author: Chief Justice Reynolds.

text:
    Joseph Cornelius, Appellant, v. David Coons and Parker Jarvis, Appellees.
    APPEAL FROM ST. CLAIR.
    An appeal will lie, by consent entered of record, from an interlocutory order dissolving an injunction.
    ' Cornelius exhibited his bill in chancery, in the St. Clair circuit court, praying an injunction to enjoin Coons from the collection of certain judgments which he had obtained against Cornelius, before Clayton Tiffin, a justice of the peace, and also to enjoin Jarvis, the constable, from collecting the executions issued upon those judgments. An injunction was awarded by the judge in vacation. Jarvis answered, setting forth his powers to act as constable, by virtue of the executions. Coons answered, and denied every material allegation in the complainant’s bill. Upon a hearing of the cause upon bill and answers, the court dissolved the injunction. The errors assigned, question the correctness of the court below in dissolving the injunction, and in rendering that judgment in vacation.
   Opinion of the Court by

Chief Justice Reynolds.

It is a sufficient answer to the second error assigned, that the judgment of the court, and this appeal, were both had ,by consent entered of record. Without such consent, no appeal would lie upon an order dissolving an injunction, it being an interlocutory, and not a final judgment. The correctness of the judgment in dissolving the injunction, can not be questioned. If the bill contained any equity, it is completely destroyed by the defendant’s answer. The judgment of the court below is affirmed,

Judgment affirmed.

         No appeal from an interlocutory decree dissolving an injnnction. Young v. Grundy, 6 Cranch, 51.

       The general rule is well settled—that an appeal or writ of error will not lie from an interlocutory order; it must be a final adjudication or judgment to enable a party to have it reviewed by an appellate court. Pentecost et al. v. Magahee, 4 Scam., 326. Fleece v. Russell et al., 13 Ill., 31. Hayes v. Caldwell, 5 Gilm., 33. Woodside v. Woodside, 21 Ill., 207 ; and it is also equally as well settled that consent of parties will not confer jurisdiction on a court which has no jurisdiction of the subject matter. The People v. Scates, 3 Scam., 353. Foley v. People, post. Allen v. Belcher, 3 Gilm., 595. Ginn et al. v. Rogers, 4 Gilm., 135. Williams v. Blankenship, 12 Ill., 122. Randolph County v. Ralls, 18 Ill., 29. The rule established by the case last cited is, “ That jurisdiction of the subject matter can not be conferred upon a court by consent of the parties, nor can want of it be waived; but when the law confers upon the court original jurisdiction of the subject matter, full appearance, without objection, confers upon the court jurisdiction of the person, and it may then adjudicate." The same distinction is taken in the other cases cited.
      The jurisdiction of the supreme court in existence when this decision was made was fixed by the constitution of the state, and was as follows: “ The supreme court shall be holden at the seat of government, and shall have an appellate jurisdiction only, except in cases relating to the revenue, in cases of mandamus, and in such cases of impeachment as may be required to be tried before it.” Constitution of 1818, Article 4, Section 2. The present constitution is substantially the same. Article 5, Sec. 5.
      Erom these principles we think it follows, that the order appealed from being interlocutory only, the supreme court had no jurisdiction over it; that that court possessing only appellate jurisdiction, the consent of parties could not confer jurisdiction ; and that consequently the decision of the court was erroneous.
      And this view, it is believed, is sustained by the reasoning of the court in subsequent cases, although the question here has never been directly before the court. In Crull et ux. v. Keener, 17 Ill., 246, in speaking of cases authorized to be certified to the supreme court from the circuit court, Caton, C. J. said: “ Nothing can be more manifest than that this was never designed to allow a case to be taken to the supreme court till a final decision had been made in the circuit court, so that it could be taken up in the ordinary way by filing a complete record.” And again in Cunningham v. Loomis et al., id. 555, which was attempted to be taken to the supreme court in the same manner: “ However clear we might be that the circuit court decided correctly, so far as that decision went, yet, as there is no final order in the case, this court has no jurisdiction to affirm or reverse the decision. The judgment which was rendered was but interlocutory. It could not be final, till the damages were assessed. Should we affirm the judgment it would not be an end of the case. As yet, the plaintiffs’ judgment is for nothing. It merely determines that they are entitled to recover something. How much they are entitled to recover, is a question still pending before the circuit court, which has exclusive jurisdiction over it. That question may be tried in that court at the same time we are heaving this cause here, and bythe timethis decision is made, the condition of the cause may be very different from what it was when this case was brought up.”


source: Caselaw Access Project

author: Chief Justice Reynolds,

license: Public Domain

text:
    James Mason, Appellant, v. Robert Wash, who sues for the City Bank of New York, Appellees.
    APPEAL FROM MADISON.
    Our act making promissory notes, &c., assignable, is not to be construed in the same way as in the statute of Anne, as they are different in their provisions and objects.
    Under our statute an assignor of a note is not liable, unless due diligence by suit against the maker has been used where that course will obtain the money.
    The laws of another state must be pleaded or proved—this court can not ex-officio take notice of them.
    A discharge under the bankrupt law of New York is no bar to a suit brought here on a contract made before the discharge.
    This action was commenced against the defendant below, who is plaintiff here, upon his liability as assignor of a promissory note. The declaration averred, that the note was executed by S. S. and C. Porter, at New York, and made payable six months after the date thereof, to James Mason or order.— That on the day of the execution of the note, and before its payment, James Mason, at New York, assigned the note to Robert Wash—that on the day the note fell due, and was payable, it was presented at New York to the makers for payment, and that payment by them was refused, of which the assignor, Mason, had notice. To this declaration the defendant demurred, which the court overruled. The defendant then plead, among other pleas, his discharge under the bankrupt laws of New York, to which the plaintiff demurred, and -which demurrer the court sustained. A motion was also made by defendant in arrest of judgment, which the court overruled, but gave judgment for the plaintiff. To reverse which an appeal was granted, and the appellant assigned for error among others, 1. The judgment1 of the court in overruling his demurrer to the declaration; 2. Overruling his motion in arrest of judgment; and 3. In sustaining the plaintiff’s demurrer, to the defendant’s special plea of a discharge under the bankrupt laws of New York.
   Chief Justice Reynolds,

after stating the facts of the case, delivered the opinion of the court. In this case, the court is called upon to say, whether sufficient facts are shown in the pleadings to authorize the plaintiff below to recover. This depends, we conceive, upon the sound construction to be given to our act of the legislature, making promissory notes assignable. We can not give to that act the same construction that is given to the statute of Anne. The provisions of the two statutes are different; the statute of Anne, places promissory-notes upon the same footing with inland hills of* exchange— ours does not. Ours makes notes for the payment of property assignable—the statute of Anne does not. That statute was passed for the furtherance of commerce, and to suit the convenience and interests of a greatly commercial people. Ours was enacted at a time when but few persons inhabited the country, and whose pursuits were domestic and agricultural. Our statute expressly declares that the assignor shall not be liable, until due diligence has been used by the holder to obtain the money from the maker. To give our statute the same construction that the statute of Anne receives, would, in the opinion of the court, defeat the intention of the legislature, and the obvious understanding of the people. Hence, we are irresistibly led to conclude that the diligónce contemplated by our statute is diligence by suit, when that course will obtain the money. No suit then, having been commenced and prosecuted against the makers of this note, as appears from the pleadings, the declaration is insufficient, and no recovery can be had thereon under the laws of this state.

But here we are met by an argument, that the right of action accrued under the laws of New York, the contract having been made there, and that the laws of that state must furnish the rule of decision in this case. It is a sufficient answer to that argument to remark, that the laws of New York were neither pleaded, nor proved in the court below, and that this court can not, ex officio, take notice of the laws of a foreign state, Here we might stop; but as the question which is the foundation of the third error assigned, may again be raised in the court below, it will be best, once for all, to settle it, and in doing so, it will be useless, and accounted a vain boast of learning to enter into argument or reasoning upon the subject, it having been settled by the highest judicial tribunal known to our government. The contract in this case was made after the passage of the bankrupt law of New York, and the discharge obtained under that law. But as the supreme court of the United States has determined that the discharge is equally unavailing whether the contract was made before or after the passage of the act, this court feels itself bound to yield to that opinion, how much soever some of the court might be disposed to question its correctness. We presume, however, it is founded upon the fact that the power to pass bankrupt laws is delegated to the general government, and hence, the states are restricted.

Some other questions were raised in the argument of this cause, but as they relate principally to the sufficiency of the testimony to authorize the finding of the jury, are not of a character to require the interfering hand of this court. The judgment below must be reversed, the appellant recover his costs, and the cause remanded to the court below for new proceedings to be had, not inconsistent with this opinion.

Judgment reversed.

      Laws of 1819, page 1.

       Under the statute of this state there are three contingencies in which an assignor of a promissory note may become liable : 1, where the assignee, by the exercise of due diligence, prosecutes the maker to insolvency : 2, where the institution of a suit against the maker would be unavailing : 3, where the maker has absconded or left the state when the note falls due, or when suit should be brought. Crouch v. Hall, 15 Ill., 264.
      The following cases have been decided on each of these propositions :

        First. Due diligence, &c.

        Thompson v. Armstrong, post. Tarlton v. Miller, id. Wilson v. Van Winkle, 2 Gilm., 684. Curtis et al. v. Gorman, 19 Ill., 141. Allison v. Smith, 20 Ill., 104. Sherman v. Smith, id., 350. Nixon v. Weyhrich, id., 600.
      The diligence required in making the collection from the maker of the note, is such as a prudent man would use in the conduct of his own affairs. Nixon v. Weyhrich, 20 Ill., 600.
      If an execution is relied on, as proof of diligence used in the collection of a debt, the process should remain in the hands of the officer, for its whole life; or the fact of the uselessness of its so remaining, should be pleaded. No presumption will be indulged that the money could not be made, during the remainder of the days it had to run, after return was made. Hamlin v. Reynolds et al., 22 Ills., 207. Chalmers v. Moore, id., 359.
      When it is designed to recover against the indorser of a note, action must be brought against the maker at the first term of any court having jurisdiction, although there may not be ten days between the time' the note falls due, and the commencement of the term. Chalmers v. Moore, 22 Ill., 359.

