text:
    John Ward, Plaintiff in Error, v. The People, Defendants in Error.
    AGREED CASE EROM BAKE.
    An appeal does not lie to the Circuit Court from the decision of a justice of the peace, for a penalty, under the “Act to prohibit the retailing of intoxicating drinks,” approved April 18th, 1851.

      The Circuit Court has not inherent power to entertain appeals from inferior tribunals. Where but one trial is provided by law, such trial is final.
    The right to appeal under the fifty-eighth section of chapter fifty-nine of Rev. St., does not apply to judgments rendered by justices of the peace in criminal prosecutions, for fines, penalties, or offences, which are criminal in their character.
    The agreed case, filed in the Supreme Court, shows, that this was originally an action of debt, brought against Ward, before a justice of the peace in Kane county, to recover the penalty of twenty-five dollars for an alleged violation of the “Act to prohibit the retailing of intoxicating drinks,” “ approved February 1st, 1851. The plea was not guilty. After hearing the evidence, the justice gave judgment for twenty-five dollars and costs. Ward took an appeal from this judgment to the Circuit Court.
    At the May term, 1852, of the Kane Circuit Court, Wilson, Judge, presiding, A. B. Coon, State’s attorney, for the people, entered his motion to dismiss the appeal, which was sustained by the court.
    Ward, by his counsel, excepted; and the question, as to the right of appeal in this case, was submitted to this court.
    D. Eastman, for plaintiff in error.
    B. C. Cook, for the people.
   Catón, J.

The plaintiff in error was prosecuted before a justice of the peace for violating the provisions of an act entitled “An act to prohibit the retailing of intoxicating drinks,” approved April 18th, 1851; and a judgment was rendered against him for twenty-five dollars. He appealed to the Circuit Court, where the appeal was dismissed, on the ground that no appeal is allowed in such a case. This presents the only question for our consideration. The third section of that act confers the jurisdiction upon justices of the peace, and is as follows : “ The fines herein provided for, may be recovered either by indictment, in any court having jurisdiction of such offence, or by action of debt, in the name of the people of the State of Illinois, before any justice of the peace of the proper county.” Here, a jurisdiction is conferred upon justices of the peace; and no provision is made in the act itself allowing an appeal from the judgment of the justice. The principle is too well settled, by the repeated decisions of this and other courts, to require even a reference to authority to support it, — that, where a particular jurisdiction is conferred upon an inferior court or tribunal, its decision, when acting within the jurisdiction conferred, is final, unless provision is made by statute for an appeal from such decision. In no case has the Circuit Court inherent power to entertain appeals from inferior tribunals. Where but one trial is provided by law, that, of necessity, must be final. Indeed this rule is so well settled, that it was not even questioned by counsel upon the argument; and, while it was admitted that there is not the least shadow of authority for taking the appeal given by this statute, the right was claimed under the fifty-eighth section of chapter fifty-nine of the Revised Statutes. This section, and indeed nearly the whole chapter, as now incorporated into the Revised Statutes, was passed many years ago, since which time a great number of acts have been passed, conferring a great variety of particular jurisdictions upon justices of the peace, in most, though not all of which, express provision is made for appeals. That chapter is the general law defining the general duties of, and prescribing the practice before, justices of the peace, and conferring the general and ordinary jurisdiction which they are authorized to exercise. The section relied upon is as follows: “Appeals from judgments of justices of the peace to the Circuit Court shall be granted in all cases, except on judgments confessed. Provided, the party praying for an appeal shall, within twenty days from the rendering of the judgment from which he desires to take an appeal, enter into bond with security to be approved and conditioned as hereinafter provided.” We are of opinion, that this section does not apply to judgments rendered by justices of the peace, in criminal prosecutions, for fines or penalties, for crimes or misdemeanors. The chapter in which this section is found confers a criminal as well as a civil jurisdiction, and it is certain that the legislature did not intend that the section quoted should apply to the criminal jurisdiction, even, which was conferred by the same chapter ; for in the ninety-ninth section a distinct provision is made for appeals in such cases, which are to be taken in a different mode; so that the expression, “ in all cases except on judgments confessed,” was not intended to embrace every judgment rendered by a justice, besides those excluded by the exception specified. This, of itself, is a sufficient answer to the argument based upon the comprehensive meaning of the word all. The form of the bond to be given in appeals provided for in the fifty-eighth section, is prescribed in the fifty-ninth section, and that form is only applicable to civil actions between private parties; and this shows, very satisfactorily, that it was the intention of the legislature, in that section, only to provide for appeals in civil cases. If it was the intention of the legislature to authorize an appeal in every case, by the fifty-eighth section, it was indeed a work of supererogation for them, in subsequent acts conferring new jurisdictions, to make special provision in those acts for appeals, which has generally been done. This shows, at least, the understanding of the legislature of the true meaning of the fifty-eighth section; and that understanding affords a very safe rule for interpreting their subsequent enactments. If it is clear that the legislature supposed that there was no general provision allowing an appeal when a new jurisdiction is conferred, and that such an appeal can only be taken when expressly authorized in the particular case, it would seem manifest that no appeal is intended to be allowed when a new jurisdiction is conferred, and no provision is made for an appeal. At any rate, we cannot, without doing what we conceive to be violence to the manifest intention of the legislature, hold that the general expression in the fifty-eighth section of the fifty-ninth chapter of the Revised Statutes embraces cases which are criminal in their nature. While we are disposed to extend this provision as far as it will legitimately bear, and to embrace within it civil actions, the jurisdiction over which is not provided for in that chapter; beyond this we cannot feel authorized to go. Edwards y.Vandemark, ante, 633. Were we empowered to make the law, we might not hesitate to allow an appeal in this case; yet so long as the legislature, for reasons which were'no doubt satisfactory, have seen fit not to confer the right, it would have been a usurpation of power by the Circuit Court to have taken jurisdiction of the appeal. For the want of such jurisdiction, we think the appeal was properly dismissed by the Circuit Court, and its decision must be affirmed.

Judgment affirmed.

Treat, C. J., dissented.


source: Caselaw Access Project

author: Catón, J.

license: Public Domain

text:
    Greenleaf M. Woodbury, Appellant, v. Mark M. Aikin, Appellee.
    APPEAL FROM PEORIA.
    A sold to B certain premises, and gave a deed, with covenants for quiet enjoyment and against incumbrances, and took a mortgage upon the same premises, to secure the purchase-money. At the same time there was a judgment existing against A, which was a lien on the premises conveyed, and under which they were sold to C, and ultimately conveyed to him. C, on the same day that he took a deed from the sheriff, executed a deed of release and quitclaim to B, C being at the same time the holder of the mortgage from B to A:—

      Held, that C could not foreclose this mortgage on the premises of B.
    This was a bill in chancery, filed in the Peoria Circuit Court, February, 1851, by Aikin against Woodbury and James Carroll, to foreclose a mortgage on three hundred and twenty acres of land in Peoria county, which was dated December 24,1840, executed by Woodbury to Aikin to secure the payment of five hundred dollars, to be paid October 1, 1841, with seven per cent. interest, being recited in the mortgage as the purchase-money of said land.
    The answer of Woodbury shows that on the day of the date of the mortgage, Aikin executed and delivered to the appellant a warranty-deed for the same premises, which deed contains covenants of seizin against incumbrances, full power to sell and convey, and for quiet enjoyment, in the usual form, and this deed was the consideration for which the mortgage was executed. The answer denies indebtedness by means of said mortgage, for the reason that Woodbury acquired no title to the premises conveyed; that certain persons by the name of McClellan and Miller recovered judgment against Aikin and one Bestor jointly for the sum of $560.37 and costs, which was, at the exeeution of said deed from Aikin to Woodbury, a valid lien on said premises, on which judgment an execution was duly issued, by virtue of which the said premises were sold to Onslow Peters on July 20, 1846, for the sum of $200. No redemption was made from said sale, and the sheriff executed a deed to said Peters on 1st February, 1850. On 10th March, 1848, Wood-bury contracted with said Peters for the same land for $225.
    On the 1st February, 1850, said Peters conveyed the land to Woodbury for $225, and interest at seven per cent, from date of contract; and Woodbury sold the premises to one Carroll5 that at the time Peters conveyed to Woodbury, he was also the owner of the mortgage from Woodbury to Aikin, given to secure the original purchase-money for the premises at the time of the conveyance from Aikin; and that this mortgage is prosecuted for the use and benefit of Peters. The case was submitted upon bill, answer, and exhibits, without other testimony.
    At March term, 1852, Kellogg, Judge, decreed, that Wood-bury and Carroll should pay Aikin what was due on the mortgage to him, after deducting what had been paid Peters to remove the incumbrance of his judgment. From this decree Woodbury appealed, and brings the cause to this court.
    H. O. Meeeimav, for appellant.
    O. Peteks, for appellee.
   Catón, J.

