Volume 2 — Illinois Reports

<p>Error to Peoria.</p> <p>A scire facias to foreclose a mortgage, may be issued before the expiration of one year from the decease of the mortgagor.</p> <p>A scire facias to foreclose a mortgage, is a proceeding in rem, and not an action in the ordinary acceptation of that term.</p> <p>A mortgage creditor has a specific lien on the mortgaged premises, which is not • affected by the solvency or insolvency of the intestate’s estate.</p> <p>The objection that a scire facias to foreclose a mortgage, does not set out the mortgage in full, cannot be taken on a plea in abatement.</p>

This cause was tried on appeal from a judgment of a justice of the peace of Marion county, before the Hon. Thomas C. Browne, at the September term, 1832, of the Marion Circuit Court.

This was an action on the case commenced January 16th, 1832, for the malicious prosecution of a suit, by attachment, against the defendants in error, by the plaintiff in error, as agent of one John H. Gay.

This cause was tried at the September Term, 1832, before the Hon. Richard M. Young and a jury, and a verdict rendered for the defendant. To reverse this judgment, Mary Clifton brought a writ of error in this Court.

This was an action of covenant commenced in the Vermilion Circuit Court. At the October term, 1833, the cause was heard before the Hon. William Wilson, upon demurrer to the plaintiff’s declaration, and judgment rendered for the defendant.

This cause was tried at the October term, 1831, of the Fayette Circuit Court, before the Hon. Theophilus W. Smith. The verdict of the jury was in favor of the plaintiff in error, for the sum of fourteen hundred and fifty dollars and forty-eight cents. Judgment was rendered upon this verdict.

<p>Error to St. Clair.</p> <p>In proceedings against a sheriff, under § 30 of the practice act, by motion, for failing to pay over money collected by him on execution, the judgment should be for the amount collected, and interest thereon, at the rate of twenty per centum per cmnwm.</p> <p>The remedy given by § 14 of the “Act concerning Sheriffs and Coronersis a distinct remedy from that given by § 30 of the practice act; and it is in the option of the plaintiff in execution to resort to whichever he pleases.</p>

<p>This case was tried before the Hon. Thomas C. Browne, at the October Term, 1832, of the Circuit Court of Jackson County.</p>

<p>Appeal from St. Clair.</p> <p>It would be clearly unjust to permit a party to assign his own mistakes as error.</p> <p>Where C. and W. are joined as defendants in a suit, and process served only on C., and the defendants’ attorney in a demurrer to the declaration, used the language “ defendants come by their attorney, and defend,” &c. but in the subsequent pleadings used only the name of C., held that he did not thereby enter W.’s appearance.</p> <p>It is not error for the Court to give final judgment against the defendant, upon sustaining the plaintiffs’ demurrer to a bad plea.</p> <p>The granting or refusing an application to withdraw a plea and plead He novo, rests in the discretion of the Court.</p> <p>A writ of inquiry is never necessary where the damages can be ascertained by computation.</p>

The appellees'instituted a suit in the Randolph Circuit Court against the appellant, as assignee of the following note: “@181. Five months after date, I promise to pay Edward Humphreys, or order, the sum of one hundred and eighty-one dollars in cash, for value received, this third day of April, 1822. “ Attest, Same. Smith.

<p>Error to La Salle.</p> <p>It is not in the power of a party to except to the opinion of the Court refusing instructions, unless he move them himself.</p> <p>A parly cannot assign for error that which makes in his own favor, except under peculiar circumstances.</p>

<p>Appeal from Madison.</p> <p>A bill in equity to enforce the specific performance of a contract, must show a complete performance of all the stipulations on the part of the complainant, to entitle him to a decree.</p> <p>He who seeks equity, must do equity.</p>

<p>Error to Monroe.</p> <p>A judgment for costs cannot be rendered against an administrator in his personal character.</p>

This was an action of debt on an award, commenced in the Circuit Court of Adams county, October 6th, 1830. The summons was directed to Morgan county, and made returnable to the October term, 1830. At this term the defendant appeared by attorney, and moved the Court to quash the summons, because no certain sum was set forth in said writ as the debt claimed by the plaintiff.

This was an action of assumpsit commenced in the St. Clair Circuit Court, by the appellee against the appellant. The cause was tried at the April term, 1831, before the Hon. Theophilus W. Smith and a jurjr, and a verdict rendered for the appellee for #114,40. Judgment was rendered on this verdict, and an appeal taken to this Court.

On the 7th day of June, 1831, the Judge of Probate of Hancock county, granted letters of administration to John R. Wilcox, upon the estate of Morrill Marston, deceased, he claiming to be a creditor of said estate.

This was an action of assumpsit commenced in the Peoria Circuit Court by the plaintiff in error against the defendant in error. The first count in the declaration is as follows : “ John L. Bogardus, plaintiff in this suit, complains of John G-.

<p>Error to Madison.</p> <p>Under the general issue, in an action by an administrator, proof that the plaintiff had received letters of administration upon the estate of his intestate, is unnecessary. The fact whether he was or was not an administrator, is not put in issue.</p>

These causes were tried upon an agreed case made by the parties, before the Hon. Theophilus W. Smith, in the Madison Circuit Court, at the October term, 1831, and judgments were rendered in favour of Bartlett.

<p>This cause was tried before the Hon. Richard M. Young and a jury, at the September term, 1832, of the Peoria Circuit Court.</p> <p>On the trial in the Court below, the following certificate was admitted as evidence on the part of the plaintiff, though objected to by the defendants, and its admission is one of the errors assigned :</p> <p>“Land Office, Quincy, Illinois, Aug. 2d, 1832.</p> <p>I do certify that George Reddick, of Peoria county, Illinois, did on this day, in this office, prove a right of pre-emption to the East half of the S. W. Qr. Sec. 27, T. 10, N., R. 8 E. 4 principal meridian, under the provisions of the act of Congress of the 5th of April, 1832.</p> <p>Same. Alexander, Register.”</p> <p>Judgment was rendered for the plaintiff in the Court below, for $8,8and costs.</p>

<p>This cause was originally instituted in the Court of Probate of Randolph county, by Christy and wife, in her right as one of the heirs at law and distributee of Samuel Wilson, deceased, against McBride, administrator of the estate of said Wilson, to recover of him her distributive share of said estate, after all legal demands should be satisfied. On the trial before the Court of Probate, the administrator exhibited his account current, showing a balance in his hands, of $190,63f, belonging to the heirs. The plaintiffs then proved that in addition to said balance of $>190,63f-, McBride, as administrator, had obtained three notes made to said Wilson, the intestate, in his lifetime, by one John Kingley, of Washington county, Virginia, and amounting, with interest, to more than $800, and that said McBride, through his agent, one Charles Tate, had collected said notes, and that said Tate had appropriated the money to his own use, and that he, Tate, was insolvent, and unable to pay the amount to McBride. That McBride acted honestly, and in good faith, in sending said notes to said Tate; and before he sent them, he consulted with William C. Greenup, clerk of the County Commissioners’ Court of Randolph county, and was by him advised to send the notes to Tate for collection, but that he had no personal knowledge of said Tate. That Tate, when the notes were sent • to him, or about the time, was reputed to be in solvent circumstances, and had been, or was then, sheriff of Washington county. The Court of Probate, on this state of facts, decided that McBride was not liable for any part of this money so collected by Tate, to the heirs and distributees of said Wilson, deceased. To which opinion, a bill of exceptions was tendered by said Christy and wife, and signed, and an appeal taken to the Circuit Court of Randolph county, where said judgment of the Court of Probate was affirmed, and a bill of exceptions tendered and signed, and the case brought to this Court by appeal. The cause was heard in the Circuit Court before the Hon. Theophilus W. Smith, at the September term, 1831.</p>

<p>Error to Johnson.</p> <p>Perjury .consists in falsely swearing to a fact material to the point in issue, before a tribunal having legal authority to enquire into the cause or matter investigated.</p> <p>A grand jury have no power to enquire whether an officer has been guilty of taking illegal fees for the service of process.</p>

This was an action of covenant commenced in the Morgan Circuit Court by the plaintiffs in error against the defendants in error upon an executor’s bond.

This was an action of debt instituted by the defendants in error in the Jackson Circuit Court, against the plaintiff in error, upon a sealed note. The declaration is in the usual form.

This cause was tried at the April term, 1833, of the Vermilion Circuit Court, before the Hon. William Wilson and a jury, and a verdict and judgment rendered for the appellee for #140, and costs.

This action was tried at the October term, 1832, of the Adams Circuit Court, before the Hon. Richard M. Young. The note upon which the action was brought, is as follows: “Quincy, 18th October, 1831. “On or before the 15th of March, 1832, I promise to pay unto David Wilkin or order, the sum of one thousand dollars, lawful money of the United States, without defalcation, being for value received, as witness my hand and seal the above date.

<p>This cause was tried at the April term, 1833, of the Clinton Circuit Court, before the Hon. Theophilus W. Smith, and a judgment rendered for the defendants, upon which the plaintiffs brought a writ of error.</p>

On the 19th day of November, 1830, Goodsell and ICeyes instituted a suit in the Adams Circuit Court, against Crocker, upon the following agreement: “ This article of agreement made and entered into this seventh day of May, in the year of our Lord one thousand eight hundred and thirty, between Thomas Crocker of the first part, and Herman Goodsell and Luke Keyes of the second part, all of Adams County and State of Illinois, Witnesseth: That the party of the first part doth…

The bill of exceptions in this case shows that Bailey, the plaintiff in error, made improvements upon a lot of public land, by cultivating the same, and erecting a dwelling house thereon, previous to the year 1829, and that he afterwards sold his improvements to his intestate.