        Secondly. Where a suit would have been unavailing.

        Humphreys v. Coller et al., 1 Scam., 47. Harmon et al. v. Thornton, 2 Scam., 354. Cowles et al. v. Litchfield, id., 360. Bledsoe v. Graves, 4 Scam., 385. Bestor v. Walker et al., 4 Gilm., 15. Pierce v. Short, 14 Ill., 146. Crouch v. Hall, 15 Ill., 263. Roberts v. Haskell, 20 Ill., 59.

        Thirdly. Where the maker has absconded or left the state when the note falls due or suit should have been brought.

        Hilborn v. Artus et al., 3 Scam., 346. Schuttler v. Piatt, 12 Ill., 419. Crouch v. Hall, 15 Ill., 263.

        The liability of the assignor on account of the maker’s absence from the state, depends materially on the question whether the note was assigned before or after maturity. If assigned before maturity, although the maker resides out of this state, and was so known to all the parties at the time of the assignment, still if he is out of the state when the note becomes due, or suit should have been brought, the assignor will be liable, and the assignee is not required to prosecute him- to insolvency in the foreign jurisdiction. Schuttler v. Piatt, 12 Ill., 419. But if the note is assigned after maturity, and the maker is out of the state at the time, the assignee can only recover of the assignor by showing that he used due diligence by prosecuting a suit against the maker, or that such suit would have been unavailing. Crouch v. Hall, 15 Ill., 264.

        а) Foreign laws are facts which must be proved before they can be received in a court of justice. 3 Cranch, 187.
      Foreign statutes can not be proved by parol, but the common law of a foreign country may be shown by the testimony of intelligent witnesses of that country. 1 Johns. Rep., 385.

       Such is the rule as to the statutes of other states. Crouch v. Hall, supra. Merritt v. Merritt, 20 Ill., 65 ; but in the absence of all proof to the contrary, the courts will presume that the common law prevails in the states of the Union. Id.
      The common law of another state may be proved by parol. Id. Statutes of other states can not. Hoes v. Van Alstyne, 20 Ill., 201.

       A discharge under the insolvent law of another state is no bar to a suit brought by any creditor, named in the insolvent’s petition, against such debtor in New York. White v. Canfield, 7 Johns., 117.

        Vide King v. Riddle, 7 Cranch, 168. 4 Wheat., 122. Ibid, 209. Ogden v. Saunders, 12 Wheat., 213. Thompson v. Armstrong, post.


text:
    S. Moore, Plaintiff in Error, v. J. Watts, S. Crocker and M. Wells, Defendants in Error.
    ERROR TO ST. CLAIR.
    A warrant for a felony founded upon an affidavit which stated “ that A. B. entered the inclosure of Ó. D, and carried off her grain,” is no justification to the officer who issued it, nor to the officer who executed it, as the affidavit contains no words importing a felony. All the parties to such a warrant are trespassers.
   Opinion of the Court by

Chief Justice Reynolds.

This is an action of assault and battery and false imprisonment.

The defendants pleaded specially in substance, that the said Watts being a justice of the peace—that the defendant, Wells, appeared before the said justice, and made oath that the said plaintiff had entered her inclosure and carried off a quantity of her grain—that thereupon the said justice issued his warrant, upon which the plaintiff was arrested and committed. Under this proceeding the defendant justifies.

The plaintiff replied, that the assault and battery and false imprisonment was committed of the defendants’ own wrong, and without any legal process, founded upon a charge of felony, sworn to before said justice. Upon this replication issue was taken. The affidavit, warrant and commitment, were read in evidence to the jury, and the court instructed the jury that they were a complete justification to the defendants. It is to this instruction the plaintiff excepts, and we are called upon to say whether it is correct. We will here remark that the plea contains an averment that the affidavit meant, that-the plaintiff feloniously entered the inclosure of the said Wells, and carried off her grain. This kind of innuendo, if we may use the expression, can not alter the sense, or extend the meaning of the words. We will now consider, does_ the affidavit give to the justice jurisdiction ? If it does, then was the officer who acted under it, justified. By the 17th section of the act defining the powers and duties of justices of the peace, it is provided,

That it shall be lawful for any justice of the peace, upon oath being made before him that any person hath committed, or that there are just grounds to suspect that he or she hath committed any criminal offense within his county, to issue his warrant, &c. Can this provision be construed to extend to mere civil trespasses? we think not: and the affidavit shows nothing more. Then we must say the court erred in instructing the jury that the affidavit and proceedings under it justified the defendants. If the justice had not jurisdiction, and this is apparent, both from the affidavit and warrant, the officer who acts under his process, can not thereby claim to be justified. Let the judgment of the court below be reversed, the plaintiff recover his costs, and the cause remanded for new proceedings to be had not inconsistent with this opinion.

Judgment reversed.

       There is some conflict in the authorities as to what extent an officer is justified in serving process which is void; but we think the weight of decisions establishes this principle—that if the process is, on its face, legal, it is a full justification to the officer serving it, unless he had notice outside of the writ that it was irregular. But if the process itself contains evidence of its irregularity, or if the officer is notified in any other manner, then he will be a trespasser. Such clearly is the purport of the decisions in this state Barnes v. Barber, 1 Gilm., 401. McDonald v. Wilkie, 13 Ill., 25. Stafford v. Low, 20 Ill., 152. In this last case the court, in speaking of a capias, said: “But like any other void process which is regular on its face, it would protect the officer executing it, as he need look no further than to the writ.” See also the following cases. Lattin v. Smith, post. Collins v. Waggoner, id. Flack et al. v. Ankeny, id. Hull v. Blaisdell et al., 1 Scam., 332. England v. Clark, 4 Scam., 487. Wentworth v. The People, id., 534. Parker v. Smith et al., 1 Gilm., 414. Bybee v. Ashby, 2 Gilm., 165 Stow v. Gregory, 3 Gilm., 576. Guyer v. Andrews, 11 Ill., 496. Cook v. Miller, id., 610. Teft v. Ashbaugh, 13 Ill., 603. Martin v. Walker, 15 Ill., 378.
      Though the rule is believed to be as stated, yet the decision was unquestionably correct in this case; for the plea sets out the affidavit, and shows the insufficiency of the proceedings in issuing the warrant, but does not pretend to allege a want of knowledge of such irregularity in the defendant.
      Although an officer executing a ca. so. upon an insufficient affidavit may protect himself by pleading the process, yet if he should refuse to execute it he would not be liable; nor would he be liable for an escape under it. Tuttle v. Wilson, 24 Ill., 553.


text:
    Wm. Beer, H. Beer, and Thomas Beer, Plaintiffs in Error, v. Daniel Philips, Defendant in Error.
    ERROR TO ST. CLAIR.
    If, after the decision of the court, overruling a demurrer, the defendant rejoins to the replication and issue is taken thereon, it is a complete waiver of the demurrer.
    After abandoning a demurrer, the decision upon it can not be assigned for error.
   Opinion of the Court by

Chief Justice Reynolds.

This was an action of trespass quare clausum fregit, commenced by Philips against the Beers in the court below. The defendants below pleaded not guilty, and liberum tenementum. Upon the first plea, issue was taken, and to the second, the plaintiff replied specially—to this special replication the defendant demurred, and the court overruled the demurrer. The judgment of the court in overruling this demurrer is assigned for error. We have not deemed it material to set out the facts disclosed by the replication, because we think the case can be disposed of without a decision upon its merits. After the decision of the court, overruling the demurrer, the defendant rejoined to the replication, and took issue thereon. This we consider was a complete waiver of the demurrer. If the court below erred, the defendants in that court, to have availed themselves of that error, should have abided by their demurrer, and not traversed the replication. After abandoning the demurrer, they can not assign the decision upon it for error. The judgment of the court below is affirmed.

Judgment affirmed.

       Such is the rule of pleading to the merits. Peck v. Boggess, 1 Scam., 281. Buckmaster v. Grundy, id., 312. Gilbert v. Maggord, id., 471. McFadden v. Fortier, 20 Ill., 509. But it is otherwise in pleas in abatement. It was once so held in Delahay v. Clement, 2 Scam., 575; but this decision was overruled in the same case in 3 Scam., 201. And it is now settled that if a demurrer to a plea in abatement be sustained, and the defendant answer over, he is not thereby precluded from examining the decision on the demurrer in an appellate court. Delahay v. Clement, 3 Scam., 201. Weld v. Hubbard, 11 Ill., 574.
      If an unanswered demurrer is on record, and the party filing it goes to trial by consent, it will not be cause for reversal of the judgment. Parker v. Palmer et al., 22 Ill., 489.


author: Justice John Reynolds.

text:
    James Bell and John Bell, Plaintiffs in Error, v. Zadock Aydelott, Defendant in Error.
    ERROR TO GALLATIN.
    The long and uniform practice in this state, has been to execute writs of inquiry of damages, in the presence of the court, and there is no irregularity in it.
    Aydelott brought an action of assault and battery, in the Gallatin circuit court, against the Bells. Judgment was entered against them for default of a plea, and the court, on motion of the plaintiff, ordered the sheriff to impannel a jury instanter to ascertain the damages. The jury, instanter, and in the presence of the court, assessed the damages, upon which the court rendered a judgment. The error assigned was, that the court ought to have awarded a writ of inquiry to the sheriff, who should have executed it by a jury, not in the" presence of the court.
   Opinion of the Court by

Justice John Reynolds.

The long and uniform practice in this state has been for the jury to inquire of damages in the presence of the court. This mode is the more easily given in to, when we reflect that this inquiry of damages is had, in the presence, and under the immediate care and direction of the court. If it be absolutely necessary from the old law, as it was contended, for this writ to be executed in the presence of the sheriff, this likewise is done, for generally the sheriff is in the court. This will answer the ends of form, and form it must be, as the substantial ends of justice will be answered by the assessment of damages before the Court. We are therefore of opinion, that the judgment of the circuit court be affirmed.

Judgment affirmed.