This suit was heard upon bill, answer, and exhibits, no replication having been filed. For the purposes of this decision, the statements of the answer are considered as true.

The facts shown by the answer are these: That in 1840 Woodbury purchased of Aikin the premises in question, and took a deed with covenants for quiet enjoyment, against incumbrances, &c., and gave back a mortgage upon the premises to secure the purchase-money. At the time of the conveyance of the premises to Woodbury, there was a judgment existing against Aikin, which was a lien on the premises, and under which they were sold to Peters in 1845, and from which sale they were never redeemed; but in 1850 the purchaser took a sheriff’s deed; that in 1848 Peters contracted to sell the land to Woodbury, who paid him the price agreed upon therefor, and on the same day that Peters received the sheriff’s deed he executed to Wood-bury a deed of release and quitclaim, to the premises; that at the time of the execution of this deed, Peters was the owner of this mortgage, the same having been previously transferred to him, and that is now sought to be foreclosed for his own use and benefit.

We shall not stop to inquire, whether, had Aikin continued the owner of the mortgage, Woodbury would have had a right to buy in the title acquired by Peters, which had utterly destroyed the title which he had acquired from Aikin, and to hold the new title, as his grantor did, discharged from the mortgage. Upon this record that question does not necessarily arise. In Peters’s hands were united • the greater and the lesser estates, which ordinarily, though not always, is held to merge the lesser. As, however, the legal estate which Peters acquired under the sheriff’s sale was paramount to, and discharged from, the mortgage, I am not prepared to say that the doctrine of merger would apply, especially if he acquired an assignment of the mortgage, after the time for redemption from the sheriff’s sale had expired. But, waiving that question, we have no doubt that the mortgage was extinguished by the transfer made by Peters to Woodbury. At the time of that transfer, Peters held the absolute legal title and also the mortgage. By his deed, Peters “ remised, released, conveyed, and quitclaimed ” to Woodbury the premises in question, “ together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging, and all the estate, right, title, interest, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said parties of the first part, of, in, and to the above-described premises, and every part and parcel thereof, with the appurtenances. To have and hold,” &c. Now, here are used the strongest words known to the law for the purpose of describing every conceivable interest in, or claim to, the premises which the grantor then had; and an express covenant against this very incumbrance would not more effectually have estopped Mr. Peters from ever setting up or claiming under this mortgage, either in his own name or that of any other person. This mortgage, in the hands of Peters, was an “estate,” a “right,” a “title,” an “interest,” a “claim,” and a demand,” in and to the mortgaged premises; and all these interests were expressly conveyed to the grantee, whether they existed in law or equity. Whether Peters held the mortgage by either a legal or an equitable assignment, it equally passed to Woodbury by the conveyance; and the grantor in that deed can now assert no right or claim under it, either in his own name or that of any other person. This answer, which is admitted on the record to be true, shows that this proceeding to foreclose the mortgage, although in the name of the mortgagee, is for the use and benefit of the grantor in that deed, and we cannot hesitate a moment in determining that he cannot recover.

The decree of the Circuit Court must be reversed and the bill dismissed, but I am instructed to say without prejudice.

Decree reversed.


text:
    Robert Green, Appellant, v. Richard Lewis, Appellee.
    APPEAL FROM McHENRY.
    If the evidence warranted the jury in finding a verdict, the Supreme Court will not disturb it.
    A judge of the Circuit Court is at liberty to instruct a jury at his discretion, if he reduces his instructions to writing, so that the jury may take them with them, in considering of their verdict.
    The proper question in reference to expressions used in instructions is, What was the idea designed to be conveyed, and how was the language understood by the jury1?
    This was an action of assumpsit for work and labor, brought by Lewis against Green in the McHenry Circuit Court. Green, by plea in abatement, sets up that the services rendered were upon the joint liability of Robert Green, the defendant below, and Joseph Green, and not of Robert alone. To this there is a replication traversing the issue upon the plea, and joinder.
    At the September term, 1851, of the McHenry Circuit Court, Wilson, Judge, presiding, the cause was submitted to a jury, and resulted in a verdict and judgment against Robert Green, the appellant, in the sum of $270. The evidence is stated in the opinion of the court.

      Loop & Hulburt, for appellant.
    C. McClure, for appellee.
   Catón, J.

Any supposed errors which may have intervened upon the former trial of this cause, cannot now properly be made the subject of complaint. If the final verdict and judgment were regularly obtained and without error, they must be allowed to stand.

But two of the errors assigned are open to our inspection. The first is, whether the court should have set aside the verdict because it was unsupported by the evidence; and the second, whether the court erred in the charge given to the jury, which was unsolicited by either party.

The evidence shows, that Robert Green, the defendant below, and his brother Joseph, occupied and cultivated a farm together, and that the services sued for were labor on this farm. Each of the brothers had a horse-team, and Joseph-had an ox-team, all of which were worked on the place. One had as much control over the business of the farm as the other. The grain was harvested and stacked together, and, when threshed, was put into a common bin. Their hogs were kept together; and one witness bought a hog of both, and accounted to both for it. The plaintiff below told the same witness that “ he was at work for them, and did not know which he would get his pay of.” These are the leading and principal facts upon which the defence'—which is, that the suit should have been brought against both the Greens, and not against Robert alone—is sought to be established. On the other hand, it is insisted, that whatever joint interest there might have been in the farm and its products, the arrangement was that each of the Greens should furnish his proportion of the labor on the farm, and his proportion of the expense individually; and that, in pursuance of that arrangement, Robert Green employed the plaintiff below to wprk upon the farm, and that, in pursuance of that employment, the services were performed for which the action was brought. To establish these facts, it was proved by one witness that he was at work on the farm at the time Lewis commenced work, in July, 1846, and that the witness was employed and paid by Joseph Green, and that Lewis lived with Robert Green, the defendant below; that witness heard Robert talk about his hired man Lewis; said he was a good fellow. Another witness worked on the farm “ off and on ” during the time Lewis was at work there. He was sometimes employed by one and sometimes by the other, and charged them severally. A witness swore, that upon the trial of a cause between Joseph Green and one Farrell, which was for work on the farm, Robert Green was sworn as a witness and testified that there was no partnership between him and his brother Joseph, and that he had no interest in the event of that suit. That suit was tried in April, 1850, and the account on which it was brought extended back for eighteen months from that time. Another witness said, that upon that trial Robert testified that they farmed together, and were in partnership so far as threshing went, but that each one furnished his own part of the help and kept an account of it. This witness stated that Farrell’s account extended to a much earlier period than that stated by the other witness. A blacksmith testified that he did work on horses, ploughs, &c., used on the farm, and that Robert Green told him to keep the accounts separate. He stated that Lewis took a plough and horses to his shop to have work done on them- for Robert Green. The evidence showed that Lewis worked there from the forepart of July, 1846, till October or November, 1848, and that his services were worth from ten to twelve dollars per month. It also appears the division of the” farm did not take place till April, 1850.

This evidence certainly warranted the jury in coming to the conclusion, that Lewis was employed and was to be paid by Robert Green alone. There is no doubt that the services were performed for the joint benefit and about the joint business of both the brothers; but unless the defendant below swore to a falsehood, the arrangement between the brothers was that each should furnish his proportion of the labor and charge it to the concern, and this statement is not inconsistent with any of the testimony in the case, but is corroborated by the fact that Joseph Green had a man at work on the farm, and with Lewis, whom he employed and paid himself, as well as by the manner in which the blacksmith was directed by Robert Green to keep his accounts for work done for them. And even if his statements were not thus corroborated, it seems to me that it is an ungracious complaint, that the jury believed that he swore to the truth on that former occasion; and if that was the truth, the inference is most natural and satisfactory that Robert Green employed Lewis on his own responsibility to work upon the farm, in pursuance of the understanding between him and his brother. The existence of such an agreement, together with the facts that Lewis lived with Robert Green, and that Joseph Green had another man employed upon his own account to work upon the farm, sufficiently rebut the inference of a joint employment, which would legitimately arise from the fact that the services rendered were about the business of both. At any rate, if the jury were not absolutely bound to find the way they did, the finding is not so unsupported by the evidence as to justify this court in disturbing it.

I have examined the evidence, because a proper understanding of the facts proved before the jury will enable us more properly to understand and appreciate the instruction which the court gave to the jury.

The first objection taken to the charge is, that it was given without the solicitation of either party. This objection cannot be for a moment admitted. The judge is placed upon the bench to advise the jury of the law of the case, and to administer justice to suitors fairly and impartially. To suppose that the legislature ever intended to tie up the hands of the judge, and to compel him to sit indifferently by and see the jury misled by design or inadvertence, is too inconsistent with wise and just legislation, ever to be imputed to the law-making power, without the most express language to support it. But there is no such intimation in the act relied upon. It leaves the judge at perfect liberty to instruct them whenever he thinks it necessary to enable them properly to understand the law of the case; and it only requires that those instructions shall be given in writing that the jury may take them with them into their retirement. That was done in this case.

