Volume 3 — Illinois Reports

<p>Error to the Municipal Court of the City of Chicago.</p> <p>The same averments are necessary to give the Municipal Court of the city of Chicago jurisdiction, when it sends its process to a foreign county, that would he requisite in a like ease, in a Circuit Court.</p> <p>An averment of the residence of the plaintiff, and that the cause of action accrued, or that the contract was specifically made payable, in the county where suit is instituted, is necessary where process is sent to a foreign county.</p> <p>The act abolishing the Municipal Court of the city of Chicago, has no application to a case where process is sent to another county.</p>

<p>Error to Peoria.</p> <p>Probable cause for reversing a judgment, is good ground for granting a supersedeas.</p>

<p>The following stipulation was filed by the attorneys of the respective parties :</p> <p>" Supreme Court of the State of Illinois.</p> <p>" State of Illinois v. Burton.</p> <p>" Same v. Weatherbee.</p> <p>" Same v. Blodgett.</p> <p>" Same v. Million.</p> <p>" It is hereby agreed between S. A. Douglass, who appears on behalf of the State, and William Brown, on the part of the said clerk, that the following is a true statement of the facts upon which this motion is predicated ; and the opinion of the Court is solicited upon the law thereon.</p> <p>“ These cases were instituted to assess damages and obtain the right of way, under the law establishing the Internal Improvement System. The Commissioner for the first judicial circuit, Jesse B. Thomas, Esq., prayed and obtained an appeal to this Court, and directed the clerk of the Morgan Circuit Court, where the cases were pending, to make out the records of the proceedings of the Court below, which the said clerk has accordingly done, and placed the same in the hands of J. J. Hardin, Esq., as his agent, to deliver the said records to the agent of the State, upon the payment to the agent of said clerk, his fees thereon.</p> <p>“ The agent of the State denies that according to the laws of this State, the State is bound to pay costs, and insists that the said clerk is bound to furnish the said records without the payment of costs or fees ; and, on the contrary, the clerk insists that he is entitled to his fees for making out a copy of the records, before the delivery of said records.</p> <p>“ Upon this state of facts, the parties aforesaid submit the question to the Court, whether the said clerk is or is not bound to deliver said records without previous payment of fees thereon.</p> <p>" Upon this statement of facts, the State of Illinois asks a mandamus against Dennis Rockwell, the clerk of the Circuit Court of Morgan county, commanding him to deliver over to the agent or attorney for the State, the copies of the records in the aforesaid causes. S. A. Douglass,</p> <p>Wm. Brown.”</p>

<p>Appeal from, the Municipal Court of the City of Alton.</p> <p>Debt is a proper form of action on a replevin bond.</p> <p>Where the condition of a replevin bond was, that if the plaintiff should prosecute his suit with effect, and save the officer harmless, or make return of the property, if the same should be awarded to the defendant, &c., and the declaration averred that such proceedings were had in the suit, that it was adjudged that the plaintiff should take nothing by his writ; and thereupon a writ of returno habendo was awarded and delivered to the officer; and that the plaintiff “ did not prosecute his suit with effect, or make return of the property ” replevied: Held, that the breach alleged in the declaration was sufficient.</p>

<p>On the 22d day of April, 1839, William Gordon, Esq., a justice of the peace of the county of Morgan, issued the following capias, to wit :</p> <p>“ State of Illinois, Morgan county, set. The People of the State of Illinois, to any constable of said county, greeting :</p> <p>“ Whereas, Christiana Riggs hath complained on oath, in writing, that Edward Shirtliff did, on the 21st day of April, 1839, commit an assault and battery on the body of the said Christiana Riggs, contrary to the law of the State of Illinois, and in violation of the ordinances of the town of Lynville, —</p> <p>“ These are therefore to command you to take the body of said Edward Shirtliff, and bring him forthwith before me to answer to the complaint aforesaid, and to be further dealt with according to law.</p> <p>“ Given under my hand and seal, this 22d day of April, 1839.</p> <p>“William Gordon, J. P. (Seal.) ”</p> <p>Said capias was indorsed, “ The town of Lynville v. Edward Shirtliff.”</p> <p>On the same day, said Shirtliff was tried by a jury before said Gordon, in a cause entitled “ The President and Board of Trustees of the town of Lynville v. Edward Shirtliff.” The jury found the defendant guilty, and fined him forty dollars and costs of suit. Upon this verdict, the Court rendered the following judgment : “ Therefore, it is ordered that the President and Trustees of the town of Lynville recover of the defendant the sum of forty dollars, fine, and costs of suit, taxed at two dollars sixty-eight and three quarters cents.”</p> <p>From this judgment the defendant appealed to the Circuit Court of Morgan county, and the cause was there docketed “ The President and Trustees of Lynville v. Edward Shirtliff.” Upon the calling of the cause in the Circuit Court, the defendant moved the Court to quash the proceedings, and reverse the judgment of the justice, and dismiss the suit for the following reasons :</p> <p>1. The justice of the peace had no jurisdiction to try the cause.</p> <p>2. The plaintiffs cannot sustain this action which is for a criminal offence against the law of the State.</p> <p>3. The action is brought contrary to law.</p> <p>4. The president and trustees of an incorporated town have no legal right to fine any person over five dollars for any one breach of a town ordinance.</p> <p>5. It is an action for a crime or misdemeanor, and not cognizable before a magistrate in behalf of a corporation or town.</p> <p>6. It should have been an action of debt for a fine not exceeding five dollars, previously assessed by the corporate authorities.</p> <p>7. Incorporated towns cannot enact penal codes, except in the strict performance of their duties and powers as defined by law.</p> <p>The Circuit Court overruled the motion, and the defendant excepted to the decision. Thereupon a jury was called to try an issue between the People of the State of Illinois and said Shirtliff, to which the defendant objected, and offered to prove to the Court, (and did prove to the Court so far as that fact could be proved,) by the original docket of the justice of the peace, that the cause was originally tried between said President and Trustees of Lynville and said Shirtliff; but the Court, notwithstanding, directed the trial in the Circuit Court to be in the name of the People of the State of Illinois v. Edward Shirtliff, and ordered the cause to be docketed in that manner. The defendant excepted to these orders, and thereupon withdrew from the trial, and refused to make an appearance or take any part in the trial between the people of the State and the said Shirtliff. These facts were embodied in a bill of exceptions.</p> <p>The jury in the Circuit Court found the defendant guilty, and fined him fifty dollars. Judgment was rendered on this verdict. From this judgment, the defendant below prosecuted a writ of error to this Court, and assigned for error the refusal of the Court to quash the proceedings before the justice, and to dismiss the suit, and the order of the Court directing the trial in the Circuit Court to be in the name of the People of the State of Illinois, instead of the President and Trustees of Lynville, as the case was originally tried before the justice.</p> <p>There was a joinder in error by the Attorney-General, Wicic-LIFFE KlTCHELL.</p>