         The executing a writ of inquiry is an inquest of office, and the officer who presides, acts ministerially, and not judicially. 2 Johns. Rep., 63. If it appears that important questions of law will arise on the execution of the writ, the court will order it to be executed by a judge at the circuit. Ibid., 107. Tidd’s Prac., 513. 4 T. R., 275. 2 Bos. & Pull., 55.

       A writ of inquiry may be executed in vacation, as well as in term time. It may be executed at any place within the sheriff’s bailiwick. The statute has not changed the common law in this respect. Vanlandingham v. Fellows et al., 1 Scam., 233.
      If any irregularity take place in the execution of a writ of inquiry, the proper way is to apply, upon affidavit, to the circuit court to set the inquest aside. Id.

      A writ of inquiry may be executed before the sheriff at any place within Ms bailiwick, and a want of notice to the defendant, on executing the writ, can not be assigned for error; nor can the sufficiency of the writ, the proper practice being to move the court below to quash it. Moore v. Purple, 3 Gilm, 149.


text:
    Isaac Clark, Appellant, v. Joseph Cornelius, Appellee.
    APPEAL FROM ST. CLAIR.
    A justice of the peace has no power to investigate an account exceeding $100, though it may be reduced by credits to a sum less than $100.
    Clark exhibited to a justice of the peace for St. Clair county, an account amounting, in all the items, to $176, against Cornelius, on which account there was given a credit of $77, leaving a balance due of $99. The justice gave judgment in favor of Clark, from which Cornelius appealed to the circuit court. The circuit court decided, that the justice of the peace had no jurisdiction, and dismissed the suit; from which decision Clark appealed, and assigned that decision as error.
   Opinion of the Court by

Justice John Reynolds.

The act defining the duties of justices of the peace, gives the justices jurisdiction in all cases of contract for the payment of money, where the sum demanded does not exceed one hundred dollars.

Under this act, a justice has no power to investigate any account or other claim, exceeding one hundred dollars. When the credit is applied to the claim exhibited, it reduces it below one hundred dollars, yet the justice would have to investigate the whole amount of $176, as the credit was not applied to any particular item or charge in the account, so as to extinguish it. This power, the legislature never intended to give justices of the peace. We are of opinion that the circuí court decided correctly that the justice had no jurisdiction, and we, therefore, affirm the judgment.

Judgment affirmed.

       Laws of 1819, page 185.

       This decision was followed and approved in the following cases: Maurer v. Derrick, post. Ellis v. Snider, id. Blue v. Weir et al., id. But this is now changed by statute. The provisions of the statute giving jurisdiction to justices of the peace, now in force, are as follows:
      “Justices of the peace shall have jurisdiction in their respective counties, to hear and determine all complaints, suits and prosecutions of the following description:
      “ In actions of debt on bonds, contracts, agreements, promissory notes, or other instruments in writing, in which the amount claimed to be due does not exceed one hundred dollars.
      “ In actions of assumpsit upon any contract or promise, verbal or written, express or implied, for a valuable consideration, in which the amount claimed to be due does not exceed one hundred dollars.
      “In suits for money claimed to be due upon unsettled accounts, in which the balance claimed to be due does not exceed one hundred dollars.” Scales’ Comp., page 686. Purple’s Statutes, page 662. There are also other provisions giving jurisdiction to justices, but these are the principal ones which relate to the decision in question.


text:
    Joseph R. G. Poole, Appellant, v. Oliver C. Vanlandingham, Appellee.
    APPEAL FROM GALLATIN.
    The plea of nil debet is a good, plea to all actions of debt upon all simple con" tracts.
    A plea stating that the consideration has wholly failed, without saying wherein, is • bad.
    The plea of “ no consideration” is given by statute, and throws the onus upon the plaintiff.
   Opinion of the Court by

Justice John Reynolds.

This was an action of debt, to which there were seven pleas; the five last were demurred to, and the demurrer sustained, and to reverse that opinion this appeal is prosecuted. The 3d plea states that the note in this case was given without any good or valuable consideration. 4th plea alledged that the consideration had wholly failed. 5th plea is a plea of nil debet. 6th plea stated that $500 were paid in discharge of the debt of $700. 7th plea states that said Poole never received any consideration from any person named in said note. The 6th plea of nil debet is a good plea. This is a good plea to all simple contract debts; it will put in issue all the matter contained in the second plea which was withdrawn. On this ground therefore, if no other, the judgment must be reversed, and the case remanded to the court below, so the plaintiff may withdraw his demurrer and take issue on said plea of nil debet. Yet as there are other pleas, on which the demurrer is taken, it will perhaps be right to give some opinion on them. The 3d and 7th pleas contain the same matter, to wit: that there was not given nor received any good or valuable consideration for said note. The statute law of this state gives rise to these pleas, which show a kind of negative defense to the action, and such matter of which the plaintiff must take the affirmation; therefore there can be no necessity, although urged to the contrary, for the defendant to show in what manner the consideration was not given by one party, or received by the other,—in reality a negative can not be shown or proven.

On these pleas-it is necessary for the plaintiff to go on and allege in what manner the consideration was given and received.

Therefore those pleas are good. The 4th plea is certainly had, as it is necessary for the defendant, when the consideration is alleged to have failed, to show in what manner it has failed. This allegation ought to have stated with as much precision, as the allegations in a declaration are set out. For this reason, the demurrer to this plea ought to be sustained. The fifth plea is a kind of plea of accord and satisfaction ; it is surely a novel one, yet I think it a good plea under our statute. The judgment of the court below ought to be reversed, and the case remanded to be proceeded on as above stated,—the costs to abide the event of the suit.

The judgment is reversed on the above grounds, except as to the pleas of the want of consideration ; on these the court is divided—therefore as to these the judgment is affirmed,

Judgment reversed.

       In a suit where a bond is the gist of the action, nil debet is not a good plea; but where it is inducement merely, it is a good plea. Davis v. Burton et al, 3 Scam., 41. King v. Ramsay, 13 Ill., 622.

       It is said this is overruled by the cases of Stacker et al. v. Watson, 1 Scam., 207; Vanlandingham, v. Ryan, 17 Ill., 25; Topper v. Snow, 20 Ill., 434; and if it was meant by the court to say that the plaintiff must take the affirmative in proving that there was a consideration, then there can be no question but that it was erroneous. But such I apprehend was not their intention. They were passing only on the question of the sufficiency of the pleadings ; and when confined to that it is not readily seen that there is any error in the opinion. Suppose a note to be given without any pretense or show of consideration, how could a defendant do more than aver that it was given without any consideration f

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

       Vide Taylor v. Sprinkle, page 17. Cornelius v. Vanorsdall, page 23. Bradshaw v. Newman, post.


text:
    William Thompson, Appellant, v. George Armstrong, Appellee.
    APPEAL FROM MADISON.
    The assignor of a note for the payment of money or a specific article of property, is not liable, unless due diligence has been used to recover of the maker, and a suit in June, 1818, upon a note made in August, 1814, and payable in January, 1817, which was assigned in March, 1815, is not due diligence.
    A note for the payment of a certain sum of money “ which may be discharged in pork,” is assignable.
    An averment of the insolvency of the maker, is sufficient to excuse the use of due diligence.
    This was an action commenced by the plaintiff, the appellant, against the appellee, in the Madison circuit court, upon his liability as assignor of a promissory note. The note was executed in the state of Kentucky by one Colston 0. Wallis, on the 30th day of August, 1814, for the payment of a certain sum of money in pork, at a stipulated price, made payable to the defendant on the first day of January, 1817. On the second day of March, 1815, the note was assigned by the defendant to, the plaintiff. The declaration contains no averment of the place of assignment. It further appeared, that on the first day of June, 1818, the plaintiff commenced an action in the Muhlenburgh circuit court, state of Kentucky, against the maker of the no'te, and prosecuted him to insolvency. The second count in the declaration, contains all the preceding averments, with the addition, “that at the time the note became due and payable, the maker was insolvent, and entirely unable to pay the said note or any part thereof, and has ever since continued, and still is, insolvent and unable to pay the same.” To this declaration there was a demurrer, which the court sustained, and thereupon the plaintiff appealed, and assigns for error the judgment of the court below in sustaining the defendant’s demurrer.
   Chief Justice Reynolds,

after stating the facts of the case, delivered the opinion of the court. The court is called upon to say, whether, from the state of facts as set out by the plaintiff, he has used due diligence to obtain the amount of the note from the maker. This the court can not do. It is not averred where the note was assigned. Suit then, having been commenced in Kentucky, the court can not know how many terms of the court in that state intervened, (if any) between the assignment of the nove and the suing out the writ original against the maker, and for aught that appears, suit may have been commenced at the first term after the assignment. The court is inclined to think this ought to appear from the declaration, and that therefore the first count is defective as being too uncertain.

The next objection taken, and which we are called upon to decide, is, that the note was not assignable. If we consider this objection, it will be by presuming a fact not averred, to wit, that the note was assigned in this state. Yielding to that presumption, and the court can not entertain a doubt, but that agreeably to the spirit and true intent and meaning of the statute authorizing assignments, the note in this case was properly assignable. That statute authorizes the assignment of notes for the direct payment of money, or for the direct payment of a specific article of property; a fortiori, then, when the note is for a stipulated sum of money to be paid in property.

The next question presented for the consideration of the court is, whether the averment of the insolvency of the maker, in the second count of the declaration, be sufficient to excuse the use of due diligence. Upon this point, it does seem to the court, that the human mind can not be brought to doubt. If there is an utter incapacity to pay, whence the necessity of resorting to the law ? The law never requires the performance of a vain and useless act, and surely, a suit would be worse than idle, against a man who is utterly in-insolvent, and would have no other tendency than to multiply costs and increase the party’s demand. If the court is correct in this view of the subject, the court below erred in sustaining the general demurrer to the whole declaration. It is therefore considered by the court, that the judgment of the court below be reversed, that the plaintiff, recover his costs, and that this cause be remanded to the circuit court of Madison, for new proceedings to be had not inconsistent with this opinion,

Judgment reversed.

      Laws of Territory, 1807, page 48.

         Cases on assigned notes, against the assignor. Mason v. Wash, ante, page 39. Tarlton v. Miller, post. Lusk v. Cook, post.