That portion of the charge complained of is as follows: “ If you believe that the labor was done for the joint benefit of both the Greens, still if you believe from the evidence that the labor was performed by the procurement of the defendant, Robert Green, individually, the action is well brought and the plaintiff is entitled to recover, provided he has proved that he performed the labor, and that the same is of value.” The objection to this instruction is enforced by a criticism upon the word “ procurement.” That the word was not here used in its strictly proper sense may be admitted. That the word “ employment ” would have been more literally accurate may not be denied. But if instructions which are drawn up in the hurry of a trial are to be thus criticized, few might stand the test. Such analytical criticism is not the fair or just mode either of examining an instruction or understanding testimony. The proper question is, what was the idea designed to be conveyed, and how was it understood by the jury. Verbal inaccuracies are constantly met with, both in instructions and in testimony, where the idea designed to be conveyed is easily understood. Sometimes one word is used for another, as “ plaintiff” for “ defendant,” or an entire word is omitted, which, when supplied, may even reverse the literal meaning of the sentence; and yet if the court can clearly see, when the whole is taken together, what the idea was which was intended to be conveyed, and that it must have been understood as intended, it would be manifestly improper for this court to refuse to understand it as it was intended, and was understood by the jury. No person who reads this instruction, understanding the facts to which it was to apply, can fail to understand its meaning. Juries are not in the habit of taking dictionaries with them into their rooms to study out the meaning of words in common use, for the purpose of detecting some inaccuracy of expression; and it is our place to seek to ascertain what influence the court did in fact exercise over them in forming their verdict, and, when that is ascertained, we are to determine whether it was proper or not. If the jury were in fact made to understand what the law was as applicable to the facts, then they were not misled by the instruction, and there was no error. That such was the case here, we entertain no doubt. They could have only understood from this instruction that if Robert Green employed Lewis individually, although to work for the benefit of himself and Joseph, he was individually liable to pay for the work. The whole case shows that that had been the contest all the way through, and that no question had been made that the work performed was for the benefit of both. It was in the light of these facts that the instruction was read to, and understood by, the jury, and there can be no doubt that their understanding was as clear as if the instruction had been drawn in the most precise terms. In this instruction we find no error. The instructions which-were asked for by the defendant below and refused, were not excepted to, and consequently are not before us.

The judgment must be affirmed.

Judgment affirmed.


text:
    Henry Petrie et al., Appellants, v. John Newell, Appellee.
    APPEAL FROM McHENRY.
    A promissory note made by a firm, without other evidence, is not admissible under the common counts, to charge defendants whose names do not appear on the face of the note, unless they are declared against as partners; such a case is not within the eighth section of chapter forty of the Rev. Statutes. When parties are sued as partners, they should be declared against as such in the count, under which the recovery is sought.
    To charge defendants as joint obligors, the declaration must be upon an obligation under seal; if they are declared against as joint payers, the count must be upon a simple instrument, in which there is an express promise to pay; the word “implied” has reference to suits against partners sued as such.
    Newell commenced this action in assumpsit against twenty-six defendants, returnable at the McHenry Circuit Court.
    The declaration counts specially upon two promissory notes, which were assigned to the plaintiff. The notes are as follows :

      “ Woodstock, January 15,1847.

      “ One day after date, for value received, the McHenry County Printing Co. promise to pay to James Hutchins, or order, one hundred and two and jf0 dollars with interest.
    J. Dwight, Treas.

      “ Woodstock, June 1, 1846.

      “ $111.52. For value received of James Hutchins, we promise to pay to him or his order one hundred and eleven dollars on demand, and interest annually, for the McHenry County Printing Company.
    There was also a count upon an account stated.
    There were pleas and an issue to the country. At the trial, a jury was waived, and the cause was heard before Wilson, Judge, at September term, 1851, of the McHenry Circuit Court. The evidence offered on the trial is stated in the opinion of the court.
    A motion for a new trial was overruled. The defendants in the Circuit Court prayed for and obtained this appeal.
   Catón, J.

There are three counts in this declaration. The first two are on two promissory notes, and the third is on an account stated. Upon the trial, the plaintiff offered the notes in evidence under the special counts, when they were rejected by the court. He then offered them under the count, on an account stated, when they were admitted; and there being no further evidence, a verdict was found by the court in favor of the plaintiff for the amount of the notes, to which the defendant excepted. This exception was well taken. Conceding that there was no error in admitting the notes in evidence under the third count, without proof of their execution, the defendants not having objected to them on that account; still, when admitted, they proved no joint cause of action against all of the defendants. The declaration is against twenty-six defendants, and the third count is in the ordinary form on an account stated, without any averment that they had accounted with the plaintiff as partners, or in any other particular relation. The first note is in the ordinary form and signed: “ For the McHenry County Printing Company. James Hutchins, Henry Petrie, S. C. Brown, Finance Committee, McHenry County Printing Company.” The second note is as follows: “ Woodstock, January, 15,1847. One day after date, for value received, the McHenry Co. Printing Co. promise to pay to James Hutch-ins, or order, one hundred and two |fB dollars with interest. J. Dwight, Treas. McHenry County Printing Company.”

There was no evidence showing any connection whatever between the other defendants and those who executed these notes. If the notes were properly admitted, under the third count, they of themselves could prove no more than they purported on their face, and they fell far short of showing that the plaintiff and all of these defendants had accounted together, and that upon such accounting there was the amount of these notes found due from them to the plaintiff below. Proof should have been produced in addition to the notes, showing that the defendants composed the printing company for which those who executed the notes professed to act, and that they were authorized to act in the capacities assumed.

This case is not within the 8th section of chap. 40, Rev. Statutes, which provides that the joint liability of the defendants need not be proved in the first instance, either where they are sued as partners, or as joint obligors, or payors. When they are sued as partners, they should be described as such in the declaration which is not done in the count upon which the trial took place, nor in that count are they declared against as joint obligors or payors. To count against defendants as joint obligors, the declaration must be upon an obligation under seal, and if they are declared against as joint payors, the count must be upon a simple instrument in which there is an express promise to pay. The word implied, has reference to suits against partners sued as such. In the two first counts of this declaration, the defendants are declared against as joint payors, those counts being special upon promissory notes. Not so the third count, under which the notes were admitted. That is upon an implied assumpsit, arising upon an account stated, upon the trial of which the proof is not helped out by any implication raised by the statute, and it was indispensable to introduce proof of the joint liability of all of the defendants to entitle the plaintiff to recover.

Without examining any of the other errors assigned, we think the finding of the court was without evidence, and for that error the judgment must be reversed and the cause remanded.

Judgment reversed.


author: Treat, C. J.

text:
    Benjamin Scholes et al., Appellants, v. Abraham Ackerland et al., Appellees.
    APPEAL PROM PEORIA.
    Where a dedimus is directed to a commissioner, to take the testimony of Seymour Rank, and the deposition of Seigmund Rank is returned, the variance is fatal.
    A defendant is not guilty of laches in moving to exclude such a deposition, where notice of such a motion is given more than six months before the cause was' reached for trial.
    This was an action of assumpsit brought by appellees against appellants as common-carriers, owners of steamboat “ Mooastac,” for the loss of certain goods, shipped on board said boat at St. Louis for Peoria. Plea, non assumpsit, verdict for appellees for f84.58. On the 18th of April, 1851, appellees gave notice to take the deposition of Seymour Rank of Cincinnati. Commission issued May 1, 1851, to take the deposition of Seymour Rank. Interrogatories were propounded to him. The deposition of Seigmund Rank, and signed Seigmund Rank, is taken and returned with the commission. The testimony of this witness is the only evidence to prove the shipping of the goods from Cincinnati (where the goods were purchased) to St. Louis, or any thing relative to their identity, with those said to have been lost. On the 21st of August, 1851, appellants filed exceptions to the deposition of Seigmund Rank. The principal exception to the deposition being, that no notice had been given, or commission issued to take the deposition of this witness.
    At May term, 1852, Kellogg, Judge, presiding, after the cause was called for trial, and, before the jury was sworn, the court overruled the exceptions to the deposition, and permitted it to be read in evidence on the trial. After the return of the verdict, the appellants entered a motion in arrest of judgment, and for a new trial. One of the reasons assigned for these motions, was the admission of the deposition of Seigmund Rank. There were other reasons assigned, but as they are not noticed in the opinion of the court, they will not be noticed here.
    N. H. Purple, for appellants.
    H. O. Merriman, for appellees.
   Treat, C. J.