<p>This was an action commenced in the Peoria Circuit Court by the appellees against the appellants, upon a promissory note of which the following is a copy :</p> <p>“ $400 r%%. St. Louis, May 22d, 1837. Ten days after date, we promise to pay to the order of Hicks, Ewing & Co., four hundred dollars for value received without defalcation.</p> <p>Forsyth & Co.”</p> <p>The declaration was in the usual form, and contained but one count. The plaintiffs were alleged to be “of the city and county of St. Louis, State of Missouri,” and to be partners under the name of Hicks, Ewing & Co. The declaration alleged the note to have been made “ at St. Louis, to wit, at Peoria.” There was no other averment of the place or county in which said note was made. The defendants filed their plea of non assumpsit, upon which issue was taken.</p> <p>From the bill of exceptions, it appears that a deposition was taken in the cause, and returned to the clerk’s office, sealed up and directed to the said clerk, with the following endorsement, “ Hicks, Ewing & Co. v. Forsyth & Co.”</p> <p>The defendants in the Court helow excepted to said deposition, “ because the names of the parties litigant were not endorsed on the deposition; ” and to the second interrogatory in said depo7 sition, “ because said second interrogatory was leading and improper.” It was as follows :</p> <p>“ Question 2d. Do you know whether the said plaintiffs, Robert Baxter, Edward D. Hicks, Henry Ewing, and Anthony W. Vanlear are doing business in company under the firm and style of Hicks, Ewing & Co., and if yes, how long have they, to your knowledge, been doing business in company as aforesaid ? ” The answer to this interrogatory was, “ They are, and have been for about three years.”</p> <p>The Court overruled said exceptions, and on the trial of the cause permitted the whole of the said deposition to be read in evidence. The Court also permitted the plaintiffs “ to read in evidence the laws of the State of Missouri to prove that the said plaintiffs were entitled to recover interest on promissory notes, made in the State of Missouri, to which the defendants objected, because there was no averment in the declaration that the said plaintiffs, by the laws of the State of Missouri, were entitled to claim interest on promissory notes.” To each of said decisions the defendants excepted. By agreement of parties, the cause was then submitted to the Court for trial, without the intervention of a jury. Judgment was rendered for the plaintiffs, from which the defendants appealed to this Court, and assigned for error the decisions of the Court which were .excepted to.</p> <p>The cause was heard at the May term, 1838, of the Court below, before the Hon. Dan Stone.</p>

This was an action by petition and summons in the Greene Circuit Court. The cause was tried before the Hon. William Brown, at the April term, 1837, and a judgment rendered for the plaintiffs for $189.88 and costs of suit. The defendant appealed to this Court.

This was an action of debt commenced by attachment by Yeatman & Kent against Lawrence, to recover a debt of $ 339 75-100, and $ 375 in damages. The affidavit and bond were made by A. Cowles, as the agent of the plaintiffs.

The record in this case shows that the following writ was issued, and proceedings had in the Court below: cc State of Illinois, Schuyler County, ss. “ The People of the State of Illinois to the Sheriff of Schuyler County, Greeting.

This was an appeal from the trial of the right to property levied on by execution in favor of Thomas Singleton, administrator, against Thomas Harrison, for the sum of $ 151;75, debt and costs, issued by Enoch Moore, probate justice of the peace of Monroe county, directed to any constable of said county.

This was an action of assumpsit originally commenced by Gate-wood against the Towells, in the Gallatin Circuit Court, and transferred, by change of venue, to the Pope Circuit Court, where the cause was tried at the April term, 1836, and a verdict returned for the defendant. A new trial was granted, and had at the September term, 1837, before the Hon. Walter B. Scales, and judgment rendered for the plaintiff for $ 131,60. The defendants appealed to this Court.

This was an action of trespass vi et armis brought by Derby against Owens and Stevens, in the Hancock Circuit Court. The declaration contained four counts. The defendants pleaded separately. Owen pleaded son assault demesne as to the first two counts, and the general issue as to the last two. Stevens pleaded the general issue to the whole declaration.

This was an action of assumpsit commenced by McDowell against Ballentine, in the Wabash Circuit Court, for the use and occupation of a ferry and ferry landing. The cause was heard at the April term, 1839, and judgment rendered for the plaintiff for $ 125 and costs.

<p>This cause was tried in the Court below, at the August term, 1839, before the Hon. William Thomas.</p>

<p>Error to Peoria.</p> <p>In suits by corporations the same rules prevail as in suits by natural persons. Process in favor of a corporation can be sent out of the county where the suit is commenced, only in such cases as it might he so sent in suits in favor of persons.</p>

<p>This cause was heard in the Court below, at the December special term, 1839, before the Hon. Peter Lott.</p>

<p>Where an action of assumpsit is commenced against several, and process is served only on a part of the defendants, it is error to take judgment against those who are not served, and who do not appear.</p>

This cause was heard in the Cook Circuit Court, at the May-term, 1836, before the Hon. Thomas Ford. Judgment was rendered, on demurrer to the plaintiff’s declaration, in favor of the defendant, Chapman. Cole brought the cause to this Court by writ of error.

This was an action of trespass de bonis asportatis. The declaration alleges that the defendants, on the 9th of April, 1838, took and carried away 80,000 feet of the plaintiff’s lumber, of the value of $ 2000.

<p>Error to Macoupin.</p> <p>In an action of debt against several, judgment must be rendered against all who are served with process, or none.</p>

This was an action of debt by petition and summons, in the Morgan Circuit Court, upon a promissory note. The cause was tried at the March term, 1838, before the Hon. Jesse B. Thomas.

<p>The appeal, in the Court below, was dismissed at the March term, 1839, by the Hon. Stephen T. Logan.</p>

This was an action of account brought in the Circuit Court of Madison county, to obtain an account of the rents and profits of a certain mill and tract of land in Madison county, of which the plaintiffs claimed to be tenants in common with the defendants. The defendants pleaded that they were not bailiffs of the plaintiffs, and that they were not tenants in common with the plaintiffs. Issue was taken on these pleas.

This was an action of debt by petition and summons. The two special pleas filed by the defendant in the Court below, were as follows : “ And the said defendant comes and defends the wrong and injury, when, &c., and for further plea in this behalf, says, that plaintiff his action aforesaid to have and maintain ought not, because, he says, that said note in plaintiff’s petition mentioned, was given for and in consideration of a pretended sale made by one Edward D. Baker, the…

This cause was heard in the Court below, at the April term, 1839, before the Hon; William Thomas. Judgment was rendered for the plaintiff for $650, debt and $41,28 damages and costs of suit. The defendant appealed to this Court.

After this cause was argued in part in the Supreme Court, it being objected by the counsel for the defendant in error, that the bill of exceptions was not signed and sealed by the judge of the Court below, a writ of certiorari was granted to the Circuit Court of White county, to send up a complete record, it being suggested by the counsel for the plaintiff in error, that the original bill of exceptions was signed and sealed by the judge, but the clerk had omitted to copy the…

This cause was heard in the Court below, at the September term, 1838, before the Hon. Thomas Ford. Judgment was rendered for the plaintiff.

<p>This cause was heard in the Court below, at the February term, 1839, before the Hon. Sidney Breese.</p>

This cause was heard in the Court below before the Hon. .Thomas Ford and a jury. Verdict and judgment were rendered for the plaintiff. The defendants appealed to this Court. As the opinion of the Court refers to only a few of the many points made in the case, and the record and points made by counsel are voluminous, it is not deemed expedient to recite more than appears in the opinion of the Court.

