ante page 17.\n(a) Vide Taylor v. Sprinkle, page 17. Cornelius v. Vanorsdall, page 23. Bradshaw v. Newman, post."
                        }
                    ],
                    "head_matter": "Joseph R. G. Poole, Appellant, v. Oliver C. Vanlandingham, Appellee.\nAPPEAL FROM GALLATIN.\nThe plea of nil debet is a good, plea to all actions of debt upon all simple con\" tracts.\nA plea stating that the consideration has wholly failed, without saying wherein, is • bad.\nThe plea of “ no consideration” is given by statute, and throws the onus upon the plaintiff.",
                    "parties": [
                        "Joseph R. G. Poole, Appellant, v. Oliver C. Vanlandingham, Appellee."
                    ]
                }
            }
        },
        {
            "id": 435533,
            "url": "https://api.case.law/v1/cases/435533/",
            "name": "Ninian Edwards, Plaintiff in Error, v. William A. Beaird, Defendant in Error",
            "name_abbreviation": "Edwards v. Beaird",
            "decision_date": "1823-11",
            "docket_number": "",
            "first_page": "70",
            "last_page": "71",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 70"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [],
                    "opinions": [
                        {
                            "author": "Justice John Reynolds.",
                            "type": "majority",
                            "text": ", Opinion of the Court by\nJustice John Reynolds.\nThe act of the 27th March, 1819,\n*\non the subject of laying a tax on certain property, makes no distinction between residents and non-residents. The whole tenor of the statute shows that the lien is created on the property to be taxed, and not on the owner of the property. All property of a certain description, in which town lots are included, is subject to be taxed by the county court. It is objected that the bill was dismissed on the defendant’s motion. This may be done in all cases where the court is satisfied there is no equity in the face of the bill. The judgment of the circuit court must be affirmed.\n(1)\nJudgment affirmed.\n* Laws of 1819, page 313.\n(1) Affirmed in Fisher v. Stone, 3 Scam., 68; Parkinson v. Trousdale, id., 371; State Bank v. Stanton, 2 Gilm., 352; Puterbaugh v. Elliott et al., 22 Ill., 157."
                        }
                    ],
                    "head_matter": "Ninian Edwards, Plaintiff in Error, v. William A. Beaird, Defendant in Error.\nEdwards filed a bill in chancery against Beaird, as sheriff of St. Clair county, in the circuit court of that county, stating that he was not a resident of St. Clair county, and that the county court of said county had levied a tax on town lots, the property of complainant, from which he prayed to be relieved, and that Beaird might be enjoined from collecting the tax assessed upon them. The defendant appeared, and moved the court to dismiss the bill, which motion the court sustained and dismissed the bill; to reverse which opinion, Edwards prosecuted a writ of error.\nERROR TO ST. CLAIR.\nA bill may be dismissed in all cases on motion, when the court is satisfied there is no equity in it.\nThe act of 1819-, laying a tax on certain property, makes no distinction between residents and non-residents—the lien attaches on the property, and not on the person.",
                    "parties": [
                        "Ninian Edwards, Plaintiff in Error, v. William A. Beaird, Defendant in Error."
                    ]
                }
            }
        },
        {
            "id": 435543,
            "url": "https://api.case.law/v1/cases/435543/",
            "name": "David Everett, Appellant, v. William Morrison, Appellee",
            "name_abbreviation": "Everett v. Morrison",
            "decision_date": "1823-11",
            "docket_number": "",
            "first_page": "79",
            "last_page": "81",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 79"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Blackwell, for appellant.",
                        "Kane, for appellee."
                    ],
                    "opinions": [
                        {
                            "author": "Justice Wilson.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice Wilson.\nThe judgment of the court below is reversed, because it appears that the undertaking of Everett was only collateral, and as such, came within the statute of frauds and perjuries.\nTo this opinion of the court, Justice John Reynolds dissents., and delivers the following opinion.\nThe bill of exceptions in this case presents a state of facts not very satisfactory. It is really difficult to know if Everett be the security of Bailey or the principal in this transaction. But from the best consideration I am capable of bestowing on this case, I conclude that Everett was the person to whom the credit was given, and therefore liable. The witness states expressly that he would not give credit to Bailey, but that the credit was given to Everett, yet in the same deposition he says, Everett was the security of Bailey, and the charge is so made. There being no writing in the case, it was contended that Everett was not\" liable, as it was within the statute of frauds and perjuries. I am of opinion, according to the whole state of facts as shown, that Everett is liable,\n(a)\n(1)\nJudgment reversed.\n(a) Where the promise is an original undertaking it need not be in writing. 2 Johns, cas., 52. Where the promise to pay the debt of another is made at the same time with the contract to which it is collateral, it is incorporated into it and becomes a part of it—the whole is one entire contract, and the want of consideration, as between the plaintiff and the guaranty can not be alleged. 8 Johns., 29. If the whole credit is given to the person who comes in to answer for another, his undertaking is not collateral. Ibid. Per. Kent, Ch. Just.\n(1) Parties may make valid contracts, though not in writing, to pay the debt of another; but the new or original contract must be declared on; and this must be founded on a new and original consideration moving to the party making the promise, and the debt of the original debtor must not be the consideration for the promise. Hite v. Wells, 17 Ill., 88. See Scott v. Thomas, 1 Scam., 59.\nA promise made by A. to B. to pay a debt which B. owes to C. is not within the statute of frauds. Prather v. Vineyard, 4 Gilm., 40. Eddy v. Roberts, 17 Ill., 505. Brown v. Strait et al., 19 Ill., 88. Bristow et al v. Lane et al., 21 Ill., 194.\nA verbal contract, not to be performed within a year, will not sustain an action. Comstock v. Ward, 22 Ill., 248.\nThe statute of frauds is presumed to have been pleaded in an action before a justice of the peace. Id.\nThe statute of frauds in reference to parol contracts for the sale of lands, if relied on as a defense, must be pleaded, otherwise it will be held to be waived. Lear v. Choteau et al., 23 Ill., 39."
                        }
                    ],
                    "head_matter": "David Everett, Appellant, v. William Morrison, Appellee.\nBlackwell, for appellant.\nKane, for appellee.\nThis case came into the circuit court of St. Clair county by appeal from the judgment of a justice of the peace in favor of Everett against Morrison. The circuit court reversed the judgment of the justice and gave judgment in favor of Morrison, and from which Everett appealed to this court. The bill of exceptions taken on the trial in the circuit court, presents the following state of facts: William Padfield, a witness sworn on the part of Morrison, stated that in August, 1817, he was selling goods as agent for Morrison, at witness’ house in St. Clair county—that Bailey applied to witness to purchase goods on credit, which was refused. Bailey then produced Everett, who agreed to go Bailey’s security for the amount of goods Bailey wanted, with which agreement witness was satisfied, and sold to Bailey goods out of the store to the amount of the account sued on, to wit:\n“August 9, 1817.\nIsaac J. Bailey, Dr.\nTo William Morrison,\nEor goods delivered by William Padfield—David\nEverett, security. .... $46.50\nWilliam Padfield, sen’r.\nWitness told Everett that he would charge the goods to \"Bailey, and set him, Everett, down as security, which he accordingly did by charging the goods to Bailey in a book, and placing the name of “ David Everett, security,” at the top of the account. Witness stated that he would not have given credit to Bailey for the goods, but sold them on the credit of Everett. The goods were sold on a credit of four or six months. Bailey remained in the county about eighteen months after the sale, but no attempt was made by Morrison to coerce payment from him. On the part of the defendant it was proved that sometime in the summer of 1819, at the house of Padfield, Everett told Padfield that Bailey was then in St. Clair county, and had property enough to pay the debt, and desired Padfield to coerce payment; and Robert Thomas proved that early in that summer he was at Padfield’s and saw Bailey there with a valuable horse, which witness knew to be'the property of Bailey, and that Bailey also had a wagon load of flour, &c. Everett also offered in evidence this receipt: '\n“August 28, 1819.\nReceived of David Everett, $16.25, the amount of his account in the store at my house.\nWilliam Padfield,\nfor William Morrison.”\nThe witness, Padfield, testified that that receipt embraced only Everett’s private account. This was all the evidence in the cause ; upon which Everett insisted that his undertaking being by parol, was within the statute of frauds and perjuries, and not binding. The court, however, gave judgment for Morrison, to reverse which Everett appealed, and assigned for error the misdirection of the court in deciding that he was liable on the undertaking as above set forth.\nAPPEAL FROM ST. CLAIR,\nAn undertaking by parol by which a third person obtains credit, is collateral, within the statute of frauds and perjuries, and not binding.",
                    "parties": [
                        "David Everett, Appellant, v. William Morrison, Appellee."
                    ]
                }
            }
        },
        {
            "id": 435550,
            "url": "https://api.case.law/v1/cases/435550/",
            "name": "The President and Directors of the State Bank, Plaintiffs in Error, v. John Kain, Defendant in Error",
            "name_abbreviation": "President of the State Bank v. Kain",
            "decision_date": "1823-11",
            "docket_number": "",
            "first_page": "75",
            "last_page": "76",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 75"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Blackwell, for plaintiffs.",
                        "Kane and McRoberts, for defendant."
                    ],
                    "opinions": [
                        {
                            "author": "Justice Wilson.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice Wilson.\nThe only question presented in this case for the opinion of the court is— whether the receipt of Kelly, the cashier of the Bank, is evidence of a deposit in the Bank. It is said that it is not, because lie was not authorized by the letter of the law, nor by any order of the Board of Directors of the Bank, to receive money on deposit. It is conceded that he might receive state paper on deposit, but not gold or silver, because the language of the law is, that “the Bank shall at all times receive money on deposit,” &c. The word Bank is not made use of here to designate the house, the cashier, or the directors, but the institution generally; and the cashier is the officer or agent of the institution, with authority derived from the law, and the nature of this, as well as of every other Bank is, to receive money on deposit, receipt for the same, enter it upon the books of the Bank, and pay it out again when called for, without compensation. Tho question whether the directors can control the cashier is not involved in this case. From this view of the case, the court is of opinion that the judgment below ought to be affirmed,\n(a)\nJudgment affirmed,.\n(a) The acts of a cashier of a Bank, done in the ordinary course of the business actually confided to such an officer, are prima facia evidence that they were within the scope of his duty. Fleckner v. Bank of United States, 3 Wheat., 338."
                        }
                    ],
                    "head_matter": "The President and Directors of the State Bank, Plaintiffs in Error, v. John Kain, Defendant in Error.\nBlackwell, for plaintiffs.\nKane and McRoberts, for defendant.\nERROR TO FAYETTE.\nTho receipt of the cashier of the State Bank, for money received of an-individual, is evidence of a deposit by that individual, and the cashier had a right to receive such deposits.",
                    "parties": [
                        "The President and Directors of the State Bank, Plaintiffs in Error, v. John Kain, Defendant in Error."
                    ]
                }
            }
        },
        {
            "id": 435553,
            "url": "https://api.case.law/v1/cases/435553/",
            "name": "William B. Whiteside, Plantiff in Error, v. John Bartleson, Defendant in Error",
            "name_abbreviation": "Whiteside v. Bartleson",
            "decision_date": "1823-11",
            "docket_number": "",
            "first_page": "71",
            "last_page": "72",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 71"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Starr, for plaintiff.",
                        "Smith, for defendant."
                    ],
                    "opinions": [
                        {
                            "author": "Chief Justice Reynolds, and Associate Justice John Reynolds.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nChief Justice Reynolds, and Associate Justice John Reynolds.\nThis was an action of assumpsit, containing only a common count for money had and received. The court below rendered judgment against White-side, in favor of Bartleson, and assessed the damages without the intervention of a jury, and it is to reverse this judgment that this writ of error is prosecuted. The liability of White-side arose upon his return of an execution as sheriff of Madison county, and this return being reduced to writing, and remaining upon file in the clerk’s office of said county: It was therefore contended that this makes his liability certain, and authorizes the court to assess the damages. If this argument be yielded, it would follow, that in every case where a fact could be made certain, the court, and not a jury, should try the cause. The consequences which would flow from such a proposition would be too absurd to admit the principle. The right of trial by jury would be thereby destroyed, and the interference of the court regulated, not by the certainty of the matter contained in the declaration, but by matter dehors.\nThe execution, with the return of the sheriff, when that return shall be proved, would certainly be evidence—but evidence for a jury and not for the court.\nA jury should have been impanneled to assess the damages—this not having been done, it is error, for which the judgment ought to be reversed. Let the judgment be reversed, and the cause remanded for new proceedings not inconsistent with this opinion,\n(a)\nJudgment reversed.\n(a) Post Rust v. Frothingham & Fort. As to writs of inquiry, see Tidd’s practice, 513. 4 T. R., 275. 2 Bos. & Pull., 55. Bell and Bell v. Aydelotte, ante, page 45."
                        }
                    ],
                    "head_matter": "William B. Whiteside, Plantiff in Error, v. John Bartleson, Defendant in Error.\nStarr, for plaintiff.\nSmith, for defendant.\nERROR TO MADISON.\nA sheriff was sued for money had and received, and the court assessed the damages without the intervention of a jury. This is error.",
                    "parties": [
                        "William B. Whiteside, Plantiff in Error, v. John Bartleson, Defendant in Error."
                    ]
                }
            }
        },
        {
            "id": 435567,
            "url": "https://api.case.law/v1/cases/435567/",
            "name": "Richard Ackless, Appellant, v. Timothy Seekright, ex dem. of the heirs of George Lunceford, deceased, Appellee",
            "name_abbreviation": "Ackless v. Seekright",
            "decision_date": "1823-11",
            "docket_number": "",
            "first_page": "76",
            "last_page": "79",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 76"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Kane, for plaintiff.",
                        "Starr and Baker, for defendant."
                    ],
                    "opinions": [
                        {
                            "author": "Chief Justice Reynolds.",
                            "type": "majority",
                            "text": "Opinion of the Gowrt by\nChief Justice Reynolds.\nThis was an action of ejectment, commenced by the defendant here in the court below, to recover the possession of certain lands lying in the county of Monroe. The ability with which this case was argued, and the magnitude of the claim, has induced this court to bestow more time on its investigation than in any ordinary case. Four errors have been assigned as causes for reversing this judgment, and if either of them is well taken, the plaintiff in error must prevail.\n1. The will set out in the record was not legally attested by three witnesses, one of the witnesses being a devisee.\n2. The will was not proved according to law.\n3. By the will, George Lunceford took nothing.\n4. The contingency upon which the devise was to take effect did not happen.\nWe will consider these questions in the order in which they are presented: and 1. The will was not legally attested by three witnesses, one of the witnesses being a devisee. Without deciding how far this would affect the validity of a will where it was required that three “ subscribing”, witnesses should prove it, it is a sufficient answer, that by the law which governs in this case, but two of the subscribing witnesses are required to establish the execution of a will, and when thus proven, is good to all intents and purposes: 2.\nThe will was not proved according to law. In answer to this objection, the court need only add, that the will was proven by two competent witnesses, (the said devisee not being one of them) before the proper officer, and in such manner as comported with the statute. Having disposed of the two first errors assigned, the court will consider the two last together. Daniel McCann, by his last will and testament, dated the 27th day of January, 1806, after ordering his legal debts to be paid, devised his estate as follows:.\n“I give and bequeath all my residue and remainder of my personal and real estate, goods, chattels and credits, and lands, and tenements, and hereditaments of what kind and nature soever, to my beloved daughter, Rebecca, and it is my further will and desire, that should the Almighty take away my said beloved daughter, Rebecca, before she comes of age to receive the said legacy, then and in that case the same personal and real estate to return to my beloved friend George Lunceford, to whom I bequeath the same on the proviso above mentioned.”\nGeorge Lunceford, the executory devisee, was by said will appointed one of the executors, and died in the year 1808. The testator died in possession of the premises in the year 1806. Rebecca McCann, the devisee, died in the year 1815 or 1816, and under the age of twenty-one years. It was contended for by the counsel for the plaintiff in error, that by the devise to Rebecca McCann, she took an estate in fee simple, \"and that therefore the limitation over to George Lunceford was void, being repugnant to the previous estate granted, and in support of this position the case of Jackson v. Robbins, 16 Johns. Rep., p. 537, was cited and relied upon. We have examined this case minutely, but can not say it will warrant this conclusion. One of the principles there decided, grew out of the effect to be given to lord Sterling’s will. He devised his estate to his wife, and then said, “in case of the death of my wife without giving, devising, and bequeathing by will or otherwise, selling or assigning the estate or any part thereof, he doth give and devise all such estate as should so remain unsold, undevised, or unbequeathed, to his daughter, lady Catharine Duer.” This limitation over was there adjudged (whether considered as a remainder or as an executory devise) bad. That case differs materially from the one before the court. In the first, an express power was given to lady Sterling to dispose of the estate in such manner as she should think proper. In the lattes no such power is given to the first taker, but the interest of the executory devisee is made to depend entirely upon the contingency of the first taker dying before she “ becomes ” of age to receive the legacy. This power of disposing of the estate given to the first taker, has been considered even from the time of lord Coke, as carrying the absolute fee, except when coupled with a life estate; then it is said, that a power to sell creates no greater interest. If the power of absolute disposal had been given to Rebecca McCann, we might well question the validity of the limitation over, for the very essence of an executory devise, consists in the inability of the first taker to destroy it by disposing of the estate devised. In the emphatic language of the books, it can not be created, and it can not live under such a power in the first taker.\nHence, and hence only, do we account for the decision in the case referred to in 16 Johns. Rebecca McCann surely took a fee, but a fee conditional, subject to be defeated upon her dying before she arrived at full age, and not as was supposed by the counsel, a fee absolute.\nThere is no doctrine better settled than that a fee may be limited after a fee, and this happens, says justice Blackstone in his second Vol. Com., p. 172, “ when a devisor devises his whole estate, in fee, but limits a remainder thereon to commence on a future contingency, as if a man devises land to A. and his heirs ; but if he dies before the age of twenty-one, then to B. and his heirs, this remainder, though void in a deed, is good by way of executory devise.” See 12 Mod., 287. 1 Vern., p. 164.\nAnother very strong case is reported in second Wilson, p. 29, Goodright, ex. dem, &c., v. Searle and wife. The devise was to P., his heirs and assigns forever, but if he should die before he should attain the age of twenty-one years, leaving no issue at the time of his death, then the same was devised to C., her heirs and assigns forever. This the court held to be a good executory devise, and surely the words of inheritance are equally as strong as in the case before the court. Having disposed of this branch of the subject, we will next inquire whether the circumstance of George Lunceford dying before the contingency happened upon which he was to take, destroyed his interest, and if not, whether he had such an interest as would descend to his heirs at law. As evidence that at common law, contingent remainders and executory devises are transmissible and will descend to the heirs of the person to whom they are limited, although he chance to die before the contingency happens, (without further reasoning) the court refer to Pollexfen, 54; 1 Rep., 99; Cas. Temp. Talbot, 117; 7 Cranch, 469; P. Williams, 564; 2 Munford, 479. Let the judgment below.be affirmed and the defendant recover his costs,\n(a)\nJudgment affirmed.\n(a) 4 Kent’s Comm., 257 to 275, as to the history, variety, qualities, &c. of executory devises."
                        }
                    ],
                    "head_matter": "Richard Ackless, Appellant, v. Timothy Seekright, ex dem. of the heirs of George Lunceford, deceased, Appellee.\nKane, for plaintiff.\nStarr and Baker, for defendant.\nAPPEAL FROM MONROE.,\nBy the ordinance of 1787, but two of the subscribing witnesses to a will are required to prove it, and a will attested by three, one of whom is a devisee in the will, is valid.\nM. devised and bequeathed by will, all his estate to his daughter, R., but if she died before she became of age, then to his friend G-. S. R. died before she came of age, and Gr. S. died before R. It was held that the devise to Gr. S. was a good executory devise, and that the estate passed to his heirs.",
                    "parties": [
                        "Richard Ackless, Appellant, v. Timothy Seekright, ex dem. of the heirs of George Lunceford, deceased, Appellee."
                    ]
                }
            }
        },
        {
            "id": 435569,
            "url": "https://api.case.law/v1/cases/435569/",
            "name": "Samuel L. White, Plaintiff in Error, v. Thomas Thompson, Defendant in Error",
            "name_abbreviation": "White v. Thompson",
            "decision_date": "1823-11",
            "docket_number": "",
            "first_page": "72",
            "last_page": "73",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 72"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Lockwood and Blackwell, for plaintiff.",
                        "Starr, for defendant."
                    ],
                    "opinions": [
                        {
                            "author": "Chief Justice Thomas Reynolds, and Associate Justice John Reynolds.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nChief Justice Thomas Reynolds, and Associate Justice John Reynolds.\nThis was an action of trespass commenced by the defendant here in the court below. To which action White pleaded the pendency of a former suit for the same cause of action, in abatement. Notwithstanding which plea, and without replying thereto, the plaintiff proceeded to take judgment by default, and a jury were impanneled who assessed the damages.\nThe error assigned, and the one relied upon, questions the legality of these proceedings.\nThe court certainly erred in rendering judgment by default after the plea was filed, and while the same remained upon record unanswered. For this error the judgment must be reversed, and the cause remanded for new proceedings to be had not inconsistent with this opinion.\n(1)\nJudgment reversed.\n(1) Affirmed in Semple v. Locke, post. Lyon v. Barney, 1 Scam., 387. Manlove v. Bruner, id., 390. Covell et al. v. Marks, id., 391. McKinney v. May, id., 534. Chapman v. Wright, 20 Ill., 120. Moore v. Little, 11 Ill., 549.\nWhen the record shows that a plea was filed and a judgment by default rendered on the same day, the judgment will he reversed. The court will not presume that the plea was filed after the judgment was entered. Lyon v. Barney, supra."
                        }
                    ],
                    "head_matter": "Samuel L. White, Plaintiff in Error, v. Thomas Thompson, Defendant in Error.\nLockwood and Blackwell, for plaintiff.\nStarr, for defendant.\nERROR TO GALLATIN.\nIt is error in the court to render a judgment by default when a plea is filed and unanswered.",
                    "parties": [
                        "Samuel L. White, Plaintiff in Error, v. Thomas Thompson, Defendant in Error."
                    ]
                }
            }
        },
        {
            "id": 435576,
            "url": "https://api.case.law/v1/cases/435576/",
            "name": "Baynard White, Appellant, v. James Stafford, Appellee",
            "name_abbreviation": "White v. Stafford",
            "decision_date": "1823-11",
            "docket_number": "",
            "first_page": "67",
            "last_page": "68",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 67"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [],
                    "opinions": [
                        {
                            "author": "Justice John Reynolds.",
                            "type": "majority",
                            "text": "Opinion' of the Court by\nJustice John Reynolds.\nThe question presented by the pleadings in this case is, was the security given by the plaintiff, a sufficient compliance with the statute requiring a bond to be filed by a non-resident, for the costs, before the commencement of the suit ? The filing of this bond, can not be said to be a literal compliance with the statute, but surely it answers the object which was intended by it—the ends of justice are answered. The defendant can not complain. In some cases, neither the clerk or attorney may know the plaintiff to be a non-resident when the suit is commenced ; in such cases, it would be hard to turn the plaintiff out of court, to answer no good purpose. In construing statutes, the intention of the legislature must be gone into. 6 Bacon, 884. The object of the legislature was to secure all parties in their costs, when a non-resident commenced a suit; this is answered in the present casé, and the judgment must therefore be affirmed.\n(a)\n,\n(1)\n.\nJudgment affirmed.\n(a) Vide Rev. Laws of 1827, title, “ Costs.”\n(1) The statute in force when this decision was made was as follows : “No suit shall hereafter be commenced in any court within this state, by any person who is non-resident, or who is not a freeholder in this state, or householder, until he shall file in the clerk’s office, a bond with security, who shall be a householder and resident in the state, conditioned for the payment of all costs that may accrue in consequence thereof, either to the opposite party, or to any of the officers of such courts, which shall be in the form, or to the purport following,” &c. Laws of 1819, p. 150. The present statute, after providing substantially as above so far as relates to non-residents, adds : “ If any such action shall be commenced without filing such instrument of writing, the court, on motion, shall dismiss the same, and the attorney of the plaintiff shall pay all costs accruing thereon. Purple’s Statutes, p. 275, sec. 2. Scate’s Comp., p. 244. Under this statute it has been held in the following cases, that where an action was commenced by a non-resident without giving security for costs, the suit must be dismissed. Hickman v. Haines, 5 Gilm., 20. Ripley v. Morris, 2 Gilm., 381. In the last case a cross-motion was made for leave to file a cost bond at the^time of entering the motion to dismiss, which was refused.\nA motion to dismiss for want of security for costs, is a dilatory motion, and must be made at the earliest opportunity. Edwards et al. v. Helm, 4 Scam., 142. Robertson et al. v. County Com’rs., 5 Gilm., 559. Adams v. Miller, 12 Ill., 27. Id. 14 Ill., 71.\nIf a bond for costs is objected to as insufficient, it is incumbent on the party-presenting it to satisfy the court by competent proof that it is sufficient. Buckmaster v. Beamer et al., 3 Gilm., 97.\nOn an application for security for costs, the affidavits of the respective parties may have equal weight. Hamilton v. Dunn, 22 Ill., 259.\nThe pendency of a motion for security for costs in a suit pending on mechanic’s lien,-will not necessarily excuse a party for not filing an answer; nor will such motion prevent the rendition of a decree pro confesso. Id."
                        }
                    ],
                    "head_matter": "Baynard White, Appellant, v. James Stafford, Appellee.\nStafford, who it appears was a non-resident, brought a suit in the circuit court of Greene, against White, to which White pleaded in abatement, that the plaintiff was a non-resident, and that he had not given a bond for the costs, as the law required. The plaintiff replied to this plea, that although he had not executed a bond at the time of the commencement of the suit, yet at a certain day afterward, and before the trial, he gave bond with security, which the clerk approved. To this replication the defendant demurred, which the court overruled—from which decision the defendant appealed.\nAPPEAL FROM GREENE.\nIf a non-resident gives a bond for costs, after the commencement of the suit but before the trial, it is sufficient.",
                    "parties": [
                        "Baynard White, Appellant, v. James Stafford, Appellee."
                    ]
                }
            }
        },
        {
            "id": 435612,
            "url": "https://api.case.law/v1/cases/435612/",
            "name": "Smith Crane, Appellant, v. William Graves, Appellee",
            "name_abbreviation": "Crane v. Graves",
            "decision_date": "1823-11",
            "docket_number": "",
            "first_page": "66",
            "last_page": "67",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 66"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [],
                    "opinions": [
                        {
                            "author": "Justice John Reynolds.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice John Reynolds.\nAlthough the amendment allowed may be one of substance, nevertheless, as a true copy of the note was set out in the declaration, it is considered that the defendant had sufficient notice of the cause of action, so that he could not be surprised in his defense. This being the case, there was no reason to grant a continuance. The judgment must be affirmed.\n(1)\nJudgment affirmed,\n(1) Upon principles universally sanctioned by our courts, we think this decision can not be sustained. The doctrine in every case where the question has arisen is, that if the amendment is a mere formal one, it 'does not entitle the opposite party to a continuance; but if it is of substance it works a continuance when applied for, without any other cause being shown. See note to Scott v. Cromwell, ante, p. 25. Questions frequently arise as to whether an amendment is one of form or substance; but here it is admitted by the court that this is a substantial amendment. The fact that a copy of the note sued on was filed with the declaration can not affect the question ; for it has been repeatedly decided that the copy of the instrument sued on, filed with the declaration, is no part of the declaration. Sims v. Higby, post. Bogardus v. Trial, 1 Scam., 63. Harlow v. Boswell, 15 Ill, 56. The copy of the note not being a part of the declaration, and without it the declaration being admitted substantially defective, the case ought to have been continued. Brown v. Smith, 24 Ill., 196,"
                        }
                    ],
                    "head_matter": "Smith Crane, Appellant, v. William Graves, Appellee.\nThis was an action brought by Graves in the St. Clair circuit court, on a note executed by Crane to him. The defendant demurred to the declaration, which the court sustained, and thereupon the plaintiff asked and obtained leave to amend, which he did instanter, by changing the words “ twenty” to “ twenty-five,” and adding the words “ promise to pay.” The defendant contended, that the amendment was a substantial one, and entitled him to a continuance, and accordingly moved for a continuance, which the court overruled, and rendered judgment for the plaintiff. According to the requisitions of the statute, a true copy of the note was filed with the declaration. The defendant appealed, and assigned for error here, the refusal of the court to grant the continuance.\nAPPEAL FROM ST. CLAIR.\nWhere a copy of a note on which suit is brought is filed with the declaration, and an amendment of the near, allowed, by changing the word “ 20\" to “ 25\" and adding the words “ promise to pay,” the defendant is not entitled to a continuance.",
                    "parties": [
                        "Smith Crane, Appellant, v. William Graves, Appellee."
                    ]
                }
            }
        },
        {
            "id": 435619,
            "url": "https://api.case.law/v1/cases/435619/",
            "name": "Forester and Funkhouser, Appellants, v. Guard, Siddell & Co., Appellees",
            "name_abbreviation": "Forester & Funkhouser v. Guard, Siddell & Co.",
            "decision_date": "1823-11",
            "docket_number": "",
            "first_page": "74",
            "last_page": "75",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 74"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [],
                    "opinions": [
                        {
                            "author": "Chief Justice Reynolds.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nChief Justice Reynolds.\nIn this case the only error relied upon is, that the court below erred in granting a new trial. There were four reasons assigned for a new trial: 1. The verdict was against law and evidence: 2. The discovery of new testimony: 3. The verdict of the jury was predicated upon the statements of the jurors in relation to the controversy while in the jury room: 4. One of the jurors separated from the jury while deliberating.\nThe fact that the verdict was predicated upon the statements of the jurors after they withdrew, is disclosed by the affidavit of one of the plaintiffs below, founded upon the confessions of one of the jurors. This the court think improper. The statements of jurors ought not to be received to impeach their verdicts,\n(a)\n(1)\nThe affidavit, disclosing the discovery of material testimony, does not state the name of the witness, nor the facts he could prove. • It is therefore insufficient. An affidavit should state the facts, that the court may judge of their materiality. If tho new trial had been granted upon the affidavit alone, the court would say it was improperly granted, but as there were other grounds, to wit, that the verdict was against evidence, the court can not say there was error— on the contrary, the facts in the case seem to have warranted the interposition of the court. The judgment is therefore affirmed.\nJudgment affirmed.\n(a) Contra, Sawyer v. Stevenson, ante, page 24.\n(1) See note 2, to the case of Sawyer v. Stevenson, ante, page 24,"
                        }
                    ],
                    "head_matter": "Forester and Funkhouser, Appellants, v. Guard, Siddell & Co., Appellees.\nAPPEAL FROM GALLATIN.\nThe statements of jurors ought not to be received to impeach their verdict.\nAn affidavit, setting forth the discovery of new testimony, should state the name of the witness, and also the facts he can prove.",
                    "parties": [
                        "Forester and Funkhouser, Appellants, v. Guard, Siddell & Co., Appellees."
                    ]
                }
            }
        },
        {
            "id": 435684,
            "url": "https://api.case.law/v1/cases/435684/",
            "name": "Robert M. Tarlton, Appellant, v. George Miller, Appellee",
            "name_abbreviation": "Tarlton v. Miller",
            "decision_date": "1823-11",
            "docket_number": "",
            "first_page": "68",
            "last_page": "70",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 68"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Starr, for appellant.",
                        "Lockwood, for appellee."
                    ],
                    "opinions": [
                        {
                            "author": "Chief Justice Reynolds.\n*",
                            "type": "majority",
                            "text": "Opinion of the Court by\nChief Justice Reynolds.\n*\nThe question to be decided in this case is, is the first count sufficient ? I suppose the counsel who drafted the ^declaration intended to present a case which would excuse the use of due diligence ; but surely, it can not be seriously contended, that because the maker of a note does not reside, or can not be found in the county in which the note was made, that therefore the assignor becomes liable. It may be, that he may reside in the next adjoining county, or some other part of the state; if so, I conceive it to be the duty of the assignor to seek him. The question of due diligence having been settled by this court to be by suit, that course can not be dispensed with, where the process of the law can reach the maker, and prove availing.\nIt has been contended by some, that where the maker has absconded or left the state, the assignor is not liable until suit by attachment is prosecuted. This question is not now necessary to be settled, as the declaration contains no averment of the absence of the maker from the state. But it is said that the facts disclosed on the trial show such absence. My answer is, that this is showing facts not averred in the declaration, and can not be regarded upon a motion to instruct the jury to disregard a faulty count—such motion standing upon the same gromids as a general demurrer. We are therefore of opinion, that the judgment of the court below be reversed, and the cause remanded for new proceedings to be had, not inconsistent with this opinion.\nSeparate opinion of Justice J. Reynolds. The record shows this case. That one Squire Brown made his obligation to Tarlton for a sum of money. Tarlton assigned the same to George Miller, the plaintiff below, for value received. That Brown left the county before the bond became due, so that no diligence by suit could be used at the time the bond became due, to get the money of Brown. The declaration states, that the bond was made and assigned in the county of Gallatin. The question is, was Brown’s absence equivalent to due diligence by suit, in order to obtain the money 1 I think it was. Diligence is now explained by the court to mean a suit at law, yet when the person against whom the suit is to be brought is not in the county, it would be useless to commence it. This allegation is contained in the declaration, and it is the same as if a suit was prosecuted without getting the money. There can be no necessity for stating the place of residence of the maker of the note, as was contended by plaintiff in error, to show that he had left it—stating the place where the bond was made is sufficient. A person having no permanent residence at any particular place, may make a note, and it would therefore be impossible to show his residence. A transient person may make a note, and leave the place where it was made immediately ; it would then be unreasonable that the assignee should lose his action against the assignor, because the maker had no residence at the place where the note was made.\nThere are other errors assigned, but I deem them not of such importance to justify a reversal of the judgment. The matter mostly contained in the bill of exceptions was proper for the jury to pass upon. I am therefore of the opinion that the judgment of the circuit court ought to be affirmed,\n(a)\n(1)\nJudgment reversed.\n* Justice Browne having decided this cause in the court below, gave no opinion.\n(a) Vide Mason v. Wash, p. 39; Thompson v. Armstrong, p. 48; Lusk v. Cook.\n(1) See note 2 to the case of Mason v. Wash, ante, page 39."
                        }
                    ],
                    "head_matter": "Robert M. Tarlton, Appellant, v. George Miller, Appellee.\nStarr, for appellant.\nLockwood, for appellee.\nThis was an action commenced in the Gallatin circuit court, by Miller against Tarlton, upon his liability as assignor of a promissory note, executed at the county of Gallatin by one Squire Brown, to Tarlton, and by him assigned to Miller. The first count of the declaration averred that, “ at the time the note became due, diligent search was made at the said county, for the said Brown, for the purpose of demanding payment of the said note, but that said Brown could not on such search be found—that the said note remains unpaid, of which the said Tarlton had notice, whereby an action has accrued,” &c. There was also a count for money had and received. On the trial, the defendant moved the court, in conformity with a statute of this state, to instruct the jury to disregard the first count, on the ground of its being defective, which motion the court overruled, and gave judgment for the plaintiff, from which judgment the defendant appealed.\nAPPEAL FROM GALLATIN.\nTo excuse due diligence, an averment in the declaration that “ at the time the note became due and payable, diligent search was made at the said county for the maker, for the purpose of demanding payment thereof, but that he could not be found,” is insufficient.",
                    "parties": [
                        "Robert M. Tarlton, Appellant, v. George Miller, Appellee."
                    ]
                }
            }
        },
        {
            "id": 435756,
            "url": "https://api.case.law/v1/cases/435756/",
            "name": "Jesse Rountree, Plaintiff in Error, v. William Stuart, Defendant in Error",
            "name_abbreviation": "Rountree v. Stuart",
            "decision_date": "1823-11",
            "docket_number": "",
            "first_page": "73",
            "last_page": "74",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 73"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [],
                    "opinions": [
                        {
                            "author": "Justice Reynolds.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice Reynolds.\nRountree filed a demurrer to the declaration of Stuart in the court below— the demurrer was sustained. The plaintiff amended his declaration by setting out the original bond. The question then presents itself—ought the cause to have been continued under the third section of the “ act regulating the practice at law and in chancery ? ”\nIn this case it is not necessary to decide the question, if the continuance or non-continuance of a cause be such a judgment upon which a writ of error will lie, as the statute in this case is peremptory. It requires the declaration and writing on which the action is founded to be filed ten days before the return of the writ, or if not the case shall be continued.\nThis is positive. There is some reason in this. The party has not then ten days before the court to prepare for his defense. The plaintiff erred in taking judgment at the same term at which he got leave to amend his declaration. Therefore the judgment ought to be reversed, but as the court is divided in opinion, it is therefore affirmed.\n(1)\nJudges Browne and Wilson, not hearing the argument, gave no opinion.\n(1) This decision has frequently been humorously criticised on account of the last expression in the opinion : “ Therefore the judgment ought to be reversed; but as the court is divided in opinion, it is therefore affirmed.” This, perhaps, is not the most classical expression that might have been used, but it amounts to simply this—that in the opinion of Justice Reynolds the decision of the court below ought to be reversed; but as the members of the court who were present were equally divided, it follows that it must be affirmed. It is not a decision of the court; and possibly ought not to have been reported by Judge Breese. Four-judges at that time composed the court, only two of whom were present, and they differed in opinion; but still there can be very little doubt that the views of the judge, whose opinion it was, were in substance correct. The case certainly ought to have been continued. See note to Crane v. Graves, ante, p. 66. Scott v. Cromwell, ante, p. 25."
                        }
                    ],
                    "head_matter": "Jesse Rountree, Plaintiff in Error, v. William Stuart, Defendant in Error.\nERROR TO MADISON.\nWhere a party amends his narr. hy setting out the bond on which suit is brought as the statute requires, it is error in the plaintiff to take judgment at the same term if a continuance is prayed for by defendant.\nWhere a statute declares that in a certain case a continuance shall be granted, it is error in the court to refuse it.",
                    "parties": [
                        "Jesse Rountree, Plaintiff in Error, v. William Stuart, Defendant in Error."
                    ]
                }
            }
        },
        {
            "id": 435535,
            "url": "https://api.case.law/v1/cases/435535/",
            "name": "Charles W. Hunter, Plaintiff in Error, v. Samuel Gilham, Defendant in Error",
            "name_abbreviation": "Hunter v. Gilham",
            "decision_date": "1824-11",
            "docket_number": "",
            "first_page": "82",
            "last_page": "83",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 82"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Starr, for plaintiff.",
                        "Smith, for defendant."
                    ],
                    "opinions": [
                        {
                            "author": "Chief Justice Reynolds.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nChief Justice Reynolds.\nThe thirty-fourth section of the act entitled “An act regulating the practice in the supreme and circuit courts of this state, and for other purposes,” approved March 22d, 1819,\n*\nauthorizes the sheriff to take bail bonds to “ himself.” Such was the fact in this case. The bail bonds were taken in the name of the sheriff. The sheriff and the defendant were the legal parties to the bonds, and there being no law of this state authorizing the sheriff to assign such bonds to the plaintiff in the judgment, the action should have been commenced in the name of the sheriff, and not in the name of Hunter, who was no legal party to the bonds. The judgment below must be affirmed, and the defendant recover his costs.\n(1)\nJudgment affirmed.\n* Laws of 1819, p. 148, sec. 34.\n(1) The statute now provides that when a bond is taken to the sheriff as in this case, the bail “ may be proceeded against by an action of debt, in the name of the plaintiff in the original action, as in the case of a recognizance of bail.” Purple’s Statutes, p. 124, sec. 4. Scates’ Comp., 237."
                        }
                    ],
                    "head_matter": "Charles W. Hunter, Plaintiff in Error, v. Samuel Gilham, Defendant in Error.\nStarr, for plaintiff.\nSmith, for defendant.\nHunter brought an action of debt in the Madison circuit court, against Gilham, on two bail bonds executed by Gilham to the sheriff of Madison county, in cases in which Hunter was plaintiff. The defendant demurred generally to the declaration, which the court sustained, and Hunter brought his writ of error to reverse that judgment, assigning for error, the sustaining the demurrer.\nERROR TO MADISON.\nUnder the practice act of 1819, bail bonds should be taken to the sheriff and suits on them should be brought in his name. The act gives him no power to assign them to the plaintiff in the action.",
                    "parties": [
                        "Charles W. Hunter, Plaintiff in Error, v. Samuel Gilham, Defendant in Error."
                    ]
                }
            }
        },
        {
            "id": 435555,
            "url": "https://api.case.law/v1/cases/435555/",
            "name": "The Administrators, Widow, and heirs of T. Ernst, deceased, Plaintiffs in Error, v. The President and Directors of the State Bank of Illinois, Defendants in Error",
            "name_abbreviation": "Administrators of Ernst v. President of the State Bank",
            "decision_date": "1824-11",
            "docket_number": "",
            "first_page": "86",
            "last_page": "87",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 86"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Starr, for the plaintiff in error",
                        "Blackwell, contra."
                    ],
                    "opinions": [
                        {
                            "author": "Justice John Reynolds.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice John Reynolds.\nThis was a scire facias upon, a mortgage. Ernst, in his lifetime, loaned from' the state bank of Illinois, eight hundred, dollars, and to secure the payment of that sum, executed the mortgage deed, as alleged in the scire facias. The bank obtained judgment in the circuit court of Fayette county against the plaintiffs in error, to have the mortgaged premises sold, and to reverse that judgment this writ of error is prosecuted.\nIn the court below the plaintiffs in error pleaded a statute passed Feb. 18, 1823,\n*\nby the general assembly of this state, in bar of this demand. To this plea there was a demurrer, which presents to the court the statute above referred to.\nOn a full and correct examination of the above recited act, it appears to the court to embrace this case. It was the intention of the legislature to release the estate of Ernst, from all debts due the state. The above debt is due the state. The judgment of the court below must be reversed at the costs of the defendants in error,\n(a)\nJudgment reversed.\n* Laws of 1823, page 177.\n(a) The part of the act of 1823 referred to, is as follows: “And the estate of the said E. Ernst, deceased, is hereby released from the payment of any debt due by said estate to this state.” Laws of 1823, page 178.\nThe act establishing the state bank, at page 85, (laws of 1821) requires that the notes and mortgages shall be made “ payable to the president and directors ” of the bank, “ for the use of the state.”"
                        }
                    ],
                    "head_matter": "The Administrators, Widow, and heirs of T. Ernst, deceased, Plaintiffs in Error, v. The President and Directors of the State Bank of Illinois, Defendants in Error.\nStarr, for the plaintiff in error\nBlackwell, contra.\nFerdinand Ernst, in his lifetime, on the 31st day of August, 1821, and Mary Ann his wife, made their mortgage to the defendants, to secure the payment of eight hundred dollars, twelve months after the date, according to the tenor of a certain note made by Ernst on that day, for the use of the people of the state of Illinois. This mortgage not being satisfied, nor the money secured thereby paid, the defendants in error sued out of the circuit court of Fayette county, a writ of scire facias on the mortgage. At the return term of the scire facias, the plaintiffs in error appeared and pleaded a release of the mortgage debt, by an act of the general assembly of this state, entitled “ An act to authorize the administrators of F. Ernst to sell certain real estate.”\nTo this plea there was a demurrer and sustained, and judgment for the mortgage debt.\nERROR TO FAYETTE.\nA debt due the State Bank secured by mortgage, is a debt due the state, which the state can release.\ncontended, first, that it was competent to the legislature to release and discharge the mortgage debt; and second, the bank was nothing more than a trustee for the people, and the cestui que trust may release a debt due to the trustee.",
                    "parties": [
                        "The Administrators, Widow, and heirs of T. Ernst, deceased, Plaintiffs in Error, v. The President and Directors of the State Bank of Illinois, Defendants in Error."
                    ]
                }
            }
        },
        {
            "id": 435599,
            "url": "https://api.case.law/v1/cases/435599/",
            "name": "John T. Lusk, Appellant, v. Daniel P. Cook, Appellee",
            "name_abbreviation": "Lusk v. Cook",
            "decision_date": "1824-11",
            "docket_number": "",
            "first_page": "84",
            "last_page": "86",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 84"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Smith and Starr, for appellant.",
                        "Lockwood, for appellee."