But one of the assignments of error need be considered. The plaintiffs notified the defendants that they would sue out a commission to take the testimony of Seymour Rank. Interrogatories were propounded by both parties, and attached to the commission. The commissioner returned the deposition of Seigmund Rank. In August, 1851, the defendants filed exceptions to the deposition; the chief ground of objection being that no notice had been given to take the testimony of the witness. At the May term, 1852, on the calling of the cause for trial, but before the jury was sworn, the exceptions were heard by the court and overruled. The conclusion of the court was erroneous. The dedimus directed the commissioner to take the testimony of one person, and under it the deposition of another person was taken. The special authority was not pursued. The names were essentially variant, and clearly indicated different individuals. The discrepancy cannot be disregarded on the principle of idem sonans. Nor were the defendants guilty of laches, in moving to exclude the deposition. They gave notice of the motion shortly after the deposition was returned, and more than six months before the cause was reached for trial. It was in the power of the plaintiffs to have called up the exceptions, and have had them disposed of. They could not therefore allege surprise.

The judgment is reversed, and the cause remanded.

Judsrment reversed.


text:
    Charles H. Freeman, Plaintiff in Error, v. Lazarus L. Guyer, Defendant in Error.
    ERROR TO PEORIA.
    When a party accepts a note, assigned to Mm “ without recourse,” which is annexed to an agreement, that the real amount due upon the note is to be determined by a third person, there is no implied warranty on the part of the indorser, that the sum specified in the note was actually dne. Without such agreement or knowledge of its existence, qumre.

    The opinion of the court contains a full statement of the case.
    This cause was heard by Kellogg, Judge, without the intervention of a jury, at November term, 1851, of the Peoria Circuit Court. The defendant below brings the cause to this court.
    H. O. Merriman, for plaintiff in error,
    Cited, Chitty on Bills, 234, and note (a); Pike v. Street, 1 Moody & Malkin, 226; Goupy v. Hardin, 2 Eng. Com. L. 306; Richardson v. Lincoln, 5 Met. 204; 1 Greenleaf’s Ev. 351; 2 Stark. on Ev. 548; 1 Greenleaf’s Ev. § 80.
    O. Peters, for defendant in error,
    Cited, Rev. St. title Negotiable Instruments; Lobdell v. Baker, 3 Met. 469; Same v. Same, 1 Id. 193 ; Long on Sales, 201 204; Chitty on Contracts, 447, note 4; Herrick v. Whitney, 15 Johns. R. 240; 27 Maine R. 225; Webster v. Bullock, 6 Georgia R. 230.
   Treat, C. J.

Guyer sued Freeman before a justice of the peace, and”recovered a judgment for §6.28. Freeman appealed to the Circuit Court, where the cause was heard by the court, and the judgment of the justice affirmed. The bill of exceptions shows, that Guyer read in evidence a note given by Bishop to Freeman, and indorsed by the latter to Guyer, also a judgment in favor of Guyer against Bishop; and he proved by Bishop, that when the judgment was rendered, Freeman was present, and appeared to be aiding in prosecuting the suit. The note, indorsement, and judgment are not set out in the bill of exceptions. To supply this defect, the parties have stipulated that the statements and recitals in the transcript of the justice shall be taken and considered as a part of the evidence given on the trial before the Circuit Court. The transcript is as follows: “ L. L. Guyer v., Charles H. Freeman. Action founded on balance due on a note, dated May the 12th, 1846, given to C. H. Freeman, signed by James H. Bishop, for fifteen dollars; to said note was connected an article of agreement, bearing the same date, signed by C. H. Freeman, stating that the opinion of Curtis Cady or Ezra Tucker should control the amount of said note; said note transferred without recourse, and sued by L. L. Guyer; in which suit James H. Bishop, defendant, brings Ezra Tucker to comply with the requirements of said article, and Tucker says the amount of said note should be ten dollars instead of fifteen; judgment rendered against said Bishop for ten dollars and interest. Plaintiff claims of defendant the balance due on said note; summons issued, August 9th, 1850, to appear on the 17th of same month, at 1 o’clock P. M.: summons returned by reading, so says constable Steadman; August 17th, 1850, at the hour set, after investigating plaintiff’s claim, and defendant not appearing, judgment for plaintiff on default of defendant, for the sum of six dollars and twenty-eight cents, with costs of suit.”

The only legitimate inference from the statements in the transcript is, that the article of agreement was attached to the note when it was assigned to Guyer. It was connected with the note when produced by him.before the justice, and the strong presumption is, that it was so connected at the time he received the note from Freeman. If so, he acquired the note by indorsement, without recourse, with full notice that the sum named in the body of the note was not the true amount due upon it, but that the real amount was to be determined by Cady or Tucker. In such case, there was no implied warranty on the part of Freeman, that the sum specified was actually due on the note. If the agreement had been detached from the note, and knowledge of its existence withheld from Guyer, the law of the case might be very different.

The judgment is reversed, and the cause remanded;

Judgment reversed.


text:
    John Coates, Appellant, v. John C. Woodworth, Appellee.
    APPEAL PROM STEPHEN'S OR".
    If one person purchases land withsthe money of another, but takes the deed in his own name, a trust results, by operation of law, in favor of the person whose money is used; and parol proof may be introduced to show whose money was applied to make the purchase.
    Where A loans money to B, and takes a deed of land for his security, the title which A held for his security was in trust for B in the nature of a mortgage, and no lapse of time short of that fixed by the statute of limitations could forfeit the right of redemption in B or defeat his interest.
    Chancery always has jurisdiction to enforce a trust, and for this purpose may appeal to the conscience of the trustee; and although the trust may be established by other evidence, this docs not impair the jurisdiction of this court to enforce the trust.
    This was a bill in chancery, filed by Woodworth against Coates.
    The bill charges, that in the Fall of the year 1847, Wood-worth being indebted to one Tarbox, in the sum of $93, secured him for the payment of that sum, by a conveyance in fee-simple of the south-west quarter of the north-west quarter of section 11, in township 26, of range 7, east of the 4th principal meridian, except the west quarter of said tract; that at the time he executed this deed, he took from Tarbox a bond conditioned that he should reconvey the land, upon his paying to Tarbox $100, in the following spring; that Woodworth made application to Coates, for a loan of $100, with which to redeem the land from Tarbox, which Coates agreed to loan until some time in the summer, on consideration that Woodworth would pay him $135, Coates to take from Tarbox or Woodworth a conveyance of the same land as security for the money loaned ; that to save expense in conveying and recording, the deed was made directly to Coates, instead of to Woodworth, and by him to Coates; that in case of default in payment of the money by Woodworth to Coates, the agreement between them was, that Coates should sell the land, pay himself out of the proceeds, and pay the residue to Woodworth; that Coates sold the land for $300, and now refuses to pay to Woodworth any surplus left, after paying himself.
    Coates answered the bill, by denying all allegations in reference to a loan, and insists that he bought the land of Tarbox, with his own money and on his own account.
    The facts proven are stated in the opinion of the court.
    At the April term, 1852, of the Stephenson Circuit Court, Sheldon, Judge, decreed, that Coates should pay Woodworth $165 and costs. From this decree Coates appealed, and brought the cause to this court.
    T. J. Turner and B. C. Cook, for appellants.

      Allegata and probata must agree. McKay v. Bissett, 5 Gil. 499; Morgan v. Smith, 11 Ill. 198; White v. Morrison, Id. 361.
    The complainant had a remedy at law. Woodworth v. Seeley, 11 Ill. 163.
    The law will not imply a trust in this case. 13 Ill. 54; Botsford v. Burr, 2 Ill. C. R. 404.
    The proof to raise a trust should be very clear. 3 Sug. on Vend. 175; 4 Blackf. 539; 2 Id. 441; 8 N. Hamp. 178; 1 Bibb, 609; 4 J. J. Marsh. 509; 1 Id. 399.
    If the money advanced was not loaned, and was Coates’s money, then no parol proof can raise a trust, independent of the statute of frauds. 1 Phillips’s Evidence, 561; Pickering et al. v. Dawson et al., 4 Taunt, 778; Jackson v. O’Reilly 6 Johns. 18.
    J. Marsh, for appellee,
    Cited, 2 Story’s Equity Jurisp. § 1018; Roach v. Cosine, 9 Wend. 227; Brown v. Dewey, 1 Sandf. Ch. R. 56; Wright v.
      Bates, Verm. 341; Hovey et al. v. Holcomb, 11 Ill. 660; Hawley v. Cramer, 4 Cow. 717; Grandia v. Le Roy et al., 2 Paige, 599; Wiswal v. Hall, 3 Id. 313; Bank of Utica v. City of Utica, 4 Id. 399.
   Catón, J.

