text:
    (No. 2227
    Monarch Fire Insurance Co., Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 30, 1937.

    Harlington Wood, for claimant.
    Otto Keener, Attorney General, Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant herein seeks an award of Six Hundred Ten and 58/100 ($610.58) Dollars for local taxes paid by it during 1931, and for which it failed to take credit in its franchise tax payment to the State of Illinois, on the 14th day of May, 1932. A similar situation as to facts and law exist herein as evidenced in the case of Monarch Fire Insurance Company vs. State, Court of Claims No. 2226, decided at the present term. For the reasons therein stated^ an award herein is denied and claim dismissed.


source: Caselaw Access Project

author: Mb. Chief Justice Hollebich

license: Public Domain

text:
    (No. 2633
    William Whalen, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 30, 1937.

    James M. Barnes and Frank H. Sullivan, for claimant.
    . Otto Keener, Attorney General, Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hollebich

delivered the opinion of the court:

From. June 15th, 1933 to April 19th, 1934 the claimant was in the employ of respondent at the Illinois School for the Deaf at Jacksonville, Illinois, and was assigned to the care and maintenance of the grounds and buildings; — his duties including the making of minor repairs on the exterior of the buildings.

The Illinois School for the Deaf consists of thirty-two buildings, including dormitories, school buildings, dairy buildings, horse barns, boiler house, power plant, bake shop, laundry, paint shop, machine shop, shoe shop, and a shop in which woodwork is done. There are machines in the shoe shop which are operated by the pupils, and saws and various types of machinery for woodwork in the workshop. The administration building is a four-story building about three hundred feet long, and is equipped with fire escapes.

While claimant was in the performance of his duties on April 19th, 1934, and while lifting an iron window grate, such grate slipped and scratched his left leg and dropped on the large toe of his left foot, causing the same to bleed. The injury caused claimant some pain, but he did not quit work. The next day he went to the doctor. On the second day after the injury his left leg and foot were swollen and he was removed to the hospital where he remained under the care of Dr. F. A. Norris until July 8th, 1934. At the time he was removed to the hospital, infection had set in and spread rapidly to the entire leg. Shortly thereafter he became delirious and was in that condition most of the time while he was in the hospital. Multiple incisions were made on the left leg, practically all the way down the leg. He continued under the care of Dr. Norris until December 5th, 1935.

Claimant was sixty-seven years of age at the time of the accident, was married, and had no children under the age of sixteen years.

The medical testimony consisted of the evidence of Dr. F. A. Norris, who treated the claimant from the time he entered the hospital on April 21st, 1934, until December 5th, 1935; and Drs. George L. Drennan and William A. Thomas who examined the claimant on behalf of respondent. There is no dispute as to the nature and extent of the claimant’s disability. Dr. Norris stated that claimant’s illness was the result of the injuries he received, and all of the doctors agreed that claimant is totally and permanently disabled for occupation as a laborer.

Dr. George L. Drennan and Dr. William A. Thomas, who examined the claimant on October 6th, 1936, at the request of Mr. D. T. Cloud, managing officer of the Illinois School for the Deaf, made an exhaustive report of their findings, and in conclusion say: “After reviewing the history and physical findings we would consider Mr. William Whalen totally and permanently disabled from any gainful occupation.”

Upon consideration of the record, the court finds:

1. That on April 19th, 1934, claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State.

2. That on said date claimant sustained accidental injuries which arose out of and in the course of his employment.

3. That notice of the accident was given to said respondent and claim for compensation was made within the time required by the provisions of such Act.

4. That claimant was in the employ of the respondent for less than one year prior to the date of the accident; that the annual earnings of persons of the same class in the same employment and same location during the year preceding the injury were $828.00, and the average weekly wage was $15.92.

5. That claimant at the time of the injury was sixty-seven years of age, was married, and had no children under the age of sixteen years.

6. That no medical, surgical or hospital services were provided by respondent, but all necessary first aid, medical, surgical and hospital services were procured by the claimant at his own expense, and that the amount due therefor is as follows:

Our Saviour’s Hospital, Jacksonville, Illinois, hospital serv- ■ ices ................................................... $397.40
Mrs. Mary Magner, nursing services....................... 295.00
Dr. Frank A. Norris and Dr. Reginald M. Norris, medical and surgical services................................... 127.50

7. That as the result of such accident claimant has sustained a complete disability which renders him wholly and permanently incapable of work; that under the provisions of Section 8a of the Workmen’s Compensation Act, the claimant is entitled to the sum of $819.90 for first aid, medical and surgical, hospital and nursing services as aforesaid; that under the provisions of Section 8f of such Act, the claimant is entitled to' the further sum of $3,312.00 for complete and permanent disability, payable in weekly installments for the period of 416 weeks commencing on April 20th, 1934; and thereafter a pension during life annually in the amount of $264.96, payable monthly.

8. That the sum of $45.00 has been paid to apply on such award.

9. That 166 weeks compensation has accrued to June 25th, 1937, which amounts, to wit, $1,321.36, less the sum of $45.00 heretofore paid to claimant as aforesaid, is payable at this time, and the balance of said compensation, to wit, $1,990.64, is payable in 249 weekly installments of $7.96 per week commencing July 2d, 1937, and one final installment of $8.60. After such final installment is paid, claimant is entitled to an anual pension of $264.96 payable in monthly installments of $22.08 during the term of his natural life.

Award is therefore entered in favor of the claimant for the sum of Four Thousand Eighty-six Dollars and Ninety Cents ($4,086.90), and a pension for life, all payable as follows:

1. To the claimant William Whalen, forthwith, for the compensation which has accrued from April 20th, 1934 to June 25th, 1937, less the sum of $45.00 heretofore paid to him as aforesaid, the sum of...........................$1,276.36

2. To the claimant William Whalen, forthwith, for the use of Our Saviour’s Hospital, Jacksonville, Hlinois, for hospital services, the sum of. 397.40

3. To the claimant William Whalen, forthwith, for the use of Mrs. Mary Maguer, for nursing services, the sum of............................ 295.00

4. To the claimant William Whalen, forthwith, for the use of Dr. F. A. Norris and Dr. Eeginald M. Norris, for medical and surgical services, the sum of ................................... 127.50

5. To the claimant, William Whalen, the sum of.. 1,990.64 payable in 249 weekly installments of $7.96 per week, commencing on July 2d, 1937, and one final installment of $8.60.

After the last installment of such compensation has been paid as aforesaid, the claimant William Whalen, shall be paid an annual pension for and during his natural life in the sum of $264.96, payable in monthly installments of $22.08, commencing one week after the payment of the aforementioned final installment of $8.60.

This award being for personal injuries of a State employee is subject to the provisions of an Act entitled, “An Act making an appropriation to pay compensation claims of State employees and providing for the method of payment thereof, ’ ’ approved July 2, 1935 (Session Laws of 1935, p. 49).

In accordance with the provisions of such Act, this award is subject to the approval of the Governor and upon such approval, is payable from the appropriation from the general fund in the manner provided by such Act.

Jurisdiction of this cause is retained for the purpose of making such other or further order or orders herein as may be in accordance with the terms and provisions of the Workmen’s Compensation Act of this State.


author: Per Curiam:

text:
    Sam Morrison, Claimant vs. Illinois Emergency Relief Commission, Respondent.

      Opinion filed June 8, 1936.

   Advisory Opinion.

Per Curiam:

Based upon the foregoing statement of facts, and pursuant to the provisions of the Workmen’s Compensation Act of this State, we are of the opinion that the claimant is entitled to receive the sum of Thirty Three Dollars ($33.00) from any funds held by the Illinois Emergency Belief Commission for the payment of such claims.


author:
      Per Curiam:

      Per Curiam:

text:
    Paul T. O’Daniel, Claimant, vs. Illinois Emergency Relief Commission, Respondent.

      Opinion filed November 24, 1936.

   Advisory Opinion.

Per Curiam:

Pursuant to your request for an advisory opinion, based upon the attached statement of facts submitted by you in the matter of the claim of Paul T. 0 ’Daniel, we beg to submit our conclusions herewith.

Based upon the foregoing statement of facts submitted by you, we are of the opinion that the claimant is entitled to receive compensation under the terms and provisions of the Workmen’s Compensation Act for the injuries sustained by him as shown by said statement; and that the amount of compensation to which he is entitled for his present disability under the facts set forth in such statement is in excess of the amount which the claimant has agreed to accept in full settlement, to wit, One Thousand Dollars ($1,000).

If the claimant is represented by competent legal counsel, and has been fully advised as to his rights in the matter, and is willing to enter into a settlement contract providing for a lump sum settlement of One Thousand Dollars ($1,000.00), we are of the opinion that it is to your advantage to accept his proposition, and enter into a proper settlement contract with him regarding the matter.

We are further of the opinion that any settlement made by you in the matter should be subject to the following conditions, to wit:

1. The settlement contract should include a waiver of the right to review the same by the Industrial Commission or by this court upon the petition of either party thereto as provided by Paragraph H, Section 19 of the Workmen’s Compensation Act.

2. The case of said Paul T. O’Daniel against the State of Illinois, No. 2637, now pending in this court, be dismissed.

3. That payment of the agreed amount be made by the Illinois Emergency Belief Commission out of any funds held by .it for the payment of such claims.

Supplementary Statement op Facts.

An award of One Thousand Dollars ($1,000.00) was sanctioned by the Court of Claims in the above entitled cause on the 8th day of December, 1936, but it has since come to the attention of the Illinois Emergency Belief Commission that one of the claimant’s doctors was not paid by the Adams County Emergency Belief Committee for his services, and the Illinois Emergency Belief Commission is now asking that the court sanction payment of this bill.

Dr. F. T. Brenner, Illinois State Bank Building, Quincy, Illinois, claims that the Adams County Emergency Belief Committee asked him to attend Paul T. 0 ’Daniel after he sustained his injuries while working for the Adams County Emergency Belief Committee. Claimant was treated for six months after his accident. A bill for Seventy-five Dollars ($75.00) has been rendered to the Illinois Emergency Belief Commission by Dr. F. T. Brenner for his services. Said bill has been examined and found to be reasonable for the services rendered. (See Exhibit IV.)

Supplemental Advisory Opinion.