       See note to the case of Mason v. Wash, ante, page 39.


text:
    Joseph M. Street, Plaintiff in Error, v. The County Commissioners of Gallatin County, Defendants in Error.
    ERROR TO GALLATIN.
    A peremptory mandamus will issue to a county commissioners’ court to compel them to restore a clerk, the cause of whose removal is not stated on their records.
   Opinion of the Court by

Justice John Reynolds.

This is a mandamus to restore Street to the office of clerk of the county commissioners’ court of Gallatin county. It is proved to this court, that the commissioners have been served with said writ and made no return thereto; but the record of the county commissioners’ court, containing all the matters of fact in relation to the case, was produced by said Street, which record this court received for the return to the writ, and acted on it accordingly.

As the statute law of this state requires the cause of removal to be stated on the records of the court, and there appearing on the record returned here, no cause of removal stated, it is considered by this court, that the said county commissioners’ court had no power to remove said Street and appoint another clerk to said court, therefore it is ordered that a peremptory mandamus issue, if necessary, to restore said Street to his office.


text:
    Augustus Collins and Anson Collins, Plaintiffs in Error, v. John Waggoner, Defendant in Error.
    ERROR TO MADISON.
    If a replication departs from the declaration, it is error.
    Upon all contracts made before the first of May, 1821, the defendant had a right to replevy for three years, unless the plaintiff indorsed on the execution, that paper of the State Bank of Illinois would be received in discharge of the execution.
   Opinion of the Court by

Chief Justice Reynolds.

This was an action of trespass for entering the defendant’s close and taking and carrying away his personal goods. The plaintiffs here, who were defendants below, pleaded a judgment obtained by them before one David Moore, a justice of the peace in and for the county of Madison, against the said Waggoner. That on said judgment an execution issued, directed to any constable of Madison county, whereby such constable was commanded to levy upon the goods and chattels of the said Waggoner. That said execution came to the hands of one Isaac McMahon, then a constable of said county; that said constable, by virtue of said execution, and by the direction of the plaintiffs, entered the close and took and carried away the goods, &c., as averred in the declaration ; which entering and carrying away was the same trespass complained of, and of no other were they guilty.

To this plea said Waggoner replied: That the cause of action on which the judgment mentioned in said plea was rendered, arose before the first of May, 1821. That there was no indorsement on said execution in the plea mentioned, as is required in and by the twenty-seventh section of the act of the legislature of the state of Illinois, entitled “an act establishing the State Bank of Illinois.” That said Waggoner did, at different times, before the said trespass was committed, tender to the said Isaac McMahon the full amount of the said execution, and then and there offered to pay the same in notes of the said Bank, or to replevy the same for three years, as by law he might do, all of which the said Isaac McMahon refused to accept, permit or suffer, and whereupon the said defendant committed the trespass as in the declaration alleged, and this he is ready to verify. To this replication there was a demurrer, and that demurrer overruled by the court belowi To reverse that judgment this writ of error is prosecuted. Three objections are raised, one to the declaration, and two to the replication: 1. The action is misconceived. 2. The replication is a departure from the declaration, showing a trespass in McMahon only; and 3. There is no law authorizing a replevy of three years as averred in the replication.

And first, is the action misconceived. The injury complained of is the forcibly entering the close of the said Wag-goner, and taking and carrying away his goods and chattels. Surely it can not be contended seriously that for this injury, case is the remedy. If the refusal to take bail, or to permit the party to replevy was the foundation of the complaint, then case would lie; but if, after such refusal, the officer proceeds to levy and distress, trespass can be supported. We will consider the second and third objections together, viz.: That the replication is a departure from the declaration, and shows a trespass in McMahon, the constable only, and that there is no law authorizing a replevy of three years. The first of these objections we think is well taken, and we have no doubt, if it had been raised below, (which we think was the duty of the counsel to have done, and the practice of raising objections here, which might have been urged below, this court can not but reprobate,) would have been sustained. Although the cause of action arose before the first of May, 1821, yet the plaintiffs in the execution, had their election to indorse that state paper would, or would not be received. If they did not elect to indorse that state paper would be received, we conceive from the law, the defendant had the privilege to replevy the debt for three years. The statutes upon this subject are complicated, but this seems to be the true construction, that upon all contracts entered into before the first of May, 1821, if the plaintiff in an execution, does not indorse that paper of the State Bank of Illinois, or either of its branches, will be received, the defendant will have the right to replevy for three years. It clearly appears in this case that notwithstanding the plaintiffs did not indorse on their execution, yet they had a right to direct the officer to levy, until thé offer to pay or replevy was made, nor does it appear from the replication, for it is not so averred, that the plaintiffs ever had notice of the offer made by the said Wag-goner to the said constable, to pay or replevy the said execution, and until they had notice of that fact, the plaintiffs could not be liable. The replication showing a trespass in McMahon only, is a departure from the declaration, and therefore bad. Let the judgment below be reversed, and the costs abide the event of the suit in the court below, and the cause remanded with leave to the plaintiff in that court to amend his replication.

Judgement reversed.

       This is a familiar rule of pleading. Hite v. Wells, 17 Ill., 88.


text:
    Thomas Gill, Appellant, v. James Caldwell, Appellee.
    APPEAL FROM CRAWFORD.
    Swearing a witness by an uplifted hand, is a legal swearing, independent of the statute.
    Oaths are to be administered to all persons according to their opinions, and as it most affects their consciences.
   Opinion of the Court by

Chief Justice Reynolds.

This was an action of slander commenced by the plaintiff here, against the defendant, in the court below, for charging him with swearing false in a certain judicial proceeding before one Thomas Kennedy, a justice of the peace.

The declaration avers that said Gill “ was sworn regularly and legally by the said justice, and then and there took his corporal oath.” From the bill of exceptions taken in the cause, it appears that on the trial below, the justice of the peace, Kennedy, testified, “that there was before him the trial mentioned in the declaration, that he administered to said Gill what he conceived to be an oath, that Gill swore by an uplifted hand, that no bible was used, and that Gill was not asked how he took his oath.” The defendant’s counsel then moved to exclude the testimony of Kennedy, it not proving a legal oath administered, nor such an one as would support the averment in the declaration, which motion the court below sustained, and excluded the testimony, and this we are called upon to correct. If the said Gill was sworn by an uplifted hand, it surely can not be said to be a departure from the declaration; the only question to be settled is, is it that kind of oath which the law recognizes ? The pure principle of the common law is, that oaths are to be administered to all persons according to their own opinions, and as it most affects their consciences.

This certainly is the best test of truth, and it was upon this ground the legislature enacted the statute which is supposed to govern this case. By their act of 1807, after authorizing oaths by uplifted hands, they declare that oaths “ so taken by persons who conscientiously refuse to take an oath in the common form, shall be deemed and taken in law to have the same effect with an oath taken in the common form.” We conceive that the man who swears by an uplifted hand, elects to do so, and the ceremony of refusing to swear upon the testament, or in the usual form, is perfectly idle. The statute does not vary the common law in this respect, and we conceive that the oath taken as set out in the bill of exceptions is valid, legal, and comports with the averments in the declaration. The judgment below must therefore be reversed, the plaintiff recover his costs, and the cause remanded for new proceedings to be had not inconsistent with this opinion,

Judgment reversed.

         By the common law, every witness is sworn according to the form which he holds to be the most solemn, and which is sanctified by the usage of the country or of the sect to which he belongs.
      It was formerly doubted whether the oath must not be taken on the Old or New Testament, but it is now settled that it need not. 1 Wilson, 84. Cowper, 390.
      A Jew is sworn upon the Pentateuch, and a Turk upon the Koran; and in Erance, anciently, the witness, if a layman, raised his right hand, or if a priest, placed it upon his breast. Phil. Ev., 20.

        Vide Rev. Laws of 1827, page 308.

       Affirmed in the case of McKinney v. The People, 2 Gilm. Rep., 540.


author: Justice John Eeynolds.

text:
    William D. Noble, Plaintiff in Error, v. The People, Defendants in Error, on an indictment for Forgery.
    ERROR TO ST. CLAIR.
    An opinion formed, if not expressed, does not disqualify a juror. „
    A person whose name is forged, is a competent witness to prove the forgery, although upon conviction, he receives one-half of the fine imposed. His credibility is left to the jurjc
    All persons who believe in the existence of a God and a future state, though they disbelieve in a punishment hereafter for crimes committed here, are competent witnesses.
   Opinion of the Court by

Justice John Eeynolds.

William D. Noble was indicted for forgery, and found guilty in the St. Clair circuit court. To reverse that judgment, Noble prosecuted this writ of error, and assigned four errors, to wit:

1. A juror, Moses Short, formed an opinion but had not expressed it.

2. David Rankin, the person intended to be injured by the forgery, and the person who would in case of conviction, receive a moiety of the judgment, was admitted as a witness against said Noble.

3. On account of the religious principles of said Rankin, he not believing in the doctrine of receiving punishment after death for crimes done in this life, although he believed in the existence of a God and a future state.

4. The record of a civil suit was admitted in evidence, to show the amount that said Noble intended to defraud said Rankin of.

On the first point the law and constitution provide that all men shall be tried by an impartial jury; but as the mind of man is so organized, it is almost impossible for a jury to be perfectly impartial. Slight impressions will appear on the minds of any person who will at all think of any subject—this is unavoidable. These impressions will go on step by step on the mind, until they are confirmed into complete opinions. Yet the law can not draw any distinction between the most hasty impression, and a confirmed opinion ; therefore all these grades of opinion must be treated alike, and ought not to disqualify the person from acting on the jury. It is quite different when these opinions are expressed—every person wishes to appear to the world consistent-—therefore there is a strong partiality for these opinions when expressed, so much so, that it disqualifies. a person so situated from acting on a jury. This pride of opinion to act consistent, exists in every person, but as there was in this cas^ no expression of this opinion, I think there is no error in this respect,

The second point presents a question important to the public, yet I think one of easy solution. From necessity and public policy, the person on whom the forgery was committed must be admitted to prove it, although our statute gives such person one-half of the judgment so recovered against the accused. If this were not the law, forgeries would go unpunished. This is an exception to the general rule of an interested person being a witness. This interest must be left to his credit. If the witness be manifestly biased by his interest, the jury can detect him. With this view of the subject, I think Rankin was a competent witness ; therefore in this there is no error,

The third error brings in discussion the religious principles of said Rankin. I conceive the law to be, that all persons who believe in the existence of a God and a future state, are on this account good witnesses. The witness believed in a God and a future state of existence, yet he did not believe in being punished hereafter for crimes done in this life ; yet as he believed in the great essential matters as the law requires, he is considered a good witness,

On the fourth point I will barely remark, that the record appears to me to be the best evidence to prove the amount which the said Noble intended to defraud the said Rankin of. Therefore on all these matters I am of opinion the judgment of the court below ought to be affirmed.