This was a suit originally instituted before a justice of the peace of Peoria county, and carried by appeal to the Circuit Court. In that Court the cause was tried at the October terra, 1839.

<p>The proceedings in this cause were had in the Court below, at the August term, 1839, before the Hon. Sidney Breese.</p>

This was an action on the case, brought by the plaintiff in the Bond Circuit Court, and removed by change of venue to the Fayette Circuit Court.

This cause was heard in the Court below at the September term, 1839, before the Hon. Peter Lott. Judgment was rendered for the plaintiff, and the defendants appealed to this Court.

This was an action of assumpsit commenced by Colton against Adams, in the Will Circuit Court. The defendant pleaded the general issue, and gave notice of set-off at the September term, 1837, and the cause was continued from term to term, until April term, 1838, when the cause was tried.

This was an action of assumpsit commenced by McGoon against the appellant, in the Municipal Court of the city of Alton, on a promissory note for $ 5,000, on which there was a credit, before bringing the suit, of $ 604,61. The note was dated at Galena, Illinois, October 15th, 1836. Upon the affidavit of McGoon, the defendant was held to bail in the sum of $4,500.

On the 16th of March, 1838, the plaintiff commenced a suit against the defendant, before a justice of the peace of Bureau county, who rendered a judgment against the plaintiff for $ 7,50 and costs of suit. The plaintiff appealed to the Circuit Court, and filed a new bill of particulars, embracing the account filed before the justice, together with additional items amounting to $ 21,45.

<p>This cause was heard in the Court below before the Hon. Sidney Breese. It was very ably argued in this Court.</p>

This cause was heard in the Court below, at the August term, 1839, before the Hon. Sidney Breese. Judgment was rendered for the plaintiffs. The defendants appealed to this Court.

<p>Appeal from Cooh,</p> <p>A body corporate can act only in the mode prescribed by the law creating it.</p> <p>A lease, executed by the " Trustees of the town of Chicago,” without the corporate seal, is void.</p> <p>The mode of assenting to, and authenticating, the acts of a corporate body, which uses a seal, is to affix the sea], with a declaration, that it is the seal of the corporation, and to verify the act by the signatures of the president and secretary.</p> <p>A plea to an action upon a note, that the consideration was a lease which was illegal, null, and void, is good.</p>

At the July term of this Court, in the year 1839, J. Young Scammon, attorney for Robert C. Bristol, filed the record of the cause of John F. Phillips v. Robert C. Bristol, which was tried in the Cook Circuit Court, at the May special term, 1839, and appealed to this Court.

On application of M. K. Alexander, a Commissioner of the Board of Public Works, for the 4th Judicial Circuit, S. Connely, a justice of the peace of Edgar county, appointed three householders to assess the damages which John Evans, the defendant in error, would sustain, over and above the additional value which his lands would derive, from the construction of the branch of the Central Rail Road, across the lands of Evans. The damages were assessed by them at one cent.

<p>Appeal from, Jo Daviess.</p> <p>Where the Court have reason to suppose that a cause is not a real, but a fictitious proceeding, proof will be required that the action is not feigned.</p>

This cause was heard at the January term of the Court below, before the Hon. William Martin. The special grounds of demurrer to the declaration, were, “ First, The declaration is wholly uncertain in regard to time; Secondly, They allege damage for the non-performance, but do not show how much ; Thirdly, There is no sufficient breach alleged in the declaration; Fourthly, There is no sufficient performance alleged by the plaintiffs.”

This cause was heard at the June term, 1837, of the Schuyler Circuit Court, before the Hon. James H. Ralston and a jury. A verdict was rendered for the plaintiff for $ 16. Judgment was entered upon this verdict.

This was an action of assumpsit brought by Kimball against Kent, in the La Salle Circuit Court. The cause was commenced onjthe 21st of April, 1838, and the process was returnable to the September term of the Court, which was holden on the 3d Monday of said month. On the 5th of September, the plaintiff filed his declaration, but did not file any copy of the instrument or account declared on.

<p>This cause was heard at the October term, 1837, of the Shelby Circuit Court, before the Hon. Sidney Breese.</p>

<p>Error to Sangamon.</p> <p>Where more than a term intervenes between the test and return day of original process, the writ is a nullity. Where a summons was issued on the 6th of November, 1839, and made returnable “ at the next term to be holden on the third Monday of November next," and at the November term, 1839, a judgment was rendered by default, it was reversed on error.</p>

This action was tried at the April term, 1840, of the Brown Circuit Court, the Hon. Peter Lott, presiding. A jury was empannelled, and a verdict and judgment rendered for the plaintiff, for $ 44,25 and costs. The defendant appealed to this Court.

The proceedings upon the motion to quash the execution, in this case, were had at the February term, 1840, of the Madison Circuit Court, before the Hon. Sidney Breese. The motion was overruled.

On the application of M. K. Alexander, a Commissioner of the Board of Public Works, for the 4th Judicial Circuit, Joseph Patterson, a justice of the peace of Vermilion county, summoned three householders to assess the damages which Robert Wilson would sustain by reason of the Northern Cross Rail Road passing over his land, who assessed the damages at one cent.

This cause was tried by a jury at a term of the Cook Circuit Court, holden in March, 1839, the Hon. John Pearson presiding. The jury gave a verdict, upon which judgment was rendered, in favor of the defendants, for $ 1 damages and costs. The cause was brought into this Court by the plaintiff, by writ of error.

This was an action of covenant brought in the Will Circuit Court, by the plaintiff in error against the defendants in error. The declaration alleged that on the third day of December, 1836, the plaintiff of the one part, and the defendants of the other part, entered into certain articles of agreement, sealed with the seal of the said plaintiff, and sealed by the said defendants, by W..

A trial was had in this case at the May term, 1839, of the Circuit Court of Macoupin county, the Hon. William Thomas presiding. The cause was brought into this Court by the defendant, by writ of error.

At the March term, 1838, of the Cook Circuit Court, the Hon. John Pearson presiding, Miller was tried and convicted, upon the following indictment : “ State of Illinois, Cook County, ss. “ The grand jurors chosen, selected, and sworn, in and for the county of Cook, in the name and by the authority of the people of the State of Illinois, upon their oaths present, that John B. Miller, late of said county, on the first day of December, in the year of our Lord one thousand eight…

This was an action of assumpsit commenced by the plaintiff in error, against the defendants in error, in the Circuit Court of Sangamon County. The declaration contains three counts ; the first count alleges that the plaintiff, in consideration of six hundred dollars, in money paid to said Bank, received, in exchange, six one hundred dollar bills of said Bank ; and further avers a demand, and refusal to redeem, by said Bank.

This cause was heard in the Court below, at the October term, 1838, before the Hon. William Martin. Judgment was rendered for the plaintiffs for $ 383,31 and costs.

This cause was tried at the October term, 1838, before the Hon. William Martin. The jury assessed the plaintiffs’ damages at $ 1811,83. Judgment was rendered for this amount. The cause was brought to this Court by writ of error.

This cause was tried in the Court below at the November term, 1839, before the Hon. Peter Lott and a jury. A verdict was rendered for the plaintiff, upon which the Court rendered judgment, “ that the plaintiff recover from the defendant his said term, in the said declaration mentioned, unexpired and to come, &c., and that a writ of habere facias possessionem be awarded him,” &c. The defendant appealed to this Court.

