Volume 4 — Illinois Reports

This cause was heard in the Court below, at the October term, 1838, before the Hon. James H. Ralston, without a jury, upon an agreed case. Judgment was rendered against the plaintiff in error for $20 and costs of suit.

<p>Error to Madison.</p> <p>The rules of practice of the Supreme Court do not require that the scire facias to hear errors should be served any specified number of days before the term.</p> <p>Where a writ of error, issued on the 5th of May, returnable on the 1st Monday of June, was served on the defendant in error on the 27th of May, and judgment was taken, by default, on the 10th of- June, for not joining in error: Held, that the service was in due time, there being more than ten days between the issuing of the scire facias, and the first day of term, and that the plaintiffs in error, after assigning error, had a right to take a rule upon the defendant in error to join in error, and that he was bound to be in Court, and comply with the rule, or to suffer judgment to pass against him by default.</p> <p>Where a judgment has been taken irregularly by default, the party against whom it operates, should avail himself of the first seasonable moment after the irregularity is discovered, to correct it. After delaying two terms, without showing reason for such delay, he cannot disturb the judgment.</p> <p>Although the 23d rule requires that the assignment of errors and joinder should be written on, or directly appended to, the record in the cause, and no assignment of errors had beenfiled in the cause, when a default, for not joining in error, Was taken, yet the Court will not disturb such default, after two terms have elapsed, when no notice of a motion to set aside the same has been given to the adverse party.</p> <p>Semble, That upon motion to set aside a default or judgment, subsequent to the term at which it was taken, notice should be given to the adverse party.</p>

This cause was tried in the Schuyler Circuit Court, at the March term, 1840, before the Hon. Peter Lott and a jury. Verdict and judgment were rendered for the defendant, and the cause brought to this Court by the plaintiff, by appeal.

<p>This cause was tried in the Hancock Circuit Court, at the September term, 1839, before the Hon. Peter Lott. Judgment was rendered for the defendant, and the plaintiff brought the cause to this Court by writ of error.</p>

<p>This cause was tried in the Sangamon Circuit Court, before the Hon. Samuel H. Treat and a jury, at the July term, 1839.</p>

This cause was heard in the Court below, at the October term, 1838, before the Hon. Walter B. Scates. The cause was brought to this Court by writ of error, and submitted upon briefs.

<p>Error to Madison.</p> <p>It is well settled, that in actions ex contractu, against several, the plaintiff, to entitle himself to recover, must prove a promise as to all of the defendants. He is not permitted to take judgment against a part of the defendants, and enter a nolle prosequi as to the rest, unless a defence personal to them is interposed.</p> <p>The entry of a nolle prosequi as to a defendant who pleads the general issue, in an action ex contractu, against several, discharges all.</p>

<p>The facts in this case sufficiently appear in the opinion of the Court.</p>

<p>Habeas Corpus to reduce Bail.</p>

<p>Appeal from Jo Daviess.</p> <p>Where an affidavit, or other portion of a record in a Circuit Court is lost, after the trial of the cause, its place cannot be supplied by affidavit, so as to make the same a part of the record; and the Supreme Court will not grant a special writ of certiorari to send up the same.</p>

<p>Erroi• to Jo Daviess.</p> <p>The case of Clark v. Roberts, Breese 222, was made under a statute not authorizing amendments.</p> <p>§ § 6 and 7 of the attachment act require that one of the conditions of the attachment bond shall be to pay all such costs as shall be awarded against the plaintiff, in case he fail in the suit; but a judgment by default will not be reversed, on account of the omission of this condition. Objections to defects of this nature should be made in the Court below, where the plaintiff may have an opportunity of remedying them by amendment.</p> <p>It is manifestly the object and intention of § 28 of the attachment act, to save a plaintiff in an attachment from any injury resulting from mere formal defects in papers which are prepared by others.</p> <p>The defendant in an attachment cannot assign for error the decision of the Court upon a question arising between the plaintiff and a garnishee.</p> <p>Exceptions to the opinion of the Court must be taken at the time the decision is made, and not afterwards.</p> <p>The judgment for the plaintiff, in an action by attachment, is general against the defendant, but the execution is special against the property attached, although, for greater certainty, and to avoid errors, it would be well for the clerk, in such cases, to make the entry of the award of a special execution; and such is generally the practice.</p>

This cause was heard in the Court below, at the May term, 1840, before the Hon. Peter Lott and a jury. Verdict and judgment were rendered in favor of the plaintiff for $134 debt, and $8.04 damages. The cause was submitted without argument.

<p>Appeal from Tazewell.</p> <p>An agent or attorney cannot bind his principal, by deed, unless his authority is under seal.</p> <p>Authority to an agent to execute an appeal bond, cannot be conferred by a letter not under seal.</p>

The judgment in this case, in the Court below, was rendered at the July special term, 1840, the Hon. Peter Lott presiding.

This cause was tried in the Scott Circuit Court, at the October term, 1840, before the Hon. William Thomas. Judgment was rendered for the plaintiff, on demurrer to the declaration, for $104.50, damages, and costs of suit. The defendant appealed to this Court.

<p>Debt on Bond.</p> <p>To a declaration in an action of debt on a sheriff’s bond, for a breach of duty on the part of the sheriff, in failing to pay over taxes collected, the defendants pleaded, that the bond was not presented to, or approved by, the judge of the Circuit Court of the county, at the next or any succeeding term thereof; and that the principal in the bond did not, by virtue of his office as sheriff, receive any taxes between the time of the approval of the bond by the clerk and the next term of the Circuit Court; Held, that the plea was bad, and that the bond was valid, until disapproved by the Court, and that the disapproval, not the want of approval, would make the office vacant, but not the bond void.</p> <p>It is a rule in the construction of statutes, that all the provisions are to be taken together, in ascertaining the intention of the law-giver.</p> <p>Semble, That a sheriff’s bond would not become void, by a failure to take and subscribe the oaths of office. But until his complete qualification, his sureties would not be bound, and his neglect to qualify within the time limited, would vacate the office.</p> <p>Semble, That the only way, provided by statute, for vacating the office of sheriff, is either by the judge’s disapproving of the bond, or the failure of the sheriff to produce other sufficient security, if required by the judge; and when the office is thus vacated, the responsibility of the sureties cease.</p>

<p>Error to Hancock.</p> <p>If a plea begins as an answer to the whole declaration, and is, in fact, an answer to but part, it is bad on demurrer; but if the plea begins as an answer to but part, and in truth, answers only part, and the plaintiff replies or demurs, the whole action is discontinued. Yet the plaintiff may take judgment, by nil dicit, for the part unanswered, after replication filed and issue joined, at any time before final judgment, upon payment of costs.</p>

<p>Debt on Bond.</p> <p>Where a bond or other sealed instrument purports, on its face, to be sealed by all the signers, and there are several seals to it, but not so many as there are names, the Court will presume that each person signing it, adopted some one of the seals; and the bond will be valid against all; but the obligors will be permitted to rebut such presumption by plea and proof.</p> <p>In an action of debt on bond, where the bond is the gist of the action, the plea of nil debet is bad; but where it is mere inducement to the action, it is good.</p> <p>In an action of debt on a sheriff’s bond, the plea of nil debet is bad, on demurrer.</p>

This cause was heard in the Court below, at the March term, 1840, before the Hon. Wm. Thomas. Judgment was rendered for the plaintiff for $300 debt, and $105 damages, and costs of suit. The defendant appealed to this Court.

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 $189. The defendant appealed to this Court.

The proceedings in this cause, in the Alexander Circuit Court, were had at the May term, 1840, before the Hon. Walter B. Scales. Judgment was rendered for the plaintiffs, for $200 damages, and costs of suit, and the defendants appealed to this Court.

<p>Error to Gallatin.</p> <p>All the signers of an instrument, indicating upon it face an intention to seal it, adopt any seal or scrawl that may be annexed to the name of any one.</p>

This cause was heard in the Court below, at the August term, 1840, before the Hon. Peter Lott. Judgment was rendered for the plaintiffs for $281.19 damages, and costs of suit.