Judgment affirmed.

         Jurors must be free from all exceptions. 2 Johns. Rep., 194. The proper question to be propounded to a juryman is, “ Have you made up and delivered an opinion, that the prisoner is guilty or innocent of the charge laid in the indictment 1” 1 Burr’s Trial, 418.

       The law in relation to disqualification of jurors from having formed opinions is very fully discussed in the case of Smith v. Eames, 3 Scam., 77. Breese, Justice, who delivered the opinion of the court in that case, said: “ If a juror has made up a decided opinion on the merits of the case, either from a personal knowledge of the facts, from the statements of witnesses, from the relations of the parties, or cither of them, or from rumor, and that opinion is positive and not hypothetical, and such as will probably prevent him from giving an impartial verdict, the challenge should be allowed. If the opinion be merely of a light and transient character, such as is usually formed by persons in every community upon hearing a current report, and which may be changed by the relation of the next person met with, and which does not show a conviction of the mind and a fixed conclusion thereon, or if it be hypothetical, the challenge ought not to be allowed; and to ascertain the state of the mind of a juror, a Ml examination, if deemed necessary, may be allowed.” The principles enunciated in this case have, ever since, been adhered to by our court. Gardner v. The People, 3 Scam., 83. Sellers v. Same, id., 412. Vennum v. Harwood, 1 Gilm., 659. Baxter v. The People, 3 Gilm., 368. Neely v. The People, 13 Ill., 687.
      In Thompson v. The People, 24 Ill, 60, a person was called as a juror who, on being examined on oath as to his qualifications, said he had conversed with a witness in the case, and formed an opin: on as far as he heard—that he believed what he heard, but that he had not formed an opinion as to the guilt or innocence of the prisoner. It was held by the court that he was not incompetent.

       The English rule is, that a party whose signature is alleged to be forged can not be received to testify in support of an indictment for the forgery. 2 Stark. on Ev., 582. This rule is adhered to in Connecticut, Vermont and North Carolina. In New Hampshire, Massachusetts, Pennsylvania and New York, he is held to be competent. 4 Johns. Rep., 296.

       The present statute in relation to qualifications of witnesses in criminal trials is as follows : “ The party or parties injured shall, in all cases, be competent witnesses, unless he, she or they shall be rendered incompetent by reason of his, her or their infamy or other legal incompetency other than that of interest. The credibility of all such witnesses shall be left to the jury as in other cases ” Scates' Comp., page 377. Purple’s Statutes, 361, Sec. 15.

       The proper question to be asked of a witness is, whether he believes in God, the obligation of an oath, and in a future state of rewards and punishments. 1 Stark. Ev., 82, note (r)

      The witness must believe that divine punishment will be the consequence of perjury. Ibid., 80.

       A person who has no religious belief, who does not acknowledge a Supreme Being, and who does not feel himself accountable to any moral punishment here or hereafter, but who acknowledges hi.; amenability to the criminal law, if he foreswear himself, can not become a w.tness. Central Military Tract R. R. Co. v. Rockafellow, 17 Ill., 541.
      The unbelief of such a person is best established by the testimony of others ; though he may be permitted, sworn or unsworn, to explain any change of belief, and leave the court to determine as to his competency. Id.
      The authorities on this question are stated fully in the opinion of Scates, C. J., in this case.


text:
    James Foley, Plaintiff in Error, v. The People, Defendants in Error.
    ERROR TO MADISON.
    The words, “ any other offense which by law shall not be bailable,” as used in the 40th section of the act defining the duties of justices of the supreme court, apply, not to the ability of an offender to procure bail, but to the character of the offense.
    Larceny is an offense bailable by law.
    Consent can not give jurisdiction.
   Opinion of the Court by

Chief Justice Reynolds.

At a special term of the circuit court held in the county of Madison, on the 25th day of November, 1822, an indictment for larceny was found against the said Foley, upon which indictment his conviction accrued.

There are several errors assigned ; but the only one which we deem material, is, the objection to the jurisdiction. In ascertaining the jurisdiction, or what is necessary to authorize a special term of the circuit court, we must look to the 40tli section of the act entitled “ Ah act regulating and defin ing the duties of the justices of the supreme court.” By that section it is expressly enacted, “ That whenever any person shall be in the custody of the sheriff of any county, charged with any capital offense, or any other offense which by law shall not be bailable, it shall be the duty of the sheriff to give information,” &c. It was contended in the argument, and indeed such is the opinion of Justice Reynolds, who tried the cause, that this statute ought to be construed to embrace every case where the prisoner was in custody, and unable to give bail. In consequence of this opinion, and the serious manner with which it was contended for by the counsel, we have given the subject the most mature consideration. In doing so, we have not been able to give to that statute such latitude of construction. The words of the statute are clear, express, unambiguous and admit of no doubtful construction.

The words of the statute are, “ That whenever any person shall be in the custody of the sheriff of any county, charged with any capital offense, or any other offense which by law shall not be bailable,” .&c. Now to ascertain when any offense is bailable, we must look to the law, and it does seem to us to be a perversion of plain language to say that we must look to the fact of the party’s ability to procure bail, to ascertain whether by law he is bailable. But it is contended we must be governed by the intention of the legislature. I ask how is that intention to be ascertained? Must we seek for some hidden intention which the language of the. law will not justify, or when the language is plain and admits of no construction, shall we not take it as we find it ? If the statute was ambiguous in its provisions, then we might have recourse to construction to ascertain the true meaning; but when otherwise, we are satisfied to take the law as it is, and if it is defective, leave it to be remedied by the legislature, and not by strained constructions. Having settled this question, we will consider whether larceny is bailable by law; if it is, it is a case not provided for by the statute. In settling this question, we need only have recourse to the constitution of our state. By the 13th section of the eighth article of that instrument it is provided, “ That all persons shall be bailable by sufficient securities, unless for capita] offenses, where the proof is evident or the presumption great.” Larceny, by our statute, is not made capital; the punishment is by fine and whipping. Hence it comes within the letter and spirit of the constitution. It was urged in the argument, that as the prisoner appeared below and pleaded to the indictment, he waived, or acknowledged jurisdiction.

It will only be necessary to answer to that argument, that where the court has not jurisdiction of the subject matter, consent will not give it. We might then, after settling these questions, proceed to reverse the judgment of the court below, but believing as we do, that the court below having been called for the purpose of taking cognizance of an offense of which they had no jurisdiction, it had no legal existence, and consequently was no court. Hence we can not undertake to reverse the proceedings of that body ; having no such control over it; but as an opinion was asked for by the prisoner, and the jurisdiction supported by the attorney general, we conceived it right to give an opinion that the law hereafter may be understood.

       See note to Cornelius v. Coons et al., ante, page 37.


author: Chief Justice Thomas Reynolds.

text:
    Bryan, Morrison, and Davidson, Appellants, v. John Primm, Appellee.
    APPEAL FROM ST. CLAIR.
    A suppressio veri in relation to any important fact affords ground for the interference of a court of equity to annul the contract.

    The assignee of a note, after it becomes due, takes it subject to all the equity exist ing between the original parties to it.
    Notice of an equity, to an agent, is notice to his principal.
    Though a bill for an injunction does not pray that the money be refunded, yet such relief can be granted, and a decree therefor is not erroneous.

       In a sale of land by a guardian, a mere suppressio veri, does not constitute fraud in the sale; but if there was a suggestio falsi the question would be different. Mason v. Wait et al., 4 Scam., 127.
      Fraud may consist as well in a suppressio veri as in a suggestio falsi; for in either case, it may operate to the injury of the innocent party. Lockridge v. Foster et al., 4 Scam., 569.
      These decisions of our court are apparently conflicting, and, to a casual reader, might be calculated to mislead. Indeed the cases of Bryan & Morrison v. Primm, and Lockridge v. Foster et al., do not justify the syllabus of the reporter. In each of those cases there was a positive false affirmation which authorized the decision of the court; and in the last case the language of the opinion was as stated by the reporter; but it was not called for by the case—was a mere dictum of the court—and with all due deference to the very able judge who delivered the opinion, is not, we think, warranted by the law. How far a person is bound, -when dealing with another, to communicate facts purely -within his own knowledge, is a question about which great diversity of opinion has existed. Cicero held that a man was bound to communicate every fact within his knowledge, which was unknown to the one with whom he was dealing, and which might operate on the other in making the contract. Some modern jurists and moralists of eminence have adopted this doctrine. Although this may be and is true in morals, yet the courts of America have not seen fit to adopt so rigid a rule. Thus Chancellor Kent says “From this and other cases it would appear that human laws are not so perfect as the dictates of conscience; and the sphere of morality is more enlarged than the limits of civil jurisdiction. There are many duties that belong to the class of imperfect obligations, which are binding on conscience, but which human laws do not, and can not undertake directly to enforce.” 2 Kent's Comm., p. 490.
      To constitute a suppressio veri such a fraud as will authorize a court to interfere and declare the contract void, there must be something more than a failure to communicate facts within the knowledge of the party—there must be concealment. Such concealment may be by withholding the information when asked for it, or by making use of some device to mislead. Or there may be cases in which such suppression would be held to be a fraud when no act was done by the party chargeable with it; such as where from the peculiar situation of the parties—“ when the person stands in the relation of trustee or quasi trustee to another, as agent, faetor, steward, attorney, or the like, if he would purchase of his principal or employer, any property entrusted- tc his care, he must deal with the utmost fairness, and conceal nothing within his knowledge which may affect the price or value.” 2 Kent's Comm., p. 490. Or where one party possesses a knowledge of facts which, from the situation of the property, the other can not know, a súppression of such facts would render a contract invalid.
      The conclusion to which we arrive is, that unless the case comes within some of the exceptions arising from the peculiar situation of the parties, a mere failure to communicate facts within the knowledge of one party and unknown to the other, does not make it fraudulent; in other words, the party must do some act to mislead. A late writer has so fully expressed our views on this subject, that we avail ourselves of the following extract from his truly valuable work: “If the seller knows of a defect in his goods which the buyer does not know, and if he had known would not have bought the goods, and the seller is silent, and only silent, his silence is nevertheless a moral fraud, and ought perhaps on moral grounds to avoid the transaction. But this moral fraud ha s not yet grown into a legal fraud. In cases of this kind there may be circumstances which cause this moral fraud to be a legal fraud, and give the buyer his actior on the implied warranty, or on the deceit. And if the seller be not silent, but produce the sale by means of false representations, then the rule of caveat emptor does not apply, and the seller is answerable for his fraud. But the weight of authority requires that this should be active fraud. The common law does not oblige a seller to disclose all that he knows, which lessens the value of the property he would sell. He may be silent, leaving the purchaser to inquire and examine for himself, or to require a warranty. He may be silent, and be safe; but if he be more than silent—if by acts, and certainly if by words, he leads the buyer astray, inducing him to suppose that he buys with warranty, or otherwise preventing his examination or inquiry, this becomes a fraud of which the law will take cognizance. The distinction seems to be—and it is grounded upon the apparent necessity of leaving men to take some care of themselves in their business transactions—the seller may let the buyer cheat himself ad libitum, but must not actively assist him in cheating himself.” 1 Parsons on Contr., 461. See also 1 Story’s Eq., Sec. 203-8.
      A mere false representation does r ot constitute fraud. The party must know the representations to be false, and must use some means to deceive and circumvent. Sims v. Klein, post.
      Brand can not exist without an intention to deceive. Miller v. Howell, 1 Scam., 499.
      Where a party, by the use of fraud and deception, obtains a conveyance, the parties who have made it may disregard it and convey to a third party, who may establish the fraud in equity, and be protected in his rights. Whitney v. Roberts, 22 Ill., 381.