The case made by the bill is this: That for the purpose of securing to Tarbox about the sum of one hundred dollars, Woodworth had deeded to him the premises in question, and taken back a bond for a reconveyance of the land, upon the payment of the money due at a specified time. That for the purpose of making this payment, he negotiated with Coates a loan for that sum, and to secure which, Tarbox should convey the land to Coates. That this loan from Coates should be repaid by Woodworth, in the month of May or June, 1848; and in default thereof, Coates should sell the land and pay himself out of the proceeds, one hundred and thirty-five dollars, and pay the balance of the proceeds over to Woodworth. That Woodworth did not pay the money at the time appointed, and that Coates had sold and conveyed the land, for the sum of three hundred dollars and refuses to pay to Woodworth the balance due him, after satisfying the debt due to Coates.

The case made by this bill is that of a resulting trust, where the title is held by the trustee, as security for the loan of the purchase-money, and is almost identical with the case of Boyd et al. v. McLean, 1 Johns. Ch. R. 582. The real question in this case, as in that, is, Was there a loan ? Was the. money paid, the money of Woodworth or of Coates ? If the former, then Coates took the title as trustee for Woodworth; if the latter, then he took it in his own right. No agreement between Coates and Woodworth that Coates should buy the land and then sell it to Woodworth upon any terms, will support the bill, nor will a subsequent agreement by Coates, to let Woodworth have the land upon any terms, sustain the case, if Coates in fact purchased the land with his own money from Tarbox. Had such been the case, probably Woodworth would not be'without remedy, but he would have to seek it by a bill framed differently from this. If he succeed at all, it must be by supporting with proof the complaint which he has made.

We must recur to the evidence, then, to ascertain if this was a loan of money. The first witness examined was Mr. Tarbox, who, it may be truly said, appears to have been a very slow witness for the complainant, and we need have no apprehensions that he intentionally made the complainant’s case any stronger than the truth justified. He proves that he held the title to the land upon the terms stated in the bill. That after the time stipulated for the payment of his debt had expired, Woodworth told him to go to Coates’s office and he would get his money. He went there accordingly, Coates gave him the money, and he executed the deed to Coates; and about that time the contract or bond between him and Woodworth for the reconveyance of the land to the latter was cancelled, Woodworth authorized him to make the conveyance to Coates, and agreed to give up the agreement, and they accordingly went to the recorder’s office, and he did so. No negotiation took place, and no bargain was made between Coates and Tarbox; but, according to the statement of the latter, he went to the former, received his money, and executed the conveyance, without any explanation. whatever taking place between them. He was in the-office but a few minutes. He says that at the time he went into the office, he cannot recollect whether Coates or Woodworth said his money was ready, but that one or the other did say so.

Mr. Baker testified that Coates told him that he had redeemed the land from Tarbox for Woodworth who was to have a certain time within which to redeem it from him, which time had expired, and that now he shoud sell the land, pay himself the hundred and thirty-three or five dollars, and also for his trouble, and pay the balance over to Woodworth. That this was Woodworth’s right, and he should have it, although he had no claim upon him now, because he had let the time for redemption run out. Mr. Hurlbut is the only witness who gives us any account of the actual negotiation and bargain between Mr. Woodworth and Mr. Coates. When called upon to give an account of the transaction, he says,<£ Mr. Coates was to advance a certain amount of money for Mr. Woodworth, to redeem some land which Mr. Tarbox had a deed of from Mr. Woodworth.” The amount he did not recollect, but says Mr. Tarbox was to, or did make Mr. Coates a deed for the land, and Mr. Coates was to make Mr. Woodworth a deed for the land if he should redeem it within a certain time. Again he says on his cross-examination, “ Mr. Coates paid Mr. Tarbox, for Mr. Woodworth, a certain sum of money, for which he gave Mr. Coates a deed for a certain tract of land out south-west of this, which land Mr. Woodworth was to redeem within a certain time from Mr. Coates.” This was stated in answer to a question whether the bargain was not, that Coates should sell the land to Woodworth for a given sum at a certain time. He further said that he supposed Coates loaned the money to Woodworth, but he subsequently stated that nothing was said about borrowing or loaning money, to his knowledge. He was not present at, nor did he hear the whole interview. Another witness states that Coates sold the land for three hundred dollars. This presents the material features of the case, as gathered from the evidence. We have no doubt that the substance of .this transaction was a loan of money from Coates to Woodworth, for the purpose of redeeming the land from Tarbox, by the payment of the debt which Woodworth owed to him, and for the security of which he held a deed of the premises, which was in fact a mortgage ; and that Coates took a deed from Tarbox, by the procurement and direction of Woodworth, for the purpose of securing him for the money which he advanced on account of Woodworth, together with over thirty-five dollars, which he was to have for the use of less than one. hundred dollars for less than three months.- There is no pretence that Coates bought the land of Tarbox, nor is there any doubt that Tarbox made the conveyance in consideration of the equitable interest which Wood-worth had in the land, and of the payment of Woodworth’s debt. Whatever arrangement was made, was made by Woodworth. All that was done, was in pursuance of a negotiation made by him. In that negotiation he could have had no other object than to redeem his land, and to secure to himself the benefit- of his equitable interest in it. Indeed a sale of the land from Tar-box to Coates would have been ineffectual as to Woodworth’s rights, so long as they were known to Coates.

It is true that they may not have used the words borroiv or loan during the negotiation, and this may have been from design; for nothing is more common, when the transaction is usurious, than to endeavor, as far as possible, to cover up the real character of the arrangement in some form which will conceal the usury; but it is the duty of a court of equity to look through the forms, and reach the substance of the transaction. The defendant below repeatedly acknowledged a redeemable interest in Woodworth in the land, which implies necessarily an incumbrance by Woodworth; and his right to redeem ^jas only denied upon the ground that the time for redemption had elapsed; but in this he merely mistook the law of the case. If Wood-worth ever had a right to redeem, it could only have been from the incumbrance which was created for the security of the advance which Coates had made for him, to pay his debt due to Tarbox; and the title which Coates held for his security was in trust for Woodworth, and in the nature of a mortgage, and no lapse of time, at least short of that prescribed by the statute of limitations, could forfeit the right of redemption and destroy Woodworth’s interest. It is true there is no direct evidence sustaining the averment in the bill, that Coates should have the right to sell the land for the purpose of paying the debt created; but the fact that Coates said he should do so, and that he subsequently did sell the trust estate, leaves no doubt that he understood that he had that right, and that the law would raise the duty to pay the surplus to the cestui que trust, though the arrangement between the parties was silent on the subject. Besides, this power to sell was for the benefit of Coates ; and it is for Woodworth to deny it and complain of its exercise. He, however, confirms the sale, and asks for his proportion of the purchase-money, to which we think he is entitled.

Another objection was made, which is, that a court of chancery has no jurisdiction, for the reason that the complainant could have recovered the amount due him in an action at law for money had and received. Admitting that he. might have maintained such an action in this case, that would not deprive this court of its jurisdiction. Chancery always has jurisdiction to enforce a trust, and that is the object of this bill. Here we find a trust existed, to establish which it might have been necessary to appeal to the conscience of the trustee; and the fact, that the trust is established by other evidence, does not impair the jurisdiction of the court to enforce the trust.

We find that the decree of the court was correct, and it is immaterial what reasons are assigned for the decree, if the conclusion is right.

The decree of the Circuit Court is affirmed.

Decree affirmed.


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    The People, on the relation of Henry Warren Loomis and Selden M. Bronson, v. Ira O. Wilkinson, Judge of the Sixth Circuit.
    APPLICATION POE A MANDAMUS-
    The circuit courts have power to award a writ of certiorari at common law, to all inferior tribunals and jurisdictions; wherever it is shown either that they have exceeded the limits of their jurisdiction, or in cases where they have proceeded illegally, and no appeal is allowed, and no other mode of directly reviewing their proceedings is provided.
    A judge of the County Court has no authority to entertain an insolvent proceeding and discharge an insolvent, except when sitting as a court. In such a proceeding, the plaintiff in the writ, or his attorney, is entitled to notice of the proceeding, so that the right to a discharge may be contested.
    Ti-ie petition shows, that the petitioners had sued out a writ of capias ad respondendum against one Henry W. Sims, upon which the sheriff arrested him, and, at his request, took him before the county judge, at his chambers, who, upon an ex parte hearing, and without any notice having been given to the plaintiffs in the writ, made an order discharging Sims from the arrest. At September term, 1852, of the Ogle Circuit Court, the petitioners caused a motion in wilting to be filed, asking that a writ of certiorari facias should be issued out of that court, directed to Spooner Buggies, county judge of the said county of Ogle, to remove certain insolvent proceedings, upon the application of said Sims. This motion was denied by Judge Wilkinson, at March term, 1852, on the ground, among others, that the said Circuit Court had no jurisdiction to issue the writ.
    On the petition, Judge Wilkinson stated, that the petition had been submitted to him, and that its statements were substantially correct. He submitted the questions arising upon the petition to the Supreme Court for its decision and advice. This was considered a consent on the part of the circuit judge, that a peremptory mandamus might issue, if the opinion should be, that the Circuit Court had jurisdiction to issue the writ of certiorari.