The appellee, William Clark, brought an action against the appellant, before a justice of the peace of Sangamon county, which was appealed to the Circuit Court, where a judgment was rendered in favor of the appellee, for $69,87. ■■ The cause was tried at the-April term, 1830, before the Hon. Samuel D. Lockwood.

This action was tried at the March term, 1833, of the Hamilton Circuit Court, before the Hon. Thomas C. Browne. The jury returned a verdict of guilty against Reuben Clark, the plaintiff in error, and the Court gave sentence that he should be imprisoned in the county jail, three weeks, pay a fine of $360 and the costs of the prosecution, and that he should be publicly whipped thirty-nine lashes on his bare back. The errors assigned, are, 1.

At the December term, 1833, of this Court, the judgment of the Court below was reversed by default; but in making up the record, the name “Nathan Sparks ” had been inserted in the place of “ Matthew Sparks,” wherever the name of the appellee occurred.

<p>Error to Monroe.</p> <p>A return to a summons signed by a person as “ deputy sheriff,” without using the name of the sheriff, is erroneous and void.</p> <p>If judgment be rendered by default, against a defendant who has not been served with process, the proceedings are coram nonjudice. But the reversal of such a judgment does not affect the rights of the plaintiff below.</p> <p>A cause will not be remanded, where the proceedings in the Court below are coram nonjudice.</p>

<p>This cause was tried at the March term, 1833, of the Clay Circuit Court.</p>

This is an action of trespass instituted by Harmison against the above named defendants, together with Hiram Clark and Abraham Clark. Upon the two last no service of process was had, nor was there any appearance entered by them.

This action was tried at the March term, 1834, of the Gallatin Circuit Court, before the Hon. Thomas C. Browne and a jury. A verdict was rendered for the defendant in error, who was the plaintiff in the Court below, for $55,25. Upon this verdict judgment was entered.

<p>This cause was tried in the Circuit Court of Madison County, at the May term, 1834, before the Hon. Theophilus W. Smith.</p>

This was a scire facias, brought to foreclose a mortgage. The consideration expressed in the mortgage is one dollar in hand paid by the mortgagee; and in the defeasance reciting that James Hall, Jr. is indebted to the mortgagee by note due the 1st of May, 1827, in the sum of $997,74. The defendants below pleaded three pleas : 1. A want of consideration ; 2. A failure of consideration; and 3. A part failure of consideration.

<p>Judgment was rendered in this cause by the Hon. Thomas C. Browne, at the March term, 1834, of the Gallatin Circuit Court.</p>

<p>Error to Monroe.</p> <p>Where the legislature directs an inferior court as to the mode of enforcing its orders or decrees, such court possesses no discretion, but must proceed conformably to the mode prescribed.</p> <p>A Court of Probate has no power to render a judgment in favor of heirs or devisees, against an executor or administrator for failing or refusing to pay over to such heirs or devisees, their distributive portions of the estate of the deceased.</p> <p>If an executor or administrator fail or refuse to comply with the order of the Court of Probate, requiring him to make such payment, the remedy is by attachment for contempt of Court.</p>

This case was tried at the October term, 1834, of the Morgan Circuit Court, before the Hon. Samuel D. Lockwood, and a judgment rendered for the appellee for $126,83.

<p>Appeal from Morgan.</p> <p>Where a suit is brought before a justice of the peace, which terminates in a final judgment on the merits, there both parties shall be precluded from further litigation in relation to all matters that might have been decided in that case.</p> <p>Where two distinct suits are brought before the same justice, on the same day, upon two demands which might be consolidated into one suit, and which when thus consolidated, would not exceed $100, and one suit is dismissed, and judgement is rendered in the other, the proceedings are regular.</p> <p>The dismissal of a suit by a justice of the peace, is in effect a non-suit, and does not bar a subsequent suit for the same demand, or for a different cause of action.</p>

<p>Appeal from Hancock.</p> <p>One man cannot, by his own voluntary act, make himself the creditor of another.</p> <p>One co-partner or co-purchaser can in no case recover in an action for money paid, against his co-partner or co-purchaser, until the money has actually been paid; nor then until the time of payment has arrived.</p> <p>The giving of a note is no payment.</p>

This was an action of ejectment tried at the October term, 1834, of the Schuyler Circuit Court, before the Hon. Richard M. Young.

<p>This writ of error was brought to reverse a decision of the Hon. Samuel D. Lockwood, made at the October term, 1834, of the Morgan Circuit Court. ,,</p>

<p>Appeal from Franklin.</p> <p>A bill of exceptions cannot be taken unless the exceptions 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.</p> <p>The matter or decision excepted to, must have arisen during the progress of the cause, and before final judgment.</p> <p>A bill of exceptions will not lie to the final judgment of a court, where the whole case is submitted to the court for decision, and a jury dispensed with.</p>

This cause was tried at the June term, 1834, of the Schuyler Circuit Court, before the Hon. Richard M. Young, and a judgment was rendered for the appellee for $80,19, from which an appeal was taken to this Court.

<p>Appeal from, Hamilton.</p> <p>A bill of exceptions will not lie to the final judgment of the Circuit Court in a case where the cause is tried without a jury.</p>

This cause was tried at the April term, 1834, of the Franklin Circuit Court, before the Hon. Thomas C. Browne. A judgment was rendered for the appellee for $40 and costs, from which an appeal was taken to this Court.

<p>Error to Jefferson.</p> <p>Where the defendant pleaded guilty to an indictment for burglary, and the Court sentenced him to be imprisoned in the penitentiary for eighteen months: Held, that the proceedings were regular.</p> <p>The words in “ all cases ” in § 158 of the Criminal Code, apply only to all cases tried by a jury.</p> <p>Where a prisoner pleads guilty on an indictment for burglary, the Court should fix the time for which he is to be confined in the penitentiary.</p>

<p>This cause was tried at the March term, 1835, of the Madison Circuit Court, before the Hon. Thomas Ford.</p>

<p>Error to Madison.</p> <p>The return of a sheriff should state the time when the process was executed.</p> <p>The return of a sheriff upon a summons, in these words, “Executed on Hunter— Clemson not found. N. Buckmaster, Sheriff, M. C.,” is insufficient.</p>

<p>Appeal from Vermilion.</p> <p>A purchaser of land from the government of the United States or of this State, acquires the right to all the improvements made upon it anterior to his purchase. The act of February 23d, 1819, giving the right to remove fences made by mistake upon the lands of other persons, applies only to natural persons; it has no relation to a case where a fence is erected by mistake upon the lands of the United States or of this State.</p> <p>In the enactments of legislative bodies, where persons are spoken of, no other than natural persons will be intended, unless it be absolutely necessary to give effect to some powers already conferred on artificial persons, and which it is necessary should be exercised to carry into effect the objects contemplated in their grant or charter.</p>

This cause was tried at the May term, 1835, of the Cook Circuit Court, before the Hon. Sidney Breese and a jury. A verdict was rendered for the plaintiff below for $56. Judgment was rendered on this verdict, and an appeal taken to this Court. The bill of exceptions is as follows: Be it remembered that on the trial of this cause, at the May term of the Cook Circuit Court, the defendant, by his counsel, moved the Court to instruct the jury as follows: 1.

This cause was tried at the March term, 1835, of the Wayne Circuit Court, before the Hon. Justin Harlan. From the record, all that can be discovered, is, that the cause was appealed from a justice of the peace to the Circuit Court, and in that Court a judgment was rendered for the defendant for $8,27 and costs.

This cause was tried at the May term, 1835, of the Cook Circuit Court, before the Hon. Sidney Breese and a jury. A verdict was rendered for the apellee for $195. Judgment was rendered on this verdict, and an appeal taken to this Court.

Judgment was rendered in this cause at the November special term of the Madison Circuit Court, 1834, by the Hon. Theophilus W. Smith, for $100 and costs. To reverse this judgment a writ of error was prosecuted to this Court.

This was an action on the case for slander, brought by the plaintiff in error against the defendant in error in the Court below. The cause was tried at the April term, 1835, of the Gallatin Circuit Court, before the Hon. Alexander F. Grant.

The proceedings in this case in the Court below, were had before the Hon. Richard M. Young, at a special term of the Adams Circuit Court, in November, 1834.

<p>This cause was decided in the court below, at the April term, 1835, by the Hon. Richard M. Young.</p>

This was an action of assumpsit commenced in the Cook Circuit Court, by the appellant against the appellee, upon an agreement in writing signed by the appellee only. ■ The cause was decided at the October term, 1835, by the Hon. Stephen T. Logan, and a judgment for costs rendered for the appellee.

This cause was tried at the March term, 1835, of the Wabash Circuit Court, before the Hon. Justice Harlan, and a judgment rendered for the defendant in error for $28,45, in affirmance of the decision of the justice of the peace.

<p>This cause was tried at the November term, 1835, of the Schuyler Circuit Court, before the Hon. Richard M. Young.</p>

This cause was tried at the April term, 1835, of the Pike Circuit Court, before the Hon. Richard M. Young. After the decisions of the Circuit Court in relation to the admissibility of the evidence offered, the plaintiff being unable to proceed further, suffered a nonsuit, subject to the reversal and opinion of the Supreme Court.

<p>Application for a writ of Habeas Corpus.</p> <p>The Supreme Court has no original jurisdiction to authorize the allowance of writs of Hateas Carpus. It has no authority except as an appellate Court, in the review of legal proceedings, to allow writs of Habeas Corpus. But a party can apply for such writ to one of the judges of the Supreme Court, or to one of the judges of the Circuit Courts, and obtain the w rit. •</p>

This was a suit instituted by the plaintiff in error in the Sangamon Circuit Court, upon the following note: “ 30,75 Four days after date, we or either of us, promise to pay P. C. Latham thirty dollars and seventy-five cents, with three dollars per month interest after due until paid, for value received. Sept. 18th, 1832. his Jas. }* mark Efhm.

