text:
    Barthelmie Fortier et al., appellants, v. Charles Ballance, appellee.

      Jlppeal from Peoria.

    A. leased certain premises to B.for a term of years,reserving the right of re-entry in case of a failure to pay the stipulated rent. B. attorned to C. before the expiration of the term, and A. brought an action of forcible detainer against them: Held, that by this disavowal of A.’s title by B. and claiming to set up a hostile title in C. the lease become forfeited and A.’s right of entry complete.
    In cases of forcible detainer, where the relation of landlord and tenant exists, it is wholly immaterial whether the tenant,"or he to whom the tenant has surrendered ttie premises, shows title or not. The object of the proceeding is not to try the title to the land, but to enable the landlord to regain the possession of the premises after the termination of the lease, either by forfeiture or by the lapse of time.
    In a case of forcible detainer by the landlord against the tenant, the latter is not permitted to show that the title of the former has expired, or that some third person has the right to the possession. The tenant must first surrender the possesssion to him from whom he received it, before he shall be permitted to say that his landlord has no longer a right to retain it.
    Forcible Detainer, brought by the appellee against the appellants, and originally heard before a justice of the peace of Peoria county, when a verdict was rendered in favor of the plaintiff. The defendants appealed to the Circuit Court, and the cause was tried at the October term, 1848, before the Hon. John D. Catón and.a jury, when a verdict was again rendered in favor of the original plaintiff.

      0. Peters, for the appellants.
    1. The lease offered in evidence was improperly admitted. It showed that the time had not expired, and that plaintiff had no right to recover. Rev. Stat. 256-7, ch. 43, §1-
    The Act is to be strictly construed. Wells v. Hogan, Bre. 264; Ballance v. Fortier, 3 Gilm. 291.
    This latter case modifies the rule as to the pleadings, but does not change the rule of law as to the remedy. Atkinson v. Lester, 1 Scam. 407; Whitaker v. Gautier, 3 Gilm. 443.
    II. The clause reserving the right to re-enter and take possession for non-payment of rent, does not help the case, because[no act was done to create the forfeiture. To create a forfeiture in such a case, it must appear,
    1. That he demanded rent;
    2. That he demanded the precise amount of rent due, and not a penny more or less;
    3. That the demand was made on the precise day when the rent was due;
    4. That it was made on that day before sunset;
    5. That it was made upon the land; and
    6. That he re-entered and took possession, or attempted to do so for the purpose of forfeiture. Adams on Eject. 149, 282; Arch. Land. & Ten. 109, 105, 161, (top paging.)
    None of these pre-requisites are proved. But even if it were otherwise, it would not so aid the complainant as to entitle him to this remedy, for the reason that the time for which the land was “let” had not elapsed when the suit was commenced. This question is very fully considered, and the principle so settled in the case of Fifty Associates v. Howland, 11 Metc. 99; Oakley v. Schoonmaker, 15 Wend. 228-30.

      III. The case shows affirmatively, that the relation of landlord and tenant did not exist between Ballance and For-tier, but that Fortier was the owner of the land, and that he entered peaceably, claiming title.
    Fortier may show title in himself to defeat this action. 3 Coke’s Lit. 21, 22, top paging, (Thomas’ Ed.) note M; Willard v. Warren, 17 Wend. 260, 261; Meader v. Stone, 7 Metc. 147; Lampson v. Henry, 13 Pick. 38; Ballance v. Curtenius, 3 Gilm. 449; Ballance v. Fortier, ib. 296.
    One having title and right-of possession of land, may enter by stratagem, and it is not censurable for him so to do. Hyatt v. Wood, 4 Johns. 157, 158; Jackson v. Rowland, 6 Wend. 668; Evertson v. Sutton, 5 do. 881; 1 Chit. Gen. Pr. 644.
    Even in an action by landlord against tenant for rent, the tenant may show he was ejected by title paramount. Arch. Land. & Ten. 149, (top paging.)
    But Fortier was not, in any sense, such a tenant as will authorize this remedy against him. The relation of landlord and tenant must exist conventionally, and not when it only exists by operation of law. Evertson v. Sutton, 17 Wend. 281.

      C. Ballance, pro se.

    If there was any error committed in this case it was in favor of defendants. The Court below permitted him to show title to the premises, whereas by law no title of any kind is in question in this proceeding. Little v. Hinson, Morris’ (Iowa,) R. 111; The People v. Godfrey, 1 Hall, 246; 11 Johns. 509; The People v. Van Nostrand, 9 Wend. 52; Smith v. Dedman, 4 Bibb, 193.
    2. Blumb was plaintiff’s tenant and as such could neither dispute the landlord’s title nor attorn to a stranger, 1 Ark. 495; Brubaker v. Poage, 1 Mon. 297.
    3. Any lease or arrangement entered into with a stranger to the prejudice of the landlord is void, and the landlord may treat the new landlord with whom the arrangement is made as a tenant holding over, or denying his landlord, and maintain, this action against him. Gray v. Gray, 3 Litt. 465; 1 Doug. (Mich.) R. 179.
    And this even where the tenant acted in good faith supposing the one to whom he attorned had the right. 4 Litt. 309; 1 Doug. (Mich.) R. 179; Clark v. Stringfellow, 4 Ala. 356.
    5. Plaintiff without title but in possession may even maintain this action against the purchaser from Government. Little v. Hinson, Morris’ (Iowa,) R. 111; 1 Doug. (Mich.) R. 179.
    6. It matters not that plaintiffs were trespassers. They may nevertheless maintain this action against the owner in fee. Morris’ (Iowa,) R, 253.
    7. Even the vendee may maintain this action against his own vendor, if, instead of calling in the aid of the courts, he forces himself into the possession. Meechan v. Wilcox, 6 Missouri, 350.
    8. “If the tenant disclaims the term, claims the fee adversely in right of a third person, or his own, or attorns to another, his possession then becomes a tortious one, by the forfeiture of the right; the landlord’s right of entry is complete, and he may sue at any time, within the period of limitation.” Wilson v. Watkins, 3 Peters, 49.
    9. Although he who is no party to a writ of possession on being turned out by the sheriff may maintain trespass against both the sheriff and plaintiff, yet if he undertake to right himself by turning out him whom the sheriff wrongfully put in, he may be turned out by this action. Horsefield v. Adams, 10 Ala.
    10. “To warrant proceedings for an unlawful detainer, it is not necessary the defendant shall be a tenant of the plaintiff or a tenant of his tenant; it is sufficient if he hold under, from, by, or by collusion with the plaintiff’s tenant. Snoddy v. Watt, 9 Ala. 609.
    11- A bare entry upon the possession of another with or without force is, for the purposes of this act, a forcible entry. Brimfield v. Reynolds, 4 Bibb, 388.
   The Opinion of the Court was delivered by

Trumbull, J.

This was an action of forcible detainer,, brought by Ballance against Fortier S,- Blumb. Verdict and judgment of restitution in favor of Ballance.

The evidence shows that Ballance leased the premises for the term of six years from January 1,1842, at the rate of ten dollars to be paid every four months; that he reserved by the lease the right to re-enter and take possession of the premises in case of failure to pay rent as it became due; that the lessees occupied the premises for some time, and afterwards assigned to Blumb, one of the defendants below, who entered into possession and paid rent for a time to Ballance; that about the month of February, 1846, Blumb made arrangements for the occupation of the premises with his co-defendant Fortier, to whom he gave possession, and whose tenant he became, disclaiming to have anything more to do with Ballance, and alleging that Fortier was the owner of the land. Ballance, after having given notice and made demand in writing for the possession of the premises, on the second day of March, 1846, and before the expiration of the six years for which the premises had been let, commenced this action.

The defendants below set up title to the premises in Fortier. Two principal causes have been assigned for the reversal of the judgment. First, that the action was prematurely brought, the time for which the premises were let not having expired. It is clear that Ballance could not maintain this action till he was entitled to the possession of the premises, and it may he true, as insisted by the appellants, that he was not entitled to the possession under the clause in the lease authorizing him to re-enter in case of failure to pay rent, for the reason that there is no evidence to show- either that a demand had been made for the rent due, or any of those acts done which are necessary in the first instance to create a forfeiture for the non-payment of rent; but be this as it may, the evidence shows that Blumb was the tenant of Ballance, that Fortier got' into possession by arrangement with Blumb, who thereupon disclaimed holding under Ballance, and attorned to Fortier as the owner of the premises. The moment that Blumb disavowed the title of Ballance and claimed to set up a hostile title in Fortier, the lease became forfeited, and Ballance’s right of entry complete. Adams ■on Ej. 199. “A tenant cannot make his disclaimer and adverse claim so as to protect himself during the unexpired ■term of the lease; he is a trespasser on him who has the legal title. The relation of landlord and tenant is dissolved, and each party is to stand upon his right. If the tenant disclaims the tenure, claims the fee adversely in right of a third person or his own, or attorns to another, his possession then becomes a tortious one, by the forfeiture of his right.” Willison v. Watkins, 3 Peters, 43.

Notwithstanding Blumb had a lease for a term not then expired, the moment he disclaimed to hold under the lease, and set up title to the premises, his possession became adverse to his landlord, and it would be strange if while his title was maturing by adverse possession, he could claim the protection of the lease to prevent his being turned out. “A tenant disclaiming his landlord’s title, is not entitled to notice to quit; but is liable instantly to a warrant of forcible detainer.” Bates v. Aviston, 2 Mar. 270. Blumb, in setting up a title adverse to that of Ballance, by his own act terminated the lease, and put an end to the time for which the premises had been let, just as effectually as if the full term of six years had expired.

The second point in the case is, whether admitting Fortier had a perfect title to the premises, it was competent for the defendants below, under the circumstances of this case, to set it up to the prejudice of Ballance.

The testimony shows that Fortier got possession by arrangement with the tenant of Ballance. He stands in the same position, therefore; as the tenant. It matters not whether he got Blumb to attorn to him by bribery as alleged in the complaint, or otherwise. It is enough that he got possession by collusion with Blumb, who had it not in his power, if he would, to surrender up the premises against -the will and to the prejudice of his landlord. This very point has been substantially decided by this Court, when the case was formerly before it upon the sufficiency of the somplaint. 3 Gilm. 291. Assuming that Fortier, in some way or other by the permission of Blumb, had got possession of the premises, the Court say: We must necessarily consider Fortier as holding under Blumb.”

