author: Trumbull, J.

text:
    Erastus Teft, appellant, v. John Size, appellee.

      •Appeal from Kane-.
    To prove the due publication of a town ordinance, the records of the corporation were produced, and the clerk was called, and the defendant offered to prove by him that he had posted up copies of said ordinance. The plaintiff objected to the testimony, and the Court excluded it on the ground that the defendant must either produce the notices, or one of them, which were originally posted, or account for their absence: Held, that the testimony was improperly excluded, its object being to establish the fact of publication, and not to prove the contents of the ordinance.
    Trespass, in the Kane Circuit Court, brought by the appellee against the appellant, and heard before the Hon. Theophilus L. Dickey and a jury, at the January special term, 1849, when a verdict and judgment were rendered for the plaintiff below for $90,
    The facts of the case, so far as the same are material to the determination of the question raised by the assignment of errors, are sufficiently stated by the Court in their Opinion.

      J. 0. Glover fy B. C. Cook, for the appellant.
    The only question raised by the assignment of errors is, whether publication of the ordinance was to be proved by the production of the posted notices, or by parol.
    The statute requires that the ordinances of a corporation, before they shall take effect, shall be published ten days, &c. Rev. Stat. 113, § 7.
    The previous steps necessary to make corporation ordinances operative will be presumed to have been taken. Phil. Ev., Cowen & Hill’s Notes, Part I. 288; ib. Part II. 1157 ; 6 Peters’ Cond. R. 444; Denning v. Roome, 6 Wend. 651.
    The original record was the best and only legal evidence of the ordinances and by-laws as posted up. Rex v. Fursey, 25 Eng. Com. Law R. 293; Regina v. Murphy, 34 do. 397;
      Brown v. Woodman, 25 do. 358; Rex v. Watson, 3 do. 349.
    The clerk was the proper person to make the copies, and therefore the most proper to prove the fact of publication.
    A party is only bound to produce the best evidence in his power. The posted copies could not be produced, for the law prohibits persons from taking them down. Rev. Stat. 175, § 137.
    The copies were posted up for the benefit of the public. Every man has a right to their evidence, and in several places they cannot be at the same time. 9 Bac. Abr. 554; 1 Starkie, 184.

      I. G. Wilson, for the appellee.
    I. The ordinances of a town incorporated under the general law in relation to incorporations are inoperative and afford no protection to a person claiming to act under them until notices of such ordinances have been posted up as required by the Statute. Rev. Stat. 113, § 7.
    II. The posting of such notices must then be proved affirmatively, or presumed.
    1. The law will not presume that the notices have been posted. The general presumption in favor of public officers having done their duty, does not obtain here. The posting of the notices was a merely voluntary act, which may or may not be done at the will of the trustees, and the omission to do which subjects them tono penalty.
    Every statute in derogation of the Common Law to create forfeitures or to divest the title of one and transfer it to another must be construed most strictly. Nothing will be presumed in favor of the regularity of the proceedings. Step by step must everything be shown to have been done which the statute makes essential to the due execution of the power. 2 Kent’s Com. 298, and note, (6,),- Sharpe v. Speir, 4 Hill’s (N. Y.) R. 76; Same v. Johnson, ib. 92; Finch v. Pinckard, 4 Scam. 70; Beaty v. Knowler, 4 Peters, 152; Van Horn’s Lessees v. Dorrance, 2 Dall. 316; Mariner v. Saunders, ante 113.

      2. It was therefore necessary to prove the due posting of the notices.
    III. The evidence by which this was sought to be done was incompetent. The general'rule which requires “the best evidence the case will admit of” made it necessary to produce the notice itself as that contained the best possible evidence of its contents. 1 Greenl. Ev. 105, §§ 82, 84.
    To this general rule there are some exceptions founded on public convenience or on the nature of the facts to be proved. Does the party show himself within any of these exceptions? Clearly not. 1 Greenl. Ev. §§ 91-4, and note. Their own evidence, on the contrary, goes to show that the original notice might have been produced by the slightest diligence.
    IV. But even had they proven the posting of the notices, it could avail nothing without proving that it was done by order of the board of trustees.
    V. The ordinance is void.
    1. The statute provides that no more than five dollars shall be impose.cLfor the breach of an ordinance. This ordinance creates an absolute forfeiture of property, although the value exceeds five dollars. Rev. Stat. 113, § 7.
    2. The ordinance is also void as being inconsistent with the Constitution and Laws. Rev. Stat. 112, § 5; State Con. Art. 8; 1 Term R. 71; 9 Wend. 571.
    3. It is void for unreasonableness. 5 Cowen, 462.
    As to different degrees of secondary evidence. 1 Greenl. Ev. in note on page 109; Mariner v. Saunders, ante 113, 121, 122.
   The Opinion of the Court was delivered by

Trumbull, J.

Teft was sued in trespass for taking certain hogs, and pleaded by way of justification that he did the acts complained of under the authority of various ordinances of the town of Elgin, declaring the running at large of swine within the corporation to be a nuisance and providing for its abatement.

The regular incorporation of the town, the election of trustees and the passage of the ordinances under which the defendant justified, were all admitted by the plaintiff in the Court below, and for the purpose of proving that the ordinances had been published in accordance with Sec. 7, Oh. 25, Rev. Stat., which provides that all ordinances, before taking effect, shall be published for at least ten days in a newspaper in the town, or by setting up copies of the same, in three of the most public places of the town, the defendant offered to prove by the clerk of the board of trustees that he had posted up copies of said ordinances.

The plaintiff objected to this evidence “on the ground that the defendant must either produce the notices, or one of them, which was originally posted or account for its absence.” The Court sustained the objection, and for want of such proof, excluded all the evidence offered by defendant to sustain his pleas of justification. The jury returned a verdict of ninety dollars for plaintiff and he had judgment accordingly.

The error complained of is, that the Court erred in excluding the evidence offered by the defendant to show that the ordinances under which he justified had been duly published.

It is insisted by the appellee that to have allowed the witness to testify to posting up copies of the ordinances would have violated the rule of evidence which forbids parol proof of the contents of a written instrument, and also have substituted secondary evidence when primary and better evidence could be obtained.

We cannot "appreciate the force of these objections, but on the contrary regard the evidence offered as appropriate and proper. The records of the corporation containing the original ordinances were produced, and an offer made to prove by the clerk of the corporation that he posted up copies of those ordinances. The contents of the ordinances was not the main fact sought to be established by the clerk ¿ they had already been proved by the production of the records of the corporation, but the main fact sought to be proved by the clerk was the publication of the ordinances, and who so proper to make that proof as the person who made the publication.

It is true the statement that the witness posted up copies of certain ordinances, involves incidentally a declaration of the contents of what was posted up, and yet it is not giving the contents of either what was posted up or the ordinances, and the jury would have no means of ascertaining from such a statement,the contents of either paper. It is simply a statement that two writings are alike, and to ascertain what either contains, one or the other must be produced when the contents of both are ascertained, not from what the witness has said, but from inspection of the instrument produced, in connection with the fact, which may be proved by parol, that the other is like it.

In this case, the original ordinances were produced, and a witness offered to prove that he posted up "copies of them. Why require the production of those copies ? If produced, they would not prove themselves to be copies, unless by inspection and comparison with the original, and it will hardly be insisted, we apprehend, that when papers are submitted to a jury as copies of other papers, no matter how voluminous, that the original and copy must both be produced, so that the jury may in their retirement examine and determine whether one is a copy of the other.

Had the notices posted up been produced, it would still have been competent to prove by a witness, that they contained copies of the original ordinances. It would make no difference when the witness instituted the comparison so as to ascertain the fact, whether at the time of testifying or previously.

The facility for detecting a false statement would be greater when the original and copy were both present at the time the witness should state them to be alike, but the likelihood to mistake on the part of the witness, the certainty of the evidence and its degree are the same whether he swears with a copy before him that it is a copy, or whether having the original in his possession he states that he made a copy of it.

It has been objected that the ordinances under which the defendant attempted to justify are void, inasmuch as they provide for impounding swine found running at large, and for their forfeiture and subsequent sale, if not claimed by the owner within a specified time, instead of inflicting a fine of not exceeding five dollars by way of penalty, for suffering them to run at large in violation of the ordinances.

The record does not present the ordinances against which this objection is urged, in such a form as to raise the question of their validity, but the power of towns incorporated under our statute to enforce their ordinances against nuisances, by reasonable forfeitures where the end cannot be otherwise attained, would seem to be unquestionable.

The judgment of the Circuit Court is reversed and the cause remanded, with directions to the Circuit Court to award a new trial.

Judgment reversed.


source: Caselaw Access Project

author: Treat, C. J.

license: Public Domain

text:
    Gerret L. Walrath, appellant, v. Hiram Norton, survivor, &c., appellee.

      Jlppeal from Kendall.