                    ],
                    "opinions": [
                        {
                            "author": "Chief Justice Reynolds.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nChief Justice Reynolds.\nThe second averment in the declaration, is an attempt to show the use of due diligence by suits to enforce payment of the maker, and prosecuting him to insolvency. This averment can not be considered sufficient, for the reason that the plaintiff has not availed himself of the earliest means which the law afforded him, but suffered himself to sleep until one or two terms of the court had elapsed after the notes became due, before prosecuting his suits against the maker. The law is, that where the assignee seeks to recover of the assignor, on the ground that he has used due diligence to obtain the money of the maker, but has failed, he must show that he commenced his action against the maker, at the first term of the court, which happened after the note became due, provided there be proper time for the service and return of the writ.\n(1)\nAs to the first averment, the court has nothing further to say, than what was said in the ease of Thompson v. Armstrong, ante., page 48.\nThey have neither seen or heard any thing that has induced them to disturb that opinion. The two cases are entirely apposite. The first averment then, must be deemed to contain a good cause of action, and the demurrer being a general one, ought to have been overruled. There is no principle in pleading better settled than when a declaration contains several counts, one of which is good and the others bad, that a general demurrer to the whole declaration can not be sustained. So too, where a count contains two distinct averments, one of which gives a cause of action and the other does not, the bad averment must be regarded as immaterial, and does not vitiate the whole count or declaration, and a general demurrer thereto ought not to be sustained.\n(2)\nWe have shown that the second averment in the declaration does not constitute a sufficient ground of action, and therefore is not, according to the technical doctrine of the law, double. It must be esteemed as surplusage, and wholly immaterial, and the defendant below should have disregarded it and taken issue upon the first averment, which is the substantive cause of action, as determined in the case before cited,\n(a)\nthe rule being that utile per inutile non vitiatw. The judgment below must be reversed and the cause remanded, with liberty to the defendant to withdraw his demurrer and take issue upon the first averment in the declaration.\n(b)\nJudgment reversed.\n(1) See note to the case of Mason v. Wash, ante, p. 39.\n(2) Affirmed in Stacy v. Baker, 1 Scam., 421. Cowles v. Litchfield, 2 Scam., 356. Fitch v. Haight, 4 Scam., 52. Prather v. Vineyard, 4 Gilm., 40. Young v. Campbell et al., 5 Gilm., 82. Israel v. Reynolds, 11 Ill., 218. Governor of Illinois v. Ridgway, 12 Ill., 15. Stout v. Whitney, id. 231. Walter v. Stephenson, 14 Ill., 77. Anderson v. Richards, 22 Ill., 217. Tomlin v. T. and P. R. R. Co., 23 Ill., 429.\n(a) Where there is a demurrer to the whole declaration, but one count is good, the plaintiff must have judgment. Whitney v. Crosby, 3 Caine’s Rep., 89, id. 263.\n(b) Vide Thompson v. Armstrong, p. 48. Mason v. Wash, p. 39. Tarlton v. Miller, p. 68."
                        }
                    ],
                    "head_matter": "John T. Lusk, Appellant, v. Daniel P. Cook, Appellee.\nSmith and Starr, for appellant.\nLockwood, for appellee.\nThis was an action commenced by the appellant, the plaintiff below in the Madison circuit court, against Cook, upon his liability as assignor of two promissory notes. The declaration contained but one count, and avers, 1. That the maker of the note was, at the time it became due and payable, insolvent and unable to pay it, and so continued to the commencement of the suit: 2. A showing of due diligence by suits to enforce payment, and the prosecution of the maker to insolvency. There was a general demurrer to the declaration, which the court sustained, and gave judgment thereon for the defendant. The only error assigned is that which questions the.correctness of the judgment of the court below, sustaining a general demurrer to the declaration.\nAPPEAL FROM MADISON.\nIn a suit by the assignee, against the assignor, seeking to recover on the ground that he has used due diligence to recover of the maker, the rule is, that he must show that he brought his action against the maker, at the first term of the court after the note fell due.\nA general demurrer to a narr. containing several counts, some of which are bad, and one good, ought not to be sustained.\nSo too, when a count contains two distinct averments, one good and the other bad, the bad averment should be disregarded, as it does not vitiate the whole count—the rule is, “ utile, per inutile non vitiatur.”",
                    "parties": [
                        "John T. Lusk, Appellant, v. Daniel P. Cook, Appellee."
                    ]
                }
            }
        },
        {
            "id": 435726,
            "url": "https://api.case.law/v1/cases/435726/",
            "name": "James & Paris Mason, Plaintiffs in Error, v. Christian Eakle, Defendant in Error",
            "name_abbreviation": "Mason v. Eakle",
            "decision_date": "1824-11",
            "docket_number": "",
            "first_page": "83",
            "last_page": "84",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 83"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Starr, for plaintiff in error.",
                        "Smith, for defendant in error."
                    ],
                    "opinions": [
                        {
                            "author": "Chief Justice Reynolds.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nChief Justice Reynolds.\nThe only error assigned in this case is, that the court below erred in refusing to set aside an execution which had issued in favor of the defendant, against the plaintiffs. It was agreed upon the argument, that the note upon which judgment was rendered, stipulated for the payment of twenty per cent, interest.\nThe judgment was rendered for the amount of the principal, with the twenty per cent, interest to the time of the rendition of such judgment, but was silent as to any rate of interest thereafter to be recovered. The execution commanded the sheriff to make the amount of the judgment with twenty per cent, interest from the rendition of the judgment. The court are of the opinion that the court below erred in refusing to set aside the execution. The statute, it is true, makes legal any rate of interest for which the parties contract, but the statute also declares, that judgments shall bear but six per cent, interest. When a judgment is obtained upon a contract, that contract ceases to be, and is merged in the judgment, and the judgment is operated upon, and controlled, not by the contract, but by the statute.\nThe judgment must be reversed, the cause remanded with instructions to the court below to set aside the execution. The plaintiffs must recover their costs.\n(1)\nJudgment reversed.\n(1) Affirmed in Pearsons v. Hamilton, 1 Scam., 415."
                        }
                    ],
                    "head_matter": "James & Paris Mason, Plaintiffs in Error, v. Christian Eakle, Defendant in Error.\nStarr, for plaintiff in error.\nSmith, for defendant in error.\nERROR TO MADISON.\nA contract to pay a sum. of money with twenty per cent, interest, is merged in the judgment rendered upon such contract, and the judgment is then controlled by the statute and not by the contract.\nAn execution issued upon such judgment for “ twenty per cent, interest from its rendition,” will be quashed.",
                    "parties": [
                        "James & Paris Mason, Plaintiffs in Error, v. Christian Eakle, Defendant in Error."
                    ]
                }
            }
        },
        {
            "id": 435602,
            "url": "https://api.case.law/v1/cases/435602/",
            "name": "Jonathan Browder, Appellant, v. Jeremiah Johnson, Appellee",
            "name_abbreviation": "Browder v. Johnson",
            "decision_date": "1825-06",
            "docket_number": "",
            "first_page": "96",
            "last_page": "97",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 96"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Starr, for paintiff in error,",
                        "McRoberts, for defendant in error."
                    ],
                    "opinions": [
                        {
                            "author": "Justice Smith.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice Smith.\nThis was an action of covenant for rent, and a verdict was rendered against the appellant in the court below, who applied to the court for a new trial, on the grounds that the verdict was against law and evidence, that the damages were excessive, and that the jury acted under mistaken impressions as to the right of the parties. This application was refused. The.imperfect state of the pleadings and the record, render it extremely difficult to say what ought to be done in reviewing the cause. It seems, by looking into the pleas and replications, that a perfectly immaterial issue has been made between the parties, and is in some measure the cause of the novel manner in which the record recites the proceedings had in the cause. Whether the court ought to look into a question which would naturally present itself in this state of the pleadings when it is not assigned for error, and was not noticed in the argument, is a matter on which they will not now decide, nor what effect it might have had in determining this cause. The only question which the counsel on both sides have presented for the consideration of the court is, whether the court below acted correctly in refusing the application for a new trial. From the state of the record, as the evidence on the trial has not been embodied in a bill of exceptions, and the affidavit of one or more of the jurors could only have been regularly brought before this court by being also incorporated in the exception of the counsel to the decision of the coart in refusing a new trial; on that ground, the court can not perceive the most distant means of ascertaining whether the court could have erred, in its refusal to grant the new trial. It becomes therefore impossible, from the manner in which the question is presented, to inquire into the causes of error. It is true, the clerk has, without authority, and very irregularly, incorporated the affidavit in the record, but still the court ought not, and can not notice it, though if they were disposed to overlook the irregularity in the present case, they could not say that the court below ought to have received the affidavit of the jurors, to impeach or set aside their verdict.\n(a)\nThere then being no point regularly before the court, and being in this instance not disposed to examine into causes of error not assigned nor noticed in the argument, (though if injustice were likely to happen, they do not say that they would not feel it their duty to examine and decide points of importance which may have escaped the examination of counsel,) they must affirm the judgment of the court below with costs.\n(1)\nJudgment affirmed.\n(a) See Sawyer v. Stephenson, ante, page 24. Forester, &c. v. Guard, Siddell & Co., page 74.\n(1) In relation to an affidavit, copied into the record but not preserved by a bill of exceptions, the court used the following language: “ We have often and uniformly held, that to entitle papers and proceedings of this character to notice in this court they must either be copied into, or so specifically referred to by the bill of exceptions, as to leave no doubt of their identity, and that the party intends to rely on them in support of his case.” Hatch v. Potter, 2 Gilm., 725. And to the same effect are Rust v. Frothingham, et al., post. Sims v. Hugsby, id. McLaughlin v. Walsh, 3 Scam., 185. Cummings v. McKinney, 4 Scam., 59. Saunders v. McCollins, id., 419. Corey v. Russell, 3 Gilm., 366. Edwards v. Patterson, 5 Gilm., 126. Petty v. Scott, id., 209. Holmes v. The People, id., 480. Mann v. Russell, 11 Ill., 586. Magher v. Howe, 12 Ill., 379. McBain v. Enloe, 13 Ill., 78. Moss v. Flint et al , id., 572. McDonald v. Arnout, 14 Ill., 58."
                        }
                    ],
                    "head_matter": "Jonathan Browder, Appellant, v. Jeremiah Johnson, Appellee.\nStarr, for paintiff in error,\nMcRoberts, for defendant in error.\nAPPEAL FROM WASHINGTON.\nThis court can not and will not look at things the clerk may, without authority and irregularly, incorporate into the record.",
                    "parties": [
                        "Jonathan Browder, Appellant, v. Jeremiah Johnson, Appellee."
                    ]
                }
            }
        },
        {
            "id": 435627,
            "url": "https://api.case.law/v1/cases/435627/",
            "name": "John Johnson, Appellant, v. Richard Ackless, Appellee",
            "name_abbreviation": "Johnson v. Ackless",
            "decision_date": "1825-06",
            "docket_number": "",
            "first_page": "92",
            "last_page": "94",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 92"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Blackwell, for appellant.",
                        "Cowles, for appellee."
                    ],
                    "opinions": [
                        {
                            "author": "Justice Lockwood.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice Lockwood.\nThis is an appeal from the circuit court of St. Clair county. The cause originated before a justice of the peace, and was brought into the circuit court by appeal, the appeal was tried at the second term after taking of the appeal, but was not decided until the fourth term. The record states that the continuance after the trial was at the instance of the court, and because the court was not sufficiently advised what judgment to give. It is objected on the part of the appellee that the court had no power to continue this cause after the trial. This objection can not be entitled to any weight. The statute could only have intended to restrict continuances at the instance of one party when opposed by the other. And such has been the practice of the circuit courts ever since the state courts have been established. The plaintiff in the appeal had regularly brought and prosecuted his appeal, and it would consist neither with law nor common sense, that the delay of the court should defeat his appeal. Should, however, the objection prevail, the consequence would be that the judgment of the circuit court must be reversed. But for the reasons above given, the court do not consider it to be erroneous for the court to take cases under advisement after two terms have elapsed since the taking an appeal from the decision of a justice of the peace. The appellee also objects that the bill of exceptions was irregularly taken. The bill of exceptions was taken at the term judgment was pronounced. The appellant had no opportunity of taking it sooner, for until the decision he could not know that he should have any ground of exception. The court in the decision of appeals perform the duty both of court and jury, and until the case is decided it can not be known whether it will be necessary to except. The trial of appeals in the circuit court is an anomaly in the law, and the rules of taking bills of exceptions in ordinary trials by jury, can not apply. It therefore appears to the court that the bill of exceptions was properly taken. The only question on the merits of this case is, whether there was any consideration for the promise of the appellant. On this point the court can not for a moment entertain a doubt. The promise given in evidence was entirely gratuitous, it was a nude pact. The judgment therefore must be reversed.\n(1)\nJudgment reversed.\n(1) The cases of Swafford v. Dovener, 1 Scam., 165, and White v. Wiseman, id., 169, are cited in Freeman’s Digest, p. 1178, Sec. 13, as conflicting with this ease; but in the first of those cases the court refer to this case, and expressly say the question here decided is not the one presented there. But it is now settled by the act of 1837 in accordance with this decision. Purple’s Statutes, p. 824, Sec. 22 ; Scates’ Comp., p. 263. County of Crawford v. Spenney, 21 Ill., 290; Stevenson v. Sherwood, 22 Ill., 238."
                        }
                    ],
                    "head_matter": "John Johnson, Appellant, v. Richard Ackless, Appellee.\nBlackwell, for appellant.\nCowles, for appellee.\nThis was originally a suit brought before a justice of the peace by Ackless against Johnson, and taken by Johnson by appeal to the circuit court of St. Clair county. From the bill of exceptions taken in the cause, it appears that the suit was brought before the justice to recover the sum which Johnson received of one Divers, for a certain tract of land, over and above the sum of four hundred dollars, and it was proved by the testimony of John Divers, that about three years ago Johnson had sued Ackless before Divers for a part of the purchase money which Ackless owed Johnson for a certain tract of land, for which land Ackless had before agreed to pay Johnson $800, and had paid $400, and that $400 remained unpaid. That at the trial before Divers, Ackless stated that he was unable to pay for the land, and would give up to Johnson what he had paid if Johnson would take the land and release him from paying the residue; that after some conversation Johnson agreed to Ackless’ proposition, and delivered up to Ackless the notes which Johnson held on him for the $400, the residue of the purchase money for the land, and Ackless delivered up to Johnson the bond he held on him for the title to it, and the contract of purchase was fully rescinded. Afterwards, and before the company separated, Johnson offered to sell the land, and called on the company to take notice that it vas his intention to give Ackless all he could get for the land over and above the sum of $400, and that Divers afterwards purchased the land of Johnson for $453, one \"hundred and fifty of which was paid in cash, and the balance in horses. On this evidence, Johnson insisted that the testimony showed a naked contract, without any consideration to support it, but the court was of a different opinion and rendered judgment for Ackless, The attorney for Ackless protested against any bill of exceptions being presented at that term (August term, 1824,) for the reason that the evidence upon which the judgment was rendered was heard at August term, 1823 ; but this objection the court overruled.\nAPPEAL FROM ST. CLAIR.\nThe statute regulating appeals from a justice of the peace, in providing that no continuance shall be allowed to either party after the second term, was not intended to prohibit the court from taking such cases under advisement after the trial.\nIn appeal cases, where the judge acts both as court and jury, a bill of exceptions taken after the judgment of the court is rendered, is regular and in time.",
                    "parties": [
                        "John Johnson, Appellant, v. Richard Ackless, Appellee."
                    ]
                }
            }
        },
        {
            "id": 435639,
            "url": "https://api.case.law/v1/cases/435639/",
            "name": "More and Bates, Appellants, v. Bagley, Borer and Robbins, Appellees",
            "name_abbreviation": "More & Bates v. Bagley, Borer & Robbins",
            "decision_date": "1825-06",
            "docket_number": "",
            "first_page": "94",
            "last_page": "95",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 94"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "McRoberts, for defendants in error."
                    ],
                    "opinions": [
                        {
                            "author": "Justice Lockwood.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice Lockwood.\nIt appears from the bill exhibited in this cause, that an action was commenced before a justice of the peace on a promissory note, and that on the trial of the cause, the defendants offered to prove by their own oaths the fact, and called on plaintiffs below to disprove, that the consideration of the note was for the sale of an improvement on public lands. The bill also states that the justice overruled this defense, and gave judgment for the plaintiffs. Without intending to decide whether this defense ought to have availed the defendants if they had proved it, it is sufficient for this court to say, that the complainants have mistaken their remedy. The defense set up by the complainants before the justice was purely a legal one. Their only remedy, in case the justice decided erroneously, was to appeal to the circuit court. The complainants having neglected to avail themselves of this remedy, can not now ask the interposition of a court of equity. The allegation in the bill, that complainants could only prove the facts in what the consideration of the note consisted, either by their own oath, or the oath of the plaintiff, can be no reason for not prosecuting an appeal from the justice’s decision. Had an appeal been taken, the complainants could, by filing a bill of discovery, have obtained the necessary proof. In the case of Duncan & Lyon, 3 Johnson’s Chan. cases, 351, chancellor Kent says, that “ it is a settled principle that a party will not be aided after a trial at law, unless he can impeach the justice of the verdict or report (of referees) by facts, or on grounds of which he could not have availed himself, or was prevented from doing it by fraud or accident, or the act of the opposite party, unmixed with negligence or fault on his part.” The decree below must therefore be reversed,\n(a)\n,\n(1)\nDecree reversed.\n(a) The court of chancery will not relieve a party on the ground of his having proceeded to trial at law without sufficient evidence, when it was in his power to have obtained that evidence by a bill of discovery. 4 Johns. Rep., 510.\n(1) It was said by the court in Propst v. Meadows, 13 Ill., 169, that “It is within the ordinary jurisdiction of this court to grant relief against judgments at law, either by granting new trials, or by perpetual injunction, if it shall appear that the judgment complained of was obtained by fraud, or resulted from inevitable accident, and that the courts of law can not grant adequate relief.” See Beaugenon v. Turcotte, post; Hubbard v. Hobson, id.; Beames et al. v. Denham et al., 2 Scam., 58; Wierich v. DeZoya, et al., 2 Gilm., 388; Scott v. Whitlow, 20 Ill., 310.\nA party who seeks to set aside a judgment by a proceeding in chancery, so as to obtain a new trial, must show himself clear of all laches, and also that every effort on his part was made to prevent the judgment against him. Ballance v. Loomis et al., 22 Ill., 82.\nThe rule that equity will not relieve against the neglect of a party in a suit at law, who has not made a proper defense, or to move for a new trial, will depend upon the fact that he knowingly had a day in court. Owens v. Ranstead, 22 Ill., 161."
                        }
                    ],
                    "head_matter": "More and Bates, Appellants, v. Bagley, Borer and Robbins, Appellees.\nMcRoberts, for defendants in error.\nAPPEAL FROM GREENE.\nIf a party neglects to make Ms defense at law, a court of chancery will'not relieve him.",
                    "parties": [
                        "More and Bates, Appellants, v. Bagley, Borer and Robbins, Appellees."
                    ]
                }
            }
        },
        {
            "id": 435655,
            "url": "https://api.case.law/v1/cases/435655/",
            "name": "Abraham Taylor and Benjamin Parker, Plaintiffs in Error, v. Thomas Kennedy, Treasurer, &c., Defendant in Error",
            "name_abbreviation": "Taylor v. Kennedy",
            "decision_date": "1825-06",
            "docket_number": "",
            "first_page": "91",
            "last_page": "92",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 91"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [],
                    "opinions": [
                        {
                            "author": "Justice Smith.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice Smith.\nThis was an action on a security bond, given for the faithful performance of the duties of Taylor, one of the defendants, as a constable for the county of Crawford.\nIt is unnecessary to notice more than one of the several causes assigned for error. The declaration, in setting forth the bond, does not allege that the bond was executed on any particular day or month, but generally in the year 1819. Oyer of the bond being prayed and given, Shows the bond to have been executed on the day of 1825.\nThe defendants in the court below, after reciting the bond given on oyer, demurred to the declaration as insufficient. The question of variance is then the simple and only question to be decided. Was this omission of the recital of time in the declaration fatal ? On this point the court can not entertain a doubt.\nThe court need not enter into the reasoning which governs decisions on the subject of variance between the instrument set out in the declaration and the one offered on oyer, nor is it necessary to elucidate by comparison, that this was one essential in its character, and might be important in its bearing on the ultimate liability of the parties and in the decision of the cause.\nThe court are therefore of the opinion that the court below erred in overruling the demurrer, and that the judgment below ought to be reversed and that the plaintiffs recover their costs,\n(a)\n,\n(1)\nJudgment reversed.\n(a) Connally v. Cottle; Rust v. Frothingham and Fort; Prince v. Lamb.\n(1) As to craving oyer, see Sims v. Hugsby, post.; Bogardus v. Trial, 1 Scam., 63; Collins v. Ayers, 13 Ill., 362; Harlow v. Boswell, 15 Ill., 57; and note to Mason v. Buckmaster, ante, p. 27.\nA note was described in the declaration as being payable “ on or before,” &c.; the note offered in evidence was payable on the day named, and not on or before : Held that this did not constitute a variance between the declaration and the proof. Morton v. Tenny, 16 Ill., 494.\nWhere a note offered in evidence differed in amount a half cent from the one declared on, it was held to be a variance, and that it could not be received in evidence. Spangler v. Pugh, 21 Ill., 85.\nWhere an instrument is not truly described in its material parts, it can not be read in evidence under a special count. Higgins v. Lee, 16 Ill., 495.\nSee also, Baxter v. Knox, 19 Ill., 267; Crittenden et al. v. French, 21 Ill., 598; Van Court v. Bushnell et al., id., 624; Freeman's Digest, p. 1317."
                        }
                    ],
                    "head_matter": "Abraham Taylor and Benjamin Parker, Plaintiffs in Error, v. Thomas Kennedy, Treasurer, &c., Defendant in Error.\nERROR TO CRAWFORD.\nA variance between the instrument declared on, and the one set out on oyer, is fatal on demurrer.",
                    "parties": [
                        "Abraham Taylor and Benjamin Parker, Plaintiffs in Error, v. Thomas Kennedy, Treasurer, &c., Defendant in Error."
                    ]
                }
            }
        },
        {
            "id": 435773,
            "url": "https://api.case.law/v1/cases/435773/",
            "name": "Richard W. Chandler, Plaintiff in Error, v. John H. Gay, Defendant in Error",
            "name_abbreviation": "Chandler v. Gay",
            "decision_date": "1825-06",
            "docket_number": "",
            "first_page": "88",
            "last_page": "91",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 88"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [],
                    "opinions": [
                        {
                            "author": "Justice Smith.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice Smith.\nThis was a proceeding under a statute of this state, authorizing and regulating arbitrations, approved 25th February, 1819. The plaintiff in error applied, in the court below, by his counsel, to set aside the award made in this case, on the ground of uncertainty, want of mutuality, as not embracing the matter submitted, and as not final. ■\nHe gave the defendant here, notice in the court below, of his intention to make such application. It appears that the circuit court entertained this motion, though after hearing it overruled the same, and directed the bond and award to be. filed; confirmed the award, and made it a judgment of the court, and that Gay should recover the sum of thirty-eight dollars and seventy-five cents.\nThe statute under which these proceedings were, as it is contended, correctly taken, provides “ that the submission of the parties may be made a rule of court, and after making an award, a true copy thereof shall be delivered to each of the parties, and if either of the parties refuse or neglect to obey the award or umpirage, the other party may return the same with the submission or arbitration bond, and the same award or umpirage so returned shall be entered on record and filed by the clerk, and a rule of court thereupon made, and after such rule is made, the party disobeying the same shall be liable to be punished for a contempt of court on motion, and that process shall issue accordingly, which process shall not be stayed or impeded by order of any court of law or equity, until the parties shall in all things obey the award or umpirage, or unless it shall be made to appear on oath, that the umpire or arbitrators misbehaved, and that such award or umpirage was obtained by fraud, corruption or other undue means: provided, that before such rule shall be granted, the party moving therefor shall produce to the court satisfactory evidence of the due execution of the arbitration or submission bond, and that the party refusing or neglecting to obey the award or umpirage, hath been furnished with a true copy thereof.”\nIt is alleged for cause of error, that the court below erred in not setting aside the award for the reasons set forth in the notice of the plaintiff of his motion, and in rendering judgment for the defendant in error on the award, before deciding on the said motion of the plaintiff in error.\nThe force of the reasoning of the counsel, is not perceived, as to the error of the court below, in deciding on the application to file the arbitration bond—and award, before pronouncing an opinion on the motion of the counsel in the court below to set aside the award; nor can it be perceived why the judgment can be erroneous, if warranted by the statute, because of the order of precedence given to it over a motion clearly cor am non judice. It is very apparent that the application by notice and motion, before the filing of the submission or arbitration bond and award, was wholly irregular, there being no record or evidence in the court below of any proceedings upon which to base such notice and motion.\nThe statute in question has very clearly provided the mode and order of proceeding, and had the present plaintiff desired to have resisted the filing of the bond and award, he could have done so at the time of the application to file it, and have shown to the circuit court the causes on which he predicated such resistance.\nIf the reasons assigned came within the causes of objection recited in the statute, it would have been the duty of the court to have suspended the entry of the rule on the submission and award, and if satisfied by evidence, that the award had been produced by fraud, corruption or other undue means, to have arrested the proceedings or quashed the award.\nThe language used in the act forbids the idea that the circuit court could arrest the proceedings, or interfere therewith, except for the causes expressly therein stated, and the same prohibitions extend equally to this court unless for manifest error appearing in the record.\nThus far then, it is not perceived but what the proceedings on the part of the defendant in error were correct, but it is an important inquiry in this case to ascertain the nature and extent of the order taken and entered upon filing the 'submission or arbitration bond and award.\nThe circuit court, it appears, confirmed the award, declared it to be a judgment, overruled the motion to set aside the award, and adjudged that Gay should recover against Chandler thirty-eight dollars and seventy-five cents, as awarded.\nIs this entry of the judgment in conformity with the provisions of the statute ? If not, was the court authorized to enter such judgment ? Will it be contended that the judgment is the one contemplated by the statute ? The statute, it will be seen, directs a rule of the cpurj; to be entered on filing the submission and award, leaving it uncertain, it is true, as to the precise form of that rule, or its extent.\nFor in the sentence immediately following, it declares that the party disobeying such rule, after it is made, shall be liable to be punished for a contempt. The only rational construction then, of the terms of the statute, must be, that the rule to have been made, should have been one directing a compliance with the award, leaving the party to his remedy in case of refusal, by attachment for contempt.\nThe court are therefore of opinion that the decision of the court below confirming the award be affirmed, and that so much thereof as declares it to be a judgment of the court directing the recovery of the sum of thirty-eight dollars and seventy-five cents, being erroneous and not warranted by the statute, be reversed. The cause is remanded to the circuit court with leave to the defendant in error to perfect his proceedings agreeable to the provisions of the statute, and that each party pay one-half of the costs of the proceedings in this court,\n(a)\n,\n(1)\n(a) Duncan v. Fletcher, post. Cromwell v. March.\n(1) By the statute now in force in this state it is enacted (after providing the manner in which arbitrations may be entered into,) that the parties “may in such submission, agree that a judgment of any court of record competent to have jurisdiction of the subject matter, to be named in such instrument, shall be rendered upon the award made pursuant to such submission.” Purple’s statutes, p. 88, Sec. 1. Scates’ Comp., p. 209.\nBy virtue of this statute if the submission and award are in pursuance of it, and the submission so provides, a judgment may be entered on the award. Low v. Nolte, 15 Ill., 368; Thorpe v. Starr, 17 Ill., 199.\nA judgment on an award can only be entered by a justice of the peace when it is on a suit pending before him, and is by the parties referred to arbitrators. Weinz v. Dopler, 17 Ill., 111; Shirk v. Trainer, 20 Ill., 301.\nA parol submission and award are binding in aU cases except where a writing is required to pass the title to the thing in controversy. Smith v. Douglass, 16 Ill., 34.\nIf there is neither fraud or misconduct on the part of the arbitrators, the award is final. Merritt v. Merritt, 11 Ill., 565; Root v. Renwick, 15 Ill., 461; Ross v. Watt, 16 Ill., 99.\nUnless the submission requires it, it is not necessary that an award should be published, or that notice of it should be given to the parties. Nor need it be in writing. Denman v. Bayless, 22 Ill., 300.\nAn award must be so certain that it can be easily comprehended, and be carried into execution without the aid of extraneous circumstances. Howard v. Babcock, 21 Ill., 259.\nA court of equity may rectify a mistake of arbitrators, in omitting the name of the person from an award to whom certain land was to be conveyed, if the proof is clear and explicit as to what was intended by the arbitrators. Williams v. Warren, 21 Ill., 541."
                        }
                    ],
                    "head_matter": "Richard W. Chandler, Plaintiff in Error, v. John H. Gay, Defendant in Error.\nERROR TO ST. CLAIR.\nThe circuit court can not arrest or interfere with the proceedings on an award where the submission has been by bond or rule of court, except for the causes expressly stated in the statute, to wit: that the award was obtained by “fraud, corruption, or undue means.”\nIt is error for the circuit court to enter up a judgment on an award. The proper course is, under the statute of 1819, for a rule of court to be entered up on filing the submission and award, requiring the parties to abide by the award. A disobedience to this rule would be a contempt. (See act of 1827, Rev. Laws, p. 64.)",
                    "parties": [
                        "Richard W. Chandler, Plaintiff in Error, v. John H. Gay, Defendant in Error."
                    ]
                }
            }
        },
        {
            "id": 435568,
            "url": "https://api.case.law/v1/cases/435568/",
            "name": "Alexander Conley, Appellant, v. Ezekiel Good, Appellee",
            "name_abbreviation": "Conley v. Good",
            "decision_date": "1825-12",
            "docket_number": "",
            "first_page": "135",
            "last_page": "137",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 135"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
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                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
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                "data": {
                    "judges": [],
                    "attorneys": [
                        "McRoberts, for appellant.",
                        "Cowles, for appellee."
                    ],
                    "opinions": [
                        {
                            "author": "Justice Lockwood.\n*",
                            "type": "majority",
                            "text": "Opinion of the. Court by\nJustice Lockwood.\n*\nThis is an appeal from the Madison circuit court, and brought into that court by appeal from the decision of a justice of the peace. The action was brought to recover the value of a quantity of wool delivered to Good to be carded, and which had not, on demand, been returned to Conley. On the trial of the appeal in the circuit court, after Conley’s witnesses had been examined and cross-examined by Good, Good introduced his brother as a witness to prove that he, the witness, was a partner in the carding machine. It was conceded on the trial of the appeal, that no such defense was made before the justice of the peace, and that the wool was delivered to Good, the defendant, who promised to card it. It was also proved on the trial, that the partnership was not known by the neighbors and persons frequenting the carding machine.\nThe circuit court, however, decided that the partnership thus proved, was a bar to the action, and gave judgment for the appellee. One of the questions presented in this case is, whether, in proceedings before justices of the peace, a p’arty is bound to avail himself of the first opportunity to take advantage of a defense which is of a dilatory character. The defense relied on in the circuit court, could have no other effect than to abate the suit; it had nothing to do with the merits of the case. The general rule in case of dilatory pleas is*that if the party does not avail himself of it the first opportunity, he waives the objection. It is, however, contended, that this rule can not be applied to proceedings before a justice of the peace. The court can not accede to this proposition. The object of the legislature in organizing justices courts, would be entirely defeated, if parties were permitted to conceal mere technical objections, and then, after the trial has began, raise them. The justices’ law requires the justice to decide the case according to law and equity, and dispenses with written pleadings. The object of the legislature in establishing these courts was, to dispense with technical forms and pleadings, and requires causes to be disposed of with as little delay and expense as possible. The court thinks it doubtful whether the legislature intended that objections which do not go to the merits of the case, could be made to \"proceedings before a justice of the peace. Without intending definitely to settle this question, they are of opinion that such objections must be made in the order of pleadings.\nIn this case, Good never made the objection till Conley had adduced his proof in the circuit court, and Good had cross-examined his witnesses. To suffer a party, at such a stage of the proceedings, to raise objections in the nature of a plea in abatement, would not only be a palpable departure from every legal principle, but be at war with the statute regulating trials of appeals, which directs that the circuit courts shall “ hear and determine the same, in a summary' way, without pleadings in writing, according to the justice of the case,” and that the court shall “ admit any amendment of the papers or proceedings, that may be necessary to a fair trial of the cause upon its own intrinsic merits.”\nHere has not been a trial on the intrinsic merits of the cause, and a decision according to the justice of the case. In equity, partners are both jointly and severally liable for their contracts.\nThe court below, therefore, in receiving the testimony of a partnership, erred, and if one of several partners promise individually to pay a debt, he will not be allowed to show that it was due jointly from himself and his co-partners. Murray v. Sommerville. Sittings after Hilary term—by Lord Ellen-borough.\nThe judgment must be reversed. The court did not think it necessary to decide the question, whether a suit ought to abate, when a dormant partner is not sued. They are, however, inclined to think, that a plea in abatement in such a case would not lie. In the case of Clark v. Holmes, 3 Johns. Rep., 148, it was decided, that when one partner makes a warranty on the sale of goods, an action may be maintained on the warranty against that partner, without joining the other.\nThe judgment reversed and proceedings remanded.\n(a)\nJudgment reversed.\n* Justice Smith having been counsel in the cause, gave no opinion.\n(a) That other persons jointly indebted, or jointly responsible, have not been made defendants, must be pleaded in abatement,.and can not be taken advantage of on the trial. Ziele v. Exrs. of Campbell, 2 Johns. Cas. 382."
                        }
                    ],
                    "head_matter": "Alexander Conley, Appellant, v. Ezekiel Good, Appellee.\nMcRoberts, for appellant.\nCowles, for appellee.\nAPPEAL FROM MADISON.\nAny defence of a dilatory character must be taken advantage of on the trial before the justice of the peace.\n(1)\nIf one of several partners promise individually to pay a debt, he will not be allowed to show that it was due jointly from himself and his co-partner.\n(2)\nAn appeal is assimilated to a suit in equity, and in equity, partners are jointly and severally liable, and therefore, proof that another person was the partner of the defendant, if offered by the defendant, is inadmissible in such case.\n(1) This proposition is universally sustained by the authorities. Greer v. Wheeler, 1 Scam., 554. Bines et al. v. Proctor et al., 4 Scam., 177. Duncan et al. v. Charles, id., 569. Ross v. Nesbit, 2 Gilm., 253. Adams v. Miller, 12 Ill., 27. Wilson v. Nettleton, id., 61. Moss v. Flint, 13 Ill., 570. Adams v. Miller, 14 Ill., 71. Walker et al. v. Welch et al., id., 277. Holloway v. Freeman, 22 Ill., 197.\n(2) The principle of this decision—that a dormant partner need not be joined, is unquestionable. Page et al. v. Brant, 18 Ill., 37. Collyer on Partnerships, 662. But as to the doubt expressed by the court, that objections which do not go to the merits of the case can not be made in proceedings before a justice of the peace, we can not think there is any question. It is true that the objection, that some of the partners are not sued, can be taken advantage of only by plea in abatement. Shufeldt v. Seymour et al., 21 Ill., 524. Puschel v. Hoover et al., 16 Ill., 340. Collyer on partnerships, 658. In equity, also, partners are held both jointly and severally liable on their contracts. Collyer on partnerships, p. 554. 1 Story’s Eq. Jur., Sec. 676. 3 Kent’s Comm., 63-4. It is not so, however, at law. But it does not follow, that if the fact were known at the time of making the contract that there were other partners who are not joined as defendants, because the suit is brought before a justice of the peace instead of the circuit court, that the defendant can not avail himself of this objection. It is true that the legislature have intended to do away with many technicalities in proceedings before justices of the peace, and wisely; for if they were expected to conform to all the niceties required in liigher courts, few, especially in a new country, would be found qualified to hold the office; and the benefits expected to be derived from this species of courts, would be lost. They have dispensed with mitten pleadings. Crews v. Bleakley, 16 Ill., 21. They have provided in certain cases that parties maybe made witnesses, without the expense and delay of a bill of discovery. Webb v. Lasater, 4 Scam., 543. Purple’s Statutes, 667, Sec. 39. Scates’ Comp., 699. But they have nowhere provided that objections which do not go to the merits, if made at the proper time, shall not avail the defendant. The decisions have been otherwise. Orr v. Thompson, 4 Gilm., 451. Adams v. Miller, 12 Ill., 27. Same case, 14 Ill., 71. Robertson et al. v. County Commissioners, 5 Gilm., 559. And the reasons for this are manifest. That slight and trivial objections ought not to be allowed in proceedings before justices of the peace is reasonable; but many objections, though not strictly of substance, are yet so nearly allied to it as to demand that they shall be allowed to a defendant, no matter in what court he is sued. If a defendant is sued on a joint contract, he has a right that his co-contractor shall be joined with him, in order that each may bear his proportion of the joint liability. If the doctrine I am endeavoring to combat is true, it follows that it depends entirely in what court a defendant is sued as to what are his rights. If sued in the circuit court, he may show that others ought to have been joined with him—that ho is sued by the wrong name—and many other kindred defenses. If sued before a justice of the peace on the same demand, (and in many cases circuit courts and justices of the peace have concurrent jurisdiction,) he is denied any such right. Can it be that justice depends merely on the tribunal in which it is sought 1 Except in cases of partnership, a joint liability, even in equity, is never treated as joint and several; and so far is it carried, that if a joint obligor who is only security, dies, his estate can not, in any manner, be made liable. Powell et al. v. Kettelle, 1 Gilm., 491. How then, because the legislature has sought to remove technical objections, can proceedings be sustained before inferior tribunals, which a court of equity could not 1 The statement of the proposition, to my mind, shows its fallacy.",
                    "parties": [
                        "Alexander Conley, Appellant, v. Ezekiel Good, Appellee."
                    ]
                }
            }
        },
        {
            "id": 435580,
            "url": "https://api.case.law/v1/cases/435580/",
            "name": "James C. Wright, Plaintiff in Error, v. The People, Defendants in Error",
            "name_abbreviation": "Wright v. People",
            "decision_date": "1825-12",
            "docket_number": "",
            "first_page": "102",
            "last_page": "103",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 102"
                }
            ],
            "volume": {
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                "volume_number": "1"
            },
            "reporter": {
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                "full_name": "Illinois Reports"
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            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
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                    "opinions": [
                        {
                            "author": "Justice Smith.\n*",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice Smith.\n*\nThe early adjudication in England on indictments for frauds, appear, from the reports of the cases, to have been unsettled and contradictory. The leading case, which seems to have settled the doctrine, and to have established a channel through which the difficulties and perplexities arising from those decisions might be avoided, is the case of The King v. Wheatley, decided in February, 1761, and reported in 2d Burrow, 1125.\nThe distinction laid down in that case, between public and private frauds, has, it is believed, been the great criterion which courts of justice have adopted, by which to judge of the criminality of the act, and whether the perpetrator was liable to indictment and punishment, under the common law. The very lucid opinion of Lord Mansfield in that case, and unanimously concurred in by all the judges present, although not obligatory on this court, will yet certainly be respected, when the elevated characters and great legal attainments of the persons who composed that tribunal are considered. The opinion of Lord Kenyon was, that that case established the true boundary between frauds that were, and those that were not, indictable at common law. That case required that the fraud should be of such a nature as would affect the public, or that it should be a deception that common prudence and care could not guard against, or that false tokens should have been used, or a conspiracy entered into to cheat. The offense, in the language of Lord Mansfield, to be indictable, must be such an one as affects the public; as, if a man uses false weights and measures, and sells by them, to all or to many of his customers, or uses them in the general course of his dealing. So if a man defrauds another under false tokens—for these are deceptions that common prudence and care are not sufficient to guard against. So if there be a conspiracy to cheat—for ordinary care and caution is no guard against this. The cases here put are certainly more than mere private injuries, they are public offenses. This doctrine has been fully recognized by the supreme court of New York, in the case of The People v. Babcock, 7th Johns., 201.\nIn the present case it is a mere private injury—the public could in no way be affected by the act; nor is it a case of false tokens, which is necessary to be shown in a fraud on a private individual. The act of separating the condition written underneath the obligation, which was to determine the time of payment and liability of the parties to it, can not be considered as an act which common prudence might not have guarded against. It might have been avoided in various ways. By taking from Wright an instrument expressive of the condition upon which the obligation was given, instead of having it underwritten, or by having the condition inserted in the body of the obligation, according to the most common and usual method in practice.\nThe form of the obligation and defeasance, serves only to show with reference to the present case, that the obligors reposed great confidence in the person to whom they gave it. I feel more confirmed in the general view taken of the case, upon an examination of the sixth section of the acts of the legislature of this state of the 23d March, 1819, respecting crimes and punishments, which has fully provided for the defacing of instruments, obligations, &c., to which class of cases the present one might safely be arranged. The judgment of the circuit court must therefore be reversed.\n(a)\nJudgment reversed.\n* Lockwood, justice, having prosecuted the defendant in the court below while attorney general, gave no opinion.\n(a) The sixth section of the act respecting crimes and punishments, approved March 23d, 1819, p. 215, provides, “ That whoever shall forge, deface, corrupt, or embezzle any charters, gifts, grants, bonds,” &c., shall be deemed guilty of forgery, and shall be fined, put in the pillory, and rendered infamous."
                        }
                    ],
                    "head_matter": "James C. Wright, Plaintiff in Error, v. The People, Defendants in Error.\nERROR TO MADISON.\nIt is not an indictable fraud to separate the condition from the penalty of the bond—it is not such an act as common prudence can not guard against.\nThe act of 1819, respecting crimes and punishments, has fully provided for cases of this description.",
                    "parties": [
                        "James C. Wright, Plaintiff in Error, v. The People, Defendants in Error."
                    ]
                }
            }
        },
        {
            "id": 435582,
            "url": "https://api.case.law/v1/cases/435582/",
            "name": "Daniel Gregg, Plaintiff in Error, v. James and Philips, Defendants in Error",
            "name_abbreviation": "Gregg v. James & Philips",
            "decision_date": "1825-12",
            "docket_number": "",
            "first_page": "143",
            "last_page": "145",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 143"
                }
            ],
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                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
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                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
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                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
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                    "opinions": [
                        {
                            "author": "Justice Smith.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice Smith.\nThis was an action of debt, on a sealed note, payable to James and Philips. Gregg, who was defendant in the court below, pleaded three pleas:\n1. Payment generally.\n2. That Philips and himself were mutually indebted to each other before the execution of the note ; that prior to the making of the note, they attempted a settlement of their respective claims, but Gregg, being unable then to establish his against Philips, executed the note in question to James and Philips, who had become partners in trade, it being given for the amount of Philips’s claim against him, leaving his, against Philips, unadjusted.\n3. That the note was given to James and Philips to secure a debt due to Philips only, and that before the commencement of the suit, he paid it to Philips.\nTo the first and third pleas, the plaintiff took issue, and demurred to the second; to which demurrer the defendant filed his joinder. The court below sustained the demurrer. On the trial, Gregg offered to give in evidence, an account of his against Philips, which existed anterior to the making of the note given to James and Philips, which the court refused to permit.\nTo this decision an exception was taken. Two points are presented for the consideration of the court: First, that on the issues joined, it was competent for Gregg to give in evidence any debt due to him from Philips: Second, that the second plea was a bar to the action, and the demurrer should have been overruled.\nWe have no hesitation in saying that on both the points, the court below decided correctly. Nothing is better settled than that debts to be set off, must be mutual and between the parties to the record. If the issue on the third plea had been what the counsel for Gregg supposes it is, it might, perhaps, vary the question. But it will be seen that his allegation, that the consideration of the note was for a debt originally due to Philips only, is not noticed in the replication, and issue is-taken on the single point of payment only. That part of his plea is treated as a nullity, and must be considered as surplus-age. The only inquiry is, was the debt alleged to be due by Philips, a debt which could be set off.\nThe note is payable to co-partners, and the debt offered to be given in evidence, is due, if at all, by only one of the co-partners. The rule is, that a debt due individually by one co-partner can not be set off in an action to recover a debt due the co-partnership. It is not a mutual debt, nor is it between the parties to the record. The offer, therefore, to prove a debt due by one of the co-partners, and that confessedly created before the making of the note, was foreign to the issue before the court. It was in no way pertinent thereto: it was not what the parties had made the issue, viz.: had Gregg paid the note to Philips, for a payment to one was a payment to both, unless strictly forbidden. This reasoning is directly applicable to the second plea. It was not competent for Gregg to plead a state of facts, which in themselves amounted to no more than a right of setting off a debt due by Philips alone.\nThis plea was certainly not good, for he could not plead that, which in law, could be no defense. The court have examined the authorities quoted by the plaintiff’s counsel to support the positions assumed by him, but they are found to be in no way analogous. The demurrer was properly sustained. The judgment of the court below must be affirmed, and the defendants in error recover their costs,\n(a)\nJudgment affirmed.\n(a) Dealings between the parties to the record only, can be set off. 1 Johns. Cas., 169."