Per Curiam:

Pursuant to your request for an advisory opinion in the matter of the claim of Dr. F. T. Brenner against the Illinois Emergency Belief Commission, we beg to submit the following opinion:

On December 8th, 1936, we rendered an advisory opinion in the matter of the claim of Paul T. O’Daniel against the Illinois Emergency Belief Commission. The claim of Dr. F. T. Brenner is for medical and surgical services rendered to said Paul T. 0 ’Daniel in connection with the injuries involved in his aforementioned claim. In our opinion of December 8th, 1936, we concluded that a settlement of the claim of Mr. 0 ’Daniel would be justified under certain conditions set forth in such opinion.

We take it for granted that such conditions have been complied with.

Based upon that assumption, and the statement of facts submitted by you in connection with the O’Daniel claim,* as well as the statement of facts submitted by you in the present claim, we are of the opinion that the Illinois Emergency Belief Commission is liable for the amount of Dr. Brenner’s claim, and that payment thereof should be made by the Illinois Emergency Belief Commission out of any funds held by it for the payment, of such claims.


text:
    M. Paulene Orr, Claimant, vs. Illinois Emergency Relief Commission, Respondent.

      Opinion filed January 13, 1937.

   Advisory Opinion.

Per Curiam:

Pursuant to your request for an advisory opinion, based upon the foregoing statement of facts and the amendment thereto, submitted by you in the matter of the claim of M. Paulene Orr against the Illinois Emergency Belief Commission, we beg to submit the following opinion, based upon the aforementioned statement and amended statement, to wit:—

At the time of the accident in question both employer and employee were operating under and bound by the provisions of the Workmen’s Compensation Act; that the accident in question arose out of and in the course of such employment; that under the provisions of Section 8A of the Workmen’s Compensation Act, the Illinois Emergency Belief Commission is liable for the necessary first aid, medical and surgical services, and all necessary medical, surgical and hospital services thereafter, limited, however, to that which is reasonably required to cure or relieve from the effects of the injury; — and that claimant is therefore entitled to be reimbursed the amount paid by her for medical, surgical and hospital services as aforesaid, to wit, the sum of One Hundred Nine Dollars ($109.00).

We are further of the opinion that payment of such claim should be subject to the following conditions, to wit:

1. That the case of M. Paulene Orr against the State of Illinois, being No. 2585, now pending in this court, be dismissed.

2. That payment of said claim be made by the Illinois Emergency Belief Commission out of any funds held by it and allocated for the payment of such claims.


text:
    Joseph Melfi, Claimant, vs. Illinois Emergency Relief Commission, Respondent.

      Opinion filed January 13, 1937.

   Advisory Opinion.

Per Curiam:

Pursuant to your request for an advisory opinion, based upon the foregoing statement of facts and the amendment thereto, submitted by you in the matter of the claim of Joseph Melfi against the Illinois Emergency Belief Commission, we beg to submit the following opinion, based upon the aforementioned statement and amended statement, to wit: •

At the time of the accident in question, both employer and employee were operating under and bound by the provisions of the Workmen’s Compensation Act; that the accident in question arose out of and in the course of such employment; that under the provisions of Section 8A of the Workmen’s Compensation Act, the Illinois Emergency Belief Commission is liable for the necessary first aid, medical and surgical services, and all necessary medical, surgical and hospital services thereafter, limited, however, to that which is reasonably required to cure or relieve from the effects of the injury; — and that claimant is therefore entitled to be reimbursed the amount paid by him for medical, surgical and hospital services as aforesaid, to wit, the sum of One Hundred Fifty-three Dollars ($153.00).

We are further of the opinion that payment of said claim should be made by the Illinois Emergency Belief Commission out of any funds held by it and allocated for the payment of such claims.


text:
    Faye Willerton Brockson, Claimant, vs. Illinois Emergency Relief Commission, Respondent.

      Opinion filed January 13, 1937.

   Advisory Opinion.

Per Curiam:

Pursuant to your request for an advisory opinion, based upon the foregoing statement of facts and the amendment thereto, submitted by you in the matter of the claim of Faye Willerton Brockson against the Illinois Emergency Belief Commission, we beg to submit the following opinion, based upon the aforementioned statement and amended statement to wit:

At the time of the accident in question both employer and employee were operating under and bound by the provisions of the Workmen’s Compensation Act; that the accident in question arose out of and in the course of such employment; that under the provisions of Section 8A of the Workmen’s Compensation Act, the Illinois Emergency Belief Commission is liable for the necessary first aid, medical and surgical services, and all necessary medical, surgical and hospital services thereafter, limited, however, to that which is reasonably required to cure or relieve from the effects of the injury; and that claimant is therefore entitled to be reimbursed the amount paid by her for medical, surgical and hospital services as aforesaid, to wit, the sum of One Hundred Thirty Dollars and Seventy Cents ($130.70).

- We are further of the opinion that payment of such claim should be subject to the following conditions, to wit:

1. That the case of said Faye Willerton Brockson against the State of Illinois, being No. 2586, now pending in this court, be dismissed.

2. That payment of said claim be made by the Illinois Emergency Belief Commission out of any funds held by it and allocated for the payment of such claims.


text:
    William Douglas, Claimant, vs. Illinois Emergency Relief Commission, Respondent.

      Opinion filed April 13, 1937.

   Advisory Opinion.

Per Curiam:

Pursuant to your request for an advisory opinion in the matter of the claim of William Douglas against the Illinois Emergency Belief Commission, we beg to submit the following as our conclusions and opinion in the matter, to wit:

Based upon the foregoing statement of facts submitted by you, and the exhibits attached thereto, we are of the opinion that the claimant is entitled to have and receive compensation under the terms and provisions of the Workmen’s Compensation Act for the injuries sustained by him, and the disability resulting therefrom, as shown by said statement; and that the amount of compensation to which he is entitled for such injuries and disability is in excess of the amount which the claimant has agreed to accept in full settlement of his claim, to wit, Five Hundred Thirty-four Dollars ($534.00).

If the claimant is represented by competent legal counsel, and has been fully advised as to his rights in the matter, and is willing to enter into a settlement contract providing for a lump sum settlement of $534.00 in full settlement, satisfaction and discharge of all liability on account of the accident and injury in question, we are of the opinion that it is to your advantage to accept his proposition.

Payment of the medical and hospital bills which you have already paid was authorized by Section 8-A of the Workmen’s Compensation Act, and payment to the Cook County Hospital of the balance due it, to wit, $54.00, is also authorized by the same provisions of such Act.

We are further of the opinion that any settlement made by you in the matter should be subject to the following conditions, to wit:

1. The settlement contract should include a waiver of the right to review the same by the Industrial Commission or by this court upon the petition of either party thereto, under the provisions of Paragraph H, Section 19 of the Workmen’s Compensation Act.

2. The case of said William Douglas against the State of Illinois, now pending in this court, as shown by the aforementioned statement, should be dismissed.

3. Payment of the amount agreed upon should be made by the Illinois Emergency Belief Commission out of any funds held by it for the payment of such claims.


text:
    Richard Davis, Claimant, vs. Illinois Emergency Relief Commission, Respondent.

      Opinion filed April 13, 1937.

   Advisory Opinion.

Per Curiam:

Pursuant to your request for an advisory opinion in the above entitled cause, based upon the foregoing statement of facts and the exhibits attached to and made a part of such statement, all of which have been submitted by you in the matter of the claim of Richard Davis against the Illinois Emergency Relief Commission, we beg to submit the following conclusions and opinion based upon such statement and exhibits, to wit:

On March 19th, 1935 the claimant and the respondent were operating under and bound by the provisions of the Workmen’s Compensation Act. On said date the claimant sustained accidental injuries which arose out of and in the course of his said employment. Under the provisions of Section 8-A of the Workmen’s Compensation Act, the respondent is required to provide the necessary first aid, medical and surgical services, and all necessary medical, surgical and hospital services thereafter, limited, however, to that which is reasonably required to cure or relieve from the effects of the injury.

Medical, surgical and hospital services were furnished and paid for by the Illinois Emergency Belief .Commission as follows:'

Dr. Samuel Matthews, medical and surgical services ................................$100.00

Bavenswood Hospital, hospital services..... 62.80

' Claimant wás also paid the sum of $48.00 as compensation at the rate of $16.00 per week for the period of three weeks immediately following the date of his operation.

Claimant makes no claim for compensatior. for any other or further disability, either temporary or p nmanent, sustained by him.

You desire our opinion as to whether the payments heretofore made by you as above set forth were justified.

In our opinion, the aforementioned payments made by you for medical, surgical and hospital services, and for compensation, in the total amount of Two Hundred Ten Dollars and Eighty Cents ($210.80) were authorized under the terms and provisions of the Workmen’s Compensation Act of this State.


text:
    Mark Beaubien, Claimant, vs. Illinois Emergency Relief Commission, Respondent.

      Opinion filed April 13, 1937.

   Advisory Opinion.

Per Curiam:

Pursuant to your request for an advisory opinion in the above entitled cause, based upon the foregoing statement of facts and the exhibits attached to and made a part of such statement, all of which have been submitted by you in the matter of the claim of Mark Beaubien against the Illinois Emergency Belief Commission, we beg to submit the following conclusions and opinion based upon such statement, and exhibits, to wit:

On the 10th day of October, A. D. 1935, the claimant and the respondent were operating under and bound by the provisions of the Workmen’s Compensation Act; that on said date the claimant sustained accidental injuries which arose out of and in the course of his said employment; that under the provisions of Section 8-A of the Workmen’s Compensation Act, the respondent is required to provide the necessary first aid, medical, and surgical services, and all necessary medical, surgical and hospital services thereafter, limited, however, to that which is reasonably required to cure or relieve from the effects of the injury.

Medical, surgical and hospital services were furnished and paid for by the Illinois Emergency Belief Commission, as follows, to wit:

Dr. Theodore L. Lescher, medical and surgical services .............................$105.00
St. Anne’s Hospital, hospital services....... 61.25
Total ............................$166.25

Claimant makes no claim for compensation for any disability either temporary or permanent, sustained by him.

You desire our opinion as to whether the payments heretofore made by you as above set forth were justified.