    A general receipt in full of all demands is presumed to be given on an adjustment of all transactions between the parties; but such a receipt is subject to explanation, and may, upon satisfactory proof, be restrained in its operation. It may be shown that the settlement was in fact hut a partial one, or though intended to he general, that a particular transaction was not taken into consideration.
    This suit was originally brought before a justice of the peace of Kendall County, by Norton & Blackstone for the use of John Blackstone against Walrath, and on the trial thereof, the justice rendered a judgment in favor of the defendant for costs. The plaintiffs appealed to the Circuit Court, and the cause was heard before the Hon. Theophilus L. Dickey at the February special term, 1849, without the intervention of a jury, when a judgment was rendered in favor of the plaintiffs for $59-03, damages.
    The evidence in the cause was embodied in a bill of exceptions, and was substantially as follows:
    Jacob Metzker, called by the plaintiffs, testified that some time in the spring or summer of 1847, he was in conversation with Walrath, negotiating a settlement of some dispute between them, when Walrath stated that he paid his attorneys out of the store of Norton & Blackstone, and that he, Walrath, had to pay the latter in cash. He could not recollect the precise time of this transaction, but thought it was during the latter part of June, or the first of July.
    John M. Crothers, also called by the plaintiffs, testified that some time early in the spring of 1847, Walrath, for Norton & Blackstone, placed in the hands of witness and his partner certain accounts for collection, one of about $300 against the defendant, another of $27-71 against A. R. Dodge, and a third for $31-32 against S. W. Randall; that Walrath at the time told witness that he supposed he would have to pay the two last mentioned accounts, as he owed them for professional services, and requested witness not to sue them immediately; that some time afterwards, from one to three months as witness supposes, not recollecting the precise time, Walrath exhibited to witness and his partner a writing from Norton & Blackstone, the same read in evidence on the trial,' which was in the words and figures following, to wit:
    “Messrs Crothers & Pitzer,
    Gent’n.
    Mr Walrath has paid us eighty dollars on yr acc’t. He also settled his acc’t with us for which you gave a receipt to us.
    Resp’y yours,
    10 July 18 Norton & Blackstone.”
    He further testified that at the time he and his partner received the accounts mentioned, they receipted for the account of defendant of about $300, those of Dodge.and Randall which were charged to them and not to defendant; that he had become familiar with the hand-writing of the plaintiffs, had seen one of them write, and believed that the receipt hereinafter named and filed in this case, was in the handwriting of one of the plaintiffs ; that, to the best of his recollection, the settlement between Metzker and Walrath did not take place until after the first of June, as witness was employed by the year by Metzker as his attorney and the year terminated on the first of June, and said cases were not then settled, but were before the August term of the Kendall Circuit Court for that year.
    A. R. Dodge, another of plaintiffs’ witnesses, testified that he traded in the store of Norton & Blackstone to the amount of about $27*71, and that Walrath told him that he was either selling goods on commission, or as clerk of Norton & Blackstone ; that witness was, at the same time, doing professional business as an attorney for Walrath, and was willing to take the amount of his fees out of the store aforesaid; that Walrath said he should charge the same to himself; that witness did not contract with Norton & Blackstone for said goods, and that he commenced trading with Walrath at said store about the first of December, 1846.
    S. W. Randall was also called by the plaintiffs and testified, that in 1846 and 1847 he was attorney for Walrath in some suits he had with Jacob Metzker; that he received frotó Walrath out of the store of Norton & Blackstone 531*32 towards his account against Walrath, supposing that the goods belonged to him| that some time in the spring of 1847, Mr. Pitzer, partner of the witness Crothers, called on witness and stated that he had said account, when witness told him he supposed the goods belonged to Walrath, but if Walrath did not pay for them, he supposed he should be obliged to pay for them; that he knew when the negotiation took place between Walrath and Metzker, and thought it was as early as the first part of June, and was quite confident that it was before defendant started for New York.
    The plaintiffs produced in evidence three certain papers between Metzker and Walrath, disposing of three suits between the latter, dated and filed July 26, 1847, and Randall testified that his recollection was very distinct that they were made and filed a considerable time after the .negotiation spoken of by Metzker.
    The defendant then read in evidence, after proof of its execution, the following receipt:
    “Rec’d, Lockport, 10th July, 1847, from G. L. Walrath, two hundred and twenty one dollars in full of all demands to this date.” (Signed,) Norton & Blackstone.”
    John W. Chapman, called by defendant, testified that he and defendant started for New York some time.in May, 1847, and in his opinion the negotiation spoken of by Metzker took place before they went, but was not consummated until after their return, some time in June.
    The foregoing was all the evidence in the case.

      S. TV. Randall, for the appellant,
    contended that the receipt was conclusive of a final settlement between the parties, and that the judgment of the Circuit Court was not sustained by the evidence.

      E. S. Leland, for the appellee,
    to sustain the judgment of the Circuit Court, referred to the case of Lowry v. Orr, 1 Gilm. 70, and the cases there cited.
    Where a causé is submitted to the Court below for trial, without the intervention of a jury, the decision of that Court upon the weight and effect of the evidence, will not be reversed, unless it palpably appear that the character of the testimony was misconceived. Harmon v. Thornton, 2 Scam. 351.
    The receipt was not intended to be in full. The evidence tends to show that the accounts against Randall and Dodge were not included in the settlement.
   The Opinion of the Court was delivered by

Treat, C. J.

There can be no doubt that Walrath was originally liable to Norton & Blackstone for the price of the goods sold to Dodge and Randall. The only question is, whether that liability has been discharged. The receipt was 'primafacie evidence of payment. A general receipt in full of all demands is presumed to be given on an adjustment of all transactions between the parties ; but such a receipt is subject to explanation, and may upon satisfactory proof be restrained in its operation. It may be shown thatthe settlement was in fact but a partial one, or, though intended to be general, that a particular, transaction was not taken into consideration. There are some circumstances in this case which tend strongly to show that the demand in question was not embraced in the settlement. Walrath, instead of debiting himself with the price of the goods on the books, charged them directly to Dodge and Randall. The accounts were drawn off and placed by him in the hands of attorney's for collection, and a receipt taken in the name of Norton & Blackstone. The settlement was made at a distance from the town where these transactions took place, and probably when the parties had nothing but the books and the receipt of the attorneys before them. We think it very probable that, at the time of the settlement, Norton & Blackstone knew nothing of the real circumstances respecting this demand, and therefore it was not taken into consideration by them. At all events, we are not prepared to say that the Circuit Court erred ih. coming to such a conclusion.

The judgment of the Circuit Court is affirmed with costs.

Judgment affirmed.


text:
    Abraham Stewart, appellant, v. Ralph V. M. Croes et al., appellees.

      appeal from Kane.

      A bill in Chancery to set aside a sheriff’s sale of land on execution averred, among other things, that no notice was given "by the sheriff of the sale of the land to take place upon the day it was sold, and that the land was bid off' for an inconsiderable sum by'the attorney of the plaintiff in execution. The attorney only was served with process, who appeared and filed a demurrer to the bill for want of equity, which was sustained: field, that the demurrer admitted the allegation that no notice was given;; that the attorney, being the purchaser, was chargeable with notice of the sheriff’s proceedings, and that, therefore, the demurrer should have been overruled.
    In a bill to set aside a sheriff’s sale on execution of land en masse when the same was susceptible of a division, the value of the land at the time of the sale should be alleged.

      A bill in Chancery to set aside a sheriff’s sale of land on execution averred, among other things, that the sheriff failed to return the execution and to file a certificate of sale with the recorder: Held, that these irregularities, though violations of duty on ,the part of the sheriff, were not such as to affect .the validity of the sale.
    Bill in Chancery to set aside a sheriff’s sale .of land on execution, &c. filed by the appellant against the appellees, in the Kane Circuit Court, and heard before the Hon. John D. Catón, at the August term, 1847, upon a demurrer to the bill for want of equity, when the demurrer was sustained and the bill dismissed.
    The material allegations of the bill are set forth in the Opinion of the Court.

      B. F. Fridley, for the appellant,
    stated the allegations of the bill, and contended that the irregularities complained of were sufficient to vacate the sale. In support of his position, he cited Day v. Graham, 1 Gilm. 441; Graham v. Day, 4 do. 389; Goff v. Jones, 6 Wend. 522; Read v. Carter, 3 Blackf. 376; Tiernan v. Wilson, 6 Johns. Ch. R. 411, and the cases there cited; Rev. Stat. 302, § 10.

      E. Peck, for the appellees,
    insisted that there was no sufficient allegation in the bill that the land was susceptible of division, and as to the other matters alleged as irregularities, the purchaser was protected by the proviso of the Statute. Rev. Stat. 302, § 11.
   The Opinion of the Court was delivered by

Trumbull, J.

Stewart, on the 19th of July, 1847, filed his bill in Chancery against Jesse T. Dutcher and R. V. M. Croes,settingforththat Dutcher, at the April term, 1845, of the Circuit Court of Kane county, recovered a judgment against him for twenty one dollars and ninety three cents debt, and costs of suit amounting to five dollars and fifty six cents ; that execution issued upon said judgment, and was levied by the Sheriff of Kane county upon a tract of land belonging to complainant, and containing fifty seven acres and seventeen hundredths of an acre, described by metes and bounds ; that said land was sold en masse, December 13, 1845, to Croes, who was the attorney for Dutcher, for thirty three dollars and fifty cents; that it lay within a short distance of the village of St. Charles, was susceptible of division, well improved, and of the value of at least $1,000 at the time of filing the bill; that the Sheriff had been guilty of various irregularities in the sale of the land, such as a failure to return the execution or to file a certificate of sale with the recorder; that no notice was given of the sale on the day it took place; that complainant resided in McHenry county at the time the judgment was obtained against him, and until some time after the sale of the land; that in June, 1845, he sent the money by one Thomas Stewart to pay the full amount of the judgment and costs, and supposed they were paid till long afterwards; that he had no knowledge of the sale to Croes till after the time for redeeming from the sale had expired, and that he had offered to pay him the amount of his bid and interest, and ten dollars besides, if he would release his claim upon the land; but Croes refused to surrender his claim, and threatened to eject complainant from the land. The prayer of the bill is to have the sale set asid.e

The defendant, Croes, who alone was served with process, demurred to the bill for want of equity, and the Circuit Court sustained the demurrer, and dismissed the bill, which is the error complained of.