This cause was tried in the Court below, at the March term, 1839, before the Hon. Sidney Breese and a jury. A verdict was rendered for the plaintiff for $ 883,33¿-. Judgment was rendered on this verdict. The defendant appealed to this Court.

This cause was tried in the Court below, at the November term, 1837, before the Hon. Thomas Ford. Judgment was rendered for the plaintiff for $ 876,45 and costs. The defendant prosecuted a writ of error to this Court.

This cause was tried in the Court below, at the June term, 1837, before the Hon. James H. Ralston and a jury. Verdict and judgment were rendered for the defendants. The cause is brought into this Court by writ of error.

This cause was tried in the Court below, at the September term, 1838, before the Hon. Thomas Ford, without a jury. Judgment was rendered for the plaintiffs for the sum of $721,25, and costs of suit. The defendants appealed to this Court.

This was an action, qui tam, commenced by the defendant in error, before a justice of the peace of Macoupin county, to recover the penalty imposed by the statute against clock pedlers.

At tlie April term, 1839, of the Wayne Circuit Court, the grand jury found the following bill of indictment against Absalom Nixon, to wit: “ Of the April term of the Wayne Circuit Court, in the year of our Lord one thousand eight hundred and thirty-nine. “ State of Illinois, Wayne, County, ss. “ The grand jurors chosen, selected, and sworn, in and for the county of Wayne, in the name, and by the authority of the'people of the State of Illinois, upon their oaths present, that…

<p>Error to the Municipal Court of the City of Chicago.</p> <p>The Circuit Courts are not inferior courts, in the common law sense of that term, but are superior courts of general jurisdiction.</p> <p>In relation to superior courts, or courts of record, the law is, that nothing shall be intended to be out of the jurisdiction of a superior court, but that which specially appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an inferior court, but that which is expressly alleged.</p> <p>The act creating the Municipal Court of the city of Chicago, and the act supplemental thereto, confer on the Municipal Court concurrent jurisdiction with the Circuit Courts, in all matters arising within the county of Cook; and, therefore, it must be considered a superior court; and unless the contrary appears, its jurisdiction will be presumed.</p> <p>The case of Key u. Collins, does not conflict with the present. The doctrine of that case is, that a Circuit Court, while exercising its jurisdiction within the boundaries of the county where it is held, is a superior court, and its jurisdiction is presumed; but if it extends its jurisdiction extra-terrilorially, its jurisdiction must appear.</p>

<p>Error to the Municipal Court of the City of Chicago.</p>

<p>Error to the Municipal Court of the City of Chicago.</p>

This cause was heard in the Court below, at the April term, 1839, before the Hon. William Thomas. Judgment was rendered for the defendant. The plaintiff appealed.

This cause was heard at the Court below, at the April term, 1838, before the Hon. Thomas Ford and a jury. Verdict and judgment were rendered for the plaintiff for $ 320. The defendant appealed to this Court.

This cause was tried at the October term, 1837, of the Court below, before the Hon. Thomas Ford, without the intervention of a jury. The Court rendered judgment for the plaintiff for $ 895,42 and costs of suit, from which the defendants appealed to this Court.

This was an action of assumpsit commenced by the plaintiffs against the defendants, by capias, upon a bill of exchange, dated “ New York, August 13, 1836,” made by the defendants, payable to the plaintiffs’ order, at eleven months.

This was an action of trespass commenced by the defendant in error against the plaintiff in error, before a justice of the peace of Morgan county.

This cause was tried in the Court below, at the April term, 1839, before the Hon. Thomas Ford, who rendered a judgment for plaintiffs for $> 209, and costs of suit. The defendant excepted to the judgment of the Court.

This cause was heard in the Court below, at the March term, 1838, before the Hon. Jesse B. Thomas, who rendered a judgment for the defendants. The plaintiffs brought the cause to this Court by writ of error.

At the November term, 1835, of the Court of Probate of Cook county, Rebecca Walker, executrix of the last will and testament of Jesse Walker, deceased, presented said will to the Court for probate, and at the same time appeared James Walker, heir of said Jesse Walker, and resisted the probate of said will, on the ground that, at the time of the executing said will, the said Jesse Walker was not of sound mind and memory.

This was an action of assumpsit commenced by the plaintiffs in error against the defendant in error, before a justice of the peace of Wayne county.

This was an action of covenant commenced by the appellee against the appellants in the Sangamon Circuit Court, upon the following agreement: “ This article of agreement, made and entered into this 24th day of January, A. D. 1838, between Joshua S. Hobbs, of the county of Sangamon, and State of Illinois, of the first part, and Calhoun, Early, & Co., of the county and State aforesaid, of the second part, — Witnesseth, that the said Hobbs, of the first part, for, and in…

The plaintiff in error was indicted at the March term, 1838, of the Cook Circuit Court, for having in his possession certain forged bank bills, purporting to be on the Merchants’ Bank of the city of New York, with intent to utter the same, and defraud the said Bank.

This was an action commenced before a justice of the peace, of Pike county, by Ross against Archer, on an account for the interest due on á note for i$ 400, the interest being made payable annually. Judgment was rendered by the justice for the sum of $ 48 against Archer, from which an appeal was taken by Archer to the Circuit Court.

This was originally an action commenced before a justice of the peace of Morgan county, against the plaintiffs in error, for a violation of an ordinance of the town of Jacksonville, prohibiting the sale of ardent spirits, &c. without license. The justice found them guilty, and fined them five dollars. An appeal was taken to the Circuit Court of Morgan, and at the November term, 1839, the Hon. William Thomas presiding, the judgment of the justice was affirmed with costs.

This was an action of ejectment to recover the possession of lot eighty-one, in the town of Jacksonville. At the October term, 1837, of the Morgan Circuit Court, a declaration in ejectment, against Richard Roe, the casual ejector, was filed in said Court, with notice to David B. Ayres, the tenant in possession, the present plaintiff in error. The usual consent rule was entered into by Ayres, and the plaintiff filed an amended declaration against Richard Roe.

This cause was heard in the Court below at the March term, 1838, before the Hon. Jesse B. Thomas. Judgment was rendered for the plaintiff for $ 400 debt, and $ 16,93 damages. The defendant appealed to this Court.

This cause was heard in the Court below at the September term, 1838, before the Hon. John Pearson and a jury. Verdict and judgment were rendered for the plaintiff for $ 100. The defendant appealed to this Court.

This suit was commenced by the following petition : “ State of Illinois, Morgan Circuit, set.

<p>Appeal from Monroe.</p> <p>A deed is valid, as between the parties to it, without being acknowledged and recorded ; and in an action between them, a court has no right to assume that there is a subsequent purchaser or mortgagee, so as to render it fraudulent and void under the statute.</p> <p>A deed, acknowledged before a justice of the peace, is entitled to be recorded only in the county where the justice resides, and the land lies, unless the certificate of the clerk of the county is appended to it.</p>

This cause was tried in the Court below at the April term, 1840, before the Hon. John Pearson. Judgment was rendered for the plaintiff, and the defendants appealed to this Court.