<p>Appeal from Jackson.</p> <p>It is a principle of the common law, that ferries are pullici juris, and can be granted by the sovereign power. Riparian possessors are not, by virtue of such possession, entitled to the ferry franchise.</p> <p>The statute of this State, in relation to ferries, gives to the owners of land adjoining to, or embracing the water course over which a ferry is proposed to be established, a preference over others, provided the privilege shall not have been granted to any other person; thus clearly recognising the common law principle, and imply, ing a power in the public to make a grant of the privilege to persons other than the owners of the land.</p> <p>Possession of a ferry franchise, for a less term than twenty years, is not evidence of a grant, or of a right to the same.</p> <p>In assessing the damages which the owners of land taken for a public road and ferry landing, under the “ Act to authorize St. Clair County to establish a Ferry across the Mississippi River," may sustain, neither the value of the ferry of such owners, across the same river, or of the ferry privilege, are to be taken into consideration.</p>

<p>Appeal from Mor gañ-</p> <p>ín an action upon a lost note, where the evidence of the destruction of the note is not conclusive, the plaintiff must show that diligent search has been made in those places where it would be most likely to be found, if in existence.</p> <p>Before a copy of a lost note can be received in evidence, as a general rule, the existence and loss or destruction of the original must be proved.</p> <p>The testimony of a plaintiff", addressed to the Court only, is admissible to prove the loss of an instrument in writing, so as to lay the foundation for the introduction of inferior proof of its execution and contents; but this testimony should be by affidavit.</p> <p>Parol proof is admissible to prove the contents of an instrument in writing, which is lost, of which there is no second higher grade of evidence, after a foundation is laid for the introduction of such proof.</p> <p>In an action upon lost notes, the preliminary affidavit of the loss stated the execution of the notes, and that the same were unpaid 'and not discharged, and had been lost or destroyed, without the consent or knowledge of the plaintiff, and that he was unable to find or obtain them, so as to produce them on the trial, and that he, the plaintiff, had been informed and believed, that the said notes had been fraudulently obtained by the defendant, and were then in his possession, or had been destroyed by him: Held, that the affidavit was insufficient, in not showing with sufficient certainty, whether the notes were in the hands of the defendant, or destroyed, and in not stating what diligence and search had been made for the same. In the same case, the plaintiff subsequently filed another affidavit, stating that the notes were lost and destroyed, and that neither of them were in the possession or power of the plaintiff, but the same were out of his possession, and he had no knowledge of their existence, except the statements of the defendant, but believed they were destroyed: Held, also, that this affidavit was insufficient.</p> <p>After issue has been taken upon a declaration in a suit by attachment, the defendant cannot object to proof being given, pertinent to the issue, under a count in the declaration which describes a different indebtedness from that mentioned in the affidavit.</p> <p>Appearance and pleading to a declaration, in an action by attachment, is equivalent to personal service of process.</p> <p>If there be any mode of compelling a plaintiff, in a suit by attachment, to confine himself, in his declaration, to the causes of action set out in his affidavit, it must be by motion to strike out, plea in abatement, or demurrer.</p> <p>Parol proof of a sale of lands is admissible, in an action for the purchase money.</p>

This cause was heard below, before the Hon. William Thomas, and judgmeñt was rendered in the Scott Circuit Court, at the October term, 1840.

<p>This cause was heard in the Court below, at the September term, 1839, before the Hon. Justin Harlan.</p>

<p>Error to Rock Island.</p> <p>Rule V of the Supreme Court provides, that no supersedeas shall be granted, unless a transcript of the record on which the application is made, be complete, and so certified by the clerk of the Court below; and a writ of supersedeas issued upon a transcript not so certified, will be quashed.</p>

<p>Error to Gallatin.</p> <p>A plea to the merits is a waiver of a demurrer, but a demurrer does not waive a plea. Where a plea is filed to a declaration, and subsequently a demurrer to the same declaration, it is error in the Court to render judgment by default, upon overruling the demurrer.</p>

<p>• This cause was heard in the Court below, at the March term, 1841, before the Hon. Stephen A. Douglass.</p>

<p>Appeal from Tazewell.</p> <p>Where a note, and an agreement in relation to the note, are made at the same time, they must be taken together, and form one entire contract.</p> <p>Where the consideration of a promissory note was the sale of a negro girl, and at the time of the sale, it was agreed between the parties, that before payment should be demanded of the note, the payee should produce the necessary papers and indenture, to prove that the girl was a slave, or bound to service under the laws of the State of Illinois, and such papers were not produced, though demanded: Held, that there was no consideration for the note, and that it was void.</p> <p>It is a presumption of law, in the State of Illinois, that every person is free, without regard to color.</p> <p>The sale of a free person is illegal.</p>

<p>Error to Sangamon.</p> <p>A simple denial, in a replication, of the facts stated in a plea, cannot he objected to on the ground of duplicity.</p> <p>A plea to an action of debt, on a promissory note, that the defendant paid the amount of the note, and the plaintiff afterwards executed a release of the same deb t to the defendant, is bad, on special demurrer, for duplicity.</p> <p>A plea that contains two full and complete defences is double, and upon special demurrer, will be adjudged had.</p>

<p>Tñls cause was tried in the Court below, at the March term, 1840, before the Hon. William Thomas and a jury. Verdict and judgment were rendered for the plaintiff, for 1119.84 damages. A motion for a new trial was made and overruled. The defendant appealed to this Court.</p>

<p>This cause was heard in the Court below, at the June term, 1841, before the Hon. Stephen A. Douglass.</p>

<p>This cause was heard in the Court below, at the April term, 1841, before the Hon. Sidney Breese. Judgment was rendered for the plaintiffs for $1218.08 damages, and costs of suit. Motions for a new trial, and in arrest of judgment, were made and overruled. The defendant appealed to this Court.</p>

This was an action of debt by petition and summons, instituted in the Peoria Circuit Court, by Stapp and Berry against Heyl. The cause was heard in the Court below, at the April term, 1840, before the Hon. Thomas Ford and a jury, and verdict and judgment rendered for the plaintiffs for $134 damages. The defendant brought the cause to this Court, by writ of error.

This cause was heard in the Court below, before the Hon. Sidney Breese. In this Court it was submitted at the last term.

This cause was heard in the Court below, at the October term, 1841, before the Hon. Samuel H. Treat and a jury. Verdict and judgment were rendered for the plaintiff, for $46.

This cause was heard in the Court below, at the August term, 1840, before the Hon. Sidney Breese. It was brought to this Court by writ of error.

This was an action of ejectment, instituted by Beaubien in the Cook Circuit Court, against Jamison, to recover the possession of lots one [11 and two [21 in block one, [11 in Beaubien’s Addition to Chicago.

This cause was heard in the Court below, at the April term, 1840, before the Hon. Dan Stone. Judgment was rendered for the plaintiffs for $1781, and the defendant brought the cause to this Court, by writ of error.

<p>Motion for Writ of Mandamus.</p> <p>Foreign administrators cannot sue in the courts of this State.</p> <p>The Act to facilitate the collection of Judgments by Executors and Administrators, applies only to administrators appointed by the courts of this State.</p> <p>Execution cannot issue on a judgment, after a year and a day have elapsed from the rendition of the judgment.</p>

<p>Error to Coolc.</p> <p>The common law is adopted in this State by legislative enactment; but this must be understood only in those cases where that law is applicable to the habits and eondition of our society, and is in harmony with the genius, spirit, and objects of our institutions.</p> <p>In the case of open accounts, composed of many items, where the entries are made by the party himself, no clerk being employed, the book of accounts is admissible in evidence, upon proof being made, by a person who has dealt with the party, and settled by the same book, that it is the party’s book of accounts, and is fair and correct, and that some of the articles charged were delivered at about the time the entries purport to have been made, and that the entries are in the handwriting of the party producing the book. But this rule would not apply to an account for money lent, nor to an account containing a single charge only.</p>

This cause was heard in the Court below, at the May term, 1841, before the Hon. Thomas Ford and a jury. Verdict and judgment were rendered for the defendants. The cause was brought to this Court by the plaintiffs.