<p>This cause was tried at the November term, 1835, of the Adams Circuit Court, before the Hon. Richard M. Young.</p>

This cause was tried at the April term, 1835, of the Hancock Circuit Court, before the Hon. Richard M. Young, and a judgment was rendered for the plaintiff in the Court below, the defendant in error.

This cause was tried at the October term, 1835, of the Gallatin Circuit Court, before the Hon. Justin Harlan, and a judgment rendered for the defendant in the Court below, upon which the plaintiffs sued out the writ of error herein.

This cause was tried at the September term, 1835, of the Hancock Circuit Court, before the Hon. Richard M. Young. Judgment was rendered for the defendants, and the plaintiff brought the cause to this Court.

This cause was heard in the Coles Circuit Court, at the April term, 1835, before the Hon. Justin Harlan and a jury, and a judgment rendered against Morton for $47,50 and costs of suit, from which he appealed to this Court.

<p>Error to St. Clair.</p> <p>A defendant cannot avail himself oí the statute against usury, unless thesame be pleaded, and an application be made to the Court where the cause is pending, for the benefit of the act.</p>

This cause was tried at the November special term of the Coles Circuit Court, 1835, before the Hon. Alex. F. Grant, and a judgment rendered against Morton for $84,55 and costs, from which he appealed to this Court.

This cause was tried at the July special term, 1835, of the Sangamon Circuit Court, before the Hon. Richard M. Young.

This cause was tried at the July term, 1835, of the Sangamon Circuit Court, before the Hon. Richard M. Young and a jury, and a verdict and judgment rendered for the defendant.

This cause was heard at the June term, 1835, of the Schuyler Circuit Court, before the Hon. Stephen T. Logan, and judgment rendered for the appellee.

<p>The judgment in this cause was rendered at the July term, 1835, of the Gallatin Circuit Court, by the Hon. Alex. F. Grant.</p>

<p>This cause was decided in the Court below, by the Hon. Theophilus W. Smith, at the April term, 1834.</p>

This cause was tried in the Court below, at the September term, 1835, before the Hon. Alex. F. Grant, and judgment rendered for the defendant. The plaintiff appealed to this Court.

<p>Appeal from, Putnam.</p> <p>A summons not under seal, issued from the Circuit Court, should be quashed on motion in that Court.</p>

<p>Error to Maclison.</p> <p>The.return of a sheriff should stale the manner in which the process was executed. “ Executed Oct. 18th, 1832, as commanded within,” is not a sufficient return to a summons.</p>

<p>Error to Morgan.</p> <p>In an action of ejectment, where the judgment of the Circuit Court is for premises-not described in the declaration, the judgment will be reversed.</p>

<p>Judgments were rendered in two causes between the same parties, at the October term of the Gallatin Circuit Court, the Hon. Justin Harlan presiding, in favor of the defendant, Lowery. The plaintiff appealed to this Court, and assigned the same errors in each case.</p>

<p>Error to Bond.</p> <p>On a bill filed alleging a desertion for more than two years, and answer confessing the desertion, but justifying it on account of "repeated cruelty on the part of the complainant, the jury having found the charge of desertion to be true as alleged in the bill, the Court ordered a decree that the bands of matrimony be dissolved, and that alimony be allowed to the respondent for the support of herself and child, and that the cause be continued to the next term of the Court, for the purpose of enquiring into the amount proper to be allowed. At the next term of the Court, the same evidence was admitted on the hearing of the question in relation to the alimony, -which had been admitted on the hearing of the application for divorce, though objected to by respondent; and a decree for one cent alimony, and that each party should pay the costs incurred by each, on the application for alimony:—Held that said testimony must have been irrelevant to an enquiry on the question of alimony, the only question remaining to be decided, and that it was error to admit the same; atlcl that the allowance of a nominal amount of alimony, was a virtual rescinding of the judgment of the Circuit Court at the previous term.</p> <p>The final judgment of the Court should have decreed a yearly allowance commensurate to the support of the wife and child, in proportion to the husband’s ability, and her condition in life.</p> <p>The order that the wife should pay costs, -was also erroneous.</p>

This cause was heard in the Circuit Court, at the April term, 1835, before the Hon. Stephen T. Logan, and a judgment for $53,20 rendered in favor of the appellees. The suit was brought on a note of hand executed by the appellant to the appellees. The note did not specify for what it was given.

<p>Error to Clinton.</p> <p>Irregularity of process, whether the process be void or voidable, is cured by appearance without objection.</p> <p>The want of a seal to a summons, cannot be taken advantage of after an appearance.</p>

This cause was tried at the May term, 1836, of the Clay Circuit Court, before the Hon. Justin Harlan, and a judgment for $>39,60 rendered for the plaintiff in the Court below, the defendant in error.

This cause was tried at the September term, 1835, of the Adams Circuit Court, before the Hon. Richard M. Young and a jury, and a verdict and judgment rendered for the defendant in error, against the plaintiffs in error, for $22,12 and costs. There was another defendant in the Court below, who was acquitted on the trial.

The appellee recovered a judgment against the appellant before a justice of the peace of Hancock county for $50 and costs of suit, from which an appeal was taken to the Circuit Court. At the April term, 1836, of the Court below, the Hon. Richard M. Young presiding, a motion was made to dismiss the appeal for want of a bond.

<p>Judgment was rendered in this cause at the February term, 1836, of the Madison Circuit Court, the Hon. Sidney Breese presiding.</p>

<p>This cause was heard in the Court below, at the May term, 1835, before the Hon. Alexander F. Grant.</p>

<p>Error to Jackson.</p> <p>It is clearly erroneous to dismiss a bill filed against several, a part only of whom having been served with process, or entered their appearance, on motion of counsel for those who are served with process. A dismissal of a bill and a dissolution of an injunction against parties who are not in Court, on motion of counsel for those only who have entered their appearance, is erroneous.</p> <p>The statute exempts the old State Bank from the payment of costs; and persons ■who have acted merely ministerially for the bank, as agents, are not liable for costs.</p>

Judgment was rendered in this case by a justice of the peace of Fulton county, before whom the suit was originally instituted, in favor of the plaintiff in error, for $8,33|- and costs, from which Brown obtained a writ of certiorari to the Circuit Court. In the Circuit Court, at the May term, 1833, the Hon. Richard M. Young presiding, a motion was made to quash the writ of certiorari, which was overruled by the Court.

This cause was heard in the Court below, at the October term, 1836, before the Hon. Thomas Ford. A judgment was rendered for Crocker for $53,31¿, for which Carver appealed to this Court.

<p>Error to Gallatin.</p> <p>The statute does not require the claimant of property taken on execution, to state on whose execution the levy bad been made, in the notice he serves. Notice to the officer that he claims the goods levied on, intends to prosecute his claim, and forbids the sale, is sufficient.</p> <p>Surplusage cannot vitiate a notice.</p> <p>Objections in the nature of a plea in abatement, must be made in the first instance. It is too late to make them on appeal. An appeal from the decision of a jury, upon the trial of the right to property levied on execution, must be taken al the trial, and the appeal bond executed before the court is dissolved. An appeal bond filed the day after the trial, is not sufficient.</p> <p>When the process by which a court obtains jurisdiction of a cause is irregular, if no objection is made, the irregularity is waived.</p> <p>If an appeal be irregularly taken to the Circuit Court, from the verdict of a jury on the trial of the right of property before a justice, and the appellee appear in the Circuit Court, he waives all objections to the irregularity of the appeal.</p>

<p>This cause was decided in the Circuit Court at the April term, 1834, before the Hon. Richard M. Young. -</p>

This cause was tried at the October term, 1835, of the Montgomery Circuit Court, before the Hon. Sidney Breese. The jury found a verdict for the plaintiff in the Court below, the appellee, for $325. Judgment was rendered upon this verdict. The defendant appealed to this Court.

This was an action of ejectment brought by plaintiff’s lessors, to recover possession of the S. E. qr. of Sec. 14, T. 8, S. R. 6 East.

This was an action commenced in the Jo Daviess Circuit Court, by Peck against Boggess upon a promissory note for $615,19, given by the defendant, Boggess, to one John D. Mullikin, and by said Mullikin assigned to the plaintiff, on the 15th day of May, 1834. The note was dated Aug. 24, 1833, and payable thirty days after date. The defendant filed three special pleas, to all of which the plaintiff demurred.

At the October term, 1833, of the Madison Circuit Court, the Hon. T. W. Smith presiding, the grand jury presented the following indictment: “ State of Illinois, ) Madison County, ) ss Of the October term of the Madison Circuit Court, in the year of our Lord one thousand eight hundred and thirty-three, the Grand Jurors, chosen, selected, and sworn, in and for the county of Madison, in the name and by the authority of the People of the State of Illinois, upon their oaths…

<p>Error to Franklin.</p> <p>The statute does not authorize appeal bonds to be amended, in criminal cases. The statute regulating appeals in civil cases is otherwise.</p>

<p>Error to Morgan.</p> <p>Debt is the proper action to bring for a violation of an ordinance of an incorporated town.</p> <p>A summons from a justice of the peace to the defendant, to answer “ for a violation of an ordinance of said town relative to nuisances.” is informal and insufficient.</p>

This was an action originally instituted by the appellee before Martin De Witt, a justice of the peace of Schuyler county, upon the following promissory note : “ Twelve months after date, we or either of us, promise to pay Griffey Jones thirty-five dollars, for value received, as witness my hand and seal, April 14th, 1835. his David X Ransom, mark his Test, A. Paris.

This cause was tried at the October term, 1835, of the Sangamon Circuit Court, before the Hon- Thomas Ford, and a judgment rendered for the appellees for $66,88.