                        }
                    ],
                    "head_matter": "Daniel Gregg, Plaintiff in Error, v. James and Philips, Defendants in Error.\nERROR TO MONROE.\nDebts to be set off, must be mutual, and between the parties to the record.\n(1)\nA debt due individually by one co-partner, can not be set off in an action to recover a debt due the co-partnership.\nA payment to one partner is payment to both, unless stricly forbidden.\n(2)\n(1) A separate demand can not be set off against a joint one, nor can a joint debt be set off against a separate one. A demand to be set off must be owing from the plaintiff's to all the defendants. The demands must be mutual and between all the parties to the action. Hinckley v. West, 4 Gilm., 136. Burgwin v. Babcock, 11 Ill., 30. Hilliard v. Walker, id., 645. Ryan v. Barger, 16 Ill., 28. P. & O. R. R. Co. v. Niel, id., 269. Walker v. Chovin, id., 489. “ There may be an exception to this rule arising out of the agreement of the parties.” Walker v. Chovin, supra.\n(2) Payment to one partner is payment to the firm. Major v. Hawkes, 12 Ill., 299. Coll. on Part., sec. 638.\nThe giving a note payable to one of the partners individually, or the payment of a debt of an individual partner by a debtor of a firm, is not such a payment as is binding on the other partner, but is good as to the one to whom it is made. Granger v. McGilvra, 24 Ill., 152.\nAfter a dissolution of a partnership, either partner may receive a debt duo the firm, notwithstanding an agreement between the partners, of which the debtor has notice, that one of their number or a third person, shall alone collect and pay the debts. Gordon v. Freeman, 11 Ill., 14.",
                    "parties": [
                        "Daniel Gregg, Plaintiff in Error, v. James and Philips, Defendants in Error."
                    ]
                }
            }
        },
        {
            "id": 435584,
            "url": "https://api.case.law/v1/cases/435584/",
            "name": "Willis Hargrave, Plaintiff in Error, v. The Bank of Illinois, Defendant in Error",
            "name_abbreviation": "Hargrave v. Bank of Illinois",
            "decision_date": "1825-12",
            "docket_number": "",
            "first_page": "122",
            "last_page": "123",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 122"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
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            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
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            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Eddy, for plaintiff in error.",
                        "Starr, for defendant in error."
                    ],
                    "opinions": [
                        {
                            "author": "Justice Smith.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice Smith.\nThis case comes before the court on a re-hearing. It is not intended to review the opinion which has heretofore been given by this court under its former organization, nor is it deemed necessary to enter into an examination of all the points which were there presented. Indeed, it will be sufficient to a correct determination, to ascertain whether any one of the points made on the argument by the counsel for the plaintiff in error, contains within itself sufficient cause for reversing the judgment of the court below. That which seems to be most important, and to me conclusive is, whether the plaintiffs on the trial were bound to have produced legal evidence of the act of their incorporation ? This point has been for a long time well settled by a series of adjudications, both in England and the United States, and so generally acquiesced in that on the argument it was thought the counsel for the defendant in error sought to avoid the force of those decisions, by attempting a distinction more ingenious and specious than solid. He assumed as a position, which is certainly very true, that what is admitted, need not be proved. That by the act of indorsing the bill given to the bank, the plainiff in error has admitted the existence of the corporation, therefore it was unnecessary to prove what was thus conceded.\nThis reasoning is calculated to mislead, rather than to enlighten the judgment.\nIt would not, however, certainly follow, to give the greatest latitude to the position assumed, that the act of indorsement admitted any thing more than that the person to whom the bill was indorsed, assumed the corporate name. It could not establish the fact of their legal corporate existence; because, if such an act amounted to such an admission, a fortiori, it would, for all judicial purposes, in this case, make them a corporation—although they should have no existence in fact. However we might admire the ingenuity which presented the syllogism of the defendant’s counsel, I can not admit the correctness of the minor part of it. The premises assumed are incorrect, and consequently, the conclusion is unsound. The rule, as is well settled, is this, that where a corporation sues either to recover real property, or on a contract, it must at the trial, under the general issue, prove that it is a corporation. 2 Ld. Raymond, 1535. 1 Kyd on Corporations, 292, 293. Buller’s Nisi Prius, 107. 8 Johns., 378.\nThe instruction of the court below, prayed for by the defendant’s counsel on the trial, that this was necessary, was, as the bank is a private corporation, incorrectly withheld, and I am therefore of the opinion that the judgment ought to be reversed, and that the cause be remanded to the circuit court for further proceedings,\n(a)\n,\n(1)\nJudgment reversed.\n(a) Where a corporation sues either on a contract, or to recover real property, they must, at the trial, under the general issue, show that they are a corporation, or he nonsuited. 8 Johns., 378, Jackson v. Plumbe.\nBefore any corporate act can be given in evidence, the charter of incorporation must be produced. United States v. Johns, 4 Dallas, 412.\nPublic corporations are such as exist for public political purposes only, such as counties, cities, towns and villages. They are founded by the government, for public purposes, and the whole interest in them belongs to the public. But if the foundation be private., the corporation is private, however extensive the uses may be to which it is devoted by the founder, or by the nature of the institution.\nA bank created by the government, for its own uses, and where the stock is exclusively owned by the government, is a public corporation.\nBut a bank whose stock is owned by private persons, is a private corporation, though its objects and operations partake of a public nature. 2 Kent’s Com., 222.\n(1) In suits brought by corporations, the defendants,iby pleading the general issue, admit the capacity of the plaintiff to sue. If he would deny the existence of the corporation, he must put in a plea for that purpose. McIntire v. Preston, 5 Gilm., 48; Spangler v. Ind. & Ill. Central R. R. Co., 21 Ill., 277. The authorities on this question seem considerably conflicting; but the court in the first case cited (and where most of the authorities are collected,) said: “ Such has been held to be the law by the Supreme Court of the United States, and the courts of several of the states, and the decisions of those states are the best supported by reason and authority.”"
                        }
                    ],
                    "head_matter": "Willis Hargrave, Plaintiff in Error, v. The Bank of Illinois, Defendant in Error.\nEddy, for plaintiff in error.\nStarr, for defendant in error.\nERROR TO GALLATIN.\nWhere a private corporation sues to recover real property, or upon a contract, it must, under the general issue, produce the act of incorporation.\nThe act of indorsing a bill to a bank, does not admit that the bank is a corporation.",
                    "parties": [
                        "Willis Hargrave, Plaintiff in Error, v. The Bank of Illinois, Defendant in Error."
                    ]
                }
            }
        },
        {
            "id": 435608,
            "url": "https://api.case.law/v1/cases/435608/",
            "name": "Joseph Owen and others, Plaintiffs in Error, v. Shadrach Bond, Defendant in Error",
            "name_abbreviation": "Owen v. Bond",
            "decision_date": "1825-12",
            "docket_number": "",
            "first_page": "128",
            "last_page": "129",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 128"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
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            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
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                "slug": "ill",
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                            "author": "Justice Lockwood.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice Lockwood.\nThe questions arising in this case are, whether the agent of the saline had the power to substitute the defendant for the original lessee ? And whether, if he had such power, the judgment can be sustained under the agreement of the parties ? On the first question, the court are of opinion that the superintendent had no power to make Funkhouser and Forester lessees, in the place of the original lessee. His duty required him, in case of a violation of the covenants contained in the lease, to have entered into the possession of the demised premises, and then have advertised them for five weeks, and on the day fixed to have leased the premises for the residue of the term to the highest bidder. Here has been a total departure from the provisions of ‘the law.\nThe court also erred in rendering judgment against Forester only. The stipulation, if it conferred any authority, gave the court power to render judgment against Funkhouser and Forester.\nJudgment reversed."
                        }
                    ],
                    "head_matter": "Joseph Owen and others, Plaintiffs in Error, v. Shadrach Bond, Defendant in Error.\nIn this case, the plaintiffs in error, defendants below, were sued upon a lease alleged in the declaration of defendant in error, plaintiff below, to have been made by S. Bond, as governor of the state of Illinois, on the one part, and the defendants on the other part. The defendants, except Forester and Funkhouser, plead non est factum, and the plaintiff admitted the plea to be sustained. As to Forester and Funkhouser, it was admitted by the parties that they did not sign the lease at the time of the making of the same. That after the appointment of Willis Hargrave as superintendent of the saline in the year 1821, the said Owen being likely to prove insolvent, Hargrave agreed, without the knowledge of governor Bond, that his lease should be transferred to Funkhouser and Forester, and thereupon Funkhouser and Forester signed the lease, and affixed their seals, and their names were inserted in the body of the lease; they then entered into partnership and proceeded to manufacture salt at the salt works granted to Owen, as above stated under the lease, and paid the rent for a time, until they became in arrears for six months’ rent, for which the suit was brought. On this state of facts, it was agreed that the court should try the case against Funkhouser and Forester, and if it is considered by the court that they are legally bound to comply with the terms of the lease, judgment is to be rendered against them for $538.33. But if it was the opinion of the court that the conditions of the lease were not binding upon Forester and Funkhouser, a nonsuit was to be entered. It is stipulated in the lease that if the rents are not paid for the space of thirty days after the time they are payable, that the governor or his duly authorized agent, may re-enter upon the demised premises, &c.\nUpon this state of facts, the circuit court gave judgment by default, against Forester alone for $583.33, and the cause is brought to this court by a writ of error.\nERROR TO GALLATIN.\nThe agent of the Gallatin county saline has no power to substitute another person in place of the original lessee in case of a violation of the covenants ; he should enter upon the demized premises, advertise them, and lease them to the highest bidder.",
                    "parties": [
                        "Joseph Owen and others, Plaintiffs in Error, v. Shadrach Bond, Defendant in Error."
                    ]
                }
            }
        },
        {
            "id": 435617,
            "url": "https://api.case.law/v1/cases/435617/",
            "name": "James Taylor, Plaintiff in Error, v. J. D. Winters, Defendant in Error",
            "name_abbreviation": "Taylor v. Winters",
            "decision_date": "1825-12",
            "docket_number": "",
            "first_page": "130",
            "last_page": "130",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 130"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [],
                    "opinions": [
                        {
                            "author": "Justice Lockwood.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice Lockwood.\nThe error assigned in this case is, that the court below had no right to quash'an execution on the motion of the plaintiff, and at his expense, when the execution appears regular on its face.\nIn answer to this error, it was suggested by counsel for defendant in error that the plaintiff in error had sustained no injury. The execution had been issued, and the plaintiff had indorsed that he would receive state paper in discharge of it. On this execution the defendant caused the debt to be replevied for sixty days. It is presumed that the object to be effected by quashing the execution must have been to enable the plaintiff below to take out another execution without such indorsement. If such was the object, there was clearly an injury to the defendant. Whether a party on sueing out a second execution, is bound to make a similar indorsement, is not necessarily before this court; the court are, however, inclined to think he would be, unless special reasons were shown why he should not.\nIt is fairly to be presumed that when this indorsement is made, and the sixty days replevin is taken, that the defendant obtains this time to enable him to raise the state paper. And if the plaintiff in the execution has it in his power subsequently, to refuse to take the paper without showing any cause, he may occasion a serious loss to the defendant. In 4 Bibb, 471, and 1 Bibb, 147 these questions were considered, and there decided, that a party can not qühsli his own execution if it be regular. The judgment quashing the execution must be reversed with costs.\nJudgment reversed."
                        }
                    ],
                    "head_matter": "James Taylor, Plaintiff in Error, v. J. D. Winters, Defendant in Error.\nERROR TO JACKSON.\nA party can not, on motion, qnash Ms own execution if it be regular.\nAn execution indorsed that “ state paper ” would be received in discharge of it, can not on motion of the plaintiff, be quashed so as to enable Mm to take out another execution without such indorsement.",
                    "parties": [
                        "James Taylor, Plaintiff in Error, v. J. D. Winters, Defendant in Error."
                    ]
                }
            }
        },
        {
            "id": 435642,
            "url": "https://api.case.law/v1/cases/435642/",
            "name": "James Nowlin, Plaintiff in Error, v. John Bloom, Defendant in Error",
            "name_abbreviation": "Nowlin v. Bloom",
            "decision_date": "1825-12",
            "docket_number": "",
            "first_page": "138",
            "last_page": "138",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 138"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Cowles, for plaintiff in error.",
                        "Blackwell, for defendant in error."
                    ],
                    "opinions": [
                        {
                            "author": "Justice Browne.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice Browne.\nThe plaintiff below, being a witness in an action of forcible entry and detainer, between one John Goodlier and the said John Bloom which was tried before Edward P. Wilkinson, and James Mitchell, Esq., justices of the peace for St. Clair county, the said John Bloom charged the said James Nowlin with having sworn false on the said trial.\nThe defendant below filed three several pleas to the plaintiff’s declaration: 1. Not guilty: 2. The statute of limitations : 3. Justification. To which pleas, the plaintiff took issue. At the trial, the plaintiff below offered as evidence a record of peaceable entry and forcible detainer. The record corresponded in every other particular with the one referred .to in the plaintiff’s declaration, which record, the court below decided ought not to have been received in evidence, and set aside the verdict and directed a nonsuit on account of the variance.\nThis record was not the foundation of the action, but was only brought in collaterally to prove another fact, and for that purpose, was sufficiently described in the declaration.\nThe court below, therefore, erred in setting aside the verdict on that ground, because the record was properly before the jury-\nFor which reason, the judgment of the court below is reversed and sent back to render judgment on the verdict.\n(a)\n,\n(1)\nJudgment reversed.\n(a) In an action for a libel the plaintiff gave notice of justification with the general issue, stating that he would give in evidence at the trial, a record of the trial before the sessions of the term of June, 1810; the record produced was of June, 1809 ; but the variance was immaterial. Brooks v. Bemis, 8 Johns., 455.\n(1) See note to Taylor et al. v. Kennedy, ante, p. 91."
                        }
                    ],
                    "head_matter": "James Nowlin, Plaintiff in Error, v. John Bloom, Defendant in Error.\nCowles, for plaintiff in error.\nBlackwell, for defendant in error.\nERROR TO ST. CLAIR.\nWhere a record is not the foundation of the action, a variance between the description of it in the narr. ,and the one produced is immaterial, e. g. if the narratio describes it as a record in a case of forcible entry and detainer, and it is a record in a case of peaceable entry, and forcible detainer, the variance is immaterial.",
                    "parties": [
                        "James Nowlin, Plaintiff in Error, v. John Bloom, Defendant in Error."
                    ]
                }
            }
        },
        {
            "id": 435667,
            "url": "https://api.case.law/v1/cases/435667/",
            "name": "Arthur Morgan, Plaintiff in Error, v. John Hays, Defendant in Error",
            "name_abbreviation": "Morgan v. Hays",
            "decision_date": "1825-12",
            "docket_number": "",
            "first_page": "126",
            "last_page": "128",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 126"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [],
                    "opinions": [
                        {
                            "author": "Justice Smith.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice Smith.\nIn this case it is not deemed necessary to decide more thaii one of the points presented for consideration.\nThat one is the decision of the court below in setting aside the final judgment entered in the cause, at a term subsequent to the one at which such judgment was entered, and directing a nonsuit. On the trial of the cause, the plaintiff below, who is plaintiff here, offered to give in evidence a record of a cause determined in one of the circuit courts of this state. This the defendant’s counsel objected to, but the court overruled the objection and permitted the record to be given to the jury as evidence.\nThe jury found a verdict for the plaintiff and a final judgment was entered thereon. The court then continued the cause to the next term, when it set aside the final judgment and directed a judgment of nonsuit to be entered. Two questions arise here for consideration: 1. Had the court the power at a term subsequent to the one at which the judgment was regularly entered, to set it aside ? 2. If so, was a judgment of nonsuit warranted ? That courts have not, as a general proposition the right, at a term subsequent to the one at which judgment is entered, to set it aside, we have no doubt.\nThe power to re-adjudicate causes finally disposed of at one term, where the proceedings are regular, at another and subsequent one, would produce consequences too embarrassing and lead to endless and contradictory decisions. If a judge could review the final opinion given at one term at the next, why may it not be imagined that he might be equally dissatisfied with the second opinion and reverse that, and continue to vacillate as often as the parties might desire to present their case before him. If, on the trial, either party is dissatisfied with the decision of the court, the remedy for a correction is by excepting to this opinion, or by application afterwards for a new trial. Appellate courts are established for the purpose of correcting the errors of inferior tribunals; but if inferior ones possessed the power at all times to review their own decisions, the creation of the appellate jurisdiction was vain and useless. The court was therefore wrong in setting aside the judgment; but as the court, from the confused state of the record, may be supposed to have considered that the case had been reserved for a review at a future term, and as we are by no means satisfied that the plaintiff ought, from the evidence contained in the bill of exceptions, to have recovered, we do not feel disposed to interfere with that part of the decision. On the second point we are clearly of opinion that after the judgment was vacated the court ought to have directed a new trial. On principle and precedent a nonsuit could not be directed.\nThe judgment must therefore be reversed, a new trial granted, with directions to the court below to award a ve,nire de novo, and that the plaintiff in error recover his costs\n(1)\nJudgment reversed.\n(1) Where an attorney enters an appearance of a party without authority, and judgment is rendered against Mm, such judgment will be set aside on motion. Lyon v. Boilvin, 2 Gilm., 635.\nAt the May Term, 1837, a judgment was rendered against Sloo & McClintock, partners, on a power of attorney executed by McClintock alone. At the next term of the court Sloo entered a motion to set aside the judgment as to him. Held by the supreme court that the motion should have been sustained. Sloo v. State Bank, 1 Scam., 429.\nIt was also held in Truett v. Wainwright, that a judgment rendered against a person who has not been served with process, nor authorized his appearance to be entered, may be set aside by a bill in chancery, 'or by a motion in the court where the judgment was rendered. 4 Gilm., 418.\nAfter a term has expired, a court has no discretion or authority at a subsequent term to set aside a judgment, but may amend it in mere matter of form, after notice has been given to the opposite party. Cook v. Wood et al., 24 Ill., 295. This decision I apprehend does not conflict with the decisions cited above. Those cases were set aside for the reason that the parties were not properly in court ; while in the last case the defendants had been duly served with process, but it was vacated by the circuit court on equitable grounds, but which decision was reversed in the supreme court for the reason, among others, that the motion came too late."
                        }
                    ],
                    "head_matter": "Arthur Morgan, Plaintiff in Error, v. John Hays, Defendant in Error.\nERROR TO ST. CLAIR.\nAfter a final judgment is entered, the court has no power at a subsequent term to set it aside and direct a nonsuit to be entered; and if the court had power to set aside the judgment it ought to have directed a new trial and not a nonsuit.",
                    "parties": [
                        "Arthur Morgan, Plaintiff in Error, v. John Hays, Defendant in Error."
                    ]
                }
            }
        },
        {
            "id": 435695,
            "url": "https://api.case.law/v1/cases/435695/",
            "name": "Joseph Cornelius, Appellant, v. Thomas Cohen, Appellee",
            "name_abbreviation": "Cornelius v. Cohen",
            "decision_date": "1825-12",
            "docket_number": "",
            "first_page": "131",
            "last_page": "132",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 131"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [],
                    "opinions": [
                        {
                            "author": "Justice Lockwood.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice Lockwood.\nThis is an action of replevin brought in the circuit court of St. Clair county, for the recovery of Betsey, a negro girl. The facts of the case are, that on the 6th October, 1804, Rachael, a free negro woman aged twenty-three, entered into a writing (purporting to be an indenture) with the plaintiff, by which she binds herself in the common mode of apprenticeship, to serve the plaintiff for fifteen years. In the indenture, the master binds himself to allow the apprentice meat, drink, lodging, and wearing apparel fit for such an apprentice. The indenture is signed and sealed by Rachael only. It was admitted on the trial that Rachael was the mother of Betsy, who was born in the fall of 1805.\nOn the trial of this cause the defendant moved the court to instruct the jury that the plaintiff had no right to the negro girl by virtue of the indenture.\n2. That if the plaintiff had a right to her services by virtue of the indenture that replevin would not lie.\n3. That the indenture was void because it was not executed by plaintiff. These instructions the court refused to give, with the reservation that if the court should, after the trial, be of opinion that they ought to have been given, that a non-suit should be entered.\nThe circuit court subsequent to the trial, decided that the instructions prayed for ought to have been given to the jury, and ordered judgment of nonsuit to be entered, from which decision the plaintiff prayed an appeal.\nFrom the view taken of this case it will only be necessary to examine whether the indenture given in evidence was a valid one. This indenture was executed the sixth of October, 1804, and on the 17th September, 1807, the territory of Indiana passed an “Act concerning the introduction of negroes and mulattoes into this territory.” The first section of this act authorizes the owners or possessors of slaves to bring them into the territory. The second section authorizes the master to go with the slave before the clerk, and agree with the slave for the term of years the slave shall serve, &c., and the clerk shall make a record, &c. The thirteenth section of this act was the only one relied on in the argument as securing the services of Betsey to the plaintiff. That section is as follows:\n“ That children horn in this territory of a parent of color owing service or labor by indenture according to law, shall serve the master or mistress of such parent, the male until the-age of thirty, and the female until the age of twenty-eight years.”\nThe first and second sections of this act are clearly prospective, and can have no application to this case. Whether the legislature, by the thirteenth section, intended by the words “ by indenture according to law,” to provide for the children of slaves bound to serve for a limited period under the second section, it is difficult to determine; but whether such was their intention or not, the result will be the same. If it be admitted that such was the intention, the children of Rachael can not by any construction be embraced by it.. Because Rachael and the plaintiff did not go before the clerk and agree for her services as the act directs, and the indenture admits that she was free before the passage of the act.\nThe claim to the services of Betsey under the thirteenth section is equally inadmissible. The indenture was not executed according to law. The indenture to have been valid, as between Raphael and the plaintiff, ought to have been executed by plaintiff. It is therefore void.\n*\nThe judgment must be affirmed with costs.\nJudgment affirmed,.\n* 16 Johns. Rep., 47."
                        }
                    ],
                    "head_matter": "Joseph Cornelius, Appellant, v. Thomas Cohen, Appellee.\nAPPEAL FROM ST. CLAIR.\nAn indenture by a free negro woman entered into in 1804, and not signed by the master is void. The thirteenth section of the act of 1807 does not embrace cases whore the master and servant did not agree upon the time of service before the clerk.",
                    "parties": [
                        "Joseph Cornelius, Appellant, v. Thomas Cohen, Appellee."
                    ]
                }
            }
        },
        {
            "id": 435704,
            "url": "https://api.case.law/v1/cases/435704/",
            "name": "Nomaque, an Indian, Plaintiff in Error, v. The People, Defendants in Error",
            "name_abbreviation": "Nomaque v. People",
            "decision_date": "1825-12",
            "docket_number": "",
            "first_page": "145",
            "last_page": "150",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 145"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Starr and Blackwell, for plaintiff in error.",
                        "James Twrney, attorney general, for defendants in error."
                    ],
                    "opinions": [
                        {
                            "author": "Justice Smith.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice Smith.\nIt appears from the record that the plaintiff in error was tried at a circuit court at the November term, 1825, in the county of Peoria, on a charge of having murdered a man by the name of Pierre Londri. Prom an inspection of the record, it also appears that the indictment, as set forth, was never found by the grand jury of that county ; no finding of any kind is made on the bill. It farther appears, that on the 15th of October, 1825, being the day of the commencement of the trial, nine of the petit jurors were impanneled and sworn, and permitted to go at large until the next day, when the panel was completed. After the trial had closed, an agreement in the following words was entered into, between the public prosecutor and the prisoner’s counsel, viz.: “ It is agreed by the attorney-general and the counsel for the defendant, that if in case the jury should agree on their verdict between this and to-morrow morning, that they may deliver their verdict to the clerk.” In pursuance of this agreement the clerk, on the morning of the 18th of October, 1825, as the record recites, presented to the court the following verdict, which had been handed him by the jury, viz.:\nState of Illinois, Peoria county circuit court, November term, 1825. We, the traverse jury, in and for the county aforesaid, do find Nomaque, an Indian of the Pottawattomie tribe, guilty of the murder of Pierre Londri, November 17, 1825.\nA motion was thereupon made for a new trial, on the ground of partiality in Dumont, one of the jurors, who, as is established by the oath of two persons, declared before he was sworn on the jury, that Nomaque was a damned rascal, and all those who took his part, and he would give five dollars to H. M. Gurry, to appear and assist to convict Nomaque of the crime charged, and pay it in surveying, or -hunting land.\nThe court below refused to grant a new trial, and an exception was taken to that decision. There are other objections which were made on the trial of the cause, but as they are not deemed important, we pass them by. No exception is taken in this court to the manner in which the proceedings come before the court, nor do we mean to say that any valid one could have been stated or urged.\nProm the preceding statement, which embraces, substantially, all the facts of importance in the case, the points which present themselves for consideration are, first, whether the prisoner could have been legally tried at all in the court below, it not appearing that there had been a finding of the grand jury, on the paper purporting to be an indictment; and whether he can now avail himself of the objection in this court, the question appearing not to have been made in the court below: Secondly, whether permitting the nine jurors impanneled and sworn, on the first day of the trial, to separate and go at large before the trial, would have formed sufficient cause for the circuit court to have arrested the judgment, or granted a new trial: Thirdly, whether the evidence offered to show that Dumont had, previously to the trial, expressed his belief of the guilt of the prisoner, or of his hatred to him, and was therefore not an impartial juror, was sufficient to establish either point, and authorize a new trial: Fourthly, whether the consent that the jury might deliver their verdict to the clerk, could have - been legally made by the prisoner’s counsel; and whether that agreement dispensed with the personal appearance of the jury, and the rendering of their verdict in open court.\nOn the first point, we are of opinion, that it was necessary, in order to give the court the right to try the prisoner, that the grand jury should have indorsed their finding on the bill of indictment, verified by the signature of their foreman. This was indispensable, and as it appears not to have been done, the proceedings were coram nonjudice. This objection going to the power of the court to try the prisoner on that indictment; may, although not noticed or urged below, be now urged as cause of error,\n(a)\nOn the second point, we give no positive opinion, but it certainly was an act of great indiscretion in the court, to permit the jurors to go at large after they were sworn; because the reason of the rule, in keeping jurors together and apart from every other person, is as applicable, after they are chosen and sworn, and before the trial, as after they are charged with the’prisoner. The object certainly is, to keep them from receiving any other impressions in regard to the prisoner, than those which shall be made by the testimony given on the trial; if suffered to go at large at any time after they are elected to try the prisoner, the object might be wholly defeated.\n(b)\nAs to the third point, it is very apparent that the prisoner has been tried by one who, so far from standing perfectly indifferent between the parties, as the law emphatically requires, was in a condition the very opposite. The state of his mind must have led him to look on the testimony against the prisoner with every view to a conviction, and his feelings, it would seem, could alone have been pacified with the surrender to him, by his fellow jurors,.of his victim. We are therefore constrained to say, that the circuit court ought to have awarded a new trial on the production of the affidavits, as they show sufficient grounds discovered after the trial.\n(c)\n,\n(2)\nThe fourth point is, we think, easily settled. The prisoner, in a capital case, must be considered as standing on all his rights. He can not be considered as waiving any thing, nor could his counsel do it for him. They possessed neither the power nor right, and if ever there was a case in which an observance of the rule should be required, the present is one.\n(3)\nThe case of The People v. McKay, 18 Johns. Rep., 212, is conclusive on this point. The supreme court of New York, in that case say, that a paper purporting to be a venire, but without the seal of the court, is a nullity, and they declared that the prisoner in that case, who had been convicted of murder, and although he had challenged some of the jurors, who had been summoned under the supposed venire, did not thereby waive his right to object to the want of a venire. It is further said in that case, “ that it is a humane principle, applicable to criminal cases, and especially when life is in question, to consider the prisoner as standing on all his rights, and waiving nothing on the score of irregularity ”; and in that very case, the judge who delivered the opinion of the court relates a case analogous to the present. In Ontario county, New York, in 1814, a woman of color was indicted, tried, and found guilty of murder. The \"jury had separated after agreeing on a verdict, and before they came into court, and on that ground a new trial was granted, and she was tried again. On the present occasion, this precise point is not necessary to be decided. The agreement extends no farther than to depositing the verdict with the clerk. It did not dispense with the personal appearance of all the jurors in court, and a rendition of the verdict by them. It can only be considered as authorizing the jury to separate when they agreed on their verdict until the next day, for their personal convenience. The prisoner had a right to have the jurors polled: this right could not have been exercised where the presence of the jurors was dispensed with. For a confirmar tion of the soundness of this doctrine, see the case of Blackley v. Sheldon, 7 Johns. Rep., 32, and 6 Johns. Rep., 68. Root v. Sherwood, where it is said, “ a verdict is not valid and final, until pronounced and recorded in open court; and before it is recorded, the jury may vary from their first offering of their verdict, and the verdict which is recorded, shall stand; and if the parties agree that a jury may deliver a sealed verdict, it does not take away the right of either to a public verdict.” If this be law, in a civil case, is it not important, under our system of jurisprudence, that it should be adhered to in a criminal case affecting life ? In the present case, the verdict was not even sealed; it was liable to alteration, and besides, the court had no legal evidence that it was the verdict of the jury.\n(4)\nWhile on this part of the case the court feel it their indispensable duty to reprobate the tolerance of a practice which might lead to the most dangerous consequences, in a case affecting the life of an individual, and to express their disapprobation of it, in the present instance.\nThe judgment of the circuit court of Peoria must be reversed, and a supersedeas awarded; and as a flagrant crime has no doubt been committed, and possibly by the prisoner, and in order that public justice may not be evaded, the court make this additional order, that the prisoner remain in custody for thirty days from this day (21st December instant) in order to enable the local authorities to take measures to bring him again to trial.\nJudgment reversed.\n(a) In strict legal parlance an indictment is not so called, until it has been found “ a true bill ” by the grand jury; before that, it is named a bill, merely. Arch. Crim. Pl., 33.\n(b) If a jury separate, after a case is committed to them, and before they have agreed upon their verdict, and afterwards return a verdict, a now trial will be granted. Lester v. Stanley, 3 Day, 287. Howard v. Cobb, ibid., 309. 4 Johns., 293.\n(c) When one of the jurors, in a trial for treason, had previously made declarations, as well in relation to the prisoner personally, as to the general question of the insurrection, manifesting a bias or predetermination, a new trial will be awarded. United States v. Fries, 3 Dall., 515.\n(2) As to the misconduct of jurors, or disqualifications, see Sawyer v. Stevenson, ante., p. 24. Sellers v. The People, 3 Scam., 413. Vennum v. Harwood, 1 Gilm., 659. Guykowski v. The People, 1 Scam., 480. Greenup v. Stoker, 3 Gilm., 222.\nIf the parties choose to have their cause tried by a prejudiced juror, it is not for the court to refuse them that right. Van Blaricum v. The People, 16 Ill., 364.\nIf an officer having charge of a jury permits any member of it to drink spirituous liquors after he is sworn, (but before the case is submitted,) he may be punished for it, but the verdict will not be vitiated. Davis v. The People, 19 Ill., 74.\n(3) In the case of The People v. Scates, 3 Scam., 351, in speaking of the case of Nomaque v. The People, the court said: “ This case means nothing more than this—that a prisoner, in a capital case, is not to be presumed to waive any of his rights; but that he may, by his express consent, admit them all away, can he neither doubted nor denied. He may certainly plead guilty, and thus deprive himself of one of the most valuable rights secured to the citizen—that of a trial by jury.”\n(4) At common law, in all capital cases, the verdict must bo received in open court, and in the presence of the prisoner. In misdemeanors, it may be received in his absence. Holliday v. The People, 4 Gilm., 114.\nThe prisoner should bo personally present when the sentence is pronounced, ip. cases where corporeal punishment is a part of the sentence. Perry v. The People, 14 Ill., 500."
                        }
                    ],
                    "head_matter": "Nomaque, an Indian, Plaintiff in Error, v. The People, Defendants in Error.\nStarr and Blackwell, for plaintiff in error.\nJames Twrney, attorney general, for defendants in error.\nERROR TO PEORIA.\nIt is necessary, in order to give the court the right to try a prisoner, “that the bill of indictment found by the grand jury, should be indorsed “ a true bill,” and signed by the foreman; an indictment without such indorsement is a nullity.\n(1)\nIt is an act of great indiscretion in a court to permit the jurors to go at large after they are sworn, as well before the trial, as after.\nOn the production of affidavits going to prove that one of the jurors had made up his mind against the prisoner, though he swore that he had not formed an opinion, if the fact is discovered after the trial, a new trial ought to be granted.\nA prisoner in a capital case is considered as standing on all his rights, and waiving nothing'on the score of irregularity; an agreement therefore between his counsel and the counsel for the people that the jury, if they agree, may deliver their verdict to the clerk, is irregular, and a verdict delivered in court under such an agreement, in the absence of the jury, ought to be set aside for such irregularity.\nA prisoner has a right to the presence of the jury when they deliver the verdict, as he is entitled to have them polled, and a verdict is not final, until pronounced and recorded in open court.\n(1) Although this decision has been generally followed on the circuits of this state, and seems in one case to be approved by the supreme court, yeti am unable to see any good reason for it, and believe the current of modern authorities in other states is against it. The statute of this state on this subject is as follows :— “After the grand jury is impanneled, it shall be the duty of the court to appoint a foreman, who shall have power to swear or affirm witnesses to testify before them; and whoso duty it shall be, when the grand jury, or any twelve of them, find a bill of indictment to be supported by good and sufficient evidence, to indorse thereon ‘ a true bill;’ and when they do not find a bill to be supported by sufficient evidence, to indorse thereon ‘ not a true bill;’ and shall, in either case, sign his name as foreman, at the foot of said indorsement.” Purple’s statutes, p. 654, See. 3. Scate’s Comp., 681. The English law is nearly the same. 4 Black. Com., 305-6. The origin of this requirement is found in the practice in England of first preparing all bills that are submitted to the grand jury, they acting on no other offenses than those for which bills are so prepared; and such as they find to be true bills, they so indorse; but such as were not so found, were indorsed “ ignoramus,” or “ not found.” And while such practice existed, there was an evident propriety in so indorsing them. With us, although the letter of the statute would seem to require that bills of indictment should first be prepared and submitted to the grand jury before they act on the offense charged, the practice has always been not to draw the bill until the jury hear the evidence and agree to ijnd an indictment; the prosecuting attorney is then instructed to prepare it, and it is by them then returned into court in open court. The only object sought to be attained by indorsing an indictment “ a true bill,” was to distinguish it from such as were “ not found” by the jury; and if the reason for this practice has ceased, why continue it 7 It is a maxim that when the reason of alaw ceases, the law itself also ceases. Broom’s legalmaxims, 118. Until a bill is returned into court in open court, by the grand jury, and is received bythe court as such, it is not an indictment, although every juror may have voted for it, and it is indorsed by the foreman “a true bill;” and unless the records of the court show that it was so received by the court in open court, it will be void. Gardner et al. v. The People, 3 Scam., 84. McKinney v. Same, 2 Gilm., 540. Rainey et al v. Same, 3 Gilm., 71. Gardner v. The People, 20 Ill., 430. Our legislature have endeavored to do away with technical objections. “Every indictment or accusation of the grand jury, shall be deemed sufficiently technical and correct, which states the offense in the terms and language of this code, or so plainly that the nature of the offense may be easily understood by the jury.” Purple’s statutes, p. 398, Sec. 208. Scates' Comp., 403. And again: “ All exceptions which go merely to the form of an indictment, shall be made before trial, and no motion in arrest of judgment, or writ of error, shall be sustained, for any matter not affecting the real merits of the offense charged in such indictment.” Purple’s statutes, p. 398, Sec. 209. Scates’ Com. p. 403, Sec. 163. But we are not without authorities on this question. In the case of Gardner et al. v. The People, 3 Scam., 84, the record of the indictment contained an indorsement “a true bill,” but it did not appear to have been signed by the foreman. The opinion of the court was delivered by Judge Douglas, who said: “All that is necessary to appear on the record is, that the grand jury returned the indictment, in open court “a true bill.” The indictment, in this case, having been received by the circuit court, and entered of record as a true bill, and neitherthe prisoner nor his counsel making any objection at that or any other time during the progress of the trial, we feel constrained, in the absence of all evidence to the contrary, to give full faith and credit to tire record.” In the case of The State v. Freeman, 13 N. H. Rep., 488, after a full investigation of all the authorities, the court held such indorsement was not indispensable. In the case of The State v. Davidson, 12 Vermont Rep., 300, an indorsement “True bill” was held to be a compliance with the statute which required it to be indorsed “A true bill.” In a late case, Commonwealth v. Smyth, 11 Cushing’s Rep., 473, the court, in a very able opinion, came to the same conclusion. They said: “ These words obviously constitute no part of the description of the offense charged in the indictment. They are not indispensable to the due and legal authentication of the action of the grand jury. Their absence can subject the accused to no inconvenience 'or disadvantage. The reason upon which they are elsewhere held to be essential, does not exist in our practice; and therefore this omission in an indictment is simply the omission of a form, which, if oftentimes found convenient and useful, is in reality immaterial and unimportant.”\nIf I am right in the assumption that the reason for this rule has long since ceased to exist—if a change in the practice has superseded the necessity or propriety of the requirement in question, unless the provision of the statute is imperative, I can see no propriety in adhering to it. If an indictment has been fairly and legally found, if the offense is charged in the manner required by the laws, if the court has received it from the grand jury as a true bill, and so entered it on its records, the omission of a useless form, the reason for which has, long since, become obsolete, ought not to intervene to prevent a fair and impartial trial on the merits.\nAn indictment was indorsed “A true bill, George S. Rice, Foreman,” while the records showed that another person was appointed foreman of the grand jury. In the absence of anything on the record to negative the supposition, this court will intend that the first foreman was discharged, and another appointed in his place. Mohler v. The People, 24 Ill., 26.",
                    "parties": [
                        "Nomaque, an Indian, Plaintiff in Error, v. The People, Defendants in Error."
                    ]
                }
            }
        },
        {
            "id": 435723,
            "url": "https://api.case.law/v1/cases/435723/",
            "name": "The People, on the relation of Wm L. D. Ewing, v. George Forquer, Secretary of State",
            "name_abbreviation": "People ex rel. Ewing v. Forquer",
            "decision_date": "1825-12",
            "docket_number": "",
            "first_page": "104",
            "last_page": "122",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 104"
                }
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                "volume_number": "1"
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                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
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                "data": {
                    "judges": [],
                    "attorneys": [
                        "Hopkins, T. Reynolds, Blackwell and Eddy, for relator.",
                        "Forquer, for secretary of state."