In our opinion, the aforementioned payments made by you for medical, surgical and hospital services, in the total amount of One Hundred Sixty-six Dollars and Twenty-five Cents ($166.25) were authorized under the terms and provisions of the Workmen’s Compensation Act of this State.


text:
    Sarah E. Shively, Claimant, vs. Illinois Emergency Relief Commission, Respondent.

      Opinion filed April 13, 1937.

   Advisory Opinion.

Per Curiam:

Pursuant to your request for an advisory opinion in the above entitled cause, based upon the foregoing statement of facts, and the exhibits attached to and made a part of such statement, all of which have been submitted by you, in the matter of the claim of Sarah E. Shively against the Illinois Emergency Belief Commission, we beg to submit the following conclusions and opinion, based upon such statement and exhibits, to wit:

On the 25th day of January, A. D. 1936, the claimant and the respondent were operating under and bound by the provisions of the Workmen’s Compensation Act. On said date the claimant sustained accidental injuries which arose put of and in the course of her said employment. Under the provisions of Section 8-A of the Workmen’s Compensation Act, the respondent is required to provide the necessary first aid, medical and surgical services, and all necessary medical, surgical and hospital services thereafter, limited, however, to that which is reasonably required to cure or relieve from the effects of the injury. The respondent failed and neglected to provide any medical, surgical or hospital services whatsoever. The claimant therefore secured the necessary medical, surgical and hospital services and paid therefor as follows:

To Passavant Hospital, hospital services... $ 52.50
To Dr. Emil Hauser, medical services..... 200.00
To Elizabeth Jansen, physiotherapy treatments ................................. 30.00
To Dr. J. S. Galloway, medical services... 5.00
To Dr. R. L. Van Dellen, medical services.. 43.00
Total ........................... $330.50

No claim is made by the claimant for temporary disability or for partial or total permanent disability.

We are therefore of the opinion that claimant is entitled to receive from the Illinois Emergency Relief Commission the amount paid and advanced by her for medical, surgical and hospital services as aforesaid, to wit, the sum of Three Hundred Thirty Dollars and Fifty Cents ($330.50).

We are further of the opinion that payment of such claim should be made by the Illinois Emergency Relief Commission out of any funds held by it and allocated for the payment of such claims.


author: Mr. Justice Yantis.

text:
    Elmer Groves, Claimant, vs. Illinois Emergency Relief Commission, Respondent.

      Opinion filed April 13, 1937.

   Advisory Opinion by

Mr. Justice Yantis.

Pursuant to your request for an advisory opinion, based upon the foregoing statement of facts submitted by you in the matter of the claim of Elmer Groves vs. Illinois Emergency Belief Commission, the following opinion is submitted, based upon the aforementioned statement:

We find that at the time of the accident in question, both employer and employee were operating under and bound by the provisions of the Illinois Worhmen’s Compensation Act; that said accident arose out of and in the course of such employment; that by virtue of the provisions of Sections 8 (b) and 8 (j) of said Ad said Commission is liable for the payment of compensation for temporary total disability for sixty-five (65) per cent of his average weekly wage; said wages appearing to have been at the rate of Sixty Six ($66.00) Dollars per month and claimant being the father of three children under sixteen years of age at the time of said accident. All medical bills appear to have been paid. Claimant is therefore entitled, upon said attached statement, to receive payment of compensation at the rate of Thirteen ($13.00) Dollars per week for six weeks, or Seventy Eight ($78.00) Dollars.

We are further of the opinion that payment of such claim should be subject:

First, to a dismissal of the claim of said Elmer Groves vs. Court of Claims, No. 2698, now pending in this court, and second, that payment of said claim be made by the Illinois Emergency Relief Commission out of any funds held by it and allocated for the payment of such claims.


author: Mr. Justice Tantis.

text:
    Raymond Ruby, Claimant, vs. Illinois Emergency Relief Commission, Respondent.

      Opinion filed April 13, 1937.
   Advisory Opinion by

Mr. Justice Tantis.

To the Illinois Emergency Relief Commission:

Pursuant to your request for an Advisory Opinion, based upon the foregoing statement of facts submitted by you in the matter of the claim of Raymond Ruby vs. The Illinois Emergency Relief Commission, the following opinion is submitted, based upon the aforementioned statement:

We find that at the time of the accident in question, both employer and employee were operating under and bound by the provisions of the Illinois Workmen’s Compensation Act; that said accident arose out of and in the course of such employment ; that under the provisions of Section 8 (b) of said Act said Commission is liable to claimant for temporary total incapacity for a period of 33 weeks on a minimum basis of Seven and 50/100 ($7.50) Dollars per week, and under Section 8 (e), Subsections 15 and 17 for a further allowance of Seven and 50/100 ($7.50) Dollars per week for 85% weeks for a forty-five (45) per cent permanent and partial loss of use of his right leg, making a total allowance of Eight Hundred Eighty-eight and 75/100 ($888.75) Dollars.

We are further of the opinion that such claim should be subject to the following conditions, to-wit:

1. That the case of Raymond Ruby vs. State, No. 2862, now pending in this court be dismissed.

2. That payment of the above compensation shall be made by the Illinois Emergency Belief Commission out of any funds held by it and allocated for the payment of such claims."


text:
    Dominick Ficarrotta, Claimant, vs. Illinois Emergency Relief Commission, Respondent.

      Opinion filed April 13, 1937.

   Advisory Opinion by

Mr. Justice Yantis.

To the Illinois Emergency Belief Commission:

Pursuant to your request for an Advisory Opinion, based" upon the foregoing statement of facts submitted by you in the matter of the claim of Dominick Ficarrotta vs. Illinois Emergency Belief Commission, the following opinion is submitted, based upon the aforementioned statement.

We find that at the time of the accident in question, both employer and employee were operating under and bound by the provisions of the Illinois Workmen’s Compensation Act; that said accident arose out of and in the course of such employment; that under the provisions of Section 8 (c) of said Act, said commission is liable for serious and permanent disfigurement suffered by claimant on the 24th day of February, 1936 consisting of a permanent scar extending across the bridge of claimant’s nose and to the left side thereof which, under the usual rules applied by the Industrial Commission in such matters, as appears from the record, would warrant an award of One Hundred Twenty Five ($125.00) Dollars; to which sum claimant is therefore entitled; the payment of such sum to be made by the Illinois Emergency Belief Commission out of any funds held by it and allocated for the payment of such claims.


text:
    Niels Nielsen, Claimant, vs. Illinois Emergency Relief Commission, Respondent.

      Opinion filed April 13, 1937.

   Advisory Opinion by

Mr. Justice Yantis.

Pursuant to your request for an Advisory Opinion, based upon the foregoing statement of facts submitted by you in the matter of the claim of Niels Nielsen vs. Illinois Emergency Relief Commission, the following opinion is submitted, based upon the aforementioned statement:

We find that at the time of the accident in question, both employer and employee were operating under and bound by the provisions of the Illinois Workmen’s Compensation Act; that by virtue of the provisions of Section 8 (e), Subsections 15 and 17 of said Act said Commission is liable for the payment of compensation for permanent partial loss of the use of claimant’s right leg; that said percentage of disability is not less than forty-six (46) per cent, and that payment of One Thousand ($1,000) Dollars in full adjustment with claimant for his injuries under a stipulated agreement by claimant and his attorney with said Commission, is fully justified by the record. It further appears that all hospital and medical bills have been paid, the former in the sum of Four Thousand Six Hundred Ninety-one and 55/100 ($4,691.55) Dollars and the latter in the sum of Nine Hundred Fifty ($950.00) Dollars. We, therefore, find that claimant is entitled, upon said attached statement of fact, to receive payment of compensation in a lump sum of One Thousand ($1,000.00) Dollars.

We are further of the opinion that payment of such claim should be subject:

First, to a dismissal of the claim of said Niels Nielsen vs. State, C. of C. No. 2791, now pending in this court, and second, that payment of said sum shall be made by the Illinois Emergency Belief Commission out of any funds held by it and allocated for the payment of such claims.


text:
    H. Mae Irwin, Claimant, vs. Illinois Emergency Relief Commission, Respondent.

      Opinion filed May 11, 1937.

   Advisory Opinion by

Mr. Justice Yantis.

Pursuant to your request for an Advisory Opinion, based upon the foregoing statement of facts submitted by you in the matter of the claim of H. Mae Irwin vs. Illinois Emergency Relief Commission, the following opinion is rendered, based upon the aforementioned statement:

We find that at the time of the accident in question, both employer and employee were operating under and bound by the provisions of the Illinois Workmen’s Compensation Act; that said accident arose out of and in the course of such employment.

The statement further discloses that this claim rests upon the same statement of facts as did the claim of Niels Nielsen, I. E. R. C. No. 13, in which an opinion was rendered at your request by this court on April 13, 1937, both claims arising out of the murderous assault committed by Henry Arden and his mother, on the 25th day of January, 1935. It appears that Alice Mae Irwin, who was killed while in the performance of her duties as a case worker for your Commission, is survived by her mother, the claimant herein, and that the latter was partially dependent upon the said employee. It further appears that the mother has agreed to accept One Thousand Eight Hundred ($1,800.00) Dollars in full settlement of her claim. A statement of facts herein supports an award to the extent of partial dependency in favor of the mother, of forty-five (45) per cent, which sum would be in excess of a settlement of One Thousand Eight Hundred ($1,800.00) Dollars, and the amount of the funeral bill, of Three Hundred Thirty-eight -and 25/100 ($338.25) Dollars heretofore paid by the I. E. B. C. for the burial of Alice Mae Irwin. We therefore find that a settlement of One Thousand Eight Hundred ($1,800.00) Dollars, in addition to the said sum of Three Hundred Thirty-eight and 25/100 ($338.25) Dollars, payable to the claimant under a stipulated agreement between her and her counsel and the Commission is fully justified by the record.

We are further of the opinion that payment of such claim should be subject:

First: to a dismissal of the claim of H. Mae Irwin vs. State of Illinois, C. of C. No. 2773, now pending in this court, and

Second: that payment of such sum shall be made by the Illinois Emergency Belief Commission out of any funds held by it and allocated for the payment of such claims.


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    Harold C. Bough, Claimant, vs. Illinois Emergency Relief Commission, Respondent.

      Opinion filed May 11, 1937.

   Advisory Opinion by

Mr. Justice Yantis.