    F. Burnap, for the motion.
   Catón, J.

The wilt of certiorari is familiarly known to the common law, and the Court of King’s Bench has always been in the constant practice of awarding it to inferior courts and special jurisdictions, commanding them to send up their records for inspection, whenever it is shown that they have exceeded their jurisdiction, and in cases where appeal or writ of error would not lie. Holt, C. J., in Groenvelt v. Burwell, 1 Ld. Raymond, 471, said, “ Where any court is erected by statute, a certiorari lies to it; so that, if they perform not their duty, the King’s Bench will grant a mandamus.” And again, the same court said, at page 580, “ For this court will examine the proceedings of all jurisdictions erected by act of parliament. And if they, under pretence of such act, proceed to encroach jurisdiction to themselves, greater than the act warrants, this court will send a certiorari to them to have their proceedings returned here, to the end that this court may see that they keep themselves within their jurisdiction; and, if they exceed it, to restrain them.” In this last case, justices of the peace had been authorized to levy money for the construction of a bridge, and no appeal or other mode of reviewing their action was provided; and the court reviewed their proceedings upon certiorari; and this writ has often been issued by courts in the United States, proceeding according to the course of the common law. In the case of Starr v. Trustees of Rochester, the Supreme Court of New York brought up, by certiorari, and reviewed the proceedings of the trustees of a town corporation, upon the widening of a street, where it was alleged that they had exceeded their jurisdiction. In that case, Savage, C. J., said, There can be no doubt of the power of this court, at common law, to review the proceedings of inferior jurisdictions; this power is not taken away by implication by a similar power being given to another tribunal. The common-law powers of this court, however, are confined to an examination of the jurisdiction of such inferior tribunals, and to questions of law arising out of their proceedings, and not to an examination of their decisions upon questions of fact.” In that case, an excess of jurisdiction was alleged. ,

A similar case was that of Parks v. The City of Boston, 8 Pick. 218, where the court said, “ The law seems to be well settled, that certiorari may be awarded to remove the proceedings from any inferior court, whether it be of ancient or newly-created jurisdiction, or whether it proceeds according to the course of the common law or not.”

The complaint in that case was, that the city corporation had laid out and widened a street in a case where they were not authorized to do so; or, in other words, like the other, an excess of jurisdiction was alleged.

But it is unnecessary to multiply cases, upon the authority of the court to issue this writ. It is a common-law power, and is vested in our circuit courts, — which, in this State, are the highest courts of original jurisdiction, and answer to the Court of King’s Bench in England, — unless it is taken away by statute. There is certainly no express statute which deprives these courts of this jurisdiction; nor is there any which takes it away by implication.

It is true we have a statute which provides for the issuing of a writ, called a certiorari, but that writ can scarcely be said to have any analogy to the common-law writ, of the same name. The common-law writ only removes the record of the inferior court, and upon that record alone can the questions be raised. The determinations of the questions of fact by the inferior court, are held conclusive, while our statutory writ removes the entire case into the Circuit Court, and opens for reexamination, all questions both of law and fact. Indeed it is but another mode of taking an appeal, from the judgment of a justice of the peace, to the Circuit Court. And it can only be directed to justices of the peace, while the common-law writ, as we have seen, may be sent to all inferior tribunals and jurisdictions, whether they be courts of justice, or tribunals of special and more limited authority, and whether an appeal be allowed from their determinations or not, and the necessity for the existence of such a superintending power, all can easily appreciate, when we remember the great number of inferior special jurisdictions, which have been, and are constantly being created, which are liable to exceed their jurisdictions, and from many of whose decisions, no appeal is provided. It is true they may be liable to civil prosecutions where they exceed their jurisdiction, but this will often afford but a very imperfect redress to the injured party, while it may operate as a great hardship upon the inferior officers, who, from an error of judgment, may have stepped beyond the limits of the law conferring their authority. It may be better for all parties in such cases to have their proceedings arrested at once, and set aside by the Circuit Court. We hold then that the circuit courts, have power to award a writ of certiorari at common law, to all inferior tribunals and jurisdictions, wherever it is shown either that they have exceeded the limits of their jurisdiction, or in cases where they have proceeded illegally, and no appeal is allowed, and no other mode of directly reviewing their proceedings is provided.

It only remains to be seen whether the Circuit Court should have issued the writ in the present instance. Of this we have no doubt. The petition shows that the petitioners had sued out a writ of capias ad respondendum against one Henry W. Sims, upon which the sheriff arrested him, and at his request took him before the county judge, at his chambers, who upon an ex parte hearing, and without any notice whatever having been given to the plaintiffs in the writ, made an order discharging him from the arrest, professing to act under our insolvent laws, and in obedience to which order the sheriff released the alleged insolvent from custody. The proceedings before the county judge did not take place in open court, nor during a term of the court, nor were the orders the judge, nor any of the proceedings entered upon the records of the court. If all this be true there can be no doubt that the county judge exceeded his jurisdiction or rather acted without jurisdiction. He has no authority to entertain an insolvent proceeding and discharge an alleged insolvent, except when sitting as a court. Besides the plaintiffs in the writ or their attorneys were entitled to notice of the proceeding, that they might appear and contest the alleged insolvency, and oppose the discharge. The necessity of such notice although not expressly provided for, is necessarily implied. Bev. St. chap. 52, § 5, 6 and 7, and should be given at least, whenever practicable as in this case. It may be true that the order made by the judge for the discharge of Sims, was void, and did not justify his release by the sheriff, who maybe liable for an escape, but the fact that the proceedings were void for want of jurisdiction, is no reason why they may not. be reversed, when the record is brought up by a common-law writ of certiorari. In almost all the cases found in the books, where this writ has been granted, that has been the complaint. The great utility of the writ, is in its capacity to bring the proceedings of inferior tribunals before the court for reversal, where they have exceeded their jurisdictions within which it is the proper province of the Circuit Court, to restrain them. A peremptory writ of mandamus must be awarded, as the statement of the judge attached to this petition, showing that it is substantially correct, and submitting the questions thereon, arising for the advice and decision of this court, may be regarded and taken as a return to an alternative writ.

The writ is awarded "without costs.

Peremptory mandamus aioarded.


author: Trumbull, J.

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    John L. Burst, Appellant, v. Harley Wayne, Appellee.
    APPEAL FROM McHENRY.
    Strictly speaking, a party should reduce his exception to writing, and have it signed during the progress of the trial; hut it will he deemed sufficient, if the bill of exceptions is made up and signed during the term at which the cause was tried. This has been deemed requisite, except in cases where counsel consent, or the judge, by an entry on the record, directs that it may be prepared in vacation, and signed nunc

      pro tunc; and in all cases it should appear on its face, to have been taken and signed at the trial.
    Where two terms of the court have intervened since the trial, before the bill of exceptions was signed, and no reason for the delay appears upon the face of the record for the delay, the bill of exceptions will be stricken from the record, except under-very extraordinary circumstances.
    A party must abide the consequences of his neglect, if he does not procure his bill of exceptions to be filed in apt time.
    This was a motion made to strike the bill of exceptions from the files of this court, for the reason that the bill was signed and sealed, too long after the trial of the cause. The facts of the case are stated in the opinion of the court.
    Church & Willard, for the motion.
    T. L. Dickey, and C. McClure, contra.
   Trumbull, J.

This cause was finally disposed of at the September term, 1851, of the Circuit Court of McHenry county, and on the 2d of June, 1852, a bill of exceptions was filed in the cause, purporting to have been signed in open court at the May term, 1852, of the Kane Circuit Court. A motion is now made to strike the bill of exceptions from the record.

The 21st section of the practice act, Rev. St. 416, declares, that “if during the progress of any trial in any civil cause, either party shall allege an exception to the opinion of the court, and reduce the same to writing, it shall be the duty of the judge to allow the said exception, and to sign and seal the same, and the said exception shall thereupon become a part of the record of such cause.” f

Strictly speaking, a party under this statute would be required to reduce his exception to writing, and have it signed during the progress of the trial; but a strict compliance with the letter of the statute, would, in many cases, be impracticable, and has never been required.

It has always been deemed sufficient, if the bill of exceptions was made up and signed during the term at which the cause was tried, and this has been deemed requisite, “ except in cases where counsel consent, or the judge, by an entry on the record, directs, that it may be prepared in vacation, and signed rmnc pro tunc, and in all cases, it should appear on its face to have been taken and signed at the trial.” Evans v. Fisher, 5 Gilm. 453.

Two terms of the McHenry Circuit Court intervened after the trial of this cause, before the bill of exceptions was signed, and no reason for this delay appears upon the face of the record.