                    ],
                    "opinions": [
                        {
                            "author": "Justice Lockwood.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice Lockwood.\nA rule was granted by this court requiring the secretary of state to show cause why a mandamus should not be awarded against him, requiring him to countersign and seal a commission appointing Wm. L. D. Ewing, paymaster-general of this state. This rule was granted on an affidavit made by Adolphus F. Hubbard, which affidavit states in substance that said Hubbard received a letter from Edward Coles, then, being governor of this state, that he intended to be absent from the state for a period of time, and that in consequence of «such absence, the duties of governor would devolve on the said Hubbard, he being the lieutenant governor of the state. The affidavit further states, that Coles absented himself from the state, and that he, the lieutenant governor, entered on the duties of governor. The affidavit further says, that on the second of November, 1825, he, the said Hubbard, did appoint the said Ewing paymaster general, said office being then vacant, by filling up and subscribing his name to a commision for that purpose. That on the said second November, said Hubbard still being the acting governor, did in the office of secretary of state, present to the said Forquer, he being secretary of state, said commission, and requested Mm to countersign and affix the seal of state to the same, which the said secretary of state failed and refused to do. The letter referred to in the affidavit, and a commission appointing said Ewing paymaster-general until the end of the next session of the general assembly, were annexed to the affidavit. To the rule granted as above-mentioned, the secretary showed for cause why a mandamus ought not to be awarded against him, the following reasons, to wit: because Edward Coles was, on the day of presenting of said commission, and had been from the 31st of October, 1825, and has ever since remained in the administration of the office of governor of the state of Illinois. He states as a further reason why the mandamus should not be awarded, “ that it does not appear from the records of his office, that said office of paymaster had ever been filled by any previous appointment.” The secretary then admits that the lieutenant governor entered on the discharge of the duties of the office of governor, and continued in the discharge thereof, until the 31st of October, 1825, on which day he alleges, “ that said Edward Coles reentered upon the discharge of the duties of said office of governor, and has remained therein ever since.” Upon the affidavit and accompanying documents, and the reasons, in writing as above given by the secretary of state, it has been contended by the counsel for the relator, that a mandamus ought to be granted. The facts stated by the secretary of state were not disputed but conceded to be true.\nThe questions supposed to grow out of this application have been elaborately argued, and the discussion has occupied several days, yet it is expected that this court will, in less time than was employed in the argument of the case, make up and deliver an opinion, which in its consequences may determine the question, whether Edward Coles or A. F. Hubbard is, according to the constitution, the governor of this state. A question of such immense importance, whether we regard the interest and dignity of the persons interested in the result, or the right of the people to have the government administered by the person to whom they have delegated so important a trust, would seem to require that the court ought to have more time for deliberation and examination, than the remainder of the present term. As, however, a decision has been anxiously pressed upon the court, they have determined to give to the subject all the investigation which the shortness of the time, and the almost total absence of law books and other sources of information, will permit. If the court, laboring under such great disadvantages, together with the unprecedented nature and novelty of the case, should err in the conclusions to which they shall arrive, they have no doubt that the error will meet, in the bosoms of the intelligent and the honest, with a ready and satisfactory apology. In the great case of Marbury and Madison, secretary of state for the United States, in the supreme court of the United States, (a tribunal filled with as enlightened and as able jurists as ever graced the judgment-seat in this or any other nation,) the questions which, in some respects, are similar to those in this case, were pending before that court for two years. Yet the opinion delivered in that case, although conspicuous for its luminous displays of deep research and constitutional learning, has not given universal satisfaction. Can it then be reasonably expected, that this court, without any pretension to the great and distinguished talents of the judges of that court, and destitute of even the ordinary means of forming an opinion, will be able to arrive at a determination that will be universally satisfactory ? But to come to the case before the court. It was contended on the argument, that governor Coles, by absenting himself from this state, had abdicated and forfeited the office of governor, and could not, on his return into the state, resume its functions. But before the court can enter into this question, it will be necessary for-them to inquire, 1. Whether the relator has a right to have the commission countersigned and sealed ? And, 2. If he has such right, do the laws of this state afford him the remedy he asks ? It appears from the answer filed by the secretary of state, that the office of paymaster-general had never been filled. This office was created by the fourth section nf the act passed 8th February, 1821, amending the militia act. A question of much importance here arises, whether the incumbent in the office of governor can make an appointment in the recess of the general assembly, when the vacancy did not occur since the adjournment of that body ? The answer to this question is only to be found in the true construction of the 8tli section of the 4tli article of our constitution, which reads as follows : “ When any officer, the right of whose appointment is, by this constitution, vested in the general assembly, or in the governor and senate, shall, during the recess, die, or his office by any means become vacant, the governor shall have power to fill such vacancy, by granting a commission which shall expire at the end of the next session of the general assembly.” If any doubt existed as to the meaning of this section, reference might be had to the practice of the government, had such practice been acquiesced in. Only one case, however, is within the knowledge of the court, and in that case, the governor determined that he had not the power to make the appointment, although it was a case that loudly called for its exercise, if. the power existed. This solitary precedent, however, can not be considered as settling the question. The words, however, of this section, appear so clear, and so devoid of ambiguity, that it seems a useless waste of time to look further than to the clause itself, for its true meaning. It only authorizes the governor to fill the vacancy when it shall occur during the recess of the general assembly, whether that vacancy be occasioned by death, or any other means. The vacancy must happen during the recess. Can it then for a moment be pretended, that the contingency had happened, which authorized the appointment of the relator ? It appears to me, that it would require a total perversion of the language used, to contend that it had. But as this question is one of vital importance to the correct and wholesome administration of this government, I liav.e examined the constitution of the United States, and the construction that has prevailed on this subject. By the 2d section of the second article, “The president shall have power to fill up all vacancies that may happen during the recess of the senate, by granting commissions, which shall expire at the end of their next session.” In an able work recently published on constitutional law, I find the construction that has been given to this clause of the constitution of the United States, which so strikingly resembles our own, and I trust I shall be excused for malting a long-extract from the work. In pages 373-4, of Sergeant’s Constitutional Law, the subject is noticed as follows:\n“In the year 1814,president Madison granted commissions to ministers to negotiate a treaty of Ghent, in the recess of the senate. The principle acted on in this case, however, was not acquiesced in, but protested against, by the senate at their succeeding session. And on a subsequent occasion, April 20, 1822, during the pendency of the bill for an appropriation to defray the expenses of missions to the South American States, it seemed distinctly understood to be the sense of the senate, that it is only in offices that become vacant during the recess, that the president is authorized to exercise the right of appointing to office, and-that in original vacancies, where there has not been an incumbent of the office, such a power, under the constitution, does not attach to the executive. An amendment that had been proposed, providing that the president should not appoint any minister to the South American States, but with the advice and consent of the senate, was therefore withdrawn as unnecessary. And in a report of a committee of the senate, made on the 25th April, 1822, it is declared, that the words £ all vacancies that may happen during the recess of the senate,’ mean vacancies occurring from death, resignation, promotion, or removal. The word £ happen ’ has reference to some casualty not provided for by law. If the senate be in session when offices are created by law, which were not before filled, and nominations be not then made to them by the president, the president can not appoint after the adjournment of the senate, because, in such case, the vacancy does not happen during the recess. In many instances where offices are created by law, special power is given to the president to fill them in the recess of the senate. And in no instance has the president filled such vacancies without special authority by law.”\nHere, then, we find a practical exposition of the constitution of the United States, adhered to for a series of years, and the concluding fact stated in the extract, speaks much on this subject. There can be but little doubt, that since the organization of the general government, many cases must have arisen where the public interests would have been promoted by the exercise of this power; yet the president has carefully abstained from stretching his authority, even for useful purposes, to cases not authorized by the constitution. In the appointment of the relator, it can not even be pretended, that any state necessity existed for filling the vacancy. The office had been vacant since 1821, and yet, I am not aware that any complaint had ever been made. I therefore come to the conclusion, that the lieutenant-governor, admitting him fully clothed with all the functions of governor, had not the constitutional power to fill the vacancy in the office of paymaster-general. This conclusion would seem to settle the question whether the mandamus ought to be awarded or not. But the counsel for the relator contended on the argument, that whether the lieutenant-governoyhad the constitutional right or not, to make the appointment, still the secretary was compelled to countersign the commission and affix the seal. Can this proposition be sustained V By the 4th section of the act defining the duties of secretary of state, it is enacted, “That all commissions required by law to be issued by the governor, shall be countersigned by the secretary of state.” In this section, is to be found the duties of the secretary. Had the legislature intended to require the secretary to countersign every commission that the governor should present to him, whether authorized by the law, or the constitution, its phraseology would have been, that the secretary should countersign every commission presented to him by the governor. The secretary is, however, only required to countersign those commissions “ required to be issued by law.” Must he not, then, look into the law to see if the commission is required by law ? Would he be required to sign a commission for an office that does not exist ?\nThe secretary of state is a constitutional officer as well as the governor, and his duties are pointed out by law. I think he may refuse to sanction an unconstitutional or illegal act. Should I, however, be wrong in this opinion, still the court might well doubt the propriety of granting a mandamus. If the lieutenant governor had not the power to make the appointment, what benefit would the remor derive from possessing the commission, although duly signed and sealed ? Would it confer the office on him ? I think not. But if any doubt rests on this subject, the court ought not to grant the mandamus. I refer to the following authorities on the subject. “ The court will not grant a mandamus to a person to do any act whatever where it is doubtful whether he has by law a right to do such act or not, for such would be to render the process of the court nugatory, as if the person had no rights he might so return it.” Esp. N. P., page 665. “ The court will not grant a madamus to a person commanding him to do any thing which he is not under a legal necessity of doing ; that is, if the law has left a discretion in him the court will not control it.” Ibid., 668.\nBut another and still more important question arises, from the reasons shown by the secretary, why the mandamus should not be granted. He informs the court that on the day of presenting the commission, and before and ever since, Edward Coles is, and has been in the administration of the office of governor of this state, and contends that he has no right to recognize any other person as governor. On the other hand, the counsel for the relator contended that Edward Coles having absented himself from the state had no right to resume the functions of the office, and that he was to be regarded as an usurper.\nHere then is distinctly presented to the court the question whether Edward Coles or A. E. Hubbard has the right to administer the government.\nIt was conceded on the argument, and such no doubt would be the effect, if the mandamus should be granted, that Coles would be completely stripped of the executive functions. For if a mandamus can be awarded in this case, it could to every officer of the government who should refuse to recognize Hubbard as governor ; and Coles, without being before the court, or entitled to be heard on the subject, would be deposed from the highest station in the government; a station, too, conferred on him by the suffrages of the people. Does not the mere statement of the consequences that will flow from such a decision, imperiously call on- the mind, to reflect, to ponder well the subject before so great and decisive a measure is resorted to ? Nay, does not the bare statement of the consequences that will result to a person not before the court, admonish them that they have no power to award the mandamus ? It was urged by the counsel for the relator, that the secretary liad boldly marched up to the real question, to wit: who is the governor by the constitution ? and it was intimated that it was also the du1^ of the court to decide this question. It is a sufficient answer to this intimation that the secretary can not, by his own act, bring into discussion the rights of others, unless they necessarily arise in the case. His consent can not give this court any right to decide questions not properly before them. When such a question comes directly and properly before them, it is to be presumed they will not shrink from the performance of their duty, let the consequences be what they may. But does the question, who is the constitutional governor, necessarily arise ? It is a principle of common justice, common law and common sense, that no person shall be condemned without being heard. That no person can be deprived by courts of justice of even a dollar’s worth of property without first having been summoned to show cause against it. It must be kept in mind that when this court is called upon to decide who is governor, that the question is no longer between the relator and the secretary of state, but between Hubbard and Coles, neither of whom are strictly parties to this controversy; consequently, neither of them ought to be affected by the decision of this case. In this point of view, the remedy sought in this case is entirely misconceived. Hubbard should have filed an information in nature of a quo warranto against Coles, then the question would come up directly and not collaterally before the court, and the controversy might be tried by a jury, should there be an issue of fact. Whether an information in nature of a quo warranto, would lie, to try such a question, the court aré not now called upon to decide. One of the counsel for the relator, very emphatically called this a political question. If the counsel was right, the legislature would seem to be the proper forum for its discussion. But when the question arises in this court it will be time enough to decide it. “ Sufficient unto the day is the evil thereof.” I am however of opinion, if Hubbard has any legal remedy to try his right to fill the executive chair, that it is only by an information in the nature of a quo warranto. On this subject the court are, fortunately, not entirely without the aid of authority. In the case of The People v. The Mayor, Aldermen, &c., of the city of New York, 3 Johns. Cas., 79, the court says : “ Where the office is already filled by a person who has been admitted and sworn, and is in by color of right, a mandamus is never issued to admit another person, because the corporation, being a third party, may admit or not at pleasure, and the right of the party in office may he injured without his having an opportunity to make a defense. The proper remedy in the first instance is by an information in the nature of a quo warranto, by which the rights of the parties may be tried.”\nIn the above case the relators swore that they had been duly elected to the offices to which they asked to be admitted. But it appeared from the case that other persons were executing the duties. This case, it is conceived, is directly applicable, and points out the remedy that ought to have been pursued by Hubbard. Again, in the case of Rex v. Bankes, 3 Burr., 1412, which was an application for a mandamus, the court of king’s bench held “ That the mayor de facto must be made a party to the rule to show cause.” In 4 Bac. Ab., 515, title mandamus (E) the law is thus laid down: “But though the court of king’s bench be entrusted with this jurisdiction of issuing out mandamuses, yet they are not obliged to do so in all cases wherein it may seem proper, but herein may exercise a discretionary power, as well in refusing as granting such writ, as where the end of it is merely a private right, where the granting it would be attended with manifest hardships and difficulties,” &c. Is it not apparent that manifest hardship and difficulty would ensue, if this writ should be granted ? Would it not have the effect to depose and eject from the office of governor, a person who now fills it, and to which he had been duly elected by the people, and regularly qualified and inducted into office ? And without his having had an opportunity to show cause why so great a degradation should be meted out to him ? and would not a great constitutional question be decided, although brought before the court collaterally, and without all the light that might be shed on the subject ? and would not a great principle of natural justice be violated ? Iam clearly of opinion that the mandamus ought not to be awarded.\nSeparate opinion of Justice Smith. The affidavit of Adolphus P. Hubbard, on which this application is based, sets forth, that Edward Coles, on the 18th day of July, 1825, being then governor of the state of Illinois, absented himself from the said state, having first signified his intention so to do, by a letter bearing date the 22d June, 1825, and which letter is in the words following:\nSir :—You will recollect that I made known to you last winter, and again repeated the subject, when I saw you in May, that I should have occasion to go to the Eastward about the middle of July. The object of this letter is to notify you that after the 18th of July, 1 shall be absent, and that the duties of the executive will devolve, in pursuance of the constitution, on you, as the lieutenant governor of the state, du/ring my absence, which I expect will not be longer than about three months. I am, very respectfully,\nEdward Coles.\nA. P. Hubbard, Esq. lieutenant governor ) of the state of Illinois, Shawneetown.” j\nThe affidavit further recites, that in consequence of the absence from the state, of said Coles, and by virtue of the 18tli section of the third article of the constitution of the state of Illinois, the duties of the office of governor of said state, did devolve upon the deponent, he then being the lieutenant governor of said state, and that therefore, he did enter upon and assume the administration of the government of said state, and did do and perform all the duties and requisitions of the said office of governor; and that on the 2d day of November, next after the said 18th of July, 1825, the deponent, still being and continuing the acting governor of said state, and in the performance and discharge of the duties thereof. And further, that the office of paymaster-general of the militia of said state being then vacant, did appoint William L. D. Ewing to the said office of paymaster-general ; and did fill up and subscribe with his own proper hand, a commission of that date, as an evidence of said appointment to the said office, and to complete the said appointment on the 2d November, 1825, the deponent still being the acting governor of said state and in the discharge of the duties thereof, did, in the office of secretary of said state, present to George Forquer, Esq., then and there being such secretary, and the keeper of the seal of said state, the said commission, and requested him to affix the seal thereto, and countersign the same, as such secretary; and that the said secretary did then, and still refuses to do said acts; upon this* deposition,-with the letter and paper purporting to be the commission, and an affidavit of the' service of a notice of the intended application for a rule to show cause, being filed, a rule was granted, requiring the said Forquer to show cause why a mandamus should not issue against him, and for cause he returns the following, as facts: 1. The commission was signed by A. F. Hubbard, as acting governor, on or about the 5th of November, 1825, and on the same day presented to him, as secretary of state by said Hubbard, who required him, as such secretary, to countersign and affix the seal of said state, which he refused to do: 2. Because, on the 5th of November, 1825, Edward Coles was then, and had been, from the 31st of October, 1825, and has ever since remained, in the administration of the office of governor of said state of Illinois: 3. That it does not appear from the record of the office of said secretary of state, that the said office of paymaster general has ever been filled by any previous appointment thereto, since the creation of the office: 4. Because, although the said Coles did inform the said Hubbard, that after the 18th day of July, 1825,' he would be absent from the state, and that the duties of the office of governor would devolve upon him, said Hubbard, as the lieutenant governor, until the return of him, the said Coles, to the state, and that, although the said Hubbard did enter upon the duties of said office, and remained in the discharge thereof, until the 31 st day of October, 1825, yet the said Coles did, on the said 31st October, 1825, re-enter upon and discharge the duties appertaining to the office of governor, and has ever since remained therein.”\nIn describing the state of the case, I have adhered almost literally to the language used in the affidavit, and the answer to the rule, to prevent the least possible misconception. On the state of facts here presented, it is urged that it is the duty of this court to award a mandamus, to compel the secretary to affix the seal of the state to the paper purporting to be a commission. Before entering into an examination of the question presented, it may not be improper to remark, that it is closely connected with other questions of no ordinary import, delicate in their nature, and involving in their examination, points of deep and serious consideration. Questions, which, if it becomes the duty of this court to decide, might affect the official acts and conduct of the highest officer known to the constitution of this state. Questions, which, from their very nature, would require a decision on the relative rights subsisting between the people and the executive. Before this court, then, will assume a jurisdiction of such great extent, and reaching to cases of such magnitude, it will look seriously to the source from whence it derives its power, and be satisfied beyond a doubt, that it not only possesses that power, but that it is required, in the present case, for the purposes of justice, and a due administration of the law, to exércise it.\nThe occasion must not be one of an equivocal character ; and the right of the party claiming the interference of this court to restore him to, or yield to him such rights, through the exercise of its powers, must be clear and certain, absolute and positive, perfect and complete; and he must have no other remedy by which he can obtain it. Such are the uniform decisions which have invariably governed courts of justice in granting writs of mcmdamus.\nThe ability with which the case has been argued before the court, the novelty of the questions presented, and the importance attached to them, connected with many difficulties in the points made, require an exposition of the principles which govern my decision in this case.\nThe following questions are then to be considered :\n1. Whether the applicant has a legal right to the office of paymaster-general, and if so, can he require the commission to be countersigned and sealed by the secretary of state ?\n2. If he has a perfect legal right, and that right has been violated, do our laws afford him a remedy by mcmdamus, and is this court bound to award it ? I shall consider the questions in the order they are stated.\n1. Has the applicant a legal right to the office of paymaster general, and if so, is the secretary bound to seal and countersign the commission ?\nThis question involves in its consideration, independent of the latter member of it, two points of importance, “ to wit: ” 1. Was he appointed to the office by a power acting at the time within the legitimate scope of its authority: 2. Has such appointment been made by a power competent to exercise the right of appointment at the time of making it ?\nThe authority under which he claims his right is derived from an act entitled “ An act amending an act entitled an act organizing the militia of this state,” approved February 8th, 1821. The fourth section of this act declares “ that there shall be an adjutant-general, a quarter-master general, and a paymaster-general, to be appointed by the commander-in-chief.” It appears from the affidavit, as will be seen in the case as stated, that Adolphus F. Hubbard, on the second day of November, 1825, claiming to have been in the due and legal exercise of the office of governor, did appoint the said Ewing to the said office, and make out a commission, and require the secretary to countersign and seal it, which he refused to do. This leads to the inquiry propounded by the first question, viz: “ Was he appointed to the office by a power acting at the time within the legitimate scope of its authority ? ”\nThe twenty-second section of the third article of the constitution declares that “ the governor shall nominate, and by and with the advice and consent of the senate, appoint all officers whose offices are established by this constitution, or shall be established by law, and whose appointments are not herein otherwise provided for.” Has this appointment been made agreeably to the provision of the constitution ? If it has not, the office being one established by law, unless it can be shown to have been made under some other provision of the constitution justifying it, was altogether unauthorized, and consequently the applicant would have no legal right to the commission. It is however urged that the appointment is fully justified under the eighth section of the third article of the constitution, which is as follows : “ When any officer, the right of whose appointment is by this constitution, vested in the general assembly, or in the governor and senate shall, during the recess, die, or his office by any means become vacant, the governor shall have power to fill such vacancy by granting a commission which shall expire at the end of the next session of the general assembly.” Under this section it is contended the appointment was made, and was authorized.\nTo have authorized the appointment under this section of the constitution, it seems to me to be very clear that one of the contingencies named in the section must have happened after the office had been filled. There must be a vacancy created by the death of the incumbent, or his office must have become vacant by other means.\nThe word “ vacancy ” is here used as contradistinguished from <<s filled” or “ occupied.” It does not imply, as it is here used, an original vacancy. But it must be considered that it is alone, the office of some person who has already filled the office and shall die, or whose office shall by other means become vacant which is to be filled during the recess. If we ask the question, what office is here said shall be filled ? is it not plain that the answer must be, it is the office of him who, during the recess of the legislature shall die, or by any other means become vacant, if the right to such appointment is by the constitution vested in the general assembly, or in the governor and senate. Can the right then to fill an office where there never wus an incumbent, attach ? Surely not. There has, however, been decisions on a similar provision of the constitution of the United States, which is by no means as plain and explicit as ours, and we are not left to ingenious speculations, and to abstruse philological discriminations. We have practical illustrations of the rule, and the evident justice and propriety of it is, I think, not now to be questioned.\nThe third member of the second section of the second article of the constitution of the United States declares that “ the president shall have power to fill up ail vacancies that may happen during the recess of the senate, by granting commissions which shall expire at the end of their next session.” Under this article the president commissioned ministers to negotiate the treaty of Ghent during the recess of the senate. The senate, however, so far from acquiescing in the' correctness of the principle, protested against it at their succeeding session. The sense of the senate was again expressed to the same effect on the 20th of April, 1822, when a bill was before that body making an appropriation to defray the expense of missions to the South American States; and it was then distinctly understood to be their opinion that it is only in offices which become vacant during the recess, that the president is authorized to exercise the right of appointing to office, and that in original vacancies where there has not been an incumbent of the office, such power does not attach to the executive ; and on that occasion an amendment which had been proposed, providing that the president should not appoint any minister to the South American states, but with the advice and consent of the senate, was therefore withdrawn as unnecessary. Again, in a report of a committee of the senate of the 25th of the same month, 1822, it was distinctly declared that the words “ all vacancies that may happen during the recess of the senate,” mean vacancies occasioned from deaths, resignations, promotion or removal.” It was asserted that if the senate were in session when offices are created by law which were not before filled, and nominations be not then made to them by the president, the president could not appoint after the adjournment of the senate, because such vacancy does not happen during the recess. The report may be found in Niles’ Register, 29th August, 1822.\nCan there then be a doubt that the executive has neither the power nor right to make a recess appointment where the vacancy is an original one ? Or rather, where there has never been an incumbent of the office; and would it not be an assumption of power not delegated by the constitution nor. warranted by law ?\nIf this be true, then, whatever may be the fact as it regards the person making the appointment, the applicant in the present case has not shown a clear legal right to the office. But it is said that this court has no power to inquire whether the appointing officer had the right or not, nor whether he kept within the pale of the constitution when he did the act. That having determined it to be an appointment which he might make, this court is precluded from looking to the exercise of the power undpr which it is done, and must consider it as legally and constitutionally done. Cases which it is said are analogous, have been put and relied on with apparent earnestness and confidence. I think that in those cases a distinction, which is an apparent and important one, was not noticed. The distinction is between the power given to do an act within the judgment and discretion of the person to whom the power is absolutely confined, and the limitation of the power to do it in a particular manner, and at a particular time. The question in the case before the court is, not whether the officer has discreetly exercised his appointing power, but whether he possessed such a power, or rather, whether there was not a total absence of such a power, it never having been conferred on him by the constitution.\nThe question may be readily solved, if it be borne in mind that unless there was a vacancy created by one of the contingencies named in the eighth section of the third article of the' constitution, the executive of this state, be he whom he may, had no power to make the appointment. That it was not such a case, has been, I think, already satisfactorily shown. But can it, with a shadow of reason, be said that this court shall not bo permitted to judge, whether the person making the appointment, had a constitutional or legal right so to do, when it is called upon to cause by its mandate, an act to be done which it is declared is necessary to give effect and validity to the act of that very person; or is it to be the humble and blind instrument by which error is to be sanctified, and meekly lend its authority to prostrate that instrument which it is bound by the most solemn obligation which can bind man to man and his Creator, to support and preserve.\nAs to the remaining branch of the question, if the appointment was void, because not constitutionally made, whatever might have been the secretary’s duties, he can not be called on now to affix the seal of state to a void commission, which disposes of that part of the question proposed. The second point under the first division of the question, is now to be considered.\nHas such appointment been made by a power competent to exercise the right of appointment, at the time of making it ? In the examination which might be given to it, the construction of the eighteenth section of the third article of the constitution of this state, is to be considered.\nThat declares, that “ In case of an impeachment of the governor, his removal from office, death, refusal to qualify, resignation or absence from the state, the lieutenant governor shall exercise all the power and authority appertaining to the office of governor, until the time pointed out by this constitution for the election of governor shall arrive, unless the general assembly shall provide by law for the election of a governor to fill such vacancy.”\nOn the argument, the question, so far as it regarded the construction of this section of the constitution, was declared to be a political one, and it was said that it was really a question between the people, and one who having laid down his office, could not, under the constitution, reenter upon it. If this be the true state of that part of the case, and it be in fact, purely a political question between the people and their executive, this court, I am constrained to say, can not interfere and decide it. This court was not created for such a purpose, nor can its jurisdiction ever be properly extended to it. I know of no principles nor precedent which could justify this court in settling such a controversy. Its jurisdiction is confined to judicial questions arising under the laws and constitution of this state.\nBut whether this be a political question or not, it will not be necessary now to decide. If the appointment was not made conformably to the provisions of the constitution, (and I am clearly of opinion that it was not,) or, it should appear that a question of magnitude, and one directly affecting the rights of third persons who are not made parties to the proceedings, are in a collateral way to be decided, this court will not give a decision, which in its result is to produce such consequences. The question to be decided under this view of the second point considered, if it were decided, is no less an one than this, whether the executive of this state, did, on or after the 18th of July, 1825, absent himself from the state, and whether lie has by any act of his, declared that absence to be of such a character, that the duties of the executive did constitutionally devolve upon the lieutenant governor, and whether, in pursuance thereof, the lieutenant governor did enter upon such duties, and having so entered, for what period of time, he shall, under the constitution, remain in the exercise thereof.\nIf I felt it to be the duty of this court, in the present case, to decide a question of so much moment, and it was placed before the court in an attitude unsurrounded by the embarrassments, which at present seem to cover it, I should as a member thereof, feel no great hesitation in arriving at what I should deem a correct conclusion ; and no consideration of consequences which might result from such a decision, if it were correct, would impede me for a moment from pronouncing what I really believe to be the right and the law which governed the case. The considerations as to its results, would not weigh with mo, and however unfortunate it might be, that an occasion had arisen in which a question of so much moment had to be decided, affecting the right of individuals claiming to exercise the highest office in the gift of a free people, and whatever might be its results, as to the one or the other, it could form no just reason for avoiding the responsibility of a decision. But when it is perceived that great and highly important interests of persons who are not parties to the proceedings, would be affected by the decision, and that too where the decision of the real question before the court does not render it necessary, I ought surely to pause before I should give an opinion which might have the least tendency to prejudge the rights of those individuals. If the real question thus asked to be decided, in a collateral manner, did not involve a question of the highest consideration, and which it may be supposed, the people have by their constitution, provided another forum to settle, there might be some reason for pressing on this court a decision on that point. But when it is recollected that these means exist, and that all the parties interested would have an ample opportunity to assert their respective rights, it is thought that a question involving no less a decision, than who is the governor of this state, is one of that character, that this court can hot, (if it ever could,) in the shape in which it is presented, determine.\nLet us examine, however, what are the additional difficulties in this case. The return states two important facts: 1. That Edward Coles did return to this state, on the 31st day of October last, and did thereupon enter upon and discharge the duties of the office of governor of this state: 2. That from that time to the present, he has continued in the discharge of the duties thereof. The commission is dated on the second of November, 1825, when the appointment is said to have been made by the lieutenant governor, and he also swears that at this time he was the acting governor of the state.\nThe return contradicts this fact and states that Coles was then in the exercise of the duties of the office of governor. If this return had been demurred to, or an issue been made upon the affidavit and return, as made, how would the court have proceeded ? There is no statute of this state regulating the mode of proceedings upon a mandamus—what course could then have been pursued ?\nHere is an evident embarrassment of much consideration, and would seem to require legislative interposition, as to the mode of proceeding, such as has been provided in other states.\nThe statutes of Great Britain are thought not to be in force here, respecting such proceedings. If the court had been compelled to decide on all the facts set out in the affidavit, and in the return, to which ought they to give credit ? or which should they reject ? But there are still other difficulties. A decision might affect the acts of the lieutenant governor, while exercising the duties of governor, if he has not exercised the executive duties by virtue of the provisions of the constitution ; and are those acts to be affected, and their validity determined in this collateral way ? This brings me to the consideration of the second point. “ If he ■ has a perfect legal right, and that right has been violated, do our laws afford him a remedy?” If the right had been established as a perfect legal right, and it has been violated, our laws must afford a remedy. But in the case of a mcmdamus, there are cases where this may have been shown, yet the court will not grant the writ. It is certainly a sound legal principle, that cases may arise where the court will not grant a mandamus, when the granting thereof will, in a collateral manner, decide questions of importance between persons who are not parties to the proceedings, and have had no notice and opportunity to interpose their defense; or where it will be attended with manifest hardships and difficulties. And it has been further decided in the court of king’s bench, that courts are not bound to grant writs of mandamus, in all cases where it may seem proper ; but may exercise a discretionary power as well in granting, as refusing, as where the end of it is merely a private right. See Bacon’s abridgement, 515. Courts will not grant a mandamus to a person to do any act, where it is doubtful whether he ought to do it. The real question then, is, on this part of the case, that although it were certain the party applying had a legal right, and that it has been violated, and that the law would afford him a remedy, and which remedy is conceded to be a mandamus, whether it is not such a case as would be attended with manifest difficulties and great hardships, but also involving in a collateral manner the right of these parties who have no opportunity of defending their interests. It certainly would; and I am moreover satisfied, that there are insuperable difficulties which could not be remedied, arising out of the facts set forth in the affidavit and return, which would not be properly disposed of, as there is no mode by which this court could ascertain the real facts in the case, provided by the laws of this state ; and I very much doubt whether the court would be authorized to prescribe one itself, which must comprise the impanneling of a jury.\nUpon the whole case, and from the best consideration I have been enabled to bestow upon it, during the limited time afforded for making up an opinion, I have come to the following conclusions:\n' That the applicant had not a perfect legal right to the commission, on the ground that it was an original vacancy, and could not be filled in the recess, by the governor, by an appointment to expire at the end of the next session of the general assembly, and that the secretary, on that ground alone, was justified in withholding his signature and the seal of state. That it is a case attended with great difficulties, both as to the rights to be ascertained and decided, that it involves in a collateral manner the right of both the real parties in the controversy who are not before the court, and whose rights to the executive power could alone be determined, if at all, in this court, by a writ of quo wcurranto, and that on the state of facts presented, no mode has been provided by which this court could assume a data to arrive at a correct conclusion.\nAnd as it, therefore, does not become necessary to give an express opinion on the other points stated in the case, I do not do it. I am therefore of the opinion—the rule must be discharged.\n(a)\nRule discharged.\n(a) The leading case in this country in relation to mandamus, is the case of Marbury v. Madison, when secretary of state under President Jefferson, reported in 1 Cranch, 137. There it is decided that,\nTo render a mandamus a proper remedy, the officer to whom it is directed must be one to whom, on legal principles, such writ may be directed; and the person applying for it must be without any other and specific remedy.\nA mandamus to the secretary of state is a proper remedy to enforce the delivery of a commission or a copy of it from the record, to an officer who has been regularly appointed, and whose commission has been received from the president by the secretary of state for the use of such officer."
                        }
                    ],
                    "head_matter": "The People, on the relation of Wm L. D. Ewing, v. George Forquer, Secretary of State.\nHopkins, T. Reynolds, Blackwell and Eddy, for relator.\nForquer, for secretary of state.\nOn a motion for a Mandamus.\nThe governor can not make an appointment in the recess of the general assembly, unless the vacancy occurred since the adjournment of that body.\n(1)\nThe secretary of state is not obliged to countersign and seal a commission which the governor has no power by law to issue, and he may rightfully refuse to do it. The court will not grant a mandamus to a person to do an act where it is doubtful whether he has the right by law to do such act or not.\nWhere a person is in office by color of right and exercising the duties thereof, a quo warranto is the proper remedy foy another person claiming the same office, and not a mandamus.\n(2)\nThe governor has no right to fill an office though created by law, during the recess of the general assembly, where there never has been an incumbent. The word “vacancy” as used is contradistinguished from “ filled ” or “ occupied.”\nWhen the return upon a rule to show cause why a mandamus should not issue, contradicts the facts set out in the affidavit upon which the rule is granted, it seems that this court has no power to ascertain the real facts, as the legislature have provided no mode by which they are to be tried and determined.\n(1) The subject of appointments to and removal from office by the governor, is very folly discussed in the case of Field v. The People, 2 Scam., 79.\n(2) This rule is very generally adhered to, if not universally. See People v. Fletcher, 2 Scam., 487. Wilmans v. Bank of Illinois, 1 Gilm., 671. Clark v. The People, 15 Ill., 217. Akin v. Matteson, 17 Ill., 167.\nWhere the parties have commenced proceedings in another tribunal, to obtain an adjudication of the question, the Supreme Court will not (except in extraordinary cases) interfere by mandamus. The People, v. Warfield, 20 Ill., 159.\nA writ of mandamus should show that the relator has no other remedy. It is only granted in extraordinary cases, where, without it, there would be a failure of justice. If the party has sought, or may seek, other means of redress, this writ should be ’denied. School Inspectors, &c. v. The People, 20 Ill., 525.\nA mandamus is not the proper remedy to try the question of the location of a public highway, as between the public and the landholders over whose land it is to be laid out. The court has a discretion in granting or refusing it. The People v. Curyea et al., 16 Ill., 547.\nWhere a circuit judge refuses to sign a bill of exceptions, the proper remedy is by mandamus. The People v. Pearson, 2 Scam., 189. Weatherford v. Wilson, id. 256.\nA mandamus confers no new authority, but only issues to compel a party to act where it was his duty to act without it. The People v. Gilmer, 5 Gilm., 249.\nSee also the following cases: The People v. Pearson, 1 Scam., 460. Same v. Rockwell, 2 Scam., 3. Same v. Cloud, id., 362. Same v. Pearson, 3 Scam., 271. Same v. Scates, id., 351. Maxcy v. Clabaugh, 1 Gilm., 29. County of Pike v. The State, 11 Ill., 203. Insane Hospital v. Higgins, 15 Ill., 185. The People v. Kilduff, id. 501.",
                    "parties": [
                        "The People, on the relation of Wm L. D. Ewing, v. George Forquer, Secretary of State."
                    ]
                }
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        },
        {
            "id": 435728,
            "url": "https://api.case.law/v1/cases/435728/",
            "name": "Joseph Cornelius, Appellant, v. Robert Wash, Appellee",
            "name_abbreviation": "Cornelius v. Wash",
            "decision_date": "1825-12",
            "docket_number": "",
            "first_page": "98",
            "last_page": "101",
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                    "cite": "1 Ill. 98"
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                    "attorneys": [
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                        {
                            "author": "Justice Lockwood.",
                            "type": "majority",
                            "text": "Opinion-of the Court by\nJustice Lockwood.\nTwo questions are presented in this case: 1. What is the true construction of the obligation made by the plaintiff in error to the defendant in error? 2. Ought the instructions prayed for to have been given to the jury ? On the first point, the court are of opinion that by the true construction of the contract of the parties, the relation of client and counsel was created, and that it became necessary for Mr. Wash either to have contributed his legal knowledge and assistance in the suit of George against Whiteside and Bradshaw, or have been ready and willing at the trial to have aided and conducted the suit to its final termination. The confidence reposed in counsel is of a personal nature, and can not be delegated without the consent of the client. The evident object of the party in making this contract being to obtain the legal services of Mr. Wash in prosecuting the suit, the court ought to have instructed the jury that, unless they believed Cornelius had dispensed with the personal services of Mr. Wash, they ought to find for Cornelius.\nIn relation to the second charge given to the jtiry, to wit: “ that although the plaintiff did not in person attend to the suit for George, yet if Peck and Carr did attend to it for him, as well as he, Wash, could have done, Wash would have a right to recover.” If the court is right in their construction of this contract, this instruction was clearly wrong. In the employment of counsel to manage a cause, the client is governed by a variety of considerations which relate to the character, learning and skill of the lawyer, and whether the client exercises a sound judgment in his selection, is a matter in which he alone is interested, but he is entitled to receive the identical legal services he has contracted for. It may, with propriety, be asked, by what rule could a jury decide whether Peck and Carr did render the same services that Wash might have done, had he been present? It is only sufficient to state the question to show the utter impracticability of its being determined by a jury. They can have no data on which to predicate an opinion. The judgment must be reversed with costs, with permission to the defendant in error to have the cause remanded to the circuit court for further proceedings, not inconsistent with this opinion.\n(1)\nJudgment reversed.\n(1) If attorneys who are co-partners, accept a retainer, the contract is joint, and continues to the termination of the suit, and neither can be released from the obligations or responsibilities assumed, cither by a dissolution of then- firm, or by any other act or agreement between themselves. Walker v. Goodrich, 16 Ill., 341.\nAn attorney agreed with a father to institute proceedings for the division and sale of land held by the lather and his daughter in common, and the father agreed to pay for such services five hundred dollars when the land should be sold and the purchase money become due, or the usual fee in case the attorney should fail to procure the division. The father died after an order for the sale had been entered by the court, but before the sale had taken place; and the guardian of the daughter had the suit dismissed. Held, that the attorney was only entitled to the usual fee for his services. Bunn et al. v. Prather et al., 21 Ill., 217.\nContingent fees to attorneys are not against law or public policy. Newkirk v. Cone, 18 Ill., 449."
                        }
                    ],
                    "head_matter": "Joseph Cornelius, Appellant, v. Robert Wash, Appellee.\nBlackwell, for plaintiff.\nStarr, for defendant.\nWash sued Cornelius before a justice of the peace in St. Clair county, for his services as attorney and counsellor, and recovered a judgment against him, from which judgment Cornelius appealed to the circuit court of said county. Trial and verdict in the circuit court for Wash for $59 in damages. A motion was made by defendant for a new trial, which was overruled, and thereupon a bill of exceptions was taken, from which it appears, that on the trial of the cause in the circuit court, the plaintiff, Wash, read in evidence to the jury, the following obligation, viz.:\nBelleville, Nov. 9,1819.\nWhereas, I have employed R. Wash in the suit instituted by George, a black man, against Robert Whiteside and E. Bradshaw, for the recovery of his freedom, I hereby promise and oblige myself to pay to said R. Wash or order, the further sum of fifty dollars, as witness my hand and seal.\nJoseph Cornelius, [seal.] as the foundation of his action, and proved by H. Starr, that the suit in the obligation mentioned, had been removed to the Randolph circuit court, and was there tried in the fall of 1820, and decided in favor of George, the black man in the obligation mentioned, and his right to his freedom thereby established; but the plaintiff did not prove that he rendered any service in said suit as counsellor or attorney for said George. This was the evidence on the part of the plaintiff. The defendant, by his counsel, then moved the court to instruct the jury as in case of a nonsuit, because the plaintiff’s evidence did not show that he had rendered any service in said suit as attorney for George, and was not entitled, therefore, to recover on the obligation. The court refused to give the instructions asked for, but instructed the jury that if they believed that the obligation imposed on Wash the duty of rendering services in the action as attorney, they should find for the defendant; but if they believed that by the contract specified in the obligation that Wash was to have the fifty dollars on George’s recovering his freedom, whether Wash rendered services in the cause or not, then they must find for the plaintiff'; and the court left the construction of the contract thus far, to the jury. Mr. Starr was then cross-examined by the defendant, and stated that the suit in question was tried in the St. Clair court at the June term, 1820; that he had no recollection that Mr. Wash was at court, or had any thing to do with the management of the cause, but that Mr. Peck appeared for George and managed the cause with ability; that a verdict was rendered for George for more than four hundred dollars, and that the verdict was set aside and a new trial awarded, and that the cause was removed to Randolph county, and there tried as above stated; that he appeared for George as attorney there, that George employed him, and that Mr. Wash was not there. It was further proved that the suit in the obligation mentioned, was commenced in the St. Clair court in July, 1818, by the late Mr. Mears, and in all the steps taken in the cause, Wash’s name no where appeared as attorney. It was further proved by D. Blackwell and J. Turney, that on the trial in June, 1820, on calling the cause, that Mr. Wash did not appear on being called, and that Mr. Peck and Mr. Carr, both lawyers, voluntarily told the court that they would attend to the cause for Mr. Wash, and they did attend to it at that time. It was further proved that Mr. Carr became the partner of Mr. Wash in the spring of 1820, but there was no proof that either Mr. Peck or Mr. Carr, was employed by Mr. Wash to represent him in the cause. The defendant proved by his own oath, that Carr exacted a fee from him for those services of twenty-five dollars, which he had paid, and said nothing about his being concerned with Wash as a partner. The plaintiff then gave in evidence the following writing under seal, viz.:\nBelleville, Nov. 9,1819.\nThree months after date I promise to pay E. Wash, or order, sixty dollars for value received, as witness my hand and seal, t Joseph Cornelius, [seal.]\nand proved that it had been given to him by defendant at the same time, to secure a fee in the same suit for his services as attorney, Ac., and that at the last term of the St. Clair court an action was tried on the note between the present parties, and that defendant relied on a failure of consideration on the ground that Wash did not render any services, and the jury found a verdict for him, Cornelius. Here the evidence closed, and the court instructed the jury further, that although the plaintiff did not in person attend to the suit for George, yet if Peek and Carr did. attend to it for him as well as Wash could have done, Wash would have a right to recover, and they ought to find for him. The defendant excepted to this opinion, and appealed to this court.\nAPPEAL FROM ST. CLAIR.\nWhere the relation of client and counsel is created, the counsel must contribute his own legal knowledge and assistance in the suit, and aid in conducting it to a final determination.\nThe confidence reposed in counsel is of a personal nature, and can not be delegated to another without the consent of the client. The client is entitled to receive the identical legal services he contracted for.",
                    "parties": [
                        "Joseph Cornelius, Appellant, v. Robert Wash, Appellee."
                    ]
                }
            }
        },
        {
            "id": 435735,
            "url": "https://api.case.law/v1/cases/435735/",
            "name": "Henry Curtis, Plaintiff in Error, v. John Doe, ex dem. Daniel Swearingen, Defendant in Error",
            "name_abbreviation": "Curtis v. Doe ex dem. Swearingen",
            "decision_date": "1825-12",
            "docket_number": "",
            "first_page": "139",
            "last_page": "143",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 139"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "McRoberts, for plaintiff in error.",
                        "T. Reynolds, for defendant in error."
                    ],
                    "opinions": [
                        {
                            "author": "Justice Lockwood.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice Lockwood.\nThis was an action of ejectment, brought to recover the undivided moiety of a tract of land in the county of Washington. A number of errors have been assigned, but from the view we have taken of the case, it will be unnecessary to decide more than the following question:—Was the sheriff’s deed to the lessor sufficient to convey Ryan’s interest in the premises? The objection taken to the deed is, that it does not appear from the deed, (and the plaintiff below did not prove by parol,) that the premises were appraised, and sold for two-thirds of the valuation. This question is one of great importance to the interests of the community, and deserves the most serious and attentive consideration of the court. Its decision will form a highly important rule in the transfer of real estate, that may affect the rights of a great number of individuals. The transfer of real property by a judicial sale, is unknown to the common law, but is authorized by the statutes of this state.\nThe legislature, in subjecting real estate to sale on execution, have clearly the right to prescribe the terms on which such sale may be made, and any material departure from the rules prescribed by the statute, will render the sale void. What, then, are the rules prescribed by our statutes in relation to sales on execution ?\nIt must be confessed that the court find some\" difficulty in reconciling the 2d, 8th, and 22d sections of the act entitled “ An act subjecting real estate to execution for debt, and for other purposes,” passed 22d March, 1819. But whatever uncertainty might grow out of the attempt to reconcile the conflicting provisions of these sections, yet the court have no doubt that the legislature intended, by the 22d section, to require that all real estate should be valued before sale. This section is as follows :\n“That all real estate that shall be ordered to be sold under the provisions of this act, shall be valued by three disinterested freeholders of the county in which- the same may be situated, who shall he appointed by the sheriff or other officer, and sworn to take into consideration the true value of such estate in cash, and the said sheriff or other officer shall then proceed to sell the same: provided, that the said land, or freehold, shall bring the amount of its valuation as aforesaid, or at least two-thirds thereof; but in case the said land or freehold shall not bring the amount of its valuation, or two-thirds thereof, then the said sheriff or other officer shall continue the sale until the same shall have been offered on three different days, allowing the space of twenty days between each day of sale, giving due notice thereof as before directed, unless the person in whose favor the execution issued, shall agree to take the same at the valuation made as aforesaid.”\n*\nThis statute was amended by an act passed the 15th February, 1821, which seems to have escaped the notice of the counsel on both sides. By the third and fourth sections oí the amended act, the legislature assume the fact that real estate can not be sold on execution, unless it will bring two-thirds of its valuation. The third section is intended to authorize lands that have been already valued and not sold for want of bidders, at two-thirds of the valuation, to be sold for one-half of the valuation.\nThe fourth section of the amended act is:—“ That when any real estate shall hereafter be levied upon, by virtue of any execution hereafter to be issued, and shall have been twice offered for sale under the provisions of the act to which this is an amendment, and has not brought the amount of its valuation, or two-tliirds thereof, upon the third, or any subsequent offering, the sheriff, or other officer, shall proceed to sell it to the highest bidder for what it will bring in ready money, having first given fifteen days’ notice as aforesaid.” My conclusion is, that the sheriff was bound to proceed on the execution mentioned in this case, according to the directions of the 22d section of the original act, as modified by the fourth section of the amending act. From which it will result, that the sheriff’s duty was to have had the premises valued by three disinterested freeholders, on oath, and advertised for twenty days, when, if two-thirds was not bid, he should again have advertised for twenty days, and then if two-thirds was not bid, he could, according to the above recited fourth section, sell the premises for what they would bring in ready money, having first given fifteen days’ notice of the sale. Can the court presume that the sheriff complied with these express provisions of the law ? I think not. Would not every lawyer he startled at the proposition, whether the court would not presume in favor of a sheriff’s deed, that the sheriff had an execution ? And that the execution was based on a judgment ? Tet these presumptions appear as reasonable as the presumption that the sheriff has obeyed the mandates of the statute, without showing the fact. Every agent, whether public or private, must act within the powers delegated to him, and must show that in all essential particulars he has not varied from them. If a party is to be deprived of his property without his consent, the law that authorizes him to be dispossessed must be obeyed, and he has a right to call for proof that he has not been illegally divested of his estate. The argument that good policy requires that public sales shall be supported, whether the provisions of the statute have been substantially complied with or not, does not appear to be entitled to much weight.\nWhether the land has been appraised or not, (and it is to this point that we confine our attention,) can be very readily ascertained, by the bidders calling for the valuation.\n(1)\nWe have hitherto considered this case with reference to our statutes, and upon general principles. We are, however, not without authorities on the very point. In the case of Patrick v. Gideon Oosterout, 1 Ohio reports, 27, two questions were submitted to the court: 1. Was it necessary under a sheriff’s deed to exhibit the appraisement? 2. Was the appraisement sufficient ? The objection to the appraisement was, that it did not appear to have been made on oath. The court, consisting of Judges McLean and Bubnet, held that a sale without an appraisement was void, and rejected the sheriff’s deed, because it did not appear that the appraisement was on oath.\nThey refused to presume that the oath had been taken. It has also been decided in Connecticut, (1 Day’s Repts. 109,) that in order to make out a title to land, by the levy of an execution, it must be shown that the appraisers were disinterested freeholders, and that they were sioorn according to laio.\nIn the case of Parker v. Rule’s lessee, 9 Cranch, 64, the supreme court of the United States decided, that, under the land tax act of the 14th July, 1798, c. 92, before the collector could sell the land of an unknown proprietor for non payment of taxes, it was necessary that he should advertise the copy of the lists of lands, &e., and the statement of the amount due for the tax, and the notification to pay, for sixty days, in four Gazettes of the state, if there were so many printed therein. Again, in the case of Stead’s executor v. Course, 4 Cranch, 403, and which arose under the tax laws of Georgia, the supreme court decided that an officer selling land for taxes, must act in conformity with the law from which his power is derived, and the purchaser is bound to inquire whether he has so acted. In the case of Williams v. Peyton, 4 Wheaton, 77, the same court held, that in the case of a naked power, not coupled with an interest, the law requires that every pre-requisite to the exercise of that power should precede it. That the party who sets up a title, must furnish the evidence necessary to support it. If the validity of a deed depends on an act in pais, the party claiming under it is as much bound to prove the performance of the act as he would be bound to prove any matter of record, on which the validity of the deed might depend. And in this last case the court decided that the collector’s deed was not prima facie evidence.\nThe court have examined the cases decided in the Kentucky courts, referred to in plaintiff’s argument, but think they have but little application to this case. One of the cases was a sale of personal property, which for obvious reasons, is governed by different rules from those of real property. Another of the cases referred to, was the sale of land for taxes. The facts of the case are, however, so imperfectly stated, that it is impossible to extract from the case any rule applicable to the decision of this case.\nThe last case cited, was a case of the sale of land on execution, and the court are perfectly willing to accede that the case was rightly decided under the Kentucky statute.\nThis court can not, however, accede to the argument of the court, as to what true policy dictates on this subject. We can not regard the question as altogether a question of policy, but as more a question of positive law. In relation to the cases cited from New York, the court are of opinion that they can have no application here, because, in New York, they have a positive statute, making sheriff’s sales valid, however palpable may be his departure from its provisions. The court feel themselves constrained to say, that the sheriff’s deed, unsupported by any proof that the land liad been valued, was insufficient to entitle the lessor to recover. The judgment must be reversed with costs.\n(a)\nJudgment reversed.\n* Laws of 1819, p. 183.\n(1) This is now changed by statute.\n(a) The party who sets up a conveyance, must furnish the necessary evidence to support it. If the validity of a deed depends on an act in pais, the party claiming under it is as much bound to prove the performance of the act, as he would be bound to prove any matter of record on which the validity might depend. Williams et al. v. Peyton’s lessee, 4 Wheat., 77."
