author: Trumbull, J.

text:
    George M. Chambers et al., Appellants, v. William B. Warren, Appellee.
    APPEAL FROM MORGAN.
    A party seeking evidence by a bill of discovery, is not bound by the answer to sneh an extent, that he may not controvert the correctness of it, although he cannot impeach the party answering by showing that he is unworthy of belief.
    An answer to a bill of discovery is only entitled to the same consideration as the answers of a witness called by a party; its statements may be controverted in the same way.
    If an answer to a bill of discovery is not strictly responsive, exception should be taken to it on the trial, and the tribunal which hears the case should exclude such parts of the answer as are not responsive.
    In answering a bill of discovery, the respondent has a right to state all the circumstances connected with the matter about which the discovery is sought, as well that which makes for as against him.
    The entire answer to a bill of discovery, if responsive to the call, and connected with or explanatory of it, should be received as evidence, and credit should be given or withheld as circumstances may justify.

      The discovery called for may be used or not at the option of the party who has sought it, but as a general rule, if he reads any part he must read the whole of the answer, unless it sets up matter not responsive, or is impertinent; if so, such parts should be excluded from consideration.
    This cause was remanded from the last term of this court, (see 12 Ill. p. 124,) and was again tried in the Morgan Circuit Court at the March term thereof, 1851, before Woodson, Judge, and a jury, and resulted in a verdict and judgment for the appellee. The pleadings were the same as those presented in the former report of the case.
    Previous to the last trial of the cause in the Circuit Court, the appellants filed a bill of discovery against the appellee, stating that the pending controversy grew out of a transfer of certain accounts at Saltillo, the nature of which they hoped to be able to illustrate by proof, and calling upon him for discovery as to receipt by him of $150 of said accounts, and as to $466.33 on account of, &c. The prayer of the bill was “that he be holden to answer and state, on his corporal oath, how much he hath received in the premises, when and of whom he received the same, and if he did not admit to complainant, A.° McDonald, the receipt of the aforesaid sums of,” &e.
    To this bill of discovery the appellee filed an answer, stating that he advanced A. McDonald $900, for use of which and his (appellee’s) services in collecting $150, &c., he was to have $350; that he had received $600.98 that had been appfied in a particular way; that he was entitled to interest, &c.
    This answer was objected to by appellants as more than responsive to the biE, and a motion was made in their behalf to suppress and strike out of it all excepting appeUee’s admissions as to the receipt of the moneys. The exception was disallowed and the motion overruled, which is the first error assigned in the case.
    On the trial of the cause, the following instruction was given to the jury, at the instance of the plaintiff: “ In calEng upon the plaintiff, Warren, as a witness by the bEl of discovery, the said defendants have made Warren then: witness; and, as they have read the answer of Warren as evidence to the jury, they are bound by the statements of said answer, and cannot now be permitted to discredit said testimony, but this jury is bound to take said answer of Warren as testimony.”
    D. A. Smith, for appellants,
    As for general doctrine in relation to bills of discovery, cited Story’s Eq. Plead. § 311, 319, n. 2, 321, 324; 9 Paige, 580.
    As to the foregoing instruction, cited 1 Greenl. Ev. § 443; 8 Humph. 46; 3 Litt. Rep. 378.
    To show that the exceptions to the answer should have been sustained, cited Cowen & Hill’s Notes, 3 Phil. Ev. 927; Allen v. McNew, 8 Humph. 46; Methodist Episcopal Church v. Wood, 5 Ohio, 174; 4 Scam. 546, 547; 11 Ill. Rep. 599.
    M. McConnel and W. H. Herndon, for appellee.
    You cannot except to an answer to a bill of discovery merely because it contains matters in avoidance. Insufficiency can be excepted to, and exceptions are good for impertinence or scandal. 1 Barb. Ch. Prac. 176, 178; 11 Paige, 618; 2 Dan. Ch. Prac. 246, 247; 3 Bland. 392; 4 Dana, 59.
    If this is wrong the plaintiff cannot except, because the answer is responsive to the bill. The defendants are compelled to answer more than the sifting interrogatories. The whole bill must be answered. 6 Georgia, 423; 1 Gilm. 423; 1 Kelly, 157; 1 Barb. Ch. Prac. 130; 2 Dan. Ch. Prac. 246.
    The whole of the answer must be read, and not parts. 2 Dan. Chan. Prac. 402; 3 Eng. (Ark.) 356; 8 Blackf. 35, 477; 8 Humph. 438; 10 Johns. 260; 3 Litt. 378, 379.
    The plaintiffs cannot impeach their own witness. 1 Greenl. Ev. § 351, 442.
   Trumbull, J.