The principle that a tenant cannot dispute his landlord’s title, applies with peculiar force in this case, and it is wholly immaterial in cases of forcible detainer, where the relation of landlord and tenant exist, whether the tenant or he to whom the tenant has surrendered the premises, which is the same thing, show"title or not. The object of this proceeding is not to try the title to the land, but to enable the landlord to regain the possession of the premises after the termination of the lease, either by forfeiture, as in this case, or by the efflux of time.

In holding that neither a tenant, nor one who gets into possession under or by permission of the tenant, can set up a title to the prejudice of the landlord in cases of forcible detainer, we are fully sustained by the decisions in several sister States upon similar statutes. Haskins v. Helm, 4 Littell, 309; Clark v. Stringfellow, 4 Ala. 353; Byrne v. Beeson, 1 Doug. (Mich.) R. 179; Thom v. Reed, 1 Ark. 481; Clinton v. Clinton, 2 Bibb, 432, Dedman v. Smith, 2 Mar. 261. These cases fully establish the doctrine, that a tenant is not permitted to show in this summary proceeding, that his landlord’s title has expired, or that some third person has the right to the possession. He must first surrender up the possession to him from whom he received it, before he shall be permitted to say that his landlord has no longer a right to ‘ retain it.

Errors have also been assigned upon the giving and refusing certain instructions, which we do not deem it necessary to notice in detail. Some of the instructions taken separately and by themselves, would be erroneous; but when considered in connexion with the evidence and other instructions given at the same time, we cannot say that the law was wrongly stated to the jury. Taken as a whole, they lay down the law correctly, and as.they all went to the jury together, We can see no error in them.

The judgment of the Circuit Court is affirmed with costs.

Judgment affirmed.


source: Caselaw Access Project

author: Trumbull, J.

license: Public Domain

text:
    Charles McIntire, plaintiff inerror, v. John Preston, defendant in error.

      Pike. Error to

    in suits brought by corporations, the defendant, by pleading the general issue, admits the capacity of the plaintiff to sue. If he would deny the existence of the corporation, he must put in a plea for that purpose.
    Xf an insurance company have power to take a note for any purpose, a note given to them would be valid in the hands of a bona fide assignee, although the company may not have had the power to take the particular note.
    Kf a charter of an insurance company be wholly silent as to the power of the corporation to give credit for premiums, and to take notes in payment, such a power necessarily results from its power to make insurances and to enable it advantageously to conduct its business.
    In a suit by the assignee of an insurance company against the maker of the note given to the company, it was held that the plaintiff was not bound, in the first instance, to introduce the charter in evidence for the purpose of showing that the company was not restricted by such charter from doing business in the manner usual and customary to such corporations.
    Where a party has shown the power of a corporation to take a note, it is incumbent on the opposite party to show that such power has been taken away.
    If a corporation have the power to take a note, and hold and convey real or personal estate, it necessarily has the power to negotiate such note in the transaction of its ordinary business.
    Where a corporation has the power to take and transfer a note for any purpose, it will be inferred that it was taken and transferred in the ordinary course of business, until the contrary is shown; and before even this can be done, the defendant must show that the plaintiff is not a bona fide assignee.
    Where a note was made payable to an insurance company in its corporate capacity, prima facie, no other evidence of user was necessary.
    Corporations may, in this State, assign notes, the word ‘person’ being sometimes so construed as to include them.
    A note payable to a corporation, was assigned thus: "Without recourse, Joel Scott, Sec’y.” It was objected that this was not the assignment of the corporation: Held, that it being well settled that corporations might transact business through and were bound by the acts of their officers, they could assign it through their duly authorized secretary; and that his authority could only be questioned by plea of the defendant verified by affidavit: Held, further, that the assignment in this case, when properly filled up, — which the plaintiff had the right to do on the trial, — was sufficient to pass the legal interest in the note to the assignee.
    Debt, in the Pike Circuit Court, brought by the «plaintiff in error against the defendant in error, and heard before the Hon, Norman H. Purple, without the intervention of a jury, at the September term, 1848, when a judgment was rendered for the defendant for costs. The plaintiff entered a motion for a new trial, which was overruled.

      M. Hay, for the plaintiff in error.
    1. Notes payable on demand, so far as the rights of indorsees are concerned, have a reasonable time for payment. Chitty on Bills, 220; 3 Kent’s Com. 78, 79, 90, 91.
    2. An insurance company has the right, independent of its charter, to take promissory notes in the usual and legitimate course of business. Angell & Ames on Corp. 143-6; 1 Phillips on Insurance, 205, 206; N. Y. Fire Ins. Co. v. Sturges, 2 Cowen, 664; Barker v. M. F. Ins. Co. of N. Y. 3 Wend. 94; Morse v. Oakley, 2 Hill’s (N. Y.) R. 265; 2 Kent’s Commentaries, sixth Edition, 278 note; 3 Harr. 461; Russell v. De Grand, 5 Mass. 35; Mott v. Hicks, 1 Cowen, 542; N. Y. Firemen Ins. Co. v. Ely, 2 do. 700; Commonwealth Ins. Co. v. Whitney, 1 Metc. 21; Bedford Com. Ins. Co. v. Covell, 8 do. 442; New Eng. Marine Ins. Co. v. De Wolf, 8 Pick. 56; Hayward, adm’r, v. The Pil grim Society, 21 do. 270.
    3. The right of the Ocean Ins. Co. to take a note is expressly recognized by its charter. Laws of Mass. 1818; Statute of Anne, § 1, in Appendix to 2 Scam. 593.
    4. This right being shown, it has the right to assign notes, until the contrary is shown. Barker v. Mec. Fire Ins. Co. 3 Wend. 94; N. Y. Firemen Ins. Co. v. Ely, 2 Cowen, 702; Same v. Sturges, ib. 664, 667, 668; McFarland v. State Bank, 4 Ark. 55, 522; Everett v. The United States, 6 Porter, 181; Holcomb v. Ills. & Mich. Canal, 2 Scam. 230; Bank of Washtenaw v. Montgomery, ib. 426; Commercial Bank v. St. Croix Man. Co., 23 Maine, (10 Shepley,) 281.
    5. A note may be indorsed by the payee or his agent. 3 Kent’s Com. 88. The indorsement in this case is in proper form purporting to be by its proper agent or officer. A corporation need not contract under its corporate seal. Angelí & Ames on Corp. 151; ib. 153-5, 158, 175; Story on Agency, §§ 52, 53; Garrison v. Combs, 7 J. J. Marsh. 84; Montgomery R. R. Co. v. Hurst, 9 Ala. 516; Conover v. The Mutual Ins. Co. 3 Denio, 255; New Eng. M. Ins. Co. v. De Wolf, 8 Pick. 58; Folger v. Chase, 18 do. 64.
    6. Where an indorsement purports to be made by an agent, it can only be denied by plea under oath. Rev. Stat. 421, §59; ib. 472; § 29; Delahay v. Clement, 2 Scam. 575; Deshler v. Guy, 5 Ala. 186; Williams v. Gilchrist, 11 New Hamp. 540.
    7. The holder had the right to fill up the blank indorsement. Folger v. Chase, 18 Pick. 63; Gilham v. State Bank, 2 Scam. 245; Jackson v. Haskell, ib. 565; Northampton Bank v. Pepoon, 11 Mass. 288.

      0. H. Browning Sr N. Bushnell, for the defendant in error.
    1. It was necessary for the plaintiff under the plea of the general issue, to prove the existence of the corporation. This could only have been done by the production of their charter, and by proof of user under it. This the plaintiff has not done; no user is proved. Angell & Ames on Corporations, 377; Jackson v. Plumbe, 8 Johns. 378; Bill v. Turnpike Company, 14 do. 416; Bank of Auburn v. Weed, 19 do. 300; Bank of Utica v. Smalley, 2 Cowen, 780.
    In the case of a foreign corporation, as in this case, it is always necessary for the plaintiff, on general issue pleaded, to prove the existence of the corporation. To this there-seems to be no exception. School District v. Blaisdell, 6 New Hanp. 197; Henriques v. Dutch West India Co., 2 Lord Raym. 1535.
    II. The plaintiff has not shown that the Ocean Insurance Company had power to take promissory notes. If the Company could not take notes payable to itself, it is clear it could not by an indorsement on such note transfer any title to a third person. Berry v. Hamby, 1 Scam. 468. The power must be shown by the charter — by the construction, of the various provisions of the whole charter. In this case the plaintiff has exhibited but a portion of the charter. The most the plaintiff can insist on in this case is, that the power may be implied from the parts of the charter given in evidence, but how far any such implied power may be restricted by the other parts of the charter, cannot appear to the Court. And this is the more important in this case, because the part of the charter given evidence refers to the other parts of the charter not before the Court, as in part defining and restricting the powers of the corporation.
    A company incorporated for a specific purpose has no powers except such as are specifically granted, or which may be necessary to carry into effect the powers granted. To ascertain whether the Company have power to make a particular contract, or to do a particular act, we must look into the charter — the whole charter — and determine the question by the construction of all of its provisions. The People v. The Utica Ins. Co., 15 Johns. 383-4; N. Y. Firemen Ins. Co. v. Ely, 2 Cowen, 678, 699-701, 709-710; Betts v. Menard, Bre. App. 14-15; The Salem Mill Dam v. Ropes, 6 Pick. 23; Beatty v. Knowler, 4 Peters, 152; Gozzler v. Georgetown, 6 Wheat. 597.
    HI. Even admitting that enough appears to preve that the corporation had power to take promissory notes, the charter confers no authority to assign notes; the power is not expressly given by the charter, nor is H a necessary incident or means of conducting their specific business of insurance. On the contrary, the charter clearly contemplates that notes taken for premiums, shall remain in the hands of the Company until paid, and the proceeds are in a condition to be distributed as profits, by way of dividends among the stockholders.
    A company incorporated for a specific purpose will be strictly confined to the precise business authorized by the charter. Bank of Augusta v. Earle, 13 Peters, 587; Broughton v. Manchester Water Works, 5 Eng. Com. Law R. 215; 2 Kent’s Com. 299-300; Beatty v. Knowler, 4 Peters, 152.
    The specific grant of a particular power excludes the idea that the corporation can exercise any other power. The grant of power to do a particular act, and in a particular way, without any negative words, excludes all power to do any other act, or to exercise the power granted, in a way different from what the charter prescribes. N. Y. Firemen Ins. Co. v. Ely, 2 Cowen, 678, 699-701, 709-10; North River Ins. Co. v. Lawrence, 3 Wend. 482; The Life & Fire Ins. Co. v. The Mechanic Ins. Co., 7 do. 31; Beach v. The Fulton Bank, 3 do. 573.
    IV. The plaintiff had no authority to fill up the indorsement, and to add to the description of the name of Scott, in the manner he has done.
    The name of Scott, on the back of the note, unconnected by proof of the Insurance Company, was that of a guarantor, and not of an indorser; not being shown to be the agent of the Company, he had no authority to transfer the legal title to the note. Camden v. McCoy, 3 Scam. 437; Angell & Ames on Corp. 144, 158, 175.
    In all the cases relied on by the plaintiff, it appeared affirmatively by the plaintiff’s testimony, that the person undertaking to assign a note as the agent of the payee, was in fact such agent, or where the statute was relied on as dispensing with proof of the assignment, unless a plea was put in denying the assignment under oath, there was produced by the plaintiff an assignment complete and full, and in which the agent in terms described himself fully as the agent of the principal, and as doing the act in his name. Chitty on Bills, 197; Story on Agency, §§ 52, 53; Angell & Ames on Corp. 158; Delahay v. Clement, 2 Scam. 575; Garrison v. Combs, 7 J. J. Marsh. 85-6; Williams v. Gilchrist, 11 New Hamp. 540; 18 Pick. 63; Gillham v. State Bank, 2 Scam. 245; Long v. Colburn, 11 Mass. 98.
    Our statute does not affect this case. It does not dispense with the production of an indorsement in fact, and which when produced, must be perfect in form, and on its face purporting to be made by competent authority. Rev. Stat. 421, § 59.