This cause was heard in the Circuit Court before the Hon. Samuel D. Lockwood, at the May term, 1834, and judgment rendered that the property levied on was subject to the execution of the appellees, and that they recover their costs of suit; from which an appeal was taken by Thornton to this Court.

This was an appeal from the verdict of a justice’s jury upon the trial of the right of property in certain goods and chattels claimed by the appellant as mortgagee, which had been levied on by virtue of an execution in favor of the appellee. The cause was tried at the March term, 1836, of the Crawford Circuit Court, before the Hon. Justin Harlan and a jury, and a verdict and judgment rendered against the appellant, from which he appealed to this Court.

This cause was tried before the Hon. Thomas Ford and a jury. The defendant in the Court below was found guilty, and sentenced to the penitentiary for five years.

This cause was commenced before the Judge of Probate of Clark county, on the 21st day of April, 1835. It was heard in the Circuit Court, at the May term, 1836, before the Hon. Justin Harlan.

The proceedings were had in this cause at the March term, 1836, of the Marion Circuit Court, before the Hon. Jepthah Hardin and a jury. Verdict and judgment were rendered for the defendants in error, for Si 3,84 and costs of suit.

This was an action of covenant commenced in the Gallatin Circuit Court, by Grundy against Buckmaster, upon the following bond: “ Know all men by these presents, that I, Nathaniel Buck-master, of the county of Madison and State of Illinois, am held and firmly bound unto William Grundy, of the county and State aforesaid, in the penal sum of four thousand two hundred and sixty-six dollars, good and lawful money of the United States, for the true and faithful payment of which, I…

<p>This cause was finally heard in the Court below, at the August term, 1836, before the Hon. Thomas Ford.</p>

<p>This cause was heard in the Court below, at the July term, 1835, before the Hon. Alexander F. Grant.</p>

This cause came on to be heard at the May term, 1836, of the Cook Circuit Court, the Hon. Thomas Ford presiding. The appellant was sued by the name of Augustus McKinster. He pleaded in abatement of the writ that his name was Augustus T. McKinstry. The plaintiffs demurred to this plea. The demurrer was overruled, and the plaintiffs asked leave to reply, which was granted them. The defendant excepted to the decision of the Court permitting the plaintiffs to reply.

Upon application of the defendants in error, who were sureties for the plaintiff in error, as executor of the estate of Lewis F. Crain, deceased, the Court of Probate of Tazewell county revoked the letters testamentary granted to said executor. The plaintiff in error excepted to the opinion of the Court of Probate, and appealed to the Circuit Court. The appeal bond was made payable to the defendants in error.

This cause was tried at the November term, 1835, of the Union Circuit Court, before the Hon. Jepthah Hardin and a jury. A verdict and judgment were rendered for the defendant.

This was originally a suit before a justice of the peace of Pike county, by Bennett against Kinman. On the return of the summons, to wit, on the 9th day of January, 1836, the parties apKeared before the justice, and after the hearing of the cause judgíent was suspended by the justice for ten days, at the end of which time, to wit, on the 18th day of January, 1836,.judgment was rendered against Kinman for f>64 and costs.

<p>This cause was heard in the Hancock Circuit Court, at the April term, 1836, before the Hon. R. M. Young.</p>

<p>This cause was heard at the April term, 1836, of the Jo' Daviess Circuit Court, before the Hon. Thomas Ford.</p>

<p>Error to Madison.</p> <p>A judgment by default is irregular unless it appear by a return on a process, that it had been served, and on what day service was made.</p> <p>The reversal of a judgment by default, where process from the Court below had not been served on the defendant in that Court, does not prejudice any future proceedings.</p>

This cause was tried at the April term, 1833, of' the Madison Circuit Court, before the Hon. Theophilus W. Smith and a jury, and a verdict and judgment rendered for the defendant.

This cause was heard in the Circuit Court of Franklin county, at the April term, 1834, before the Hon. Thomas C. Browne and a jury, and a verdict rendered against the defendant in the Court below, the present plaintiff in error.

This cause was tried at the March term, 1837, of the Edwards Circuit Court, before the Hon. Justin Harlan and a jury, and a verdict rendered for the defendant.

This cause was heard at the October term, 1835, of the Morgan Circuit Court, before the Hon. Thomas Ford, without the intervention of a jury. Judgment was rendered for the appellees, for $1,782,18, from which Arenz appealed to this Court.

This cause was heard in the Sangamon Circuit Court, at the October term, 1836, before the Hon. Stephen T. Logan. On the trial a motion was made by the appellants, to dismiss the cause for want of jurisdiction, because the claimant was not the absolute owner of the goods levied upon by virtue of their execution, but only interested in the same as a landlord who had distrained upon the goods for rent. This motion was overruled by the Court, and the appellants excepted.

This cause was tried at the October term, 1836, of the Cook Circuit Court, before the Hon. Thomas Ford. Judgment was rendered for the defendant in that Court.

The record in this case shows that a precipe was filed in the Court below, in an action commenced by Russell against Warnock, and that “ Afterwards, to wit, on the same day and year aforesaid, and at the place aforesaid, the plaintiff in this cause, by Davis & D’Wolf, his attorneys, filed in the Clerk’s Office of said Court, the following bond for costs, which said bond is in the words and figures following, to wit, “ The Same v. The Same.

<p>This cause was heard in the Court below, at the September term, 1836, before the Hon. Stephen T. Logan.</p>

This was an action commenced in the Cook Circuit Court, by John M. Barbour against Mark Beaubien. The summons was dated on the 23d day of March, 1837,(1) and tested in the name of Thomas Ford, as judge of said Court. The summons was duly executed and returned. At the May Term of said Court, 1837, Beaubien failing to appear, judgment was rendered against him by default, for #764,15 damages and costs of suit. From this judgment Beaubien appealed to this Court.

<p>Error to McLean.</p> <p>Where the record shows that a plea was filed and a judgment by default rendered on the same day, the judgment will be reversed. The Court will not presume that the plea was filed after the judgment was rendered.</p> <p>In an action of assumpsit, it is erroneous to enter up a judgment for debt and damages.</p>

This cause was tried at the July term, 1837, of the Municipal Court of the City of Chicago, before the Hon. Thomas Ford. Judgment was rendered for the appellee for $212,44 and costs.

<p>Appeal from Schuyler.</p> <p>The plea of non estfachm may be interposed in an action of covenant, without being verified by affidavit; and under it the defendant may avail himself of any legal defence that he could have done at common law, except merely denying or disproving the execution of the instrument declared on.</p> <p>In an action of covenant, there is no plea which can strictly be termed the general issue; but the general issue in debt, is correctly used to answer, under the statute, the same end it does in debt.</p>

<p>Appeal from Schuyler.</p> <p>After a plea of not guilty has been filed, putting a cause at issue, the Court can- . not on calling of the defendants, render a judgment by default; a jury should be empanelled, and a trial had, in the same manner as if the defendants had answered when called.</p>

<p>Error to McLean.</p> <p>It is erroneous to take judgment by default where a plea of non-assumpsit is interposed. A jury should be empanelled to try the issue, whether the defendant be present or absent.</p>

This was an indictment against the plaintiff in error, found by the Grand Jury of Cook county, at the May term, 1837, of the Cook Circuit Court, for larceny. The indictment contained two counts.

This was an action instituted by the appellee against the appellant, in the Clark Circuit Court. The seal to the summons was omitted by mistake. The summons was returned by the sheriff, with the following endorsement: “ Executed October 23d, 1837. J. Stockwell, Shff.” The defendant in the Court below moved to quash the summons because it was not under seal. This motion was overruled by the Court, and judgment rendered for the appellee, for want of a plea, for $175 and costs.

<p>Appeal from Wayne.</p> <p>A promise by a purchaser of a portion of the public lands of the IT. S., made subsequent to his purchase, to pay for improvements made thereon previous thereto, is without consideration and void.</p> <p>In an action to recover upoii a promise to pay for improvements made upon the public lands of the U. S., it is incumbent upon the plaintiff to prove not only the promise of the defendant, but that the improvements which are the consideration of the promise, were at the time the contract was entered into, upon the lands of the government.</p> <p>Where a witness is sworn in chief, he is bound to state all the facts in his knowledge, that are applicable to the case, and that can be proved by parol; and it . can make no difference whether such testimony is given in answer to the interrogatories of the party against whom it operates, or not.</p>

The plaintiff in error was indicted and convicted of the crime of larceny, at the November term, 1837, of the Municipal Court of the City of Chicago, and sentenced to the penitentiary.

This cause was tried at the September term, 1837, of the Gallatin Circuit Court, before the Hon. Walter B. Scates. The defendant in the Court below was convicted of stealing a pair of shoes, of the value of $1,75, and sentenced to pay a fine of $10, and to be confined in the county jail for one month.