To allow a bill of exceptions, embodying the evidence, to be made up on the ex parte application of one of the parties after so long a delay, and after the counsel for the opposite party, as in this instance, have removed from the State, would be a most dangerous practice, and one not to be tolerated except under very extraordinary circumstances. Affidavits have been filed, showing that there was an agreement between the counsel, that the bill of exceptions might be subsequently settled, and an attempt is made to bring this case within the decision in the case of Evans v. Fisher. The court went to the very limit of the law, in refusing to exclude the bill of exceptions in that case. Now, we are asked to go a step further.

The affidavits show, that the cause was finally disposed of in October, shortly before the adjournment of the McHenry Circuit Court, and that it was agreed between counsel, that the bill of exceptions might be made up and signed at the succeeding term, of the Circuit Court of Kane county, which was to be held the November' following. The parties disagree as to the other terms of the agreement, as will often be the case, so long as counsel neglect to put such stipulations in writing. One party insists that the agreement was, that the bill of exceptions should be prepared and signed during the first week of the Kane Circuit Court, and^that his counsel attended during the whole of that week, for the purpose of having it settled, while the other party claims, that he had the whole of the term within which to prepare the exceptions, and that his counsel attended for that purpose during part of the second week; that the judge who tried the cause being temporarily absent, by exchange with another judge, he did not await his return, but left a bill of exceptions he had prepared with a third person, to be handed the judge on his return. Whether it was presented to him at that term does not appear. At all events, the bill of exceptions now in the record, was not made up and signed till the May term, 1852, of the Kane Circuit Court. It was not executed according to the agreement, as stated by either of the parties; nor did the absence of the judge who tried the cause, which seems only to have been for part of the term, put- it out of the party’s power to comply with the agreement.

Had he attended during the first week of the term, as his adversary insists was the agreement, when the facts were freshest in the minds of both the judge and the parties, or had his counsel even awaited the return of the judge, it is not improbable that the bill of exceptions might have been settled during that term. Not having done so, and the absence of the judge during part of the term, being an insufficient reason for failing to comply with the agreement, he must abide the consequences of his own neglect, and the motion to strike the bill of exceptions from the record will be sustained. Motion allowed.


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    Solomon Shaffer, Plaintiff in Error, v. Daniel Currier, Defendant in Error.
    ERROR TO OGLE.
    A party who commences suit before a justice of the peace, may dismiss his suit after appeal in the Circuit Court, even though the defendant obtained a judgment in his favor against the plaintiff; but he must dismiss the suit at his own costs.
    The judgment before the justice was -opened by the appeal, and, as a matter of course, the judgment fell with the dismissal of the case.
    Daniel Currier sued Shaffer before a justice of the peace. On the trial before the justice, Shaffer recovered a judgment against the plaintiff Currier, for the sum of thirty dollars.
    Currier took an appeal from the decision of the justice, to the Circuit Court of Ogle county.
    At a special term of the Ogle Circuit Court, held in January, 1852, Wilkinson, Judge, presiding, the cause was tried before a jury; the jury found for the defendant Shaffer, and assessed his damages at the sum of five cents. Thereupon Currier moved for a new trial, which was allowed by the court. Afterwards Currier moved that the judgment obtained by Shaffer before the justice be reversed, and that the cause pending in the Circuit Court be dismissed; which motion was sustained, and the following judgment was rendered in the premises. “ It is ordered by the court, that the cause be dismissed at the costs of the said Solomon Shaffer; and that the judgment in the court below be reversed at the costs of the said Shaffer. And that the said Daniel Currier have and recover of the said Solomon Shaffer his costs and charges in this behalf expended, and that he have execution therefor. • '
    To this decision Shaffer excepted, and brought the cause to this court by writ of error.
    The errors assigned are, the rendering a judgment for costs against Shaffer, and the reversing of the judgment rendered by the justice of the peace.
    E. S. Leland and. Van U. Higgins, for plaintiff in error.
    J. Marsh, for defendant in error.
   Treat, C. J.

Currier, to the use of Marshall, brought an action against Shaffer before a justice of the peace, which resulted in a judgment in favor of the latter for $30. Currier prosecuted an appeal to the Circuit Court, where the cause was tried, and a verdict returned in favor of Shaffer for five cents. A new trial was granted on his application. The Court then sustained a motion made by Currier, to dismiss the suit at the costs of Shaffer. The judgment for costs against Shaffer was clearly erroneous. Currier being the plaintiff", had an undoubted right to dismiss the suit, but it should have been done at his costs. If a plaintiff voluntarily abandons his case, he must be adjudged to pay the costs. He is not entitled to a judgment for costs against the defendant, until he has successfully prosecuted the action to final judgment against him. The judgment before the justice was opened by the appeal, and, as a matter of course, fell with the dismissal of the case.

The judgment for costs must be reversed, and the cause be remanded to the Circuit Court, with directions to enter a judgment against Currier for the costs of the case.

Judgment reversed.


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    Thomas Plumleigh, Appellant, v. Isaac Cook, Appellee.
    APPEAL FROM COOK.
    When in a declaration in an action against a sheriff for an escape, there is a claim for $140 damages, and $191.66 costs; there is no variance, though the evidence shows that the clerk, in his fee-bill, issued with the execution, added twelve and a half cents for the sheriff’s return.
    Where the foundation of an action is not a record or an instrument in writing, a variance is not material, unless the discrepancy is so great as to afford a strong probability, that it cannot be the record or instrument described.
    In this State, an action of debt will lie against a sheriff for an escape on a writ of capias ad Satisfaciendum.

    All statutes in aid of the common law, passed prior to 4 James 1, (except the 2d sect. of the 6th ch. 43 Eliz., the 8th ch. 13 Eliz., and 9th ch. 37 Henry 8,) which are of a general nature, and not local to Great Britain, are in full force in this State.
    In this State a party may elect to bring debt or case, against a sheriff for an escape.
    This was ail action of debt for the escape of one Alexander Dawson from the custody of the defendant Cook, while being sheriff of the county of Cook, and was tried before and sub-" mitted to H. T. Dickey, Judge, at the May term, 1851, of the Cook Circuit Court, without the intervention of a jury.
    The first count of the declaration set forth, that at the May term of the Cook County Court, 1848, the plaintiff (Plumleigh) recovered a judgment against one Alexander Dawson for $140 damages and $191.66 costs, and that afterwards, and on the 18th day of April, 1849, a ca. sa. was issued, and the said Alexander Dawson was arrested thereon on the 10th day of May, 1849, by the defendant Cook, and committed to jail, and was afterwards permitted to go at large by said defendant, Cook, while acting as sheriff of Cook county. The second count averred a different time of escape. There were also three other counts alleging different escapes. The defendant pleaded the general issue, and special pleas as to the several counts of the declaration.
    The plaintiff, in the court below, introduced Walter Kimball, the clerk of the court in which the judgment against Dawson was recovered, as a witness to sustain the issue on his part. This witness established the variance discussed in the opinion of the court.

      The judgment of the Cook County Court was for the defendant. The plaintiff in the Circuit Court brought the cause to this court by appeal, assigning for error, that there was no material variance between the judgment introduced in evidence, and the declaration, and that the court below erred in excluding the same.
    J. N. Arnold, for appellant.
    Judd and Wilson, for appellees.
   Treat, C. J.

The declaration described a judgment for $140 damages, and $191.66 costs. On the trial, the plaintiff offered in evidence the record of a judgment for $140 damages, and costs of suit to be taxed; also the fee-book in'which the costs were taxed at $191.66. At the foot of the fee-bill was this entry; “ Sheriff Cook return ex. 12-j-; ” but the amount was not carried to the right-hand side of the page, as was the case with the other items of the bill. The court rejected the evidence, because of a variance between it and the declaration. There was no variance in point of fact. The entry in question formed no part of the fee-bill. It was but a memorandum of the clerk, to be extended and included in the fee-bill when the execution should be returned by the sheriff. But if the item could be considered as embraced in the taxation of costs, the evidence was improperly excluded. It is laid down in Leidig v. Rawson, 1 Scamm. 272, and Hull v. Blaisdell, Id. 332, that where an instrument of wilting, or a record is not the foundation of the action, a variance is not material, unless the discrepancy is so great as to afford a strong probability that it cannot be the instrument or record described. This rule is decisive of the question. The escape was the foundation of the action, the judgment being but inducement. The record produced was evidently the one described in the declaration, and the defendant could not have been surprised by its admission.