<p>Error to Madison.</p> <p>The interest of a member of a municipal corporation, and a tax payer, is too remote to exclude him from being a witness in favor of the corporation, in a suit to recover a tax or penalty imposed by the corporation.</p> <p>A party cannot assign for error the admission of testimony to which he did not except.</p> <p>Under the Constitution of Illinois, when property is to be taxed, the mode of levying the tax must be by valuation, and the tax must be uniform; but the legislature possesses the power to impose such other taxes as may be consonant to public justice, and the circumstances of the country may require.</p> <p>A poll or capitation tax, without regard to property, is constitutional; and so is the act of the legislature requiring road service or labor from each male inhabitant between the ages of 21 and 50 years.</p> <p>The Constitution of Illinois is not to be regarded as a grant of power, but rather as a restriction upon the powers of the legislature; and it is competent for the legislature to exercise all powers not forbidden by that instrument, nor delegated to the General Government, nor prohibited to the State, by the Constitution of the United States.</p>

This cause was heard in the Court below, at the June term, 1841, before the Hon. Thomas Ford. The facts sufficiently appear in the opinion of the Court.

This was an action of assumpsit, and was heard in the Court below, at the November term, 1839, before the Hon. William Thomas. Judgment was rendered for the plaintiff, on a trial by Court, without the intervention of a jury, for $906, and costs.

This cause was heard in the Court below, at the December term, 1841, before the Hon. Samuel H. Treat, and judgment rendered for the plaintiffs. The defendants appealed to this Court. The cause was submitted upon briefs.

<p>Appeal from, Adams.</p> <p>To justify a verdict against a defendant, who is sued as a partner, proof should be produced, either that the defendant had admitted the existence of the partnership, or had done some act from which a jury might fairly infer that a partnership existed.</p> <p>Where a defendant is sued as a member of a partnership, in which he had formerly been a partner, on an account for goods sold and delivered, if it is proved that some of the articles mentioned in the account were purchased during the existence of the partnership, notice, to the plaintiff, of the dissolution, must be shown, to discharge the defendant from the remainder of the account.</p> <p>A defendant cannot assign for error, that other persons should have been joined as plaintiffs. Such an objection should be made in the Court below, where, if well founded, it would be ground for a nonsuit.</p>

This cause was heard in the Morgan Circuit Court, at the November term, 1841, before the Hon. Samuel D. Lockwood. The cause was submitted in this Court, upon briefs. The facts in the case are fully stated in the opinion of the Court.

<p>This cause was heard below before the Hon. Thomas Ford.</p>

<p>Error to Randolph.</p> <p>Where the return to a summons does not show that it has been served ten days before the return day thereof, it is error to take judgment by default.</p> <p>In an actioiigof debt, it is error to render judgment for damages only.</p>

This cause was submitted upon an agreed statement of facts,, made by J. Young Scammon, counsel for the relator, and I. N. Morris, President of the Board of Commissioners of the Illinois and Michigan Canal, by which it appeared that the relator was the purchaser of lot four [4] in block two [2], in the original town of Chicago, at the canal sale in 1836, and had made partial payment therefor, but had forfeited the lot by failing to make the subsequent payments, according to…

This cause was heard in the Court below, at the September term, 1840, before the Hon. Sidney Breese and a jury. Verdict and judgment were rendered for the plaintiff, and the cause brought to this Court by writ of error.

A. T. Bledsoe moved to dismiss the appeal in this case, because the appeal bond was not entered into within the time limited by the Court, nor was the same executed by the defendants, but by only one of them. The Court below granted the appeal, upon the defendants’ entering into bond, &c., within thirty days.

This cause was heard in the Circuit Court, at the September term, 1840, before the Hon. William Thomas and a jury. Verdict and judgment were rendered for the plaintiff for $183.40. The cause was brought to this Court by writ of error.

<p>Motion for a Re-heaiing.</p> <p>After the lapse of a term, a court cannot vacate a judgment; but it may make any proper order to sustain the judgment.</p> <p>In no case has the Court entertained a petition for a re-hearing, after the lapse of a term.</p> <p>The decision in the case of Lampsett ®. Whitney, 2 Scam. 441, is approved.</p>

This cause was heard in the Court below, at the July term, 1840, before the Hon. Samuel H. Treat. Judgment was rendered for the plaintiffs, for $958.46 debt, and $183.50 damages, upon demurrer to the plea of the defendant, the present appellant.

This cause was heard in the Morgan Circuit Court, before the Hon. Wrn. Thomas, without a jury, at the July term, 1840. Judgment was rendered for the defendant, and the plaintiff appealed to this Court.

<p>This cause was heard in the Court below, at the September term, 1839, before the Hon. Peter Lott and a jury.</p>

This cause was heard in the Court below, at the July term, 1841, before the Hon. Samuel H. Treat. The defendants appealed to this Court.

<p>Error to St. Clair.</p> <p>Where a party excepts to the opinion of the Court overruling a motion for a new trial, upon the ground that the verdict is contrary to the evidence, he should incorporate the testimony in a bill of exceptions. Unless he does so, the Supreme Court can know nothing of the evidence. It is not sufficient to file an affidavit purporting to set out the testimony.</p> <p>Where a party excepts to the decision of the Court, in excluding proof of the execution of a written instrument, in order to avail himself of his exception, he must set out a copy of the instrument in his bill of exceptions.</p>

This was an action upon a promissory note made by James W. Allen, George Miller, Francis Taylor, Moses Hinton, James B. Kyle, and Charles Chandler, payable to Flower Husbands. The cause was heard in the Court below, at the March term, 1841, before the Hon. Samuel H. Treat. Judgment was rendered for the plaintiff in that Court, for $761.40, and costs of suit. The defendants brought the cause to this Court by writ of error.

The petition, in this case, was filed on the 11th of January, 1838. The cause was tried before the Hon. Peter Lott, at the March term, 1840, of the Schuyler Circuit Court. Judgment was rendered for $214.09, and a special writ of fieri facias awarded against the mill.

The error assigned in this case arose out of the fact, that the summons was dated “ eighteen hundred and thirty.” The record showed that the proceedings were commenced in 1839.

This cause was heard in the Court below, at the June term, 1841, before the Hon. Thomas C. Browne and a jury. The defendant appealed to this Court.

<p>This cause was heard in the Court below, at the June term, 1841, before the Hon. Thomas C. Browne.</p>

This cause was heard in the Court below, at the February term, 1840, before the Hon. Sidney Breese. Judgment was rendered for the defendant. A motion was made to set aside this judgment, at the August term, 1840, which was refused. The plaintiffs brought the cause to this Court by writ of error.

<p>Appeal from, Morgan.</p> <p>Where several persons sign a subscription paper payable to a portion of their number, as trustees, whereby each one agrees to pay the sum set opposite to his name, for the purpose of erecting a building, and the work is done by a mechanic, an action may be maintained by the trustees against any subscriber who neglects or refuses to pay his subscription.</p> <p>Such contract is not joint, but several.</p>

This cause was' decided at the December term, 1840. McConnel and McDougall, for the appellant, filed a petition for a re-hearing, and cited McKinstry v. Pennoyer, et al. 1 Scam. 326-7; Moore v. Martin, 1 Bibb. 234; 1 Chit. Plead. 487, 489 note, 498-501; Comyn’s Dig. title Abatement, 24; Beach v. Norton, 8 Conn. 71; Commonwealth v. Churchill, 5 Mass. 174. A re-hearing was granted, and the cause was again submitted.

<p>This cause was heard before the Hon. William Wilson, at the September term, 1841, of the Wabash Circuit Court.</p>

This cause was heard at the November term, 1840, of the Sangamon Circuit Court, before the Hon. Sidney Breese. Judgment was rendered for $10,000 debt, to be discharged upon the payment of the damages, to wit, $1492.83, and costs.

John Kerr brought an action of debt, by petition and summons, in the Morgan Circuit Court. At the July term, 1838, before the Hon. Jesse B. Thomas, several pleas were filed by the defendants, which were overruled, upon demurrer, and judgment rendered for the plaintiff for $600 debt, and $65 damages. Kerr died, and David B. Ayres was appointed administrator of the estate of Kerr. McConnel and Collins then brought a writ of error upon the judgment, and assigned several errors.