<p>Error to Morgan.</p> <p>Original process can be issued to a different county from that in which the action is commenced, in the three following cases only:</p> <p>1. When the plaintiff resides in the county in which the action is commenced, and the cause of action accrued in such county.</p> <p>2. Where the contract is made specifically payable in the county in which the action is brought. In this case, no regard is paid to the residence of the plaintiff.</p> <p>3. Where there are several defendants residing in different counties, and the action is commenced in the county in which some one of the defendants reside.</p> <p>Where process is issued to a foreign county, the declaration should contain an averment of the facts necessary to authorize the emanation of the writ to such foreign county. An averment that the cause of action accrued in the county where the suit was brought, without averring that the plaintiff resided there at the time of the commencement of the suit, would not be sufficient.</p> <p>An affidavit of the facts which give the Court jurisdiction, is not necessary to authorize the issuing of process to a foreign county; and if it is made, it does not thereby become a part of the record, or dispense with the averment of those facts in the declaration.</p>

<p>Error to Macoupin.</p> <p>Where the evidence tends to prove the issue, the jury should be left to determine the cause under the evidence offered. In such a case, the Court has no power to take the cause from them, nor to advise them that the defendant is entitled to their verdict.</p>

<p>Appeal from Cook.</p> <p>To constitute a forcible entry and detainer under the statute of this State, it is not necessary that actual force and physical violence should be used.</p> <p>The statute in relation to forcible entry and detainer provides for three cases:</p> <p>1. A wrongful or illegal entry, as contradistinguished from a forcible and violent one.</p> <p>2. A forcible entry committed with actual force and violence.</p> <p>3. A wrongful holding over by a tenant.</p> <p>In an action for forcible entry and detainer, the description of the premises in the affidavit, was as follows: “ The premises enclosed by us, situate in the County of Cook, and State of Illinois, being the same on which you now reside, containing about one hundred acres, more or less, and commonly called North Grove r” Held that the description was sufficient.</p> <p>A Court is not bound to instruct the jury upon mere abstract propositions of law, which do not refer in any way to the evidence in the case.</p>

<p>This cause was tried at the September term, 1836, of the Adams Circuit Court, before the Hon. Richard M. Young. Judgment was rendered for the appellee for $64,62 and costs. On the trial in the Court below, the following bill of exceptions was taken:</p> <p>“Be it remembered that on the trial of the above cause, the plaintiff called Huntley, as a witness, who, after being duly sworn, stated that sometime in March, 1836, the plaintiff was employed as a millwright by the defendant, to build for the defendant a saw mill—that the plaintiff employed one other hand and witness to assist him, and that the three worked upon the timbers of the defendant’s mill, about twelve days, and in this time performed nearly all the work that could be performed upon the timbers until the mill irons were furnished. The timbers were not entirely finished, but the principal part of the work had been done upon them; and they might be regarded as in a state of readiness for the mill irons, and for being placed in the mill when that should be raised. Plaintiff then remained at defendant’s, till the time at which the mill was to have been completed, and the defendant not having furnished the irons for the mill, the plaintiff and the hands he had to assist him, left the defendant’s employment, and never returned to complete the work. The witness further stated, that all the work which was done by the plaintiff for the defendant, was done under and by virtue of a written agreement between plaintiff and defendant. They at one time had to quit work for want of some of the necessary irons. They went home and remained a week, and returned to defendant’s to proceed with the work, but defendant had not yet procured all the necessary irons, and after waiting several days at defendant’s, they left there on the 21st day of April, 1836, and did not again return. The defendant had not yet had his mill-dam built, nor had he furnished any head of water with which to run the saw. They had done all that they could conveniently do, for want of materials to be furnished by defendant, and in doing what they did, they had worked to a disadvantage for want of said materials. About two-thirds of said work was done, and plaintiff could have finished it in the time stipulated, if he had not been prevented by default of defendant.</p> <p>Greenhill Tucker was then called, and being sworn, stated that he had been employed by the plaintiff to assist him in doing the wood work of a saw mill for the defendant, and that he worked with the plaintiff on the timbers of said mill, about twelve days; that in that time they had done nearly all the work that could be done upon the timbers, till the irons were furnished, and they might be considered as prepared for the reception of the irons. Plaintiff remained at defendant’s until the day on which the mill was to have been completed ; and as the irons for the mill were not furnished, the plaintiff left, and did not afterwards return to finish the work. The witness further stated, that all the work which was done on and about the mill of the defendant, by the plaintiff, was performed under and by virtue of ah agreement in writing entered into between the plaintiff and defendant.</p> <p>The plaintiff then produced the written agreement spoken of by the witnesses, and gave the same in evidence, which said agreement is in the words and figures following, to wit:</p> <p>‘Article of agreement made and concluded this 18th day of March, in the year of our Lord 1836, between A. H. D. Butts of Adams county, and State of Illinois, of the one part, and Joseph Huntley, of Schuyler county, and State aforesaid, of the other part, Witnesseth, That the said Joseph Huntley agrees to do all the millwright work to a saw-mill for A. H. D. Butts, and warrant the said mill to cut three thousand feet of good merchantable lumber, one inch thick, of white oak, black walnut, white walnut, and hackberry, equally divided, in twenty-four hours, for the sum of one hundred and seventy-five dollars; and all the said mill cuts over the said three thousand feet, in the said twenty-four hours, the said A. H. D. Butts is to pay the said Huntley ten dollars per hundred for all over,—and the said Butts is to furnish a six feet head of water, and to board the said Huntley, and do all the drawing of the mill timber, and the said Huntley is to use two, and not exceed two and a half feet from the bottom of the wheel to the head of water. The said parties both agree to be ready by the 21st day of April, for the said mill to go into operation. The said Huntley is to do his work good and substantially, and in a workmanlike manner; and the said Butts agrees that the time of filing is not to be included in the twenty-four hours.</p> <p>In witness our hands and seals the above date.</p> <p>A. H. D. Butts. [l.s.]</p> <p>his</p> <p>Joseph ¡xj Huntley. [l.s.]</p> <p>Witness, mark.</p> <p>B. G. H. Tucker.’</p> <p>This being all the evidence offered on the part of the plaintiff, the defendant, by his counsel, moved the Court to instruct the jury to find for the defendant as in case of nonsuit; but the Court overruled the motion, and refused to give the instruction asked, to which opinion of the Court, in overruling said motion, and refusing to give said instruction, the defendant by his counsel excepts, and prays the Court to sign and seal this his bill of exceptions. Exceptions allowed.”</p>

This was an indictment for larceny against the defendants below, who appeared and pleaded not guilty, to the indictment, and went to trial.

This was a suit by scire facias to foreclose a mortgage executed by the appellant to the appellee, for money borrowed of the School Fund of Cook county. The scire facias contained no averment in relation to the rate of interest due on the note secured by the mortgage. The cause was tried at the May term, 1837, of the Cook Circuit Court, before the Hon. John Pearson and a jury.

The appellee instituted a suit in the Morgan Circuit Court, against the appellant, by petition and summons, on the following notes: “ On or before the first day of September, eighteen hundred and thirty-four, we promise to pay William Miller, Jr., three hundred dollars, in silver, for value rec’d this 13th day of Oct. 1826. Samuel Hitt, Iba Hitt.

The defendants in error moved the Court to quash the supersedeas in this case, for the following reasons, to wit: “That the order making the writ of error a supersedeas, required that James B. Campbell and others should enter into bond, &c. It appears that the bond was not entered into by James B. Campbell, but purports to have been entered into in the name of Campbell, by his attorney, &c. &c. and the authority of the attorney does not appear.” The bond purported to be…

This cause was heard at the October term, 1837, of the Municipal Court of the City of Alton, before the Hon. William Martin. The defendant pleaded in abatement that there was not at the time of the commencement of said suit “ any such person called The President, Directors and Company of the La Fayette Bank of Cincinnati.” Issue was taken on this plea.

The bill of exceptions taken on the trial of this cause in the Court below, at the August term, 1837, before the Hon. Sidney Breese, contains a full statement of the case, and omitting the declaration and the notice to the defendants in error of the motion of the plaintiff in error, to set aside the judgment rendered at the May special term, is as follows : “ Albert G. Sloo & Horatio G. McClintoc 7 Circuit Court of St. v. The President, Directors and Co. oft Clair county,…

This cause was heard in the Circuit Court of Cook county, at the March term, 1838, before the Hon. John Pearson. The judgment of the Court below was in favor of Kinzie, the defendant in error. This cause was by agreement of parties submitted to the Supreme Court for its decision.

<p>On the 22d day of July, 1837, Nathaniel Buckmaster instituted a suit in assumpsit, in the Madison Circuit Court, against the plaintiffs in error and one John B. Glover, upon six promissory notes, made by the plaintiffs in error, and payable to the order of the defendant in error, Buckmaster. Process was executed upon all except Glover.</p> <p>The declaration contains but one count, and is as follows:</p> <p>“In the Circuit .Court of Madison county, of August term, Anno Domini 1837.</p> <p>State of Illinois,) Madison county, 5</p> <p>Benjamin Godfrey and Winthrop S. Gilman, trading and doing business in name of Godfrey, Gilman & Co., Simeon Ryder and Caleb Stone and John B. Glover, trading and doing business in name of Stone & Co., were summoned to answer Nathaniel Buck-master, of a plea of trespass on the case on promises, &c., and thereupon the said plaintiff, by his attorneys, Martin and Murdock, complains, for that whereas, the said defendants, at Alton, to wit, at the county aforesaid, on the seventeenth day of January, in the year of our Lord one thousand eight hundred and thirty-seven, made their six certain promissory notes, in writing, and thereto subscribed their proper hand writings, the date whereof is the day and year aforesaid, by one of which said promissory notes, the said defendants on or before the eighteenth day of May then next, promised to pay to the order of Nathaniel Buckmaster, one thousand dollars, for value received, with interest at the rate of ten per centum after due and payable. By another of said promissory notes, the said defendants on or before the eighteenth day of May then next, promised to pay to the order of Nathaniel Buckmaster, one thousand dollars for value received, with interest at the rate of ten per centum per annum, from the said eighteenth day of May, eighteen hundred and thirty seven. By another of said promissory notes, the said defendants, on or before the eighteenth day of May then next, promised to pay to the order of N. Buckmaster, one thousand dollars for value received, with interest thereon at the rate of ten per centum, after the said note becomes due and payable. By another of the said promissory notes, the said defendants, on or before the eighteenth day of May then next promised to pay to the order of Nathaniel Buckmaster, one thousand dollars for value received, with interest at the rate of ten per centum per annum, from the said eighteenth day of May last. By another of said promissory notes, the said defendants, on or before the eighteenth day of May then next ensuing, promised to pay to the order of Nathaniel Buckmaster, one thousand dollars for value received, with interest at the rate of ten per centum per annum, from and after the said eighteenth day of May last. By another of said promissory notes, the said defendants, on or before the eighteenth day of May then next ensuing, promised to pay to the order of Nathaniel Buck-master, one thousand dollars for value received, with interest at the rate of ten per_centum, from and after the said eighteenth day of May aforesaid.</p> <p>Nevertheless, the said defendants, not regarding their several promises and undertakings aforesaid, in form aforesaid made, not regarding the said several promissory notes, or any or either of them, or the said several sums of money, or any part thereof, to the said Nathaniel Buckmaster, the said plaintiff, have not paid, or any or either of them, or any part thereof, although the same to pay, they, the said defendants, have been often thereto requested, to wit, at the county aforesaid, but the same to pay have hitherto wholly neglected and refused, and still do refuse, to the damage of the said plaintiff, ten thousand dollars, therefore he brings suit, &c.</p> <p>Martin & Murdock,</p> <p>Att’ys of Plff.”</p> <p>At the August term of said Court, 1837, the Hon. Sidney Breese presiding, the plaintiffs in error, by Cowles and ICrum, their attorneys, filed their demurrer to the foregoing declaration, “ And for cause of demurrer say, that there is duplicity in said declaration of the plaintiffs, in this there are six distinct causes of action embraced and included in the same count; 2d, There are several promises and undertakings alleged in one count.”</p> <p>To the demurrer there was a joinder, and the Court overruled the demurrer, and gave judgment for the defendant in error, (the clerk assessing the damages,) for the sum of #6,450 against the plaintiffs in error.</p> <p>To reverse this judgment, the plaintiffs in error brought their cause to this Court, and assigned for error the overruling of the demurrer, and giving judgment for the defendant in error. There was a joinder in error by Buckmaster.</p>