The demurrer admits the allegations of the bill, one of which is that no notice was given of the sale of said land to take place on the day it was sold. The attorney of the plaintiff in execution being the purchaser, he is chargeable with notice of the Sheriff’s proceedings, and, consequently, does not come within that provision of the statute, (Rev. Stat. 302, § 11,) which makes valid all sales, notwithstanding any irregularity of the Sheriff in cases where the purchaser has no notice of such irregularity. Day v. Graham, 1 Gilm. 441.

It being admitted that the sale was made without notice, and to a purchaser in contemplation of law, cognizant of the fact, the complainant had a right to have it set aside, and the demurrer should have been overruled.

The other irregularities complained of, although violations of duty on the part of the Sheriff, are not such as to affect the validity of the sale. Had there been an allegation that the land was worth $1,000 at the time of sale instead of at the time of filing the bill, such allegation in< connection with the other statements in the bill would have presented a clear case for the intervention of a Court of Equity, for it would never be allowable for an officer to sell, era masse, a tract of land worth $1,000 to satisfy an execution for less than thirty dollars, when the tract was susceptible of division, and the sale of a small part would have satisfied the debt.

The decree of the Circuit Court is reversed, and the cause remanded for further proceedings in accordance with this Opinion.

Decree reversed.


text:
    Edward F. Dutcher, plaintiff in error, v. Moses T. Crowell, defendant in error.

      Error to Ogle.
    An attachment in aid of a suit at law may issue at any time, under the provisions of the thirtieth section of the ninth chapter of the Revised Statutes.
    The word “termin the thirtieth section of the Attachment Act of 1833 was a misprint, the word in the original law on file being “time.” The Legislature in the revision of the Statutes in 1845, without doubt, intended to continue in force the provisions of that section with the known construction which had been given it.
    Attachment in aid of a suit at law, sued out by the present plaintiff in error against the defendant in error in vacation.
    At the May term, 1849, of the Oglfe Circuit Court, the Hon. Hugh Henderson of the eleventh Judicial Circuit presiding, the cause coming on to be heard, the writ of attachment was quashed, because it was applied for and issued in vacation.

      J. 0. Glover Sc B. C. Cook, for the plaintiff in error.
    But a single question is presented by the record in this case. Did the Court err in quashing the writ of attachment P
    In the Revised Laws of 1833, the word “time” in the thirtieth section of the Attachment Act was misprinted “term” as appeared by an inspection of the original draft on file in the office of the Secretary of State. Beecher v. James, 2 Scam. 462.
    The Legislature, in the Revised Statutes of 1845, did not intend to change the law.
    A mere change of phraseology in a revision of the statute will not be deemed to alter the law, unless it evidently' appears that such was the intention of the Legislature. Ex parte Brown, 21 Wend. 316; Jackson v. Collins, 3 Cowen, 89; Yates’ case, 4 Johns. 359; The People v. Utica Ins.
      Co. 15 do. 381; Crocker v. Crane, 21 Wend. 211; In re Theriat v. Hart, 2 Hill’s (N. Y.) R. 380; Taylor v. Delancy, 2 Cai. Cas. Er. 143, 151.
    The intention of the makers of á statute is sometimes to be collected from the cause or necessity of making the statute ; at other times from circumstances. Whenever this^ can be discovered, it ought to be followed with reason and discretion, although such construction seem contrary to the letter of the statute. 9 Bac. Abr. 246 ; Crocker v. Crane, 21 Wend. 211; Jackson v. Collins, 3 Cowen, 89; The People v. Utica Ins. Co. 15 Johns. 380.
    When great inconvenience will result from a particular construction, that construction is to be avoided unless the meaning of the law is plain. 2 Cranch, 386 ; 9 Bac. Abr. 240.
    When the words of a statute are not precise and clear, the construction best adapted to accomplish the objects of the statute will be adopted. Snell v. Bridgewater Cotton Gin Man. Co. 24 Pick. 296.
    If a thing contained in a subsequent statute be within the reason of a former statute, it shall be taken to be within the meaning of that statute. 9 Bac. Abr. 244, and cases there cited.
    Such construction ought to be put upon a statute as may best answer the intention which the makers had in view, for qui hseret in litera hseret in cortice. 9 Bac. Abr. 246.
    A remedial statute should be liberally construed. 9 Bac. Abr. 257, and cases there cited.
    0. Peters, for the defendant in error.
    The word “form” used in the 30th section of the Attachment Act, (Rev. Stat. 70,) has a fixed, legal signification. As applied to Courts, it means that time during which the Court is held open for the trial of causes. Webster’s Dictionary, word “Term.” This matter was discussed in the case of Bestor v. Powell, 2 Gilm. 119, and it was not contended that such is the proper meaning of the word, as applied to the Courts and legal proceedings.

      On the other side, they rely on the case of Beecher v, James, 2 Scam. 462, to show that this section is to have the same construction as if the word “ferae” had been used. The case falls far short of justifying any such conclusion. The Court stated the fact that there had been a misprint, and that the word “ferae” and not “ferra” was used in the Act when it passed the Legislature. We do not deny that the original law had the word “ferae,” when the printed copy had “form.” Not so1 with the Revised Statutes. I have caused the Secretary of Statens office to be inspected, and it is found that the word “ferra” is used in the Act as it passed the Legislature, and as found in the present Revised Statutes. The law, then, as it is at the present time, in terms, only authorizes attachments in aid of a suit at law commenced by summons to be sued out during the term of the Court. But it is said it will be inconvenient to restrict this remedy to such narrow limits. It is a sufficient answer to this to say, that it is not the business of this Court to inquire into the propriety of the enactment, but merely what the enactment is. If the Legislature, in re-enacting the provisions of this section, changed any of its phraseology, this Court will presume it had sufficient reason to do so. The other side contends that it was a mistake of this Legislature. This doctrine will never do to act upon in giving a construction to statutes. It would be disrespectful to a coordinate and independent department of the government, to impute such a mistake. The Legislature must be understood to mean what it says, when its enactments are expressed, as in this case, in clear, unequivocal language. But suppose it to be a mistake, whose business is it to correct it? Not the Courts, surely; but the Legislature itself.
    The argument ah inconvenientia has been pressed upon the Court. Such an argument may do in cases of doubtful meaning of the law, but never when the language is not doubtful in its import. It is said there is no good reason for limiting the suing out of the process to the term of the Court. The same argument might, with the same force, be applied to the 38th section of the Revised Statutes, 307, that there is no reason why a garnishee process should he sued out on the return of nulla bona only in “ term ” time; and yet it would hardly he insisted that the provision of the law should receive such a construction. It is insisted, too, that the word “ term, ” in the 30th section, shall be construed tornean “time,” because there is no good reason why an attachment in the case provided for should not be sued out in vacation as well as in “term” time. Such a construction would be an entire perversion of the meaning of language. I have already shown what is the meaning of the word “term.” The Court is now gravely asked solemnly to adjudicate that that the word “term” does not not mean the time during which the Court is holden, but something else; that term means time, that time means vacation. It might as well be said that vacation means term.
    We ask the Court to construe the language of the statute according to its true and legal import, and not to attempt to reform legislation, and to correct the supposed mistakes of the Legislature.
   The Opinion of the Court was delivered by

Treat, C. J.

Dutcher commenced an action oí assumpsit against Crowell, and subsequently sued out an attachment in aid thereof. The Circuit Court dismissed the attachment because it was issued in vacation. The propriety of that decision is the only question in the case. The attachment was sued out under the provisions of the 30th section of the 9th chapter of the Revised Statutes, which section is a literal transcript of the 30th section of the Attachment Act of 1833. Under the latter section, this Court held in the case of Beecher v. James, 2 Scam. 462, that process of this character might issue in vacation — it appearing, on examination, that the word printed “term” in the statute book was “time” in the original law on file in the office of the Secretary of State. We entertain no doubt that the Legislature intended to re-enact and continue in force the provisions of this section with the known construction which had been given it; but that in the haste of a legislative revision, the printed copy and not the original law was consulted and used. In this way, the phraseology of the section was retained without any design to change its legal effect. We cannot for a moment suppose that the Legislature ever intended to restrict the issuing of this process to the time embraced by the semiannual sessions of the Circuit Courts. There is as much necessity for this remedy in vacation as in term time, and no good reason why it may not be resorted to at the one time as the other. The Court has nothing to do with the issuing of the process, but it is issued by the clerk as the process in all ordinary actions. If required to be issued during the sitting of the Court, it would be because some action of the Court was necessary before its emanation.

The judgment of the Circuit Court is reversed with costs3 and the cause remanded for further proceedings.

Judgment reversed.


author: Caton, J.

text:
    Guy C. Bayley, appellant, v. Legrand Wynkoop, appellee.

      oAppeal f rom, Lee. .
    A debtor has the right, at the time of making a payment, to direct its application. If he fail to do this, then the same right devolves upon the creditor subject certain exceptions and limitations.
    The application of a payment by either party may be proved as well by circumstances as by express declarations.
    Where neither a debtor or creditor makes a specific application of a payment, the law will apply it as justice and fair dealing may dictate.
    This was an action originally brought before a justice of the peace of Lee county by the present appellee against the appellant, who rendered a judgment for the plaintiff below for $77. The defendant appealed to the Circuit Court.
    The cause was heard in the Circuit Court at the April term, 1848, before the Hon. Thomas C. Browne and a jury, when a verdict and judgment were rendered for the plaintiff for $76*52. On the trial, it was proved that the defendant had paid the plaintiff the sum of fifty dollars through a third person, after the account on which the suit was brought accrued. The defendant, having been sworn as a witness, testified that when this payment was made, he gave no direction as to its application, but that he intended it to apply to the account. It was further proved that defendant owed Wynkoop & Kennedy, on which debt he had made payments both before and after the time the payment aforesaid was made. It was also proved that defendant had fully paid the partnership account before this suit was commenced; that no settlement, however, had been made, and that he was in the habit of paying the firm on orders drawn by them on him ; and that, after the payment first mentioned, he paid the firm several amounts and upwards of three hundred dollars thereof to Kennedy.
    The foregoing was, in substance, the testimony offered on the trial. °

      J. 0. Glover <$j* B. C. Cook, for the appellant.
    The application of a payment either by debtor or creditor may be proven by circumstances as well as by words. Howland, adm’r. v. Rench, 7 Blackf. 236.
    The creditor may apply the payment to whatever debt he thinks proper, unless there are circumstances which would render the exercise of such discretion unreasonable and enable him to work injustice to his debtor. Arnold v. Johnson, 1 Scam. 196.
    When a payment is made to the holder of two notes against the person paying sufficient to extinguish one of them, bringing suit upon the other is an election to appropriate the payment to the discharge of the former. 2 U. S. Dig. 513.
    If one member of a firm make a payment to a person who has an account against him, and also against the firm, the creditor must apply the payment to the individual account. 2 U. S; Dig. 612..