It is insisted that an action of debt will not lie against a sheriff, for an escape on a writ of capias ad satisfaciendum. At common law the only remedy was by action on the case. But the statutes of Westminster 2, ch. 11, 13 Ed. 1, and 1 Rich. 2, ch. 12, gave an additional remedy by action of debt. And those statutes being in aid of the common law, are in full force in this State. ' Our statute adopts not only the common law of England, but also all statutes in aid thereof, passed prior to 4 James 1, (except the 2d sec. of the 6th ch. 43 Eliz., the 8th ch. 13 Eliz., and 9th ch. 37 Henry 8,) which are of a general nature and not local to that kingdom. Rev. St. ch. 62, § 1. Under a similar provision in Indiana, the British statutes giving the remedy by action of debt for an escape, were held to be in force in that State. Gwinn v. Hubbard, 3 Blackf. 14. Similar decisions were made in Shewel v. Fell, 3 Yeates, 17, and Steere v. Field, 2 Mason, 486. A party may elect to bring debt or case. In the action of debt, the plaintiff is entitled to recover the amount of his judgment and costs. In the action on the case, the measure of damages is the actual loss which the plaintiff has sustained. Duncan v. Klinefelter, 5 Watts, 141; Shuler v. Garrison, 5 Watts & Serg. 455.

The judgment is reversed and the cause remanded.

Judgment reversed.


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    Alexander Downey, Appellant, v. Daniel F. Smith, Appellee.
    APPEAL PROM JO DAVIESS.
    The terms of a court fixed by law, are nevertheless terms, whether there is any judge to hold the court or not.
    A declaration must be filed ten days before the second term of the court, or the defendant will be entitled to a judgment, as in case of a nonsuit; the omission to hold the court for any cause does not change this right.
    This suit was commenced in August, A. D. 1850, by a capias, on which the defendant was arrested, and released from custody by giving bail; at the October term no declaration was filed, and the cause was continued; no courts were actually held until the next August thereafter. A declaration was filed on the 31st day of July, 1851. At the next term after the filing of the decíaration, a motion was made for a judgment, as in case of nonsuit, or in other words, to dismiss the suit, because no declaration had been filed before the second term of the court, three terms having intervened between the filing of the précipe and suing out the capias and the making of the motion, although only one court had been held by the judge. The October, March, and May terms of the court intervened. It is thought the court erred in overruling the motion to dismiss the suit, three terms having intervened between the filing of the declaration and the suing out of the capias, and this is the error assigned, upon which reliance is had. Did the court err ? The reasons assigned by the court are, that no court was actually held, and therefore there was no term of court.
    The judgment appealed from was rendered by Sheldon, Judge, at November term, 1851. A writ of inquiry was awarded, thé defendant having filed a plea of the general issue, which had been withdrawn.
    Higgins & Strother, for appellant.
    T. L. Dickey and E. Leland, for appellee.
   Trumbull, J.

This was an action of trespass commenced at the October term, 1850, of the Circuit Court of Jo Daviess county. The process was served September 13,1850. No declaration was filed in the case till July 31,1851. At the August term following, three terms of the court having in the mean time intervened, though one only had been actually held, the defendant moved to dismiss the cause because no declaration had been filed before the second term of the court after the commencement of the action.

• This motion the Circuit Court denied, and its denial presents the only question in the case.

It is insisted that sect. 8 of the practice act, Rev. St. 414, does not require a suit to be dismissed at the second term for want of a declaration, unless the case has been continued at the first term at plaintiff’s cost, on motion of the defendant, for such omission.

The language of the statute is, “ If no declaration shall be filed ten days before the second term of the court, the defendant shall be entitled to a judgment as in case of a nonsuit,” and this clause has no such connection with the preceding part of the section as to limit it to cases in which the cause has been continued over the first term on motion of the defendant at plaintiff’s cost. The plaintiff surely has no reason to complain that the continuance over the first term was not granted at his cost, or on defendant’s motion. > The object of the statute is to hasten proceedings, and not allow a plaintiff to keep a defendant attending on court from term to term without apprising him of the nature of the complaint against him. The time intervening between the terms of the circuit courts, usually six months, is abundantly sufficient to afford a party an opportunity to file a statement of his cause of action, and if he will not do so in that length of time, it is but a just punishment for his neglect that his suit should be dismissed.

It is also insisted that the “ second term,” as used in the statute, means the second term which is held. Such is not a proper construction of the act. The terms of court are fixed by law, and provision is made that if the judge fail to attend “by four o’clock in the afternoon of the second day of the term, the court shall stand adjourned until the next succeeding term of the court,” and that all suits, &c., shall stand continued over until the next term as effectually as if the same had been continued by the order of the court. Rev. St. ch. 29, § 42. ,

For many purposes, as, for instance, for the suing out and return of process, the filing of declarations, &c., a time appointed by law for the holding of a court is just as much a term as if it were actually held. Must a party wait to see whether the court is actually held, before he can venture to sue out process returnable to it 1 This would involve an absurdity, for no ordinary action can be commenced returnable to a court then in session. The law requires a party to file his declaration ten days before the term of the court. He cannot at that time know whether the court will be held or not, and he has no right to wait till the time for holding the court arrives ; and then, if for any cause it is not held, make the omission to hold it an excuse for not having performed an act which the law required to be done ten days before the time when the court could have been opened.

In our view of the law, it is quite immaterial whether there was any judge to hold the court or not. The legislature having appointed terms of the court to be held in Jo Daviess county in March and May, they did not cease to be terms by the failure to provide a judge to hold them.

The judgment of the Circuit Court is reversed.

Judgment reversed.


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    Daniel J. M. Walker, Appellant, v. Oree Welch et al., Appellees.
    APPEAL FROM JO DAVIESS.
    Where it is stated in an affidavit for an attachment, that a party was removing and about to remove his property from the State, a plea in abatement averring that the defendant was not removing from the State, nor was he removing his property, does not answer the charge, that he was about to remove his property, and is therefore obnoxious to a demurrer.
    The statement in a declaration, that a note was made on a particular day, is equivalent to an allegation that it bore date on that day.
    A count for goods sold and delivered, which avers that a party promised to pay, on request, the declaration concluding with the general breach of non-payment, is good, without averring a special request.
    The opinion of the court, contains a sufficient statement of the facts of this case.
    The cause was heard before Sheldon, Judge, at November term, 1851, of the Jo Daviess Circuit Court.
    Walker brings the cause to this court, and assigns errors.
    Walker, the appellant, stood by his demurrer to the declaration, and the court proceeded to render a judgment in favor of the plaintiffs below.
    J. P. Stevens, for appellant.
    Higgins & Strother, for appellees,
   Treat, C. J.

Welch and McCully sued out an attachment against Walker. The affidavit, on which the writ issued, stated, that “ the said Walker was removing, and about to remove his property from the State of Illinois, to the injury of said Welch and McCully.” The defendant pleaded in abatement, that he was not removing from the State of Illinois; nor was he removing his property from said State of Illinois, to the injury of said plaintiffs.” The court sustained a demurrer to the plea, and that decision is assigned for error. The plea was clearly defective. Its allegations might all be strictly true, and the plaintiffs still have good cause for suing out the attachment. The important charge in the affidavit was, that the defendant was about to remove his property beyond the limits of the State, to the injury of the plaintiffs. And that fact, coupled with an existing indebtedness, constituted a sufficient foundation for the attachment. This charge was not negatived by the plea. It denied that the defendant was removing from the State. He might be an actual resident of the State, and there still be good cause for attaching his estat^. The plea alleged, in addition, that he was not removing his property from the State. That was no answer to the charge, that he was about to remove his property from the State. It might be true that he was not removing his effects, and the plaintiffs yet be entitled to the process of attachment. The plea was bad in substance, and obnoxious to the demurrer.

The'court overruled a demurrer to the declaration, and that decision is also assigned for error. The first count alleged that the defendant, “ on the 15th day of November, 1850, at Galena, in the county and State above mentioned, made his promissory note in writing, and delivered the same to the said plaintiffs, and thereby promised to pay to the order of the said plaintiffs, the sum of ¡|450.31, in seven months after the date thereof, which period had now elapsed.” It is objected to this count that it does not show when the note bore date, and consequently that it does not appear that the debt was due when the action was commenced. There is no force in the objection. The statement that the note was made on a particular day, is equivalent to an allegation that it bore date on that day. It is a reasonable intendment that the note was dated on the day it was executed. The case of Giles v. Bourne, 6 Maule & Selw. 73, is precisely in point.

The. second count averred, in substance, that the defendant was indebted to the plaintiffs in a certain sum for goods sold and delivered, in consideration whereof, he promised to pay them the same on request; and the declaration concluded with the general breach of non-payment. It is insisted, inasmuch as the promise was to pay on request, that a special request should have been alleged in the declaration. This position cannot be maintained. Mr. Chitty says: “ Where the declaration is upon a contract to pay a precedent debt, as in the case of common counts for goods sold, work and labor, money lent, &c., no request need be stated or proved. And in these instances, although the promise has been laid to pay on request, the licet scepius requisitas need not be laid or proved.” 1 Chitty’s PI. 330.

The judgment is affirmed. Judgment affirmed.