This cause was tried at the October term, 1838, of the Fayette Circuit Court, before the Hon. Sidney Breese. Judgment was rendered for the defendants in error. Upon the declaration, the following security for costs was endorsed : “ Charles Buckingham and Wolcott Huntington v. William Linn.

<p>Error to Edgar.</p> <p>Where A, B, C, and D were jointly indicted in the Edgar Circuit Court, and A alone moved for and obtained a change of venue to the Clark Circuit Court, without the consent of the others, where he was tried; and after his trial the indictment, without any order of Court, was returned to the Edgar Circuit Court, and B, C, and D called upon to plead to the same: Held that the proceedings were regular, and that the indictment as to B, C, and D, must be considered as remaining under the control of the Edgar Circuit Court, and that no trial could be had elsewhere. The Circuit Court of Clark county should have ordered the original indictment to be returned to Edgar county, and retained a copy thereof upon its own records.</p>

The following points were made by the counsel for the plaintiff in error: 1. Every count must be perfect in itself, or good by reference to a perfect count. Stark. 331-2; 1 Chitty Grim. Law 167, 205. 2. If the Court was right in quashing the first count, as the second count referred to the first, the whole indictment should have been quashed. 13 Johns. 484-5; 1 Chitty Grim. Law 247, 249. 3. For the same reason judgment should have been arrested.

William Teal instituted a suit against John B. F. Russell, Francis Peyton, and Josiah E. McClure, in the Cook Circuit Court, on the 9th of December, 1837, by summons, returnable to the March term, 1838. The summons was returned duly executed upon Peyton and McClure, “ Russell not found.” On the 22nd day of February, more than ten days before the session of the March term of the Court, the plaintiffs filed their declaration in said cause, upon a promissory note.

This cause was tried at the August term, 1837, of the Cook tJircuit Court, before the Hon. Jesse B. Thomas. Judgment was rendered for the plaintiff in the Court below for $354,66 and costs, from which the defendants appealed to this Court.

<p>Appeal from the Municipal Court of the City of Chicago.</p> <p>In appeals from justices of the peace, where an appeal bond is decided to be insufficient, the statute is imperative that the Court shall permit “ a good and sufficient bond” to be filed.</p> <p>Where the appeal bond was signed by one of the two appellants, as follows, “ Hubbard & Co. [Seal]:” Held, that the bond was amendable.</p>

This was an action instituted by the appellee against the appellant, in the Alexander Circuit Court, upon the following note: “$100. One day after date, I promise to the Treasurer of Alexander county, for the use and benefit of the county, one hundred dollars for value received. As witness my hand and seal. Unity, June 24th, 1837. James Berry, [l. s.]” On which is the following assignment: “For value rec’d. I hereby assign the within note to William Hamby. Jan. 26th, 1838.

Judgment was rendered in this cause for the defendants in error, by default, for $153,37 and costs, at the April term, 1838, of the Municipal Court of the City of Chicago.

This cause was heard in the Will Circuit Court, before the Hon. John Pearson. Judgment was rendered for the defendant in error.

<p>Error to Schuyler.</p> <p>A promise made by a purchaser of a portion of the public lands of the TT. S., subsequently to the purchase, to pay for improvements made thereon previous to the sale of the same, is without consideration and void.</p>

At this term of the Court, the relator filed a copy of the record of the cause of the relator against Harvey C. Newcomb, and the following notice, and moved the Court for a wit of mandamus to the judge of the Cook Circuit Court: “ Nathaniel J. Brown v. Harvey C. Newcomb.

At the September term, 1837, of the La Salle Circuit Court, the Hon. Jesse B. Thomas presiding, judgment was rendered by default against the plaintiff in error, upon the foreclosure of a mortgage by scire facias, for #1219,17 and costs of suit. The cause was brought to this Court by writ of error.

In June, 1838, a special term of the Circuit Court was held in Fayette county, for the trial of Guykowski, the plaintiff in error, then imprisoned in the jail of said county, on the charge of having murdered Nelson Ryall. The judge produced in Court the written notification of the sheriff of said county, requesting that a special term of said Court be held for the purpose of the said trial.

This action was originally instituted before a justice of the peace of White County, who rendered judgment for the plaintiffs in error, for the amount of the note sued on. The defendant appealed to the Circuit Court, where the cause was tried at the October term, 1837, before the Hon. Justin Harlan, and judgment rendered for the defendant for costs.

Averett recovered a judgment against the appellants, before a justice of the peace of Morgan county, from which they appealed to the Circuit Court. At the first term of the Circuit Court after the appeal was taken, the appellee moved to dismiss the appeal because it did not appear from the appeal bond, that it was entered into in the office of the clerk, or that the bond had been approved by the clerk, as required by law.

<p>Appeal from Morgan.</p> <p>The appointment of a constable pro tem. by a justice of the peace, to execute process, under § 51 of the “ Act concerning Justices of the Peaee and Constables,” must be made by endorsement upon the back of the process. An appointment upon a separate piece of paper, is not a compliance with the act.</p> <p>The statute specifies bat two cases in which a justice of the peace is authorized to appoint a constable pro tem. The one is to execute criminal process, where the accused is likely to escape; and the other is to execute civil process, where goods and chattels are about to be removed before an application can be made to a qualified constable. In the latter case, as a pre-requisite to the pow'er of appointment, it must be shown that goods and chattels are about to be removed.</p> <p>A justice of the peace cannot appoint a constable pro tem. to serve a summons or other personal notice, in a civil suit. The statute refers to an execution or attachment.</p> <p>Semble, That where a justice of the peace, or other inferior officer, acts in a case where he is not authorized to act, the proceedings are not only irregular, but void.</p>

This cause was tried at the September term, 1837, of the Vermilion Circuit Court. A verdict for @400 was rendered for th e defendant in error.

This cause was tried at the April term, 1838, of the Edwards Circuit Court, before the Hon. Justin Harlan and a jury. A verdict was rendered for the defendant in the Court below, the appellee.

This was an action of covenant commenced by the appellees against the appellants, in the Edwards Circuit Court, upon the following bond: “ On or before the twenty-first day of March, eighteen hundred and thirty-seven, we bind ourselves and our heirs, jointly and severally, to pay to John C. Campbell, John Brown, and John Gardner, or to either of them, the sum of five hundred and twenty dollars, with interest from the date hereof.

<p>This cause was tried at the August term, 1838, of the Madison Circuit Court, before the Hon. Sidney Breese.</p>

This cause was tried at the September term, 1838, of the Peoria Circuit Court. Judgment was rendered for the plaintiff in the Court below, from which the defendant appealed to this Court.

This action was originally instituted before a justice of the peace of Macoupin county, and was brought by appeal into the Circuit Court, where the cause was tried at the April term, 1838, before the Hon. Jesse B. Thomas. Judgment was rendered for the plaintiff for $73 and costs of suit, from which the defendant appealed to this Court.

This cause was tried at the April term, 1838, of the Macoupin Circuit Court, before the Hon. Jesse B. Thomas. Judgment was rendered for the defendants in error for $71 and costs.

This cause was tried at the September term, 1836, of the Adams Circuit Court, before the Hon. Richard M. Young and a jury. A verdict was rendered in favor of the lessoi's of the ;plaintiffj from which the defendant appealed to this Court. The material facts in the case appear in the opinion • of the Court.

This was an action of assumpsit instituted in the Municipal Court of the City of Chicago, by the appellee against the appellants, upon the following accounts: “ Hiram Pearsons and Richard J. Hamilton To Amos Bailey, Dr. 1836. July 37th, To cash paid for 16j days’ service as chainmen in laying out Hamilton and Pearsons’ Addition to the Town of Canal Port, at $3 $33 00 1837.

Judgment was rendered in this cause by F. A. Howe, a justice of the peace of Cook county, residing within the city .of Chicago, against the schooner Constitution, for $49,50 and costs. On the appeal to the Municipal Court, at the April term, 1838, the Hon. Thomas Ford presiding, the appeal was dismissed.