   Opinion of the Court by

Chief Justice Thomas Reynolds.

This was a suit in chancery, commenced by Primm, for the purpose of setting aside a contract made with James W. Davidson and wife, and to erjoin a judgment obtained against himself by Bryan and Morrison upon a note executed under said contract. The bill alleges that sometime in July, 1808, Primm purchased of said Davidson and wife a certain tract of land lying in St. Clair County, which land descended to the wife of said Davidson as heir at law of one Peter Zip, deceased ; that said Davidson and wife were to execute to him such deeds as would completely vest in him the same title which the said Zip, deceased, had in the premises. That, accordingly, said Davidson and wife, together with one Jane Everett, who claimed an interest in the premises, did execute to him a deed for said land—that in consideration of such purchase, he agreed to pay the said Davidson the sum of eight hundred dollars, for the payment of which, he executed his note to the said Jane Everett for the sum of two hundred and sixty-six dollars ; and for the balance of said purchase money, beside a small part paid, he executed his notes to the said Davidson. The bill further shows that at the time of making said contract, and of the execution of the deed aforesaid, the said wife of Davidson, who was the sole heir to the said Zip, was under the age of twenty-one years, and that since she has arrived at full age, has refused to execute a deed for said land, without the payment of an additional sum.

It is further shown, that after the note executed to the said Jane Everett became due, it was assigned to Bryan and Morrison, who purchased the same through their agent, William Atchison,—that said Atchison had a full knowledge of all the circumstances under which said note was executed. The said Bryan and Morrison commenced suit upon said note and recovered judgment.

The prayer of the bill is to perpetually enjoin said judgment and cancel the notes given pursuant to said purchase. An injunction to stay the collection of said judgment was granted by the judge in vacation. The bill as to Davidson and wife was taken pro confesso. Bryan and Morrison answered, setting forth their ignorance of all the circumstances under which said note was executed—that they are the innocent purchasers of said note—deny knowing that their agent had any knowledge of said circumstances, but do not deny that their agent possessed such information. During the progress of the suit in the court below, the injunction was dissolved and the said Bryan and Morrison proceeded and collected their judgment. Upon the final hearing of the cause, the court below decreed that the notes should be can-celled, and that Bryan and Morrison refund to the said Primm the money so collected. To reverse this decree this appeal is prosecuted. We will first consider whether the bill contains equity, if so, whether that equity attaches upon the note in the hands of Bryan and Morrison.

The knowledge by Davidson of his wife’s being under age at the time of executing the conveyance, and not disclosing that fact to Primm, is surely a suppression of the truth; add to this the fact of his wife’s disagreement to the contract after she arrived at full age, and I think it will not be contended that the bill contains no equity. Between Primm, then, and Davidson and wife, the decree ought to be affirmed.

The next inquiry is, does this equity extend to Bryan and Morrison. They do not deny that Atchison, their agent, had knowledge of Primm’s equity. This of itself would be notice to them.

But regardless of this fact, the note was assigned to Bryan and Morrison after it became due. Under this circumstance, they took it subject to all the equity which attached in the hands of the original payee. * It was contended in the argument by the counsel for the plaintiff, that the court erred in decreeing the money to be refunded by Bryan and Morrison, when the bill did not pray for such relief.

It will be remembered, that the prayer, as to them, is for a perpetual injunction, that after the injunction was dissolved, they proceeded and collected their judgment. Could not the court then decree the money to be refunded? We have no hesitation in saying they could. Otherwise, the complainant would be turned round and compelled to seek his redress by an action at law. If the injunction had been made perpetual, without this additional relief, the same absurdity would have followed. Let the judgment of the court below be affirmed and the defendant recover his costs,

Judgment affirmed.

       The same defense may be set up against the assignee of a note, which was transferred after its maturity, as could be made against the original payee. Tyler v. Young et al. 2 Scam., 444; Sargeant v. Kellogg et al. 5 Gilm., 273 ; Walter v. Kirk

        et al. 14 Ill., 55. And so is the statute. Purple's statutes, p. 772, Sec. 8. Scates’ Comp., p. 292.
      An assignee of a note takes it subject to any defense existing between the maker and the payee which appears on the face of the note, or of which he had notice at the time of the assignment; and in such case it is immaterial whether the note was assigned before or after it became due. Frink et al. v. Ryan, 3 Scam., 324.

       The same is held in Rector v. Rector et al. 3 Gilm., 119, and Doyle et al. v. Teas et al. 4 Scam., 250.

      Laws of 1819, page 1.

       In Isaacs v. Steele, 3 Scam., 103, the court said they had no doubt that under the prayer for general relief, a court of chancery may decree that which is not specifically prayed for, and grant more than is asked. And again in Manchester et al. v. McKee, 4 Gilm., 519. “The general prayer is sufficient to authorize the granting of any relief which the statement of the bill would warrant.” See also Alexander et al. v. Tams et al., 13 Ill., 225. Vansant v. Allmon, 23 Ill., 30.

         The complainant is not confined to the particular relief prayed for in the bill, but, under the general prayer, is entitled to such a decree as the nature of the case may require. Beebe and others v. Bank of New York, 1 Johns. Rep., 529.


text:
    John Bloom, Appellant, v. Conrad Goodner, Appellee.
    Appeal From St. Clair.
    The Statute in relation to forcible entry and detainer requires that all the jury should sign the verdict. A mere clerical mistake, omitting the name of one of the jurors, can not operate to reverse a judgment. Under the act of 1819, actual force is necessary to constitute a forcible detainer, and the inquisition can be held at any other place than the premises.
    It is discretionary with a court to hear evidence after the argument of a cause is opened by counsel.
   Opinion of the Court by

Chief Justice Reynolds.

Goodlier sued out his writ of forcible detainer, under an act of the legislature, entitled, “ an act against forcible entry and detainer,” from two justices of the peace of St. Clair county, and obtained a verdict and judgment of restitution. To reverse that judgment, Bloom, by writ of Certiorari, removed the case into the circuit court. On the hearing of the cause, the circuit court affirmed the judgment of the justices. There are many errors assigned for the reversal of this judgment, and those which we deem at all material or worthy to be noticed, we will consider, as follows :

1. Eleven jurors only signed the verdict.

2. The court in their instructions to the jury did not correctly define a forcible detainer.

8. The trial before the justices was held at Belleville, when it ought to have been held at the premises.

4. The court permitted new evidence to be given to the jury after argument of the cause had been commenced by the counsel.

The statute requires that all the jurors should sign the verdict. In the record and proceedings before the justices, it appears that twelve jurors were summoned and sworn, and the verdict appears to have been entered as the verdict of the whole ; hence we are bound to conclude that the omission has been occasioned by the mistake of the clerk; we are the more confirmed in that opinion, when we find that this objection was not raised in the circuit court. It being then a mere clerical mistake, can not operate to reverse the judgment.

2. Did the justices correctly define a forcible detainer ? We think the justices were rather cramped and contracted in their views of this subject. Actual force is necessary to constitute this injury, and such force as is spoken of in the statute. This is the more evident, when we consider that peaceable holdings over or detainers, are provided for in the act entitled, “ An act as to proceedings in ejectment, distress for rent and tenants at will holding over.” However, as the jury have found that the detainer was committed forcibly, and with a strong hand, the instruction of the justices, though not sufficiently broad, has worked no injury, and ought not therefore to be cause for the reversal of the judgment.

3. The trial was at Belleville when it ought to have been on the premises. It is a sufficient answer to this objection, that the law does not require that the inquisition should be on the premises; it is, therefore, discretionary with the justices.

4. New testimony was heard after argument of the cause was opened by counsel. This is at all times and before all courts matter of discretion—and before justices of the peace, much more ought that discretion to be indulged. We can not say that in this particular that discretion has been abused.

Let the judgment of the circuit court be affirmed, and the defendant recover his costs.

Judgment affirmed.

       This is now changed by statute, Sec. 1, p. 582, Purple’s statutes, Scate’s Comp., 521, provides that if any person shall willfully and without force hold over, &c., they shall be deemed guilty of a forcible entry and detainer, or a forcible detainer, as the case may be.