Pursuant to your request'for an Advisory Opinion, based upon the foregoing statement of facts submitted by you in the matter of the claim of Harold C. Bough vs. Illinois Emergency Relief Commission, the following opinion is rendered, based upon the aforementioned statement:

We find that at the time of the accident in question, both employer and employee were operating under and bound by the provisions of the Illinois Workmen’s Compensation Act; that said accident arose out of and in the course of such employment; that the essential elements for an award in the case of an injury resulting in hernia are shown by the statement of facts to have existed; that by virtue of the provisions of Section 8 (a) of said Act, the Commission was liable for the payment of compensation for temporary total disability and for medical and doctor bills incurred in relieving said employee from the effects and results of said injury. From the statement made, the payment of such medical and doctor bills and the expenditure of the sum of One Hundred Four ($104.00) Dollars by the Illinois Emergency Belief Commission as a result of said injury was and is justified under the terms of the Workmen’s Compensation Act.

As it appears from the statement that full adjustment has been made with the injured employee, a final release should be obtained.


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    Arthur Krause, Claimant, vs. Illinois Emergency Relief Commission, Respondent.

      Opinion filed May 11, 1937.

   Advisory Opinion by

Mr. Justice Tantis.

Pursuant to your request for an Advisory Opinion, based upon the foregoing statement of facts submitted by you in the matter of the claim of Arthur Krause vs. The Illinois Emergency Relief Commission, the following opinion is submitted, based upon the aforementioned statement:

We find that at the time of the accident in question, both employer and employee were operating under and bound by the provisions of the Illinois Workmen’s Compensation Act; that said accident arose out of and in the course of such employment; that under the provisions of Section 8 (b) of said Act said Commission is liable to claimant for temporary total incapacity for the period of such incapacity, i. e. twenty-six (26) weeks; that a settlement by agreement of the amount of such liability in the sum of One Hundred ($100.00) Dollars, is within the limit of liability fixed by the terms of the Workmen’s Compensation Act; that claimant appears to have been advised by counsel and has been furnished by respondent such medical care as was required under the terms of said statute.

We are therefore of the opinion that claimant should receive settlement on said claim from the I. E. R. C. in the sum of One Hundred ($100.00) Dollars, and that such settlement should be subject to the following conditions, to wit:

1. That the case of Arthur Krause vs. State of Illinois, Court of Claims No. 2389, now pending in this court should be dismissed.

2. That payment of the above compensation shall be made by the I. E. R. C. out of any funds held by it and allocated for the payment of such claims.


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    George Reese, Claimant, vs. Illinois Emergency Relief Commission, Respondent.

      Opinion filed June 3, 1937.

   Advisory Opinion by

Mr. Justice Tantis.

Pursuant to your request for an Advisory Opinion, based upon the foregoing statement of facts submitted by you in the matter of the claim of George Reese vs. Illinois Emergency Relief Commission, the following opinion is submitted, based upon the aforementioned statement:

We find that at the time of the accident in question, both employer and employee were operating under and bound by the provisions of the Hlinois Workmen’s Compensation Act; that the injury to claimant’s right eye arose out of and in the course of his employment and that under the provisions of Section 8 (a) of the Workmen’s Compensation Act the Illinois Emergency Relief Commission is liable for the necessary first-aid medical and surgical services, and for such necessary medical, surgical and hospital services thereafter as may be reasonably required to cure or relieve the employee from the effects of said injury; that the payment therefore, of the bill of Dr. Charles N. Stephens for services rendered claimant, as shown by the record, in the sum of Forty Six ($46.00) Dollars was justified and legally proper.

It further appears that as a result of the accident, claimant was unable to work for approximately four and one-half months; that claimant is entitled to compensation for temporary total incapacity for such period; that a settlement has been agreed upon between claimant and said Commission in full settlement of his rights to compensation for said accidental injury in the sum of One Hundred ($100.00) Dollars; that such agreement has been sanctioned by claimant’s attorney and that said sum is within the amount fixed under the terms of the Workmen’s Compensation Act. We are therefore of the opinion that such settlement is properly made by said Commission, and that the following conditions should be observed in connection therewith.

First: That the claim of George Reese vs. State of Illinois, Court of Claims No. 2581, now pending, should be dismissed.

Second: That payment of the above compensation shall be made by the Illinois Emergency Belief Commission out of any funds held by it and allocated for the payment of such claims.


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    Tobey Ellis, Claimant, vs. Illinois Emergency Relief Commission, Respondent.

      Opinion filed June 3, 1937.

   Advisory Opinion by

Mr. Justice Yantis.

Pursuant to your request for an Advisory Opinion, based upon the foregoing statement of facts submitted by you in the matter of the claim of Tobey Ellis vs. Illinois Emergency Relief Commission, the following opinion is submitted, based upon the aforementioned statement:

We find that at the time of the accident in question, both employer and employee were operating under and bound by the provisions of the Workmen’s Compensation Act; that claimant’s accident was in the course of and arose out of his employment, and that the Commission had notice of the accident and that demand of compensation was made by employee within the requirements of the said Act. The record further discloses that the injury suffered by claimant to his left foot in the fall sustained by him on February 15, 1935, caused such a fracture of the left tibia and os. caléis that claimant was temporarily and totally disabled for a period of at least six months and suffered a permanent partial loss of the use of the left leg of approximately ten (10) per cent. We further find that by virtue of the foregoing a settlement of hospital and medical bills by your said Commission is legal under the provisions of said Workmen’s Compensation Act, and that a settlement with claimant in full for claims growing out of said accidental injury, by and with approval of his attorney, in the sum of Three Hundred Thirteen and 50/100 ($313.50) Dollars, is within the amount which claimant would be entitled to under the provisions of said Workmen’s Compensation Act. We are therefore of the opinion that such settlement is proper and that in making same the following conditions should be observed:

First: That the claim of Tobey Ellis vs. State of Illinois, Court of Claims No. 2662, now pending in the Court of Claims should be dismissed, and

Second: That payment of the above compensation shall be made by the Illinois Emergency Belief Commission out of any funds held by it and allocated for the payment of such claims.


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    Charles Hankus, Claimant, vs. Illinois Emergency Relief Commission, Respondent.

      Opinion filed June 30, 1937.
   Advisory Opinion by

Mr. Justice Tantis.

Pursuant to your request for an Advisory Opinion, based upon the foregoing statement of facts submitted by you in the matter of the claim of Charles Hankus vs. Illinois Emergency Relief Commission, the following opinion is rendered, based upon the aforementioned statement:

We find that at the time of the accident in question, both employer and employee were operating under and bound by the provisions of the Illinois Workmen’s Compensation Act; that said accident arose out of and in the course of such employment.

Claimant herein appears to have sustained an injury on the 8th day of October, 1934 while employed as a laborer by the Illinois Emergency Relief Commission. At the time of said accident he was working in a warehouse when a pile of cement bags fell on him, resulting in a fracture of both legs. The record discloses substantial hospital treatment, the bill for which has been paid by the Relief Commission, and medical services rendered by Dr. H. W. Mullins for which the Commission states it is ready to pay, in the sum of Two Hundred Twenty-six ($226.00) Dollars. At the time of the accident claimant had three children under sixteen years of age: Stanley, born in 1922; Thaddeus, born in 1923 and Mitchell, born in 1926.

Claimant is shown to have been in the hospital from October 8,1934 to the 16th day of February, 1935. It appears that his wages were Fifty Cents (50c) per hour for forty-two (42) hours per week. The record discloses that claimant has suffered a permanent disability and that he wohld be entitled to an award for temporary total disability while in said hospital, and a permanent partial disability for the condition resulting from the injuries to his two legs. We further find that a settlement of Two Thousand ($2,000.00) Dollars, in addition to the hospital and medical bills paid or assumed by the Commission, payable to claimant under a stipulated agreement between him and his counsel and the Commission, is fully justified by the record. We are further of the opinion-that payment of such claim should be subject:

First, to a dismissal of the claims of Charles Hankus vs. State of Illinois, Court of Claims Nos. 2732 and 2736 now pending in this court.

Second, the payment of such sum shall be made by the Illinois Emergency Belief Commission out of any funds held by it and allocated for such purpose.


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    Stella McGee, Claimant, vs. Illinois Emergency Relief Commission, Respondent.

      Opinion filed June 30, 1937.

   Advisory Opinion by

Mr. Justice Tantis.

Pursuant to your request for an Advisory Opinion, based upon the foregoing statement of facts submitted by you in the matter of the claim of Stella McGee vs. Illinois Emergency Relief Commission, the following opinion is rendered, based upon the aforementioned statement:

We find that at the time of the accident in question, both employer and employee were operating under and bound by the provisions of the Illinois Workmen’s Compensation Act; that said accident arose out of and in the course of such employment.

The facts submitted in such statement show that Joseph J. McGee was employed with a crew of men on the 8th day of August, 1934 in laying a drain pipe at the fish hatchery at Carlyle, Illinois; that the temperature was from 104 degrees to 105 degrees, and that because of the excessive heat, the men were working in ten-minute shifts; that Joseph J. McGee was working in a ditch four feet deep and one and one-half feet wide, removing loose dirt with a shovel; that he suffered a sunstroke on the afternoon of that date; he was taken to a hospital the next morning and there remained until his death on August 20,1934; that his wages were on the basis of a six-hour day, 50c per hour, under irregular employment; that he left surviving, his wife, claimant, Stella McGee and a grandchild, Ennis McGee, who was dependent upon him for such grandchild’s sole support; that claimant, by and with the advice of counsel, has agreed to accept Two Thousand ($2,000.00) Dollars in full settlement of her claim.

An applicant in a heat prostration case must as in all other cases, prove by competent and sufficient evidence that the accident arose out of and in the course of the employment. The mere fact that the sunstroke occurred while employee whs in the discharge of his regular duties is insufficient unless it also appears that such prostration arose out of the employment. Such accident cannot be said to arise out of the employment unless there is competent proof that the employee was subjected to an unusual and special hazard from the heat greater than that to which the public generally, and other workmen in the same vicinity, were subjected. The statement of facts submitted in this claim shows that Joseph J. McGee and those working with him down in the ditch were in fact subjected to a special degree of exposure to the sun’s rays and extreme and unusual heat, and a lack of air enjoyed by others not engaged in such work. It therefore appears from the said statement of facts that an award is properly allowable under the provisions of the Workmen’s Compensation Act, and that the payments heretofore made by the Commission for medical and hospital charges were properly paid, and that a settlement with claimant, as the widow of Joseph J. McGee, in full for the death of the latter, in the sum of Two Thousand ($2,000.00) Dollars, is within the limits of liability under Section 7 (a) of the Workmen’s Compensation Act and is a, proper settlement with claimant, it appearing that she is duly advised by counsel. (Brown vs. State, 8 C. C. R. 442.)