<p>Appeal from Hamilton.</p> <p>On the trial of a suit for a crim. con. between the defendant and the wife of the plaintiff, a juror was proposed, who, being examined, stated that he had heard the testimony against the wife of the plaintiff, who was indicted for adultery with the defendant, and from that testimony he had formed and expressed an opinion, but had not formed any opinion in this case, not knowing that there was a civil suit then : Held that he was a competent juror, it not appearing that the crime for which the wife was indicted, was committed before or after the commencement of the suit for crim. con.</p> <p>In a suit for a crim. con., a marriage license issued in the State of Tennessee, with a certificate endorsed thereon by a justice of the peace, that he had solemnized the marriage, was admitted in evidence, the official character of the officer granting the license, and also that of the justice of the peace, being certified by the clerk, the keeper of the records, under his official seal, and the presiding justice having certified to the authority and official character of the, clerk: Held that the license and certificates were properly admitted.</p> <p>It is a valid objection to a deposition, that it was dictated or written by an attorney in the cause; but the objection must be supported by proof of the fact.</p> <p>Where a deposition is read in evidence which proves nothing for either party, the Court will not enquire whether it-was properly admitted.</p>

On the 27th day of June, 1837, the following transcript was filed in the office of the clerk of the Morgan Circuit Court: “Thomas Swailes v. > James Holliday. } This day came Thomas Swailes and filed his bill against James Holliday, for making a partition fence upon the line dividing the land of the said Swailes and Holliday, the fence aforesaid having been made agreeable to an order from us to the said Swailes, dated the 12th day of May, A. D. 1837—and witnesses having been…

This cause was tried at the August term, 1837, of the Clay Circuit Court, before the Hon. Justin Harlan. Judgment was rendered for the appellee, for @25 and costs, from which an appeal was taken to this Court.

On the 27th of September, 1832, Reihle and Bains sued out of the Morgan Circuit Court, a writ of attachment against the estate of one Samuel P. Judson, which was levied by the sheriff of Morgan county, upon certain personal property which was claimed by David Sheldon. The sheriff thereupon summoned a jury to try the right of property, and a verdict was rendered for the claimant.

This cause was heard in the Court below at the May term, 1837, before the Hon. John Pearson. Judgment was rendered for the defendant in error.

The motion to set aside the default in this case, was made and decided at the September term, 1838, of the Will Circuit Court, the Hon. John' Pearson presiding. The affidavit of the plaintiff in error, the defendant in the Court below, stated that when the summons was .served upon him, the sheriff informed him that it was a summons for him as a witness, to appear at the April term, 1838; and that he had never been summoned in this cause, and had a full defence to the action.

<p>Judgment was rendered in this cause, in the Circuit Court of McLean county, in the year 1838, the Hon. Jesse B. Thomas presiding.</p>

<p>This was an action originally instituted by the appellees against the appellants, before a justice of the peace of Hamilton county, upon the following note :</p> <p>“ On or before the first day of January next, we or either of us promise to pay The President and Directors of the State Bank of Illinois, the sum of eighty-six dollars and ten cents, for value received, being the amount due on two judgments in favor of the Bank against N. Janny and others, on Lockwood’s Docket, and one judgment against Ichabod Mitchell, in the Circuit Court, on a note given by said Janny, together with interest on the above sum from the 24th of August, 1829, till paid: Provided if this note shall be paid punctually, the above interest and ten per cent, of the principal to be remitted, if both do not exceed twenty-four per cent, on the whole.</p> <p>Witness our hands and seals, this 19th day of September, 1833.</p> <p>George Mayberry, [l.s.]</p> <p>Ichabod Mitchell. [l.s.]”</p> <p>The cause was removed by appeal to the Circuit Court, where judgment was rendered for the appellees for $128,24, at the September term, 1837, the Hon. Walter B. Scates presiding. The defendants in the Court below appealed to this Court.</p> <p>On the trial in the Circuit Court the following bill of exceptions was taken:</p> <p>“ Be it remembered, that on the trial of this cause, the defendants, by their attorney, offered to produce in evidence to the Court, the two several judgments referred to in the note on which this suit was brought, and also the several notes on which those two judgments were rendered; and to prove that said two last mentioned notes were executed to the said plaintiffs for and in respect of bills of credit issued by the State of Illinois, by means of the machinery of what was called a State Bank, created in and by the act of the year 1821, entitled “ JLn act to establish” &c.; and that bills of credit issued by the authority of said State in violation of the Constitution of the United States, formed the whole consideration of the said last mentioned notes: which evidence except said judgments, the Court refused to hear, and to allow to be produced; to which opinion of the Court in overruling this evidence, the defendants, by their counsel, except, and pray this their bill of exceptions may be sealed and allowed, &c.</p> <p>Walter B. Scates. [l.s.]”</p>

<p>This was an action of assumpsit commenced by the appellee against the appellants, in the Circuit Court of Fayette county, upon a promissory note. The defendants in the Court below pleaded, first, that there was no consideration for the note, and, secondly, that the “note in the said plaintiff’s declaration mentioned, was made and executed and delivered by them to the said plaintiff, in consideration of a certain amount of work, to wit, to the amount of one hundred dollars, which he, the said plaintiff, alleged that he had done and performed for one David B. Waterman and Jesse H. Rogers, who were contractors upon the National or Cumberland Road in the State of Illinois; and which contract for work alleged to have been done by him as aforesaid, and for which said note was given, the said plaintiff, in consideration that the said defendants would sign and deliver said note to him, would transfer and deliver over to the said defendants, an order or transfer of said sum, to enable and authorize them to draw the money from the said Waterman and Rogers: and the said defendants aver, that the said plaintiff did not perform any work for said Rogers and Waterman, nor did he transfer and authorize the said defendants to draw the money on said contract as aforesaid, or any authority or order whatsoever to authorize them to draw the amount of said contract for the work aforesaid from the said Waterman and Rogers, but wholly failed and refused so to do, by reason of which the said defendants lost the benefit of the same; and the said defendants further aver, that the consideration of said note, in the said declaration mentioned, has wholly failed, and this they are ready to verify, wherefore, &c.”</p> <p>These pleas were traversed by the plaintiff, and issue taken thereon.</p> <p>The defendants then filed the following affidavit, and moved the Court for a continuance to the next term of the Court :</p> <p>“ Lemuel & Harvey Lee, ats. Michael Bates.</p> <p>Lemuel Lee, one of the defendants in the above cause being duly sworn, deposes and says, that William C. Greenup, of the county of Fayette, and David B. Waterman, of the city of St. Louis, Missouri, and Jesse Rogers, of the county of Greene, Illinois, are material witnesses for him in the trial of the above cause. He expects and believes that he will be able to prove by William C. Greenup, that the contract for work done by the said plaintiff for Rogers and Waterman, was in his possession, and the said plaintiff failed to transfer it to the said defendants, as he had agreed to do, and for which said note was given ; he also expects to prove by said Waterman and Rogers, that the said plaintiff wholly failed to perform his contract with them for work, and that they owed him nothing, and that they refused wholly to pay to the said defendants any money on account of the said plaintiff, for the said work alleged to have been done by him for the said Rogers and Waterman, and for which said note was given.</p> <p>This affiant further states, that he knows of no other witness or witnesses by whom he can prove the same facts. When the writ was served on this affiant, Wm. C. Greenup was absent from the county of Fayette, and has not since returned; and Waterman’s testimony, who resides in St. Louis, could not be taken before the meeting of the Court. They also state that from the shortness of the time they were unable to procure the attendance of the witness, Rogers, to this term of the Court. He expects to be able to procure their testimony by next Court.</p> <p>Lemuel Lee.</p> <p>Sworn to and subscribed in open Court, Oct. 10, 1838.</p> <p>Jas. W. Berry, Clk.”</p> <p>The motion for a continuance was overruled, and the defendants excepted to the opinion of the Court, and embodied the facts in a bill of exceptions, which was signed and sealed by the Court.</p> <p>The cause was tried before the Hon. Sidney Breese and a jury, at the October term, 1838. Verdict and judgment were rendered for the plaintiif in the Court below. The defendant appealed to this Court.</p>

<p>Error to the Municipal Court of the City of Alton.</p> <p>At law, a moiety, or any other portion of a promissory note, cannot be so assigned as to enable the assignee to bring an action in his own name, for his portion of the note.</p> <p>In order to enable an endorsee or assignee of a note to bring an action in his own . name, the whole interest in the note must be assigned to him.</p> <p>Where a note was made payable to B. and T., and T. endorsed and assigned his interest in the note to B., and an action was instituted on the note in the name of B. and T., for the use of B.; Held that the action was correctly brought; and that B. and T. were the legal holders of the note, though the interest of the assignee of the moiety, would be protected in a court of law; and that the endorsement of T. upon the note, could be regarded only as a private memorandum between the payees.</p>

This cause was tried at the October term, 1836, of the Warren Circuit Court, before the Hon. Richard M. Young and a jury. Verdict and judgment were rendered for the appellee, for $21,65.

<p>Appeal from Morgan.</p> <p>It is error to take judgment by default, where a demurrer is filed to the declaration or petition.</p>

<p>Error to Adams.</p> <p>A party intending to move to quash an execution, should give the opposite party notice of his intended motion. Where an execution was quashed without such notice, the Supreme Court reversed the decision, and remanded the cause.</p>

<p>Appeal from Morgan.</p> <p>It is not necessary in a suit in chancery, that there should be an order of publication, before notice to parties who are not served with process, can be given by advertisement in a public newspaper.</p> <p>Where a part of the defendants in a chancery suit were non-residents, and affidavit was made of this fact, and filed in the cl elk’s office, and the clerk published a notice for four weeks successively in a public newspaper printed in this State, of the pendency of the suit, and requiring such defendants to appear and answer the bill, or that the same would be taken as confessed against them: Held, that the defendants were duly notified under the statute.</p>

This was an action brought by the defendants in error, in the Madison Circuit Court, against the plaintiffs in error. The summons was directed to the sheriff of Morgan county, and by him executed upon the defendants in the Court below.