<p>Error to Coolc.</p> <p>The law is well settled, that where an error in fact is committed in legal proceedings, the Court in which the error is committed, may correct it by a writ of error co-ram, volis, or on motion.</p> <p>The Supreme Court has only an appellate jurisdiction, except in the cases enumerated in the Constitution and act regulating that Court. It can only revise the adjudications of an inferior court wherein the rules of law or principles of equity appear from the files, records, or exhibits of such court, to have been erroneously adjudged and determined.</p> <p>The Supreme Court has no jurisdiction of an error in fact occurring in an inferior court.</p> <p>Semite, That a case might be presented in which the Supreme Court would entertain jurisdiction of a question of fact.</p>

The plaintiff in the Court below sued the defendant in an action of trespass vi et armis. The declaration contained three counts.

This was an action by petition and summons, brought by the appellant against the appellee, and one Wm.D. Buzby, in the Greene Circuit Court, on a sealed note, dated August 22, 1839, payable to Minor S. Young, twelve months after date, for $800, and assigned by Young to the plaintiff.

This cause was heard in the Court below, at the October term, 1840, before the Hon. Wm. Thomas. Judgment was rendered for the defendants, upon demurrer to the plaintiffs’ declaration, and the cause brought to this Court by writ of error.

This was an action of assumpsit, brought by Thomas Cook against William Kinney, in the St. Clair Circuit Court, to recover a compensation for labor and services performed for the defendant. The declaration is in the usual form. The defendant pleaded non assumpsit, and a setoff for board, washing, and clothing, goods, wares, and merchandise, sold and delivered to him.

This was an action of covenant, and was heard in the Court below, at the May term, 1839, before the Hon. Justin Harlan. Judgment was rendered for the plaintiff, on demurrer to the defendant’s plea, for $218 damages. The defendant appealed to this Court.

This was an action by petition and summons, brought in the Adams Circuit Court, by Lane against Wagy, upon a promissory note. The declaration is in the usual form. The defendant filed three pleas.

This was an action of ejectment, commenced in the Gallatin Circuit Court by the appellees against the appellants, to recover the possession of the S. E. ¿ of section 22, in township 9, south, of range 9 east of the third principal meridian, situated in Gallatin county. At the November term, 1838, the consent rule was entered into, and the plea of not guilty filed.

<p>This cause was heard in the Brown Circuit Court, at the April term, 1841, before the Hon. Stephen A. Douglass.</p>

This cause was heard in the Court below, at the September term, 1841, before the Hon. Sidney Breese. The facts of the case sufficiently appear in the opinion of the Court, except that the breach in the declaration did not allege that the note was unpaid; but it did allege that the defendant had not paid the judgment and costs recovered against the maker upon the note. The plaintiff brought the cause to this Court, by writ of error.

This cause was heard in the Court below, before the Hon. Samuel H. Treat, at the November term, 1841, of the Menard Circuit Court. Judgment was rendered for the plaintiff for $87.98 damages, and the defendant appealed to this Court. The facts in the case are fully stated in the opinion of the Court.

This cause was heard in the Court below, at the April term, 1841, before the Hon. Thomas C. Browne and a jury. The defendant appealed to this Court.

<p>Appeal from Jo Daviess.</p> <p>Where a motion for a new trial, on the ground of newly discovered evidence, is overruled in the Circuit Court, unless the affidavit upon which the motion is based, is set out in a bill of exceptions, the Supreme Court cannot determine whether there is error in the decision.</p> <p>There can be no doubt that a court may, where any of its tiles are lost or destroyed,. permit new papers to be filed; but all applications of this description are necessarily addressed to the discretion of the court. The court must not only be satisfied of the loss or destruction of the papers, but that the proposed substitutes are true copies of the papers lost. If the court has any doubt, on either of these grounds, the permission to supply the lost papers ought not to be given.</p>

<p>This cause was heard in the Court below, before the Hon. Peter Lott.' The facts appear in the opinion of the Court.</p>

This cause was heard in the Court below, before the Hon. Samuel D. Lockwood. The facts appear in the opinion of the Court.

At the June term, 1840, of this Court, the counsel for the relator filed the following affidavit, and moved for an attachment against the defendant, for contempt of Court, in disobeying the writ of mandamus mentioned in the affidavit: “ State of Illinois, Cook county, ss. “ J. Young Scammon doth solemnly, sincerely, and truly declare and affirm, that at the April term of the Circuit Court of Cook county, held at Chicago, in said county, in the year eighteen hundred and…

Dillehunt brought an action before a justice of the peace of Macon county, against Benedict, and recovered a judgment for $33.53.

<p>Appeal from Madison.</p> <p>When a State enacts a statute of another State, it is presumed to adopt the construction which that statute has received, by a uniform series of judicial expositions, in the courts of the State from which it is taken.</p> <p>Where an appeal bond is taken by a justice of the peace, the statute requires the justice to file the bond and papers in the office of the clerk of the Circuit Court, within twenty days from the taking of the appeal. A failure, on the part of the justice, to file them within that time, defeats the appeal, which will be dismissed on motion.</p>

<p>Error to Sangamon.</p> <p>A made his note to B, in consideration of money won at a game played with cards, and B assigned the note to C, who instituted a suit upon it in a court of law. Upon the trial A called B as a witness, who objected to stating what was the consideration of the note, on the ground that he could not do so without criminating hint-self, and the Court sustained his objection. No other testimony being offered, judgment was rendered in favor of C, for the amount of the note and interest. Upon a bill in chancery, to enjoin the enforcement of the judgment: Held, that these facts did not authorize a court of chancery to interfere with the judgment of the court of law, it not appearing that A had no other witness to prove the same fact he sought to establish by B.</p> <p>The statute declares all notes given in consideration of money won at play, void, whether in the hands of the payee or an assignee.</p> <p>The general rule in equity is, that relief will not be granted against a judgment at law, on the ground of its being contrary to equity, unless the defendant in the action at law was ignorant of the facts constituting his defence, while the suit was pending, or they could not have been received as a defence at law. If he permits judgment to pass against him by neglect, he cannot afterwards seek relief in equity, for a matter which he could have availed himself of at law, even if a court of equity has concurrent jurisdiction with a court of law, of the subject matter of the defence.</p> <p>A party electing to malte his defence at law, and failing, is precluded from going into equity to litigate anew the same matters. To this general rule there are some exceptions, as where the judgment has been obtained by fraud, or gross injustice has been done to a party, not attributable to his laches or neglect.</p>

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

<p>Appeal from, Sangamon.</p> <p>In an action before a justice of the peace, unliquidated damages, arising out of contracts, may be setoff. ></p> <p>The words “ claim or demand,” as used in the 5 17 of the practice act, embrace all cases arising out of contracts, whether expressed or implied.</p> <p>A justice of the peace has jurisdiction of a setoff exceeding $100, where the balance claimed by the defendant does not exceed that sum; and, semble, that if the balance exceeds $100, the justice must do one of two things, either allow so much o>f the note as will setoff the plaintiff’s claim, and give judgment for the defendant for costs, or dismiss the suit altogether.</p>

<p>Error to Schuyler.</p> <p>The provision in the ordinance of July 13,1787, ceding the north-western territory to the United States, that tire inhabitants of said territory shall always be entitled to the benefit of judicial proceedings, according to the course of the common law, intends the common law, as it was then understood and expounded, by the courts in America.</p> <p>A landlord has a right to distrain for rent, where no power of distress is contained in the lease.</p>

This cause was heard in the Court below, at the September term, 1841, before the Hon. Sidney Breese. The facts are stated in the opinion of the Court.