Payment of such claim should be subject, first, to a dismissal of the claim of Stella McGee vs. State of Illinois, Court of Claims No. 2559, now pending; and second, the payment of such sum shall be made by the Illinois Emergency Belief Commission out of any funds held by it and allocated for such purpose. •


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    Jonathan Taylor, Appellant, v. Michael Sprinkle, Appellee.
    APPEAL FROM GALLATIN.
    In all special pleas to the consideration of a note, the manner of avoiding the obligation ought to be shown; a failure to do it is error.
   Opinion of the Court. This was an action of covenant. The fifth plea states, that the consideration failed. This plea was demurred to, and the demurrer sustained by the court. The validity of the fifth plea, is the only point before the court. The plea was filed under the statute, which introduces a new remedy contrary to the common law, and ought not to be extended too far; and in all special pleas, the manner of avoiding the obligation ought to be shown. As the precise manner is not shown by this plea, it is insufficient, and the demurrer to it was properly sustained. The judgment of the circuit court is affirmed, with five per cent, damages and costs.

Judgment affirmed.

         Justice Browne having decided this cause in the court below, gave no opinion.

       Laws of 1819, page 59.

       The principle asserted in this case has been repeated in numerous cases since this decision was made. A reference only to them is necessary. Cornelius v.
        Vanorsdale, post. Pool v. Vanlandingham, id. Bradshaw v. Newman, id. Sims v. Klein, id. Swain v. Cawood, 2 Scammon, 505. Vanlandingham v. Ryan, 17 Illinois Rep., 25.
      A plea of failure of consideration to an action upon a note, should state particularly in what the failure consisted. General allegations are not sufficient. Parks v. Holmes, 22 Illinois Rep., 522.
      Under the general issue it is not competent to show a total or partial failure of consideration of a promissory note. Rose v. Mortimer, 17 Illinois Rep., 475.
      Under a plea of a total failure of consideration, a partial failure can not be given in evidence. Sims v. Klein, post. Swain v. Cawood, 2 Scam., 505.


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    Elijah Smith who sues for the use of William Johnson, Appellant, v. William Bridges, Appellee.
    APPEAL FROM MADISON.
    Although no particular form is necessary to make a note, yet the writing must show an undertaking or engagement to pay, and to a person named in it, or to hearer or holder of the instrument.
   Opinion of the Court. The plaintiff below, states in his petition, that he holds notes on, &o.” and the instrument on which suit is brought, has not a single feature of a note, inasmuch as it does not appear there was any undertaking by the defendant to pay any person at all.

Although no particular form is necessary to make a note, yet the writing must show an undertaking or engagement to pay, and to a person named in it, or to bearer or holder of the instrument. The judgment of the court below is reversed, and the cause remanded to the court below.

Judgment reversed.

       Justice Reynolds having been counsel in this cause, in the court below, gave no opinion.

      .) A promissory note is defined to be “a promise or agreement in writing to pay a specified sum, at a time therein limited, or on demand, or at sight, to a person therein named or his order, or to bearer.” Chitty on Bills, 516. Walters v. Short, 5 Gilm., 259. All notes must contain the name of the payee, unless payable to bearer. Bailey on Bills, 22.
      No action can be maintained on an instrument in writing for the payment of money, unless the instrument shows on its face to whom it is payable. Mayo v. Chenoweth, post.
      Bills of exchange and promissory notes should be made payable to some person specified, but this may be done without inserting the name, if the payee be so certainly specified or referred to, as to be ascertained by allegations and proofs. Adams et al. v. King et al., 16 Ills. Rep., 169.
      An instrument purporting to be a promissory note, payable to one of two persons in the alternative, can not be sued on as such. Musselman v. Oakes, 19 Ills. Rep., 81.


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    Amos Chipps, Appellant, v. Thomas Yancey, Appellee.
    APPEAL FROM POPE.
    The plea of nil debet is not a good plea to an action of debt upon a record.
   Opinion of the Court. This was an action of debt on a judgment rendered in the State of Kentucky. The defendant pleaded nil debet, to which there was a demurrer, which the court sustained. To reverse this opinion, this appeal was taken. It is considered by the court, that the judgment of the court below, sustaining the plaintiff’s demurrer, to the defendant’s plea, be affirmed with costs,

Judgment affirmed.

       Justice Wilson having decided this cause in the court below, gave no opinion.

         Nil debet is a bad plea in an action of debt brought on a judgment obtained in another State. Armstrong v. Carsars, exr., 2 Dall, 302. Mills v. Duryee, 7 Cranch, 480.

        Nil debet is not a good plea to an action of debt on a recognizance, nor to any action founded on a record or specialty. Bullís v. Giddins, 8 Johns., 82.

       In an action of debt brought on a sheriff’s bond, the plea of nil debet is bad on demurrer. Where a bond is'the foundation of an action of debt, nil debet is not a good plea. It is otherwise where the instrument is but the inducement to the action. Davis v. Burton et al., 3 Scam., 42. King v. Ramsey, 13 Ills. R., 622.


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    François Coleen and Abraham Claypole, Appellants, v. Daniel Figgins, Appellee.
    APPEAL FROM MADISON.
    The act of the General Assembly creating circuit courts, was approved on the 31st of March, 1819, and on the same day a writ issued out of the clerk’s office of the circuit court of Madison county, returnable to the May term following.
    The writ is void, as the act had no operation until the 1st day of April. Appearance can not make the writ good, that and pleading, will cure voidable, but not void process.
   Opinion of the Court. It appears from the record in this cause, that the writ issued by the Madison circuit court, on the 31st day of March, 1819, and made returnable to May term following, and that the act creating circuit courts, passed on the same day the writ issued. Although it appears, that the act establishing circuit courts, passed on the 31st day of March, yet the court are clearly of opinion, that it did not take effect until the first day of April, and that the process is therefore void, as the clerk had no authority to issue the writ, and make it returnable to a court not in existence, at the time the writ issued. No appearance could make the writ good. The court below was bound to have quashed it, it differing materially, from process that is voidable merely, where appearing and pleading might cure the defect.

Kane, for appellants.

Winchester, for appellee.

It is unnecessary for the court, to notice any other error assigned, as the point already decided, determines the case.

The judgment of the court is reversed,

Judgment reversed.

       Justice Beynolds having decided this cause in the court below, gave no opinion.

         An appearance of the defendant by attorney, cures any antecedent irregularity of process. Knox et al. v. Summers et al., 3 Cranch, 496.
      Process returnable out of term is void, and can not be amended. Cramer v. Van Alstyne, 9 Johns., 386.

       It can hardly admit of a doubt that an appearance cures all defects as to the manner in which a party is brought into court. If a party, without process, pleads to an action, it is too late for him then to say that no process was issued or served on him. He is then in court, and it is immaterial whether he appears in compliance with the mandates of the law, or whether he waives a right which he might have insisted on, and voluntarily places himself in a position in which he is required to make bis defense. The decisions on this question are uniform. In Easton et al. v. Altum, 1 Scam., 250, the court said: “ The authorities are numerous and explicit, that irregularity of process, whether the process be void or voidable, is cured by appearance without objection.” And in Mitchell v. Jacobs et al., 17 Ills. Rep., 236 : “A defendant appearing without objection waives all objections thereto, although the process may be void, or there may have been no service.” To the same effect is Mineral Point R. R. Co. v. Keep, 22 Ills. Rep., 9. The following cases have also been passed upon by the Supreme Court of this State, in each of which this question arose, and received substantially the same solution. Pearce et al. v. Swan, 1 Scam., 269. Vance et al. v. Funk, 2 Scam., 263. Beecher et al. v. James et al. id., 463. Palmer v. Logan, 3 Scam., 57. Bowles’ heirs v. Rouse, adm’r., 3 Gilm., 409. Whittaker et al. v. Murray et al., 15 Ills. R., 294.
      Although a general appearance will cure all irregularities as to the issuing or service of process, yet an appearance for the purpose of objecting to such process or service will not have that effect. Mitchell v. Jacobs et al., 17 Ills. R., 236. Anglin v. Nott, 1 Scam., 395. Little v. Carlisle et al., 2 Scam., 376.


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    James A. Whitesides and others, Plaintiffs in Error, v. The People of the State of Illinois, Defendants in Error.
    ERROR TO POPE.
    If an indictment does not aver the year to be the year of our Lord, and does not contain the words, “ in the name and by the authority of the people of the state of Illinois,” it is bad.

    In an indictment for a riot, the facts constituting a riot, should be clearly set forth.

       An indictment or complaint which states the year of the commission of the offense in figures only, without prefixing the letters “A. D.” is insufficient. Commonwealth v. McLoon, 5 Gray, (Massachusetts) Rep., 91. State v. Lane, 4 Iredell, 121.
      In State v. Hodgeden, 3 Vermont Rep., 481, the time of the commission of the offense was stated as follows: “A. D. 1830,” and was held to be sufficient. And similar was the case of State v. Gilbert, 13 Vermont Rep., 647.

        In Hall v. State, 3 Georgia Rep., 18, the offense was charged to have been committed “ In the year eighteen hundred and forty-six ; ” and the court said they would presume that to mean “ In the year of our Lord." The same was held by the Supreme Court of Indiana in Engleman v. State, 2 Carter, 91.
      Prom the authorities we think an indictment which alleges an offense to have been committed “in the year," &c., would be held good, although the words “ of our Lord," were omitted.
      In McFadden v. Fortier, 20 Ill. Rep., 515, the court referred to the second proposition decided in the case of Whitesides v. The People, and approved of the decision in that case.

   Opinion of the Court. This was a criminal prosecution for a riot, against the plaintiffs in error. Three errors are assigned.