      E. S. Blackwell, for the plaintiff in error, in conclusion.
    The points upon which the counsel of the defendant in error rely for an affirmance of the judgment rendered by the Court below, are 1st, that the corporate capacity of the Ocean Insurance Co. has not been shown by the plaintiff, because the whole of their charter is not set out in the rec- ' ord, and because there is no proof of a user of their franchises; 2nd, that the company had no power to take a note; 3rd, that they had no power to transfer their interest to the plaintiffby indorsement; 4th, that the authority of the secretary of the company to indorse the note should have been affirmatively shown; 6th, that the indorsement as originally made was not legal in point of form; and6th. that plaintiff had no-authority to fill up the indorsement upon the trial in order to perfect it and clothe the plaintiff with a legal title.
    To which we reply:
    I. As to the corporate character of the company.
    1. In an action brought by a corporation, if the defendant wishes to deny their corporate character, he must plead nul tiel corporation; by pleading the general issue, as in this case, he admits the capacity of the plaintiff to sue as a corporation. The Society for the Propagation, &c. v. The Town of Pawlet, &c.,4 Peters, 480; Prince v. The Commercial Bank of Columbus, 1 Ala. 241; Methodist Episcopal Church, &c. v. Wood, 5 Ohio, 174; Phœnix Bank v. Curtis, 14 Conn. 437.
    2. If the contrary shall be held by this Court, then we insist that we have complied with the technical rule. The first section of the charter offered in evidence declares the company to be a body politic and corporate, prescribes their general powers, and confers upon them a corporate name by which they may sue and be sued. This is prima facie evidence of their corporate capacity. No formal set of words are essential to the creation of a corporation. Evidence of user was unnecessary, they are declared a body politic and corporate by their charter, and acceptance and user of their franchises will be presumed from the beneficial character of the privileges conferred upon them. Fire Department of N. Y. v. Kip, 19 Wend. 266. The execution and delivery of the noté in controversy by the defendant to the Ocean Insurance Co. is prima facie evidence of a user of their franchises. Montgomery R. R. Co. v. Hurst, 9 Ala. 513.
    3. Again, in this case the plaintiff is not a corporation, but a natural person, merely claiming title to the note by assignment from a corporation; there is no principle of law which requires a natural person to show his or her right to sue; that right is always presumed.; if laboring under any in-capacities which disable them from suing, this must be pleaded in abatement.
    II. As to the power of the corporation to take a note.
    1. The pleadings do not present the issue — a note is prima facie evidence of a legal consideration; if it was illegal, the maker must plead and prove it. Stacker v. Watson, 1 Scam. 207.

      2. They have the power by implication. Section one of their charter gives them power to take a mortgage to secure debts, due to the Company, and section three of the Act of 1818 confers power to loan money on real estate mortgages —the power to take notes as collateral security for the'"*1debt or loan secured by mortgage is therefore necessarily implied.
    Section three of the Act of 1818 conferring upon the Company express power to loan moneys upon bottomry or respondentia, implies the power to take a note as collateral security. The power to insure property against fire, upon lives, and to take marine risks, and receive premiums therefor, necessarily implies a power to give credit for premiums and take notes as collateral security.
    3. They have express power. The first section, Act of 1818, provides that Insurance companies, “shall have power and authority to make insurances on vessels, freight, money, goods, and effects, and against captivity of persons, and on the life of any person during his absence at sea, and in cases of money lent upon bottomry, and respondentia, and to fix the premiums and terms of payment.
    4. Where it appears that a corporation has power to take a promissory note in any given case, though they may not have the power to take the note in question, the Courts will presume that the note was taken in the lawful course of their business, and within the legitimate scope of their corporate powers, until the contrary appears. Wilmarth v. Crawford, 10 Wend. 341.
    5. The defendant having received value from the Company, and given his note to refund, is estopped from denying the power of the Company to take the note. Chester Glass Co. v. Dewey, 16 Mass. 94; Bank of South Carolina v. Hammond, 1 Richardson, 281; The Grand Gulf Bank v. Archer, 8 Smedes & Marsh, 173, 174.
    6. Conceding the note to have been taken without authority, it is valid in the hands of the plaintiff who is a bona fide holder. The rule is inflexible, that no defence shall be allowed against a bona fide holder, unless it is authorized by a statute declaring the note void. Wilmarth v. Crawford, 10 Wend. 341; Adams v. Wooldridge, 3 Scam. 255; Vallett v. Parker, 6 Wend. 615.
    III. As to power of the corporation to assign this .note.
    1. This power is expressly given them by their charter. Section one provides that the Company “may purchase, hold, and convey, any estate, real or personal for the use of said company.” Section five provides that “they shall have power to make and prescribe such by-laws, rules and regulations, as to them shall appear needful and proper, touching the management and disposition of the stock, property, estate and effects of said Company.”
    2. The power to acquire and hold property, when conferred upon a corporation, carries with it by implication, a power of disposition, as unlimited as that possessed by natural persons. 2 Kent’s Com. 281; Jackson v. Brown, 5 Wend 590; Reynold’s heirs v. Stark County, 5 Ohio, 129, 131; Conway, ex parte, 4 Ark. 351, 354.
    3. It is conceded that the company may take a note, then we insist that by virtue of the Statute III and IV Anne, c. 9, which is a part of the Common Law of Massachusetts, they as a corporation may transfer their legal title to plaintiff by indorsement. 2 Scam. 593, App.; Jones v. Fales, 4 Mass. 254.
    4. It is said this note, from anything appearing in the record to the contrary, was indorsed in this State, and that by our statute a corporation cannot transfer their title by indorsement. To which we reply :
    1. That by the fifth section of their charter, (the Ocean Insurance Company,) it is declared, “shall be located and kept in the city of Boston, Mass.” The note is dated there; it may therefore with propriety be inferred, that the note was negotiated and transferred at the office of the Company, and of the State, rather than that the transaction took place within this State. If this presumption is proper, the statute of Illinois has nothing to do with this question of power, and the lex loci contractus must prevail. Bank of Washtenaw v. Montgomery, 2 Scam. 427.
    2. ' The fourth section of chapter 73, Revised Statutes, 384, which uses the words “person or persons,” may properly be extended so as to embrace corporations.
    3. If the Company has power in any given case to indorse a note, the Court will presume that this indorsement was within the power of the corporation.
    IV. As to the power of Scott to indorse.
    The declaration avers that “the Ocean Insurance Company, by Joel Scott, their secretary, indorsed the said note to the said plaintiff.” This allegation must be denied by plea, verified by affidavit, or the power of Scott cannot be questioned. Rev. Stat. 421, § 59; Delahay v. Clement, 2 Scam. 575; Brown v. Jones, 3 Porter, 429; Williams v. Gilchrist, 11 New Hamp. 540; Garrison v. Combs, 7 J. J. Marsh, 84; Pickering v. Pulsifer, 4 Gilm. 79.
    V. As to the power of the indorsement.
    1. No particular power is required to constitute a valid indorsement; intent is all that is looked at. Simpson v. Ranlett, 2 Gilm. 312; Brown v. The Butcher's & Drover’s Bank, 6 Hill’s (N. Y.) R. 443; 6 Wend. 443; Ibid. 619.
    2. Agent need not use the name of the Company. There is a distinction in this respect between the execution of simple and specialty contracts by an agent; in the latter case he must execute in the name of his principal, but in the former he may execute in his own name, provided it appears on whose behalf he executes. The word “secretary” used in this indorsement, coupled with the fact that he had the possession of a note payable to an Insurance Company which has a secretary, and can only act through him, is sufficient evidence of the intent on his part, to contract for the Ocean Insurance Company. Story on Agency, §§ 155,156 ; New England Marine Insurance Company v. De Wolf, 8 Pick. 56.
    VI. As to authority of plaintiff to perfect the indorsement.
    The possession of the note by plaintiff was prima facie evidence of an equitable title to the instrument, and that instrument having on its back what purported to be an indorsement, conferred upon the holder authority to perfect his title by clothing the indorsement with such words as were necessary to make a technical assignment of the legal interest of the Ocean Insurance Company. Folger v. Chase, 18 Pick. 63; Northampton Bank v. Pepoon, 11 Mass. 228.
    For these reasons the judgment should be reversed.
   The Opinion of the Court was delivered by

Trumbull, J.