<p>This cause was heard at the October term, 1841, of the Cook Circuit Court, before the Hon. Theophilus W. Smith and a jury. The defendants appealed to this Court. The facts sufficiently appear in the opinion of the Court.</p>

<p>The plaintiff in error was tried at the September term, 1841, of the Cook Circuit Court, before the Hon. Theophilus W. Smith and a jury. He was found guilty, and sentenced to be confined in the penitentiary for four years. A motion was made in arrest of judgment, and overruled.</p>

<p>This cause was heard in the Court below, before the Hon. Samuel H. Treat. The defendants appealed to this Court.</p>

<p>Appeal from, Schuyler.</p> <p>An act lawful in itself, which is for the benefit of one party, or to the prejudice of another, constitutes a sufficient consideration to support a promise.</p> <p>The possession of land, or a claim of title to real estate, may be the subject of sale and transfer, and a good consideration to support a promise for the price. The transfer of the possession, or of the claim of title, is to the prejudice of the seller, and a benefit to the purchaser, and therefore a good consideration.</p> <p>A sale and transfer, by one in possession of land belonging to the Government, of his claim or interest in the same, is a good consideration for a promissory note, executed for the price thereof.</p> <p>The doctrine is well established, both at law and in equity, that on a sale of land, where there is neither fraud nor warranty, on the part of the vendor, the vendee cannot recover back the purchase money, although there may be a total failure of title.</p> <p>A parly who takes a quit claim deed, on the sale of land, or a claim thereto, runs the risk of the goodness of the title, unless fraud has been practised upon him; and to constitute fraud, the vendor must, previous to, or at the time of the sale, have affirmed what he knew to be false, in relation to the title, or concealed some material fact connected with the same, or used some fraudulent means by which the vendee was induced to accept a deed without covenants of warranty. The fraud must consist in the sale and conveyance, and not in the subsequent transaction.</p> <p>In an action upon a promissory note, the declaration averred the note to be payable, “eighteen months to the’’ plaintiff: Held, on general demurrer, that the averment was sufficient, it being sufficiently certain to indicate that the promise was to pay in eighteen months from the date of the note. .</p>

<p>Error to Schuyler.</p> <p>A person who entered a tract of land under a Vincennes certificate granted under the “ Act for the relief of certain settlers in the State of Illinois, who reside within the Vincennes Land District” to which the occupant was entitled to a preemption, under the act of May 29th, 1830, and which he subsequently purchased under that act, will, with his grantees, be decreed, in chancery, to convey the land to the preémptor, and will be enjoined from enforcing a recovery in ejectment.</p> <p>The possession of a preémptor is notice to all the world of his claim and title to all the benefits designed to be conferred by the preemption law.</p>

<p>Error to Clinton.</p> <p>.Amendments are reducible to no certain rules. They rest, for the most part, in the discretion of the Court.</p> <p>'Where a good cause of action has been definitely stated, it is usual to allow one or more amendments; but when there is an improper joinder of causes of action, as slander by the wife, and a joint slander by the husband and wife, an amendment cannot be allowed.</p> <p>.A declaration in a suit against two, husband and wife, for slander, cannot be amended by striking out those counts which allege a joint slander, and leaving those only which allege slander by the wife, where the writ was against the two, without naming them as husband and wife.</p> <p>’The Court may refuse to regard an assignment of errors which is not attached to the record.</p>

This cause was heard in the Adams Circuit Court, at the April term, 1839, before the Hon. James H. Ralston and a jury. A verdict was rendered for the plaintiff for $360 debt, and $16 damages. A motion was made in arrest of judgment, which was overruled, and judgment entered on the verdict. The defendants appealed to this Court.

<p>The facts sufficiently appear in.the opinion of the Court.</p>

<p>Application for a Writ of Mandamus.</p> <p>The Circuit Courts are courts of general jurisdiction.</p> <p>The case of Nomaque v. The People, Breese 111, means nothing more than that a prisoner, in a capital case, is not to be presumed to waive any of his rights. He may, however, by express consent, admit all of them away.</p> <p>A change of venue may be awarded in a criminal case, by consent, without requiring a petition or affidavit to be filed for that purpose.</p> <p>Semble, That the Court, to which a cause is sent by change of venue, cannot look behind the order of the Court making the change, and determine its regularity.</p>

This cause was heard in the Court below, at the July term, 1841, before the Hon. Samuel H. Treat and a jury. Verdict and j udgment were rendered for the plaintiffs.

This cause was heard in the Court below, at the April term, 1842, before the Hon. Sidney Breese. The plaintiff appealed to this Court.

<p>Error to Mock Island.</p> <p>Where á prisoner has been indicted and found guilty, by the verdict of a jury, if the judgment is arrested, even for an insufficient cause, and the defendant discharged, he has not been legally in jeopardy, and he cannot plead the conviction in bar to a subsequent indictment.</p> <p>Scmhle, That in a criminal case, a defendant cannot assign for error a decision of the Court made at his instance, and with his consent, except in a case where jurisdiction is attempted to be conferred by consent.</p>

<p>Error to Sangamon.</p> <p>An instrument in writing, in the form of a promissory note, except that the words “I promist” were contained in it, instead of the words “ 1 promise,” is a promissory note.</p> <p>Proof that a note was forged by the defendant, and that he attempted to pass it in the county where the suit was brought, is evidence that the forgery was committed in that county, in the absence of other proof where it was forged.</p> <p>The same rales of construction, in the ascertainment of the character of a contract, and the meaning of the parties to it, prevails in both civil and criminal cases.</p> <p>The refusal of the Court to give a proper instruction, cannot be assigned for error, where the Court gives others embracing the correct principle of law involved in the instruction asked.</p>

<p>This cause was heard in the Court below, at the April term, 1842, before the Hon. Sidney Breese.</p>

This cause was heard in the Court below, at the May term, 1842, before the Hon. Samuel D. Lockwood. Judgment was rendered for the plaintiff for $104.77 and costs of suit. The defendant appealed to this Court.

This cause was heard in the Court below, at the September term, 1841, before the Hon. Walter B. Scates and a jury. Verdict and judgment were rendered for the plaintiff for $300 damages. The defendant appealed to this Court.

<p>Error to Sangamon.</p> <p>Where a statute fixed the seat of government at Springfield, upon condition that the inhabitants of said town should subscribe a certain sum of money towards erecting the State House, and execute their bonds for the payment of the same: Held, that a bond given under such statute was founded upon a sufficient consideration, and was valid.</p>

This was a suit instituted by the plaintiff in error against the ' defendant in error, before Washington Friekle, Esq., a justice of the peace of Stark county, upon the following agreement: “ February 27th, 1841. “ An article of an agreement made and entered into between Elizabeth Coleman and Eugenius Frum, both of the county of Stark, and State of Illinois, Witnesseth, That Elizabeth Coleman, of the first part, for the consideration hereinafter mentioned, agrees to liberate…

This cause was heard in the Court below, at the April term, 1842, before the Hon. Thomas Ford. The plaintiff brought the cause to this Court by writ of error. The facts are sufficiently stated in the opinion of the Court.

This cause was tried in the Court below, at the September term, 1842, before the Hon. Sidney Breese, without a jury. Judgment was rendered for the defendant, and the plaintiff brought the cause to this Court by writ of error.

This was an action of debt, brought in the McLean Circuit Court, by Isaac Underhill against Edgar Conkling. The cause was heard at the April term, 1841, before the Hon. Samuel H. Treat. Judgment was rendered for the plaintiff for $625 debt, and $93.75 damages. The defendant brought the cause to this Court by writ of error.

<p>Error to Madison.</p> <p>A note payable in cattle, by a certain day, if not paid at maturity, becomes payable in cash; and in an action brought upon such note, in default of a valid plea, the clerk may assess the plaintiff's damages.</p>

This cause was heard in the Court below, at the September term, 1841, before the Hon. Samuel H. Treat. Judgment was rendered for the plaintiff for $364.50 damages, and costs of suit. The defendants appealed to this Court.