       Affirmed in Russell et al. v. Martin, 2 Scam., 495. Welsh et al v. The People, 17 Ill., 339.


text:
    Samuel Tufts, Plaintiff in Error, v. Thomas K. Rice, Defendant in Error.
    ERROR TO MADISON.
    An action of assumpsit was commenced in 1822, upon a contract made in 1812, to which the statute of limitations was pleaded. This statute was passed in 1819, and is no bar to such action. .

      It seems, that if the five years had run under the territorial government, it might have been pleaded in bar.
    Tufts brought his action of assumpsit, at the April term, 1822, of the Madison circuit court, against Rice, on a promissory note, for the payment of twenty-five dollars, executed by Rice to Tufts, at Boston, and dated the tenth day of April, 1812. To this action, Rice pleaded the Statute of Limitations, that he did not undertake or promise, within five years next before the commencement of the suit. To this plea, there was a demurrer, and joinder, and judgment for the defendant on the demurrer. The plaintiff brought his writ of error, and assigned for error, besides the general error, that the court below gave judgment in favor of the said Rice, and against the said Tufts, on the demurrer of the said Tufts, to the plea of said Rice.

      Starr, for plaintiff in error.

      Smith, for defendant in error.
   Opinion of the Court by

Chief Justice Reynolds.

This was an action of assumpsit, for the non-performance of a contract. To the declaration, the defendant pleaded the statute of limitations. To this plea there was a demurrer, and the demurrer overruled by the court below.

To reverse that decision, this writ of error is prosecuted.

The statute, limiting actions in cases like the present, was approved March 22d, 1819, [Laws of 1819, page 141,] and limits the time in which actions on the case upon promises shall "be commenced, to five years. As that statute has not run five years, it can not operate as a bar to this action.

It is not necessary now to decide, whether, if the five years had run under the territorial government, it would not have been a bar, and might have been pleaded. It will be time enough to settle that question, when brought before us ; we can only say at present, that we incline to the affirmative of that question.

Let the judgment be reversed, the plaintiff recover his costs, and the cause remanded for new proceedings to be had, not inconsistent with this opinion.

Judgment reversed.

       As a general rule, a statute is to operate in futuro only, and is not to be so construed as to affect past transactions. A retrospective effect will not be given it unless it clearly appears that such was the intention of the legislature. If it is left doubtful what was the real design, the statute must be so construed as to have a prospective effect only. Jones, adm. v. Bond, post. Bruce v. Schuyler, 4 Gilm., 221. Thompson v. Alexander, 11 Ill., 55. Marsh v. Chestnut, 14 Ill., 227.


text:
    Smith Crane, Appellant, v. William Graves, Appellee.
    APPEAL FROM ST. CLAIR.
    Where a copy of a note on which suit is brought is filed with the declaration, and an amendment of the near, allowed, by changing the word “ 20" to “ 25" and adding the words “ promise to pay,” the defendant is not entitled to a continuance.
    This was an action brought by Graves in the St. Clair circuit court, on a note executed by Crane to him. The defendant demurred to the declaration, which the court sustained, and thereupon the plaintiff asked and obtained leave to amend, which he did instanter, by changing the words “ twenty” to “ twenty-five,” and adding the words “ promise to pay.” The defendant contended, that the amendment was a substantial one, and entitled him to a continuance, and accordingly moved for a continuance, which the court overruled, and rendered judgment for the plaintiff. According to the requisitions of the statute, a true copy of the note was filed with the declaration. The defendant appealed, and assigned for error here, the refusal of the court to grant the continuance.
   Opinion of the Court by

Justice John Reynolds.

Although the amendment allowed may be one of substance, nevertheless, as a true copy of the note was set out in the declaration, it is considered that the defendant had sufficient notice of the cause of action, so that he could not be surprised in his defense. This being the case, there was no reason to grant a continuance. The judgment must be affirmed.

Judgment affirmed,

       Upon principles universally sanctioned by our courts, we think this decision can not be sustained. The doctrine in every case where the question has arisen is, that if the amendment is a mere formal one, it 'does not entitle the opposite party to a continuance; but if it is of substance it works a continuance when applied for, without any other cause being shown. See note to Scott v. Cromwell, ante, p. 25. Questions frequently arise as to whether an amendment is one of form or substance; but here it is admitted by the court that this is a substantial amendment. The fact that a copy of the note sued on was filed with the declaration can not affect the question ; for it has been repeatedly decided that the copy of the instrument sued on, filed with the declaration, is no part of the declaration. Sims v. Higby, post. Bogardus v. Trial, 1 Scam., 63. Harlow v. Boswell, 15 Ill, 56. The copy of the note not being a part of the declaration, and without it the declaration being admitted substantially defective, the case ought to have been continued. Brown v. Smith, 24 Ill., 196,


text:
    Baynard White, Appellant, v. James Stafford, Appellee.
    APPEAL FROM GREENE.
    If a non-resident gives a bond for costs, after the commencement of the suit but before the trial, it is sufficient.
    Stafford, who it appears was a non-resident, brought a suit in the circuit court of Greene, against White, to which White pleaded in abatement, that the plaintiff was a non-resident, and that he had not given a bond for the costs, as the law required. The plaintiff replied to this plea, that although he had not executed a bond at the time of the commencement of the suit, yet at a certain day afterward, and before the trial, he gave bond with security, which the clerk approved. To this replication the defendant demurred, which the court overruled—from which decision the defendant appealed.
   Opinion' of the Court by

Justice John Reynolds.

The question presented by the pleadings in this case is, was the security given by the plaintiff, a sufficient compliance with the statute requiring a bond to be filed by a non-resident, for the costs, before the commencement of the suit ? The filing of this bond, can not be said to be a literal compliance with the statute, but surely it answers the object which was intended by it—the ends of justice are answered. The defendant can not complain. In some cases, neither the clerk or attorney may know the plaintiff to be a non-resident when the suit is commenced ; in such cases, it would be hard to turn the plaintiff out of court, to answer no good purpose. In construing statutes, the intention of the legislature must be gone into. 6 Bacon, 884. The object of the legislature was to secure all parties in their costs, when a non-resident commenced a suit; this is answered in the present casé, and the judgment must therefore be affirmed. , .

Judgment affirmed.

         Vide Rev. Laws of 1827, title, “ Costs.”

       The statute in force when this decision was made was as follows : “No suit shall hereafter be commenced in any court within this state, by any person who is non-resident, or who is not a freeholder in this state, or householder, until he shall file in the clerk’s office, a bond with security, who shall be a householder and resident in the state, conditioned for the payment of all costs that may accrue in consequence thereof, either to the opposite party, or to any of the officers of such courts, which shall be in the form, or to the purport following,” &c. Laws of 1819, p. 150. The present statute, after providing substantially as above so far as relates to non-residents, adds : “ If any such action shall be commenced without filing such instrument of writing, the court, on motion, shall dismiss the same, and the attorney of the plaintiff shall pay all costs accruing thereon. Purple’s Statutes, p. 275, sec. 2. Scate’s Comp., p. 244. Under this statute it has been held in the following cases, that where an action was commenced by a non-resident without giving security for costs, the suit must be dismissed. Hickman v. Haines, 5 Gilm., 20. Ripley v. Morris, 2 Gilm., 381. In the last case a cross-motion was made for leave to file a cost bond at the^time of entering the motion to dismiss, which was refused.
      A motion to dismiss for want of security for costs, is a dilatory motion, and must be made at the earliest opportunity. Edwards et al. v. Helm, 4 Scam., 142. Robertson et al. v. County Com’rs., 5 Gilm., 559. Adams v. Miller, 12 Ill., 27. Id. 14 Ill., 71.
      If a bond for costs is objected to as insufficient, it is incumbent on the party-presenting it to satisfy the court by competent proof that it is sufficient. Buckmaster v. Beamer et al., 3 Gilm., 97.
      On an application for security for costs, the affidavits of the respective parties may have equal weight. Hamilton v. Dunn, 22 Ill., 259.
      The pendency of a motion for security for costs in a suit pending on mechanic’s lien,-will not necessarily excuse a party for not filing an answer; nor will such motion prevent the rendition of a decree pro confesso. Id.


text:
    Robert M. Tarlton, Appellant, v. George Miller, Appellee.
    APPEAL FROM GALLATIN.
    To excuse due diligence, an averment in the declaration that “ at the time the note became due and payable, diligent search was made at the said county for the maker, for the purpose of demanding payment thereof, but that he could not be found,” is insufficient.
    This was an action commenced in the Gallatin circuit court, by Miller against Tarlton, upon his liability as assignor of a promissory note, executed at the county of Gallatin by one Squire Brown, to Tarlton, and by him assigned to Miller. The first count of the declaration averred that, “ at the time the note became due, diligent search was made at the said county, for the said Brown, for the purpose of demanding payment of the said note, but that said Brown could not on such search be found—that the said note remains unpaid, of which the said Tarlton had notice, whereby an action has accrued,” &c. There was also a count for money had and received. On the trial, the defendant moved the court, in conformity with a statute of this state, to instruct the jury to disregard the first count, on the ground of its being defective, which motion the court overruled, and gave judgment for the plaintiff, from which judgment the defendant appealed.
   Opinion of the Court by

Chief Justice Reynolds.

The question to be decided in this case is, is the first count sufficient ? I suppose the counsel who drafted the ^declaration intended to present a case which would excuse the use of due diligence ; but surely, it can not be seriously contended, that because the maker of a note does not reside, or can not be found in the county in which the note was made, that therefore the assignor becomes liable. It may be, that he may reside in the next adjoining county, or some other part of the state; if so, I conceive it to be the duty of the assignor to seek him. The question of due diligence having been settled by this court to be by suit, that course can not be dispensed with, where the process of the law can reach the maker, and prove availing.

It has been contended by some, that where the maker has absconded or left the state, the assignor is not liable until suit by attachment is prosecuted. This question is not now necessary to be settled, as the declaration contains no averment of the absence of the maker from the state. But it is said that the facts disclosed on the trial show such absence. My answer is, that this is showing facts not averred in the declaration, and can not be regarded upon a motion to instruct the jury to disregard a faulty count—such motion standing upon the same gromids as a general demurrer. We are therefore of opinion, that the judgment of the court below be reversed, and the cause remanded for new proceedings to be had, not inconsistent with this opinion.