Judgment was rendered in this case against McClure and Russell, at the August term, 1840, the Hon. Jesse B. Thomas presiding. The proceedings at the March term were had before the Hon. John Pearson.

This was an action-of assumpsit originally brought in the Municipal Court of the city of Alton, by the appellee against the appellant. The declaration contains three counts. The defendant below demurred to the first and second, and the demurrer was sustained. Issue was joined on the third, which avers, that Smith, the appellant, being the holder and payee of the following promissory note, to wit, “ 280 Dollars.

At the April term, 1840, of the Circuit Court of Cook county, an indictment for murder was found against John Stone, by a grand jury which had been summoned by' order of the Court, after the regular grand jury had been discharged. A trial was had before the Hon. John Pearson and a jury, which had also been summoned after the regular petit jury had been discharged. The defendant below was found guilty by the jury. Thereupon he moved for a new trial, and in arrest of judgment.

This was an action of covenant commenced in the Will Circuit Court, by Brandon against McKee, upon the following instrument : “ Articles of agreement made and entered into this 24th July, 1834, between Charles W. Brandon, Jr., of the first part, and James McKee, of the second part, witnesseth, Sic.

<p>Appeal from Warren.</p> <p>Where upon the trial of an action between two firms, upon a note made by one firm and payable to the other, the plaintiffs produced the note in evidence, but omitted to prove the copartnership of the defendants; and thereupon the defendants introduced in evidence a note which they had paid to the plaintiffs, and a receipt which had been given to them in their copartnership name, by the plaintiffs : Held, that by so doing, the defendants admitted their partnership.</p> <p>On the trial of an action upon a promissory note, by the payees against the makers, a receipt was produced in evidence by the defendants, dated on the same day the note was made, showing the receipt of a sum of money by the plaintiffs, which they agreed to endorse on the note of the defendants. Thereupon the clerk of the plaintiffs testified that that payment was endorsed, by direction of the plaintiffs, on two other notes of the defendants, held by the plaintiffs at that time, one dated in April, 1837, and one in May or June following; that he had never seen the receipt before, but, from his knowledge of the transactions between the parties, he had no doubt the money was applied as stated. The defendants then presented to said witness a note made by them to the plaintiffs, dated in April, 1837, upon which was endorsed a credit of the balance due on the note. The witness stated that this was one of the notes upon which the money mentioned in the receipt was credited; and that he had never heard the defendants say any thing on the subject. The defendants then moved the Court to exclude the evidence of the witness from the jury. This motion was overruled, and judgment rendered for the plaintiffs: Held, that the decision of the Court was correct; and that the evidence was admissible as part of the res gestee.</p> <p>The law is well settled, that where a debtor makes a payment, without specifying to what debt it shall be applied, the creditor has a right to select the debt on which he will give the credit.</p> <p>Semble, That parol evidence would not be admissible to prove the application of a sum of money paid by a defendant, by endorsement on a note held against him by the plaintiff, without the production of the note, or showing some legal reason for not producing it.</p>

This cause was tried at the October term, 1836, of the Circuit Court of Cook county, before the Hon. Thomas Ford and a jury, and a verdict rendered for the defendant below. A new trial was granted, and the venue of the cause changed to Will county, where the cause was tried at the January term, 1838, of the Will Circuit Court, before the Hon. John Pearson and a jury. Verdict and judgment were rendered for the plaintiff below, for $1000-and costs.

This was an action of assumpsit instituted in the Municipal Court of the city of Chicago, by the appellee against the appellants, as… Held: and still holds, a receipt from Messrs. Harmon &; Loomis, for $ 1300, and also a bond for the conveyance of property to secure the payment of a note of $ 4000, which property is worth from $ 2000 to $ 4000, and all of which he now owns, except the two hundred and forty acres of land, which he sold in payment for a debt, in October,…

This was an action brought by the defendant in error against the plaintiffs in error, in the Madison Circuit Court, on an assigned note. On the 2d day of April, 1838, John A. Holderman & Co. made their promissory note for $ 465,00, payable to the order of the plaintiffs in error, who assigned it, by endorsement, to the defendant in error. The note was payable at the Alton Branch of the State Bank of Illinois, in two months from date.

<p>Motion for Attachment.</p>

<p>Appeal from, Tazewell.</p>

<p>Motion for a Writ of Mandamus.</p> <p>Where a judgment was rendered in the Circuit Court against the defendant, and on the last day of the term of the Court at which the judgment was rendered, a motion was made to set it aside, and grant a new trial, and, before any decision was had on the motion, the Court adjourned ; and on application of the plaintiffs, the clerk of the Court refused to issue execution, because the motion was undecided; the Supreme Court granted an alternative mandamus, requiring the clerk to issue execution, or show cause for his refusal. „</p> <p>A motion for a peremptory writ, in the first instance, was refused.</p>

This was an action of assumpsit brought by the appellee against the appellants, upon the following promissory note : “ $ 1000. Thirteen months after date, value received, we promise to pay to J. B. Beaubien, or order, the sum of one thousand dollars, with interest, at six per cent. “ Gorham & Durley. Chicago, 30th July, 1836.” On the back of said note was the following assignment: “ For value received, I hereby assign the within note to Francis Peyton.

This was a suit in chancery, by the defendant in error, against the plaintiffs in error, in the Madison Circuit Court, to foreclose a mortgage.

This was an action of covenant commenced by Heaton against Kemper, in the Edgar Circuit Court, upon the agreement set forth in the following bill of exceptions.

<p>“ Supreme Court, Deer. Term, 1840.</p> <p>“ E. C. Fellows, an Att’y at Law of this Court, having obtained his license in Sept., 1835, and sworn as an Att’y 20th of March, 1837, but whose name was omitted to be enrolled by the Clerk till 6th of Oct., 1840, now comes by J. Pearson, also an Att’y of this Court, and moves this Honl. Court to allow and authorize the Clerk of said S. Court to enter the name of the said E. C. Fellows as if enrolled on the 20th of March, 1837.</p> <p>“ J. Pearson, Attfy.”</p>

<p>Appeal from Fulton.</p> <p>The act in relation to promissory notes makes the assignor liable only in case the assignee has used due diligence to collect the money from the maker of the note.</p> <p>Due diligence does not consist in merely instituting suit against the maker, and prosecuting it to judgment. In order to show this diligence, it is clearly the duty of the assignee to prove, that within the county where the suit was commenced, he had used all the means that the law had furnished, him with, to collect the money.</p> <p>Where the plaintiff, the assignee of a promissory note, in order to charge the assignor, proved that he had used due diligence in instituting and prosecuting a suit to judgment upon the note, before a justice of the peace, and had issued execution thereon in due season, and deliverecl the same to a constable, who had returned the same, “ no property found ”: Held, that this did not show the due diligence required by the statute; and that to make the assignor liable, it should have appeared, that a transcript of the judgment of the justice had been filed in the office of the clerk of the Circuit Court of the county in which the suit was instituted, and that execution had been issued thereon, from the clerk of the Circuit Court, and that it had been returned by the sherifF of the county, that the defendant in such execution had no lands or tenements in the county, out of which the amount of the note could have been collected.</p>

<p>This cause was tried at the October term, 1837, of the Morgan Circuit Court, the Hon. Jesse B. Thomas presiding.</p>

Judgment was rendered in this cause at the November term, 1840, of the Fulton Circuit Court, the Hon. Peter Lott presiding, for §589,45, and costs, in favor of the plaintiffs. The defendant appealed to this Court.