The second instruction given to the jury on behalf of the appellee was clearly erroneous.

It assumes that the appellants were bound by, and could not be permitted to discredit, the answer of the appellee to the bill of discovery by them filed. The language of the instruction was well calculated to mislead the jury by creating the impression that the testimony of the appellee, as contained in his answer, was binding upon the appellants, even if inconsistent with the established facts in the case.

It is true, that, after reading the answer to the jury, the appellants were not at liberty to discredit it by impeaching the general reputation of the appellee for truth; for the reason that a party is not permitted to show that his own witness is unworthy of belief; but he may always controvert the correctness of the statements made by his own witness by the introduction of other evidence, and in that way discredit his testimony.

An answer to a bill of discovery is entitled to no higher consideration than the answers of a party’s own witness upon the stand, and may be controverted in the same way. Story’s Eq. Plead. § 319, n. 3; Nourse v. Gregory, 3 Litt. 379; McNutt v. Dare, 8 Blackf. 35; Williams v. Wann, Id. 177; March v. Davison, 9 Paige, 580.

An exception was taken to the answer of the appellee as being more than responsive to the bill, and a preliminary question has been raised as to the right to make such an objection when the answer is offered as evidence in the case at law. Unless there is some fixed rule of practice which requires exceptions to answers to bills of discovery to be made and disposed of before the chancellor, there would be a manifest propriety, particularly under our system of jurisprudence, where the same person acts both as chancellor and judge of the common-law court, in allowing the exceptions to be settled on the trial of the action at law. A court of chancery would certainly seem to be the proper forum to dispose of exceptions to answers in chancery, but the inconvenience of confining objections to answers to bills for discovery to the chancery side of the court is very great. If questions of this character can only be settled by the chancellor, it follows that either party may appeal from his decision, and the action at law must await the final determination of the appeal.

By allowing the exceptions to be disposed of in the court of law, much delay and inconvenience may be avoided. The question is one of practice merely, involving no principle whatever, since the same person at the same term presides in both courts.

The object of a bill of discovery is to make a witness of a person not otherwise competent, and there is no reason why a court of law, when the bill and answer are offered in evidence, may not determine upon the propriety of the answers of such a witness to a bill of discovéry, as well as upon any other evidence offered in the case.

It is said by the chancellor, in the case of Price v. Tyson, 3 Bland’s Ch. Rep. 409, “ as to the relevancy, legality and competency of any testimony brought out by a bill of discovery, it does not belong to this court to decide; because such questions can only be determined with propriety, by the court of common law for whose use the discovery has been required.”

The practice of allowing exceptions to answers to bills of discovery to be settled on the trial of the action at law prevails in several States. Conway v. Turner, 3 Eng. (Ark.) Rep. 356; Methodist Episcopal Church v. Wood, 5 Ohio, 174; Glascock v. Hays, 4 Dana, 58.

We shall therefore hold, that the appellants, before reading the answer on the trial at law, had a right to call upon the court to strike out or exclude from the jury such parts as were not responsive to the bill, or in any manner connected with, or explanatory of it.

We proceed now to inquire whether the court erred in refusing to sustain the exception.