Mclntire, as the assignee of the “ Ocean Insurance Company,” sued Preston in an action of debt upon a note given to that Company. The declaration is in the usual form. The defendant pleaded nil debet, payment, set-off, and accord and satisfaction, upon all of which pleas issues were joined.

By consent of parties the case was tried by the Court, and upon the trial the plaintiff offered in evidence the Act of the Commonwealth of Massachusetts incorporating the Ocean Insurance Company, a section of the Constitution of Massachusetts declaring what laws should be in force in that Commonwealth, the first section of the statute of III. and IV. Anne, Ch. 9, making promissory notes assignable, &c., the report of the decision made by the Supreme Judicial Court of Massachusetts in the case of Jones v. Fales, for the purpose of showing that the said statute of Anne was held to be in force in Massachusetts, and the note and the indorsement thereon, which was all the testimony in the case. The Court found for the defendant upon the plea of nil debet, and for plaintiff upon the other issues. A motion for a new trial was made, overruled, and an exception taken to overruling the same.

The assignment of errors questions the correctness of the decisions of the Court refusing a new trial and entering judgment in favor of defendant.

In determining this case several important questions arise:

1. Was it necessary for the plaintiff under the issues, in order to show his right to sue, to prove the existence' of the corporation to which the note was made payable ?

2. Had the “Ocean Insurance Company” power to take and assign the note in question ?

3. Was the indorsement, “without recourse, Joel Scott, Sec’y;” upon the back of said note, sufficient to transfer the legal interest therein to the holder of said note, and did it authorize the filling up of said indorsement in the manner it was done?

Some other questions of minor importance were raised during the argument, which will be disposed of as we progress.

Upon the fiz’st point, as to the necessity for proof on the part of the plaintiff to show that the “Ocean Insurance Company” was duly incorporated, the argument seems to have proceeded upon the assumption that said coznpany was the plaintiff in the action. Such is not the case. The suit is brought by Charles Mclntire, a natural person, whose capacity to sue cannot surely be questioned under the general issue. Had the suit been in the name of the payees of the note, the question of their capacity to sue, might, according' to some authorities, have been raised under the general-issue, and without a special plea for that purpose. - Upon; this point there is a great contrariety of decisions, as-, was. shown upon the argument; but, in our opinion, the better rule is, that in suits brought by corporations, the defendant, by pleading the general issue, admits the capacity of the plaintiff to sue, and thatifthe defendant would deny the existence of the corporation, he must put in a plea for that purpose.

Such has been held to be the law by the Supreme Court of tlte United States, the Courts of Massachusetts, Connecticut, Alabama, and several other States, and in our judgment, the decisions of those Courts are the best sustained both by reason and authority. In the cases of Phœnix Bank v. Curtis, 14 Conn. 437, and of Prince v. Commercial Bank of Columbus, 1 Ala. 241, the leading cases upon this subject are collected and reviewed. See also, 4 Peters, 480; 4 Blackf. 202; 9 Ala. 513; 1 Mass. 159; 3 Pick. 245; 16 Conn. 421; 7i Mon. 584; 6 New Hamp. 197.

Secondly. Was it necessary for the plaintiff to introduce in evidence the charter of the “Ocean Insurance Company,” not for the purpose of showing its authority to bring suit, which would have been admitted by the pleadings, even had the suit been in the name of the corporation, but for the purpose of shoxving the power of the company to take and assign notes ? Unless such a power can be inferred as necessary or incident to the purposes for which insurance companies are established, it was necessary to make such proof. The Court is bound to know, judicially, something of the nature and objects of insurance companies, as well as the purposes for which they are created. Is the power to take and transfer a note incident to the exercise of their usual functions? It is said in 1 Phillips on Insurance, 205, “Generally, the premium on the whole sum named in the policy as insured, is considered in practice to be due immediately, though in the United States it is not usually payable until after the expiration of a credit of from txvo. or three, to eighteen months, according to the length of the voyage.” “In the case of insurance by an incorporated Company, the premium note is generally made payable to the Company by its corporate name, or to some of its officers;” accordingly, the Company, or its officers “may negotiate the note immediately.” Ib. 206. In the case of the N. Y. Fireman’s Ins. Co. v. Ely, 2 Cowen, 678, the Court say: “It may be con-. ceded that the Company have authority to take notes for • the premiums due to them, instead of demanding cash, because the power of giving credit may be necessary to enable them to make the most advantageous contract of Insurance.” If the Ocean Insurance Company had authority to take a note for any purpose, the note in question would be valid in the hands of the plaintiff, a bona fide assignee, although the Company may have had no power to take this particular note. This was held to be the law in the case of Wilmarth v. Crawford, 10 Wend. 341. If the charter of the Ocean Insurance Company was wholly silent as to the power of the corporation to give' credit for premiums and take notes in payment, we should feel bound to decide upon the principles laid down in the foregoing authorities, that such a power necessarily resulted from its power to make insurances, and to enable-it advantageously to conduct its business; and we think it would be going quite far to hold that the plaintiff was bound in the first instance to introduce the charter in evidence, for the purpose of showing that the Company was not restricted by the Act of incorporation from doing business in the manner usual and customary to insurance companies.

But the power of the Ocean Insurance Company to take the note in this case does not rest upon the presumption that insurance companies usually exercise such a power. The plaintiff introduced in evidence upon the trial, the Act of the Commonwealth of Massachusetts incorporating said Company, by the first section of which Act the Ocean Insurance Company is created a corporation, authorized to sue, &c., and is invested “with all the powers and privileges granted to insurance companies, and subject to all the restrictions, duties and obligations contained in a law of this Commonwealth, entitled “Jin JLet to define the powers, duties and restrictions of Insurance Companies,” passed February 16, 1818, and in a law entitled “Jin Jlct authorizing the several Insurance Companies of this Commonwealth to insure against fire,” passed February 21, 1820, and is further authorized “to purchase, hold and convey any estate, real or personal, for the use of said company; provided the said real estate shall not exceed the value of fifty thousand dollars, excepting such as may be taken for debt, or held for collateral security for money due to said Company.” The first section of the Act of 1818 expressly authorizes insurance companies to make insurances on vessels, &c., and “to fix the premiums and terms of payment;” and the third section of said Act authorizes insurance companies to loan a portion of their capital stock on mortgage of real estate, &c. The power to take and transfer notes in the legitimate business of the corporation is clearly recognized in the foregoing sections. The power to hold and convey any estate, real or personal, to make insurances and fix the premiums and terms of payment, and to make loans, necessarily implies the power to take notes; nor was the power to take notes under the provisions of the foregoing sections seriously questioned upon the argument; but then it was insisted, that this power may have been taken away by the provisions of the “ Act authorizing the several Insurance Companies of this Commonwealth to insure against fire,” passed in 1820, referred to in the charter of the Ocean Insurance Company, and which Act the bill of exceptions shows was not offered in evidence.

The Act incorporating the Ocean Insurance Company was passed in 1830, and because an Act previously passed authorizing insurance companies to insure against fire, and referred to in the charter, was not offered in evidence, we are asked to infer that there are provisions in that Act restraining and taking away the powers granted in the charter and in the general law in reference to insurance companies, both of which are set out in full in the record, and were read upon the trial of the cause. It is said that the Court cannot determine whether the Ocean Insurance Company had power to take a note, because one of the Acts referred to in the charter of that company is not before the Court. The power to take a note may, as we have already shown, be fairly inferred from the first section of the charter; and if there were provisions in a former Act, referred to in a previous part of said first section, inconsistent with this power, the last law would prevail; but we think it carrying the doctrine of presumption quite too far, to assume that there are provisions in an Act extending the powers of insurance companies so as to authorize them to insure against lire, inconsistent and repugnant to the whole scope and tenor of the laws granting powers to such companies.-

After the plaintiff had shown the power to take a note on the part of the corporation by the production of their charter, we do not think it was necessary for him further to show that such power had not been taken away by some other statute, although such statute may be referred to in the charter. Having shown the power to exist, it was unnecessary for the plaintiff to show, negatively, that it had not been taken away, and especially would this be so, when the Act as referred to by its title, professed, as in this case, not to limit, but to extend the powers of the Company. If there were restrictions in the Act to authorize insurance companies to insure against fire, prohibiting such companies from taking notes in any case, it was incumbent on the defendant to have shown it, if he could, after having expressly recognized that power by executing the note in question. The plaintiff made out a prima facie case at least, of power on the part of the corporation to take the note, and this was sufficient unless rebutted.

( The corporation having the power to take a note, and to hold and convey any estate, real or personal, would necessarily have authority to negotiate such note in the ordinary transaction of the business of the Company, and that such a power is usually exercised by insurance companies has already been shown. That the note in question was made and transferred in the ordinary course of business will be inferred, in case the corporation had power to make and transfer a note for any purpose, till the contrary be shown; and it would not even be admissible in this case, without first showing the plaintiff not to be a bona fide assignee, for the defendant to show the contrary. 3 Wend. 94; Angel! & Ames on Corporations, 144; 6 Wend. 615. The note being payable to the Ocean Insurance Company in its corporate capacity, prima facie no other evidence of user was necessary. 9 Ala. 516; 14 Johns. 238.

The power of the Ocean Insurance Company to assign this note has, however, been questioned, upon the ground that the statute of Illinois in reference to negotiable instruments, (R, L. 482,) while it authorizes notes to be made by any person or persons, body politic or corporate, only authorizes the assignment of such as are payable to any person or persons, and under the hand of such person or persons, which, it is insisted, means natural persons, and does not embrace corporations; and that they had no right at the time the note in question was indorsed, to assign notes in this State. Two answers may be given to this objection:

1. By a fair construction of the statute we think corporations might assign notes in this State. The word ‘person’ is sometimes so construed as to include corporations. The People v. Utica Ins. Co. 15 Johns. 357.