This was an action of debt brought by Birge against Lansing, upon a promissory note under seal, in the Bond Circuit Court. The cause was tried at the March term, 1839, before the Hon. Sidney Breese, and a jury. The defendant craved oyer of the note, and demurred to the declaration. The demurrer was overruled, and leave granted to the defendant to plead. The defendant then filed two pleas, upon the first of which the plaintiff took issue, and demurred to the second.

This cause was argued at the December term, 1839, and on suggestion at the last June term, that the cause was fictitious, the Court required proof of its being a real cause, and continued it for that purpose (1) At this term of the Court, in compliance with the order entered at the last term, the parties produced the following evidence, to wit: The affidavit of Charles S. Hempstead, stating that he is personally acquainted with Horace H. Houghton, Thomas Spragins, and…

<p>Appeal from, Morgan.</p> <p>A transcript of the record of a Circuit Court, which is not certified under the seal of the Court, is a nullity, and a writ of certiorari cannot be granted in such case; but the cause must be stricken from the docket.</p>

The appellant filed his bill in chancery against the defendants, in the La Salle Circuit Court. The bill set forth that at the April term, 1838, of the La Salle Circuit Court, John C. Caldwell recovered a judgment against the complainant, for $ 259,78, for goods, wares, and merchandise sold and delivered, and for moneys.

Elston obtained an injunction on a judgment at law, on the following statement of facts in his bill of complaint, to wit: That he contracted with one Barnard Ward for the purchase of a lease of 999 years to' a lot or wbarfing privilege in the town of Chicago, at the price of $ 750; that Elston, the complainant, paid Ward $ 300 down, and gave his note to Ward for $ 450, payable in six months, for the price of said lease; that Ward had no right or interest or property in said…

This was an action of assumpsit in the Cook Circuit Court. The plaintiffs, in their corporate name, declared against the defendant, as assignees of a promissory note made by the defendant, of which the following is a copy : “ $5,000. Chicago, August 1st, 1836. “ Twelve months after date, I promise to pay D. B. & N. J. Brown, or order, five thousand dollars, with ten per cent, interest from date, payable at the Branch of the State Bank of Illinois, at Chicago.

The defendants in error commenced an action of assumpsit, at the April term of the Circuit Court of Putnam county, 1839, against the plaintiff in error, as endorser of the following notes: “ $2000,00.

This was an action of assumpsit instituted in the McDonough Circuit Court, by James Thompson and Francis W. Thompson, for the use of Warburton &, King, on the following note : “ $ 976T°¥5o • Saint Louis, 16th Nov. 1836. “ Six months after date, I promise to pay to the order of J. and F. W. Thompson, nine hundred and seventy-six T°/T dollars, without defalcation or discount, for value received. “ S. B. Kyle.” Endorsed, “Pay the order of Warburton 8i King. “ J. & F. W.…

This was an action of trespass on the case, brought by Burton against McClellan, in the Kane Circuit Court.

The appellees filed a petition for partition, under the statute, in the Court below, praying for a division between themselves, as proprietors of the undivided half of the northeast quarter of section eight, in township eight, north, range eight east of the fourth principal meridian, and the appellant, as proprietor of the other undivided half.

Lampsett recovered a judgment against Whitney, in the Madison Circuit Court, at the September term, 1823, for $ 60,35 and costs. Upon this judgment an execution issued on the 16th of February, 1824, which was returned into the clerk’s office April 13th, 1824.

The plaintiff in error was indicted at the August term, 1839, of the Cook Circuit Court, for forgery. He pleaded not guilty. A change of venue was taken to McHenry county, and at the April term, 1840, of the McHenry Circuit Court, the Hon. John Pearson presiding, the defendant was convicted, and sentenced to the penitentiary for one year. A motion in arrest of judgment was made by the defendant, and overruled by the Court.

This was an action of assumpsit brought in the Morgan Circuit Court, and taken by change of venue, by consent, to Sangamon county. The plaintiff declared on a promissory note, payable in twelve months from date, and dated Jan. 26th, 1837, made by defendants to Charles C. Perry, and by him endorsed to the plaintiff. The declaration also contained the common money counts. The defendants pleaded non assumpsit, and three special pleas in bar.

This was an action of trespass quare clausum fregit, brought by Edmunds against the appellants in the La Salle Circuit Court. The cause was submitted to a jury at the September term, 1838, the Hon. John Pearson presiding, upon the plea of not guilty. A verdict was rendered for the plaintiff for $ 24. A motion was made for a new trial, which was overruled. Judgment was rendered upon the verdict of the jury. The defendants appealed to this Court.

This was an action of debt commenced by the appellee against the appellant, in the Circuit Court of Edgar county, upon two promissory notes. The declaration was in the usual form. The defendant pleaded three special pleas.

This was an action of debts upon a promissory note. Issue was joined upon the allegations in the defendants’ plea, that the plaintiff agreed with the defendants, that the note was not to be paid, until satisfaction should be entered of record upon a certain mortgage mentioned in the plea, and that there was an understanding and agreement that the plaintiff should cause James Lemon to enter satisfaction upon said mortgage ; and that the note was given in consideration of such…

This was a suit originally commenced by Scammon against Cline, before Alexander Neely, a justice of the peace of Boone county. The defendant removed the cause from Neely to Hiram Waterman, another justice of the peace of said county, before whom the cause was tried, and a judgment rendered for the defendant, on the 21st of February, 1839.

This was an action of assumpsit brought by William H. Sabine against John B. Beaubien, as acceptor of two bills of exchange drawn by Benjamin Mills, and by him endorsed to said Sabine. The bills are dated at Chicago, and payable at no particular place.

This cause was originally commenced before a justice of the peace, and removed by appeal, to the Edgar Circuit Court, where the cause was tried at the March term, 1840, before the Hon. Justin Harlan, without a jury, and judgment rendered for the plaintiff for $ 64, debt and costs. The defendant appealed to this Court.

At the March term, 1840, of the Morgan Circuit Court, the Hon. Samuel H. Treat presiding, the attachment in this cause was quashed because the bond was executed in the name of the appellants, by William Thomas, their attorney in fact, and no evidence was produced that he was authorized to execute the bond. The appellants excepted to the opinion of the Court, and brought the cause to this Court by appeal.

<p>Appeal from, Morgan.</p>

This was an action of assumpsit commenced by the plaintiffs in error against the defendants in error, in the Municipal Court of the City of Chicago, upon the following promissory note: “ $1300. New York, April 24, 1837. “ Sixty days after date, we promise to pay to the order of Timothy Vibbard and Augustus Garrett, thirteen hundred dollars T77, for value received, payable at the Branch of the State Bank of Illinois at Chicago.