      E'. S. Leland, for the appellee.
   The Opinion of the Court was delivered by

Caton, J.

Upon the trial below, the plaintiff proved as demand against the defendant for ninety four dollars and rested. The defendant then proved an undisputed set off to the amount of $17-48. He also proved a payment to the plaintiff of fifty dollars", after the account accrued. The defendant was then sworn as a witness who testified, that at the time he paid the said sum of fifty dollars he gave no direction as- to its application. It also appeared that the plaintiff and one Kennedy, as partners, had, prior to the date sf the plaintiff’s individual account, a demand against the defendant for work, &c., on which the defendanthad made sundry payments, both before and after the payment of the fifty dollars. In making payments on the partnership accounts, he had sometimes paid on the individual order of one partner and sometimes of the other. It was further proved by the testimony of the defendant, that he had paid the full amount of the partnership debt before the commencement of this suit, independently of the said sum of fifty dollars, but that no settlement had been made between the defendant and the co-partners. Of five hundred dollars which the defendant paid to the co-partners, he paid about three hundred dollars 4o Kennedy. Upon this evidence the jury returned a verdict for the plaintiff for seventy six dollars and fifty two cents. The Court overruled a motion for a new trial to which the defendant excepted.

It is unnecessary now to go into an extended examination of ail of the rules of law governing the application of a payment of money made by a debtor to his creditor holding two demands, upon either of which the payment might be applied. Although upon many of the questions involved in this subject, the authorities are contradictory, and the rules still uncertain, ylfc, so far as they are necessary for the decision of this case, they are clearly defined, and well understood. The debtor has the right at the time he makes the payment, to apply it to which ever debt he pleases. If he fails to do this, then the same right devolves upon the creditor, subject however to certain exceptions and limitations, which it is unnecessary to examine now; nor is it material to inquire whether the creditor must exercise this right immediately, or may do it at any time afterwards, as has heen held in some cases. 9 Cowen, 435; 4 Cranch, 317. The appropriation by either party may be proved as well by circumstances as by express declarations. 2 Greenl. Ev. § 530; Seymour v. Von Slyck, 8 Wend. 403. In case neither party makes the specific application, then the law will apply it as justice and fan-dealing may dictate. 2 Greenl. Ev. § 533. In this case the only question is, whether the defendant was entitled to a credit- for the fifty dollars paid by him to the plaintiff. There is no direct evidence showing that either party made any specific application of that payment, either at the time it was made, or at any subsequent period. The fact however, that, subsequent to this payment the defendant paid all that was due to the co-partnership of Wynkoop & Kennedy, not including the fifty dollars, and that they received such payment without having credited him with the fifty dollars, tends to show that neither party supposed that that payment was properly applicable to the partnership debt. This inference however is weakened, when we remember that this partnership debt was paid at different times, sometimes to one partner and sometimes to the other, and that no settlement or accounting had taken place between the parties, of the partnership debt. But we are of opinion the law should make the same application of this payment, which the circumstance alluded to tends to show that the parties had made themselves. There can hardly be two opinions as to what justice and fair dealing would dictate. As the case now stands the plaintiff has received from the defendant fifty dollars more than he has credit for. After he has paid the whole of the partnership debt and fifty dollars, which he supposed would, as a matter of course, go in extinguishment of the individual debt, it seems very unjust to allow the very man who has once received the money to recover it over again. The proposition will hardly bear argument. We are satisfied the jury must have misunderstood the law as applicable to the facts as proved, and that the case should be submitted to another jury.

The judgment of the Circuit Court is reversed and the cause remanded.

Judgment reversed.


text:
    Joshua Evans, appellant, v. William Fisher et al., appellees.

      Appeal from Marshall.

    A bill of exceptions should be reduced to form, and signed during the term in which the cause is tried, except in cases where counsel consent, or the Judge by an entry on the record directs, that it may be prepared in vacation, and signed nunc pro tunc. In all cases, it should appear on its face to have been taken and signed at the trial.
    Where counsel consent that the bill of exceptions may be settled out of term, the better practice is to preserve the evidence of the agreement by the filing of a written stipulation, or by an entry on the records of the Court.
    The counsel for the appellees in this case entered a motion, founded upon affidavits filed by him, to strike the bill of exceptions from the files of the Court.
    Those affidavits set forth that no bill of exceptions was filed in the Court below during the term at which the trial took place; that there was a verbal agreement between counsel that the bill of exceptions should be submitted to the counsel of the appellees at the next term of the Putnam Circuit Court, to be held during the ensuing week, and after being so submitted, it was to be signed by the Judge; that, in consequence of the illness of the Judge, the anticipated term of Court was not held, and no bill of exceptions was then submitted to counsel; that the counsel of appellees heard nothing further in relation to the bill, until informed by the Circuit Clerk some weeks after that the bill had been filed in his office; and that the bill did not set forth all the evidence heard on the trial, but that material testimony (stating it,) was omitted.
    It appeared by an affidavit filed by counsel for appellant, that, according to the understanding of the affiant, the bill of exceptions was prepared, presented to and signed by the Judge within the time stipulated.; that the affiant did not understand that it was to be submitted to counsel, though it was expected that counsel would meet at the said term of the Putnam Circuit Court, which the Judge was prevented from attending on account of illness ; that the bill was prepared from written notes of the testimony in the cause, and was, as affiant believed, true and correct.

      0. Peters, in support of the motion,
    contended that by the twenty first section of the Practice Act, (Rev. Stat. 416,) a bill of exceptions must be taken during the trial, and the judge had no authority to allow one out of term. Our statute is substantially like the statute of Westminster, 2 13 Edw. 1, ch. 32; 1 Bac. Abr. Tit. Bills of Exceptions. He also referred to Agnew v. Campbell, 2 Harr. (N. J.) R. 183; Wilson v. Moore, 4 do. 186; Shepherd v. White, 3 Cowen, 32.
    This Court has disapproved of the practice of signing bills of exceptions out of term. Buckmaster v. Beames, 4 Gilm. 443.
    The question as to the construction of our statute was not distinctly presented to the Court in that case, yet this is a' strong reprobation of the practice that has prevailed, of taking bills of exceptions out of term.
    The language of our Practice Act is too plain to admit of doubt, that the exception to the decision of the Court is to be taken “during the progress of the trial.” It cannot have any reference to any time after the term.
    Though this be the true construction of the Act, we do not contend but the parties may waive it, and, by agreement, have the bill of exceptions completed, signed and sealed by th'fe Judge out of term. But when an agreement of this kind is made, the agreement must be adhered to by the parties, and the bill of exceptions must be made and completed according to the agreement. In this case, the agreement was not complied with. The counsel for the plaintiffs below were to have an opportunity to see it and correct any errors, and have the Judge settle any difference that might exist between the counsel of the parties.
    [Catón, J. here observed : It is proper that I should state that I was sick at the time this bill was signed; that my term of office was about to expire, and it was deemed necessary to have it completed before I went out of office; and when it was done, the counsel for the defendant below stated that the bill should be open for correction if there xvas any error in it, and that he would notify the counsel on the other side.]
    We contend this does not help the matter. No such motion was given, and the counsel were not aware of any such arrangement; so that neither the agreement of the parties, nor the stipulation of the counsel on the other side has been complied with. It is hoped that this Court xvill now adopt some rule that shall effectually correct the loose and improper practice that has hitherto prevailed on this subject. If parties will agree to haxre bills of exceptions taken out of term, they ought to be required to make their stipulations in Court, so that they may be entered of record, or reduce them to writing and sign them, and let them be placed on the files of the Court. This rule will save much misunderstanding, and often prevent injustice.

      T. L. Dickey, for the appellant, resisted the motion.
    It has been the practice in the Circuit Court for years to settle bills of exceptions in vacation — a matter of discretion with the Court, as is said in the case cited from 4 Gilm.
    The case cited from 4 Harr, goes to sustain the bill of exceptions in the present case.

      B. C. Cook,

    upon the same side, said that in the cases referred to, the practice was different from ours; that the question could not be raised here, whether the bill is properly a part of the record, it appearing to have been signed and sealed by the Judge, and filed. The statute expressly makes it a part of the record when so signed, sealed and filed with the clerk.
   The Opinion of the Court was delivered by

Treat, C. J.