1. Uncertainty in the indictment, in not averring the year to be the year of our Lord.

2. The form prescribed by the constitution, in which criminal prosecutions shall be commenced, is not pursued.

3. There is not such a criminal offense alleged in the indictment, as will make the plaintiffs in error guilty of a riot, if committed.

On the first point, the law makes it necessary to have common certainty in every indictment, and nothing can be inferred to aid it. Without inference, the year could not be gathered from the indictment, and therefore it is defective. On the second point, when a constitution or act of the legislature, prescribes a certain form to be used in legal proceedings, it would seem that the court has no power to dispense with that form. Therefore, as the indictment does not pursue the form given in the constitution, that all indictments shall be carried on “ in the name, and by the authority of the people of the state of Illinois,” it is bad.

On the third point, the charge in the indictment is, that the defendants made a great noise and disturbance of the peace. This, the court considers too vague and uncertain. In criminal proceedings, the charge should be distinct and positive, and the way and manner in which the great noise and disturbance of the peace was made, should have been stated. For this omission, the indictment"is also defective. The judgment of the court below must be reversed,

Judgment reversed.

       In an indictment a day certain must be stated, so must also the year, otherwise the indictment will be insufficient, and (in England) the year of the king’s reign is usually inserted; but the year of our Lord is equally unobjectionable. Archbold’s Crim. Pl., 11.
      The criminal code of 1827, page 157, provides, that “All exceptions which go merely to the form of an indictment, shall be made before trial, and no motion in arrest of judgment, or writ of error shall be sustained, for any matter not affecting the real merits of the offense charged in the indictment."


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    Joseph Cornelius, Plaintiff in Error, v. Simon Vanorsdall, Assignee of John De Rush, Defendant in Error.
    ERROR TO ST. CLAIR.
    A plea alleging a failure of consideration is insufficient, without setting out wherein the failure consists.
   Opinion of the Court. In this case there was a plea alleging a failure of consideration, to which there was a demurrer. The demurrer having been sustained by the court below, this writ of error is prosecuted, to reverse that judgment. It is considered by the court, on the authority of the case of Taylor v. Sprinkle, decided at the last term, that the judgment of the court below be affirmed,

Judgment affirmed.

         Taylor v. Sprinkle, ante p. 17. Poole v. Vanlandingham, post p. Bradshaw v. Newman.

       See note to Taylor v. Sprinkle, ante, page 17.


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    John Y. Sawyer, Plaintiff in Error, v. Benjamin Stephenson, Defendant in Error.
    ERROR TO MADISON.
    Granting new trials, rests in the sound discretion of the court, and as a general rule, the refusal to award one should not be considered as error.
    An affidavit of a juror who tried the cause, may be received to prove improper conduct on the part of the jury.
    On a motion for a new trial in the court below, the defendant offered the affidavit of one of the jurors who tried the cause, setting forth, that one of the jurors, who was sworn as a witness in the cause, gave in the jury room, new, other and additional testimony, by reason of which, deponent was induced to give a verdict for the plaintiff, when, if it had not been for such testimony, so given by one of their own body, he, deponent, would have found a verdict for the defendant. The court granted the defendant a new trial. To reverse which opinion, a writ of error was prosecuted.
   Opinion of the Court. Granting new trials, rests hi the sound discretion of the court before which the trial is had, and as a general rule, a refusal to grant a new trial, should not be considered as error; unless it appears manifest, that justice is rendered thereby more precarious.

The first question for consideration is, would the facts disclosed by the affidavit, have justified the court in awarding a new trial, if they had been sworn to by a person not of the jury ? We are satisfied they would, and although new trials should be granted very cautiously for irregular and improper conduct on the part of the jurors in their retirement, when such misconduct is disclosed by an affidavit made by one of the body; yet being fully satisfied of the truth of the facts disclosed in this manner, as also that the juror has not been tampered with, and improperly influenced to swear falsely, and that no such verdict would have been found, if the jury had not listened to such improper testimony, the court would be as much bound to award a new trial on such affidavit, as if the truth of the facts therein contained, had been disclosed, by one not of the jury. The court, therefore, not being able to discover that the case under consideration is at variance with the principles here laid down, are of opinion that the court below acted in a new trial on that affidavit, and the must be affirmed,

Judgment affirmed.

       At the time of the rendition of this decision this was unquestionably correct, and has been affirmed in the following cases. Cornelius v. Boucher, post. Clemson v. Kruper, id. Collins v. Claypole, id. Street v. Blue, id. Adams et al. v. Smith, id. Vernon et al. v. May, id. Littleton v. Moses, id. Harmison v. Clark, 1 Scam., 131. But by the act of the legislature of 1837, Purples' Statutes, p. 824. Scales’ Comp., p. 264, sec. 23, it is provided that exceptions may be taken to the opinion of the court in overruling a motion for a new trial. Smith v. Shultz, 1 Scam., 491. This, however, was held to apply only to civil cases. Pate v. People, 3 Gilm., 645. Holliday v. The People, 4 Gilm., 111. Baxter v. The People, 3 Gilm., 368. Martin v. The People, 13 Ills., 341. And there was no similar statute applicable to criminal trials until in 1857, when an act was passed, giving the same right to except for a refusal to grant a new trial in criminal as in civil cases. Laws of 1857, p. 103. Scales' Compl., p. 1216.
      But the granting of a new trial even since the passage of the act making it eiror to refuse one has never been held a sufficient ground for an exception. Cornelius v. Boucher, post. Hill v. Ward, 2 Gilm., 292. Brookbank v. Smith, 2 Scam., 78.

       The refusal of the court to grant a new trial is not a matter for which a writ of error lies. Barr v. Grats, 4 Wheat., 213. 5 Cranch, 11 ibid. 187. 7 Wheat., 248.
      The affidavits of jurors to impeach a verdict can not be received. Dana v. Tucker, 4 Johns., 487. Forrester §c. v. Guard, Siddal, & Co., post.

       This, if not overruled, is very strongly doubted in the following cases. Forester et al. v. Guard et al., post. Browder v. Johnson, id. Smith v. Eames, 3 Scam., 81. And we think it is now safe to say that the affidavit of a juror ought not to be admitted to show what transpired in the jury room, or by what process of reasoning they came to their conclusions.
      But the affidavit of a juror, on a point entirely disconnected with his acts, or the motives for his conduct as a juror, as that he is not an alien, is not objectionable on the grounds on which it has been decided that a juror’s testimony can not be received to impeach his verdict. Guykowski v. The People, 1 Scam., 482.
      Affidavits of jurors can not be received to impeach their verdict, except in cases where a part of them swear they never consented to the verdict; but a verdict maybe supported bysuch affidavits. Smith v. Eames, 3 Scam., 76. Martin et al. v. Ehrenfels, 24 Ills., 187.


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    Jehu Scott, Appellant, v. John Cromwell, Appellee.
    APPEAL FROM MONROE.
    Where the plaintiff amends in matters of form only, the defendant is not, for that reason, entitled to a continuance as a matter of course.
    The defendant in a court below, the appellant here demurred specially to the plaintiff’s declaration, for informalities therein. The court sustained the demurrer, and gave plaintiff leave to amend, whereupon the defendant moved the court for a continuance, which motion the court overruled. To reverse this opinion, this appeal was taken.
   Opinion of the Court. Where the plaintiff amends in matters of form only, the defendant is not, for that reason, and as a matter of course, entitled to a continuance. He has however, the right to plead de novo. The judgment of the court below must be affirmed.

Judgment affirmed.

      .) The doctrine is well settled that an amendment of a mere formal matter will not entitle a party to a continuance, while an amendment in substance will work a continuance without cause being shown therefor by the opposite party. Rountree v. Stuart, post. Covell et al. v. Marks, 1 Scam., 525. Russell et al. v. Martin, 2 Scam., 493. Webb v. Lasater, 4 Scam., 548. Ills. Marine & Fire Insurance Co. v. Marseilles Manufacturing Co., 1 Gilm., 236. Hanks v. Lands, 3 Gilm., 227. O. & M. R. R. Co. v. Palmer et al., 18 Ills., 22.
      Courts may allow amendments on the trial, if not against positive rules, to secure the ends of justice, if the opposite party is not thereby taken by surprise; if so, a continuance may be allowed. Miller v. Metzger, 16 Ills., 390.
      It is not error to permit clerical errors to be amended on trial. Hargrave v. Penrod, post.
      Since the foregoing note was prepared, a decision of the Supreme Court has been published in which they use the following language. “ By the uniform rule of practice, the court has no power to permit an amendment of the declaration, in a matter of substance, without granting a continuance if desired by the defendant; nor has the court any power, after verdict, to permit amendments of substance, except upon terms of the payment of costs, setting aside the verdict, and granting a new trial. Where such amendment is made, it becomes essentially a new declsrration, which the party has a right to prepare to defend.” Brown et al. v. Smith et al., 24 Ills., 196,


text:
    James S. Beaumont, Appellant, v. - Yantz, Appellee.
    APPEAL FROM MONROE.
    A declaration in an action of trespass for taking and conveying away “four horses, the property of the plaintiff,” is sufficiently certain and descriptive of the property taken.
    This was an action of trespass de bonis asportatis, brought by Yantz against Beaumont in the court below, for taking and conveying away “ four horses, the property, goods and chattels of the plaintiff, of the value of three hundred dollars.” The defendant demurred to the declaration, and assigned as causes of demurrer, 1. That the horses were not described with sufficient particularity; and 2. That the value of each horse should have been stated in the declaration. The demurrer was overruled, and an appeal taken to this court.
   Opinion of the Court. The cases cited by the appellant’s counsel, do not apply to this case. It is not necessary that each horse should be particularly described. Mentioning the number of horses, and an allegation that they were the property of the plaintiff, is sufficient. There is no precedent to be found in the books, in which the property is precisely described, as to its shape, color, &c. A recovery in this action could well be pleaded in bar of a suit, for four black geldings, unless the plaintiff should new-assign, and show them to be other and different ones, from those for which this suit is brought.

As to the second objection, it is sufficient that the aggregate value of all the horses be set forth in the declaration. The judgment of the court below is affirmed.

Judgment affirmed.