                        }
                    ],
                    "head_matter": "Henry Curtis, Plaintiff in Error, v. John Doe, ex dem. Daniel Swearingen, Defendant in Error.\nMcRoberts, for plaintiff in error.\nT. Reynolds, for defendant in error.\nERROR TO WASHINGTON.\nA sheriff’s deed, which does not state the land was appraised, and unsupported by proof that it was appraised, is insufficient to entitle the lessor, claiming under it, to recover in an action of ejectment.",
                    "parties": [
                        "Henry Curtis, Plaintiff in Error, v. John Doe, ex dem. Daniel Swearingen, Defendant in Error."
                    ]
                }
            }
        },
        {
            "id": 435740,
            "url": "https://api.case.law/v1/cases/435740/",
            "name": "James M. Duncan, Appellant, v. Robert Morrison and Matthew Duncan, Appellees",
            "name_abbreviation": "Duncan v. Morrison",
            "decision_date": "1825-12",
            "docket_number": "",
            "first_page": "151",
            "last_page": "153",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 151"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
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            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Blackwell, for appellant.",
                        "Baker, for appellee."
                    ],
                    "opinions": [
                        {
                            "author": "Justice Lockwood.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice Lockwood.\nThe bill filed by the complainant, states that he executed his note to M. Duncan, and that by inadvertence or mistake, it was omitted to be inserted in the note, that it was to be paid in “state paper,” although it was agreed by the parties that it was to be discharged in that currency. The bill also states, that before the note became due, it was assigned to Morrison, who has brought suit, obtained judgment, and intends to exact specie. There is no allegation of fraud on the part of M. Duncan, or notice to Morrison that it was to have been paid in state paper. On this bill, an injunction was granted, and subsequently dissolved in the circuit court of Fayette county, and a decree rendered against complainant and his security in the injunction bond, for the whole amount of the debt, together with six per cent, damages and costs, and the bill dismissed. To reverse this judgment, an appeal has been brought to this court.\nThe injunction granted in this case was clearly wrong. It ought only to have been allowed for such portion of the judgment, as the complainant showed by his bill to have been unjust. (Laws of 1819, page 173.) The bill is also defective, in not showing the value of the state paper, and the extent of the discount lie claimed. But the main question is, whether such a case is presented by the bill, as to call for the equitable interference of a court of chancery ? Morrison, in this case, is to be viewed as the innocent indorsee for a valuable consideration. Can such a negotiable instrument, where there is no fraud, be impeached, either at law or in equity ? This question must depend upon the nature of such instruments, and our statutes making them negotiable. A party, when he subscribes his name to such instruments, knows that by the law he authorizes the payee to sell it to whomsoever will buy, and the purchaser has a right to believe, from the act of the maker, that there exists no latent equity, to prevent a recovery of the full amount. If either drawer or indorser is to suffer under such circumstances, which of these parties does natural equity point out as the proper party ? We have no hesitation in saying, that if a loss is to be sustained in this case, that equity would decide that it ought to fall on the maker of the negotiable instrument. But in this case, the court is not left to speculation to settle the merits of the cause. The statute making notes, &c., negotiable,\n*\ndeclares that the sum of money mentioned therein shall be due and payable to the person to whom the said note, &c., is made, and that the indorsement shall absolutely transfer and vest the property thereof in the assignee. The second and third sections of the act point out the cases where the maker can defend, as against the indorsee. The complainant has not brought himself within either of these provisions. It is hardly to be presumed, if the legislature, while they were legislating on this subject, had believed that a latent equity, as between maker and indorsee, ought to be a defense between them, but that they would have so declared. Nor does this case come within the provisions of the act to regulate the practice in certain cases ;\n†\nbecause here was not either a total want of consideration, or a total or partial failure of consideration. Whether on a total want of consideration, or a failure of consideration of a negotiable note, such facts can be set up as a defense, the court are not called on to give an opinion, nor do they intend to do so.\nThe court are, therefore, of opinion, that the injunction was rightly dissolved, and the bill properly dismissed, and affirm the decree so far, and for costs of the suit.\nWith regard to the construction of the 17th section of the act regulating the practice of courts of chancery,\n‡\nthe court has met with considerable difficulty ; but as the counsel for Morrison appeared willing, on the argument, that the decree for the amount of the former recovery, together with the six per cent, damages, should be reversed, it is deemed unnecessary, at this time, to settle the true construction of the statute, except that the court are clearly of opinion that the decree for the amount of the judgment at law, is erroneous. The court further order, that the decree be reversed, as to the former judgment, and the six per cent, damages, and that each party pay one-half of the costs of this appeal,\n(a)\n* Laws of 1819, p. 1.\n† Ibid., p. 59.\n‡ Ibid., p. 273,\n(a) A party to a negotiable note or instrument, which he has made or indorsed, is not competent to impeach its validity, although uninterested in the event of the suit. Winton v. Saidler, 3 Johns. Cas., 185. Coleman v. Wise, 2 Johns. Rep., 165. Walton v. Shelly, 1 T. R., 296.\nThis rule extends only to negotiable instruments, and can apply only where the paper has been negotiated. Blagg v. Phœnix Ins. Co., 3 Wash. Cir. Court Rep., 5.\nThat it is error to render a decree for the amount of judgment at law, see Hubbard v. Hobson, post."
                        }
                    ],
                    "head_matter": "James M. Duncan, Appellant, v. Robert Morrison and Matthew Duncan, Appellees.\nBlackwell, for appellant.\nBaker, for appellee.\nAPPEAL FROM FAYETTE.\nAn injunction ought not to be allowed for more of the judgment than the complainant shows to he unjust.\n(1)\nA party to a negotiable note, where there is no fraud, can not impeach it, either at law or in equity.\n(2)\nIf cither the maker or assignee of a note is to suffer a loss, natural equity points to the maker as the party on whom the loss should fall.\nWhere an injunction upon a judgment at law is dissolved, it is erroneous to enter a decree for the amount of the judgment at law.\n(1) Such is now the provision of our statute. “No injunction shall ho granted to stay any judgment at law, for a greater sum than the complainant shall show himself equitably not bound to pay, and so much as shall be sufficient to cover costs.” Purple’s Statutes, p. 769, sec. 21. Scates’ Comp., 147.\n(2) This is the provision of the present statute of this state. Purple’s Statutes, p. 773, secs. 9, 10, 11. Scates' Comp., p. 292; and has been sustained by numerous decisions. Woods v. Hines, 1 Scam., 103. Mulford v. Shepherd, id., 583. Adams v. Wooldridge, 3 Scam., 256, Mobley v. Ryan, 14 Ill., 51. Harlow v. Boswell, 15 Ill., 56.",
                    "parties": [
                        "James M. Duncan, Appellant, v. Robert Morrison and Matthew Duncan, Appellees."
                    ]
                }
            }
        },
        {
            "id": 435765,
            "url": "https://api.case.law/v1/cases/435765/",
            "name": "Thomas Bradshaw, Plaintiff in Error, v. John Newman, Defendant in Error",
            "name_abbreviation": "Bradshaw v. Newman",
            "decision_date": "1825-12",
            "docket_number": "",
            "first_page": "133",
            "last_page": "134",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 133"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
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            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
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            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
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            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
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                "slug": "ill",
                "name": "Ill.",
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            "casebody": {
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                "data": {
                    "judges": [],
                    "attorneys": [
                        "Starr, for plaintiff in error.",
                        "Cowles, for defendant in error."
                    ],
                    "opinions": [
                        {
                            "author": "Justice Lockwood.\n*",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice Lockwood.\n*\nThis action was commenced in the Madison circuit court, on a sealed note made on the 31st of October, 1818, in the then territory of Missouri. The defendant pleaded three pleas, to wit:\n1. That the consideration of the note was for the sale of an improvement made upon the public land of the United States, situate in the territory of Arkansas ;\n2. That the consideration lias wholly failed; and,\n3. That the note was executed for an improvement right in the Arkansas territory, on land belonging to the United States, and that the plaintiff is, and has been for some time past, in the possession of said improvement, without purchase or lease from the defendant, wherefore the consideration has failed.\nTo which pleas the plaintiff demurred, and the defendant joined in demurrer. The court below sustained the pleas, and gave judgment for defendant. To reverse which decision, a writ of error has been brought to this court. The first plea in this case is extremely inartificially drawn, and it is difficult for 'the court to ascertain what is the precise point intended to be presented for decision. The question argued upon this plea was, that a note executed as the consideration of a sale of an improvement made on the lands of the United States, can not be recovered in the courts of this state, upon the principle that “ all contracts which have for their object any thing which is repugnant to justice, or against the general policy of the common law, or. contrary to the provisions of any statute, are void.” The pleadings in this case do not, however, present any such question. The declaration states the contract to have been made in the territory of Missouri, and for any thing that is alleged in the plea, the contract may be sanctioned by the laws of Missouri. No principle is better settled, than that the laws of the country where a contract is made, shall govern its construction and determine its validity,\n(a)\nThe first plea is therefore clearly bad. The second plea has frequently been decided to be bad by this court, because it does not set forth in what the failure of the consideration consisted.\nThe third plea is similar to the first, with this addition, that the plaintiff “ is, and has been for some time past, in the possession of the said improvement, without purchase or lease from this defendant.” This allegation is doubtless introduced for the purpose of showing that the defendant has not received from the plaintiff what he contracted for, as the consideration of the note.\nIt does not, however, appear from the pleas, but that the defendant received the possession of the improvement right, or that the plaintiff has ever prevented him from taking and enjoying the possession ; and from aught that appears, the defendant may have sold his possession to some third person, who again may have transferred his claim to the plaintiff. The plea is too imperfect to bar the plaintiff’s action. It may also be observed in relation to the first and third pleas, that the defendant is guilty of a singular inaccuracy in stating that the consideration of the note was for an improvement in the territory of Arkansas. The note was dated in 1818, and Arkansas was not formed into a territory until some time after that year. The judgment must be reversed with costs, and the proceedings remanded to the Madison circuit court, and the defendant permitted to amend his pleas.\n(b)\nJudgment reversed.\n* Justice Smith having been counsel in this cause, gave no opinion.\n(a) Lodge v. Phelps, 1. Johns. Cas., 139. Smith v. Smith, 2 Johns. Rep., 235. Ruggles v. Keeler, 3 Johns. Rep., 263.\n(b) Taylor v. Sprinkle, ante, page 17. Cornelius v. Vanarsdall, 23. Poole v. Vanlandingham, 47."
                        }
                    ],
                    "head_matter": "Thomas Bradshaw, Plaintiff in Error, v. John Newman, Defendant in Error.\nStarr, for plaintiff in error.\nCowles, for defendant in error.\nERROR TO MADISON.\nThe laws of the country where the contract is made, must govern its construction, and determine its validity.\n(1)\nA plea stating “ that the consideration of the note was for an improvement on public land in Arkansas,” without averring that by the laws of that territory such improvements were not permitted, is bad.\nA plea of failure of consideration, without setting out how it has failed, is bad.\n(2)\n(1) The general principle adopted by civilized nations is, that the nature, validity, and interpretations of contracts, are to be governed by the laws of the country where the contracts are made, or are to be performed; but the remedies are to be governed by the laws of the country where the suit is brought. Humphreys v. Powell, post. Stacy v. Baker, 1 Scam., 417. Forsyth et al. v. Baxter et al., 2 Scam., 12. Holbrook et al. v. Vibbard et al., id., 465. Chenot v. Lefevre, 3 Gilm., 642. Sherman et al. v. Gassett et al., 4 Gilm., 521. Strawbridge v. Robinson, 5 Gilm., 470. Schuttler v. Piatt, 12 Ill., 419. Crouch v. Hall, 15 Ill., 264. See also to the same point, Bank of U. S. v. Donally, 8 Peters, 361. Cox et al. v. The United States, 6 Peters, 172. Green v. Sarmiento, Peters’ C. C. R., 74. Webster v. Massey, 2 Wash. C. C. R., 157. Aman v. Sheldon, 12 Wend., 439.\nIt is a well-settled principle, that the statute of limitations is the law of the forum, and operates upon all who submit themselves to its jurisdiction. McClany v. Silliman, 2 Peters, 270. Ruggles v. Keeler, 3 Johns., 268.\nThe courts of one country will not enforce either the criminal or penal laws of another. Sherman v. Gassett, 4 Gilm., 525.\n(2) See note to Taylor v. Sprinkle, ante, page 17.",
                    "parties": [
                        "Thomas Bradshaw, Plaintiff in Error, v. John Newman, Defendant in Error."
                    ]
                }
            }
        },
        {
            "id": 435787,
            "url": "https://api.case.law/v1/cases/435787/",
            "name": "Michael Jones, Plaintiff in Error, v. The Bank of Illinois, Defendant in Error",
            "name_abbreviation": "Jones v. Bank of Illinois",
            "decision_date": "1825-12",
            "docket_number": "",
            "first_page": "124",
            "last_page": "124",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 124"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Eddy, for plaintiff in error.",
                        "Starr, for defendant in error."
                    ],
                    "opinions": [
                        {
                            "author": "Chief Justice Lockwood.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nChief Justice Lockwood.\nA number of errors have been assigned in this cause; the court, however, deem it unnecessary to decide but one of them. The Bank of Illinois brought an action of assumpsit in the court below, on a bill of exchange, against Jones, as an indorser. Jones pleaded non assumpsit. On the trial, no evidence was given that the bank was a corporation. The defendant below moved the court to instruct the jury, that the plaintiffs could not recover unless the incorporation was proved, which instruction the court refused to give. It was conceded on the argument, that if the plaintiffs below have been incorporated, that the act of incorporation is a private act. The court are of opinion that the rule is well settled, that private incorporations must prove their corporate character upon the plea of non assumpsit. See 8 Johnson’s Rep. 378, and the cases there cited.\nThe refusal of the court below to give the instructions asked for is error. The judgment must be reversed and the cause remanded to the circuit court of Gallatin county for further proceedings. As the court deem another trial necessary upon this point, they think it unnecessary to decide the other questions arising in the case. They however suggest, for the consideration of the counsel on both sides, whether a protest is necessary in this case. And whether, in case the striking out the name of one of the indorsers, would be a bar to the action, if such fact should not be pleaded, Puis darrein continuance.\nJudgment reversed.\n(a ) Hargrave v. The Bank of Illinois, ante, page 122."
                        }
                    ],
                    "head_matter": "Michael Jones, Plaintiff in Error, v. The Bank of Illinois, Defendant in Error.\nEddy, for plaintiff in error.\nStarr, for defendant in error.\nERROR TO GALLATIN.\nPrivate incorporations must prove their corporate character, under the general issue in an action of assumpsit.",
                    "parties": [
                        "Michael Jones, Plaintiff in Error, v. The Bank of Illinois, Defendant in Error."
                    ]
                }
            }
        },
        {
            "id": 435819,
            "url": "https://api.case.law/v1/cases/435819/",
            "name": "John Giles, Appellant, v. John Shaw, Appellee",
            "name_abbreviation": "Giles v. Shaw",
            "decision_date": "1825-12",
            "docket_number": "",
            "first_page": "125",
            "last_page": "126",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 125"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Cowles, for appellant.",
                        "Blackwell and J. Reynolds, for appellee."
                    ],
                    "opinions": [
                        {
                            "author": "Justice Lockwood.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice Lockwood.\nThis is an action of debt, brought on a judgment recovered in Missouri, to which the defendant pleaded nul tiel record. On the trial, the plaintiff introduced a record of the circuit court of St. Louis county in the state of Missouri, with an attestation of the clerk under the seal of the court. The defendant on the trial, objected to the record on two grounds: 1. Because there was a variance between the record and declaration, in this, that it did not appear from the record what amount of costs had been awarded plaintiff: 2. That the certificate of the judge did not state that the attestation of the clerk was in due form. The court below sustained the objections, and gave judgment for the defendant, to reverse which judgment, the cause is brought into this court.\nOn the first point, the court are of opinion that the court below decided right in rejecting the record on account of the variance.\nIt appears by an inspection of the declaration, that the plaintiff in Missouri recovered 115 dollars, for damages, and 19 dollars and 15 cents for costs; the aggregate of which sums is the debt sued for in the court below; but upon the production of the record, it did not appear what sum had been awarded for costs. It however appeared, by an indorsement on the back of the exemplification of the record, that the costs in the suit amounted to the sum mentioned in the declaration. This indorsement did not make the costs a part of the record. Nothing can be considered a part of the record that is altogether detached, and separate from it. From any thing i¡hat appeared, this indorsement might have been made by a person who was not clerk, although his name is signed to it. The seal of the court is always an indispensable requisite to the authentication of all records, out of the court where the judgment is rendered.\nOn the second point, the court are of opinion, that the certificate of the judge is insufficient. The act of congress has dispensed with the common law mode of proving foreign judgments, and has prescribed a particular form. This form must be pursued. In the case of Smith v. Blagge, 1 Johnson’s cases, 238, the same objection was taken to the exemplification, as in this case. The court there say, that they “ can not officially know the forms of another state, and therefore they ought to be proved. The act of congress directs the mode of proof, and requires that the presiding judge of the court from which the copy is obtained, shall certify that the attestation is in due form. This not being done, the record is not sufficiently proved.” See also the cases of Ferguson v. Harwood, 7 Cranch, 408, 412; and Drummond and others v. Magruder & Co., 9 Cranch, 122, 125.\nThe judgment below must be affirmed with costs,\n(a)\nJudgment affirmed.\n(a) Vide Taylor & Parker v. Kennedy, ante, page 91. Connolly v. Cottle. Rust v. Frothingham and Fort. Prince v. Lamb.\nHo paper writing ought to be admitted as testimony unless it possesses those solemnities which the law requires; its authentication must not rest upon probability but must be as complete as the nature of the case admits. 1 Burr’s Trial, 98."
                        }
                    ],
                    "head_matter": "John Giles, Appellant, v. John Shaw, Appellee.\nCowles, for appellant.\nBlackwell and J. Reynolds, for appellee.\nAPPEAL FROM MADISON.\nA variance between the record declared on and the one produced in evidence is fatal.\n(1)\nAn indorsement of the costs on the back of the record, though signed by the clerk, is no part of the record.\nThe certificate of the judge, omitting to state that “the attestation is in due form,” is insufficient.\n(2)\n(1) As to variances generally, see note to the case of Taylor et al. v. Kennedy, ante, p. 91.\n(2) A judgment rendered by a justice of the peace of Wisconsin, was offered in evidence. The clerk's certificate set forth that the person, before whom the judgment purported to have been recovered, was, at the date of the certificate, a justice of the peace, but did not show that he was when the judgment was rendered, and was therefore held to be inadmissible. The certificate of the presiding judge that the clerk’s certificate was in due form of law, would not aid it. Morrison v. Hinton, 4 Scam., 457.",
                    "parties": [
                        "John Giles, Appellant, v. John Shaw, Appellee."
                    ]
                }
            }
        },
        {
            "id": 435545,
            "url": "https://api.case.law/v1/cases/435545/",
            "name": "Isaac Gilham and others, Appellants, v. Caldwell Cairns, Appellee",
            "name_abbreviation": "Gilham v. Cairns",
            "decision_date": "1826-06",
            "docket_number": "",
            "first_page": "164",
            "last_page": "165",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 164"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Starr, for appellants.",
                        "T. Reynolds, for appellee."
                    ],
                    "opinions": [
                        {
                            "author": "Justice Lockwood.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice Lockwood.\nThis was an appeal from the Monroe circuit court, sitting as a court of chancery, on a bill filed against the heirs of Gilham, deceased, for a specific performance of a contract executed by their ancestor to one Jacob A. Boyce, for the conveyance of a tract of land lying in Monroe county. The third error assigned is the want of proper parties to the suit, inasmuch as Boyce should have been a plaintiff or defendant, his interest being affected by the decree. The omission to make Boyce a party, is clearly erroneous. 2 Bibb’s Rep., 316, 184.. There is, no doubt, some discretion vested in a court of chancery, as to whom must be made parties, but where a court of chancery is called upon to dispense with the proper parties, some reason ought to be disclosed in the bill. In this case, for aught that appears, Boyce is alive, or if dead, has left heirs capable of protecting their rights. The court ought not to exercise a discretion in dispensing with parties who are interested, without sufficient cause being shown. For this cause, the decree must be reversed with costs. The court are also of opinion, that costs ought not to have been decreed against the defendants, admitting the decree to have been correctly made, as it does not appear that the defendants have ever refused to convey the premises, or that they have ever been requested to do it.\nThe court see no objection to the circuit court of Monroe county entertaining jurisdiction in this case, but on the contrary, they think there is a manifest propriety that the suit should be instituted there. They formed this opinion upon the effect given to decrees in chancery, by the 14th section of the act regulating the practice in chancery.\n*\nThe other errors assigned, do not appear to be of sufficient importance to require an examination by this court. The decree of the circuit court is reversed, with costs, and the case remanded with permission to amend the bill by constituting Boyce a party,\n(a)\n,\n(1)\nDecree reversed.\n* Laws of 1819, page 172.\n(a) The want of proper parties is not a sufficient ground for dismissing the bill. It ought to stand over to make new parties. 3 Cranch, 320.\nThe supreme court, in an equity cause, will not make a final decree upon the merits, unless all persons who are essentially interested are made parties to the suit, although some of those persons are not within the jurisdiction of the court. 7 Cranch, 69. 9 Wheat., 733. 10 Wheat., 152.\nAll persons materially interested in the subject, ought to be parties to the suit. Hickock v. Scribner, 3 Johns. Cas. in error, 311.\n(1) The general rule in equity requires all persons materially interested in the subject or object of the suit, however numerous, to be made parties, complainants or defendants, that all may be provided for and protected by the decree. Greenup v. Porter, 3 Scam., 65. Scott v. Moore, id., 315. Elstone v. Blanchard, 2 Scam., 420. Willis v Henderson, 4 Scam., 20. Spear v. Campbell, id., 426. Montgomery v. Brown, 2 Gilm., 581. Hoare v. Harris, 11 Ill., 24. Webster v. French, id., 254. Whitney v. Mayo, 15 Ill., 255.\nWhere the parties áre numerous, and it would be very inconvenient to make all persons interested parties, bills are allowed to be filed on behalf of the complainants and all others interested. Martin v. Dryden, 1 Gilm., 209. Whitney v. Mayo, 15 Ill., 255. County of Pike v. The State, 11 Ill., 202. 4 Scam., 20.\nCourts will take notice of the omission of proper parties, though no demurrer be interposed for that purpose, where it is manifest that the decree will affect the interest of such as are not joined. Herrington v. Hubbard, 1 Scam., 573.\nIn Scott, adm’r, v. Bennett, 1 Gilm., 647, the objection of want of proper parties was first made in the supreme court, and was held to be in time."
                        }
                    ],
                    "head_matter": "Isaac Gilham and others, Appellants, v. Caldwell Cairns, Appellee.\nStarr, for appellants.\nT. Reynolds, for appellee.\nIn chancery, all the parties in interest and whose rights may be affected, ought to be made parties to the bill, and if the court is called upon to dispense with the proper parties, some reason therefor ought to be disclosed in the bill.",
                    "parties": [
                        "Isaac Gilham and others, Appellants, v. Caldwell Cairns, Appellee."
                    ]
                }
            }
        },
        {
            "id": 435596,
            "url": "https://api.case.law/v1/cases/435596/",
            "name": "Josiah T. Betts, and Samuel Smith, adm’s of Michael Jones, dec’d, Plaintiffs in Error, v. Jesse Francis and Mary Ann his Wife, and Finley Rippy, by W. C. Greenup, his Guardian, Defendants in Error",
            "name_abbreviation": "Betts v. Francis",
            "decision_date": "1826-06",
            "docket_number": "",
            "first_page": "165",
            "last_page": "166",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 165"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "T. Reynolds, for plaintiffs in error.",
                        "Stcvrr, for defendants in error."
                    ],
                    "opinions": [
                        {
                            "author": "Justice Lockwood.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice Lockwood.\nSeveral errors have been assigned in this cause which do not appear to merit consideration, except the fourth, which is, “ That no issue was joined on the plea of payment.” The words, “ and the plaintiff doth the like,” can not be taken as a traverse of a plea of payment. 1 Littell’s Rep., 64.\nA plea of- payment is a good plea in an action of assumpsit, in order to enable the defendants to set off any demand they may have against the plaintiffs ; and without such a plea, evidence of counter demands could not be received.\nFrom the record, this court cannot intend that the defendants were permitted to give evidence under the plea of payment. The judgment must therefore be reversed with costs, and the causo remanded with permission to the parties to amend their pleadings in the court below.\n(1)\nJudgment reversed.\n(1) Although never expressly overruled by our court, yet at this time this decision can hardly be sustained. That a plea of payment is a good plea is true; but that evidence of payment could not be given under the general issue is, we think, incorrect. In Crews v. Bleakley, 16 Ill., 21, the court said that evidence tending to prove payment may be given under the general issue. And this is now the settled doctrine, 2 Greenl. Ev., p. 423, sec., 516.\nWe apprehend the court was also in error in saying, “Brom the record, tins court can not intend that the defendants wore permitted to give evidence under the plea of payment.” Because the plaintiff had failed to reply to the plea, the defendants could not be prejudiced thereby. If the parties go to trial without filing a replication, it will be cured by the verdict. See note to Brazzle et al. v. Usher, ante, p. 35, whore the authorities are collected on this subject. See also Parmelee et al. v. Fischer, 22 Ill., 212. Stevenson v. Sherwood, id., 238."
                        }
                    ],
                    "head_matter": "Josiah T. Betts, and Samuel Smith, adm’s of Michael Jones, dec’d, Plaintiffs in Error, v. Jesse Francis and Mary Ann his Wife, and Finley Rippy, by W. C. Greenup, his Guardian, Defendants in Error.\nT. Reynolds, for plaintiffs in error.\nStcvrr, for defendants in error.\nThis was an action of assumpsit for money had and received, &c., brought by the defendants in error, as administrators of M. Jones, deceased. The defendants below pleaded non assumpsit, and payment, without concluding the plea with a verification, simply stating that the intestate in his life time had fully paid and satisfied, &c. Issue was joined upon the first plea, and to the plea of payment the plaintiffs added a similiter. Jury, and verdict and judgment for the plaintiffs below. To reverse that judgment a writ of error was prosecuted to this court.\nERROR TO RANDOLPH.\nThe words, “ and the plaintiff doth the like,” can not be taken as a traverse of a plea of payment.\nA plea of payment is a good plea in an action of assumpsit, and without it evidence of counter demands can not be received.",
                    "parties": [
                        "Josiah T. Betts, and Samuel Smith, adm’s of Michael Jones, dec’d, Plaintiffs in Error, v. Jesse Francis and Mary Ann his Wife, and Finley Rippy, by W. C. Greenup, his Guardian, Defendants in Error."
                    ]
                }
            }
        },
        {
            "id": 435622,
            "url": "https://api.case.law/v1/cases/435622/",
            "name": "Henry Hayes, Adm’r. Appellant, v. John Thomas and others, Appellees",
            "name_abbreviation": "Hayes v. Thomas",
            "decision_date": "1826-06",
            "docket_number": "",
            "first_page": "180",
            "last_page": "181",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 180"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Cowles, for appellant.",
                        "Blackwell, for Appellee."
                    ],
                    "opinions": [
                        {
                            "author": "Chief Justice Wilson.\n*",
                            "type": "majority",
                            "text": "Opinion of the Court by\nChief Justice Wilson.\n*\nThe first question\" presented in this case is, who are the next of kin in equal degree to the intestate. It appears from the bill, that the intestate died without issue, but that he left a mother, brothers and sisters.\nAccording to the computation of the civilians, the father and mother are related to their children in the first degree, and brothers and sisters in the second. According to the rule of Hilhouse v. Chester, 3 Day’s Rep., 166, 210, the computation of the civilians is adopted, to ascertain who are next of kin, and this rule prevails, whether the expression is used in relation to the descent of real or personal estate. The court thinks that the civil law mode of ascertaining who are next of kin, ought to be adopted in construing our statute, as being more agreeable to the nature of things, and more conformable to adjudged cases. The mother is therefore to be considered the next of kin to the intestate, and entitled to the whole of her son’s estate.\n(1)\nIt is, however, objected, that it is now too late to take the advantage, that persons are complainants in the bill in whose favor a decree has been made, who are not by law entitled to such decree, because no objection was taken below to 'the improper joinder of parties who have no interest in the suit. This objection can not prevail, however much the court may regret that so much expense has been incurred before the discovery of the error. The court is bound to look into the whole record, and if they find a decree has been made in favor of persons who are not entitled to it, they are bound to reverse it. 4 Hen. and Munf., 200. 16 Johns. Rep., 348.\nA further question arises here, whether the decree may not be reversed in part, and affirmed in part. This may be done where the decree or judgment is in distinct parts, but in this case, the decree is for an aggregate sum to all the complainants. It has been decided that an entire judgment against several defendants can not be affirmed as to one, and reversed as to others, 14 Johns. Rep., 417; and the same rule should prevail as to plaintiffs. The decree must therefore be reversed. The court have, however, a discretion as .to costs, and inasmuch as the defendant did not avail himself of the error below, and the mistake appears to be mutual, the court order that each party pay his own costs, both here and in the court below,\n(a)\nDecree reversed.\n* Lockwood, J., having been counsel in this cause, gave no opinion.\n(1) This is now changed by statute, which provides, that when there are no children of the intestate, nor descendants of such children, and no widow, the estate shall go to the parents, brothers and sisters, in equal parts among them; and if one of the parents be dead, the survivor shall take a double portion. The same statute also provides that the computation among collateral relations shall be according to the rules of the civil law. Purple’s Statutes, p. 1200, sec. 46. Scates’ Comp., p. 1199.\nA posthumous child will inherit directly from the parent, with the same effect as if it had been born at the time of the decease of the parent. Detrick v. Migatt, 19 Ill., 146. McConnel et al. v. Smith, Adm’r, etc., 23 Ill., 611.\n(a) The next of kin are those who are so determined by the civil law, by which the intestate himself is the terminus a quo the several degrees are numbered. Under that rule the father stands in the first degree, the grandfather and grandson in the second, and in the collateral line, the computation is from the intestate up to the common ancestor of the intestate, and the person whose relationship is sought after, and then down tcfrthat person. According to that rule, the intestate and his brothers are related in the second degree, the intestate and his uncle in the third degree. 2 Kent’s Comm., 339.\nThe court of king’s bench declared in the case of Blackborough v. Davis, 1 P. Wms., 41. 2 Vesey, 215, that the father and mother had always the preference before the brothers and sisters, in the inheritance of the personal estate, as being esteemed nearer of kin.\nUnder the statute of distributions, claimants take per stirpes only when they stand in unequal degrees, or claim by representation, but when they are all in equal degree, as three brothers, three nephews, &c., they take per capita, or each an eqflal share. 2 Kent’s Comm., 342.\nOur statute of distributions passed in 1829, (Laws of 1829, page 206,) declares that where there shall be no children of the intestate, nor descendants of such children, and no widow, then the estate goes to the parents, brothers and sisters of the deceased person and their descendants, in equal parts among them; if there be a widow and no child, or descendants of a child, then the one-half of the real estate, and the whole of the personal estate shall go to the widow as her exclusive estate forever. If there be no children or descendants of children, and no widow, no parents, brothers or sisters, or descendants of brothers and sisters, then the estate descends in equal parts to the next of kin to the intestate, in equal degree, computing by the rules of the civil law.\nProm this law it will be perceived that the rule of distribution as declared in the case of Hays v. Thomas, is now altered.\nWhere a judgment is entire, there must be a total affirmance or reversal. 12 Johns. Rep., 434."
                        }
                    ],
                    "head_matter": "Henry Hayes, Adm’r. Appellant, v. John Thomas and others, Appellees.\nCowles, for appellant.\nBlackwell, for Appellee.\nThis was a suit in chancery, brought by the appellees against the appellant for a share of the estate of an intestate, to whom they claimed to be the heirs at law.\nAPPEAL FROM ST. CLAIR.\nThe computation of the civilians is adopted to ascertain who are next of kin to an intestate.\nWhere a person dies leaving no issue or father, but mother, brothers and sisters, the mother is the heir to her son's whole estate.\nIf the court, in looking into the whole record, find a decree has been entered in favor of persons not entitled to it, this court is bound to reverse it.\nAn entire judgment against several defendants can not be affirmed as to one, and reversed as to the others, and the same rule should prevail as to plaintiffs.",
                    "parties": [
                        "Henry Hayes, Adm’r. Appellant, v. John Thomas and others, Appellees."
                    ]
                }
            }
        },
        {
            "id": 435664,
            "url": "https://api.case.law/v1/cases/435664/",
            "name": "Nicholas Beaugenon, Appellant, v. François Turcotte and François X. Valois, Appellees",
            "name_abbreviation": "Beaugenon v. Turcotte",
            "decision_date": "1826-06",
            "docket_number": "",
            "first_page": "167",
            "last_page": "168",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 167"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Blackwell, for appellant.",
                        "Starr, for appellee."
                    ],
                    "opinions": [
                        {
                            "author": "Justice Lockwood.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice Lockwood.\nThis is an appeal from the equity side of the circuit court of St. Clair county. The bill filed in this cause alleges that the appellant when he executed the note, was deceived as to the kind of money in which it was payable, and was also deceived as to the language in which it was written. When the appellant executed the note, neither Turcotte or his agent was present, and there is no ground to charge either of them with any knowledge that any fraud or misrepresentation had been used in obtaining appellant’s signature to the note. The court below, however, acting under the impression that the appellant supposed that in executing the note he had made himself liable only to pay its amount in state paper, have reduced the judgment to the value of state paper at the time it became due. This is all that justice requires, for the appellant was willing, and agreed, according to his own showing, to become the security of Valois for the amount of the note in state paper. It perhaps might well be doubted, whether the testimony was altogether sufficient to establish the fact that any imposition was practised in obtaining the appellant’s signature to the note. But the court do not intend to disturb the decree of the court below, as we are satisfied that the appellant has received all the relief that he is entitled to, upon the most favorable view of the case. It is a well settled principle in equity, that a party who seeks relief in a court of chancery, must first do equity. In this case, neither Turcotte or his agent practised any fraud or deception. Turcotte was delayed in collecting his debt against Valois, in consequence of the appellant’s signature being by him affixed to the note, and the bill acknowledges his willingness and agreement to execute the note, supposing it to be payable in state paper. It is then no more than' equitable, that he should pay the value of state paper when the note became due. The imposition supposed to have been practised, hi representing the note to have been written in English, could produce no injury; the real imposition, if any, consisted in representing the note to be payable in paper instead of specie, for which relief has been granted. Strong doubts are entertained by the court whether the appellant was entitled to any relief. The object in a court of law in serving the process on the party, and filing a declaration ten days before court, is to apprize the defendant of the precise nature of the appellant’s demand against him, and if the defendant neglects to avail himself of the means thus furnished him, of ascertaining the cause of bringing the suit, courts of equity will seldom interfere to protect parties from the effects of such negligence, when the defense is a legal one. The authorities to this point are numerous. 1 Bibb., 173. 2 Bibb., 192.\nChancellor Kent, in delivering his opinion in the case of Duncan v. Lyer, 3 Johns. Ch. Rep. 356, says : “ It is a settled principle, that a party will not be aided after a trial at law, unless he can impeach the justice of the verdict or report by facts, or on grounds of which he could not have availed himself, or was prevented from doing it by fraud or accident, or the act of the opposite party, unmixed with negligence or fault on his part.” As Turcotte has not appealed, and as the court are satisfied, although the testimony is loose, that justice has been done, they will not disturb the decree, as pronounced in the court below. The decree must be affirmed with costs.\n(a)\n,\n(1)\n) Decree affirmed.\n(a) Where a party, in an action at law, had notice of a defense in time to avail himself of it, but neglected to do so, he will not be allowed to litigate the matter in chancery, but is forever concluded by the judgment. 1 Johns. Cas., 436.\nThere may be cases in which relief ought to be extended to a person who might have defended, but has omitted to defend himself at law; but such cases do not frequently occur. 7 Cranch., 332. Mar. Ins. Co. of Alexandria v. Hoopor.\nSee Hubbard v. Hobson, and the cases there referred to.\n(1) See note to Moore et al. v. Bagley et al., ante, p. 94."
                        }
                    ],
                    "head_matter": "Nicholas Beaugenon, Appellant, v. François Turcotte and François X. Valois, Appellees.\nBlackwell, for appellant.\nStarr, for appellee.\nAPPEAL PROM ST. CLAIR.\nA party who asks equity must do equity: and where a party signed a note for specie, supposing it to be for state paper, though no fraud was practised, and a judgment was entered against him for the specie value of so much state paper as the note called for, chancery will not relieve against such judgment as it is equitable.\nIf a defendant neglects to avail himself of a legal defense, a court of equity will not relieve him.",
                    "parties": [
                        "Nicholas Beaugenon, Appellant, v. François Turcotte and François X. Valois, Appellees."
                    ]
                }
            }
        },
        {
            "id": 435693,
            "url": "https://api.case.law/v1/cases/435693/",
            "name": "The President and Directors of the State Bank, Plaintiffs in Error, v. Nathaniel Buckmaster, Defendant in Error",
            "name_abbreviation": "President of the State Bank v. Buckmaster",
            "decision_date": "1826-06",
            "docket_number": "",
            "first_page": "176",
            "last_page": "177",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 176"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Cowles, states’ attorney, for plaintiff in error.",
                        "J. Reynolds, for defendant in error."
                    ],
                    "opinions": [
                        {
                            "author": "Justice Lockwood.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice Lockwood.\nThe only question submitted in this case is, whether the court ought to have suffered the amendment asked for. The mistake committed in the scire facias is clearly a clerical error, and upon the principle assumed by late cases, that the court will amend all such errors, the court below ought to have permitted it. The mistake in this case could not lead to any misapprehension or in the least tend to surprise the party. The doctrine of amendments is well calculated to advance justice and prevent delay. The constitution requiring\n*\nthat writs, &c., shall run “in the name of the people of the state of Illinois,” seems to be directory to the clerk or person issuing the process, and the omission of the words is a mere misprision of the clerk and ought not to work an injury to the plaintiffs. ' The court therefore erred in dismissing the scire facias and entering judgment against plaintiffs for the costs. The judgment is reversed with costs, and the cause remanded to the circuit court of Madison, for further proceedings,\n(a)\nJudgment reversed.\n* Article 4, section 7.\n(a) Generally, all amendments are within the discretion of the court, and are allowed in furtherance of justice, under the particular circumstances of the case. 6 Dane’s Dig., 280. A writ amended by adding the clerk’s name on paying costs. Id., 295.\nA ca. sa. on which the defendant had been taken was allowed to be amended by adding the testatum clause. 3 Johns. Rep., 144. 5 Johns. Rep., 163. 2 Term. Rep., 737. 5 Johns. Rep , 100. 1 Johns. Cas., 31. 3 Johns. Rep., 443.\nAmendments are reducible to no certain rule. Each particular case must be left to the sound discretion of the court. The best principle seems to be that an amendment shall or shall not be permitted, as it will best tend to the furtherance of justice. 1 Bin., 369. Clerical errors may be amended in a criminal as well as in a civii case. 2 Bin., 514. Mistakes and misprisions of the clerk may be amended at any time. Hanley v. Dewes, Miss. Rep., 17. Vide, 2 Tidd’s Prac., 1036. 2 Bos. & Pull., 275. 9 Johns. Rep., 386. 1 Bos. & Pull., 31, 137, 329. 5 id., 103."
                        }
                    ],
                    "head_matter": "The President and Directors of the State Bank, Plaintiffs in Error, v. Nathaniel Buckmaster, Defendant in Error.\nCowles, states’ attorney, for plaintiff in error.\nJ. Reynolds, for defendant in error.\nThis was a scire facias brought by the plaintiffs in the circuit court of Madison county, against the defendant, then sheriff of said county, to foreclose a mortgage executed by him to the State bank. A motion was made by defendant’s counsel, to dismiss the suit on the ground of irregularity in the scire facias, the words, “ the people of the state of Illinois to the coroner of Madison county,” having been omitted. A motion was also made by the plaintiffs’ counsel to amend the scire facias, which the court overruled, and sustained the motion of defendant to dismiss. The errors assigned are, in dismissing the scire facias and in disallowing the amendment.\nERROR TO MADISON.\nThe omission in a writ, of the words, “ The people of the state of Illinois to the coroner,” &c., is a mere misprision of the clerk and is amendable.\n(1)\n(1) The present constitution is identical with that of 1818, so far as relates to this case. Article 5, sec. 26, of Constitution of 1848. In McFadden v. Fortier, 20 Ill., 515, which was a demurrer to a scire facias, the defendant objected that it did not run in the name of “ The People of the State of Illinois; ” but the court said: “It has, however, been decided by this court, (State Bank v. Buckmaster,) in precisely such a case as this, that the omission of these words in a writ of sci. fa. is a mere misprision of the clerk, and is amendable after a motion is made to dismiss on account of the omission. Here no motion was made to amend.”\nA fee-bill is a process, and must conform to the requirement of the constitution, that “All process, writs and other proceedings, shall run in the name of “ The People of the State of Illinois,” or it is void. Ferris v. Crow, 5 Gilm., 96.\nThe precept under which the sheriff makes sale of lands for non-payment of taxes, is not a process, and therefore need not run in the name of “ The People.” Scarritt v. Chapman, 11 Ill., 443. Curry v. Hinman, id., 420. See also Harris v. Jenks, 2 Scam., 475.",
                    "parties": [
                        "The President and Directors of the State Bank, Plaintiffs in Error, v. Nathaniel Buckmaster, Defendant in Error."
                    ]
                }
            }
        },
        {
            "id": 435716,
            "url": "https://api.case.law/v1/cases/435716/",
            "name": "Adam W. Snyder, Appellant, v. The President and Directors of the State Bank of Illinois, Appellees",
            "name_abbreviation": "Snyder v. President of the State Bank",
            "decision_date": "1826-06",
            "docket_number": "",
            "first_page": "161",
            "last_page": "162",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 161"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Reynolds, for appellant.",
                        "Cowles, circuit attorney for appellees."