2. The Ocean Insurance Company was located by its charter, at Boston, Massachusetts, and the presumption is, that the note was indorsed at the place where the Company did business — if so, by the first section of the Statute of III. and IY. of Anne, adopted in Massachusetts, the power to Indorse notes is not restricted to natural persons. Jones v. Fales, 4 Mass. 243.

3. Was the indorsement in this case sufficient, and was the plaintiff authorized to fill it up, so as to show an assignment by the payees of the note ?

The fifty eighth section of the eighty third chapter of the Revised Statutes declares: “In actions upon bonds, notes, and all other writings made assignable by law, in the name of the assignee, the plaintiff shall not be held bound to prove the assignment or signature of any assignor, unless the fact of assignment be put in issue by plea verified by affidavit of the defendant or some credible person, stating that he verily believes the facts stated in the plea are true.” No such plea was interposed in this case, consequently the assignment as alleged in the declaration to have been made by the Ocean Insurance Company, is admitted by the pleadings. Although this is admitted to be the law, yet, it is insisted that the plaintiff is bound to introduce in evidence an assignment purporting to have been made by the payee of the note — that inasmuch as the indorsement' “without recourse, Joel Scott, Sec’y,” did not purport to be an indorsement by the Company, it was upon its face wholly insufficient to transfer the legal title in the note, and that said indorsement, unexplained by proof, was that of a guarantor, and not of an indorser. It is difficult to conceive why Scott should have prefixed the words “without recourse” to his name, if the intention was to bind himself as guarantor. A guarantor loithout recourse would be a solecism. Such manifestly was not Scott’s intention in placing his name upon the back of the note. That corporations may do business through, and are bound by the acts of their officers, is well settled; and the Ocean Insurance Company having power to assign the note in question, it unquestionably could make that assignment through its duly authorized secretary. Story on Agency, § 53; Angelí & Ames on Corporations, 158; 3 Deslio, 254,

That Scott was the duly authorized officer to make the assignment, is admitted by the pleadings, because proof of his authority to make the assignment, would have been part of the evidence necessary to establish said assignment at the Common Law, and whatever evidence would have been admissible and required of the plaintiff, independent of the statute, is to be considered as given, unless the assignment is put in issue by plea verified by affidavit. . That the authority of'the agent to act for his principal need not be proved in such a case, has already been settled in principle by this Court, in the case of Delahay v. Clement, 2 Scam. 575.

This point of the case is, then, presented in the same light as if the record contained proof, that Joel Scott made the indorsement upon the note as the secretary, and under the direction of the Ocean Insurance Company. If he did, there can be little difficulty in determining that the indorsement was sufficient to carry the legal title to the note, and authorize the holder thereof to fill it up so as to show said assignment to have been made for and on behalf of said Company. There can be no mistaking the intention of the parties in this case. The words “without recourse,” show that Scott intended to indorse the note, and not to guaranty the payment thereof; and the letters “Sec’y,” annexed to his name, are sufficient to indicate that he "did not suppose he was acting for himself alone.

Upon the point of the sufficiency of the indorsement, and the authority of the plaintiff to fill it up on the trial, we are not without authority. In the case of the New Eng. M. Ins. Co. v. James De Wolf, 8 Pick. 56, which was a suit against the defendant as the guarantor of a promissory note, the guaranty was as follows: “By authority from J. DeWolf, Junior, I hereby guaranty, the payment of this note. Isaac Clap.” The Court held, “with respect to the form of the guaranty, we are of opinion that the effect of it must be determined by the intention with which it was made. If Clap had authority to make the guaranty for the defendant, and the words are such as not merely to bind himself alone, and it can be ascertained that he intended to act for DeWolf, the latter will be bound. The authorities cited to maintain the position that the name of the principal must be signed by the agent, are of deeds only, instruments under seal; and it is not desirable that the rigid doctrine of the Common Law should be extended to mercantile transactions of this nature.” The Court being satisfied from all the circumstances, that Clap professed to act for DeWolf, add, that the only question ought to be whether he had authority so to act, and the evidence showing that he had such authority, DeWolf was held liable.

In the case of the Northampton Bank v. Pepoon, 11 Mass. 288, the note was payable to the Berkshire Bank, and was indorsed by Simon Earned, calling himself attorney. It was objected that, admitting Earned to have been the attorney of the Bank for the purpose of indorsing the note, yet, the manner in which he had executed the power defeated Ms purpose, as he had not declared that he acted for and on behalf of the corporation. Parker, C. J., in delivering the Opinion of the Court, says: “If the authority of Larned was good to indorse as attorney, he having indorsed in blank, the plaintiff may erase the words written over his name, and substitute other words which will give effect to the indorsement.”

In the case of Folger v. Chace, 18 Pick. 63, it was held that a note indorsed “P. H. Folger, Cashier,” was sufficiently indorsed to pass the interest of the payees, the Phoenix Bank, in said note, and that if it was not sufficiently certain, the plaintiffs would have the right at the trial to prefix the name of the corporation.

In 6 Hill, 443, where a party placed the figures “1, 2, 8,” upon the back of a bill of exchange, no name being written, it was held a valid indorsement, and that a person might become bound by any mark he thought proper to adopt, provided he intended to bind himself. See ,also, 6 Wend, 443, and 7 J. J. Marshall, 84.

We are, therefore, of the opinion that the indorsement in this case was sufficient to pass the legal interest in the note, when properly filled up, which the plaintiff had the right to do upon the trial.

The finding of the Circuit Court was manifestly contrary to the evidence, and the motion for a new trial should have been allowed.

The judgment of the Circuit Courtis reversed at the costs of the defendant in error, and the cause remanded for further proceedings not inconsistent with this Opinion.

Judgment reversed.


author: Treat, C. J.

text:
    William T. Dazey, plaintiff in error, v. Alexander Mills, for the use of Nathan Pinkham, defendant in error.

      Error to Adams.

    Courts will recognize the rights of a beneficial party and protect him against the acts of a party possessing the naked legal interest.
    An assignee is allowed to sue in the name of the person having the legal interest, and to control the proceedings without the interference of the latter further than to require indemnity against the payment of costs.
    The declarations of a nominal plaintiff, made after he has parted with his interest in the cause of action, are not admissible in evidence to defeat the action.
    This was a suit originally commenced before a justice of the peace in Adams county by the defendant in error against the plaintiff in error. Judgment was rendered for the plaintiff below, who appealed to the Circuit Court, and at the May term, 1848, the Hon. Norman H. Purple presiding, a jury was dispensed with, and the cause tried by the Court who rendered a judgment for plaintiff for $51-46, and costs.
    The facts of the case are sufficiently stated by the Court in the Opinion.

      A Williams <§• C. B. Lawrence, for the plaintiff in error,
    1. The Court erred in giving judgment for the plaintiff for $57-16.
    2. The Court erred in excluding the evidence. The admission of the plaintiff on the record is always admissible and competent evidence against him, without regard to his interest. This is a positive and inflexible rule of law. Its wisdom is justified by the consideration that he could not be used as a witness in the case, and if it should appear that the admission was not made in good faith, but by collusion with the defendant to defeat the recovery by the person to whom he had passed his interest, this would destroy the effect of the admission, but would not affect its competency. Whether made in good faith or collusively is a question for the jury and not for the Court, but in this case there is no pretence of collusion. Bauerman v. Radenius, 7 Durn. &,
      East, 663, and note (6) ; 3 Harr. & Johns. 342; 3 Conn. 76; 4 do. 544.
    3. In this case, the only evidence that Pinkham had any interest is furnished by the deposition itself, and it shows that Mills still had an interest in the note. It was not sold absolutely to Pinkham, but pledged as a security for a debt which Mills owed him. If Pinkham failed to get the money of Dazey, he would resort to Mills for payment. So that upon the ground of interest, as well as his being a party to the record, his admission was competent evidence. The rule is, that the admissions of a party against his interest are evidence against him.
    4. If, as the record shows, the deposition was admitted as competent evidence, then the judgment is for forty dollars more than it should have been, that sum having been paid sa shown by the deposition.
    5. The paper purporting to be a bill of exceptions on the part of the plaintiff is no part of the record, and is improperly copied by the clerk. It contradicts the record. If the plaintiff wished a writ of error he could file a bill of exceptions for that purpose ; but it certainly cannot be regarded as any part of the record on error brought by the defendant, particularly for the purpose of contradicting the record. The record shows that the deposition was admitted as competent evidence. The plaintiff could, in a writ of error prosecuted by himself, assign this as error, but he cannot do it in a case brought and prosecuted by the defendant. This bill of exceptions shows that the deposition was excluded. This is not ground of exception on his part, because it is in his favor. It 'also shows that the affidavit of Pinkham was not considered. This might be regarded as part of the record on error by the plaintiff, because it was against him and does not contradict the record.

      C. ¿1. Warren $? O. C. Skinner, for the defendant in error.
    1. It is the duty of Courts to protect the holder of a chose in action, and to regard him as the real party. Session Laws, 1838-9; p. 271.
    2. A suit brought by one for the use of another is regarded by the Courts as coming within the rule. Anderson v. Van Allen, 12 Johns. 342; Ransom v. Jones, 1 Scam. 293; Leigh v. Leigh, 1 Bos. & Pull. 447; Mandeville v. Union-Bank, &c. 1 Wheat. 232; Gould v. Newman, 6 Mass. 239; Skinner v. Somes, 14 do. 107; Tuttle v. Beebee, 8 Johns. 155; Van Vechten v. Graves, 4 do. 406; Franklin v. Raymond, 3 Wend. 71; Jones v. Witter, 13 Mass. 304.
    3. The admissions of a nominal party to the record, being a trustee only, canont affect the rights of his cesto" gr¿e trust. Williams v. Judy, 3 Gilm. 282; Root v. Taylor, 20 Johns. 136; Frear v. Evertson, ib. 142; Sprague v. Kneeland, 12 Wend. 161; Kimball v. Huntington, 10 do. 675; Payne v. Rogers, Doug. 407; Cowen & Hill’s Notes to Phil. Ev. 663-8; Raymond v. Squires, 11 Johns. 47; Wheeler v. Wheeler, 9 Cowen, 34; Andrews v. Beecker, 1 Johns. Cases, 411.
   The Opinion of the Court was delivered by

Treat, C. J.