<p>The proceedings in this case, in the Court below, were had at the April term, 1839, before the Hon. William Thomas.</p>

<p>Error to Morgan.</p> <p>The complainant filed his bill in chancery to foreclose a mortgage, executed to him by W., and made Smith and McConnel, who had obtained judgments against W., subsequent to the execution of the mortgage, defendants to the bill; and at the June term, 1839, all the defendants except Smith having been summoned or notified according to law; and all the defendants except McConnel being called and not appearing, their default was taken, and an interlocutory decree entered, requiring all the defendants, except McConnel, to pay the amount due on the mortgage by the first day of the next term, and in default thereof, that they should be foreclosed from all right in the mortgage premises ; and that the same should be sold to satisfy the mortgage. Smith was duly summoned to appear at the November term, 1839, by an alias writ issued October 3d, and at said November term, Smith and McConnel were defaulted, and the bill taken pro confesso against them. A decree was entered, that the said Smith and McConnel should pay the amount of the mortgage by the first day of the next term of the Court, or that the premises should be sold to satisfy the same, and their interest therein foreclosed. At the March term, 1840, a final decree was entered, directing the mortgaged premises to be sold ; and that the interest of the defendants in the premises should be for ever foreclosed: Held, that the proceedings were not erroneous ; and that the service of process on Smith, after the first interlocutory decree, cured the irregularity as to him.</p> <p>Where several tracts of land are included in one mortgage, it is the duty of the commissioner, selling the same under a decree of foreclosure, to offer each tract separately, and whenever the sales amount to a sufficiency to pay the debts and costs, he should desist from any further sale. But should the commissioner proceed arbitrarily, and sell the whole at once, or sell more than a sufficiency to pay the mortgage debt and costs, it would be competent for the Court, on the coming in of his report, to set aside the sale.</p>

This cause was tried at the March term, 1840, of the Bureau Circuit Court, before the Hon. Thomas Ford and a jury. The jury found a verdict for the plaintiff in the Court below, the appellee, for $417,50. Judgment was rendered upon this verdict. The defendant appealed to this Court.

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

<p>Error to Madison.</p> <p>It is error to render judgment against both defendants, by default, when only one of them is served with process.</p>

This was a suit originally commenced before a justice of the peace, on the following account: “ Monmouth, February 19, 1839. “John Harris, to B. C. Jenks, Dr. “ To hauling from St. Louis to Warren county, 2,747 lbs. of goods, wares, and merchandise, at $4,00 per hundred, $ 109,88 Cr. by cash, 13,00 Balance due, $96,88.” This cause was heard in the Warren Circuit Court, to which the cause was appealed, at the May term 1839, before the Hon. James H. Ralston and a jury.

<p>Error to Jackson.</p> <p>An indictment against a justice of the peace, for malfeasance in office, in refusing to issue subpoenas, should charge that he “ wilfully and corruptly refused to issue subpoenas.”</p>

This was an action of debt brought by Humphries against Campbell, upon a promissory note in the following form: “ Two years after date, I promise to pay William L. Humphries two hundred and thirty-two dollars thirty-three -J- cents, for value received, with interest from this date. Witness my hand and seal, this 8th day of January, 1828. Test, R. M. Woods.

<p>This cause was heard in the Court below, at the October term, 1838, before the Hon. Jesse B. Thomas.</p>

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

At the present term, Onslow Peters, an attorney of this Court, filed the following petition : “ To the Honorable the Justices of the Supreme Court, at a term thereof begun and holden at Springfield, on the second Monday of December, in the year of our Lord eighteen hundred and forty. “ Respectfully represents unto your Honors, James Risk, of the county of Kane, in the State of Illinois, that he was a candidate for election to the office of sheriff of said county, at the…

This was an action commenced by the plaintiffs in error, against the defendant in error, before Mark E. Jones, a justice of the peace of Fayette county, and referred to arbitrators by the parties. The arbitrators awarded thirty-eight cents to the plaintiff, and the justice rendered judgment accordingly. The plaintiff appealed to the Circuit Court, where, on motion of the defendant, the appeal was dismissed, at the October term, 1839, the Hon. Sidney Breese presiding.

This cause was tried in the Court below before the Hon. Samuel H. Treat and a jury, at the October term, 1839. Verdict and judgment were rendered for the plaintiff for $ 62,50. The defendant appealed to this Court.

<p>The proceedings in this cause were had at the April term, 1839, of the Court below, before the Hon. James H. Ralston.</p>

This cause was tried at the March term, 1840, of the Clinton Circuit Court, before the Hon. Sidney Breese and a jury. A verdict was rendered for the plaintiff for $ 400. A motion was made in arrest of judgment, which was overruled, and judgment rendered on the verdict.

This cause was tried at the October term, 1839, of the Jo Daviess Circuit Court, before the Hon. Dan Stone and a jury. Verdict and judgment were rendered for the plaintiffs for $9233,33, damages, with costs of suit. The defendant appealed to this Court.

This cause was tried in the Gallatin Circuit Court, at the September term, 1839, before the Hon. W. B. Scales and a jury. Verdict and judgment were rendered for the appellee.

This cause was tried at the March term, 1837, of the Franklin Circuit Court, before the Hon. Walter B. Scales and a jury. Verdict and judgment were rendered for the plaintiff. The defendant brought the cause to this Court by writ of error.

This was an action of assumpsit commenced by the defendant in error, against the plaintiffs in error, on a promissory note, dated at McHenry, on the 23d day of January, 1839, for the sum of three hundred and forty-four dollars and ninety-six cents, for value received, payable on the first day of June next after the date thereof; being the amount due the defendant in error, for building dam and saw-mill, on which said mill he was to have a lien until said note should be paid.

This cause was tried, at the October term, 1840, of the Court below, before the Hon. Peter Lott. Judgment was rendered for the defendant. The plaintiffs brought the cause to this Court by writ of error.

<p>This cause was decided in the Court below, at the November term, 1839, before the Hon. William Thomas.</p>

This was an action of debt commenced by the appellee against the appellant, on the 19th of October, 1839, by petition and summons, on two notes of $2,300 each, both dated March 11th, 1837, one due in twelve months, the other in two years from date. At the November term, 1839, of the Morgan Circuit Court, the defendant filed three pleas.

The complainant filed his bill in chancery in the Cook Circuit Court, alleging that, being the owner and proprietor of that part of the town of Chicago known as “ Kinzie’s Addition,” he sold lot No. 10, in block No. 12, to the defendant, on the 9th of March, 1833, for $42 ; and also, at the same time deeded to defendant, lot No. 11, in the same block.

This was an action of ejectment instituted in the Morgan Circuit Court, to recover the possession of the west half of the southwest quarter of section number 32, in township 14, N., R. 12 west, in the County of Morgan. The declaration as originally filed, contained a demise from McConnel only.

The plaintiff in error instituted an action of replevin against the defendant in error, in the Hancock Circuit Court. The cause came on for trial at the September term, 1839, before the Hon. Peter Lott. The defendant pleaded non cepit, and that the propertyreplevied was in him. The cause was submitted to a jury, who found the issues for the defendant, and assessed his damages at $40. Judgment was rendered upon this verdict.

[The record in this cause is very voluminous, and a full abstract of it would occupy more space than can well be given to it; and at the same time it would not throw any more light upon the points decided by the Court. For these reasons it has been omitted. The Reporter has been furnished with the able brief of Messrs.