                    ],
                    "opinions": [
                        {
                            "author": "Justice Lockwood.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice Lockwood.\nThe plaintiffs below brought a scire facias in the St. Clair circuit court, on a mortgage, executed to them under the act incorporating the state bank. The defendant below pleaded that the consideration of the mortgage was the paper of the state bank, and that the incorporation of said bank was in violation of the constitution of the United States, and that therefore he is not bound to pay said mortgage. To this plea, the plaintiffs below demurred. The circuit court sustained the demurrer, and rendered judgment for the amount due on the mortgage. From which judgment the defendant below has appealed to this court.\nThe errors assigned are, 1. That the incorporation of the bank, and issuing the paper, are contrary to the constitution of the United States: 2. That there is no averment of money received by Snyder : 3. That there is no breach set out in the scire facias. As to the first point, the court are of opinion that the debtors of the bank can not raise the objection that the charter of the bank is a violation of the constitution. After having borrowed the paper of the institution, both public policy and common honesty require that the borrowers should repay it. It is, therefore, unnecessary to decide whether the incorporation of the bank was a violation of the constitution or not. As to the second assignment of error, the court are of opinion that the averment that Snyder made his note to plaintiffs for $760, is sufficient to show that he borrowed and received that amount.\nThe court, however, are of opinion that no breach has been assigned, and that the plaintiffs below by demurring to defendant’s plea, have opened the pleadings, so as to authorize the court to decide who committed the first error. For want then of a sufficient assignment of a breach of the note or mortgage, the judgment must be reversed with costs, and the cause remanded, with directions to permit an amendment of the scire facias, Sfc.\n(a)\nJudgment reversed.\n(a) Vide Craig v. The State of Missouri, where the constitutionality of the loan office of Missouri is discussed. 4 Peter’s Rep.\nBorrowers of loan office certificates are liable to pay the sum contracted for, and it is no defense to say that they are bills of credit. Missouri Rep., 452. Mansker et al. v. The State of Missouri."
                        }
                    ],
                    "head_matter": "Adam W. Snyder, Appellant, v. The President and Directors of the State Bank of Illinois, Appellees.\nReynolds, for appellant.\nCowles, circuit attorney for appellees.\nAPPEAL FROM ST. CLAIR.\nThe debtors to the state bank can not raise the objection that the bank is unconstitutional.\n(2)\nAn averment in the scire facias issued to foreclose a mortgage given to the state bank, that “ S.” made his note to plaintiff for $760, is sufficient to show that he borrowed and received that amount.\nJudgment will be rendered against him who commits the first error in pleading.\n(3)\n(2) This is overruled by the case of Linn v. State Bank, 1 Scam., 87, which see and notes.\n(3) Phœbe v. Jay, post. Davis v. Wiley, 3 Scam., 236. McDonald v. Wilkie, 13 Ill., 22. The People v. M. & A. R. R. Co., 13 Ill., 66. P. & O. R. R. Co. v. Neill, 16 Ill., 269.\nBut the rale that a demurrer must he carried back and sustained to the first defective pleading, does not apply to a plea in abatement. If a plea in abatement is bad, although the declaration may also be defective, the demurrer will be sustained to the plea, and the defendant ruled to answer over. Ryan v. May, 14 Ill., 49.\nA demurrer to a special plea can not be carried back to the declaration, after a direct demurrer to it has been overruled, and the general issue pleaded. Brawner v. Lomax, 23 Ill., 496.",
                    "parties": [
                        "Adam W. Snyder, Appellant, v. The President and Directors of the State Bank of Illinois, Appellees."
                    ]
                }
            }
        },
        {
            "id": 435743,
            "url": "https://api.case.law/v1/cases/435743/",
            "name": "Peter Kimmel, Plaintiff in Error, v. Conrad Shultz, Frederick Konig, and Lewis Mayer, Defendants in Error",
            "name_abbreviation": "Kimmel v. Shultz",
            "decision_date": "1826-06",
            "docket_number": "",
            "first_page": "169",
            "last_page": "171",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 169"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Eddy, for plaintiff in error.",
                        "Cowles, for defendants in error."
                    ],
                    "opinions": [
                        {
                            "author": "Justice Lockwood.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice Lockwood.\nThis is an action of debt brought on a judgment obtained in the state of Pennsylvania against the plaintiff in error, and Henry G. Pius, and Henry A. Kurtz. The writ and declaration in this suit, are also against all of the judgment debtors, but this judgment is rendered against Kimmel only. It appears from the sheriff’s return, that the writ was executed on all the defendants, and ■no reason is assigned why the judgment was not rendered against the whole.\nSeveral errors have been assigned, but it will be unnecessary to take notice of more than the second error, which is, that judgment was given against Kimmel on the plea of nul tiel record. This was clearly erroneous. The rule is well settled, that where a suit is brought against several joint debtors, you must recover against all the defendants or none, unless one or more of the defendants interpose a defense which is personal to himself, such as infancy or bankruptcy. Robertson v. Smith and others, 18 Johns. Rep., 459.\nIn this case it does not appear that Pius and Kurtz made any defense, consequently judgment ought to have been taken against them by default. The judgment for this error must be reversed with costs, and the cause remanded, with liberty to both parties to amend their pleadings.\nAs difficulty may arise in the further prosecution of this suit, the court think proper to remark, that according to the decision of the supreme court of the United States, in the case of Mills v. Duryee, 7 Cranch, 481, the plea of nil debet is not a good plea in an action of debt founded on a judgment recovered in any of the courts of the several states, and upon the principles assumed in that case, the third plea would be bad. Such judgments, according to that case, are to be regarded in the same light they would have been, had they been sued upon in the courts of the state where they were originally recovered. No other defense can here be made, but what could have been made in Pennsylvania, and if the common law doctrine in relation to judgments prevails in that state, the question in relation to the partnership of Kimmel, Pius and Kurtz, must be considered as conclusively settled, so far as regards this suit, by the judgment in Pennsylvania.\nThe decision in the case of Mills v. Duryee, has by courts of great respectability, in several of the states, been regarded as a harsh decision, and may lead to many oppressive consequences if adopted in extenso. The court, in delivering that opinion, seemed to be aware that there was a description of judgments, such as judgments obtained on attachments without notice, that ought to be an exception to their rule, and they appear to lay stress on the fact that in the case under consideration the defendant had notice and appeared in the suit.\nIt istherefore suggested by the court to the counsel for the defendants in error, whether it ought not to appear from the declaration what the notice in the original suit was, and what is the effect of the judgment in Pennsylvania. The laws of the several states are to be considered as facts, and in general, like other facts, ought to be averred and proved. If the law, however, presumes that the judgment was obtained upon sufficient notice of the pendency of the suit, it would probably be proper for the defendant, by plea, to allege such facts as would be sufficient to show that the judgment ought not to be clothed with its conclusive character as at common law.\nThe court would also remark that in case this suit should be brought again before them in regard to the effect and nature of the record produced in evidence, that the record ought to be brought up by a bill of exceptions. As it is presented to them in this case, they could not notice it. From any thing that appears on the record, it was received as evidence in the court below, without objection,\n(a)\n(a) See Browder v. Johnson, ante, page 96."
                        }
                    ],
                    "head_matter": "Peter Kimmel, Plaintiff in Error, v. Conrad Shultz, Frederick Konig, and Lewis Mayer, Defendants in Error.\nEddy, for plaintiff in error.\nCowles, for defendants in error.\nERROR TO JACKSON.\nWhere a suit is brought against several joint debtors, a recovery must be had against all or none, unless one or more of the defendants interpose a defense which is personal to himself, such as infancy or bankruptcy.\n(1)\nA judgment rendered in a sister state, is to be regarded in the same light here, as it would be in the state where it was rendered.\n(2)\nThe court can not notice a judgment record on which suit is brought, unless it is made a part of the record by bill of exceptions.\n(1) In an action of debt or assumpsit against several, when all are served with process, the judgment must be against all or none, unless some of them interpose a defense personal to themselves, such as infancy or bankruptcy; and it is immaterial whether the liability is joint, or joint and several. Owen et al. v. Bond, ante, p. 128. Russel v. Hogan, 1 Scam., 552. Hoxey v. County of Macoupin, 2 Scam., 36. McConnell v. Swailes, id., 571. Tolman v. Spaulding, 3 Scam., 14. Frink et al. v. Jones, 4 Scam., 170. Wright et al. v. Meredith, id., 361. And if a writ is issued against several and served on part only of the defendants, the plaintiff must show a right of action against all, or he can not recover against such as are served with process.\nA judgment against several is a unit, and if erroneous as to one, must be reversed as to all. Brockman v. McDonald, 16 Ill., 112.\n■ (2) Under the constitution of the United States, and the laws of Congress, the judgments in personam of the different states,-are placed on the footing of domestic judgments ; and they are to receive the same credit and effect, when sought to be enforced in different states, as they have by law or usage in the particular state where rendered. A judgment fairly and duly obtained in one state, is conclusive between the parties when sued on in another state. Bimeler v. Dawson et al., 4 Scam., 542. Welch v. Sykes, 3 Gilm., 199. Buckmaster v. Grundy et al., id., 626. Fryrear v. Lawrence, 5 Gilm., 325. McJilton v. Love, 13 Ill., 491. The cases of Mills v. Duryee, 7 Cranch, 481, referred to in the opinion of Justice Lockwood, and Hampton v. McConnel, 3 Wheaton, 234, are to the same effect.\nThe defendant may show, in bar of an action on the record of a judgment, in another state, that the judgment was fraudulently obtained, or that, the court pronouncing it had neither jurisdiction of his person, nor of the subject matter of the action. If he succeed in establishing any one of these defenses, the judgment is entitled to no credit, and the plaintiff is driven to his suit on the original cause of action. See the cases cited above: also Harrod v. Barretto, 2 Hall, 302. Shumway v. Stillman, 6 Wend., 447. Starbuck v. Murray, 5 Wend., 148.\nIn an action on a record which shows that the appearance of the defendant was entered by an attorney, the authority of the attorney will be presumed; but it may be shown by the defendant that the attorney had no such power, and thereby defeat a recovery. Thompson v. Emmert, 15 Ill., 415. And the same opinion is intimated in Welch v. Sykes, 3 Gilm., 197.\nThe record of a judgment is used as evidence on the trial; and when introduced, affords conclusive evidence of the facts stated in it. Thus, if the record shows affirmatively that the defendant was personally served with process, or personally appeared to the action, it furnishes conclusive evidence of the fact stated, and the defendant can not controvert it. Rust v. Frothingham, post. Welch v. Sykes, 3 Gilm., 197. Thompson v. Emmert, 15 Ill., 415. Hall v. Williams, 6 Pickering, 232. 6 Wend., 447.\nIn Owens v. Ranstead, 22 Ill., 161, the reasoning of the court is apparently in conflict with the cases above cited. They there held that the return of an officer to a writ, is only prima facie evidence of the facts stated in it; and in a proper case equity would relieve against the effects of it. Perhaps the better reason is, and consistent with the various decisions on the subject, that although, in an action at law on the record, the defendant can not controvert it, yet if it be untrue in fact, he may obtain relief in equity.",
                    "parties": [
                        "Peter Kimmel, Plaintiff in Error, v. Conrad Shultz, Frederick Konig, and Lewis Mayer, Defendants in Error."
                    ]
                }
            }
        },
        {
            "id": 435748,
            "url": "https://api.case.law/v1/cases/435748/",
            "name": "Edward Coles, Plaintiff in Error, v. The County of Madison, Defendant in Error",
            "name_abbreviation": "Coles v. County of Madison",
            "decision_date": "1826-06",
            "docket_number": "",
            "first_page": "154",
            "last_page": "161",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 154"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
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            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
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            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
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                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
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            "jurisdiction": {
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                "id": 29,
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                "name": "Ill.",
                "name_long": "Illinois",
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            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Starr, for plaintiff in error.",
                        "Turney and Reynolds, for defendant in error."
                    ],
                    "opinions": [
                        {
                            "author": "Chief Justice Wilson.\n*",
                            "type": "majority",
                            "text": "Opinion of the Court by\nChief Justice Wilson.\n*\nThis is an action of debt brought by the county commissioners of Madison county, for the use of the county, against Edward Coles, for $2,000, as a penalty for bringing into the county, and setting at liberty, ten negro slaves, without giving a bond, as required by an act of the legislature of 1819. To this action, Coles plead the statute of limitations, which plea was demurred to, and the demurrer sustained by the court, and the parties went to trial upon the issue of nil debet. A verdict was found against Coles, at the September term, 1821, of the Madison circuit court, but no judgment was rendered upon it, till September, 1825, the cause having been continued till that time, under advisement, upon, a motion for a new trial. In January, 1825, the legislature passed an act releasing all penalties incurred under the act of 1819, (including those sued for,) upon which Coles was prosecuted.\nThis act Coles plead puis darrien continuance, and renewed the motion for a new trial, but the court overruled the motion, and rejected the plea, and rendered judgment for the plaintiffs.\nThere are several causes assigned for error, but the one principally relied upon is, that the court rejected the defendant’s plea, (as a bar to the further prosecution of the suit,) alleging a compliance on his part with the act of January, 1825.\nThe only question for the decision of the court, from this statement of the case, is, Was the legislature competent to release the plaintiff in error from the penalty imposed for a violation of the act of 1819, after suit brought, but before judgment rendered? or in other words, could they, by a repeal of the act imposing the penalty, bar a recovery of it ? If the legislature can not pass an act of this description, it must be because it would be in violation of that provision of the constitution of the United States, (and which has in substance been adopted into ours,) which denies to the state legislatures the right to pass an ex post facto law, or law impairing the obligation of contracts. This is the only provision in that instrument, that has any bearing upon the present question.\nIs the law of 1825, then, an ex post facto law, or does it impair the obligation of a contract ? The term ex post facto is technical, and must be construed according to its legal import, as understood and used by the most approved writers upon law and government. Judge Blaclcstone says, “ an ex post facto law is where, after an action (indifferent in itself) is committed, the legislature then, for the first time, declare it to have been a crime, and inflict a punishment upon the person who committed it.” This definition is familiar to every lawyer, and I am not aware of any case in either the English or American courts, hi which its correctness is denied.\nIt appears from the Federalist, a work which has been emphatically styled the text-book of the constitution, that the term was understood and used in this sense by the framers of that instrument. The authors of this work were among the ablest statesmen and civilians of the age,—two of them were members of the convention that framed the constitution, and would not have been mistaken in the meaning of the terms used in it. Judge Tucker, in his notes on the Commentaries of Blackstone,\"also adopts it as the true one, and it is evident from the tenor of his comments upon the principles contained in that work, that if there had been any doubt of the correctness of this one, that it would not have been passed in silence, much less would it have received his approbation.\nBut that the term ex post facto is applicable only to laws relating to crimes, pains and penalties, does not rest upon the bare acquiescence of the courts, or the authority of elementary writers. It has received a judicial exposition by the highest tribunal in the nation. The decision of the Supreme Court of the United States, in the case of Calder and wife v. Bull and wife, 3 Dallas, 386, must be considered as having put this question to rest. The point decided in that case was, as to the validity of an act of the legislature of Connecticut, which had a retrospective operation, but which did not relate to crimes. All the state courts, through which that case passed, decided in favor of the validity of the law. It was then taken up to the supreme court of the United States, where the judgment was affirmed. The court was clearly of opinion, that the prohibition in the United States constitution was confined to laws relating to crimes, pains and penalties. Judge Chase, in delivering his opinion, says, “ every ex post facto law must, necessarily, be retrospective, but every retrospective law is not an' ex post facto law; the former, only, are prohibited by the constitution.” Patterson, Justice, said, “he had an ardent desire to have extended the provision in the constitution to retrospective laws in general,” and concludes his remarks by saying, “but on full consideration, I am convinced that ex post facto laws must be limited in the manner already expressed.” Sergeant’s Constitutional Law, 347. No higher evidence, I believe, can be adduced, of the existence of any principle of law, than is afforded by these authorities, that the law under consideration is not an ex post facto one. It is considered that it is retrospective, and that as a general principle of legislation it is unwise to enact such laws; yet it is not the province of a court to declare them void. No prohibition to the exercise of such a power by the legislature is contained in the constitution of the United States or of this state, and it is an incontrovertible principle, that all powers which are not denied them by one or other of those instruments, are granted. The next inquiry is, does this law violate the obligation of a contract?\nThis question is easily answered. A contract is an agreement between two or more, to do, or not to do, a particular act—nothing like this appears in the present case.'* If a judgment had been obtained, the law might, by implication, raise a contract between the parties; but until judgment, the defendant is regarded as a tortfeasor; he is prosecuted upon a penal statute for a tort; the action would die with him, which would not happen in the case of a contract. It is idle, therefore, to talk of a contract between the plaintiff and defendant, and it is only between the contracting parties that the legislature is prohibited from interfering. But in this case there is no contract between any parties, and all reasoning founded upon the idea of a contract, is nugatory. But it is said, the legislature could not pass this law, because the plaintiffs have acquired a vested interest in the penalty, by commencing suit, which can not be taken away.\nThe authorities relied upon to support this position, are not apposite. The decisions in those cases, turned on the construction of the laws, and not on the authority of the legislature to pass them. In the case of Coleman v. Shower, (2 Show.,) which was an action brought after the passage of the statute of frauds and perjuries, upon a marriage promise made by parol, the judges said, they believed the intention of the makers of that statute was only to provide for the future, and not to annul parol promises which were good and valid in law, at the time they were made. In the case of Couch qui tam v. Jeffries, (4 Burrow, 2460,) lord Mansfield placed his opinion on the intention of the legislature, which, he believed, was not to do injustice to the plaintiff, by subjecting him to costs. So, too, in Dash v. Van Kleeck, 7 Johns., 577, the same ground was assumed. The court did not intend to decide that the legislature could not pass a retrospective law, but that the one under consideration was not necessarily retrospective, and therefore ought not to receive that construction. In this opinion, the court was divided three to two. But had the plaintiffs a vested interest in the penalty before judgment? a vested right is one perfect in itself, and which does not depend upon a contingency, or the commencement of suit. Suit is the means of enforcing, or acquiring possession of a previously vested interest, but the commencement of suit does not of itself, even in a qui tam, or popular action, vest a right in the penalty sued for. The only consequence that results from the commencement of a popular action is, that it prevents another person from suing, and the executive from releasing the penalty. Blackstone, (vol. 2, p. 442,) in speaking of the means of vesting a right in chattel interests, says, “ and here we must be careful to distinguish between property, the right of which is before vested in the party, and of which only possession is recovered by suit or action, and property, to which a man before had no determinate title, or certain claim, but he gains as well the right, as the possession, by the process and judgment of the law. Of the former sort, are debts and choses in action.” In these cases the right is vested in the creditor by virtue of the contract, and the law only gives him a remedy to enforce it. “But,” continues he, “there is also a species of property to which -a man has not any claim or title whatsoever, till after suit commenced and judgment obtained in a court of law, where before judgment had, no one can say he has any absolute property, either in possession or in action; of this sort are, first, such penalties as are given by particular statutes, to be recovered in an action popular.” Here is an authority directly in point. In the present case no judgment had been rendered previous to the passage of the law releasing the penalty, consequently, no right to the penalty had vested in the plaintiffs, which this law directs. The right which the plaintiffs had acqxxired by the commencement of the suit was, according to Blackstone, “ an inchoate, imperfect degree of property,” which required the judgment of the court to consummate, and render it a vested right. Before judgment in a popular action, the property in the penalty is imperfect and contingent, liable to be destroyed by a repeal of the statute upon which suit is brought. This principle is settled in a variety of cases; in that of Seaton v. The United States, 5 Cranch, p. 283, Judge Marshall, in delivering the opinion of the court says, “ That it has been long settled upon general priixciples, that after the expiration or repeal of a law, no penalty can be imposed or punishment inflicted, for violations of the law committed while it was in force.” The same point was decided in the case of the Schooner Rachael v. The United States, 6 Cranch, 329; and in the case of the United States v. Ship Helen, 6 Cranch, 203, the doctrine is fully settled that, even after judgment of condemnation in rem for a breach of the embargo laws, provided the party appeals, or obtains a writ of error, he may avail5 himself of a statute repealing the penalty enacted subsequent\" to such condemnation. In The People v. Coleman, the court unanimously awarded a new trial, in ordér that the defendant might avail himself of a defense given by a statute passed subsequent to the commission of the offense; and in the case of the Commonwealth v. Duane, 1 Binney, 601, the defendant had been indicted at common law for a libel: after a verdict, and before judgment, the legislature passed a law that, “after the passage of this act no person shall be prosecuted criminally for a libel.” The supreme court refused to give judgment on the verdict. The terms of this act were not retrospective, yet the court considered it so, and must necessarily have acknowledged the power of the legislature to pass such laws. (See also, Sergeant’s constitutional law, 348; 1 Cranch, 109, and 3 Dall., 279.) These cases require no comment. They are directly on the point under consideration, and have settled the doctrine, that a repeal of a law imposing a penalty, after verdict for the penalty, is a bar to a judgment on the verdict. The court has no longer any jurisdiction of the case. There is no law in force upon which they can pronounce judgment. If then, the legislature can, by a total repeal of the law of 1819, defeat a recovery for an infraction of it before judgment, can they not by the act of 1825, release all penalties incurred anterior to its passage? There is no rule of law which denies them the power of doing that indirectly, which they may do directly. In effect and in principle, there is no difference, and the power to do the greater act, includes the less.\nIt is said that the king can not remit an informer’s interest in a popular action after suit brought; this is no doubt true, but it is equally true that the parliament can. It is not pretended that the executive could remit the penalty in this case, but that the legislature may. Neither the constitution of the United States, or of this state, contain any prohibition to the exercise of such a power by the legislature, and their powers have no limits beyond what are imposed by one or other of those instruments, nor is it necessary that they should. They form an ample barrier against tyranny and oppression in every department of the government, and secure to the citizens every right in as perfect a manner as is compatible with a state of government. If they should, by mistake, or from any other cause, attempt the exercise of a power incompatible with the constitution, the obligation of a court to resist it is imperative. But “ it is not in doubtful cases, or upon slight implications, that the court should pronounce the legislature to have transcended their powers. In the present case, I am clearly of opinion, they have not done so. The law under consideration is not an ex post facto law, because the generally received and well settled import of the term is not applicable to a law of this character. It impairs the obligation of no contract, for the conclusive reason that no contract ever existed, and for the same reason it can not be said to destroy a vested right. 2 Dall., 304. 1 Cranch, 109.\nThe objection that this law works injustice to the county, is not well founded. All the rights of the county, contemplated to be secured by the law of 1819, are secured by this.\nThe object of the law of 1819 was to compel persons bringing slaves into this state for the purpose of emancipation, to give bond for their maintenance. This law requires the bond to be given, which has been done, and all costs of suit and damages incurred in any case to be paid, which the defendant has also offered to do in this case. The county, then, is secured, not only against prospective injury, but against all damages heretofore sustained. There is no ground of complaint, then, on the part of the county; they are secured in their rights, and lose nothing. In another point of view which this case is susceptible of, I am satisfied that the law under consideration, is not unconstitutional. On an inquiry into the different kinds of corporations, their uses and objects, it will appear that a plain line of distinction exists between such as are of a private and such as are of a public nature, and form a part of the general police of the state. Those that are of a private nature, and not general to the whole community, the legislature can not interfere with. The grant of incorporation is a contract. But all public incorporations which are established as a part of the police of the state, are subject to legislative control, and may be changed, modified, enlarged, restrained, or repealed, to suit the ever varying exigencies of the state. Counties are corporations of this character, and are, consequently, subject to legislative control.\nWere it otherwise, the object of their incorporation wquld be defeated. It can not be doubted that Madison county, as a county, might be stricken out of existence, and her interest in a popular action thereby defeated. Upon what principle, then, can it be contended, that the legislature can not remit a penalty in a popular action brought for her benefit ? Every view I have been able to take of this interesting and important subject leads to the conclusion that the legislature have the constitutional power to pass the act of 1825, releasing Coles, upon the terms prescribed in that act.\nThe judgment of the court below must be reversed, and the proceedings remanded, with directions to the circuit court to receive the defendant’s plea upon his paying costs, Ac.\n(a)\n,\n(1)\nJudgment reversed.\n* Justice Lockwood having been counsel in this cause, gave no opinion.\n(a) In the case of Fletcher v. Peck, 6 Cranch, 138, the supreme court of the United States say, that an ex post facto law is one which renders an act punishable in a manner in which it was not punishable at the time it was committed. This definition, says Kent in the 1st volume of his Comm., page 382, is distinguished for its comprehensive brevity and precision, and it extends equally to laws inflicting personal or pecuniary penalties, and to laws passed after the act, and affecting a person by way of punishment, either in his person or estate.\nThe legislature is competent to relieve from a forfeiture after judgment, and where the money goes to a county. Conner v. Bent, Missouri Rep., 235.\n(1) In the case of The People v. Wren, it was said by the court, (approving of the case of Coles v. County of Madison,) “As the constitution of this state contains no restrictions, either express or implied, upon the action of the legislature in such a case, we hold that it has absolute control over municipal corporations—to create, change, modify, or destroy them at pleasure.” 4 Scam., 273. The same principle is held in Bradley v. Case, 3 Scam., 585. Bush v. Shipman, 4 Scam., 186. County of Richland v. County of Lawrence, 12 Ill., 8. Trustees of Schools v. Tatman, 13 Ill., 30. Gutzweller v. The People, 14 Ill., 142.\nUnder the constitution of 1818, the governor had the power to grant a pardon to one convicted of a crime, and thereby not only release him from imprisonment, but also from a fine, which otherwise would have belonged to the county. Holliday v. The People, 5 Gilm., 216. And it is believed the present constitution does not lessen the power of the governor in this respect. Constitution of 1848, art. 5, sec. 8."
                        }
                    ],
                    "head_matter": "Edward Coles, Plaintiff in Error, v. The County of Madison, Defendant in Error.\nStarr, for plaintiff in error.\nTurney and Reynolds, for defendant in error.\nERROR TO MADISON.\nThe legislature have the power, by an act of their own, to release a penalty accruing to a county, after verdict but before judgment. Such an act is not unconstitutional, it being neither an ex post facto law, or law impairing the obligation of contracts, and it can be pleaded, puis darrien continuance.\nCounties are public corporations, and can be changed, modified, enlarged, restrained, or repealed, to suit the ever varying exigencies of the state—they are completely under legislative control.",
                    "parties": [
                        "Edward Coles, Plaintiff in Error, v. The County of Madison, Defendant in Error."
                    ]
                }
            }
        },
        {
            "id": 435760,
            "url": "https://api.case.law/v1/cases/435760/",
            "name": "Thomas Reynolds, Appellant, v. James Mitchell and others, Appellees",
            "name_abbreviation": "Reynolds v. Mitchell",
            "decision_date": "1826-06",
            "docket_number": "",
            "first_page": "177",
            "last_page": "179",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 177"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
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                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
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            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Cowles, for appellant.",
                        "Blackwell, for appellee."
                    ],
                    "opinions": [
                        {
                            "author": "Justice Lockwood.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice Lockwood.\nThe court are of opinion, that the appellant has misconceived his remedy. If the judgment before the justice was rendered for too great an amount, the remedy was an appeal to the circuit court. The plaintiff having neglected to take an appeal, can not now be relieved in equity. The court had a right to dismiss the bill, and dissolve the injunction, without compelling an answer from all the defendants. The judgment is affirmed with costs.\n(1)\nJudgment affirmed.\n(1) In Sims v. Hugsby, post, a default was entered against the defendant, and the clerk ordered to assess the damages. The clerk, in making the computation, overlooked a credit indorsed on the note sued on, and thereby entered the judgment for more than was due. The supreme court, in that case, said: \"If the clerk, in the discharge of that duty, (assessing damages,) should allow either too much or too little, the court, under whose direction it is made, will, upon motion, correct it. To that court, then, and not to this, the application should be made.” And again in Wilcox v. Woods et al., 3 Scam., 51, “It is alleged that the court erred in rendering judgment for a larger amount than the note, as set out in the declaration, shows the plaintiff entitled to recover. This can not be assigned for error. The proper remedy of the party was by motion in the court below, where the error could have been corrected.” This was again repeated in Smith v. Lusk, 3 Scam., 411. But I can not satisfy myself that the principle intended to be established by these cases is correct. In the cases referred to, the decisions were correct so far as they related to those particular cases, because the notes not being a part of the declaration, and not being preserved in any manner in the record, the court could not see that the assessments were too large. But suppose a note is set out in hcec verba in the declaration, thereby making it a part of the declaration, and the record shows the judgment to be for more than the plaintiff sued for, why is it not error that the supreme court can reform ? Suppose a verdict to be found by a jury; the evidence is preserved by a bill of exceptions; and from that the court sees the plaintiff has obtained a verdict to which he was not entitled, and will set it aside without hesitation. And why? Because the record shows the verdict is too large. Now if the clerk, instead of a jury, assess the damages, and commits an error, and the record shows the error, why is it not the duty of the appellate court to correct it as well as if it had been the fault of a jury ? Can there be any reason why the court will interpose to correct the errors of a jury, and not of a clerk, when the record in both cases shows the error ?\nIn a late case, Sexton v. School Com’r, 19 Ill., 51, the court in fact decided in accordance with these views, although the report does not show that this question was raised. The action was on a note executed to the school commissioner. A default was entered, and the clerk in assessing damages included twelve per cent, interest, and this was reversed, although the error was not preserved in the record in any other manner than the statement made in the declaration, and the judgment. See also, 6 Mass. Rep., 272. 2 Wash. Rep., 173.\nAn injunction may be dissolved, on motion, before answer, where there is no equity on the face of the bill. Richard et al v. Prevo, post. Puterbaugh v. Elliott et al., 22 Ill., 157. Beaird v. Foreman, post."
                        }
                    ],
                    "head_matter": "Thomas Reynolds, Appellant, v. James Mitchell and others, Appellees.\nCowles, for appellant.\nBlackwell, for appellee.\nThis was a bill in chancery, filed by Reynolds against Mitchell and others. The bill states that Reynolds made his note in 1821, to one Wm. Small, for one hundred state paper dollars, or bills of the State Bank of Illinois, which Small assigned in the same year to Mitchell, who is made defendant to the bill, and that said Mitchell, as assignee of said Small, afterwards brought his action on said note, before one Edmund F. Wilkinson, a justice of the peace for St. Clair county, on the 21st of September, 1822, and obtained a judgment on said note for 99 dollars and 99 cents, and that said Wilkinson, who is also made defendant, combining and .confederating with the said Mitchell to defraud said Reynolds, rendered judgment on said contract for so much specie, when the said paper, when the note became due, was worth only 40 cents to the dollar, and that the justice had no power to give judgment for the nominal amount of the note in specie. The bill further alleges that Reynolds, at the time the judgment was rendered, offered to the justice the amount of the note in bills of the State Bank, which were refused— that an execution has issued on said judgment for specie which Reynolds replevied for three years, after the expiration of which, another execution issued for specie, which was levied on the personal property of Reynolds. The bill prays for an injunction, and the defendants to answer, &c. Mitchell alone answered the bill, admitting the purchase of the note from Small, and the rendering judgment thereon, and the replevy, &c.,but denies that Reynolds ever offered to the justice the amount of the note before the judgment, averring his willingness to take it before the judgment, but not after, and contended that as Reynolds did not pay the note in State Bank paper before the judgment, and when it was due, that he was entitled, therefore, to recover the value of the amount of said state paper, at the time the note fell due, and that said justice had a right to determine judicially what that value was, and that he did determine it to he 99 dollars and 99 cents, as stated in the bill. He also pleads the judgment and replevy in bar of all equity—denies that state paper was not worth more than 40 cents to the dollar, and all fraud, combination, &c. Upon filing this answer, a motion was made to dissolve the injunction and dismiss the bill, which was sustained by the court, and an appeal taken to this court. It was assigned for error that the court erred in dismissing the bill and dissolving the injunction, for the reason, First, because the justice had no right, by law, to render a judgment for specie, on the note ; and Second, because a decree was made, and the injunction dissolved, when the parties in interest, and charged in said bill, had not answered, to wit, the justice Wilkinson.\nAPPEAL FROM ST. CLAIR.\nWhere judgment is rendered by a justice of the peace, for a greater amount than the defendant owes, his remedy is not by application to a court of equity, but by appeal to the circuit court.\nIt is right to dissolve an injunction and dismiss the bill, without compelling an answer from all the defendants.",
                    "parties": [
                        "Thomas Reynolds, Appellant, v. James Mitchell and others, Appellees."
                    ]
                }
            }
        },
        {
            "id": 435783,
            "url": "https://api.case.law/v1/cases/435783/",
            "name": "Alsworth Baker, Appellant, v. Samuel Whiteside, Appellee",
            "name_abbreviation": "Baker v. Whiteside",
            "decision_date": "1826-06",
            "docket_number": "",
            "first_page": "174",
            "last_page": "175",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 174"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Starr, for appellant.",
                        "Cowles, for appellee."
                    ],
                    "opinions": [
                        {
                            "author": "Chief Justice Wilson.\n*",
                            "type": "majority",
                            "text": "Opinion of the Court by\nChief Justice Wilson.\n*\nThis is an appeal from the Madison circuit court, in an action of covenant on a writing obligatory, executed by S. Whiteside to A. Baker, in the penalty of two hundred dollars, that if he, the said Baker, should pay to the said Whiteside one hundred and twenty-five dollars, on or before the first day of October next ensuing, he, the said Whiteside, would execute and deliver to the said Baker, a deed in fee simple, for a lot in the town of Bdwardsville.\nBaker avers in his declaration, that he did pay the sum of one hundred and twenty-five dollars, according to agreement; nevertheless, the said Whiteside did not, on the first day of October, or at any time before or since, execute and deliver to the said Baker, a good and sufficient deed, although often requested so to do. To this declaration, the defendant pleaded two pleas :\n1. That the plaintiff made no demand of the said defendant, for the deed specified, and that the said defendant was always ready and willing to execute the same.\n2. That the said defendant offered to make the deed according to his covenant, and the said plaintiff objected, and said, when he wished the deed he would apply for it.\nBoth these pleas are demurred to, and the question presented for our determination is, whether or not, the court below erred in overruling the demurrers.\nAs the second plea presents the strongest ground of defense, we will consider it first. If it is a correct principle of law, and that it is, the court is fully satisfied, that he who prevents a thing from being done, shall not avail himself of the non-performance he has occasioned, the demurrer was correctly overruled. The plaintiff’s conduct can be considered in no other light than a waiver of the condition of the bond so far as related to the time of its performance. As a general rule, it is true, that the terms of a written agreement can not be changed by parol, but that the time of its performance may be extended, is settled by a variety of cases; that of Keating v. Price, 1 Johns. Cases, 22, is directly in point. In that case, the defendant promised in writing, to deliver a quantity of staves, on or before the first day of May, 1796. The defendant, on the trial, proved, that in January, 1796, the plaintiff agreed to extend the time until the spring following. The court said, that an extension of time may often be essential to the performance of contracts, and there can be no reason why a subsequent agreement for that purpose, should not be valid, and proved by parol evidence.\nThe first plea, the court is of opinion, is also good. According to the true construction of the contract, no time is fixed for executing and delivering the deed; a demand by the plaintiff was therefore necessary, and as no such demand is averred specially, the demurrer to the plea was correctly overruled. The judgment of the court below is affirmed, and the cause remanded, with leave to the plaintiff to with-' draw his demurrer, and take issue on the pleas filed,\n(a)\nJudgment affirmed.\n* Justice Smith having been counsel in this cause, gave no opinion.\n(a) 3 Durnford and East’s T. R., 591. Philip’s Evidence, 439. The time of the performance of the condition of a bond may be enlarged by a parol agreement between the parties. Fleming v. Gilbert, 3 Johns. Rep., 528. See also Thompson v. Ketchum, 8 Johns. Rep., 189."
                        }
                    ],
                    "head_matter": "Alsworth Baker, Appellant, v. Samuel Whiteside, Appellee.\nStarr, for appellant.\nCowles, for appellee.\nAPPEAL FROM MADISON.\nAs a general rule, the terms of a written agreement can not be changed by parol, but the time of its performance may be extended.\n(1)\nTo a declaration on a contract to convey a lot of ground by deed, if one hundred and twenty-five dollars was paid at a certain time, a plea, that no demand was made for the deed, and that defendant was always ready and willing to execute it, and that the defendant offered to make the deed according to his covenant, and the plaintiff objected and said when he wished the deed he would apply for it, is good.\n(2)\n(1) The time of performance of a contract may be extended by a subsequent parol agreement, and no new consideration is necessary, where there are mutual acts to be performed by the parties. Wadsworth et al. v. Thompson, 3 Gilm., 423.\n, It is a familiar principle, that you may give evidence to explain, but not to vary, add to, or alter a written contract. This is a general rule. But if there is doubt and uncertainty, not about what the substance of the contract is, but as to its particular application, it may be explained and properly directed. Lane v. Sharp, 3 Scam., 573. Doyle et al. v. Teas et al., 4 Scam., 257. Scott, administrator v. Bennett, 3 Gilm., 254. Scammon v. Adams et al., 11 Ill., 577. O’Reer v. Strong, 13 Ill., 689. Harlow v. Boswell, 15 Ill., 57.\n(2) In case of bond to convey land, the purchaser is not bound to prepare and tender a deed to the vendor to execute, unless such obligation can be fairly inferred from the terms of the contract. The rule may be different in England. Buckmaster v. Grundy, 1 Scam., 314. 2 Randolph, 20.",
                    "parties": [
                        "Alsworth Baker, Appellant, v. Samuel Whiteside, Appellee."
                    ]
                }
            }
        },
        {
            "id": 435797,
            "url": "https://api.case.law/v1/cases/435797/",
            "name": "Josiah Wright, Plaintiff in Error, v. John Armstrong, Defendant in Error",
            "name_abbreviation": "Wright v. Armstrong",
            "decision_date": "1826-06",
            "docket_number": "",
            "first_page": "172",
            "last_page": "173",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 172"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Starr and Cowles, for plaintiff in error.",
                        "Blackwell, for defendant in error."
                    ],
                    "opinions": [
                        {
                            "author": "Justice Browne.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice Browne.\nThis was an action of replevin, brought against the plaintiff in error for the unlawful taking of a horse. The, defendant pleaded, besides property in himself and property in a third person, non cepit, and the statute of limitations. On the trial before the circuit court of Madison county, the defendant in error, the plaintiff helow, proved the horse was claimed to belong to plaintiff’s wife. That it was also claimed by Philip Creamer, who sold the horse to one Lock, who sold it to one Elihu Mather, who sold it to the defendant. This was all the evidence of taking by the defendant.\nTo maintain the action of replevin, there must be an unlawful taking from the actual, or constructive possession of the plaintiff, which has not been proved. The judgment must therefore be reversed,\n(a)\n,\n(1)\nJudgment reversed.\n(a) Replevin lies for any unlawful taking of a chattel, and possession by the plaintiff and an actual wrongful taking by the defendant, are necessary to support the action. Pangburn v. Patridge, 7 Johns. Rep , 140.\n_ The action of replevin is grounded on a tortious taking, and sounds in damages like an action of trespass. Hopkins v. Hopkins, 10 Johns. Rep., 369.\nAt common law, a writ of replevin never lies, unless there has been a tortious taking, either originally or by construction of law, by some act which makes the party a trespasser ab initio. Meany v. Head, 1 Mason, 319.\nThe plea of non cepit puts in issue the fact of an actual taking; and unless there has been a wrongful taking from the possession of another, it is not a taking within the issue; and a wrongful detainer after a lawful taking, is not equivalent to an original wrongful talcing. Ibid.\nA mere possessory right is not sufficient to support this action; there must be an absolute, or at least a special property in the thing claimed. 5 Dane’s Dig., 516.\n(1) The present statute in relation to replevin is as follows : “ Whenever any goods or chattels shall have been wrongfully distrained, or otherwise wrongfully taken, or shall be wrongfully detained, an action of replevin may be brought for the recovery of such goods or chattels, by the owner or person entitled to their possession.” Purple’s Statutes, p. 868, Sec. 1. Scates’Comp., p. 226."
                        }
                    ],
                    "head_matter": "Josiah Wright, Plaintiff in Error, v. John Armstrong, Defendant in Error.\nStarr and Cowles, for plaintiff in error.\nBlackwell, for defendant in error.\nArmstrong, the plaintiff in the court below, sued out a writ of replevin against Wright for a horse, to which Wright pleaded non cepit; secondly, property in one Eliliu Mather ; thirdly, property in himself; and lastly, the statute of. limitations. On the trial a bill of exceptions was taken, from which it appears that the plaintiff proved that the horse in question was the property of his wife,—before her intermarriage with him, and while she was a minor, the horse strayed from her, and was not in her actual possession for five years before the commencement of the suit. The defendant proved that the horse in question was in the possession of Philip Creamer for about three years, who sold and delivered him to one Lock, who sold and delivered him to Elihu Mather, who sold and delivered him to the defendant. It was claimed that the horse had strayed from the plaintiff more than five years previous to the commencement of this suit, during a part of which time the plaintiff’s wife was a minor. No other taking was proved on the part of the defendant than the aforesaid sale and delivery, except that it was proved that Creamer took the horse into his possession after it strayed from plaintiff’s wife. The jury found the property in the plaintiff. A motion was made, on this proof, to direct a nonsuit, which the court overruled, but gave judgment on the verdict for the plaintiff, to reverse which judgment a writ of error was taken to this court, where it was assigned for error, that the court ought to have directed a nonsuit, for the reasons, first, because no actual taking of property in the plaintiff’s declaration mentioned, was proved to have been done on the part of Wright, the defendant; second, that no tortious taking of the said property was shown on the part of said Wright; and third, that no taking was proved from the plaintiff’s possession by any person.\nERROR TO MADISON.\nTo maintain the action of replevin there must be an unlawful talcing from the actual, or constructive possession of the plaintiff.",
                    "parties": [
                        "Josiah Wright, Plaintiff in Error, v. John Armstrong, Defendant in Error."
                    ]
                }
            }
        },
        {
            "id": 435810,
            "url": "https://api.case.law/v1/cases/435810/",
            "name": "David Rankin, Plaintiff in Error, v. William A. Beaird, Sheriff, Defendant in Error",
            "name_abbreviation": "Rankin v. Beaird",
            "decision_date": "1826-06",
            "docket_number": "",
            "first_page": "163",
            "last_page": "164",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 163"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Blackwell, for plaintiff in error.",
                        "T. Reynolds, for defendant in error."
                    ],
                    "opinions": [
                        {
                            "author": "Chief Justice Wilson.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nChief Justice Wilson.\nThis action is brought against Beaird, as sheriff of St. Clair county, for $1000, for the escape of William D. Noble, who was committed to his custody upon a conviction of forgery, at the May term of the circuit court of St. Clair county, by which he attempted to defraud Rankin of $1000. The judgment of the court was, that he should be fined $2000, one half to Rankin, and stand committed till the fine and costs were paid. In January, 1823, the legislature passed an act requiring the sheriff of St. Clair county, who was Beaird, the defendant in error, to discharge Wm. D. Noble out of custody, which he accordingly did. On the trial of this cause, Beaird plead the act aforesaid in bar of the action, to which plea Rankin demurred, and the demurrer was overruled by the court, and judgment rendered for defendant. It is said that the statute relied upon by Beaird, is unconstitutional, because, by discharging Noble out of custody, it destroyed a vested interest which Rankin had in the judgment against him. It is unnecessary to inquire what interest Rankin had in the fine imposed on Noble, because, whatever interest he originally had in that, he has yet. It would be absurd to contend that he had a vested right in his imprisonment, and this act has no other effect than to discharge him from imprisonment.\nIt may be questioned whether Rankin had any vested interest in the fine till it was collected; but if it is admitted that he had, this act does not destroy it, but leaves him to his action. See the authorities referred to in the case of the County Commissioners v. Coles, to which this is in some respects analogous.\n*\nThe judgment of the court below is affirmed.\n(1)\nJudgment affirmed.\n* Ante, page 154.\n(1) If a third person had acquired a vested interest in the fine, or in the costs of the suit, neither the legislature nor the Governor had power to divest him of it. Holliday v. The People, 5 Gilm., 216. Rowe v. State, 2 Bay, 565. Exparte, McDonald, 2 Wharton, 440. United States v. Lancaster, 4 Wash. C. C. R., 64, 5 Bac. Abr., 288."
                        }
                    ],
                    "head_matter": "David Rankin, Plaintiff in Error, v. William A. Beaird, Sheriff, Defendant in Error.\nBlackwell, for plaintiff in error.\nT. Reynolds, for defendant in error.\nERROR TO ST. CLAIR.\nThe legislature can by an act release a person from imprisonment who has been convicted of forgery, though one-lialf of the fine imposed against him, goes to the person attempted to be defrauded by the forgery. The sheriff releasing the convict, under such an act, is not liable for an escape.",
                    "parties": [
                        "David Rankin, Plaintiff in Error, v. William A. Beaird, Sheriff, Defendant in Error."