On the 9th of June, 1846, Dazey made a promissory note to Alexander Mills for $46, payable one day after date. A suit was brought on the note before a justice of the peace, on the 2d of October, 1846, in the name of Mills for the use of Nathan Pinkham. It resulted in a judgment for the plaintiff, and Dazey appealed to the Circuit Court, where the decision of the justice was affirmed. Dazey took the deposition of a witnesss, who testified to a conversation had with Mills on the 13th of October, 1846, in which the latter stated that previous to the commencement of the suit, he transferred the note to Pinkham as security for the payment of a debt; and that prior to the transfer Dazey paid him $26, which ought to be credited on the note. The Circuit Court, being of the opinion that the evidence was inadmissible, excluded the deposition, and the propriety of that decision is the only point in the case.

This presents the naked question whether the declarations of the nominal plaintiff made after he has parted with his interest in the subject matter of the suit, can be introduced in evidence by the defendant to defeat the cause of action. There is a conflict of authority on the question, and we therefore feel bound to adopt the rule which will best sub-serve the ends of justice. It was decided in the case of Bauerman v. Radenius, 7 Term Rep. 663, that the defendant could give in evidence the admissions of the plaintiff on the record to defeat the action, although such plaintiff was only the trustee for a third person. The same doctrine is asserted in 2 Starkie’s Ev. 22, and in the cases of Thomas v. Denning, 3 Harr. & Johns. 242, and Dillon v. Chouteau, 7 Missouri, 386.

On the other hand, it is held in the cases of Frear v. Evertson, 20 Johns. 142, Hackett v. Martin, 8 Greenl. 77, and Chisholm v. Newton, 1 Ala. 371, that the declarations

of the nominal plaintiff, made after he has parted with his interest in the cause of action, are not admissible in evidence to defeat the claim of the real party in interest. The assignee of a chose in action will be protected in a Court of Law against the acts and declarations of the assignor subse-

quent to the assignment. Kimball v. Huntington, 10 Wend. 677. Where a chose in action is assigned by the owner, he

cannot interfere to defeat the rights of the assignee in the prosecution of a suit brought to enforce those rights, and it makes no difference whether the assignment be good at Law

or in Equity only. Mandeville v. Welch, 5 Wheat. 277. A payment made to the nominal plaintiff after the defendant' has notice of the assignment constitutes no defence. Littlefield v. Storey, 3 Johns. 426. So of a set-off obtained after notice of the assignment. Anderson v. Van Allen, 12 Johns. 343. So of a release procured from' the nominal plaintiff after notice of the assignment. Andrews v. Beecker, 1 Johnson’s Cases, 411; Raymond v. Squires, 11 Johns. 47. And it is immaterial whether the assignment be of the whole subject matter, or as collateral security. Wheeler v. Wheeler, 9 Cowen, 34.

It seems to be the tendency of modern decisions to recognise the rights of the beneficial party, and to protect him against the acts of the party possessing the naked legal interest, whenever it can be done without injuriously affecting the rights of the debtor; and subject to this qualification, we are inclined to adopt the rule in its fullest extent. The assignee is allowed to sue in the name of the person having the legal interest, and to control the proceedings. The latter cannot interfere further with the prosecution than to require indemnity against the payment of costs. The principle being conceded that Courts of Law will take notice of and protect the rights of the real party in interest, there should be no hesitation in applying it to every case in which the interests of the debtor are not to be prejudiced. The party who has ceased to have any substantial interest in the subject matter of the action, and whose name is used as a matter of necessity to satisfy a technical rule of the law, ought not to be permitted by his acts or declarations to defeat or disparage the title of his innocent assignee ; and this for the same reason that the acts and declarations of the vendor, made subsequent to the sale, are not admissible in evidence to affect the title of the purchaser. The principal ground for receiving the declarations of the party is, that being made respecting matters in which his interest is involved they are supposed to-be true, and are therefore admitted in evidence against him. The reason wholly ceases where he has no interest to be affected.

The rule excluding the admissions of the nominal plaintiff, made after he has parted with his interest in the cause of action, does not operate to the injury of the defendant. It allows him to interpose any defence which existed when he received notice of the assignment. If the testimony of the assignor is necessary to enable him to establish his defence, he can obtain it through the medium of a bill of discovery.

The judgment of the Circuit Court is affirmed with costs.

Judgment affirmed.


text:
    Robert Dawson, plaintiff in error, v. Garrett W. Robbins, defendant in error.

      Error to Brown.

    ff is only in cases where the verdict of the jury strikes the mind at first blush as manifestly and palpably contrary to evidence, that the Court will, for that reason, interfere to set it aside.
    Assumpsit, in the Brown Circuit Court, brought by the defendant in error against* the plaintiff in error. The cause was heard before the Hon. Norman H. Purple and a jury, at the September term, 1848, when a verdict and judgment were rendered for the plaintiff for $55-09. The defendant entered a motion for a new trial, which was overruled.
    So much of the evidence as was material to the determination of this cause, will be found in the Opinion of this Court.

      E. S. Blackwell, for the plaintiff in error.

      J. S. Bailey, and C. Ji. Warren, for the defendant in error.
    Courts will not disturb the verdict of a jury, if the facts are fairly submitted.
    Unless the verdict is manifestly against the evidence, and even then but seldom, if it appear from all the evidence that substantial justice has been done. 1 Scam. 128, 490, 532; 2 do., 350, 354, 358; 2 Gilm. 618.
   The Opinion of the Court was delivered by

Trumbull, J.

Robbins sued Dawson in assumpsit to recover for work and labor done in building the machinery of a steam mill. The declaration is general, and contains only the common counts. Dawson, besides the pleas of nonassumpsit and set-off, upon which issues were taken, also pleaded that the work was done under a special contract, upon which plea issue was also joined.

The issues were submitted to a jury, who found for the plaintiff below, and assessed his damages at $55 09. Dawson moved for a new trial, which motion was overruled, and judgment rendered for the amount of the verdict.

The only point in the case is, whether the Circuit Court erred in overruling the motion for a new trial, and this depends upon the fact whether Dawson succeeded in proving that the work was done under a special contract for a stipulated sum. If he did, the verdict is wrong, for the amount of the set-off as admitted by Robbins upon the trial, exceeds the amount agreed to have been paid according to the special contract, if there was one.

The bill of exceptions sets out all the testimony in the case, but it is unnecessary to repeat it here. The declarations and admissions of Robbins, made at different times while the work was progressing, and testified to by different witnesses, are the only evidence tending to show a special contract. The two witnesses introduced by Dawson, who testified most particularly to the statements of Robbins, both state that Robbins told them, at the same time that he admitted he had taken the job for $500, that he had refused to sign a written contract, because it did not truly represent the agreement. One of Dawson’s witnesses testified that “he asked Robbins what he was to get for doing the work on Dawson’s mill. Robbins replied that he did not know; that there was a good deal more work to be done than had been represented by Dawson; that he had agreed to do the work for $500, but had refused to sign the contract, on account of Dawson’s misrepresentations in relation to the amount of work to be done.”

Robbins also proved by a witness that while the work was progressing upon the mill, the hands refused to work unless their wages were secured to them ; that in consequence of this, Dawson and Robbins had a conversation, in which Dawson agreed to pay the hands from that time, and also to guarantee to them their pay for what they had done, if the job amounted to that sum; and if the parties could not agree, they would leave it to arbitrators. What was to be left to arbitrators, is, perhaps, not very clear from the evidence. The most reasonable conclusion is, that it was to be left to arbitrators to determine what the job came to, in case the parties could not agree about the price; and yet such could not be the case, if $500 was agreed upon as the price, for in that event, there would be nothing for the arbitrators to determine.

It moreover appears from the account of Dawson that at the time of this agreement to pay the hands for the future work, he had already advanced more than $500. We think all these circumstances might well have justified the jury in finding either that no special contract was never perfected between the parties — -for one was doubtless talked about - — or if a special contract ever existed, that,it was subsequently rescinded. '

We have not referred to the evidence with a view to show that the weight of testimony is in favor of the verdict as rendered by the jury; on the contrary, there is much evidence in the record to show that there was a special contract between the parties, that the job was to be done for $500; but we have repeated part of the proof to show that there was some evidence tending to show that the work was not done under a special agreement, and where the testimony is conflicting, and the jury might without any palpable or manifest disregard of the evidence, have rendered the verdict they did, and the Circuit Court has refused to set it aside, it is not the province of this Court to disturb it.

It is only in cases where the verdict of the jury strikes the mind at first blush as manifestly and palpably contrary to evidence, that the Court will for that reason interfere to set it aside.

The judgment of the Circuit Court is affirmed with costs,

Judgment affirmed.


text:
    John J. Cruikshank, plaintiff in error, v. John H. Brown et al., defendants in error.

      Error to Jo Daviess.

    A count in debt upon a contract, after setting forth the facts necessary to establish the defendants’ liability, further alleged a promise to pay in consideration of the premises: Held, that the count commencing and concluding in debt, was not to be regarded as a count in assumpsit merely because the word promised was used instead of agreed.

    No advantage can be taken of a variance between the writ and declaration on a writ of error. It must he taken advantage if by pl'ea in abatement, or by a motion.
    A declaration in debt contained a count for work done, goods soldi &c- which concluded thus: “undertook and then and there promised?’ &c. HeZtf, that it was simply an indebitatus assumpsit count, and therefore a misjoinder.
    Debt, in the Jo Daviess Circuit Court, brought by the defendants in error against the plaintiff in error and George Cruikshank. At the March term, 1847, the Hon. Thomas C. Browne presiding, a default was entered, and a judgment rendered in favor of plaintiffs for $6262-48 debt, and $2626-65 damages, against John J. Cruikshank the only defendant served.

      M. Y. Johnson, for the plaintiff in error.
    It is assigned for error, that the action, as shown by the process, is debt, and the declaration is in assumpsit, each count averring a promise. See Chenot v. Lefevre, 3 Gilm. 637; 1 Chitty’s Pl. 394. The declaration should have averred that the defendants “agreed and bound thems,elves.” Metcalf v. Robinson, 2 McLean, 363.
    In an action of assumpsit, a count in trover may be joined,, but debt and assumpsit cannot be joined. Flood v. Yandes, 1 Blackf. 102; 3 U. S. Dig. 630, § 131; Brill v. Neele, 3 Barn. & Ald. 208; 1 Chitty’s Pl. 231; Metcalf v. Robinson, before cited.