<p>This cause was heard in the Court below, at the September term, 1841, before the Hon. Samuel H. Treat and a jury.</p>

At the May term, 1840, of the Circuit Court of Cook county, the Hon. John Pearson presiding, the following entry was made of record: “The clerk will enter a rule, and let the same be served on the said William Stuart, to show cause, by two o’clock P. M., the eighth day of May, why he, the said Stuart, ought not to be fined or imprisoned, or both, for publishing, in the Chicago Daily American, on May 7th, A. D. 1840, a contemptuous article of and concerning the jury and…

<p>At this term of the Court the defendant filed the following motions and affidavit:</p> <p>“John Pearson, ads. The State.</p> <p>“ The defendant, John Pearson, comes into this honourable Court, and moves the Court, that the judgment heretofore given in the above case, at the December term, 1841, imposing a fine of $100 ■on the said defendant, be again opened and re-considered, for the following reasons, to wit :</p> <p>“1. The said defendant has shown, by his answer to the interrogatories put to him, at the June term, 1840, that he never intended any contempt to the Supreme Court, in not appearing in ■said Court, or signing a certain bill of exceptions; that, so far as the defendant was concerned, he acted under a full conviction that •the Court would give him a hearing whenever the case was duly presented to them, which never was done.</p> <p>“ 2. The said defendant has never had any chance to be heard on the merits, or to explain why he did not sign the bill of exceptions drawn by the attorney, though he did, on the trial, sign a bill of exceptions, which he then believed correct.</p> <p>“ 3. That no legal service was ever made on him, while acting as the Circuit Court of Cook County.</p> <p>“ 4. That, after the said defendant was imprisoned, from the 16th June, 1840, till on or about the 25th or 26th June, 1840, and was required to enter into a recognizance of $500, to appear at the December term of the Supreme Court, 1840, he, this defendant, was duly elected State Senator, and resigned his office of Judge before the said term, and, consequently, could not have done the act required of him by the peremptory writ of mandamus.</p> <p>“ 5. That it was expected by this defendant, that no decision would be made in this case, according to his understanding, after the December term, 1840, until the matters were again argued under the new motion, submitted by Mr. Gatewood, his counsel, which has not been done.</p> <p>“ 6. That the fine imposed is irregular, and, in the opinion of the defendant, contrary to tire true meaning of the law in such cases.</p> <p>“7. The defendant wishes now to show, by affidavit, that it was from a private letter sent by him, in consequence of sickness, to-one of the judges, and by the Judge misunderstood, or in some other manner not explained, he caused the same, or a portion of it, to be filed by Jesse B. Thomas, Esq., for, and was taken as an appearance of the defendant, when no such appearance was ever contemplated by defendant, and which this defendant believes was one of the chief causes why subsequent misunderstandings have arisen in this case, and believes that if he could have explained all the facts in this case, that the Court would have seen no contempt committed by defendant. John Pearson.</p> <p>“ The following authorities are referred to by defendant:</p> <p>2 Chit. Blac. side page, 111; Ibid. 265-66 ; 2 Scam. 200. To the case Emerson v. Clark, 2 Scam. 490 ; Signing a bill of exceptions is a judicial, and not a ministerial act. Swafford v. Dovenor, 1 Scam. 115; The people, on the relation of Ewing, v. Forquer, Breese 68 ; showing that the signing of the bill of exceptions is a judicial act. The appearance was not properly entered, and there was no proper service. A mandamus is a people’s writ, (in England a king’s writ,) and could only be served by a sheriff, or other proper officer, appointed by law to do the act.</p> <p>“ John Pearson, ads. The People. Supreme Court, Sangamon County, 111. •For Contempt.</p> <p>“ John Pearson, defendant in the above entitled case, being duly sworn, deposes and says, that sometime in June, he thinks, 1839,. and during the Circuit Court of Cook county, in a case of Phillips v. Bristol, the counsel tendered a bill of exceptions, which this affiant did not sign, but signed one in the case, which he deemed to be correct. That, previous to that time, attempts had been made by counsel, to serve a writ of mandamus from the District Court of the U. S., commanding said judge to do an act which he considered he ought not to do, and this defendant, then acting as a Court, distinctly informed the counsel, Mr. Collins, and he now believes in the hearing of Mr. J. Y. Scammon, that he did not recognise this manner of service—that if it was served in the way of other process, by a proper officer, (or words to that effect,) that then it would be duly considered. That this defendant, while sitting as a Court, could not, as then advised, believe, or consider that the law, contemplated the service of these writs by an attorney in Court. After this time, and after, as this defendant believes, this, opinion was known to the counsel generally, one Justin Butterfield, an attorney of the Court, attempted, in open Court, and while the business of Court was in progress, to serve a like writ from the Supreme Court, on this affiant, and in such a manner as to be considered an intention (accompanied, as it was, with jesture and language,) to insult this affiant, then acting as the Court of said Cook county. This writ or paper was not read to, or received by this affiant, and, therefore, he did not then know its true purport; but, from a conversation with one of the attorneys, this affiant had reasons to believe it was a writ of mandamus, and whether conditional, or peremptory, he could not now state; but, feeling an anxiety to let the Supreme Court know this affiant’s views on this subject, and with no intention whatever to contemn its authority, and knowing, too, that this question was a new one, that is the power of the Supreme Court to grant writs of mandamus to the Circuit Courts of Illinois, requiring them to sign bills of exceptions, this affiant, though he had never been served, in his opinion, with notice, felt anxious to present this question to the consideration of the Supreme Court, and, with that view, attempted to reach Springfield, but was prevented by sickness, and thereupon he addressed a letter, as is now his recollection, to Judge Smith, giving him his reasons why he could not be there, and sent along with the letter some brief thoughts, as hints to Judge Thomas, if he would consent to appear and argue the question of jurisdiction over the Circuit Judges; but, unless that question was permitted to be argued, this affiant did not then intend to have the paper filed as his appearance, and such, this affiant now believes, was the well known fact, both to the Judge, and J. B. Thomas, Esq., who filed the paper; yet J. B. Thomas, Esq. refused to appear in the case. At the next spring term of the Cook Circuit Court, J. Y. Scammon again attempted to serve a writ on this affiant, in open Court, which he there stated was a peremptory mandamus ; and on a rule being filed to show cause for an alleged contempt, this affiant learned for the first time, that the Supreme Court had taken this paper, filed by J. B. Thomas, Esq., as an appearance in said Court; and this affiant gathered from the opinion quoted by J. Y. Scammon, in his answer, and for the first time seen or known by this affiant, that, in consequence of this affiant’s acknowledging his appearance in that manner, that the Supreme Court had proceeded to award the writ. This affiant further believed, that it could only be from that fact, and not upon the ground that this was a good or legal service. This being the state of facts, this affiant did then believe that the last attempt to serve this writ by the attorney, in May, 1840, would not be considered a legal service; and this affiant was strengthened in this opinion, from the phraseology of the learned Judge’s opinion, to which this affiant begs leave of this honorable Court to refer.</p> <p>“ This affiant now states that he was not aware that any writ of attachment had been issued against him when he left Springfield, on the 10th day of June, 1840, or that he had committed any contempt of the said Supreme Court, and was greatly surprised to be informed of that fact in Clay county, where he had gone on private business, having stayed in Shelby and Effingham counties for several days. On the return of the writ of attachment, this affiant, in answer to interrogatories, (which he wishes to read as part of his reasons in this case,) distinctly stated that he had no intention to insult the authority of the Court—and by himself and counsel, asked the Court to go into the whole case, which was then refused ; and they further asked the Supreme Court to come to some decision on the question of contempt, but none was given by the Court at that term—on which this affiant was required to enter into a recognisance of $500, as is his recollection, to appear at the next Supreme Court. In the meantime this affiant was elected a State Senator, and before the then next term of the Supreme Court, he resigned his office of Judge, not with a view to avoid the effects of the attachment, but with a single intention to aid in the legislative counsels of the State. The question was raised by Mr. Gatewood, this affiant’s counsel, whether the whole subject ought not to be dismissed, as the answer purged this affiant of any contempt, and also, that in accepting another office, it was out of his power to comply with the mandate of the Supreme Court, that is, to sign the bill of exceptions set forth. This affiant then, or during the winter, and since the addition of Judges, so understood the Supreme Court, that they would hear another argument in the case before any decision was made, which this affiant is informed was not had. This affiant believes, and so states the facts, that if this case could be fully heard, that the Supreme Court would see no intention to contemn its mandates, but that much, if not all, has arisen from misapprehension of the Supreme Court and this affiant on the one hand, and misrepresentation and ill blood, as this affiant believes, on the other, in pressing this matter beyond any former precedent, Such being the belief of this affiant, he now trusts that the Supreme Court will not refuse him an opportunity to wipe out the reproach sought to be cast on him by those who have pressed this matter upon the Supreme Court, in a way which has precluded this affiant from meeting the merits of the case, as he always intended to do ; and if, in case he was wrong in his views of the law of jurisdiction, he then intended, and at all times intends to yield to the laws of his country. But if this opportunity is not granted him, knowing the facts as he does, he will be compelled to believe that privileges granted to the humblest citizen in our courts (his day in Court,) has been denied to him in this case. John Peakson.”</p> <p>“Sworn to before me, this 15th Dec. 1842.</p> <p>“ E. Peck, C. S. C.”</p>

<p>Error to Madison<</p> <p>A mistake or error of the Court in assessing the plaintiff’s damages, cannot be corrected upon writ of error, unless an exception to the assessment is made, and a bill of exceptions taken at the time the judgment is rendered, or the assessment made.</p>

<p>This cause was heard in the Court below, at the May term, 1842, before the Hon. Samuel H. Treat.</p>

This cause was heard in the Court below, at the April term, 1840, before the Hon. Thomas Ford. Judgment was rendered for the plaintiffs for $751.83 damages, and costs of suit. The facts are generally stated in the opinion of the Court.

