«(}trcultt Court, N.D.IZlf.notB. February 8,1890.)
AOTlONs-J'OINDER-MALIOIOUS PROSEOUTION AND FALSE IMPRISONMENT. Under Rev. St. Ill. o. 110, § 22, abolishing the distinotion between tbe
forms of action of trespass and case, an action for false imprisonment can be joined with an aotion for malicious proseoution.
ants demur to the declaration, setting up that they prayed and obtained oyer of the record of judgment of acquittal set out in the declaration, and that suoh record sbowsthat tl>e aoq.1JUit.tal was ndt. On the merits, but on a plea on.. limitation, the oourt cannot consider what purports to 1:Ie ajcopyof the record of acquittal set out in the . if the reoord in the c,ase at bar does not. show the,t. oyer was prayed and granted. ' .
.8. SAMd-O-O'rn OF REoORD.
In an aotioir for false imprisonment 8ndmalioious prosecution, where the defend.
In nllI1-0is oyer oannot be d!!manded of a record.
At law. Demurrer to narr. ActionJ)y Oarl A. Nybladh"l;l.gainst C. J. E. Herterius et al. for maliciousprosecution and false iQ1prisonment. ;W. F. S. plaintiff. Williams, Lawre:nce Bancroft, for defendants·
. BLODGE'fT, J. The in this case contains three counts: (1) Fot' malioious prosecution of plain,tiffj (2) for false imprisonment of plaintiff; (3)for malicious prosecution,---to all which plliintiff demurs generally. . . ' ' The fir8t'point of demurrer'ihsisted on by defendants' is that the declaration is bad for misjoinder of causes of action, it being contended that an action for false imprisonment cannot be joined with an action formaliciousprosecution. Under the common law, trespass was the usual remedy for false imprisonment, and case the remedy for malicious prosecution,and counts in these two forms of action could not be joined. But the statute of Illinois (chapter 110, § 22) abolishes the distinction betweeli two forms ofactiQn, and the supreme court of this state has held that these two forms ofaction may be joined in the same suit. Krug v. Ward,77Dl. 603; Barker v. Koozier, 80m. 205. Second. Defendants having prayed and obtained, as they say in their demurrer, oyer of the record of judgment of acquittal set out in the declaration, argue from such record ,that such judgment of acquittal was .not had upon, the merits, but upon! ll. plea of the Illinois statute of limitations.. As the record in this case does not show that oyer WIlS prayed, and granted by the court, what pUilports to be a copy ot the record referred to:ili the declaration,set out in the demurrer, cannot be so considered. ,The, court cannot'say that what purports to be the record of plaintiff'saequittal, set out in this demurrer, by the unauthorized act. of the defetldants, is the record upon which plaintiff relies. Aside from this, the law lleems well established in this .state that oyer cannot be demandedof & record. Giles v. Shaw, Breese, 219, and other Cases there-
cited. The court, therefore, cannot consider on this demurrer the question as to whether the plaintiff was acquitted or found not guilty of the criminal offense for which he was arrested, asset out in the declaration, under the plea of the Illinois statute of limitations. The demurrer is therefore overruled as to all the counts, and the defendants ruled to plead to the merits of the case within 20 days.
STEWART et al.
(OirCUtft Oourt. D. South Oarolina. January 21, 1890.)
DEPOSITIONS-L-mORSEMENT ON ENVELOPE-WAIVER OF IRREGULARITIES BY STIPULATION.
The envelope containing a deposition was sealed with seals bearing the notary's stamV, but not his signature, was not indorsed with the name of the cause, and the only mdication that it was mailed by the notary was a request to return to him if not called for. It was directed to the justice of the circuit (',ourt, and was opened on its receipt. Held, that any irregularities were waived by a consent to'the pub. lication and OpeniDIr, "without prejudice to any objections to the inclosed deposi. tion other than relating to publication and opening, which is hereby waived. "
SAME-CEBTtll'ICATE-INTEREST OJ!' NOTARY.
Where the notary certifies that he is not attorney for either party, omission to certify that he is not interested in the event of suit is not sufficient caus!l to sup. press the deposition, where it appears that, by cons!'lnt, the testimony was talren in short-hood by a disinterested person. ' Where a deposition is taken after full notice of time, place, and person, it is not necessary to attach the notice under which it was taken. It is not necessary' that the certificate of the notary should state that he retained the deposition until it was mailed.
SAME-FAILURE TO ATTACH NOTICE.
SAME-RETENTION BY NOTARY UNTiL MAILED.
CONTINUANCE-ABSENCE OF WITNESSES.
In 'an action for ice sold .continuance will not be granted for absence of the masters of the vessels which brought it, who are said to be materialwitnElsses as to its quantity and quality, where the affidavit shows search in. several ports, but does not indicate when and where they will be heard from again, espElciallyas the mate, and not the master, usually inspects the cargo. Leave to amend by striking out an admission of partnership betWeen plaintifts, and inserting that defendant has no information on which to form a belief on that point, will not be granted where defendant has been requirEld to answer under terms.
Buist and John Wingate, for plaintiffs. Hyde and G. W. McCormack, for defendant.
ON MOTION TO SUPPRESS DEPOSITION.
SIMONTON, J. On 18th December, 1889, the attorneys for plaintiffs gave notice to the defendant's attorneys of their purpose to examine before a notary, at Bangor, Me., certain witpesses residing more than 100 'miles from the place of trial, to-wit, at Bangor. The acceptance of service of this notice was given by defendant's attorney on said 18th Decem-