This was an action of assumpsit commenced by the defendant in error, against the plaintiffs in error, before Henry L. Rucker, Esq., a justice of the peace of Cook county. The justice rendered judgment for the defendant in error, for the sum of $74,65, and costs, from which an appeal was taken to the Circuit Court of Cook county, where the cause was tried at the April term, 1840, before the Hon. John Pearson, without a jury. The judgment of the justice was affirmed for $77,25.

The defendants below bound themselves in a bond of $400, to the plaintiff below, now defendant in error, styling him thus, Ci Silas W. Sherman, Sheriff of Cook county, Illinois,” conditioned as follows : That whereas, the above bounden Abraham A. Markle is about to sue out a writ of replevin from the office of the clerk of the Circuit Court of Cook county, Illinois, to replevy certain goods and chattels, to wit : ten beds, with straw beds and bedsteads, and bedding.

<p>Error to Morgan.</p> <p>A bill in chancery alleged that on the 12th of August, 1834, S. & P. made their note to one B., for $ 175; that the note was to be made payable in April, 1836, but in writing the note there was a mistake made in the time of payment, by inserting in the note that it was payable one thousand eighteen hundred and thirty-six, instead of one thousand eight hundred and thirty-six; that the note was assigned by B. to C., and by C. to the complainant; that neither the complainant nor any of the parties to the note discovered the mistake until a suit at law was brought upon the note, and the jury had retired to consider of their verdict, when a verdict was rendered for the defendant under the direction of the Court, on account of the variance between the words ‘‘ eight,” in the declaration, and “ eighteen,” in the note; that the defendants refused to, correct the mistake or pay the money. The bill concluded with a prayer that the mistake should be corrected, and the defendants decreed to pay the money mentioned in the note : Held, on demurrer to the bill, that the complainant was entitled to the relief sought.</p> <p>Courts of chancery have jurisdiction in all cases of mistake, which happen in drawing up written instruments between parties.</p> <p>"Where a party in drawing a note intended to make it payable in 1836, but by mistake, wrote one thousand eighteen hundred and thirty-six: Held, that a court of chancery had jurisdiction to correct the mistake ; and having once obtained jurisdiction, the Court would do complete justice between the parties, and give such a judgment, as a court of law would give, if a suit should be brought on the corrected note.</p> <p>The want of a formal order on the record, that the bill be taken pro confesso, cannot be assigned for error.</p> <p>It is not necessary for a court of chancery to refer a note to a master, in order to compute the damages. Such reference is only necessary where long accounts are to be adjusted, and a balance ascertained.</p>

The appellants filed their bill in chancery in the St. Clair Circuit Court, setting forth : “ That the claim to a tract of land, containing four hundred acres, lying east of the Mississippi river, and fronting the town of St. Louis, in Missouri, was confirmed to Pierre Coudaire, and bis legal representatives, by act of Congress of the sixteenth day of April, in the year eighteen hundred and fourteen, whereby the title, in fee simple, to said tract of land, was vested in…

This cause was heard in the court below, at the October term, 1839, before the Hon. Sidney Breese. Judgment was rendered for the plaintiff. The defendant brought the cause to this Court by writ of error.

This cause was heard in the Court below, at the October term, 1839, before the Hon. Samuel H. Treat. Judgment was rendered for the plaintiff in that Court, for $ 48 and costs. The defendant appealed to this Court.

<p>Appeal from Jersey.</p> <p>Where a writ of certiorari, returnable to the next term, was awarded to the Court below, to send up a copy of an appeal bond, and the appellant showed, by affidavit, that a copy of such bond duly certified, was on the files of the Supreme Court, and moved to set aside the continuance of the cause, the Court overruled the motion, because no order for a continuance had been entered; but sustained a motion to supersede the writ of certiorari.</p>

<p>Error to Peoria.</p> <p>A blank endorsement upon a promissory note is under the control of the assignee, and may be filled up with his name, before or at the trial of a suit upon the note. In an action of debt, by petition and summons, it is error to render verdict and judgment for damages.</p>

<p>Motion for Mandamus.</p> <p>Under the statutes in relation to the sale of school lands, the school commissioner may be considered the legally constituted agent, both for the State and the purchaser, to receive the patents, and when they are delivered to him, in compliance with the statute, the title is divested out of the State, and becomes vested in the purchaser.</p> <p>Where lands were sold by a school commissioner, one fourth of the purchase money being paid in hand, and a credit of one, two, and three years given on the balance, and certificates delivered to the purchasers, containing a stipulation, that, upon the payment of the remainder of the purchase money, patents should be issued to the purchasers: Held, that the certificates could not be understood, as in any manner affecting the provisions of the act of 1829, requiring the Auditor to forward the patents when he received the returns of the school commissioner, or as restraining him from issuing them, before the expiration of the term of credit.</p> <p>Where the law authorizing the sale of school lands, on credit, required the commissioners to take a mortgage upon the land sold, and also personal security for the payment of the purchase money, the Court will presume that they were taken.</p> <p>The presumption is that a public officer discharges his duty, until the contrary is shown.</p> <p>An assignee of a certificate of the purchase of a portion of school land, assigned subsequently to the issuing of the patent to the original purchaser, and its delivery to the school commissioner, is not entitled to receive the patent in his own name, under the act of 1837. That act permits a patent to be issued to the last assignee, only when a patent has not issued to the first purchaser.</p> <p>Semite, that where a patent has been improperly issued by the Auditor, to a person not entitled to receive the same, the Supreme Court will not compel -the Auditor, by mandamus, to issue another.</p> <p>A patent cannot be set aside or vacated, upon a motion for mandamus against the Auditor, requiring him to issue another patent for the same land.</p>

<p>Appeal from, Morgan.</p> <p>The dismissal of an appeal, or certiorari, is equivalent to a regular, technical affirmance of the judgment of the Court below, so as to entitle the party to claim a forfeiture of the bond, and have his action therefor.</p> <p>In entering up a judgment in an action of debt, upon an appeal or certiorari bond, the judgment should be for the penalty, the debt, in numero, to be discharged by the payment of the damages actually assessed, either by the jury or the clerk, upon the breaches assigned. The execution issues for the debt with the endorsement of the clerk of the damages assessed; and the officer can collect only the amount so assessed. It is error to enter up a judgment for both the penalty and the damages.</p> <p>Where a suit is brought against several joint debtors, and all are served with process, judgment must be recovered against all or none, unless one or more of the defendants interpose a defence which is personal to himself, such as infancy or bankruptcy.</p> <p>Semble, That the obligation in an appeal bond is both joint and several, and either of the obligors may be proceeded against separately.</p> <p>Where process is served on two defendants, and one demurs to the declaration, the other making no appearance, and the demurrer is overruled, and damages assessed by the clerk against the party demurring, and judgment is rendered thereon against him only, the judgment will be reversed, and the cause remanded with directions to render judgment against both defendants.</p>

This cause was heard in the Scott Circuit Court, at the October term, 1839, before the Hon. Samuel H. Treat and a jury. Verdict and judgment were rendered for the plaintiff for $ 1037,87. The defendant brought the cause to this Court by writ of error.

This cause was heard in the Court below, at the October term, 1839, before the Hon. Samuel H. Treat. Judgment was rendered for the plaintiff for § 352,06. The defendant appealed to this Court.