       In trespass for taking and carrying away a quantity of poultry of several descriptions, it is not necessary to state how many there were of each description, the collective value of the whole being stated. Donaghe v. Roudeboush, 4 Munf., 251.


text:
    James Mason, Plaintiff in Error, v. N. Buckmaster, Assignee of P. Mason, Defendant in Error.
    ERROR TO MADISON.
    It is not required to make profert of writings not under seal.
    The statute makes it necessary for plaintiff to give oyer of all writings as the maker is bound to deny their execution under oath.
    In a case on an assigned note between maker and assignee, a consideration need not be averred.
    This was an action of assumpsit brought by Buckmaster, on a promissory note executed by James Mason to Paris Mason, and by him assigned to Buckmaster. Two objections were made by defendant in the court below, to the plaintiff’s declaration : 1. That there was no profert made of the note declared on ; and 2. There was no consideration averred or stated. The court overruled these objections and gave judgment for the plaintiff, to reverse which, the defendant sued out a writ of error, and assigned the same objections as grounds of error.
   Opinion of the Court. It is necessary by the common law, to make profert of writings under seal, so as to place them in the power of the court, to give 'the opposite party oyer if required, and to let the court see if the deed is fair and honest on view. From the statute, it is necessary for the party to have oyer of writings not under seal, on which suit is brought, as he is bound to deny the execution of them, under the plea of non est factum, under oath. A copy of the writing on which suit is brought, must be filed with the declaration, and the court can, upon a plea of oyer, compel the production of the original, so that no inconvenience can arise from the want of proferí. There is no error then, on this point.

As to the second point, the court believe it is never necessary to state a consideration in a case on an assigned note, between the maker and the assignee. The judgment of the court below is affirmed,

Judgment affirmed.

       Oyer can not be demanded of a record. If there is a variance between the record declared on and the one offered in evidence, it may be taken advantage of under a plea of nul tiel record. Giles v. Shaw, post. Staten v. The People, 21 Ills., 28.

         In declaring upon a bill of exchange or other simple contract, no proferí is made—so when a deed is stated only as inducement. 1 Chitty’s Pl., 259.
      In an action by the indorsee of a note, not void in its creation, and indorsed before it became due, against the maker, the consideration can not be inquired into. Baker v. Arnold, 3 Caine’s Rep., 279.
      If a note has been fraudulently obtained and put into circulation, in an action by the indorsee against the maker, it is competent for the defendant to show a want of consideration. Woodhull v. Holmes, 10 Johns., 231.

       An action of debt may be maintained on a bill of exchange by the payee against the drawer, although no consideration be expressed on its face. Dunlap v. Buckingham, 16 Ills., 109.

       Section 11, page 292, Scales’ Compl. Purple’s Statutes, page 773, provides, “ If any fraud or circumvention be used, in obtaining the making or executing of any of the instruments aforesaid, (notes and bonds,) such fraud or circumvention may be pleaded in bar to any action to be brought on any such instrument so obtained, whether such action be brought by the party committing such fraud or circumvention, or any assignee or assignees of such instrument.” This statute has received a construction in the following cases. Woods v. Hynes, 1 Scam., 103. Mulford v. Shepard, id., 583. Adams v. Wooldridge, 3 Scam., 256. In all of which it was held to apply only to cases of fraud in making or obtaining the instrument, and not in the consideration. In Woods v. Hynes, it was alleged that the goods for which the note was given were less in quantity and deficient in quality, from what they were represented; but the court held that that was a fraud in the consideration and not in the making or executing it, and was not a defense to a suit brought by an innocent purchaser without notice.


text:
    Thomas Cox, Appellant, v. John McFerron, Appellee.
    APPEAL FROM RANDOLPH
    A return, of two nihils to a scire facias to foreclose a mortgage, is equivalent to an actual service.
    This was an action commenced by scire facias in the Randolph circuit court, by McFerron against Cox, to foreclose a mortgage executed by the latter to the former. There were two nihils returned, upon which, the court on motion gave judgment for McFerron. The point made was, whether the return of two nihils on a scire facias was equivalent to the actual service of process, when the defendant can be personally served.
   Opinion of the Court. It appears, that by the common law, all writs of scire facias were proceeded on in the same manner by the return of two nihils; this was discretionary with the party issuing the process. Our statute gives this writ to the mortgagee, and, no doubt, in giving the writ, all the attributes that belonged to it at common law, were given also. It is to have a common law operation, and possess the common law incidents.

We are of opinion that the return of two nihils, is equivalent to a service, and authorized the court to render judgment as in cases where there has been an actual service. The judgment is therefore affirmed.

Judgment affirmed.

       When the statute has provided remedies by writ of scire facias, or summons in the nature of a scire facias, which were unknown to the common law, and which are of a personal character merely, the same must be' executed like any other ordinary process—by personal service on the parties. McCourtie v. Davis, 2 Gilm., 306.
      Two nihils, in case of scire facias upon a record, or recognizance, are sufficient to give the court Jurisdiction of the persons of the cognizors, and to authorize judgment of execution. Choate v. The People, 19 Ills. R., 63. Sans v. The People, 3 Gilm., 327. Besimer v. The People, 15 Ills. R., 440.


text:
    George Blair and Wife, Plaintiffs in Error, v. Henry Sharp, Defendant in Error.
    ERROR TO WASHINGTON.
    An omission of a colloquium, in a declaration for slander in charging the plaintiff with swearing a lie, is fatal.

    This was an action of slander brought in the Washington circuit court by Blair and wife, against Sharp. Prom the agreed case, it appears, that the only words charged in the declaration to have been spoken of the plaintiff by the defendant, were, that the plaintiff “ had swore a lie.” There was no colloquium showing how, or on what occasion the lie was sworn. The court below declared the declaration insufficient, and that the words as stated, were not actionable. To reverse that judgment, a writ of error was sued out by plaintiff.

       Such was the rule of the common law, but it is now materially changed in this state, by statute. Section 2, page 1137, Scate’s Comp’l. Purple’s Statutes, page 1126, provides that, “It shall be deemed slander, and shall be actionable, to charge any person with swearing falsely, or with having swore falsely, or for using, uttering or publishing words of, to, or concerning any person, which in their common acceptation, amount to such charge, whether the words be spoken in conversation of and concerning a judicial proceeding or not.” And under this statute the court held that “ Words which, in their common acceptation, amount to a charge of having sworn falsely, are actionable, whether spoken of and concerning a judicial proceeding or not; and are none the less actionable because the declaration avers that they were spoken in a conversation concerning a judicial proceeding.” “It is not necessary that the words spoken in a conversation concerning a judicial proceeding, should be spoken under such circumstances as to impute the crime of pequry.” Sanford v. Gaddis, 13 Ills., 329.
      In an action of slander for words used charging false swearing, where the defendant by his pleas has based his defense on the fact that the plaintiff was guilty of perjury, he will be required to prove the fact of the perjury. He must make out the defense which he has chosen in his pleadings, even though he was not obliged to charge perjury in order to justify the words spoken. Hicks v. Rising, 24 Ill., 566
      The first section of the statute above referred to also provides that “ If any person shall falsely use, utter or publish words which, in their common acceptation, shall amount to charge any person with having been guilty of fornication or adultery, such words so spoken shall be deemed actionable, and he, she or they, so falsely publishing, speaking or uttering the same, shall be deemed guilty of slander.” And under that section of the statute the court said: “Words, which in their common acceptation, amount to a charge of fornication, are slanderous, and are actionable without colloquium or innuendo; and the latter, if used, is at most but surplusage.” Elam v. Badger, 23 Ill., 498.
      In an action of slander for words charging the plaintiff with fornication or adultery, no reference need be made in the pleadings to the statute on that subject, id.

   Opinion of the Court. The omission of a colloquium, showing to what the words spoken, referred, so as to render them actionable, we consider fatal. The declaration is not good at common law, nor under the statute. The declaration does not bring the case within the letter or meaning of the statute. The judgment of the court below is affirmed, with costs,

Judgment affirmed.

       To say that the plaintiff has swore false, or taken a false oath, is not actionable. 8 Johns. Rep., 109. There must be a colloquium of its being in a cause pending in a court of competent jurisdiction, and on a point material to the issue. 13 Johns. Rep., 48. 1 Caine’s Rep., 347. 2 Johns., 10. The term foresworn is not in itself actionable. 6 T. R., 691. 8 East., 427. Vide Laws of Illinois, 1823, p. 82.


text:
    Joseph French, Appellant, v. John R. Creath, by George Creath, his next friend, Appellee.
    APPEAL FROM RANDOLPH.
    An order of the court below, appointing the next friend of an infant plaintiff is not necessary.
      [Vide Laws of 1831, entitled “An Act to amend an act, entitled an act concerning practice in courts of law,” approved January 29,1827.]
    An action for slander is not taken away, though the statute creating the charged, be repealed,

    John R. Creath, an infant under the age of twenty-one years, by George Creath, his father and next friend, brought an action, in the circuit court of Jackson, and removed by change of venue to Randolph, against Joseph French, for slander. On the trial a verdict was found for plaintiff, and a motion made by defendant for a new trial, and in arrest of judgment, which were overruled, and an appeal taken to this court where it was assigned for error, 1. That there was no order of the court below, appointing the next friend of the infant plaintiff; and 2. That the slanderous words spoken, charged the plaintiff with the commission of the crime in 1815, and as the law creating the offense with which he was charged, is repealed, no words spoken in relation to that crime are actionable.
    Starr, for appellant.
    Kane, for appellee.

       In Robb v. Smith, 3 Scam., 46, it was said by the court in argument, that where a suit was brought by an infant and the infancy was pleaded in abatement, the plaintiff might amend by inserting the name of a prochein amy. The same was also held in Blood v. Harrington, 8 Pick., 552. This case is cited and approved in Heslep et al. v. Peters, 3 Scam., 45. And in a recent case the court held that “ It is not necessary that there should be a guardian, or prochein amy, for a minor at the time of suing out the process. If it were otherwise, the exception should be taken before pleading to the merits.” Stumps v. Kelley, 22 Ill., 140.

       An action for slander will lie for charging the plaintiff with a crime, the prosecution of which has been barred by the statute of limitations. Van Ankin v. Westfall, 14 Johns., 233.
      The repeal of a statute docs not affect rights acquired under the repealed statute. Naught v. Oneal, post.