Separate opinion of Justice J. Reynolds. The record shows this case. That one Squire Brown made his obligation to Tarlton for a sum of money. Tarlton assigned the same to George Miller, the plaintiff below, for value received. That Brown left the county before the bond became due, so that no diligence by suit could be used at the time the bond became due, to get the money of Brown. The declaration states, that the bond was made and assigned in the county of Gallatin. The question is, was Brown’s absence equivalent to due diligence by suit, in order to obtain the money 1 I think it was. Diligence is now explained by the court to mean a suit at law, yet when the person against whom the suit is to be brought is not in the county, it would be useless to commence it. This allegation is contained in the declaration, and it is the same as if a suit was prosecuted without getting the money. There can be no necessity for stating the place of residence of the maker of the note, as was contended by plaintiff in error, to show that he had left it—stating the place where the bond was made is sufficient. A person having no permanent residence at any particular place, may make a note, and it would therefore be impossible to show his residence. A transient person may make a note, and leave the place where it was made immediately ; it would then be unreasonable that the assignee should lose his action against the assignor, because the maker had no residence at the place where the note was made.

Starr, for appellant.

Lockwood, for appellee.

There are other errors assigned, but I deem them not of such importance to justify a reversal of the judgment. The matter mostly contained in the bill of exceptions was proper for the jury to pass upon. I am therefore of the opinion that the judgment of the circuit court ought to be affirmed,

Judgment reversed.

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

         Vide Mason v. Wash, p. 39; Thompson v. Armstrong, p. 48; Lusk v. Cook.

       See note 2 to the case of Mason v. Wash, ante, page 39.


text:
    Ninian Edwards, Plaintiff in Error, v. William A. Beaird, Defendant in Error.
    ERROR TO ST. CLAIR.
    A bill may be dismissed in all cases on motion, when the court is satisfied there is no equity in it.
    The act of 1819-, laying a tax on certain property, makes no distinction between residents and non-residents—the lien attaches on the property, and not on the person.
    Edwards filed a bill in chancery against Beaird, as sheriff of St. Clair county, in the circuit court of that county, stating that he was not a resident of St. Clair county, and that the county court of said county had levied a tax on town lots, the property of complainant, from which he prayed to be relieved, and that Beaird might be enjoined from collecting the tax assessed upon them. The defendant appeared, and moved the court to dismiss the bill, which motion the court sustained and dismissed the bill; to reverse which opinion, Edwards prosecuted a writ of error.
   , Opinion of the Court by

Justice John Reynolds.

The act of the 27th March, 1819, on the subject of laying a tax on certain property, makes no distinction between residents and non-residents. The whole tenor of the statute shows that the lien is created on the property to be taxed, and not on the owner of the property. All property of a certain description, in which town lots are included, is subject to be taxed by the county court. It is objected that the bill was dismissed on the defendant’s motion. This may be done in all cases where the court is satisfied there is no equity in the face of the bill. The judgment of the circuit court must be affirmed.

Judgment affirmed.

       Laws of 1819, page 313.

       Affirmed in Fisher v. Stone, 3 Scam., 68; Parkinson v. Trousdale, id., 371; State Bank v. Stanton, 2 Gilm., 352; Puterbaugh v. Elliott et al., 22 Ill., 157.


text:
    William B. Whiteside, Plantiff in Error, v. John Bartleson, Defendant in Error.
    ERROR TO MADISON.
    A sheriff was sued for money had and received, and the court assessed the damages without the intervention of a jury. This is error.
   Opinion of the Court by

Chief Justice Reynolds, and Associate Justice John Reynolds.

This was an action of assumpsit, containing only a common count for money had and received. The court below rendered judgment against White-side, in favor of Bartleson, and assessed the damages without the intervention of a jury, and it is to reverse this judgment that this writ of error is prosecuted. The liability of White-side arose upon his return of an execution as sheriff of Madison county, and this return being reduced to writing, and remaining upon file in the clerk’s office of said county: It was therefore contended that this makes his liability certain, and authorizes the court to assess the damages. If this argument be yielded, it would follow, that in every case where a fact could be made certain, the court, and not a jury, should try the cause. The consequences which would flow from such a proposition would be too absurd to admit the principle. The right of trial by jury would be thereby destroyed, and the interference of the court regulated, not by the certainty of the matter contained in the declaration, but by matter dehors.

Starr, for plaintiff.

Smith, for defendant.

The execution, with the return of the sheriff, when that return shall be proved, would certainly be evidence—but evidence for a jury and not for the court.

A jury should have been impanneled to assess the damages—this not having been done, it is error, for which the judgment ought to be reversed. Let the judgment be reversed, and the cause remanded for new proceedings not inconsistent with this opinion,

Judgment reversed.

       Post Rust v. Frothingham & Fort. As to writs of inquiry, see Tidd’s practice, 513. 4 T. R., 275. 2 Bos. & Pull., 55. Bell and Bell v. Aydelotte, ante, page 45.


text:
    Samuel L. White, Plaintiff in Error, v. Thomas Thompson, Defendant in Error.
    ERROR TO GALLATIN.
    It is error in the court to render a judgment by default when a plea is filed and unanswered.
   Opinion of the Court by

Chief Justice Thomas Reynolds, and Associate Justice John Reynolds.

This was an action of trespass commenced by the defendant here in the court below. To which action White pleaded the pendency of a former suit for the same cause of action, in abatement. Notwithstanding which plea, and without replying thereto, the plaintiff proceeded to take judgment by default, and a jury were impanneled who assessed the damages.

Lockwood and Blackwell, for plaintiff.

Starr, for defendant.

The error assigned, and the one relied upon, questions the legality of these proceedings.

The court certainly erred in rendering judgment by default after the plea was filed, and while the same remained upon record unanswered. For this error the judgment must be reversed, and the cause remanded for new proceedings to be had not inconsistent with this opinion.

Judgment reversed.

       Affirmed in Semple v. Locke, post. Lyon v. Barney, 1 Scam., 387. Manlove v. Bruner, id., 390. Covell et al. v. Marks, id., 391. McKinney v. May, id., 534. Chapman v. Wright, 20 Ill., 120. Moore v. Little, 11 Ill., 549.
      When the record shows that a plea was filed and a judgment by default rendered on the same day, the judgment will he reversed. The court will not presume that the plea was filed after the judgment was entered. Lyon v. Barney, supra.


author: Justice Reynolds.

text:
    Jesse Rountree, Plaintiff in Error, v. William Stuart, Defendant in Error.
    ERROR TO MADISON.
    Where a party amends his narr. hy setting out the bond on which suit is brought as the statute requires, it is error in the plaintiff to take judgment at the same term if a continuance is prayed for by defendant.
    Where a statute declares that in a certain case a continuance shall be granted, it is error in the court to refuse it.
   Opinion of the Court by

Justice Reynolds.

Rountree filed a demurrer to the declaration of Stuart in the court below— the demurrer was sustained. The plaintiff amended his declaration by setting out the original bond. The question then presents itself—ought the cause to have been continued under the third section of the “ act regulating the practice at law and in chancery ? ”

In this case it is not necessary to decide the question, if the continuance or non-continuance of a cause be such a judgment upon which a writ of error will lie, as the statute in this case is peremptory. It requires the declaration and writing on which the action is founded to be filed ten days before the return of the writ, or if not the case shall be continued.

This is positive. There is some reason in this. The party has not then ten days before the court to prepare for his defense. The plaintiff erred in taking judgment at the same term at which he got leave to amend his declaration. Therefore the judgment ought to be reversed, but as the court is divided in opinion, it is therefore affirmed.

Judges Browne and Wilson, not hearing the argument, gave no opinion.

       This decision has frequently been humorously criticised on account of the last expression in the opinion : “ Therefore the judgment ought to be reversed; but as the court is divided in opinion, it is therefore affirmed.” This, perhaps, is not the most classical expression that might have been used, but it amounts to simply this—that in the opinion of Justice Reynolds the decision of the court below ought to be reversed; but as the members of the court who were present were equally divided, it follows that it must be affirmed. It is not a decision of the court; and possibly ought not to have been reported by Judge Breese. Four-judges at that time composed the court, only two of whom were present, and they differed in opinion; but still there can be very little doubt that the views of the judge, whose opinion it was, were in substance correct. The case certainly ought to have been continued. See note to Crane v. Graves, ante, p. 66. Scott v. Cromwell, ante, p. 25.


text:
    Forester and Funkhouser, Appellants, v. Guard, Siddell & Co., Appellees.
    APPEAL FROM GALLATIN.
    The statements of jurors ought not to be received to impeach their verdict.
    An affidavit, setting forth the discovery of new testimony, should state the name of the witness, and also the facts he can prove.
   Opinion of the Court by

Chief Justice Reynolds.

In this case the only error relied upon is, that the court below erred in granting a new trial. There were four reasons assigned for a new trial: 1. The verdict was against law and evidence: 2. The discovery of new testimony: 3. The verdict of the jury was predicated upon the statements of the jurors in relation to the controversy while in the jury room: 4. One of the jurors separated from the jury while deliberating.

The fact that the verdict was predicated upon the statements of the jurors after they withdrew, is disclosed by the affidavit of one of the plaintiffs below, founded upon the confessions of one of the jurors. This the court think improper. The statements of jurors ought not to be received to impeach their verdicts,

The affidavit, disclosing the discovery of material testimony, does not state the name of the witness, nor the facts he could prove. • It is therefore insufficient. An affidavit should state the facts, that the court may judge of their materiality. If tho new trial had been granted upon the affidavit alone, the court would say it was improperly granted, but as there were other grounds, to wit, that the verdict was against evidence, the court can not say there was error— on the contrary, the facts in the case seem to have warranted the interposition of the court. The judgment is therefore affirmed.

Judgment affirmed.

         Contra, Sawyer v. Stevenson, ante, page 24.

       See note 2, to the case of Sawyer v. Stevenson, ante, page 24,