A bill of exceptions should be reduced to form and signed during the term in which the cause is tried, except in cases' where counsel consent, or th A Judge, by an entry on the record, directs, that it may be prepared in vacation and signed nunc pro tunc. And in all cases it should appear on its face to have been taken and signed at the trial. Walton v. U. States, 9 Wheat. 651; ex parte Bradstreet, 4 Peters, 107; Law v. Merrills, 6 Wend. 268. Where counsel consent that the bill of exceptions may be settled out of term, the better practice is to preserve the evidence of the agreement by the filing of a written stipulation, or by an entry on the records of the Court. The present case illustrates the propriety of such a practice. While the counsel all admit that the bill of exceptions was •to be prepared in vacation, they differ as to some of the terms of the agreement. If the agreement had been reduced to writing, or spread on the records of the Court, there would now be no difficulty in determining whether the bill of exceptions was properly made a part of the record of the case. As it is, we cannot ascertain with any degree of certainty what were the real terms of the agreement. The counsel probably misunderstood each other as to the mode of settling the bill of exceptions, and the sickness of the Judge prevented it from being perfected within the time prescribed. Under these circumstances, we are not disposed to say that the agreement was substantially violated, and therefore refuse to exclude the bill of exceptions from the record.

Motion denied.


text:
    Lewis Woodruff, appellant, v. William A. Tyler, for the use, &c., appellee.

      ^Appealfrom Stephenson.

    The refusal of the Circuit Court to set aside a default on motion cannot he assigned for error.
    Assumpsit, in the Stephenson Circuit Court, brought by the appellee against the appellant.
    At the April term, 1848, the Hon. Thomas C. Browne presiding, on motion of the plaintiff’s attorney, the defendant was required to plead on the morning of the day succeeding that on which the motion was made.
    At the August term, 1848, a default was entered against the defendant, on motion of plaintiff’s attorney for want of a plea. The defendant, when called, appeared by attorney, and asked leave of the Court to file a plea instanter, which the Court denied, and rendered a judgment for the plaintiff for S109'75. ■ The defendant then filed a motion to set aside the default and judgment and for leave to plead in said cause, and in support of his said motion filed the following affidavit:

      tc State of Illinois, ) Of the August term of Stephenson Stephenson County, $ ' County Circuit Court, A. D. 1848.
    William A. Tyler, for the use of James C. Wright, u. Lewis Woodruff.
    S. B. Farwell, being by me first duly sworn according to law, deposes and says that he was employed by the defendant herein to defend said cause, and, at the last term of this Court, Thomas F. Goodhue, one of the attorneys for the plaintiff in this cause, offered a motion for a rule to the defendant to file his plea by a certain day of that term, and that this affiant, as the attorney for the said defendant, then and there proposed to the said Goodhue, in order to save costs to the parties litigant herein, to draw up a written statement of the case and submit them to the Court upon the questions of law involved in the case, and to abide the decision of the Court in the same, and to waive the filing of pleas by the defendant, and that this affiant understood the said Goodhue, at the time and afterwards, expressly to agree to said proposition, made as aforesaid by this affiant; and that this affiant reposed full confidence in the agreement of the said Goodhue, and that it would be carried out in good faith, and in consequence thereof, this affiant did not know, until the sitting of the present term of this Court, that any rule had been entered for a plea in said cause. And that this affiant has been informed and believes, that the said defendant has a full and complete defence to the said claim of the said plaintiff, and that said defence consists in this, that said note, upon which said suit is brought, has been paid and fully satisfied.
    (Signed,.)
    ‘S. B. Farwell. ”
    Sworn to and subscribed before me this 16th Aug. 1848. John A. Clark, Cl’k.”
    The Court overruled the motion, and the defendant excepted.

      J. C. Champlin, for the appellant.
    The only question in this case is, whether that which is alleged as error was a matter within the discretion of the Court. We think it was not. The defendant was in Court, and by attorney, asked leave to plead inslanter. He should have been allowed to plead. Jtev. Stat. 415, § 13^

      E. S. Leland, for the appellee.
    The setting aside of the default was a matter within the . discretion of the Court, (Rev. Stat. 415, § 16,) and cannot be assigned for error. Wallace v. Jerome, 1 Scam. 524.
   The Opinion of the Court was delivered by

Caton, J.

In this case we are again called upon to review a decision of the Circuit Court overruling a motion to set aside a-default. That such decision cannot be assigned for error has been so often decided by this Court that it is unnecessary to discuss the question again. And since the decision of Wallace v. Jerome, 1 Scam. 524, it can hardly be expected that any case of hardship will ever form an exception to the rule. This was the only exception taken in the Circuit Court and the only question presented by the record.

The judgment is affirmed with costs.

Judgment affirmed.


text:
    Amos Norton et al., appellants, v. Marcus F. Dow et al., appellees.

      Appeal from Cook.

    A writ which issues from the Circuit Court is required ty statute to he tested in the name of the cleric of that Court. If not properly tested, it may on motion be amended. »
    A writ of attachment was issued and tested in the name of the Circuit Judge. At the return term, an attorney, on behalf of the defendants, meved to quash the attachment because of the insufficiency of the a (I davit on which it was based. The plaintiffs obtained leave to amend, the defendants were defaulted, and the plaintiff’s damages were then assessed. The same attorney then ■again appeared and entered amotion in arrest of judgment, which motion was overruled, and judgment entered upon the assessment of damrees : Held, that the attorney, in appearing for the purpose of qnrshirg the attachment, should have, urged all the objections he had intended to male in support of his motion, and in omitting to raise other objections, he must he considered as having waived them.
    Substantial justice and a fair practice seem alike to require a party, who objects to a particular step in the progress of a cause, to take sli of the objections which can be reached by his motion, and removed by amendment. Omitting to do so, he will be considered as having waived these not raised.
    Attachment, in the Cook Circuit Court, brought by the appellees against the appellants. The writ was tested in the name of the Circuit Judge.

      At the June term, 1848, Ralph V. M. Croes, an attorney of the Court, appeared and moved the Court to quash the writ of attachment issued in the cause, for the insufficiency of the affidavit, when a cross motion for leave to amend was interposed and allowed.
    On the next day, no one answering for the defendants, their default was entered, damages were assessed, and a judgment then rendered by the Court, the Hon. Jesse B. Thomas presiding, in favor of the plaintiffs for $466-33.
    The same attorney, on the part of the defendants, then moved in arrest of judgment, and subsequently argument having been made upon the motion, it was overruled, and judgment rendered upon the assessment. The defendants then entered an appeal.

      E. Peck> for the appellants.
    The writ of attachment should have been tested in the name of the clerk of the Circuit Court, not in the name of the Judge of that Court. Rev. Stat. 413, § 1; Ibid. 63, § 2.

      J. M. Wilson, for the appellees.
    The defects, if any, are mere clerical errors, which the party waived by appearance in the Circuit Court, and making no objection there. Rev. Stat. 65, § 8; Easton v. Altum, 1 Scam. 250; Beecher v. James, 2 do. 462.
    The Court had jurisdiction of the subject matter of the suit, and of the parties by their appearance and making other objections in the case.

      Peck, in reply.
    The appearance was not a full appearance, but for a special purpose which is allowable in practice. The party should then have corrected all errors in the process.
   The Opinion of the Court was delivered by

Treat, C. J.

This was a proceeding by attachment. The writ was tested in the name of the Circuit Judge. The defendants were regularly notified of the pendency of the suit, and at the return term, an attorney on their behalf moved to quash the attachment because of the insufficiency of the . affidavit on which it was based. The plaintiffs obtained leave to amend the affidavit, and thus obviated the objection. The defendants were then defaulted, and the plaintiffs’ damages assessed} when the same attorney again appeared and entered a motion in arrest of judgment. The Court refused the motion, and rendered judgment on the assessment.

The only objection now taken to the regularity of the proceedings relates to the test of the writ of attachment. The writ is required to be tested in the name of the clerk of the Court out of which it issues. Rev. Stat. Ch. 9, § 2. The writ, however defective, may be amended. Rev. Stat. Ch. 9, § 8. We are not inclined to regard the acts of the attorney as amounting to a full appearance to the action, but only as an appearance for the purpose of quashing the attachment. In appearing for that purpose and interposing the motion, we think he should have made all of the objections he designed to urge, and which could have been urged in support of the motion; and omitting to raise this particular objection, he must be considered as having waived it. It was but a technical objection, apparent on the face of the process, and, if insisted on, would no doubt like the other objection have been instantly obviated by an amendment. Substantial justice and a fair practice seem alike to require a party, who objects to a particular step in the progress of a cause, to take all of the objections which can be reached by the motion and which can be removed by amendment at the same time, so as to afford his adversary the opportunity of avoiding them. He must be understood as waiving all those he does not thus insist upon.

The judgment of the Circuit Court is affirmed with costs.

Judgment affirmed.


text:
    Albert G. Curtenius et al., appellants, v. William Wheeler et al., appellees.

      appeal from Stark.

    In an- action upon two- promissory notes by the assignees therfeof against the maker, the defendants introduced evidence tending to-show a failure of consideration, when the plaintiffs offered as a witness a person who had executed a mortgage of his real estate-to said-assignees to secure a debt due from the payees of the notes to the assignees, for which debt the notes in said suit were assigned to the plaintiffs as collateral security. The defendants objected to his introduction on the ground- that he was interested in the event of the suit. The witness stated that he was interested in no other way. He was not permitted to testify : Held, that the witness was competent..
    It is well settled, as a general rule, that to disqualify a witness froth testifying on the ground of interest, he must have some certain, legal and immediate interest in the result of the cause, or in the record.

      Semble, that a witness is never disqualified from testifying on account of interest in the result of a suit, when the extent of his own liability or claim is- previously fixed and certain, and- a judgment either way would'not directly and certainly increase or diminish that liability or claim.
    Assumpsit, in the Stark Circuit Court, by the appellants against the appellees, and heard before the Hon. John D. Caten and a jury, at the October term, 1848, when a verdict and judgment were rendered for the defendants.
    The facts, so far as they are material to the determination of this case, are stated in the Opinion of the Court.