   Opinion of the Court. We are of opinion, that the judgment of the court below ought to be affirmed. It is now too late to make the objection first stated, and as to the second there is no clearer principle that the action is not barred, because the statute creating the offense has been repealed. If the words spoken, had charged an offense to have been committed in another state, which is not punishable here, still they would be actionable, Judgment affirmed.

         An offense against a temporary statute can not be punished after the expiration of the act, unless a particular provision by laws be made for that purpose. 7 Wheat., 551.
      One guilty of perjury in proceedings under the bankrupt laws, cannot be prosecuted for the offense, after the repeal of the law. United States v. Passmore, 4 Dall., 372.


text:
    Joseph Cornelius, Plaintiff in Error, v. John Boucher, Defendant in Error.
    ERROR TO ST. CLAIR.
    Granting continuances and new trials rests in the discretion of the court and a refusal of either, cannot be assigned as error.
    Swearing the jury, is matter of form, and an irregularity in swearing them not objected to at the time can not be assigned as error.
    This was an action of covenant, brought in the St. Clair circuit court, by Cornelius against Boucher ; on the trial a verdict was found for the defendant, and a motion made by plaintiff for a new trial, which was overruled, and judgment entered on the verdict for the defendant. To reverse this judgment the plaintiff prosecuted this writ of error, and assigns for error, 1. That the affidavit of the defendant for a continuance, at the July term 1848, was not sufficient to authorize a continuance. 2. That there were three issues of fact made up, and the jury were sworn to try but one issue, and it does not appear, upon which they found their verdict; and 3. That the court erred in not granting a new trial on the affidavit of the plaintiff.
   Opinion of the Court. On the first point, there is no case within the recollection of the court, in which it has been considered error, to grant a continuance. The third objection will depend very much upon the same principle, that granting continuances and new trials, is so much a matter of discretion, that an appellate court can not undertake to inquire into the proper exercise of that discretion, in a case like the present. The court, however, must not be understood as saying, that in no case would it make the inquiry. If a case was brought up, upon bill of exceptions containing all the facts, it would furnish this court with the means of forming an opinion, as to the proper exercise or abuse of the discretion of the court below.

The second error assigned, is considered equally untenable. The swearing the jury, is matter of form, and if not objected to at the time, an irregularity in the manner of swearing them, can not afterwards be assigned as error. There is no judgment of the court upon the point, and the jury is presumed to take into consideration the whole matter, and if their intention is manifest, the court will set right mere matters of form. The cases of Thompson v. Button, 14 Johns. Rep., 84; and Hawks v. Crofton, 2d Burrow, 698, are authorities in support of this opinion. The judgment of the court below is affirmed.

Judgment affirmed.

       See note to the case of Sawyer v. Stevenson, ante, page 24.

       The decisions are abundant that formal objections must be taken before trial, or if not they are waived. Curtis v. The People, post. Guykowski v. The People, 1 Scam., 479. Stone v. The People, 2 Scam., 338. Townsend v. The People, 3 Scam., 329. Conolly v. The People, 3 Scam., 477.
      A jury should not, at the commencement of a term, be sworn for the whole term, but should be sworn for the trial of each particular cause. Barney v. People, 22 Ill., 160.


text:
    John Thornton and others, Appellants, v. George Smiley and John Bradshaw, Appellees.
    APPEAL FROM UNION.
    If one of two administrators, loans the money of the estate, he does it upon his own responsibility, and an action to recover it back, should be brought in his own name alone.
    Smiley and Bradshaw, executed their note to Hezekiah West, as administrator of the estate of Weaver, deceased, for a sum of money, to recover which this action was brought in the name of said West and John Thornton and Mary his wife, late Mary Weaver, who were joined with West, in the administration on the estate of Weaver. The money was loaned by West alone, to Smiley and Bradshaw, and the note executed to him alone as administrator. An objection was made by defendants to the improper joinder of parties, which the court sustained, and gave judgment for the defendants. To reverse which, the plaintiffs appealed.
   Opinion of the Court. The court knows of no power in the administrator, by virtue of the trust conferred on him by law, to loan the money belonging to the estate ; if he does it, he acts upon his own responsibility, and renders himself liable to the estate. The note was made to West alone, and for that reason, the suit should have been commenced in his name, and a joinder of his co-administrators was improper, as no right of action, to recover the amount of the note, existed in them. Without determining any other question, for this ground alone, the court affirms the judgment,

Judgment affirmed.

        Vide Toller’s law of executors, page 480, where it is declared, that in equity, an executor may be compelled to pay interest, if he suffers the money of the estate to lie idle in his hands. This would seem to authorize a loan, or any other investment of the trust money.
      An administrator is not liable to pay interest upon assets in his hands, unless under special circumstances. Dexter v. Arnold, et al., 3 Mason, 248.

       Admitting that the administrator had no right to loan the money, how could the defendant take advantage of it 1 He executed his note to the plaintiff as administrator, and to him it was immaterial whether he was liable to the administrator personally, or in his representative character. Persons interested in the estate might, perhaps, object that the administrator had transcended his duty, and might hold him responsible for it; but if they are content with his actions it is not easily perceived how the defendant can complain.
      In Marsh et al. v. The People, 15 Ill., 284, it was held that when three were appointed administrators, each was liable for the acts of the others. If we are right in the proposition that the defendant could not object that the note was not the property of the estate, then it would follow that each being liable for the acts of all the others, all would have a right to join in an action for the recovery of the money.


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    George Brazzle and James Hawkins, Plaintiffs in Error, v. David Usher, Defendant in Error.
    ERROR TO GALLATIN.
    If parties appear and go to trial without a plea being put in, it is such an irregularity as will be cured, after verdict, by the statute of amendments.
    Usher brought an action of trespass, vi et armis, against Brazzle and Hawkins, in the Gallatin circuit court, and recovered a verdict and judgment against them. To reverse which judgment, they sued out a writ of error, and assigned for error, that there was no plea filed in the cause, and that a trial was had without a plea. It appears from the record, that the parties, by their attorneys, were present at the trial, and made no objections to the proceedings as they were.
   Opinion of the Court. The appearance of the parties cured the defect, if any, arising from the failure to file a plea. The statute of amendments will apply in this case, to cure the irregularity. The judgment of the court below must be affirmed.

Judgment affirmed.

       If one of several pleas be not answered, and the parties go to trial without any objection on the part of the defendant, the irregularity is cured by the verdict. Ross v. Redick, 1 Scam., 74. Armstrong v. Mock, 17 Ill., 166. Kelsey v. Lamb, 21 Ill., 559. Stumps v. Kelley, 22 Ill., 140. Puterbaugh v. Elliott et al., id. 157.
      A declaration contained two counts, upon one of which there was an immaterial issue, and the other was wholly unanswered. After judgment for plaintiff the defendant assigned for error, that judgment was entered on the immaterial issue, and that the second count was unanswered. Upon these assignments of error the court said: “ Will the non-joinder of an issue on the second count, or the immaterial issue, justify the reversal of the judgment for such causes 1 We think not: the statute of amendments and jeofails has provided against any error arising from such causes, and the defendant can not now assign either for error.” Graham v. Dixon et al., 3 Scam., 118. The grounds upon which this decision would seem to be based are—that going to trial without a plea was an error in favor of the defendant, and of which he could not afterwards complain. Kitchell v. Bratton, 1 Scam., 301. Arenz v. Reihle et al., id., 340. Bailey v. Campbell, id., 47. Clemson v. State Bank, id., 45. Thorn v. Watson et al., 5 Gilm., 27. On the count which was unanswered the plaintiff might have taken judgment ,by default, and the defendant was not injured by his not doing so.
      In the following cases defects have been held to be cured by verdict. State Bank v. Batty, 4 Scam., 201. Hamilton et al. v. Cook County, id., 527. Selby v. Hutchinson, adm’r, 4 Gilm., 327. Sullivan v. Dollins, 13 Ill., 88. Burst v. Wayne, id., 599. Spencer v. Langdon, 21 Ill., 192. Loomis v. Riley, 24 Ill., 307.


author: Per curiam.

text:
    George Naught, Plaintiff in Error, v. Hezekiah Oneal, Defendant in Error.
    ERROR TO WHITE.
    The of a statute does not affect rights acquired under the repealed statute.
    In an action of slander, if the words were spoken within one year repeal of the statute limiting such actions, the old statute will be no bar.
    This was an action of slander brought in the circuit court of White county, by Naught v. Oneal. The defendant pleaded the statute of limitations, “ that the cause of action did not accrue within one year from the commencement of the suit.” The plaintiff replied that the words were not spoken within one year previous to the commencement of the suit, but that the action was commenced within one year from the passage of the act of limitations. To this replication the defendant demurred, and the plaintiff joined in demurrer. The court sustained the demurrer, and from that judgment the plaintiff brought this writ of error.
   Per curiam.

If the cause of action accrued one year or more before the repeal of the statute of limitations, still, the old statute of limitations is a good bar to the action. It is a complete bar before the repeal, and the repeal of a statute does not affect the rights acquired under the repealed statute.

If the words in this case were spoken within one year before the repeal of the statute, the old statute will be no bar. But as, in this action, it does not appear at what time the words were spoken, it can not be determined whether the old statute be a bar or not. The judgment of the court must be reversed, and the cause remanded for new proceedings to ascertain the time when the words were spoken.

Judgment reversed.

       Laws of 1819, page 351. Ib. 141, sect. 8.

       Where a statute is repealed, except as to transactions passed and closed, it must be considered as if it had never existed. Ill. and Michigan Canal v. City of Chicago, 14 Ill., 335.
      In the construction of statutes of limitations, the rule is, that cases within the reason, but not within the words of the statute, are not barred. Bedell v. Janney et al., 4 Gilm., 208.
      A statute of limitations will not be applied to cases not clearly within its provisions. Hazell v. Shelby, 11 Ill., 9.
      See note to Mellick v. De Seelhorst, post.
      Note.—I have not been able to find any case decided at December term, 1821, except the case of Moreland v. Pierson, from Gallatin. There were two points made in that case, 1, as it regarded the sufficiency of the breach in the declaration ; and 2, the exclusion of a deposition from the jury. The judgment of the court below was affirmed. The case is one of no importance, and is therefore not reported.