This cause was heard in the Court below, at the October term, 1842, before the Hon. Sidney Breese.' Judgment was rendered for the plaintiff for $230.86 debt, and $40.30 damages.

<p>This cause was heard in the Court below, at the October term, 1833, before the Hon. Theophilus W. Smith and a jury.</p>

This cause was heard in the Court below, at the May term, 1841, before the Hon. Stephen A. Douglass. Judgment was rendered for the defendant, and the cause brought to this Court by writ of error.

<p>Error to Hancock.</p> <p>Where a contract, under seal, was in the handwriting of one joint contractor, and signed and sealed in a partnership name, by the other: Held, under the plea of non est factum, that the deed was executed by both.</p> <p>Semble, That it may well be doubted, whether, under the statute of Illinois, either one of two defendants can deny the execution of a contract sued on, without accompanying his plea by an affidavit denying its execution.</p> <p>Where issue is taken upon a plea, it is irregular for the plaintiff subsequently to demur to it but; if the defendant joins in the demurrer, he thereby waives the irregularity.</p> <p>To an action of covenant, upon an agreement entered into between two parties, containing mutual covenants, a plea averring performance, on the part of the defendants, of all and singular the obligations imposed on them, by the terms of the contract, and that the plaintiff did not perform any of the undertakings contained on his part, where the covenants of the plaintiff were conditions precedent, is bad on demurrer, for duplicity and inconsistency.</p> <p>To the same action, the defendants filed another plea, averring, that they had “paid and satisfied all and all manner of charge and indebtedness, if any existed under said contract, indenture, or articles of agreement declared on, in the cause, to the said plaintiff, for all work and labor, and service performed by him, and for all materials furnished by him, for said mill or building, which said payments are embraced in the bill of particulars hereto annexed, and also other matters mentioned in said bill, as forming an indebtedness on the part of the said plaintiff to the defendants ; all of which will fully and specifically appear by reference to said bill of account connected herewith, and which the defendants in this cause aver to be true and correct; and all these things the defendants are ready to verify and prove, as this Court shall direct; and they will claim and insist upon the balance that may be found due to them, on the proofs offered to sustain the charges in said bill:” Held, on demurrer, that the plea was bad; because, as a plea of payment, it denied all indebtedness, and as a plea of setoff, it did not show how much, and for what, the plaintiff was indebted to the defendants.</p>

<p>Error to Adams.</p> <p>The general rule is, that an endorsement of a note, in blank, operates as authority to the bona fide holder to fill up the endorsement, by writing any thing over the signature, which shall be consistent with the nature of the instrument, and the intention of the parties.</p> <p>Whilst theTaw requires no particular form of words to constitute a promissory note,1 and designates no particular place at which the maker shall affix his name, in order i to establish his liability in that capacity, yet, by the universal acquiescence andi . consent of commercial and business men, custom has established and sanctioned , a form and mode of signing, which furnishes a legal presumption of the intention/ of the parties, and the precise character of the liability attaching to the signature ;y which presumption may, in many cases, be rebutted by parol evidence. ^</p> <p>Semble, That the signature at the bottom of a note, on the right hand side of the paper, is prima fade evidence that it was affixed there in the character of a maker, whilst the same signature, at the left hand side of the paper, would furnish as satisfactory evidence that it was affixed there in the character of a witness to the instrument; and that the signature of a third person, upon the back of a note, after the payee has endorsed it, is evidence of a contract to become responsible as second endorser.</p> <p>The signature of a third person upon the back of a note, in the hands of the payee, is prima fade evidence that it is placed there as a guaranty, and the holder has implied authority to write a guaranty over the signature; but such endorsement does not make the endorser a joint pro'missor, or surety, and the payee has no authority to write such a contract over it, in the absence of proof as to the intention of the parties. •</p>

This cause was heard in the Court below, at the April term, 1841, before the Hon. Theophilus W. Smith. The cause was submitted, in this Court, without argument.

This cause was heard in the Court below, at the October term, 1841, before the Hon. Thomas Ford.

This cause was heard in the Court below, at the April term, 1841, before the Hon. Sidney Breese. Judgment was rendered for the plaintiff, and the cause brought to this Court by writ of error.

This cause was heard in the Court below, at the August term, 1839, before the Hon. Sidney Breese. The complainant appealed to this Court.

The plaintiff in error was tried and convicted on the following indictment, in the Cook Circuit Court: “ State of Illinois, ) County of Cook, j SS “ Of the special July term of the Cook County Circuit Court, in the year of our Lord one thousand eight hundred and forty-two. “ 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 Michael Conolly,…

This cause was heard in the Court below, at the August term, 1842, before the Hon. Thomas C. Browne. Judgment was rendered for the defendant, on demurrer to the plaintiff’s declaration, and the cause xvas brought to this Court by writ of error.

This cause was heard in the Court below, at the September term, 1842, before the Hon. William Wilson and a jury. Verdict and judgment were rendered for the plaintiff for $333 damages. The defendants appealed to this Court.

This cause was tried at the October term, 1841, of the Madison Circuit Court, before the Hon. Sidney Breese and a jury. Verdict and judgment were rendered for the plaintiff for $338.30 damages. The defendant appealed to this Court.

This cause was heard in the Court below, at the April term, 1839, before the Hon. Wm. Thomas and a jury. Verdict and judgment were rendered for the plaintiff for $150 damages. The defendant appealed to this Court.

<p>Appeal from La Salle.</p> <p>A blank endorsement of a promissory note, at the time of its execution, is prima fads evidence of a liability in the capacity of guarantor, and operates as authority to a bona fide holder to fill up the endorsement, by writing a guarantee over the signature. This legal presumption is liable to be rebutted by parol proof. But proof that the endorser wrote his name for the purpose of becoming liable as security that the makers should be responsible for the payment of the note, and that he refused to sign as a maker, does not rebut it.</p>

The procedings in this cause, in the Sangamon Circuit Court, were had at the November term, 1841, before the Hon. Samuel H. Treat. The judgment against Afflick was for $1495.06, by agreement, with stay of execution for six months. =

This cause was heard in the Court below, at the August term, 1842, before the Hon. Sidney Breese and a jury. The declaration is in debt, and contains eight counts, founded ■upon four writings obligatory; the four first counts treating the instruments as specialties, the other four as simple contracts. The first plea sets forth that- no good or valuable consideration was given, and extends to the first and second counts.

This was an action of trespass quare clausum fregk, instituted in the Madison Circuit Court, by Middleton against Pritchard and Hafford, for the recovery of damages which the plaintiff had sustained by the cutting of trees on land which he claimed to be in his possession.

This cause was heard in the Court below, at the May term, 1841, before the Hon. Samuel H. Treat. Judgment was rendered for the plaintiff, upon demurrer to the declaration, for $507.50 damages, and the costs of suit. The defendant appealed to this Court.