      J. Manning, fiy the appellants, filed the following brief.
    I. The witness, White, rejected as incompetent on the ground of interest, was a competent witness for the plaintiff below.
    1. He had given security for the payment of the debt, for the security of which the notes in suit had also been assigned to the plaintiffs. The undertaking of the witness was that the payees of the notes should pay their debt, and not'that their debt should be paid by the notes in suit." The witness had no direct and certain interest in the event of the suit, which was necessary to justify his exclusion. Carter v. Pearce, 1 T. R. 163; Day v. Green, Hardin, 117; Stewart v. Kipp, 5 Johns. 256; 7 Mass. 25.

      2. The true test off the interest is, “will the witness gain or lose by the event, or will the record be admissible in evidence for or against him?” 1 Greenl. Ev. 491, § 390. Now, in this case, the witness would not gain by a judgment in favor of the plaintiffs. Such judgment would not discharge him from liability. His liability is independent of this judgment or the security of these notes, and that liability is not decreased by the obtaining of the judgment. His interest is too remote and contingent to affect his competency. The record would not be evidence to dis= charge his liability. The payment of the original debt by his principals, whether by means of these notes or otherwise, alone discharges his liability. If it were shown that his principals had no other means except the notes in suit to pay the original debt,-a different question might be presented, but the Court will not presume this in the absence of proof, and therefore the interest is too uncertain to affect the competency of the witness.
    II. If the witne.ss were interested in the suit, he had recourse on his principals, the Thoma®, and therefore his interest was equally balanced. Gregory v. Dodge, 14 Wend. 604; Lake v. Auburn, 17 Wend. 18; Gregory v. Dodge, 4 Paige, 558; Martineau v. Woodland, 12 Eng. Com. Law R. 453; Banks v. Kain, 12 do. 753; Benedict v. Hickox, 18 Wend. 503.
    III. At most, the witness offered was merely a security for the indorsers, and if in that case his principals would have been competent, a fortiori would the proposed witness ? Jordain v. Lashbrook, 7 T. R. 601; Shuttleworth v. Stephens, 1 Camp. 408; Stephens v. Lynch, 2 Camp. 332; Richardson v. Allen, 2 Starkie’s R. 344; Dickinson v. Prentice, 4 Espinasse, 52; Barber v. Gingell, 3 do. 62; 3 Wend. 415; 5 Cowen, 23; Thayer v. Grossman, 1 Metc. 416; Strong v. Buck, 11 do. 279.
    O. Peters, also for the appellants,
    insisted that White was a competent witness for the plaintiffs. The mortgage which he gave to the plaintiffs was not given to secure the payment of the notes in suit in this action, but to secure the indebtedness of the Thomases (the payees of the notes) to the plaintiffs, and the notes were holden by the plaintiffs as security for the same debt; so that the plaintiffs were, at most, the trustees of these payees. White’s undertaking, therefore, was not that he would pay the notes in suit, but that he would pay another debt from these payees to the plaintiffs. Thus the interest of the witness was too remote, contingent and uncertain to justify his exclusion. To render him incompetent on the ground of interest, it is necessary that he be directly interested, and liable in all events if the plaintiffs fail in their suit. 1 Greenl. Ev. § 408; Day v. Green, Hardin, 117.
    1. The true test of the competency of a witness generally is, will he gain or lose by the event of the suit ? 1 Greenl. Ev. 491, § 390. White will not gain by a judgment in favor of the plaintiffs, for his liability will remain independent of the judgment, or of the security furnished by the pledge of these notes. That liability is not affected by a recovery of a judgment by the plaintiffs. If the plaintiffs should succeed in collecting their judgment the money received by them would, pro tanto, discharge the mortgage, because it would go in discharge of the debt of the Thomases to them. But they may never collect the judgment if recovered. They may resort at once to this mortgage, or to their original security of the Thomases. The liability of this witness then rests upon a contingency depending Upon other contingencies.
    2. But if, in any sense, the witness is interested, that interest is balanced. Gregory v. Dodge, 14 Wend. 593, 604; Lake v. Auburn, 17 do. 558; Benedict v. Hickox, 18 do. 503. See, also, Walton v. Shelby, 5 T. R. 276, and full discussions of the principles of that case and others following that decision in Story v. Beech, 11 Metc. 279; 2 Cowen’s Treat. 964, 967.
    It might be proper to urge the interest of this witness, and his relations to the parties, upon the consideration of a jury; but it would be a violation of principle to hold him incompetent. The tendency of the decisions in more modern times is to enlarge the rule of competency of witnesses, and if their interest is not direct, to permit them to testify, and leave it to the jury to judge of their credibility. This is a better rule and better subserves the purposes of justice.
    As to the record in this case, we are unable to see how, in any event, it can be used as evidence for or against this witness. He is only liable on his mortgage, and according to its terms. If the plaintiffs recover a judgment against White & Putnam, that is not a discharge of the mortgage. • If they collect the amount of the judgment, they must apply it to the debt against the Thomases 5 but the record of the judgment can, in no event, be evidence of such payment.
    JV. II. Purple, for the appellees.
    The witness was interested to reduce the amount of his liability to the plaintiffs, and therefore incompetent. The notes in suit were given as collateral security for the same debt, and if the plaintiffs recovered and collected them, the witness’ liability would be reduced.
    It is no answer that he still may have a claim against the principal debtors. It would be the same In cases of bail and all securities.
    If an indorser may be a witness, it is because his liability in all events will still remain the same. Stacy v. Baker, 1 Scam. 422; Webster v. Vickers, 2 do. 296; Hays v. Gorham, ib. 431; Contra.—Lyon v. Boilvin, 2 Gilm. 636.
    A verdict and judgment in this case for the plaintiffs would be evidence in a suit brought by the plaintiffs against White to establish a payment on his mortgage. Blake v. Irish, 8 Shep. 450; 2 U. S. Dig. 969, § 245.
    When the effect of a witness’ testimony is to create a fund from which he is to receive a benefit, he is incompetent. Brown v. O’Brien, 1 Richardson, 268, cited in 2 U. S. Dig. 970, § 272.
    A witness whose debt would be extinguished by a recovery in the suit is not^a competent witness. Richardson v. Bartlett, 2 B. Munroe, 328.

      One who has receipted for property attached by a deputy sheriff is not a competent witness for the defendant in attachment. Pollard v. Graves, 23 Pick. 86.
    The interest of a witness is balanced only when he is alike liable to either party in case of the success of either, or when he is alike benefited by the result either in favor of plaintiff or defendant, and not when, if his evidence is received or rejected, the result of the verdict would be to him an immediate benefit if admitted, or loss if rejected, which loss might be repaired by the liability of some third person to him. Ibid.

      Peters, in reply to the statement,
    that the judgment in this case would be evidence in favor of the witness in a suit on the mortgage, said that the judgment could not extinguish his liability, unless it was paid; that it would cut no figure whatever on a foreclosure by plaintiffs. It would be no answer that a judgment, merely, had been recovered.
   The Opinion of the Court was delivered by

Trumbull, J.

This was a suit upon two promissory notes executed by the defendants to G. M. & S.. Thomas, and by them assigned to the plaintiffs as collateral security for a debt which they owed the plaintiffs.

Upon the trial in the Circuit Court, the defendants-introduced evidence going to show that the consideration for which the notes were given had failed, and the plaintiffs offered one White as a witness by whom they proposed to prove facts material to the issue, but his testimony was objected to and excluded by the Court on the ground that he was interested in the event of the suit. White, when examined touching his interest, testified, “that he had executed a mortgage to the plaintiffs of his real estate, to secure the payment of a debt due from said payees, the Thomases, to the plaintiffs, for the security of which said debt of the Thomases, said two notes had also been assigned by payees to the plaintiffs; that if judgment should be recovered in this case, the money would go to discharge the debt which. the mortgage was' given to secure; but he stated that he liad no other interest in the suit, and that if he should he compelled to pay anything by reason of his having given said mortgage, the said payees would be liable to pay the same to him, as he, White, was security only for them.” Judgment was rendered for the defendants, and the plaintiffs bring the case here and assign for error the decision of the Court, which was excepted to at the time, excluding White from testifying.

The general rule that to disqualify a witness from testifying on the ground of interest, he must have some certain, legal and immediate interest in the result of the cause, or in the record, is well settled | (1 Stark. Ev. 102; 1 Greenl. Ev. § 387;)but the difficulty arises in applying this rule, and determining in each particular case what the nature of the interest is.

In this case, it is difficult to conceive how the record could be evidence either for or against White in any other suit. He was not a party to it, and of course would not be bound by it, nor could it be introduced in any other proceeding to establish the facts therein contained either to his benefit or injury. White had made himself liable upon the mortgage, and in a suit to enforce its collection, the record of this case would not be evidence one way or the other. A judgment upon the notes followed by satisfaction, would, to that extent, discharge the debt for which White was security, and so would payment of the notes without judgment. But to avail himself of the benefit of such satisfaction or payment, the judgment obtained in this case would be -of no use as it would not establish that fact.

Nor had White such an interest in the result of the cause as to disqualify him from testifying. The most that can be said is, that if the plaintiffs were unable to make their claim out of the defendants and the Thomases neglected to pay it, the witness might be called upon to do so, and in that event he would have to look to-the Thomases alone for reimbursement. To obtain it, he might or might not be forced to resort to a suit, and if he should, greater difficulty would follow in securing himself harmless than if the debt were discharged at once by collecting the amount from the defendants, but more or less difficulty in protecting the rights of the witness shows but a remote or contingent interest. The witness may never be called upon to pay anything even if the plaintiff fail in this suit. The Thomases will still be between him and the plaintiffs, and a payment by them would of course discharge him, or if compelled to pay in the first instance, he still has his remedy over, and it is only upon the double contingency that he would be compelled to pay the mortgage and that the Thomases would be unable to refund, of which there is no evidence in the record, that he could possibly suffer loss. The law does not regard ap interest so remote and contingent. The circumstances disclosed might well be supposed to have more or less influence upon the mind of the witness, but they were circumstances going to his credit and not to his competency.