      C. Gilman argued for the defendants in error, in this Court.
    The declaration is substantially good. It is a declaration in debt, and not in assumpsit as the counsel for the plaintiff in error contends. The commencement and the conclusion are both regular. The averment of a promise merely, does not vitiate the count, but it is often used in declarations in debt. See Morehead’s Pr., title “Declarations in Debt” 723, et seq.; Bishop v. Young, 2 Bos. & Pul. 78; Flood v. Yandes, cited by plaintiff.
    The distinction attempted to be drawn by the Court in Metcalf v. Robinson, 2 McLean, 363, between the words “promise” and “agree,” is entitled to but little weight. It is a distinction without a difference.
    A variance between the writ and the declaration, should be taken advantage of by plea in abatement. Prince v. Lamb, Bre. 298; Rust v. Frothingham, Ib. 258; Duval v. Craig, 2 Wheat. 45; Chirac v. Reinicker, 11 do. 280.
   ■ The Opinion of the Court was delivered by

Trumbull, J.

The plaintiff in error was sued in an action of debt, and judgment rendered against him by default for $6262-48 debt, and $2626-65 in damages.

To reverse this judgment the plaintiff assigns a number of errors, which, however, resolve themselves into two: First, that “the writ sued out in said cause is in an action of debt, and the declaration in assumpsit;” second, that “it was error in the Court to render any judgment in favor of the plaintiffs below on the pleadings.”

The writ which was served only on one of the defendants below who is the plaintiff here, is admitted to be in debt.

The declaration contains six counts, the first of which is as follows, viz : “John H. Brown and James W. Brown, partners in trade, under the name of JohnH. Brown & Co., complain of George Cruikshank and John J. Cruikshank, formerly partners in trade under the name of George Cruikshank & Co., in a plea that they render the Said plaintiffs six thousand, two hundred and sixty two ^ dollars which they justly owe said plaintiffs. For that whereas the said defendants, on the first day of February, in the year of our Lord, one thousand eight hundred and forty, at Pittsburgh, made their due bill in writing, and delivered the same to the said plaintiffs, and thereby acknowledged themselves in-deb ted to the said plaintiffs, by the said name of their firm of John H. Brown & Co., three thousand dollars, value received, with interest from date, and the said defendants then and there in consideration of the premises, promised to pay the due bill to the said plaintiffs by the name of their firm, John H. Brown & Co., according to the tenor and effect thereof.”

This count, after setting forth such facts as render the defendant liable to pay, alleges also a promise to pay in consideration of the premises. The allegation of a promise to pay might be rejected as surplusage, and the count, which would then unquestionably be in debt, would still be good.

We do not however admit, that when a contract is specially declared upon, and the count possesses all the attributes of a count in debt, commencing and concluding as such, that it is tobe regarded as a count in assumpsit merely because the word promised is used in place of the word agreed. A count in debt containing the word promised was held good in the cases of Bishop v. Young, 2 Bos. & Pul. 78, and Flood v. Yandes, 1 Blackf. 502.

There is, then, no error on account of any variance between the writ and declaration, as to the form of the action, as the declaration manifestly was intended to be, and is, in part, at least, a declaration in debt. But if it were not, no advantage could be taken of the variance between the writ and declaration on a writ of error. Variances of that character are matters pleadable in abatement only. Duval v. Craig, 2 Wheaton, 45; Chirac v. Reinicker, 11 Wheaton, 280; Prince v. Lamb, Breese, 278; Rust v. Frothingham, Ibid. 258; or perhaps, according to modern practice, advantage might be taken of the variance by motion in the Circuit Court.

But while the first count in the declaration is clearly a count in debt, the last one, which is upon promises for work done, goods sold, money lent, &c.s all in one count, is as clearly in assumpsit. It is simply an indebitatus assumpsit count, and alleges that the defendants were indebted to the plaintiffs in the further sum of $20-000 for the work and labor of said plaintiffs by them performed about the business of defendants, and at their request, 'and also in a like sum of $20-000 for money lent, goods sold, &c., and then concludes as follows : “And being so indebted, the said defendants in consideration thereof, afterwards, to wit, on the day and year last aforesaid, at the county aforesaid, undertook, and then and there promised the said plaintiffs to pay them the said several sums of money in this count mentioned, when the said defendants should be thereunto after-wards requested.”

This contains the words “undertook and promised to pay, and possesses every characteristic which distinguishes a count in assumpsit from one in debt. 1 Chitty’s PI. 394; Chenot v. Lefevre, 3 Gilm. 637.

That debt and assumpsit cannot be joined, is established by numerous authorities. 1 Chitty’s PI. 231; Brill v. Neele, 3 Barn. & Ald. 208; Metcalf v. Robinson, 2 M’Lean, 363.

There is, then, in this case a joinder of counts which the law will not allow, and though we can see no good reason for the rule in this case, nor why the last countin the declaration should not be equally good in debt, as in assumpsit, yet the law is otherwise settled, and we are compelled, however reluctantly, to follow it. The case of Brill v. Neele, is precisely analogous to the present, except that the objection in that case was raised by demurrer. The objection is, however, equally fatal on motion in arrest of judgment, after verdict, or on writ of error. Gould’s PI,, ch. 4, § 87 ; 1 Chitty’s PL, 236.

The judgment of the Circuit Court is reversed, and the cause remanded to afford the plaintiffs in that Court an opportunity to amend their pleadings.

Judgment reversed.


text:
    Alexander K. Owens, appellant, v. Matthew McKethe, appellee.

      Appeal from Grundy.
    Where an appeal was prayed and the bond filed prior to April 1,1848, the day on which the new Constitution went into operation, the Court held that the case was not affected by the division of the State into judicial districts, but was pending in the Supreme Court existing at the time of perfecting the appeal.
    All cases removed into the Supreme Court by appeal or writ of error since April 1, 1848, necessarily go to the Court held in the Division, in which the same were decided, unless the parties, by consent, send them to the Court in the adjoining Division.
    Motion to extend the time for filing the record in the above entitled cause.

      H. O. Merriman, counsel for the appellant,
    stated to the Court that the appeal was prayed and perfected by the filing of the appeal bond before the first day of April, 1848, and submitted to the Court whether, in an appeal thus taken, the record should be filed in this Court or in the Supreme Court of the Third Grand Division.
    The Constitution took effect April 1, 1848. See Schedule, § 18. The appeal being perfected before that date, it was pending in this Court from the time of being perfected, ib. § 20.
    Upon the foregoing statements and references, he moved that the time for filing the record be extended, not having received the same in consequence of the unavoidable delay of the mail.
   The Opinion of the Court was delivered by

Treat, C. J.

The question is made whether this appeal is pending in this Court. The case originated in the Third Grand Division, but the appeal was prayed and the bond filed prior to the first of April, 1848, the day on which the new Constitution went into operation. The appeal was perfected by the filing of the bond, and the case was from that time pending in the Supreme Court. The division of the State into judicial districts does not affect cases pending in the Supreme Court when the Constitution took effect. Such cases are still pending in this Court, and must here be disposed of. The Schedule to the Constitution provides, that all suits and proceedings pending in the Supreme Court on the first Monday in December, 1848, “shall be finally adjudicated where the same may be pending.” All cases removed to the Supreme Court by appeal or writ of error since the first of April, 1848, necessarily go to to the Court held in the Division in which the same were decided, unless the parties, by consent, send them to the Court in the adjoining Division.

Motion alloioed.


author: Caton, J.

text:
    Alexander Young, Sheriff, &c. plaintiff in error, v. Benjamin H. Campbell et al., defendants in error.

      Error to Jo Daviess.

    Upon demurrer and oyer craved of a writing obligatory, it should be set forth in the record.
    When a sheriff, under the provisions of the Attachment Act, takes a forthcoming bond and does not assign the same to the plaintiff in attachment, a suit may be brought in the name of the sheriff for the use of such plaintiff.
    The form of a judgment in a suit in attachment is the same as in any other suit, whether there be a personal service or not; but where there is not such service, the award should be only of a special execution. Where there is a personal service, then a general execution should be awarded. In either case, the property attached is specially liable, unless the defendant appear and put in bail as is provided by the Attachment Act.
    A declaration upon a forthcomingbond averred, that the defendants did not have the property forthcoming according to the tenor and effect of the bond, “but wholly and totally failed, and neglected and refused to do so:” Held, that the declaration was sufficient to show a breach of the condition and to entitle the plaintiff to recover.
    Debt, in the Jo Daviess Circuit Court, upon a forthcoming bond, brought in the name of the plaintiff in error against the defendant in error, and heard before the Hon. Thomas C. Browne, at the October term, 1846. Demurrer to the declaration, which was sustained by the Court, and judgment against the plaintiff for costs.

      V. II. Higgins, for the plaintiff in error.
    The demurrer to the declaration in this case goes to the whole declaration, and if it contain one good count, it must be sustained, and the demurrer overruled. Cowles v. Litchfield, 2 Scam. 360.
    The first count is good. It sets out a common money bond without any condition, and it no where appears that there is any condition annexed to it. The Court cannot, therefore, intend that there is any condition, Willes, 18; Barnes, S. C. 339.
    If there was »a condition, the defendants should have craved oyer of the bond and condition, and made it a part of the record by setting it out in their pleadings in hsec verba: otherwise it could not be judicially noticed. Bogardus v. Trial, 1 Scam. 63; Sims v. Hugsby, Bre. Ap. 27; Gould’s Pl. ch. VIII, §§ 35, 57, 61.
    A sheriff may maintain an action in his own name for a breach of the condition of the bond. In the case of Crisman v. Matthews, 1 Scam. 148, the right was not questioned. See, also, the case of Roles v. Rosewell, 5 Term R. 538, for the reasons for making the term “may assign” imperative.