This was an action of assumpsit commenced in the La Salle Circuit Court, on the 7th day of March, 1838, by the appellees against the appellants. The declaration was filed April 5th, 1838. It was in the usual form, upon the following promissory note:' “June 14th, 1837. By the 1st of September next, I promise to pay Williams & Lander, the sum of two hundred and forty dollars, seven cents, it being for value received of them. As witness my hand.

This was an action of assumpsit on the following note: “Phila. Nov. 15, 1834. Four months after date, I promise to pay to the order of William Cook, one hundred and eighty dollars, at the Bank of Northumberland, for value received. $180,00 William Caldwell.” Assignment on the back—“ Pay William E. Armstrong, or order.” This cause was tried at the April term, 1838, of the La Salle Circuit Court, before the Hon. John Pearson.

<p>Error to Madison.</p> <p>An averment in a declaration, where process is sent to a foreign county, that the cause of action accrued in the county where the suit was brought, without at the same time averring that the plaintiffs reside in the same county, is not sufficient to give a Circuit Court jurisdiction.</p>

<p>Error to La Salle.</p> <p>In order to authorize the Circuit Court to issue a summons to another county, it must appear that the cause of action accrued in the county where the plaintiff resides and where suit is brought, or that the contract sued on was made specifically payable in the county in which the action is commenced.</p>

This was an action of assumpsit commenced by the appellees against the appellant and John C. Smith, in the Jo Daviess Circuit Court, on the 26th day of March, 1838. The declaration was in the usual form, on a promissory note. At the April term, 1838, the appellant pleaded the general issue. The cause was tried at the May term, 1839, before the Hon. Dan Stone. Judgment was rendered for the appellees, for @3805, 34 damages, and costs of suit.

<p>The proceedings were had in this cause, at the October term, 1S38, of the Municipal Court of the City of Alton, before the Hon. William Martin.</p>

<p>Error to Coles.</p> <p>Where an action of assumpsit is commenced against several, only one of whom pleads to the action, and the default of the others is entered, it is erroneous to take final judgment against them until the issue as to the defendant who pleads, is disposed of.</p> <p>In an action ex contractu, against several defendants, the judgment is a unit; it must be rendered against all or none. The cause cannot be continued as to one who has pleaded, and final judgment rendered against the others.</p>

<p>Appeal from Edgar.</p> <p>Where the record of a cause stated that “ the defendant filed his plea, and the plaintiff joined thereto,” but the plea and joinder were not on file, and copies of the same were not given in the record: Held, that the inference was, that the issue was an issue to the country.</p> <p>Where an issue of fact is joined in an action, the cause must be tried by a jury, unless the parties expressly agree that it shall be tried by the Court; and in. such case the agreement should be stated on the record.</p> <p>Where the pleadings in a cause are lost, the Court should permit the parties to plead de novo.</p>

<p>Appeal from Jasper.</p> <p>Infancy is not a dilatory plea.</p>

This was an action of assumpsit commenced by Boynton'and Hyde against Goodsell and Campbell upon a promissory note. The declaration was in the usual form. The defendants pleaded the general issue, and the cause was submitted to the Court for trial at the March term, 1839, the Hon. John Pearson presiding. Judgment was rendered for the plaintiffs for $326,78 and costs. The defendants appealed to this Court.

<p>Error to the Municipal Court of the City of Alton.</p> <p>Where B. instituted a suit against I. by capias, and held the defendant to bail; and the Court, on motion, discharged the bail, but rendered judgment for the plaintiff for the amount of his demand: Held, that the plaintiff could not bring a writ of error to reverse the decision of the Court discharging the bail. Held, also, that the defendant in error should have demurred to the assignment of error; yet, that notwithstanding he had joined in error, the Court would not, by affirming the judgment, subject the defendant to the costb of the Supreme tiourt; but would dismiss the writ of error.</p> <p>A motion to discharge bail, is addressed to the sound discretion of the Court; and its decision upon such a motion, cannot be assigned for error.</p>

This was originally a suit before a justice of the peace, for an assault and battery, and taken into the Circuit Court of Madison county by appeal. The Circuit Court, at the October term, 1832, the Hon. Theophilus W. Smith, presiding, reversed the proceedings before the justice, on the ground that the justice had no jurisdiction, the act under which the case was tried, being repugnant to § 11, Article 8, of the State Constitution.

On the trial of this cause in the Cook Circuit Court, at the March term, 1838, before the Hon. John Pearson, the plaintiff below, McKee, offered in evidence papers purporting to be copies from a justice’s docket, of the county of Wayne, in the State of Indiana, of three judgments in favor of McKee, assignee of Josiah and David Reynolds, against said Traders. The judgments were not certified by the justice before whom they were rendered; but one Thos.

Daniel Hugunin recovered a judgment in the Municipal Court of the City of Chicago, against John B. F. Russell and Hiram Pearsons, who were impleaded with J. M. Faulkner, upon a promissory note made by Faulkner, as principal, and Russell and Pearsons, as sureties; and being indebted to the Chicago Branch of the State Bank of Illinois, gave the Cashier of said Branch, an order on Morris and Scammon, his attorneys, for the proceeds of the note when collected.

The proceedings in this cause in the Fayette Circuit Court, were had at the April term, 1839, before the Hon. Sidney Breese. That Court quashed the writ of certiorari, and dismissed the appeal. The plaintiff excepted, and brought the cause to this Court by writ of error.

At the December term, 1838, of this Court, the attorney for the appellee, made affidavit that so much of the record in this cause, as stated that an appeal was prayed and granted, and a bill of exceptions tendered, allowed, signed, and sealed, and ordered to be made a part of the record, which was done, &c. (although a correct statement of what transpired in Court,) was an interpolation of the person who transcribed the record, and obtained a writ of certiorari to the Court…

In this case judgment was rendered in the Morgan Circuit Court for $50 debt and $11,55 damages. In,the condition of the bond, the judgment was recited as for $61 and $50. The deputy-clerk who transcribed the record, made affidavit that he filled up the bond, and that the variance happened through his mistake and inadvertence. The appellees moved to dismiss the appeal on account of the variance.

This cause was tried before the Hon. Thomas Ford, at the May term, 1836, of the Cook Circuit Court, on the chancery side thereof.

Hugunin brought an action against Nicholson, before a justice of the peace of Cook county, upon an account amounting to $909, upon which a credit was entered of $822,19—leaving a balance due of $86,81. It did not appear from the account whether any settlement had been had between the parties. The summons to the defendant commanded him to answer to the plaintiff for a failure to pay a demand not exceeding $100.

This was an action originally instituted before a justice of the peace of Morgan county. Judgment was rendered by the justice in favor of the plaintiffs, the defendants in this Court. The defendant appealed to the Circuit Court, where the cause was tried, and the judgment affirmed, at the June term, 1839, for @35,26 and costs, the Hon. Samuel H. Treat presiding. The cause was brought to this Court by writ of error.

This cause was tried in the Municipal Court of the City of Alton, at the January term, 1839, before the Hon. William Martin. Judgment was rendered for the defendant in error.

This cause was heard in the Court below, at the April term, 1838, before the Hon. Thomas Ford. Judgment was rendered for the plaintiff, and the defendant appealed to this Court.

<p>Where the Court have reason to believe that a cause is fictitious, they will require proof that the action is not feigned.</p>

This cause was heard in the Court below, at the August term, 1837, the Hon. Jesse B. Thomas presiding. Judgment was rendered for the plaintiff in error.

This was an action commenced by the plaintiff in error, in the Circuit Court of Will county, against the defendant in error, upon a promissory note for $250, bearing date January 26, 1837, made by the defendant, and payable to Abel Gilbert or order, six months from date, with interest, and by said Gilbert endorsed and assigned to the plaintiff. The declaration alleges that the note was endorsed to the plaintiff before it became due.

<p>This cause was heard in the Court below, at the April term, 1839, the Hon. Daniel Stone presiding.</p>

This was an action originally commenced by William Padfield against Samuel McCullough and A. G. Maxcy, before William Johnson, a justice of the peace of Clinton county, upon a promissory note made by Samuel McCullough to Anderson W. Petty, and by said Petty endorsed to Samuel G. Smith, and by said Smith endorsed to A. G. Maxcy, and by said Maxcy endorsed to the defendant in error. The summons was issued against McCullough and Maxcy, and returned executed upon Maxcy only.

This was an action of assumjssit commenced by the appellee in the Circuit Court of Peoria county, against the appellant. A motion was made in the Court below, at the May term, 1838, the Hon. Dan. Stone presiding, to dismiss the cause for want of a security for costs. The motion was overruled, and the cause submitted to the Court, and judgment rendered against the appellant for $202,16 damages, together with costs. From this judgment an appeal was taken to this Court.

This was an action instituted before a justice of the peace of McDonough county, on the 22d day of October, 1838, upon the following promissory note: “$100,00. On or before the twentieth day of October, we or either of us promise to pay John D. Walker, or bearer, one hundred dollars, for value received. Macomb, April 23d, 1838. J. P. Updegraff. [l.s.] Wm. PI.

This was a motion to dismiss the appeal because the same was granted upon condition that the defendant should verify by his own affidavit, within twenty days, two papers produced on the trial by the parties, but which were not in Court when the bill of exceptions was made up. Upon such verification, said papers were to be included in the bill of exceptions.