                    ]
                }
            }
        },
        {
            "id": 435544,
            "url": "https://api.case.law/v1/cases/435544/",
            "name": "Biggs and others, Appellants, v. Postlewait and others, Appellees",
            "name_abbreviation": "Biggs v. Postlewait",
            "decision_date": "1826-12",
            "docket_number": "",
            "first_page": "198",
            "last_page": "199",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 198"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Blackwell, for appellants.",
                        "Cowles, for appellees."
                    ],
                    "opinions": [
                        {
                            "author": "Chief Justice Wilson.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nChief Justice Wilson.\nThis action is brought for the use of Joseph Payne, one of the heirs at law of John Payne, deceased, against the administrator of the estate of said Payne, deceased, and his securities, upon an administration bond, taken in pursuance of a territorial statute. The administrator and his securities are both declared against, but one of the securities only is brought into court. The breaches assigned in the declaration are, that the administrator had not returned an inventory or sale bill —that he had not administered, but wasted the assets, &c., and avers, that goods and chattels to a large amount, came to the hands of the administrator, but does not aver any judgment against the administrator. To this declaration there is a demurrer and joinder, which was sustained by the court. The question is, as to the correctness of the decision of the court, upon the demurrer.\nThe statute, that requires the bond to be taken, upon which this action is brought, is intended for the security of the intestate’s estate, and the benefit of heirs and creditors; but they must bring themselves within its object and intent, before they can claim its benefit. A person claiming to be an heir, and entitled to a distributive share of the intestate’s estate, must show himself to be thus entitled, in the ordinary course of law, by a judgment, or decree against the administrator, establishing the amount of his demand, and a devastavit by the administrator. Until these facts are established, the security is not liable—his undertaking, as regards claims against the intestate’s estate, is collateral, and can only be enforced, upon its being made to appear that the administrator has failed to do that, which by law, he was required to do. See 1 Wash., 31.\nThere is no averment in the declaration, that any judgment has ever been obtained against the administrator. This, I think, is essential, in order to support the present action. It would be unreasonable, and against principle, to make a third party liable in an action for a default, which it is not pretended he has committed. The judgment of the court below is affirmed,\n(a)\n,\n(1)\nJudgment affirmed.\n(a) It is necessary, after a judgment against an executor or administrator, as such, to establish a devastavit by means of a second suit, before an action can be maintained on the administration bond. Gordon’s administrators v. The Justices of Frederick, 1 Munford’s Rep., 1.\nIt seems, that the executor or administrator must be convicted of a devastavit by a verdict in a second suit, finding that he has wasted the assets, or has eloigned, disposed of, and converted the same to his own use, before an action can be sustained against the sureties. Catlet and others v. Carter’s executors, 2 Munford, 24.\n(1) This decision was followed in the cases of Greenup v. Woodworth, post, and same v. Brown, post. But the act of 1829, (Purple's statutes, 1218, Sec. 126, Scates' Comp., 1207,) dispenses with the necessity of first establishing a devastavit before the administrator or executor, or his securities can be made liable. The People v. Miller et al., 1 Scam., 86."
                        }
                    ],
                    "head_matter": "Biggs and others, Appellants, v. Postlewait and others, Appellees.\nBlackwell, for appellants.\nCowles, for appellees.\nAPPEAL FROM ST. CLAIR.\nA judgment can not be rendered against the security in an administration bond, nor is he liable to an action, until a devastavit, by suit, has first been established against the administrator.",
                    "parties": [
                        "Biggs and others, Appellants, v. Postlewait and others, Appellees."
                    ]
                }
            }
        },
        {
            "id": 435601,
            "url": "https://api.case.law/v1/cases/435601/",
            "name": "Anson Collins, Appellant, v. John Waggoner, Appellee",
            "name_abbreviation": "Collins v. Waggoner",
            "decision_date": "1826-12",
            "docket_number": "",
            "first_page": "186",
            "last_page": "187",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 186"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Starr, for appellant.",
                        "Cowles, for appellee."
                    ],
                    "opinions": [
                        {
                            "author": "Chief Justice Wilson.\n*",
                            "type": "majority",
                            "text": "Opinion of the Court by\nChief Justice Wilson.\n*\nThe only question presented by this case for the decision of the court is, whether the proper form of action has been adopted.\nThe facts in the case are, that Waggoner sued Collins in replevin for a cow, upon which issue was taken, and a verdict and judgment for Waggoner. Collins also pleaded a judgment against Waggoner on which an execution issued, by virtue of which a constable took the cow and sold her, and he became the purchaser. To this plea Waggoner replied that the cause of action upon which the judgment was rendered, accrued before the first of May, 1821, that there was no indorsement on the execution to take the notes of the -state bank; that before and after the cow was taken by the execution, he offered to pay it in notes of the state bank, or replevy it for three years, and that Collins would not permit it to be done, but directed the constable to levy. To this replication there was a demurrer which was overruled ; the case was then tried upon the issue of non cepit, and a verdict and judgment for Waggoner. It is contended that trespass will not lie for any act done under a process regularly issued from a court having competent jurisdiction. This rule is true as regards acts in conformity with the authority conferred by the process, even though there should be malice in the manner of executing it. But if the process is abused, trespass will lie, or if, after having done its office, the officer proceeds to act under color of it by the direction of the plaintiffs, they both become liable as trespassers.\nIn this case before the justice, the statute permitted the defendant to discharge the execution in the notes of the state bank, or replevy it for three years, which he offered to do, but the plaintiff in the execution refused to permit it to be done. If he had stopped here he would not have been liable as a traspasser, but he became so by the subsequent levy of the execution by the constable, under his directions, because it had spent its force and was officially dead. The taking of the cow, therefore, was tortious and no more authorized by the execution than the taking property of a third person. The judgment of the court below is affirmed,\n(a)\n,\n(1)\nJudgment affirmed.\n* Justices Lockwood and Smith having been counsel in this cause, gave no opinion.\n(a) If a sheriff levy an execution after the return day, by the direction of the plaintiff and his attorney, they are all trespassers. Vail v. Lewis, 4 Johns. Rep., 450.\nAn execution, after the expiration of the time within which it is made returnable, is of no force, and an arrest under it is a trespass. Stoyel v. Lawrence & Adams. 3 Day’s Rep , 1.\n(1) See note to Moore v. Watts et al., ante, p. 42, where the decisions on this question are fully referred to."
                        }
                    ],
                    "head_matter": "Anson Collins, Appellant, v. John Waggoner, Appellee.\nStarr, for appellant.\nCowles, for appellee.\nAPPEAL FROM MADISON.\nTrespass will lie if the process is abused, or if after it has done its office, the officer proceeds to act under color of it by direction of the plaintiffs, they become both liable as trespassers.",
                    "parties": [
                        "Anson Collins, Appellant, v. John Waggoner, Appellee."
                    ]
                }
            }
        },
        {
            "id": 435604,
            "url": "https://api.case.law/v1/cases/435604/",
            "name": "Adolphus P. Hubbard, Appellant, v. Jonathan Hobson, Appellee",
            "name_abbreviation": "Hubbard v. Hobson",
            "decision_date": "1826-12",
            "docket_number": "",
            "first_page": "190",
            "last_page": "195",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 190"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Eddy, for appellant.",
                        "McLean, for appellee."
                    ],
                    "opinions": [
                        {
                            "author": "Justice Smith.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice Smith.\nHubbard filed liis bill in the court below for relief against a judgment at law obtained by Hobson in the Gallatin circuit court, on a record of a judgment against Hubbard in the Warren circuit court, in the state of Kentucky. The court below, on a hearing, dissolved the injunction, and dismissed the complainant’s bill, and also decreed that Hobson should recover the amount of the judgment at law, with interest and costs, and six per cent, damages from Hubbard and his security. To reverse this decree the present appeal is prosecuted.\nThe counsel for the appellant, on the argument, assumed four grounds on which they contended that a reversal ought to be had:\n1. That Hubbard being only a co-security with Hobson, in the note which Hobson had been compelled to pay, no more than a moiety could be recovered from Hubbard.\n2. That by the conveyance to Hobson, by Gatewood, of 200 acres of land, to which Hubbard had an equitable interest for a moiety, the claim had been liquidated as far as Hubbard could be liable to Hobson as a co-security.\n8. That Hobson had, previously to the rendering of the judgment in the Gallatin circuit court, received full satisfaction for his claim against Hubbard, even if Hubbard should be considered as the principal in the note which Hobson had been compelled to pay by the acceptance of 200 acres of land from Gatewood in discharge of his claim against Hubbard and Gatewood.\n4. That in dismissing the bill, and subsequently rendering a decree against the complainant and his security in the injunction bond, the court exceeded its powers.\nTo this it was replied that the answer of the defendant in eqxxity, was conclusive, and that the complainant not having availed himself of the matters set forth in his bill by way of defense in the ti'ial at law, was now precluded from offering them in equity, and that that court would not interpose to relieve him.\nFrom a very deliberate and minute examination of this case, three propositions arising out of the third and fourth points made by the appellant’s counsel, naturally present themselves as the only important grounds for consideration ; the first and second points being deemed untenable and unsupported by the facts embraced in the case ; first, has the claim of the appellee been released or discharged by his acceptance of property from Gatewood in satisfaction, or has he indemnified himself oxxt of the avails of the property of Gatewood which may have come to bis possession ?\nSecond, ought the appellant, if Hobson accepted property in discharge, or indemnified himself out of the property of Gatewood, to have made this a defense to the action at law, and can he now, not having done so, assert it in eqxxity ?\nThird, is the form of the entry and character of the judgment warranted.\nIn order to arrive at a correct conclusion as it regards the first pi’oposition, I have examined the allegations of the bill, and the denials in the answer, with great care, nor has the evidence of the several parties wlxich has been adduced, been less diligently or caxxtiously observed. I confess there is much obscxxi'ity and want of precision in many parts of the testimony, but from the best analysis I have been enabled to make of it, I have been led to consider it as establishing pretty clearly that Hobson accepted from Gatewood the surrender of two hundred acres of land lying on the Nashville road, in Kentucky, for the purpose of either enabling him to create a fund out of which he might indemnify himself for the liability he had incurred by joining in the note given by GateWood, Hxibbard, and himself, to Hays, or as a satisfaction for the responsibility he had incurred in that transaction. That he subsequently came into possession of the land, and conveyed it to one Shackelford,‘for what consideration does not appear, but its value is established at the time of such sale, to have been of a greater amount than Hobson’s claim, and that he allowed Gatewood seven hundred dollars for it, the exact amount of the note he had joined in as a co-security, and had received the land on account of that transaction.\nIt also appears that Hobson admitted to one of the witnesses that the claim in question had been settled out of the property and effects of Gatewood, and that when charged with having received the two hundred acres of land in satisfaction of that claim, he did not deny it. It is true, the appellee in his answer, denies most positively that the claim had been paid out of the effects of Gatewood, or that he had ever received any tract of land to secure or discharge him from his liability created by his securityship, and one of the appellant’s witnesses stands manifestly impeached, if his testimony were not clearly supported in most of its material parts, by three other witnesses. The rule of evidence in equity is too well settled, and the reason of it too well founded, to lead to the least embarrassment in this state of the case, in deciding, that' notwithstanding the positive denial of the appellee, and even admitting the witness alluded to should be considered as impeached and his testimony consequently rejected, that the testimony of three of the other witnesses, so far as it regards the point under consideration, must prevail. This being the state of the evidence, it must be conceded that the first point is affirmatively established, and that the appellant has made out a case requiring the interposition of this court, unless, indeed, he is precluded by his own acts of negligence or folly ; which leads us to the consideration of the second point. It is no doubt a well settled general principle in courts of equity, that they will not relieve, where the party might have availed himself of the same matter in defense in the suit at law, but to this general rule it is conceived there are some exceptions.\nIt is not understood that if the matter offered as ground for relief in equity might have been admitted in a trial at law as a defense, that therefore a court of equity will not interpose its jurisdiction and power, but that the party must also have been in a situation to have made such defense, and that through negligence, inattention, or some other cause which he might have controlled, he has omitted to do so.\nBy the establishment of the general principle, it surely was not intended to preclude a party from interposing a defense in equity, of the knowledge of which he only became possessed, since the determination of the suit at law, or the truth of which, he had only found himself capable of establishing since such determination. Believing that this exposition of the rule requires only to be stated to be admitted, I proceed to inquire whether the appellant comes within the rule as it is interpreted. In the bill, he alleges that he only came to the knowledge of the transfer of the land by Gate-wood to Hobson, since the judgment in the suit at law, and that not until after such judgment was rendered, did he become possessed of the means of establishing the fact. It does not appear that this statement is in any way discredited or denied. Can it then be said that here is not a case precisely within the just interpretation of the rule, and that the facts, as they are presented, do not furnish just cause for allowing to the appellant the right of offering, as a ground for relief, that which, true it is, would have been matter of legal defense in the suit at law, but of the existence of which and the means of establishing, he only became possessed at a period when, in such suit, it was wholly unavailing and could not be heard ?\nIt is then clear that he was in a state of moral incapacity to make such defense in the court below, and the reasoning that he ought to have done so and can not therefore now be relieved, is too unsound to need further illustration, and if it be at all necessary to refer to authorities in support of the correctness of the construction I have given to the rule, among the numerous ones which may be found, reference may be had to two of very modern date—Holt’s executors v. Graham, 2 Bibb, 192, and Cunningham v. Cadwell, Hardin, 123. It is apparent that the appellant could not have made the matter now presented the basis of the relief he asks, or a subject of defense in the court below, and that he has therefore in no way deprived himself of the right of asserting it in equity. The remaining question regards the form of entry and character of the decree.\nIt appears from the record that the court below dissolved the injunction, dismissed the bill, and then rendered a decree in the same cause against the appellant here and his security in the injunction bond, who was no party to the suit, for the amount of the judgment and costs in the suit at law, with interest thereon, and six per cent, damages, and the costs of the suit in equity. The entry of this decree, after the court had adjudicated the cause and dismissed the bill, is thought to be an anomaly in the history of judicial proceedings, and has doubtless arisen from a natural misconception of the provisions of the statute under which the entry is supposed to be authorized, and is, very probably, an error in the clerk. From an examination of the 17th section of the act of 22d of March, 1819,\n*\nregulating the practice of the courts of chancery in this state, which is the statute referred to, and the uniform rule of proceedings in courts of equity, it is not perceived, where the complainant’s bill is dismissed as not affording sufficient ground for the interposition of the court, that he can be amerced in any other way than being adjudged to pay the costs of the suit, for, (as it is technically said,) his false clamor. What the precise form of the proceedings ought to have been after the dismissal of the bill, under the statute, is, perhaps, not so easily settled. It is provided in the statute quoted, that on the dissolution of the injunction, the complainant shall pay six per cent., exclusive of legal interest, besides costs, and that judgment shall be given against the sureties in the injunction bond, as well as the complainant, and that the clerk shall issue an execution for the same when he issues an execution on said judgment; meaning, doubtless, the judgment at law. Now, if this admits of any interpretation, it must clearly sanction the idea of two separate judgments, or why provide for two separate executions? If one judgment would embrace the whole, it could not be necessary to have separate executions. If the court is authorized to enter a judgment on the bond, in a summary manner, against the obligors in that bond without notice, which I am rather inclined to doubt, it should at least form a separate proceeding from the order or decree in the suit in equity; as it now stands, there are two distinct orders or decrees in the same cause of directly opposite characters; one dismissing the complainant from- the presence of the court, and which is supposed to have terminated all proceedings in the cause, and put him beyond the power of the court; and the other rendering on the other hand a large decree in the same suit against him, in favor of the defendant who has never prayed for i|. Whether a judgment is authorized to be entered up without notice, or whether the clerk is authorized to issue an execution, without even entering the common form of a judgment, as has been sometimes practised in this state on replevin bonds, it is not necessary now to determine ; but that the form and character of the decree is incorrect, and that two decrees or orders, so opposite in their nature and consequences, can not be made in the same case, nor justified in practice, or warranted by the forms of law, I can not doubt. Again, if this decree is to stand, in what situation does it leave the complainant ?\nUpon a review of the whole case, I feel constrained to say, that the claim of Hobson has been extinguished by the receipt and disposition of the property of Gatewood, if the whole current of the testimony in the cause is to be credited. That the attempt to compel the appellant to pay it again, is, to say the least, against the clearest principles of moral justice, and the soundest rules of equity; and that putting out of view the evidently erroneous entry of the decree of the circuit court, the judgment of that court ought to be reversed, and a perpetual injunction awarded, enjoining the plaintiff in the action at law from proceeding’ on that judgment, and that the appellant recover his costs,\n(a)\nThe judgment at law stands open, unsatisfied and in full force and effect against him.\nIn equity, the court have made a decree against him for the identical amount of this judgment with the interest on that judgment, the six per cent, damages and costs of suit. Is this monstrous absurdity and injustice of subjecting him to satisfy these two judgments to be countenanced for a moment ? Undoubtedly not. The erroneous entry of the decree is then, from this view alone, too manifest to require further exposition. The decision in this court, in the case of Duncan v. Morrison,\n*\nis, as it relates to this irregularity, directly in point, and has settled the question.\n(1)\nDecree reversed.\n* Laws of 1819, p. 173.\n(a) Any fact which clearly proves it to be against conscience to execute a judgment, and of which the injured party could not avail himself at law, or of which he could have availed himself at law, but was prevented by fraud or accident, unmixed with any fault or negligence in himself or his agents, will justify an application to a court of chancery. 7 Cranch, 332, 336.\n* Ante, p. 151.\n(1) See note to the case of Moore et al. v. Bagley, ante, p. 94."
                        }
                    ],
                    "head_matter": "Adolphus P. Hubbard, Appellant, v. Jonathan Hobson, Appellee.\nEddy, for appellant.\nMcLean, for appellee.\nAPPEAL FROM GALLATIN.\nAs a general rule, a court of equity will not interfere to relieve a defendant who has neglected to make his defense at law. But if he did not know of his defense until after the judgment, a court of equity will relieve.\nIt is erroneous to enter up a decree against the security in the injunction bond for the amount of the judgment at law and the costs in that suit, and interest on the judgment, and six per cent, damages, and the costs of the suit in equity.",
                    "parties": [
                        "Adolphus P. Hubbard, Appellant, v. Jonathan Hobson, Appellee."
                    ]
                }
            }
        },
        {
            "id": 435613,
            "url": "https://api.case.law/v1/cases/435613/",
            "name": "Thomas Mason, Appellant, v. The President and Directors of the State Bank of Illinois, Appellees",
            "name_abbreviation": "Mason v. President of the State Bank",
            "decision_date": "1826-12",
            "docket_number": "",
            "first_page": "183",
            "last_page": "185",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 183"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Eddy, for plaintiff in error.",
                        "Robinson, circuit attorney, for defendant in error."
                    ],
                    "opinions": [
                        {
                            "author": "Justice Smith.\n*",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice Smith.\n*\nThe extremely imperfect state in which this cause is presented to the court by the record, has led to some embarrassment as to the course which ought to be adopted in the disposition to be made of it. Whether from its manifest imperfections and omissions it ought not to be dismissed as presenting no absolute question for the determination of this court, or whether by determining from the record itself that no case is presented of which the court below had jurisdiction, to reverse the judgment of the court below for that cause.\nIt is alone by inference that this court can imagine what the real cause of inquiry and adjudication was intended to have been in the circuit court. It would seem to relate to an appeal from some inquiry had before a sheriff as to the right of personal property taken in execution at the suit of some one under the act of 10th of January, 1825,\n*\namendatory of an act prescribing the mode of trying the right of property in certain cases, approved the 7th of February, 1823. But whether or not such was the case, we are, from the record, left entirely to conjecture.\nBy the second section of this act, it is made the duty of the sheriff, whenever property is taken by him under execution, and shall be claimed by a person not a party to the writ of execution, to ascertain the right of property through the intervention of a jury of twelve men, before whom the respective parties may exhibit their evidence, reserving to either party the right of appealing from such decision to the circuit court of the county where such decision may be had. In case of an appeal from the decision had before the sheriff, it is made the further duty to transmit to the clerk of the circuit court of the county of which he is sheriff, ten days before the first day of the term of the court next following the time of such inquiry had before him, all the proceedings by him had in such case, and the circuit court may review the same in such manner as it shall direct.\nFrom the provisions of the law it clearly follows that there must have been a taking of personal property under a writ of execution regularly issued at the suit of a plaintiff against a defendant, and a claim interposed by a third person to authorize an inquiry by the sheriff, and that in case of appeal, all the proceedings are to be transmitted to the circuit court in the manner directed by the act. In the present case, nothing appears to show that the sheriff could assume jurisdiction of the inquiry, if it be admitted by the proceedings set forth by the record, (which is certainly very doubtful,) that such an inquiry was ever made.\nFor ought that appears to this court, no writ of execution ever issued at the suit of any one, no personal or other property was ever taken from the possession of the defendant, or third person, nor have proceedings relative to such an inquiry ever been returned into the circuit court of Edwards county. How then could the circuit court of Edwards county ever assume jurisdiction of the supposed controversy, when none appears to have existed before the sheriff? The circuit court could alone entertain jurisdiction of the matter of inquiry before the sheriff, as an appellate court, and in proceeding to review the inquiry before the sheriff, is it not indispensable that the proceedings had before him should have been returned to the court to enable it to exercise jurisdiction in the case ? It is urged, that the parties, by their appearance, have given the court jurisdiction. This to a certain extent is true, if the court had jurisdiction of the subject matter ; but that subject matter must be presented to the court in a form sufficiently definite for it to judge whether or not it has such jurisdiction. Here the difficulty arises, that although the parties did appear and proceed to a hearing, no cause or subject matter appears to have been presented, upon which the court would give a judgment. It is the want of this that vitiates the whole proceedings in the circuit court. The irregularity in omitting to show the character of the proceedings before the sheriff, and the entire absence in the record of any description of complaint which could form the subject of a judicial investigation, is too manifest to warrant a doubt of the want of jurisdiction in the circuit court, notwithstanding the appearance of the parties.\nI am therefore of opinion that the judgment be reversed and that the plaintiff in error recover his costs.\n(1)\nJudgment reversed.\n* Lockwood, J., having been counsel in this cause, gave no opinion.\n* Laws of 1825, page 69,\n(1) On the trial of the right of property, levied on under an execution, the claimant objected to the execution on the ground that it was a. nullity, having been issued by a court not having jurisdiction. It was held, that if the execution was a nullity, the claimant ought to have brought an action of trespass, replevin, or trover, for the goods, against the officer, and not have required a trial of the right of property. By requiring such trial, he admitted the validity of the execution and only claimed that it had been levied on his property, and not on that of the defendant in the execution. Harrison v. Singleton, 2 Scam., 21.\nAn officer, after having levied an execution, may have a controverted title tried by a jury, whose verdict will be a guide and warrant for his future action. Wentworth v. The People, 4 Scam., 555."
                        }
                    ],
                    "head_matter": "Thomas Mason, Appellant, v. The President and Directors of the State Bank of Illinois, Appellees.\nEddy, for plaintiff in error.\nRobinson, circuit attorney, for defendant in error.\nAPPEAL FROM EDWARDS.\nTo authorize an inquiry by the sheriff into the right of property, it is necessary there should be a taking of personal property by a writ of execution regularly issued at the suit of a plaintiff against a defendant, and a claim interposed by a third person. And in case of an appeal to the circuit court, all the proceedings before the sheriff are to be transmitted; if they are not, the circuit court can not exercise jurisdiction.",
                    "parties": [
                        "Thomas Mason, Appellant, v. The President and Directors of the State Bank of Illinois, Appellees."
                    ]
                }
            }
        },
        {
            "id": 435620,
            "url": "https://api.case.law/v1/cases/435620/",
            "name": "Jonathan Mayo, Appellant, v. John Chenoweth, Appellee",
            "name_abbreviation": "Mayo v. Chenoweth",
            "decision_date": "1826-12",
            "docket_number": "",
            "first_page": "200",
            "last_page": "200",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 200"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Robinson, for appellant.",
                        "Cowles, for appellee."
                    ],
                    "opinions": [
                        {
                            "author": "Justice Browne.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice Browne.\nThis was a suit originally brought before a justice of the peace of Edgar county by John Chenoweth against Jonathan Mayo, on an instrument of writing of the following description: “ This shall oblige me to pay thirty-five dollars on a judgment in the hands of Lewis Murphy, Esq., against Mark A. Sanders, in favor of John Chenoweth, with interest from this date till paid. Jonathan Mayo.”\nApril 18,1823.\nA judgment was obtained against the said Jonathan Mayo by the said John Chenoweth, before a justice of the peace, for the sum of thirty-five dollars, from which judgment the said Jonathan Mayo appealed to the circuit court of Edgar county, in which court the judgment of the justice of the peace was affirmed, and from the judgment of the circuit court of the aforesaid county, Jonathan Mayo takes an appeal to this court.\nThe court below erred in rendering judgment below for the then plaintiff, John Chenoweth, against the defendant, Jonathan Mayo, in this, that it is not shown by the said instrument of writing upon which the action was founded, to whom it was made payable. For which reason, the court is of the opinion that the judgment below be reversed,\n(a)\n,\n(1)\nJudgment reversed.\n(a) Vide Smith v. Bridges, ante, page 18.\n(1) See note to Smith v. Bridges, ante, p. 18."
                        }
                    ],
                    "head_matter": "Jonathan Mayo, Appellant, v. John Chenoweth, Appellee.\nRobinson, for appellant.\nCowles, for appellee.\nAPPEAL FROM EDGAR.\nNo action can be maintained upon an instrument of writing for the payment of money, unless the instrument shows upon its face to whom it is payable.",
                    "parties": [
                        "Jonathan Mayo, Appellant, v. John Chenoweth, Appellee."
                    ]
                }
            }
        },
        {
            "id": 435641,
            "url": "https://api.case.law/v1/cases/435641/",
            "name": "Ladd and Taylor, Plaintiffs in Error, v. Ninian Edwards, Defendant in Error",
            "name_abbreviation": "Ladd & Taylor v. Edwards",
            "decision_date": "1826-12",
            "docket_number": "",
            "first_page": "182",
            "last_page": "183",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 182"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Starr, for plaintiffs in error.",
                        "Cowles, for defendant in error."
                    ],
                    "opinions": [
                        {
                            "author": "Justice Smith.\n*",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice Smith.\n*\nThis is an action against three joint and several obligors.\nThe principal error relied on by the counsel for the plaintiff in error is, the discontinuance of proceedings as to one of the defendants on whom process was not served, but,who appeared by attorney. Several decisions of the supreme court of Kentucky are cited as supporting the objections urged. Those decisions are inapplicable to the present case, because they relate to cases of a different character from that before the court. The 31st section of the act of 22d of March, 1819,\n†\nregulating the practice in the supreme and circuit courts of this state, provides that the plaintiff may proceed to judgment against those on whom process is served; and by scire facias against those on whom it may not be served. There is, however, a discontinuance after the appearance of the defendants, which can not be cured, and which is clearly error. The statute can afford no means of curing it. One of the defendants was not served with process, yet he appeared by attorney and pleaded. Against him no judgment has been entered. As this court must presume this appearance to have been authorized, and as no proceedings have been had against him after his appearance and plea, and the judgment has been entered against the other two defendants only, it is most evidently erroneous. If, as was remarked in the argument, he died after plea filed, and before the entry of the judgment, the suggestion of his death should have appeared on the record. The court can not pass beyond the record to ascertain the fact. Let the judgment be reversed with costs, and the cause remanded to the court below, with leave to the plaintiff to proceed anew.\n(1)\nJudgment reversed.\n* Lockwood, J., having been counsel in this cause, gave no opinion.\n† Laws of 1819, page 147.\n(1) See note (1) to the case of Kimmel v. Shultz, ante, p. 169."
                        }
                    ],
                    "head_matter": "Ladd and Taylor, Plaintiffs in Error, v. Ninian Edwards, Defendant in Error.\nStarr, for plaintiffs in error.\nCowles, for defendant in error.\nERROR to pope.\nIf a suit is brought against three or more obligors in a bond, on some of whom process is not served, the regular course is, to take judgment against those on whom process has been served, and by sci.fa. against those not served.\nWhere a party defendant appears and pleads by attorney, without process, it is error to proceed to judgment against those who have been served, without also taking judgment against him who thus appeared by attorney.\nIf such defendant should die after plea filed, and before jddgment, his death should be noticed on the record.",
                    "parties": [
                        "Ladd and Taylor, Plaintiffs in Error, v. Ninian Edwards, Defendant in Error."
                    ]
                }
            }
        },
        {
            "id": 435646,
            "url": "https://api.case.law/v1/cases/435646/",
            "name": "John Flack, Plaintiff in Error, v. Wiley O. Harrington, Defendant in Error",
            "name_abbreviation": "Flack v. Harrington",
            "decision_date": "1826-12",
            "docket_number": "",
            "first_page": "213",
            "last_page": "215",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 213"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Cowles, for plaintiff in error.",
                        "Eddy, for defendant in error."
                    ],
                    "opinions": [
                        {
                            "author": "Justice Lockwood.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice Lockwood.\nThis case is clearly distinguishable from the case of Flack and Johnson v. Ankeny, decided this term. The allegation here is, that Flack officiously and without any complaint on oath, issued his warrant for the apprehension of Harrington. And these allegations are found true by the verdict of a jury upon a plea putting the facts directly in issue. Will the law tolerate such conduct in its officers ? This is clearly not a case of error in judgment in a case legally before the justice.\nIn fact, there was nothing before the justice to authorize him to act at all, for he made the case and then adapted his process to the assumed facts. A justice in issuing a warrant for the apprehension of a person for a criminal offense, acts ministerially, and can not, of his mere motion, institute such a proceeding, unless in particular cases, where he is present at the commission of the offense.\nIf he voluntarily acts, he is liable to an action, and trespass will lie. The law appears to be well settled on this point, as will appear from the following authorities. In Swift’s digest, page 800, the law on this subject is stated as follows :\nIf a justice of the peace, without complaint or information, should issue a warrant, and cause a person to be arrested, trespass would lie against him, for though he. is excused when he issues a warrant on a false accusation, yet it is otherwise where he issues his warrant without accusation. Swift cites Cro. El., 130. In the case of Wallsworth v. Mcullough, 10 Johns., p. 93, this was an action of false imprisonment; on the trial the following facts appeared. That the plaintiff was arrested by virtue of a warrant issued by defendant as a justice of the peace, on the complaint of the overseers of the poor, setting forth the examination of the mother, &c. The overseers, however, testified that they never made complaint, nor did they request the justice to issue the warrant.\nThey also stated that one Garley was occasionally employed by them to do their business, but they had not employed him in this case, and on whose application the warrant liad actually issued. The overseers appeared before the justice on the examination and agreed to the proceedings. The warrant issued without authority, because it was not issued upon the complaint of the overseers of the poor, or either of them. The justice, acting ministerially in this case, was responsible for issuing the warrant without the application required by the statute. The subsequent consent of one of the overseers, that the proceedings might go on, would not deprive the plaintiff of the action for the previous arrest, upon a warrant irregularly issued. And the same court in the case of Jones v. Percival, 2 Johns. Cases, 49, held, “ trespass for a false imprisonment lies against a justice of peace who voluntarily and without the request or authority of the plaintiff in an action before him, issues an execution against the body of the defendant who is privileged from imprisonment, who claims his privilege, and is taken on the execution.” The errors assigned are altogether technical and relate to form, and do not appear to require any examination. The judgment must be affirmed with costs,\n(a)\n,\n(1)\nJudgment affirmed.\n(a) Vide Flack v. Ankeny, ante, page 187.\n(1) See note to Moore v. Watts, ante, p. 42."
                        }
                    ],
                    "head_matter": "John Flack, Plaintiff in Error, v. Wiley O. Harrington, Defendant in Error.\nCowles, for plaintiff in error.\nEddy, for defendant in error.\nThis was an action of trespass, assault and battery, and false imprisonment, brought by Harrington against Flack, a justice of the peace, and one Johnson, who was deputed by Flack to serve a warrant on plaintiff below.\nThe first count of the declaration states that Flack, as justice of the peace, irregularly and illegally issued a warrant against the plaintiff below and others, to answer the complaint of the people of the state of Illinois, for a breach of the peace said to have been committed on the body of one Edward Valentine, without any affidavit having been made before him, the said Flack, by any person against the said Harrington, and without any personal knowledge of the transaction above mentioned and complained of, or other legal information or accusation, whereon to have predicated his said warrant so issued as aforesaid, and whereby to justify his said proceedings. He the said Flack having no reasonable or lawful cause whatever to suspect that the said Harrington had been guilty of the said supposed breach of the peace, which warrant was delivered to Johnson, and the plaintiff below arrested on it by the advice and request of Flack. The second count is similar to the first.\nTo this declaration Flack and Johnson demurred, which was overruled by the court below, whereupon they severally plead not guilty; and Johnson plead in addition, a special plea of justification.\nOn the trial, Johnson was acquitted and Flack was found guilty, and judgment rendered against him for damages and costs.\nERROR TO JACKSON.\nIf a magistrate officiously and without any complaint on oath or of his own knowledge, issues his warrant to apprehend a person, he will be liable in an action of trespass.",
                    "parties": [
                        "John Flack, Plaintiff in Error, v. Wiley O. Harrington, Defendant in Error."
                    ]
                }
            }
        },
        {
            "id": 435647,
            "url": "https://api.case.law/v1/cases/435647/",
            "name": "Andrew Maurer, Appellant, v. John Derrick, Appellee",
            "name_abbreviation": "Maurer v. Derrick",
            "decision_date": "1826-12",
            "docket_number": "",
            "first_page": "197",
            "last_page": "198",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 197"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Cowles, for appellant.",
                        "Blackwell, for appellee."
                    ],
                    "opinions": [
                        {
                            "author": "Justice Lockwood.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice Lockwood.\nThis action was originally commenced before a justice of the peace and brought into the circuit court of the county of Clinton, by certiorari. On the hearing of the cause the circuit court decided that the judgment below should be reversed, because the justice of the peace had not jurisdiction of the cause. The action before the justice was commenced on a contract or account, specified as follows, to wit:\n“ John Derrick,\nTo Andrew Maurer, Dr.\nMarch 4, ) To 67 dollars which you owed to me—and 1826. j specially promised to pay.”\nThis debt was acknowledged to be due on account of horses before that time by said Maurer, sold to said Derrick. On the trial in the circuit court, it was proved that the defendant had promised to pay plaintiff sixty-four dollars. It further appeared in evidence that the promise of defendant was made in consideration of a note held by plaintiff against defendant, for upwards of 100 dollars, and that the note had subsequently came to the hands of defendant without payment in full, leaving a balance of sixty-four dollars.\nA jury impanneled in the circuit court brought in a verdict for plaintiff for that amount. The circuit court granted a new trial, because the justice had not jurisdiction, and then gave judgment for defendant. The question is, whether the justice had jurisdiction. The only case decided in this court, on this subject, is the case of Clark v. Cornelius, page 46. In that cause, the plaintiff exhibited a charge before the justice of 176 dollars, and admitted a credit of seventy-seven dollars, and this court decided that the justice had not jurisdiction. The present case is, however, different. The plaintiff here sues on a balance acknowledged to be due, and the proof supports the assumpsit. There was no necessity for the justice to investigate the accounts of the plaintiff beyond the specific sum acknowledged to be due, and which the defendant, upon sufficient consideration, promised to pay. The statute giving the justice jurisdiction, is, that he shall have it “ over all debts and demands not exceeding 100 dollars, where the amount or balance is claimed to be due, on any contract, specialty, note or agreement, or for goods, wares and merchandise sold and delivered, or for work or labor done, or on account of any sums of money not exceeding 100 dollars.” The court are of opinion that the justice had jurisdiction in this case. The judgment below must be reversed.\n(1)\nJudgment reversed.\n(1) See note to Clark v. Cornelius, ante, p. 46."
                        }
                    ],
                    "head_matter": "Andrew Maurer, Appellant, v. John Derrick, Appellee.\nCowles, for appellant.\nBlackwell, for appellee.\nAPPEAL FROM CLINTON.\nAlthough the accounts of the plaintiff may originally have amounted to more than 100 dollars, yet, if the defendant admits a balance to be due to plaintiff of less than 100 dollars, and promises to pay it, a justice of the peace has jurisdiction.",
                    "parties": [
                        "Andrew Maurer, Appellant, v. John Derrick, Appellee."
                    ]
                }
            }
        },
        {
            "id": 435651,
            "url": "https://api.case.law/v1/cases/435651/",
            "name": "R. Blackwell & Co., Appellants, v. The Auditor of Public Accounts, Appellee",
            "name_abbreviation": "R. Blackwell & Co. v. Auditor of Public Accounts",
            "decision_date": "1826-12",
            "docket_number": "",
            "first_page": "196",
            "last_page": "197",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 196"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Blackwell, for appellants.",
                        "Cowles, circuit attorney, for appellee."
                    ],
                    "opinions": [
                        {
                            "author": "Justice Lockwood.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice Lockwood.\nThis is an action of assumpsit, brought by the plaintiffs on a special contract to print the laws and journals at a specified rate.\nThe only question in the case is, whether the plaintiffs were hound to receive state paper at an arbitrary valuation fixed upon it by the legislature, subsequent to the making of the contract. In the contract made with plaintiffs, the state agreed to pay them state paper, “ at its specie value, when the same shall become due and payable.”\nThe facts in the case show that plaintiffs had in all respects performed «their part of the contract, and that had they failed, they would have been liable to a heavy penalty. The case also shows that state paper was only worth thirty cents on the dollar when the contract was completed and the money became due, and that the auditor, under a statute passed subsequent to the making of the contract, paid plaintiffs the paper at the rate of thirty-three and one-third cents on the dollar. As the contract appears to have been entered info in good faith, and in the ordinary manner of making such contracts, the court can not believe that it was the intention of the legislature to violate the contract. The law requiring state paper to be issued out of the treasury at a fixed rate, does not necessarily apply to this contract, inasmuch, as the plaintiffs were to be paid out of the contingent fund, a fund over which the governor has exclusive control, and could have paid the plaintiffs their demand according to the contract, and, no doubt, the legislature supposed the plaintiffs would be paid, in that manner, the full sum they were entitled to. The officers of government have, however, put a construction upon the law, by which the plaintiffs have not received the amount stipulated to be paid them.\nThis being a case not foreseen by the legislature, and which, had they foreseen, they would have provided for; the court feel constrained to say, that justice and good faith require that the plaintiffs should recover the difference between the value of the paper and the rate they received it at. The judgment must therefore be reversed.\nJudgment reversed."
                        }
                    ],
                    "head_matter": "R. Blackwell & Co., Appellants, v. The Auditor of Public Accounts, Appellee.\nBlackwell, for appellants.\nCowles, circuit attorney, for appellee.\nAPPEAL FROM FAYETTE,\nWhere a contract is made with the state to print the laws, &c, for so much in state paper “ at its specie value, when the same shall become due and payable,” the amount to be paid by the state is not to be ascertained by an arbitrary valuation of the paper, made by the officers of the state, under a law passed subsequent to the contract, but by the market or current value of the paper?",
                    "parties": [
                        "R. Blackwell & Co., Appellants, v. The Auditor of Public Accounts, Appellee."
                    ]
                }
            }
        },
        {
            "id": 435660,
            "url": "https://api.case.law/v1/cases/435660/",
            "name": "Henry Curtis, Appellant, v. Daniel S. Swearingen, Appellee",
            "name_abbreviation": "Curtis v. Swearingen",
            "decision_date": "1826-12",
            "docket_number": "",
            "first_page": "207",
            "last_page": "210",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 207"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Blackwell, for appellant.",
                        "Mills, for appellee."
                    ],
                    "opinions": [
                        {
                            "author": "Justice Smith.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice Smith.\nThis was an action of trespass, for breaking and entering the close of the plaintiff. This case presents for consideration this question, whether persons may make a subdivision of time for the exclusive occupancy of the whole of a tract of real estate ?\nJoint tenants may make subdivisions of premises, and of the occupancy thereof, and may maintain several actions. According to this decision, it is thought that the subdivision of time'for the occupancy is analogous, and may be legally done. The premises in question were alternately occupied by Swearingen, and another person of the name of Smith, a joint owner of two-thirds of the premises with Swearingen.\nSmith occupied for two weeks, and Swearingen for one, in succession. From the evidence, it appears that Swearingen came into his possession by the locking of the gate of the mill, on the last evening of Smith’s two weeks, by his agent. The holding of possession, therefore, under color of the previous entry under Smith, whose right expired with the two weeks, was tortious, and the court below properly instructed the jury that Curtis was a trespasser.\nThe offer to give in evidence the three executions against Swearingen, was, we think, properly rejected; there was no offer to show a judgment, and the regularity of the sale, and it is not pretended that any deed was ever executed by the sheriff to Curtis, as the purchaser of the premises in question. I am of opinion the judgment should be affirmed.\n(a)\n,\n(1)\nJudgment affirmed.\n(a) A sheriffs deed can not be given in evidence without producing the judgment and execution under which the sale was made; without them, the sheriff has no authority to sell. Den v. Wright et al., 1 Peters’ C. C. Rep., 64.\n(1) The general doctrine in regard to the sale of land by a sheriff is, that his deed is inadmissible in evidence, unless the judgment and execution under which the sale was made, be produced, to show the sheriffs authority to sell. Bybee v. Ashby, 2 Gilm., 163. Davis v. McVickers, 11 Ill., 329.\nThe act of February, 1841, (Purple’s Statutes, 646, sec. 21; Scates’ Comp., 609,) provides that the sheriff's deed shall be evidence that the provisions of law in relation to sales of land on execution were complied with, until the contrary be shown; but this does not dispense with the necessity for the production of the judgment and execution, which are still necessary before the deed can be read in evidence. Bylee v Ashby, supra.\nWhen land is sold on execution, and a sheriff's deed thereon is executed, but no judgment is shown to support such execution, no title passes to the purchaser. In this case the execution described the judgment as having been rendered in 1844. The judgment offered was rendered in 1843. The variance was held to be fatal. Pickett v. Hartsock, 15 Ill., 283.\nA sheriff’s deed must convey the land levied on and sold; and if the levy is so uncertain in its description of the premises levied upon, that it can not be understood what they are, the sale will be void. The deed can not remedy it. Fitch et al. v. Pinckard et al., 4 Scam., 84.\nThere should be entire uniformity in the return to the execution, the certificate of sale, and the deed, where real estate is sold by the sheriff, or the deed will be invalid. Dickerman et al. v. Burgess et al., 20 Ill., 266.\nA certificate of sale by a sheriff to another person than the purchaser, as shown by his return to the execution, is a void act. Id."