The case of Gregory v. Dodge, 14 Wend. 593, is in principle precisely analogous to this. In that case, the witness by his testimony discharged a debt due to the defendants from himself by fixing it upon the complainants, and therefore appeared to be interested in favor of the defendants by -whom he was called as a witness, but it appearing that the -debt belonged to the complainants to pay, and that if the -defendants should have to collect it from the witness, he •would have a remedy over, he was held competent, and Justice Nelson, in giving his opinion in that case remarks: ■“If the account is now settled in this suit, the witness is discharged from his individual liability; if not, he may be obliged to pay it and look to the complainants. The remedy may be attended with more difficulty as paying the amount and being turned over to the complainants for re-imbursement, than at once canceling it by an adjustment now between the parties; and to the extent of this supposed difference the witness may be regarded as not indifferent. But upon the facts the remedy is as certain in the one case •as the other. The witness may and will have a bias, ¡because the discharge from liability is more speedy and and practically more certain in one case than the other; but, upon established principles, I think he is legally indifferent.”

The case of Lake v. Auburn, 17 Wend. 18, re-affirms the doctrine laid down in the foregoing case, and the same principle is established by numerous other cases. Page v. Thomas, 6 Meeson & Welby’s Rep. 732; Milward v. Mallet, 2 Caines Rep. 77; Greely v. Dow, 2 Metcalf, 176; Martineau v. Woodland, 12 Eng. Com. Law R. 453. In this last case, the witness had accepted a bill for the sum for which the action was brought, which bill had been dishonored and was in the hands of the plaintiffs in whose behalf he was called. It was objected that it was his interest to fix the defendant in that action; for if the defendant paid the plaintiffs, the witness would be exonerated on the bill. To this it was answered that the witness was indifferent, his interest being equal each way, for if obliged to pay the bill, he would recover the amount of the defendant, and he was held competent.

The foregoing authorities, and there are many others to the same effect, would seem to establish the rule, that a witness is never disqualified from testifying on account of interest in the result of a cause, when the extent of his own liability or claim is previously fixed and certain, and a judgment either way would not directly and certainly increase or diminish that liability or claim.

This rule would not allow a surety upon a bail, appeal or official bond to testify in a suit against the principal in reference to a matter for which the surety might ultimately be made liable, because the judgment to be obtained would be evidence of and^fix the surety’s liability in a subsequent suit upon the bond; but the extent of White’s liability in this case was fixed by his mortgage, and did not depend upon the amount, or whether any judgment was obtained against Wheeler & Putnam. He was therefore a competent witness.

The judgment of the- Circuit Court is reversed and the cause remanded,

Judgment reversed.


text:
    William Strawbridge et al., appellants, v. Samuel Robinson, for the use, &c. appellee.

      Appeal from Jo Daviess.

    An action of assumpsit was brought upon the following instrument: "Messrs, Smith & Carter, please pay Samuel Robinson one hundred and ten dollars, and charge the same to Strawbridge & Bower.” "East Fork, the 4th Feby, 1845.”
    It was proved by parol that the place where the instrument purports to have been drawn was within the State of Illinois, that the parties resided there, but that it was in fact executed in Wisconsin: Held, that the instrument was an inland bill, and that it was competent for the parties, both being citizens of Illinois, to provide that it should be subject to and construed by its law.
    Assumpsit, in the- Jo Daviess Circuit Court, brought by the appellee for the use of Robert C. Buzan, against the appellants, and heard before the Hon. Thomas C. Browne and a jury, at the October term, 1848,
    The suit was brought upon the following instrument: “Messrs. Smith & Carter, please pay Mr. Samuel Robinson one hundred and ten dollars, and charge the same to
    Strawbridge & Bower. “East Fork, the 4th Feby, 1845.”
    It appeared from the evidence that the parties to the instrument were citizens of Jo Daviess county, in this State, and that East Fork was in the same county, and that the instrument was in fact executed within the State of Wisconsin.
    During the progress of the trial, numerous instructions were asked by the counsel for the plaintiff, one of which was in the following words : “1. If the jury believe from the evidence, that the order given in evidence was an inland one — that it belonged to Buzan, and that afterwards within a reasonable time after it was drawn, it was presented by Buzan or his agent to Smith Sc Carter for payment, and they refused the same, and that the defendants had due notice of such refusal, and had also notice that the order belonged to Buzan before payment of it to Robinson, they should find for the plaintiff.”
    This instruction was given.
    The defendant also asked several instructions, one of which was as follows: “8. That if the jury believe from the evidence that the holder of the bill sued on this cause was guilty of any laches, then the plaintiff cannot recover on the common counts of the declaration ; that absence of a protest on the non-payment of a foreign bill of exchange, payable on presentation, or the want of due presentment for payment, is each such laches.”
    This instruction was refused.
    The jury rendered a verdict in favor of the plaintiff for $134-20, and the defendants entered a motion for a new trial, which was overruled by the Court, and judgment entered upon the verdict.

      J. M. Wilson, for the appellants.
    Presentment of a bill and notice of non-payment are conditions precedent to the right of action against a drawer. City of Springfield v. Hickox, 2 Gilm. 247.

      B. R. Sheldon, M. 7. Johnson, and O. Peters, for the appellee.
    No protest was necessary in this case, because this is not a foreign bill.
    Blackstone defines foreign and inland bills thus : “foreign, where drawn by a merchant residing abroad, upon his correspondent in England, or vice versa; and inland, where both the drawer and the drawee reside within the kingdom. Christian’s Black. Com.
    The drawers, drawees, and payee all resided in Jo Daviess county, and it was dated at East Fork, the residence and place of business of the drawees in Jo Daviess county, manifesting the intention of the parties to have it taken and treated as if drawn at East Fork, and it should be considered an inland bill, although it was in fact drawn «in Wisconsin, &
      few miles from the residence of the parties in this county, where they then accidentally happened to be.
   The Opinion of the Court was delivered by

Caton, J.

This suit is brought upon a bill of exchange, drawn by the defendants below on Smith & Carter of Galena, in favor of the plaintiff below, and dated “East Fork the 4th Feb’y 1845,” which is in the same county. All the parties to the bill were citizens of this State, but the evidence shows that the bill was actually drawn in Wisconsin.

.The rights and duties of the holder and the privileges and responsibilities of the drawer of a foreign bill differ in many important particulars from those of an inland bill. Although this bill was actually drawn in another State, yet upon its face it was an inland bill, and it was manifestly the intention of all the parties that such should be its character.

Admitting the competency of the parol proof that the bill was drawn in Wisconsin, still we are satisfied that it must be treated and considered as an inland bill. Such was the intention and agreement of the parties as shown on the face of the instrument. That it was competent for the parties, both being citizens of Illinois, to provide by their express agreement that it should be subject to and construed by the laws of this State, is too well established by authority to admit of doubt. In the case of Robinson v. Bland, 2 Burr. 1077, Lord Mansfield, in speaking of a bill of exchange actually drawn in France, said : “The parties had a view to the laws of England. The law of. the place can never be the rule, where the transaction is entered into with an express view to the law of another country, as the rule by which it is to be governed.”

As before stated, the rights and liabilities of all parties to the bill may be sensibly affected by the determination of the question whether this be a foreign or an inland bill. If this bill is to be treated as it was designed by the parties and is expressed upon its face, then no damages can be allowed for non-payment, no matter what the laws of Wisconsin are. If we disregard the place of the contract as expressed on its face, and adhere to the parol proof which shows it to have been made in Wisconsin, then the laws of that State must fix the rule of damages. Whether this agreement of the parties to make this an inland bill was designed for the benefit of the holder, so as to relieve him from the necessity of having it formally protested as in case of a foreign bill, or whether it was intended for the benefit of the defendant and to relieve him from the payment of damages, we do not know. Probably the parties had both objects in view. As it was the design and express agreement of the parties that this should be considered and treated as an inland bill, to be controlled by the laws of Illinois, the Court must give effect to that agreement.

This, then, being an inland bill, the first instruction for the plaintiff was properly given, and the defendants’ eighth instruction was properly refused, and these decisions alone are assigned for error. When the facts are once ascertained and settled, as by a special verdict or agreed case, then it is a question of law to determine whether reasonable notice of non-payment has been given or not. Bank of Utica v. Bender, 21 Wend. 643. As the question was presented in the first instruction, it was compounded of law and fact, and as such was properly submitted to the jury. Had the defendant desired the Court to instruct the jury whether a given state of facts supposed to be proved amounted to reasonable notice, he should have asked an instruction based upon such state of facts.

The judgment of the Circuit Court is affirmed with costs*

Judgment affirmed.


text:
    George R. Makepeace, plaintiff in error, v. Amos M. Moore, defendant in error.

      Error to Kane.