The respondent, in answer to a bill of discovery, has a right to state all the circumstances respecting the matter about which the discovery is sought, as well that which makes for, as that which makes against him. “A complainant, in a bill of discovery, is not entitled to call for the discovery of a mere isolated fact, in aid of his defence, and to deprive his adversary of the benefit of a full answer, showing that in reality no valid defence to the action at law exists.” Jewett v. Belden, 11 Paige, 618; Glascock v. Hays, 4 Dana, 58; Price v. Tyson, before cited. As a matter of pleading a party has the right to make as full an answer to a bill of discovery, as if it were a bill for relief also, but how far the answer shall be considered as evidence in favor of the party malting it, is another question. In bills for relief, the answer is evidence for the defendant only so far as it is responsive to the bill; and there is some confusion in the authorities as to how far an affirmative fact in the answer shall be received as evidence to discharge a defendant from a liability which he has admitted in response to the bill; but whatever the rule may be in reference to answers to bills praying relief as well as discovery, we apprehend, that the rule in reference to an answer to a bill of discovery merely is, that all which it contains responsive to the call for discovery, or connected with or explanatory of it, should be received as evidence, the court or jury being at liberty to give credit to so much of the answer only as, from all the circumstances of the case, they believe to be true. The party calling for the discovery is not bound to read the answer on the trial at law; and if he declines to do so, his adversary will not be permitted to use it as evidence; but if the party having the right to use the answer offer it in evidence, he is, as a general rule, bound to read the whole of it. If the answer, however, sets up matter not responsive to the call of the bill, or in anywise connected with or explanatory of it, or which is impertinent, such parts ought to be excluded from the consideration of the court or jury. These positions will be found to be sustained by the case of the Methodist Episcopal Church v. Wood, 5 Ham. 283, and the other cases already referred to.

Testing the answer of the appellee by the principles here laid down, and it is very clear that the Circuit Court properly overruled the exceptibn to it. The answer, if not directly responsive to the calls of the bill, is certainly connected with and explanatory of them, and was therefore properly admitted in evidence to the jury, subject to the qualification already mentioned, of being believed only so far as the jury, from all the circumstances of the case, thought it to be true.

The judgment of the circuit court is reversed and the cause remanded.

Judgment reversed.


source: Caselaw Access Project

author: Treat, C. J.