      S. T. Logan, and C. Gilman, for the defendants in error.
    The demurrer was properly sustained by the Court below.
    I. Because the statute does not authorize a suit upon a forthcoming bond in the name of the sheriff. Rev. Stat. 65, § 10. The word “may” in this section means “shall” or “must,” it being one of the cases embraced within the decision of this Court in Schuyler Co .v. Mercer Co., 4 Gilm. 20; see, also, Malcom v. Rogers, 5 Cowen, 188.
    The Replevin Act, (Rev. Stat. 434, § 7,) expressly authorizes suits upon replevin bonds to be brought by “the sheriff, or plaintiff in the name of the sheriff to his own use.” The expression of the right in the one case is the exclusion of it in the other.
    II. Admitting, however, for the sake of argument, that this suit is properly brought in the name of the sheriff, the declaration does not contain the necessary foundation.
    1. It is not averred that there was a special judgment in rem;

    2. It is not averred that a special execution for the sale of the property attached was issued; and
    3. There is no averment of a demand by the officer holding the execution for the specific property.
    In support of the first and second objections, see Conn v. Caldwell, 1 Gilm. 536; Moore v. Hamilton, 2 do. 429.

      Higgins, in reply.
    The general principle is, that no other person than the obligee named in the instrument can maintain the action. The legal right is in the nominal obligee, although made for the' benefit of another. 1 Ghitty’s PI. 2, 3; 5 Wend. 191.
    Where the statute gives the right expressly, as in cases of replevin, it is merely declaratory of the Common Law.
    The word “may” does not mean “must” or “shall” in cases like this. The cases cited by the counsel for the plaintiff in error are not applicable. The word is never construed in that way except where the public interests and rights are concerned, and where the public have a claim de jure, that the power should be exercised. Malcom v. Rogers, cited by plaintiff.
    The correctness of the entry of judgment and award of . execution cannot be examined in a collateral suit like the case at bar.
   The Opinion of the Court was delivered by

Caton, J.

There was a general demurrer sustained to the whole declaration, which contained two counts. The fiist is in the usual form of a money bond, for the payment of iso much money without condition. The second is upon the same or a similar bond, with a condition in the usual form of a forthcoming bond in an attachment suit.

The declaration avers the recovery of a judgment and the issuing of an execution in that suit, upon which there was a „ return of nulla bona with an averment also, that the defendants did not have the said property or any part thereof forthcoming, &c., according to the form and effect of the condition of the bond. The demurrer “craves oyer of the said writing obligatory and it is read to them,” but it does not set it forth, so that the declaration must be judged of as it stands. No objection has, nor can be urged to the first count, as it stands, and there being one good count, the demurrer, being to the whole declaration, should have been overruled.

Nor do we think the second count obnoxious to the objections urged against it, which are four.

1. That the suit should not have been brought in the name of the sheriff, but the bond should have been assigned to the plaintiff in the attachment suit under the eighth section of the attachment law, and then the suit brought in the name of the latter.

2. The judgment in that case was general, in personam.

3. The execution was general, and not special against the property levied upon.

4. No demand of the property was made by the sheriff.

The word ‘may” in the section of the statute referred to, does not mean “shall.” Neither the interest of the public nor any of the parties requires that construction. The statute authorizes the assignment of the bond, but does not make it imperative. It is a matter of no moment to the defendant whether the suit be brought in the name of the sheriff or of the plaintiff in the other suit. He could make the same defence in either case, and with equal facility.

• The form of the judgment is the same in an attachment suit, as in any other, and that too, whether there be a personal service or not; but where there is not such service, the award should be only of a special execution. But where there is a personal service on the defendant, then a general execution should be awarded, as in an ordinary suit, but in either case the property levied upon under the attachment, is holden by it, and specially liable unless the defendant appears and put in bail as is provided for in the section of the attachment law. When that is done, then the property is released, and not till then. There is nothing on this record to show that such was the case here. But even admitting the irregularity alleged, it could not be taken advantage of in this collateral action. The return of nulla bona shows that neither this nor any other of the defendants’ property could be found in the county.

The declaration also avers, that the defendant did not have the property forthcoming according to the tenor and effect of the bond, “but wholly and totally failed, neglected and refused so to do.” This we think abundantly sufficient, to show a breach of the condition of the bond, and to entitle the plaintiff to recover.

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

Judgment reversed.


text:
    James Dunlap, plaintiff in error, v. Horatio N. Davis et al., defendants in error.

      Error to Pike.

    A party desiring a continuance of a cause is bound to show that he has made reasonable exertions to prepare for the trial, without success, or some good reason for not making such exertions.
    Attachment, in the Pike Circuit Court, brought by the plaintiff in error against the defendants in error, as drawers of a bill of exchange.
    The affidavit qf the plaintiff was filed in the office of the Clerk .of the Circuit Court on the 12th day of September, A. D. 1844, and a writ of attachment was issued on the same day, returnable to the April term, 1845. The declaration was filed on the 16th day of April, being the third day of the term, and, on the next day a motion for a continuance, based upon the following affidavit, was made by the plaintiff’s attorney: -
    “In the Circuit-Court of Pike County, State of Illinois, April term, 1845.
    James Dunlap, plaintiff, 1 v. > In attachment. H. N. Davis fy Co. defendants. )
    David A. Smith, of counsel for the plaintiff, makes oath in due form of law, that he instituted this action to the present term of this Court in September last; that at the time of the institution of said suit, affiant had only a memorandum of the bill of exchange, being then informed, which he verily believed, and he still believes, that an action was pending in the Circuit Court of the county of St. Louis, State of Missouri, against J. T. Sweringen, as one of the indorsers on the bill of exchange sued on in this case. That affiant was in St. Louis in the month of January last, and applied to Mr. Crockett, the attorney who had care of the bill of exchange, and the prosecution of the suit on the same as aforesaid, for the said bill of exchange to be used in the trial of this cause. That Mr. Crockett informed affiant that the suit in the Circuit Court of the County of St. Louis as aforesaid, was still pending in said Court, and would be for some time, and that affiant could not have the use of said bill of exchange until the said suit was disposed of. That affiant’s partner, John J. Hardin, as he informed affiant, and affiant verily believes, applied on his, said Hardin’s, way from Jacksonville to Shawneetown on the first week of this month, called on the said Crockett at St. Louis for said bill of exchange, who informed said Hardin that he could have it on his return from Shawneetown. That said Hardin, on his return from Shawneetown within the last week, called at the office of said Crockett, and once on the street on his partner for said bill of exchange pursuant to the foregoing arrangement, and was not able to find said Crockett, or to procure said bill of exchange. That during the present term of this Court the affiant has, to prevent the dismissal ofthis case at this term of the Court filed a declaration on said bill of exchange according to its legal effect, and has been under the necessity of giving what he supposes to be as near as may be under the circumstances, a copy of said bill of exchange. For fear that it is not, affiant asks a continuance of this case to the next term of this Court and for leave to file an amended declaration in the case within ninety days after the adjournment of the present term ofthis Court. Affiant states that he believes this cause will be ready on the part of the plaintiff for a full and fair trial at the next term of this Court, and that if the continuance asked for is not granted, the plaintiff will be in danger of losing his demand in the premises. (Signed,) David A. Smith.”
    Sworn to and subscribed 1 before me, clerk of said > Court, April 17, 1845. )
    O. M. Hatch, Clerk.”
    The motion was overruled by the Court, the Hon. Samuel D. Lockwood presiding, and the cause coming onS'for trial, the plaintiff submitted to a nonsuit. Thereupon the Court-rendered a judgment for costs in. favor of the defendants.

      D. A. Smith, for the plaintiff in error,
    stated that the. only error assigned was, that the Court refused to grant a continuance upon the facts stated in the affidavit. He then recapitulated those facts, and remarked that there was no decision of the Court having a direct bearing upon the case at bar; that . the affidavit contained sufficient matter to show no want of diligence on the part of plaintiff, and that, therefore, a continuance should have been granted by the Circuit Court.

      TV. Thomas, for the defendants in error.
    1. Upon the return of the attachment served, the plaintiff was entitled to judgment. R. L. 87, § 13.
    2. At the first term of the Court, the defendant had the right to appear and insist upon a trial. Ibid. 492, § 22.
    3. When the defendant entered his appearance in this cause, and the plaintiff had filed his declaration, the cause stood for trial, as any other cause.
    4. The cause being in a position for trial, the plaintiff was bound to show some reasons for continuance, not connected with, or growing out of his own neglect or omission.
    5. The affidavit for continuance in this cause shows that the plaintiff had voluntarily placed himself in such a position that he could not proceed to trial; he had placed his bill of exchange out of his power or control, for his own purposes, and- had no right to ask the Court to continue the cause upon the grounds stated.
    6. The causes assigned for continuance all" grow out of the action of the plaintiff.
    Upon the question of continuance, see Simms v. Alcorn, 1 Bibb, 349.
   The Opinion of the Court was delivered by

Treat, C. J.

The Circuit Court committed no error in refusing the motion for a continuance. The defendants were entitled to a trial of the case, unless the plaintiff disclosed sufficient cause for the postponement. He was bound to show that he had made reasonable exertions to prepare for the trial, without success, or some good reason for not making such exertions. The affidavit fails to. make out a case of diligence on his part, or to furnish any satisfactory excuse for omitting preparations for the trial. Being the indorsee, he was, as a matter of course, entitled to the possession and Control of the bill of exchange. He voluntarily placed it in the hands of his attorney in 8t. Louis, to be used in a suit against an indorser. He still retained the control of the instrument, and could at any moment withdraw it from the custody of his attorney. If is true that the law allowed him to prosecute separate actions against the parties to the bill, but the fact that different suits were pending, furnished no good reason for not producing it in this case, unless there was at the time a real necessity for using it elsewhere. It is apparent from the affidavit that it might have been withdrawn without the slightest prejudice to his interests in the suit pending against the indorser, and that by the exercise of reasonable diligence, all occasion for a continuance would have been avoided. The evidence was not beyond his control, nor was he prevented by unavoidable circumstances from producing it. His failure in this respect was the result of his own negligence, and he must abide by the consequences.

The judgment of the Circuit Court is affirmed with costs.

Judgment affirmed.