<p>This cause was heard in the Court below, at the August term, 1841, before the Hon. Thomas Ford.</p>

<p>This cause was heard in the Scott Circuit Court, at the May term, 1841, before the Hon. Samuel D. Lockwood and a jury.</p>

<p>Appeal from Richland.</p> <p>In actions of ejectment, and of trespass, for injuries to the inheritance, proof of actual possession of the premises, by a person claiming title in fee simple, is presumptive evidence of title in him, to that extent, and throws upon the party contesting his title, the burthen of rebutting the presumption thus raised. This rule is applicable to an action of debt under the statute, for trespassing by cutting timber. In the absence of proof of this character, raising a presumption of title, the party asserting title is bound by the general rule, that he must produce the best evidence the nature of the case will admit of. The best evidence is his deeds and other documentary evidence of title.</p> <p>Where an admission is made in a case, for the purposes of the trial, it is regarded as a stipulation of the party making it, that the fact about.which it is made exists, and he is estopped from denying it; but an admission made in puis is not conclusive, and is entitled to no higher consideration than parol testimony. It amounts but to oral testimony, and is liable to be rebutted by the party making it. It is regarded as the weakest and most uncertain kind of testimony, and ought to be received only in cases where parol evidence is properly admissible to show the same fact.</p> <p>An admission of a party is competent evidence only where parol evidence would be admissible to establish the same fact, or where there is not higher and more conclusive evidence in existence, which can be produced.</p> <p>In an action of debt, under the statute against trespassing by cutting timber, the admission of the defendant that he cut trees on the plaintiff's land, cannot be received as evidence, where such admission is not made for the purposes of the trial.</p>

<p>Appeal from Pike.</p> <p>Where a plea of setoff of certain assigned notes is inartificially drawn, and does not describe the notes with sufficient certainty, and for these causes would be bad on, demurrer, a plaintiff, by tendering an issue on it, waives his right to make these objections, either on the trial, or in the appellate Court; and the production of the notes, with the endorsement thereon, is prima facie evidence of their possession before the commencement of the suit.</p> <p>Defences of setoff are regarded as in the nature of cross-actions. The defendant can only introduce, by way of setoff, such demands as were existing causes of action in Ms favor at the time the suit was instituted. He is not permitted, after he has notice of the suit, to purchase up claims against the plaintiff, and by producing them on the trial, defeat the plaintiff's action, and subject him to the payment of costs.</p> <p>The plea of setoff is an affirmative one, and it is incumbent on the defendant to prove as well the genuineness of the demand he seeks to setoff, as that it was due him when he was sued.</p> <p>The legal presumption is, that the endorsement of a note was antecedent to its becoming due. If the time of the endorsement becomes material, for the purpose of letting in a defence, it is the duty of the maker to show it, and thus rebut the presumption of law; and this presumption prevails where the note is used as a setoff, as well as where a suit is instituted upon it.</p>

<p>Appeal from, Madison.</p> <p>Where an appeal is taken in the name of two of three defendants, and the bond is executed by only one of the appellants, and the other defendant who did not appeal, the appeal will be dismissed.</p>

<p>Error to Pike.</p> <p>Where a summons from the Circuit Court is made returnable to the fourth day of the term, it is not merely voidable, but absolutely void, and should be quashed, on motion, and a final judgment rendered against the plaintiff for costs; but where the Court, upon quashing the writ, continued the cause with an order for an alias summons, and such summons was issued: Held, that the alias summons might be considered as the commencement of a new suit; that the words “as you have been before commanded” in the writ, might be regarded as surplusage, and the writ amended in the Circuit Court, by striking out those words.</p> <p>It is erroneous to render judgment against two defendants, when process is served on one only.</p>

This cause was heard in the Court below, at the September term, 1842, before the Hon. Samuel D. Lockwood. Judgment was rendered for the plaintiff, upon demurrer, for $856.31 debt, and $5.16 damages. The defendants appealed to this Court.

<p>Error to St. Clair.</p> <p>A petition for the enforcement of a mechanic’s lien, under the statute of 1839-40, should set out the contract upon which the plaintiff’s claim is founded, to show not only that he is entitled to the benefits of the act, but to apprize all parties interested, of the nature and character of his claim. The petition, like a declaration, must contain a statement of the cause of action, the lime when the contract was made, within what time it was to be performed, and when payment was to be made, and show clearly on its face, a right in the plaintiff to recover. It is not sufficient to state simply that certain labor and materials were furnished by contract, and that the plaintiff has performed his part of the contract, ata certain time, “ and that payment was to be made within a year from the completion of said work,” and that the defendant gave his notes for the amount, &c.</p>

The relator and I. N. Morris, the President of the Board of Comissioners of the Illinois and Michigan Canal, filed an agreed case in this Court, from which it appeared that the People, by the agent for protecting canal lands, appointed by the canal board, instituted several suits against trespassers upon the canal lands, and the defendants commenced an action upon a note given to said board in settlement for such trespasses.

<p>Appeal from Knox.</p> <p>Where, after issue had been taken on several pleas filed in a cause, the plaintiif took leave to amend his declaration, and the cause was continued to the next term of the Court, when the Court ordered the pleas to be stricken from the files, and judgment was thereupon rendered by default against the defendant: Held, that the proceedings were irregular, and the judgment must be reversed.</p> <p>Semite, That there are cases in which the Court may, with great propriety, strike pleas from the files, and render judgment by nil dicit;- as where the pleas are not adapted to the action, or are placed on the files in contravention of some rule of the Court.</p>

<p>The proceedings in this cause, in the Court below, were had before the Hon. Sidney Breese, at the April term, 1841.</p>

This cause was heard in the Court below, at the March term, 1842, before the Hon. Samuel H. Treat and a jury. Verdict and judgment were rendered for the defendant, and the plaintiff appealed to this Court.

This was an action of debt on an appeal bond, by the defendant in error against the plaintiffs in error, in the Peoria Circuit Court, The declaration makes profert of the bond, and alleges that the defendants made their bond in the penal sum of $1000, conditioned that Phillips should prosecute an appeal with effect to the Supreme Court, from a judgment of the Circuit Court of Peoria county against Phillips; and it assigns for breach, that he did not prosecute the appeal with…

This was a hill in ch.ancenj, exhibited in the La Salle Circuit Court, by John Bracken against Michael Kennedy and Michael Brady, for an account and settlement of partnership transactions.

.This cause was heard in the Court below at the August term, 1842, before the Hon. John Dean Catón and a jury. A verdict was rendered for the plaintiff for $95. A motion for a new trial was made and overruled, and judgment rendered upon the verdict. The defendant appéaled to this Court, and assigned for error the instructions given by the Court, and the refusal of the Court to grant a new trial, and to give the instructions asked for by him.

This was an action of debt by petition and summons, brought by Lane against Sharpe, on two promissory notes, dated March 20th, 1837, executed by Sharpe, and payable to Lane, in one and two years from date, respectively, in the sum of one hundred and six dollars each, with 12 per cent, interest from date. To the plaintiff’s petition, the defendant pleaded, first, that the said notes were made by the defendant without any good or valuable consideration.

<p>Error to Jo Daviess.</p> <p>The return of a sheriff to a scire facias to foreclose a mortgage, in these words: “ Executed this 20th day of April, 1839, by reading. Moses Hallett, Sheriff.” is insufficient, and will not authorize a judgment against the defendant by default.</p> <p>Before a court is authorized to render a judgment by default, it must appear clearly and affirmatively, by the return of the officer charged by law with the service of the process, that the defendant has been regularly served. The return should show the time and mode of the service, and on whom it was made.</p>

The proceedings in this cause, in the Court below, were had before the Hon. Walter B. Scates.

The proceedings in this cause, in the Court below, were had before the Hon. Samuel D. Lockwood, at the September term, 1842. The plaintiffs appealed to this Court.

This was an action of debt, instituted in the Adams Circuit Court, by Ewbanks against Ellis and Adair, on the 20th day of August, 1839.

This was an action of debt upon an appeal bond, entered into by Gregory and the other defendants, as his sureties, on an appeal from a justice of the peace to the Circuit Court of Morgan county.

<p>Appeal from Morgan.</p> <p>The Commissioners of school lands have authority to sell the sixteenth or school sections in their respective counties; and they may sell the same in town lots or other small subdivision; anda note, given in consideration of the sale of such a town lot, is founded upon a good and valid consideration.</p> <p>Semble, That under § 4 of the act of Feb. 15,1831, the trustees may lay off the school lands into lots of such size as they may deem most advantageous.</p> <p>A purchaser of school lands, from a Commissioner of schoollands, cannot object that the terms of the sale were for cash, or on a credit of twelve months, at the option of the purchaser.</p> <p>The act of 1833, allowing a credit on school lands, is not mandatory; it is only permissive.</p>