license: Public Domain

text:
    George W. Ishmael et al., Plaintiffs in Error, v. Alexander Parker, Defendant in Error.
    ERROR TO BROWN.
    A creditor must first obtain a judgment, and seek to collect his debt by execution, before he can resort to the equitable estate of his debtor.
    A party holding title to land which he has promised to convey, is not bound to convey, or part with his security therein, until the purchase-money is paid.
    This bill alleges, that Joseph Walker, being seized of lot 17, block 5, in Curry & Hurlbut’s addition to Mount Sterling, sold the same,, and delivered the possession thereof to George W. Ishmael, for $150, and gave Ishmael a bond to convey, on payment of purchase-money. That Ishmael then paid Walker $60 and gave his note for the balance, payable October 1,1850. That Ishmael, May 31,1850, sold and delivered possession of said lotto complainants for $162.50, $50 paid down and note for $112.50, payable October 1, 1850. Ishmael gave Parker a bond to convey on payment of the note of $112.50. That on December 2,1850, complainant paid Ishmael the note. That on October 31, 1850, Ishmael being seized of lots 10, 11,12, 13, and 14, block 3, Curry & Hurlbut’s addition to Mount Sterling, and being indebted to divers persons in divers large sums of money, and the lots aforesaid being all the property in possession of Ishmael subject to execution, for the purpose of defrauding complainant, Walker, and said divers other creditors, made, executed and delivered to William Stableton, a deed, duly executed and recorded, of said last-mentioned lots, for the feigned consideration of $400. Charges there was no consideration, and made to defraud creditors, &c. That Stableton, on same day reconveyed, by deed duly acknowledged, the same premises to Ishmael, and the latter, for the purpose of cheating, &c., neglected to put the deed of conveyance upon record; that Ishmael has been in possession all the time and received the rents and profits, &c.; that said deed of reconveyance is now in Ishmael’s possession; prays for the production of the deed on hearing. That during all this time Ishmael had no personal property, and no real property other than the lots aforesaid; that on October 2, 1851, Walker executed a deed of lot 17, of Block 5, as an escrow to be delivered to Ishmael on the payment of the balance of the purchase-money aforesaid; that Ishmael refused to pay the balance of said purchase-money, and refused to cause the title to said lot to be conveyed to complainant; charges combination between Walker and Ishmael, and refusal to make complainant a title, &e.; that Ishmael refuses to pay the purchase-money to Walker, in consideration, &c., pray, that said confederates may answer, &c.; that deed from Ishmael to Stableton may be set aside as fraudulent; that said lots 10,11,12,13, and 14, may be sold to satisfy Walker’s debts, &c.; that Walker may be decreed to convey lot 17 to complainant, and for general relief.
    A decree was entered, by Minshall, Judge, at October term, 1851, of the Brown Circuit Court, by which Walker was ordered to convey to Parker lot number seventeen; that deed from Ishmael to Stableton be set aside as fraudulent and void; that lots ten, eleven, twelve, thirteen, and fourteen, be made liable to the payment of the balance due upon the note given by Ishmael to Walker, in default of which those lots were to be sold to satisfy that balance, and that the note be delivered up; and a commissioner was appointed to carry the decree into effect.
    Ishmael and Walker bring the cause to this court by writ of error.
    R. S. Blackwell, for plaintiffs in error.
    A purchaser from a vendee, upon the payment of the purchase-money, may enforce a specific performance against the original vendor, of an agreement to convey. 2 Story, Eq. § 788, 789.
    But the vendor will not be decreed to convey until the purchase-money is paid, unless the vendor has waived his lien. Greenup v. Strong, 1 Bibb, R. 590.
    Parker, upon his purchase from Ishmael, became a trustee for the vendor, and in equity was bound to pay the money due upon the contract between Walker and Ishmael. He has no right to compel Walker to convey, part with his security, and receive as a substitute for his lien upon the land, the personal duty imposed by the decree upon Ishmael. 2 Story, Eq. § 789.
    The bill is not defective in averring the payments of the purchase-money by Parker to Walker, or at least an offer to pay. Performance, or an offer of performance on his part, is a condition precedent to his right to a specific performance. Doyle v. Teas, 4 Scam. R. 203.
    The bill is multifarious. It prays a specific performance of a contract against one defendant, and to set aside a fraudulent conveyance as to another; and no connection or combination shown between the several defendants. Story, Eq. Pl. § 271; Cooper, Eq. Pl. 183.
    The bill does not show that the complainant is a creditor of Ishmael, whereby he has a right to interfere and have the deed to Stableton set aside as fraudulent. Nor does he show a judgment at law, and an effort to collect the money by execution. Stone v. Manning, 25 Scam. R. 531.
    Upon the face of the bill it appears that complainant and Walker have an adequate remedy at law. It alleges that Stable-ton on the same day of the execution of the fraudulent deed, reconveyed to Ishmael. Stableton should have been made a party to the bill. Beeler v. Pope, 4 Bibb, R. 26.
    The court had no power to enter up the decree in vacation, unless by consent of parties. The rendition of the decree was a judicial act, and should have been entered in term time.
    J. S. Bailey, for defendant in error.
    In order to increase the necessity of making a person a party to a bill in chancery, it must appear from the face of the record “that the party omitted, did, at the rendition of the decree, possess a subsisting interest in the subject-matter in litigation.” 3 Paige, 222; 2 Paige, 278; 4 Paige, 510; 11 Ill. 256.
    Objections in this court, for want of parties, come too late, unless the party omitted possesses such an interest in the subject-matter of the writ, that the court cannot render a decree therein, without materially affecting those rights. 1 Gilman, 646.
    A person having conveyed all his interest in the land in dispute, before the filing of the bill, does not possess such an

      After a decree pro confesso, the bill must be taken as proved. 3 Gil. 547.
    It is not error to sign a decree in vacation, when rendered in term, and ordered to be filed as of the term. 7 Paige, 245.
   Treat, C. J.