                        }
                    ],
                    "head_matter": "Henry Curtis, Appellant, v. Daniel S. Swearingen, Appellee.\nBlackwell, for appellant.\nMills, for appellee.\nThis was an action of trespass quare clausum fregit, commenced in the Clinton circuit court by Swearingen against Curtis. The locus in quo is described in the declaration, as the south-east quarter of section 11, in township 2 north, of range 4, west of the 3d principal meridian, and ten acres from the north-west corner of the south-west quarter of section 12 adjoining, on which was a grist and saw-mill, &c. The defendant pleaded not guilty, with leave to give title in evidence. The jury found a verdict for the plaintiff, and 75 dollars in damages. The facts in the case, as proved, were as follows: The plaintiff, to prove his title to the premises, read in evidence a patent from the U. S., dated in 1823, granting them to Slade, Herbert’s heirs, and the plaintiff. The plaintiff claimed one-third, and John Smith two-thirds, by lease from Slade—that by agreement with plaintiff and Smith, they had some time before the trespass complained of, occupied the mills alternately; Smith for two weeks, and the plaintiff for one week, and so on regularly; that on plaintiff’s week, his occupation of the mill was always exclusive, and that during Smith’s two weeks, his occupation was exclusive—that it was their practice to commence their week or two weeks’ occupation on Monday morning, about the usual time of going to work—that one of them always used and occupied the mill, if he chose, through Sunday, and up to Monday morning, until the other would come to commence his week; that the two#weeks preceding the 26th of December, 1825, (which day was Monday,) were Smith’s two weeks for occupying the mill. Plaintiff’s son, on the preceding Sunday night, fastened the gate of the mill-race, with a chain and lock—that it had not been usual to lock the gate—that the gate was not on the land mentioned in the patent, though a part and parcel -of the mill-tract, and that they occupied it, alternately, as they did the mill. The defendant proved that some time in the week preceding the 26th of December, 1825, he applied to Smith to get possession of the mill and premises, and that Smith, for a stipulated price, let defendant have all • the possession that he, Smith, had in the same, and that he, defendant, entered upon and occupied and used the same from some time about the middle of the week next preceding said 26th of December, and continued to occupy it during that week—that defendant, a little before day on the morning of said 26th, (Monday,) and which would have been plaintiff’s week, went to the mill, and forced off the chain from the gate then in the water, opened the gate, and continued to occupy the mill with Smith, alternately, from that day to the commencement of the suit. The defendant offered in evidence, to prove a right of entry, a certificate from the sheriff of Clinton county, of the purchase of the premises under a sheriff’s sale, and also three several executions against the plaintiff, and proposed to prove by the sheriff’s return on them, and other evidence, that the sheriff had levied the executions on the plaintiff’s interest in the premises, and had sold them to defendant as mentioned in his certificate, to which evidence the plaintiff objected, and the court sustained the objection. It was further stated by a witness, that when plaintiff’s son put the chain and lock on the race-gate, on Sunday night, he was with him, that they did not go into the mill, but went past it, and that he did not see any person in it. Another witness said that no person was in the mill on Sunday, as the water was scarce ; and another witness said, he went past the mill on said Sunday, and believed that defendant or some of his family was in it, but was not certain—he knew defendant occupied it through Saturday, the 24th. This was all the evidence.\nThe defendant moved the court to instruct the jury, that if they believed, from the evidence, that plaintiff’s possession was not continuous, he could not recover in this action but for the first entry, and first week’s occupation of the premises by defendant—that if they believed, from the evidence, that defendant entered under Smith by contract, the week preceding the said 26th December, and occupied for that week as Smith had a right to do, that his entry was lawful, and that retaining possession by defendant on Monday, the 26th, and thenceforward, did not make him a trespasser, and that they should find for the defendant.\nThe court refused to give the instructions asked for, but instructed the jury that the plaintiff had a right to the possession of the premises on Monday, the 26th, in pursuance of their agreement, and that if defendant held the possession against the plaintiff on that day, he was a trespasser. The defendant excepted to this opinion, and moved for a new trial, which the court overruled.\nAPPEAL FROM CLINTON.\nJoint tenants may make a subdivision of time for the exclusive occupancy of the whole of a tract of land.\nThe certificate of the sheriff, of the sale of land, without producing the judgment, and proving the regularity of the sale, is no evidence of title in the purchaser.",
                    "parties": [
                        "Henry Curtis, Appellant, v. Daniel S. Swearingen, Appellee."
                    ]
                }
            }
        },
        {
            "id": 435680,
            "url": "https://api.case.law/v1/cases/435680/",
            "name": "Fail and Nabb, Appellants, v. Goodtitle, ex dem., Hay and Lagow, Appellees",
            "name_abbreviation": "Fail & Nabb v. Goodtitle ex dem. Hay & Lagow",
            "decision_date": "1826-12",
            "docket_number": "",
            "first_page": "201",
            "last_page": "204",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 201"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Robinson, for appellants.",
                        "Eddy, for appellee."
                    ],
                    "opinions": [
                        {
                            "author": "Justice Lockwood.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice Lockwood.\nThis is an action of ejectment tried at the Lawrence circuit court. On the trial a verdict was found for the plaintiff below, and judgment rendered thereon. Several errors have been assigned, but on a careful inspection of the record, the court are of opinion that the record does not present facts on which to found most of the errors assigned. The bills of exceptions taken on the trial, furnish all the causes of error that can be assigned, and they are either so inartificially drawn as not to present the points intended to be relied on by the counsel for the defendants below, or such points do not exist in the case.\nThe court can not but regret that they are so frequently called upon to adjudicate on cases that are so imperfectly presented, that they are unable, with all the sagacity they possess, to ascertain from the record the real questions decided below. In the case now under consideration, the court however, have this satisfactory reflection, that in case they should be so unfortunate as not to decide on the real matter in dispute between the parties, their decision will not be final. Another action may be commenced, in which the rights of the parties may be presented in such a manner as, eventually, to obtain a decision on the merits. On the trial below, the plaintiff offered in evidence a sheriff’s deed, to the reception of which the defendants below excepted. The exception is in these words: “ which was opposed and objected to by the defendants, by their counsel, because it was acknowledged before the Lawrence circuit court, and not before the Crawford circuit court; which objection was overruled by the court, to which opinion the defendants, by their counsel, object and except,” &c.\nThe only question here presented is, whether the reason given why the deed should not be read in evidence, is a valid one. The objection is not general but special.\nThe parties are therefore confined to the identical objection which they made. Had other objections existed, it is fairly to be presumed, that the objection would have been general, or that the other objections would have been specified. As the bill of exceptions does not purport to give all the testimony in the case, it is also fairly presumable, that the objections taken in the assignment of errors to the reception of this deed in evidence, were either waived or obviated by proof on the trial. The court can not, therefore, inquire any further than as to the correctness of the decision on the point raised on the trial, as it is found in the bill of exceptions, and that is, whether it were essential to the validity of this deed, that it should have been acknowledged by the sheriff of Lawrence county before the Crawford circuit court ? The only statute that requires a deed to be acknowledged in court, is the statute of 22d of March, 1819.\n*\nThe second section says, “ that upon such sale, the sheriff or other officer shall make return thereof indorsed or annexed to the said writ of execution, and give the buyer a deed, duly executed and acknowledged in court, of what is sold,” &c. The legislature doubtless intended this requisition to the sheriff, for the benefit of the purchaser. In this view of the subject, the acknowledgment may be dispensed with altogether, without affecting the purchaser’s right under the deed.\n(1)\nIt would be attended with great inconvenience and expense to compel the sheriff to go to a distant county, to acknowledge the execution of a deed for lands lying in the county of which he is sheriff; and as the statute does not designate the court, we are also of opinion that there has been a sufficient compliance with the statute. The second and third bills of exceptions are to the rejection of the deed of the executors of T. Dubois, deceased, and the certificate of the register of the land office at Vincennes. The objections taken to the reception of these papers in evidence are general, and were sustained by the court. In relation to the deed, the ground of objection does not appear, but, taken in connection with the offer to prove the location made of the premises by the certificates of the register of the land office, which were rejected, it is presumable, that the rejection of the deed was founded upon the ground that no title was proved to exist in the executor’s testator.\nAs the objection was general, and it does not appear that there was any offer to prove the execution of the deed, the deed was also properly rejected on that account. In relation to the certificate of the register of the land office, the court are of opinion, that it was properly rejected. The signature of registers of land offices can not be known, officially, to the court. They have no public seal to authenticate their signature; proof ought therefore to have been given of the hand writing of the register. The court have strong doubts whether the certificate of a clerk of the register can be received at all, but if received, it ought to be accompanied with proof, that the person who gave the certificate is clerk, and of his hand writing. As these bills of exception present all the grounds that can be assigned for error, and from the view taken of them, they do not furnish sufficient reasons to reverse the judgment of the court, the judgment is therefore affirmed with costs.\n(2)\nJudgment affirmed.\n* Laws of 1819, page 177.\n(1) The following is the statute now in force in relation to acknowledgment of deeds by sheriff. “ All deeds which may be executed by any sheriff or other officer, for any real estate sold on execution, upon being acknowledged or proven before any clerk of any cotut of record in this state, and certified under the seal of such court, shall be admitted to record in the county where the real estate sold shall be situated.” Purple’s statutes, p. 160, sec. 29. Scates’ Comp., 975.\n(2) Certificates of the Register of the Land office are made admissible as evidence by the following provision: “ The official certificate of any register or receiver of any land office of the United States, to any fact or matter on record in his office, shall bo received in evidence in any court in this state, and shall be competent to prove the fact so certified. The certificate of any such register, of the entry or purchase of any tract of land, within his district, shall be deemed and taken to be evidence of title in the party who made such entry or purchase, or his heirs or assigns, and shall enable such party, his heirs or assigns, to recover the possession of the land described in such certificate, in any action of ejectment or forcible entry and detainer, unless a better legal and paramount title be established for the same.” Purple’s statutes, p. 541, sec. 4. Scales’ Comp., p. 255. This is substantially the provisions of the act of 1827, cited in the note of Judge Bbbese; but in 1839, the following additional act was passed: “A patent for land shall be deemed and considered a better legal and paramount title in the patentee, his heirs or assigns, than the official certificate of any register of a land office of the United States, of the entry or the purchase of the same land.” Purple’s statutes, 541, Sec. 5 Scates’ Comp., 255.\nUnder these statutes we have had the following decisions:\nThe receipt of a receiver of a land office, of the receipt of the purchase money, for a tract of land, is not evidence of title. Carson et al. v. Merle et al., 4 Scam., 363.\nThe register having the custody of all the record books, and plats relating to the sales of land in his district, is the only officer whose certificate could be safely received as evidence of title, and is made so by statute. Roper v. Clabaugh, 3 Scam., 166.\nThe receiver’s certificate is made evidence of any fact or matter on record in his office, but the register’s certificate is made evidence of title, id.\nThe official certificate of the register of a land office, is made evidence, by the express terms of the statute. Turney v. Goodman, 1 Scam., 185.\nWhere a record shows that the certificate of the register of a land office was received in evidence, the court will presume that proof of his official character and hand writing were previously made, unless a contrary statement is contained in the bill of exceptions. Russell v. Whiteside, 4 Scam., 7.\nIn McConnell v. Wilcox, 1 Scam., 344, it was held that “the certificate of the register of the land office, of the purchase of a tract of land from, the United States, is of as high authority as a patent.” This was decided before the passage of the act of 1839, referred to above, and was taken to the Supreme Court of the United States, and by that court reversed, which caused the passage of the act of 1839. 13 Peters, 498. In that court, among other things, the court held:\nNothing passes a perfect title to public lands, with the exception of a few cases, but a patent. The exceptions are, where Congress grants lands in words of present grant.\nThe act of the legislature of Illinois, giving a right to the holder of a register’s certificate of the entry of public lands, to recover possession of such lands in an action of ejectment, does not apply to cases where a paramount title to the lands is in the hands of the defendant, or of those he represents. The exception in the law of Illinois, applies to cases in which the United States have not parted with the title to the land, by granting a patent for it.\nA state has a perfect right to legislate as she may please in regard to the remedies to be prosecuted in her courts; and to regulate the disposition of the property of her citizens, by descent, devise, or alienation. But Congress is invested, by the constitution, with the power of disposing of the public land, and making needful rules and regulations respecting it.\nWhere a patent has not been issued fora part of the public lands, a state has no power to declare any title, less than a patent, valid, against a claim of the United States to the land; or against, a title held under a patent granted by the United States.\nWhenever the question in any court, state or federal, is, whether the title to property which had belonged to the United States, has passed, that question must be resolved by the laws of the United States. But whenever the property has passed, according to those laws, then the property, like all other in the state, is subject to state legislation; so far as that legislation is consistent with the admission that the title passed and vested according to the laws of the United States.\nIn another case the same court held the following:\nCongress have the sole power to declare the dignity and effect of titles emanating from the United States; and the whole legislation of the government in reference to the public lands, declares the patent to be the superior and conclusive evidence of legal title. Until it issues, the fee is in the government; which, by the patent, passes to the grantee, and he is entitled to recover the possession in ejectment.\nWhen the title to the public land has passed out of the United States by conflicting patents, there can be no objection to the practice adopted by the courts of a state to give effect to the better right, in any form of remedy the legislature or courts of the\" state may prescribe.\nNo doubt is entertained of the power of the states to pass laws authorizing purchasers of lands from the United States, to prosecute actions of ejectment upon certificates of purchase, against trespassers on the lands purchased; but it is denied that the states have any power to declare certificates of purchase of equal dignity with a patent. Congress alone can give them such effect. Bagnell et al. v. Broderick, 13 Peters, 439.\nUpon the effect of the register’s certificate, see also the following cases Bruner v. Manlove et al., 1 Scam., 157. Whitesides et ux. v. Divers, 4 Scam., 337. Delannay v. Burnett, 4 Gilm., 454."
                        }
                    ],
                    "head_matter": "Fail and Nabb, Appellants, v. Goodtitle, ex dem., Hay and Lagow, Appellees.\nRobinson, for appellants.\nEddy, for appellee.\nAPPEAL FROM LAWRENCE.\nA purchaser’s right under a sheriff's deed is not affected under the act of 1819, by its not being acknowledged in court. It is well acknowledged, if it be acknowledged before the circuit court of the county of which he is sheriff, and where the land lies.\nA certificate of the register of a land office is not evidence,\n(a)\n(a) See Rev. Laws of 1827, page 199.",
                    "parties": [
                        "Fail and Nabb, Appellants, v. Goodtitle, ex dem., Hay and Lagow, Appellees."
                    ]
                }
            }
        },
        {
            "id": 435692,
            "url": "https://api.case.law/v1/cases/435692/",
            "name": "Shadrach Bond and Pierre Menard, Plaintiffs in Error, v. Josiah T. Betts, adm’r, Defendant in Error",
            "name_abbreviation": "Bond v. Betts",
            "decision_date": "1826-12",
            "docket_number": "",
            "first_page": "205",
            "last_page": "207",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 205"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
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                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
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            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
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                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
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                "data": {
                    "judges": [],
                    "attorneys": [
                        "T. Reynolds, for plaintiffs in error.",
                        "Baker, for defendant in error."
                    ],
                    "opinions": [
                        {
                            "author": "Justice Smith.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice Smith.\nThis case is presented to the court on a judgment on a demurrer to the plaintiffs’ declaration. The demurrer is general, and therefore every inquiry is precluded, whether causes which might have proved fatal, might not have been specially assigned for causes of demurrer. Equally untenable are the objections to the jurisdiction, no plea to the jurisdiction of the court having been pleaded. The declaration shows complete jurisdiction.\nThe real and only question is, whether the action on the note can be sustained in the manner and form set forth in the declaration. The note is in the following words, viz.: “ Six months after date I promise to pay Shadrach Bond and Pierre Menard, agents for Warren Brown, the sum of nineteen dollars and twenty-five cents for value received. Witness my hand and seal this 20th day of February, 1823.” The promise to pay is directly to the plaintiffs, and the consideration, by the note itself, is, by every fair, and grammatical construction of language, expressed to be received of them.\nThe addition to the names of the plaintiffs of the words, “ agents for Warren Brown,” in the note, is mere description of the person; it is therefore surplusage, and can not affect the promise. It is evident the words were only used for the purpose of showing, to whose use the money was to be received, and would not control the express promise to pay it to the plaintiffs. The contract and the consideration are expressed without ambiguity or doubt. The language is not susceptible of any equivocal meaning. The distinction taken by the defendant’s counsel in error, in the use of the words “ agent of,” and “ agent for,” is really not understood, nor where the difference lies, which could alter the sense of the language and meaning of the parties. It is supposed that to describe a person as agent of, or agent for another, is synonymous in language and import. The various cases cited by the defendant’s counsel have also been examined. They are considered altogether inapplicable.\nThe general principle, in cases of the description within the range of which the present case seems to fall, is, that the words thus used, are mere description of the character or person of the obligee or promisee, and can in no way control, or alter the obvious import of the contract, and intent of the parties to it. This principle is very clearly illustrated in the case of Buffin v. Chadwick, 8 Mass. Rep., 103. The declaration in that case recited the plaintiff’s name, and as suing in the character of “ Agent of the Providence hat manufacturing company,” and the defendant, by the note, promised to pay to the plaintiff as agent of said company, and expressed the value to have been received of the company. Yet the court held that the action was rightly brought, and that the plaintiff, styling himself agent in his declaration, was merely descriptive of the person. The present case, then, is clearly much stronger than that, and the correctness of the principle more apparent. In that case, the consideration' is admitted to have proceeded from the company, in this, from the obligees themselves.\nThe promise, in the case before the court, being directly to the plaintiffs, the consideration therefor, being expressed to have been received of them, there can be no doubt that the action ought to be sustained.\nThe addition of “ agents,” is mere description and surplus-age, and can not affect the right to recover. The judgment on the demurrer must therefore be reversed, and the proceedings remanded to the circuit court of Randolph.\n(1)\nJudgment reversed.\n(1) The payee of a note which has been assigned, may sue on it in his own name, without a re-assignment. And if he describes himself in the declaration as assignee, that may be rejected as surplusage. Brinkely v. Going, post.\nA declaration on a note stated that it bore date “ on the twenty seventh day of April, one thousand eighteen hundred and thirty-seven.” Held, that the words “one thousand” were mere surplusage, and no ground for arresting the judgment. Bequette v. Lasselle, 5 Blackford, 443.\nIf a plaintiff states, in his writ, “ that he sues by a conservator,” and if his appearance is recorded in the usual form, and nothing appears from the record that he is under any disability, those words may be rejected as surplusage, and judgment in his favor will not be erroneous. Woodford v. Webster, 3 Day, 472.\nThe principle of law relative to immaterial averments, extends alike to all the pleadings in a case; and a declaration, plea, or replication, will be sustained, rejecting mere surplusage, if the pleadings would be substantially good without it. Boone v. Stone et al., 3 Gilm., 537.\nUnnecessary allegations must be proved, if they are relevant to the grounds of the action. The distinction is between what is immaterial merely, and what is wholly irrelevant. The former can not be rejected as surplusage. Commissioners v. Brevard, 1 Brevard, 11.\nSee also the following cases: Shirtliff v. The People, 2 Scam., 7. Manlove v. McHattan, 4 Scam., 96. Walker et al. v. Welch et al., 14 Ill., 278. Burnap v. Wight, id., 302."
                        }
                    ],
                    "head_matter": "Shadrach Bond and Pierre Menard, Plaintiffs in Error, v. Josiah T. Betts, adm’r, Defendant in Error.\nT. Reynolds, for plaintiffs in error.\nBaker, for defendant in error.\nERROR TO RANDOLPH.\nIn a declaration on a note of the following form : “ Six months after date I promise to pay Shadrach Bond and Pierre Menard, agents for Warren Brown, the sum of nineteen dollars and twenty-five cents, for value received. Witness my hand and seal,” &c.; the plaintiffs described themselves “ as agents for W. B.” It was held to be merely a description of the persons, and that those words “ as agents,” &c., might be rejected as surplusage.",
                    "parties": [
                        "Shadrach Bond and Pierre Menard, Plaintiffs in Error, v. Josiah T. Betts, adm’r, Defendant in Error."
                    ]
                }
            }
        },
        {
            "id": 435696,
            "url": "https://api.case.law/v1/cases/435696/",
            "name": "Augustus Collins, Appellant, v. Abraham Claypole, Appellee",
            "name_abbreviation": "Collins v. Claypole",
            "decision_date": "1826-12",
            "docket_number": "",
            "first_page": "212",
            "last_page": "213",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 212"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
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                "full_name": "Illinois Reports"
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            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
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                    "opinions": [
                        {
                            "author": "Chief Justice Wilson.\n*",
                            "type": "majority",
                            "text": "Opinion of the Court by\nChief Justice Wilson.\n*\nThe first question, and the only one necessary to be decided in this case, is, whether the refusal to grant the new trial asked for is ground of error. That point has been settled in the case of Clemson v. Kruper.\nThe court was unanimously of opinion in that case that it was not a ground of error. This case depends upon the same principle, and must be decided in the same way.\nJudgment to be affirmed as of the last term.\n(a)\nJudgment affirmed.\n* Justices Lockwood and Smith gave no opinion,\n(a) Sawyer v. Stephenson, page 24. Cornelius v. Boucher, page 32. Clemson v. Kruper, ante, p. 210."
                        }
                    ],
                    "head_matter": "Augustus Collins, Appellant, v. Abraham Claypole, Appellee.\nAPPEAL FROM MADISON.\nA refusal to grant a new trial can not be assigned for error.",
                    "parties": [
                        "Augustus Collins, Appellant, v. Abraham Claypole, Appellee."
                    ]
                }
            }
        },
        {
            "id": 435714,
            "url": "https://api.case.law/v1/cases/435714/",
            "name": "Eli B. Clemson, Plaintiff in Error, v. Henry Kruper, Defendant in Error",
            "name_abbreviation": "Clemson v. Kruper",
            "decision_date": "1826-12",
            "docket_number": "",
            "first_page": "210",
            "last_page": "212",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 210"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
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                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
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            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Blackwell, for plaintiff in error.",
                        "Cowles, for defendant in error."
                    ],
                    "opinions": [
                        {
                            "author": "Justice Lockwood.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice Lockwood.\nKruper, the plaintiff below, brought an action of assumpsit in the St. Clair circuit court. The defendant below plead non assumpsit, and issue was thereon joined. On the trial a verdict was found for Kruper.\nA motion was then made for a new trial which was overruled, and a bill of exceptions, containing the evidence given on the trial, was taken to the opinion of the court overruling the motion for the new trial. Judgment having been rendered on the verdict, a writ of error has been brought to this court to reverse the judgment, and the error relied on is, that “ the court below erred in overruling the said Clemson’s motion for a new' trial, on the ground stated in the bill of exceptions, and because the damages were excessive.” It is objected on the part of the defendant in error, that refusing to grant a new trial can not be assigned for error.\nThis objection, the court think, well taken, both on the score of adjudged cases, and on principle. A bill of exceptions can not be taken, unless the exception be made on the trial, and before the jury is discharged, and it lies for receiving improper or rejecting proper testimony, or misdirecting a jury on a point of law. The bill of exceptions taken in this case was not for any decision that occurred during the progress of the trial, and was therefore improperly allowed.\nIf this case had come before the court in a correct form, they are rather inclined to the opinion that the defendant below ought to have had a new trial, but as it is unnecessary to decide this point, they have not made up a definitive opinion on the subject.\nAs the court are of opinion that the bill of exceptions was not correctly taken, to relax the rule in a real or supposed hard case, would be establishing an innovation in the proceedings of courts that would in practice prove extremely inconvenient, if not dangerous. If, however, the decision of the court below has worked serious injustice to the defendant, it is possible a court of equity, upon a proper case, might grant relief. The court, therefore, barely suggest, without deciding the point, if the counsel for the defendant misapprehended the law or practice in relation to taking bills of exception, that it might afford ground for granting a new trial by a court of equity. The judgment must be affirmed with costs,\n(a)\nJudgment affirmed.\n(a) Cases of new trials. Sawyer v. Stephenson, p. 24. Cornelius v. Boucher, p. 32. Collins v. Claypole, post. Street v. Blue, post.\nNo bill of exceptions is valid which is not for matter excepted to at the time of the trial. It is not necessary that the bill of exceptions should be formally drawn and signed before the trial is at an end; it is sufficient if the exceptions be taken at the trial and noted by the court with the requisite certainty, and it may after-wards, during the term, according to the rules of the court, be reduced to form and signed by the judge. In all such cases, however, the bill of exceptions is signed nunc pro tunc, and it purports on its face to be the same as if actually reduced to form and signed, pending the trial, and it would be a fatal error if it appeared otherwise. Walton v. United States, 9 Wheat., 651.\nAn exception to the opinion of the court is necessary only, when the alleged error can not otherwise appear on the record. Macker’s heirs v. Thomas, 7 Wheat., 530."
                        }
                    ],
                    "head_matter": "Eli B. Clemson, Plaintiff in Error, v. Henry Kruper, Defendant in Error.\nBlackwell, for plaintiff in error.\nCowles, for defendant in error.\nERROR TO ST. CLAIR.\nA refusal to grant a new trial can not be assigned for error.\n(1)\nA bill of, exceptions can not be taken, unless the exception be made on the trial, and before the jury is discharged, and it lies for receiving improper, or rejecting proper testimony, or for misdirecting the jury on a point of law.\n(2)\n(1) See note to Sawyer v. Stevenson, ante. p. 24.\n(2) The object of a bill of exceptions is to place upon the record some fact, or ruling of the court, which would not appear without it. But where the question already appears on the record, a bill of exceptions is unnecessary. Thus, a bill of exceptions taken to the overruling of a demurrer is improper; the point saves itself; the judgment is part of therecord. Hough v. Baldwin, 16 Ill., 293. Hawk v. McCullough, 21 Ill., 220. Kitchell v. Burgwin et ux., id., 40. Swift et al. v. Castle, 23 Ill., 209. Van Dusen v. Pomeroy, 24 Ill., 289.\nWhere a motion is made for a new trial on the ground that the verdict is contrary to evidence, it will not be considered in the supreme court, unless the bill of exceptions contains all the evidence. Wheeler v. Shields 2 Scam., 350. Rogers v. Hall, 3 Scam., 6. McLaughlin v. Walsh, id., 185. Stickney et al. v. Cassell, 1 Gilm., 420. Rowan v. Dosh, 4 Scam., 460. Bruce v. Truett, id., 455. Culbertson v. Galena, 2 Gilm., 131. Granger v. Warrington, 3 Gilm., 310. Webster v. Enfield, 5 Gilm., 302. Buckmaster v. Cool, 12 Ill., 76. Armstrong v. Cooley, 5 Gilm., 512. 2 Scam., 506. Id., 256. 3 Scam., 381. 4 id., 33, 60. 5 Gilm., 186. 16 Ill., 138. Id., 277. Id., 390.15 Ill., 297. 17 Ill., 321. Trustees, &c. v Lefler, 23 Ill., 90.\nThe supreme court will not examine any question that does not appear on the record, unless it is preserved in a bill of exceptions. Burlingame v. Turner, 1 Scam., 588. Thomas v. Leonard, 4 Scam., 557. Lyon et al., v. Boilvin, 2 Gilm., 629. Selby v. Hutchinson, 4 Gilm., 326. Petty v. Scott, 5 Gilm., 209. Eaton v. Graham, 11 Ill., 620. McBain v. Enloe, 13 Ill., 78. Moss v. Flint, id., 572. Reeve v. Mitchell, 15 Ill., 297. 3 Scam., 381. Id., 411. 4 Scam., 419. 2 Gilm., 728. 3 id., 366. 5 id., 126. 11 Ill., 586. 12 Ill., 380. 15 Ill., 329. 24 Ill., 187, 262, 598.\nWhere a default is taken against a defendant, he may cross-examine the plaintiff's witnesses, but can not take a bill of exceptions. Morton v. Bailey et al., 1 Scam, 215. Should improper testimony be allowed, or wrong instructions given, the proper course is to apply to the court to set aside the inquisition, and grant a new inquest. Ibid.\nWhen a party voluntarily takes a nonsuit, he waives his right to except. Barnes v. Barber, 1 Gilm., 405. The People v. Brown, 3 Gilm., 88. The exception must be taken at the time the decision is made which is complained of: thus, for giving improper instructions, it must be when the instructions are given; it is too late after verdict. Leigh v. Hodges, 3 Scam., 17. Vanderbilt v. Johnson, id., 49. Gibbons v. Johnson, id., 63. Hill v. Ward, 2 Gilm., 293. Dickhut v. Durrel, 11 Ill., 84. Id., 587. Martin v. The People, 13 Ill., 342. Dufield v. Cross, id., 700. Charlesworth v. Williams, 16 Ill., 338. Armstrong v. Mock, 17 Ill., 166. Hance v. Miller, 21 Ill., 636.\nAlthough the exception must be made at the time of the error complained of, it is not indispensable that it should be committed to writing at that time. It may be done at a future time by the agreement of parties, or by an order of the court, entered on the record. Evans v. Fisher, 5 Gilm., 456. Burst v. Wayne, 13 Ill., 666. 23 Ill., 416. 24 id., 43.\nIf a judge refuses to sign a bill of exceptions when properly presented to him, the Supreme Court will, by mandamus, compel him to sign it. Bristol v. Phillips, 3 Scam., 287.",
                    "parties": [
                        "Eli B. Clemson, Plaintiff in Error, v. Henry Kruper, Defendant in Error."
                    ]
                }
            }
        },
        {
            "id": 435804,
            "url": "https://api.case.law/v1/cases/435804/",
            "name": "John Flack and Robert B. Johnson, Plaintiffs in Error, v. John Ankeny, Defendant in Error",
            "name_abbreviation": "Flack v. Ankeny",
            "decision_date": "1826-12",
            "docket_number": "",
            "first_page": "187",
            "last_page": "190",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 187"
                }
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            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
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            "reporter": {
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                "full_name": "Illinois Reports"
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            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
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                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
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                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Cowles, for plaintiffs in error.",
                        "Young and Hall, for defendant in error."
                    ],
                    "opinions": [
                        {
                            "author": "Justice Lockwood.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice Lockwood.\nThis is an action of trespass and false imprisonment, brought by Ankeny against Flack, a justice of the peace, for illegally issuing a warrant, and against Johnson for executing it. The defendants below demurred to the plaintiff’s declaration, on which demurrer, judgment was given for the plaintiff, and his damages assessed by a jury of inquiry. The only question presented in this case is, whether the plaintiff below has set out a sufficient cause of action in his declaration.\nThe declaration states that Flack, as justice of the peace, unlawfully issued a warrant in substance as follows, to wit: “ Commanding any constable of Jackson county, to take the body of Ankeny and others, and bring, &c., to answer the complaint of Edward Valentine in a case of assault and bat-; tery, and threats of his life, on the night of the 18th of this instant, wherein he has this day personally appeared before me, and solemnly swore that they struck, kicked, and whipped him, so as to mangle his body most cruelly,” and given under the hand and seal of the justice. The declaration further states, that “ on said warrant is the following indorsement, to wit: “I depute Robert B. Johnson, constable,” which warrant so unlawfully issued as aforesaid, was by the said Flack directed to, and handed over to the said Johnson, deputed as aforesaid, and that Johnson executed the same, by arresting the said Ankeny. This is the substance of the complaint.\nThis warrant contains every thing that is essential to a valid warrant. It states, in substance, though perhaps not very formally, that Valentine had made complaint, on oath, that he had been violently assaulted and beaten, by Ankeny and others, and the officer was required to arrest the offender and bring him before the justice. See 1 Ch. Crim. Law, 38 to 64. The justice had jurisdiction over the offense charged against Ankeny, and he seems to have fully complied with the 27th section of the act entitled “An act to regulate and define the duties of justices of the peace and constables,” approved 18th Feb., 1823.\n*\nSo far, then, as issuing the warrant is concerned, the justice acted within the pale of his authority, and the court do not see any thing very objectionable in deputing Johnson to serve it. At common law, a justice may authorize any person whom he pleases, to be his officer, 1 Ch. Crim. Law, 38; and by the fourth section of the act providing for the appointment of constables, approved March 22d, 1819,\n†\nit is provided, “ that nothing in this act shall be so construed as to prevent any magistrate in the state from appointing any suitable person to act as constable in a criminal case, where there is a probability that the criminal will escape,” &c. The only possible objection that is perceived to the appointment of Johnson, is, that in the deputation, it is not stated that “there is a probability that the criminal will escape:” If magistrates were always held liable for every trifling mistake they commit in the performance of their various official duties, few persons would be found willing to accept an office of so little profit, and attended with such great risk. Courts, therefore, from necessity, are bound to view their acts with reasonable indulgence, and if they are governed by good faith, and act within their jurisdiction, they ought not to be held liable for errors of judgment in matters of mere form. The justice had power, at common law, to make the appointment in the manner he did, but if it should be supposed that the statute has impliedly taken away this power, still, as the justice has the power to make the appointment on a certain contingency, it seems no unreasonable presumption that the contingency existed that gave him the power to appoint in the manner he has done.\nThe rule, applicable to cases of this kind, is well laid down by the supreme court of New York, in the case of Butler v. Potter, 17 Johns. Rep., 145. The court there say, “we have decided that where a justice has jurisdiction to issue an attachment, but proceeds erroneously in doing so, he is not, therefore, a trespasser. The distinction is this: where the justice has no jurisdiction, and undertakes to act, his acts are coram non judice, but if he has jurisdiction, and errs in exercising it, then the act is not void, but voidable, only.” The declaration does not negative the idea, but that the justice acted upon the belief of “ the probability that the criminals would escape.” For any thing that appears in the declaration, the justice acted perfectly right in deputing Johnson to serve the warrant, but if he erred in this respect, still it can not be said but that he had jurisdiction over the question, and this is sufficient for his justification. If the justice is not liable, there can be no pretense for sustaining the action against Johnson. The judgment must be reversed with costs,\n(a)\n,\n(1)\nJudgment reversed.\n* Laws of 1823, p. 184.\n† Laws of 1819, p. 163.\n(a) No action of false imprisonment lies against a judge of a court of record for any act done by him as judge, or in the execution of his office, nor for any error in judgment. 5 Dane’s Dig., 586. Nor a judicial officer, 3 id., 60.\nIt is incomprehensible to say that a person shall he considered as a trespasser, who acts under the process of the court, per Ld. Kenyon, Gh. Just., in the case of Belk v. Broadbent, 3 D. & E., 185.\nIt is a general rule, the plaintiff is liable to false imprisonment, if the court exceed, or pursues not its jurisdiction, and any power to commit must be strictly pursued. So it lies if a magistrate has power to commit, and proceeds irreqularh. 5 Dane’s Dig., 587.\nIf the court has no jurisdiction, its warrant, when given, affords no gxcuse to the officer for the arrest. Ibid., 589. The jurisdiction of\" courts and magistrates is a part of the law of the land, and this, the officer, and everybody else, is bound to know. 3 Dane’s Dig., 65.\nIt is a clear rule, that if a court not having jurisdiction, order an officer to do an act, and the officer obeys the order, his act is not justified. Ibid., pp. 66, 68, 69.\n(1) See note to last case.\nThe following is the provision of the present statute in relation to the appointment of constables : “ Any justice of the peace may appoint a suitable person to act as constable in a criminal or other case, where there is a probability that a person charged with any indictable offense will escape before application can be made to a qualified constable; and the person so appointed shall act as constable in that particular case, and no other; and any temporary appointment so made as aforesaid, shall be made by a written indorsement, under the seal of the justice deputing, on the back of the process, which the person receiving the same shall be deputed to execute.” Purple’s Statutes, p. 676, sec. 86. Scates’ Comp., 714.\nThere is also the further provision: “ Whenever there shall be no constable in any precinct, any justice of the peace in such precinct may appoint one, who shall be qualified as in other cases, and hold his office until superseded by an election. Purple’s Statutes, p. 662, sec. 16. Scates’ Comp., 686.\nIn Gordon v. Knapp, the justice appointed a constable pro tem. to serve a summons ; the appointment was not on the back of the summons, but on a separate paper. The court held the\" appointment not to be a compliance with the statute, and said: “ As a justice is an officer of inferior and special powers, the existence of the causes which would justify him in deputing an officer to execute process, should be shown; and the kind of process, and the mode of appointing the officer to execute it, should be in strict accordance with the statute, otherwise the appointment is void, and the service of the process a nullity.” 1 Scam., 489."
                        }
                    ],
                    "head_matter": "John Flack and Robert B. Johnson, Plaintiffs in Error, v. John Ankeny, Defendant in Error.\nCowles, for plaintiffs in error.\nYoung and Hall, for defendant in error.\nERROR TO JACKSON.\nA warrant which states in substance, that A. B. had made complaint on oath that C. D. and others had violently assaulted and beaten him, and the officer required to arrest them and bring them before the justice, contains every thing essential to a valid warrant.\nAt common law, a justice may authorize any person he pleases to be his officer, and under the act of 22d March, 1819, a magistrate can appoint a constable in a criminal case, where there is a probability that the criminal will escape.\nWhere a justice has jurisdiction, but proceeds erroneously, he is not a trespasser, but where he has not jurisdiction, he is.",
                    "parties": [
                        "John Flack and Robert B. Johnson, Plaintiffs in Error, v. John Ankeny, Defendant in Error."
                    ]
                }
            }
        },
        {
            "id": 435552,
            "url": "https://api.case.law/v1/cases/435552/",
            "name": "John Giles, Plaintiff in Error, v. John Shaw, Defendant in Error",
            "name_abbreviation": "Giles v. Shaw",
            "decision_date": "1827-12",
            "docket_number": "",
            "first_page": "219",
            "last_page": "220",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 219"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
            },
            "casebody": {
                "status": "ok",
                "data": {
                    "judges": [],
                    "attorneys": [
                        "Cowles, for plaintiff.",
                        "Blackwell and Reynolds, for defendant."
                    ],
                    "opinions": [
                        {
                            "author": "Justice Lockwood.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice Lockwood.\nThis was an action of debt, commenced on a judgment recovered in the [then] territory, now state of Missouri. The declaration is in the usual form. Subsequent to the filing the declaration, the plaintiff filed a transcript of the judgment in Missouri. To which declaration the defendant “ having oyer given him of the record declared on,” says, that he is not bound to answer farther than by demand, (supposed to mean demurrer,) and plaintiff joins in demurrer. On this state of pleadings the circuit court of Madison gave judgment for defendant. To reverse which a writ of error has been taken to this court. The declaration was sufficient, prima facie, to sustain the action. Could the defendant then, crave oyer of the -transcript on file, and demur ? Such a course would completely exclude the plaintiff’s testimony, and in most cases work the greatest injustice. Oyer at common law is only demandable of specialties. Our statute has probably extended the rule, but clearly limits the right to demand oyer of instruments signed by the party, and can not apply to actions founded on judgments. The proper course for defendants would have been to have pleaded, either nil debet\n*\nor nul tiel record. Nul tiel record it has been decided, is the proper plea to put in issue such a judgment as has been declared on, where the judgment is either domestic, or from a sister state. If, however, the defendant regarded the judgment as not coming within the purview of the constitution and law of congress, then the proper plea would have been nil debet. On the trial of either of these issues, the defendant could object to a material variance between the evidence offered and the declaration. The court do not decide which of these pleas would be proper, but are of opinion, that inasmuch as the declaration is sufficient on its face, that the court erred in sustaining the demurrer.\nJudgment reversed with costs and the cause remanded to Madison for further proceedings.\nThe court having been referred to some authorities since the above opinion was written, remark, that the demurrer ought to have been regarded by the court below as a nullity. The demurrer only states, that “ having oyer given him of the record declared on,” but does not proceed to set it out, or in any manner make the transcript a part of the demurrer. This was clearly erroneous. See 5 Bac. Abr. title, “ pleas and pleadings,” page 438, and the authorities there cited. It is by those authorities holden, “ that ifthe defendant, after praying oyer of a deed, do not set forth the whole of it, the plaintiff may sign judgment as for want of a plea, or the court will quash it; for that by craving oyer, the defendant undertakes to set out the whole verbatim, and if he do not do so the plea is bad.” That oyer is not, in strictness, demandable of a record, see 5 Bac. Abr., page 437.\n(a)\n,\n(1)\nJudgment reversed.\n* Quere: Is nil debet a proper plea in any case to an action of debt upon a record ? See Chipps v. Yancey, ante, p. 19.\n(a) The defendant shall not have oyer of a record when only conveyance to the action, as in escape; nor in debt on a recovery in an inferior court, for it remains there; nor of a record in another court, nor where he is party to it. 1 Saund., 9.\nOne has no right to have oyer of a record, as of an original writ. 1 T. R., 150. 5 Com. Dig., 467.\nThe defendant is not entitled to oyer of the original record, and if he prays oyer of it, the plaintiff may proceed without talcing notice of it. Douglass, 227, 477.\n(1) A scire facias upon a recognizance issues after such recognizance is made a record, and oyer of it is not demandable; if the writ misdescribes the record, the proper plea is mil tiel record. Slaten v. The People, 21 Ill., 28.\nIf a demurrer craves oyer of an instrument, it must be set out in haec verba, or the declaration will be judged as it stands. Young v. Campbell et al., 5 Gilm., 83.\nIn order to take advantage oh demurrer, of a variance, between the note set out in the declaration, and the copy of the note filed with the same, oyer should be craved, and the note set out in haec verba in the demurrer. Bogardus v. Trial, 1 Scam., 63.\nTo make a copy of a note, filed with a declaration, a part of the record for any purpose, oyer must be craved. Sims v. Hugsby, post. See Harlow v. Boswell, 15 Ill., 57. Collins v. Ayres, 13 Ill., 362.\nWhere a judgment is declared on without a proferí, no oyer can be had. Hall v. Williams, 8 Greenl., 434.\nIn Connecticut, oyer must be given of the record of the superior court, when required. Williams v. Perry, 2 Root, 462.\n'The proper mode of obtaining oyer is by prayer entered on record, to which the opposite party may counterplead, and thereby have a decision of the court whether oyer is to be given or not. Pendleton v. Bank of Kentucky, 1 Monroe, 171."
                        }
                    ],
                    "head_matter": "John Giles, Plaintiff in Error, v. John Shaw, Defendant in Error.\nCowles, for plaintiff.\nBlackwell and Reynolds, for defendant.\nERROR TO MADISON.\nOyer can not be demanded of a record. A variance between the record declared on, and the one produced as evidence, can be taken advantage of by the plea of nul tiel record.",
                    "parties": [
                        "John Giles, Plaintiff in Error, v. John Shaw, Defendant in Error."
                    ]
                }
            }
        },
        {
            "id": 435554,
            "url": "https://api.case.law/v1/cases/435554/",
            "name": "Jonathan Cobb, Plaintiff in Error, v. D. Ingalls, Defendant in Error",
            "name_abbreviation": "Cobb v. Ingalls",
            "decision_date": "1827-12",
            "docket_number": "",
            "first_page": "233",
            "last_page": "234",
            "citations": [
                {
                    "type": "official",
                    "cite": "1 Ill. 233"
                }
            ],
            "volume": {
                "url": "https://api.case.law/v1/volumes/32044057891608/",
                "volume_number": "1"
            },
            "reporter": {
                "url": "https://api.case.law/v1/reporters/1058/",
                "full_name": "Illinois Reports"
            },
            "court": {
                "url": "https://api.case.law/v1/courts/ill/",
                "id": 8772,
                "slug": "ill",
                "name": "Illinois Supreme Court",
                "name_abbreviation": "Ill."
            },
            "jurisdiction": {
                "url": "https://api.case.law/v1/jurisdictions/ill/",
                "id": 29,
                "slug": "ill",
                "name": "Ill.",
                "name_long": "Illinois",
                "whitelisted": true
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            "casebody": {
                "status": "ok",
                "data": {
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                    "attorneys": [],
                    "opinions": [
                        {
                            "author": "Justice Smith.",
                            "type": "majority",
                            "text": "Opinion of the Court by\nJustice Smith.\nThree grounds are relied on by the plaintiff in error, for the reversal of the judgment of the circuit court :\n1. That the motion to dismiss the cause ought to have been acted on by the circuit court;\n2. That permitting the plaintiff to amend his declaration, before acting on such motion, was erroneous;\n3. That the court should have decided the demurrer before the issue in fact was tried.\nThe untechnical manner in which the record has been made up is calculated to lead to some confusion in the examination of the real merits of this case. As far, however, as we can give to it a fair interpretation, it would seem that the defendant, without assigning any grounds for cause of dismissal, upon the plaintiff’s being permitted to amend his declaration, abandoned his motion, and filed a general demurrer, and without insisting on a decision of'the demurrer, filed a plea of the general issue. We can not doubt that this demurrer to the declaration was a waiver of his motion to dismiss the cause, but whether it was or not, the grounds of that motion, not appearing on the record, can not, of course, be inquired into. By pleading in chief the general issue, the defendant equally waived his demurrer. If the causes of demurrer were thought by his counsel to have been sufficient, a decision on the demurrer should have been insisted on. Had the court refused, as was suggested on the argument, to decide the questions raised by the demurrer, the defendant should have rested his case, and not have plead to the merits. The court would then have been compelled to decide the question of law, and the defendant, if not satisfied therewith, .would have had the opportunity of having that opinion reviewed in this court. He, however, thought proper to waive that right, and thereby conclude himself by a trial on the merits. The jury rendered a verdict against him, and as there is no irregularity therein, we are bound to say that the judgment of the circuit court must be affirmed with costs.\n(1)\nJudgment affirmed.\n(1) See note to Beer et al. v. Philips, ante, p. 44."
                        }
                    ],
                    "head_matter": "Jonathan Cobb, Plaintiff in Error, v. D. Ingalls, Defendant in Error.\nERROR TO MORGAN.\nMotions, demurrers, &c., should be determined by the court, in the order in which they are made, and a demurrer, while a motion to dismiss is undisposed of, is a waiver of the motion, and a plea of the general issue, the demurrer being undisposed of, is a waiver of the demurrer.",
                    "parties": [
                        "Jonathan Cobb, Plaintiff in Error, v. D. Ingalls, Defendant in Error."
                    ]
                }
            }
        }
    ]
}