    An administrator may assign a promissory note payable to his intestate so as to vest the legal interest in the assignee.
    An administrator succeeds to the legal title-to the personal estate of his intestate, and the title takes effect by relation from the death of the latter.
    As a general principle, an administrator has the power to dispose of the personal estate of his intestate, and it cannot be followed into the hands of the alienee. There are, however, exceptions to this rule, as where the purchaser knows, or has reason to believe, that the sale is made with a design to misapply the funds 5 or where property is transferred by the administrator in payment of a private debt.; or where it is sold for a grossly inadequate price.
    Assumpsit, in the Kane Circuit Court, brought by the defendant in error against the plaintiff in error, and heard before the Hon. Theophilus L. Dickey, at the January special term, 1849, who found the issues for the plaintiff and assessed his damages at the sum of $172-78., when the defendant moved in arrest of judgment. At the April term following, the motion was overruled by the Court, and judgment rendered for the amount of the damages assessed.
    The suit was brought upon a promissory note executed by Makepeace to Harvey Bristol or bearer. It was alleged in the declaration that the said Bristol died intestate, that letters of administration on his estate were duly granted to Joel McKee and Elijah S. Town, and that they, as the administrators, “indorsed and delivered the said note” .to the plaintiff, “who then and there became the legal owner and bearer of the said note,” &c.

      I. O. Wilson, for the plaintiff in error.
    The decision of the question involved in this cause depends on the construction -of our statute. It is insisted by the plaintiff, -in error:

      I. That our Statute of Wills gives an administrator no •right to sell or dispose of choses in action belonging to his •intestate, except in cases of .desperate or doubtful debts.
    Our statute requires an administrator to collect the debts •due to the intestate.
    Having no right to sell and assign, the administrators in this case could confer no title to the note so as to maintain •an action.
    II. By the Common Law a note is not assignable. It is only by virtue of the Statute of Anne and subsequent Acts that promissory notes are assignable in England. The English decisions are therefore based on statutory provisions and can have no authority here, except so far as our own statute must necessarily receive the same construction.
    Our statute provides for the assignment of notes “in the same manner” as bills of exchange are, and “by the persons to whom they are made payable.”
    By the term “in the same manner,” is it intended to create all the liabilities of an ordinary indorsement, or, on the other hand, does it ndt refer to the mode of making the assignment?
    Again: Would the indorsee have any remedy over against the estate of the administrator’s intestate in case of failure to collect of the maker ? Surely not, as an administrator cannot, by the new contract arising on the indorsement, bind the estate.
    Would the indorser have any remedy against the indorsee in his individual capacity? It would seem not, after having ■received the note under an assignment from him as administrator, unless indeed he might recover back what he paid for the note on the ground that the administrator had obtained his money without giving him title to the note.
    The language of our statute is, that the person to whom •said note is made payable may indorse the same.
    Why was it necessary to pass a special statute giving the administrator the right to apply to the Probate Court for an order to sell doubtful debts, if he already had the power to dispose of debts due the estate ? It is an indirect admission that the administrator has not the legal right to dispose of debts except in that particular case. And if he has not the right, then he cannot confer title on his indorsee, and therefore the indorsee can sustain no action in his own name.
    The law has prescribed the limits within which an administrator may act. He is to collect the debts, not to sell them except under the order of the Probate Court. And it is not a sufficient answer to say that if he disposes of a debt, that he is liable for the amount, inasmuch as he may sell a good demand and himself and his sureties become insolvent so that the avails would be lost to the estate.

      W. B. Plato, and J. 0. Glover S? B. C. Cook, for the defendant in error.
    The construction given to the Statute of Anne, (which is not materially different from ours,) by the English authorities is, that an executor or administrator of a person to whom a promissory note is made payable, may assign the same so as to enable the assignee to sue in his own name. Stone v. Rawlinson, Willes, 559; Rev. Stat. 384; Chitty on Bills, 517; 2 Williams on Executors, 796; Valentine v. Jackson, 9 Wend. 302.
    The reason assigned is, that the legal title of the personal assets of the testator or intestate is vested in the executor or administrator, and the executor or administrator may dispose of the same for a valuable consideration, and the contract will be obligatory. This doctrine is sustained by our own Supreme Court. McConnell v. Hodson, 2 Gilm. 640.
   The Opinion of the Court was delivered by

Treat, C. J.

The record presents the single question, whether an administrator can assign a promissory note payable to his intestate so as to vest the legal interest in the assignee. On the score of principle and authority, the answer must be in the affirmative. The administrator succeeds to the legal title to the personal estate, and the title takes effect by relation from the death of the intestate. As a general principle, he has the power to dispose of the'personal effects, and they cannot be followed into the hands of the alienee. He has to sell the property in order to pay the debts against the estate and make distribution of the surplus among the heirs, and purchasers would not be disposed to deal with him if they were liable to be afterwards called to account. There are exceptions to the rule, as where the purchaser knows, or has reason to believe, that the sale is made with a design to misapply the funds ; or where property is transferred by the administrator in payment of a private debt; or where it is sold at a grossly inadequate price. In such cases, those interested in the estate may treat the administrator as personally liable, or pursue the property into the hands of the purchaser. 2 Williams on Executors, 796; McConnell v. Hodson, 2 Gilm. 640. In this case, there is nothing to impeach the fairness of the transaction, and the assignment must be sustained if the administrator had the legal power to make it. The statute authorizes the payee of a promissory note by indorsement in writing to transfer the absolute legal interest. By operation of law, the administrator is vested with the legal interest to as full an extent as the intestate possessed it. Having the right to receive payment of the note, to sue upon it in his own name, and dispose of it by sale, it follows that he may transfer the legal title to another. The objection that he is not within the letter of the statute, and therefore not competent to make the assignment, is entitled to but little consideration. In the case of Stone v. Rawlinson, Willes 559, the Court held, under a similar provision in the Statute of Anne, that the administrator of the payee could assign a promissory note so as to enable the indorsee to sue on it in his own name ; and the decision was put distinctly on the ground that the terms of the statute authorized the person in whom the legal estate was vested to pass and transfer the estate' by assignment. Such is the reasonable construction to be given to our statute. Whether the assignee may charge the estate on failure to collect the note of the payee, or whether he may hold the administrator personally liable, are questions that now do not arise and need not therefore be discussed. The power conferred on the administrator to compound or sell desperate or doubtful debts due the estate, under the direction of the Probate Court, does not imply that he has no power to assign a promissory note belonging to the estate. If he disposes of the note without obtaining the direction of the Court to do so, he is chargeable with the amount due upon it; if he acts under the sanction of the Court, he is only to be charged with the amount he actually received. The object of the provision is to facilitate the settlement of estates by the disposition of doubtful claims for the best price that can be obtained for them.

The judgment of the Circuit Court is affirmed with costs.

Judgment affirmed.


text:
    William Holmes, et al., plaintiffs in error, v. The People of the State of Illinois, defendants in error.

      Error to Kane.
    An application'for a continuance in a criminal case is addressed to the discretion of the Court, and the decision thereof cannot be assigned for error.
    An affidavit of a deputy sheriff copied into the record of a criminal case, but not embodied in a bill of exceptions, was held not properly a part of the record.
    The record in a criminal case stated that the jury retired to consider of their verdict in charge of a sworn officer: Held, that the presumption was that the Court performed its duty by requiring the proper oath to he administered; that if the officer was not in fact sworn, the defendants should have objected to the irregularity at the time, and if not corrected by the Court, have taken a bill of exceptions.
    Indictment for larceny, in the Kane Circuit Court, heard before the Hon. John D, Catón and a jury, at the April term, 1848»

      The defendants filed an affidavit and entered amotion for a continuance. The affidavit set forth that they could not have a fair and impartial trial at that term in consequence of the strong prejudice then existing against them in the minds of the people of the county; that they could prove by certain witnesses, in substance, that they came properly into possession of the horses alleged to have been stolen by them, &c. The motion was overruled.
    The cause was tried by the jury, and a verdict of guilty rendered against the defendants, fixing the term of their imprisonment in the penitentiary at eight years, upon which verdict the Court rendered a judgment.

      I. JY. Arnold, for the plaintiffs in error,
    1. A continuance should have been granted on the facts stated in the affidavit.
    2. Counter affidavits were improperly admitted.
    3. It was erroneous to abandon the regular panel of jurors, and to summon a new jury to try the cause. Rev. Stat. 184. This was not one of the cases where tales are to be summoned. Ib. 310, § 7.
    4. There is no order appearing on the records requiring the officer to summon a special jury.
    5. The jury were not sworn as is provided by the I89th section of the Criminal Code. See, also, Jones v. The State, 2 Blackf. 478; Van Doren v. Walker, 2 Caines, 373; Fink v. Hall, 8 Johns. 437.

      B. C. Cook, Circuit attorney, for the people.
    The overruling of a motion for a new trial cannot be assigned for error in a criminal proceeding. Baxter v. The People, 3 Gilm. 371.
    It is not necessary for the record to show that the jury were kept in charge of a sworn officer during their retirement. It will be presumed to be so, unless the contrary appear by exceptions taken, or otherwise upon the record. McKinney v. The People, 2 Gilm. 554; Baxter v. Same, ib. 578.

      There is nothing in the record to show that a special panel was called to try the case, or that the defendants were tried by a special panel.
    Affidavits and other papers, to be made a part of the record, should be incorporated in a bill of exceptions.
   The Opinion of the Court was delivered by

Treat, C. J.

The application for a continuance was addressed to the discretion of the Court, and the decision thereof cannot be assigned for error. Baxter v. The People, 3 Gilm. 368.

There is nothing in the record on which to base the assignment of error that the Court erred in ordering a special jury to be summoned. For aught appearing to the contrary, the jurors who tried the prisoners were taken from the regular panel. The affidavit of the deputy sheriff is not properly a part of the record. It should have been introduced into the record by a bill of exceptions.

The record states that the jury retired to consider of their verdict in charge of a sworn officer of the Court; and the presumption is, that the Court performed its duty by requiring the proper oath to be administered. If the officer was not in fact sworn, the defendants should have objected to the irregularity at the time, and if not corrected by the Court, have taken a bill of exceptions. McKinney v. The People, 2 Gilm. 540.

The judgment of the Circuit Court is affirmed with costs,

Judgment affirmed.