This was a suit in chancery, brought by Alexander Parker against George W. Ishmael and Joseph Walker. The bill alleges that, on the 20th of May, 1850, Walker sold to Ishmael a lot in the town of Mount Sterling, and put him in possession thereof, for the consideration of $150 ; that Ishmael paid $60 in cash, and gave Walker a note for the balance, payable on the first of October thereafter, and Walker executed a bond to Ishmael, conditioned for the conveyance of the lot on the payment of the note; that, on the 31st of May, 1850, Ishmael sold the same lot to complainant, and delivered possession thereof, for the price of $162.50 ; that complainant paid $60 in hand, and gave Ishmael a note for the balance, payable on the 1st of October following, and received from Ishmael a bond for the conveyance of the lot on the payment of the note, which was fully paid on the 2d of December, 1850; that on the 31st of October, 1850, Ishmael, for a feigned consideration, conveyed five other town lots to William Stableton, for the purpose of defrauding the complainant, Walker, and his other creditors; and Stableton, on the same day, reconveyed the same lots to Ishmael, but the latter withholds the deed from record; that Ishmael has no personal property, and no other real estate than the five lots; that on the 2d of October, 1850, Walker made a deed to Ishmael for the lot, to be delivered on the payment of the balance of the purchase-money, but Ishmael wholly refuses to pay the same, and cause the title to be made to the complainant. The bill prays that the deed to Stableton may be set aside ; that the five lots be sold, to pay the amount due to Walker; and that Walker be required to convey the lot to the complainant. The bill was taken for confessed, and a decree entered, that Walker convey the lot to the complainant; that the deed to Stableton be set aside, and the five lots sold, to pay the amount due to Walker, and the costs of the suit.

That portion of the decree which sets aside the deed to Stableton as fraudulent, and directs a sale of the five lots to pay the amount due to Walker, cannot for a moment be sustained. The complainant is not in a position to assail that conveyance, or to insist that those lots shall be held subject to the payment of the purchase-money due on the other lot. A creditor must obtain a judgment on his debt, and endeavor to coerce payment by execution, before he can go into equity to procure satisfaction out of property that cannot be reached on execution. He must exhaust his legal remedies without success, before he can resort to the equitable estate of his debtor. Until that is done, it does not appear but that he has an ample remedy at law. And a creditor may, after obtaining judgment against-his debtor, without first suing out an execution, ask the aid of a court of equity, to remove an obstacle in the way of its collection by execution. These principles are too well established to require discussion, or the reference to authorities to support them. The complainant must procure a judgment against Ishmael, before he can call in question the validity of the deed to Stableton; and Walker is in no better situation. He must recover judgment on his note, before he can attack the deed as fraudulent.

That part of the decree which requires Walker to convey to the complainant, is equally erroneous. Walker is not bound to convey the lot, until the note is fully paid. He retained the title to secure the payment of the purchase-money. He cannot be compelled to part with the security, until the debt is discharged. His covenant is not broken, so long as the note remains unpaid.

It may be that the complainant, upon full payment of the purchase-money to Walker, may enforce a specific execution of his agreement to convey. But in order to compel a conveyance from Walker to himself, he must first fully pay the note to Walker, or tender payment thereof. He must fully perform the agreement on the part of Ishmael, if he is to succeed to his rights as against Walker. And it may be, if he pays the balance due to Walker, that he will succeed to the rights of Walker as against Ishmael, and be entitled to a decree against the latter, for the amount advanced to Walker to obtain the title.

The decree is reversed, and the cause remanded, with leave to the complainant to- amend his bill. Decree reversed.


text:
    Nathan P. Sanford, Appellant, v. John V. Gaddis, Appellee.
    APPEAL PROM FULTON.
    Where there are several counts in a declaration, and the defendant demurs to the whole declaration and to “ each count thereof,” his demurrer will be regarded' as separate to each count, and may be sustained to such of the counts as are bad, and overruled as to the good counts. .
    WTiere a declaration for slander, in charging the plaintiff with having “ sworn falsely ” on the trial of a cause before a justice of the peace, contains the averment, that 11 the said justice then and there had jurisdiction ” of the action, it is sufficient without setting forth the facts which gave the jurisdiction.
    Nor is it necessary to aver in such declaration, that the justice had authority to administer the oath to the plaintiff.
    Where the preliminary oath is waived, and, by consent, the opposite party is sworn as a witness upon the trial of a cause before a justice of the peace, if the party swears falsely, perjury may be assigned upon such oath; it is actionable slander to say of such party that he swore falsely upon said trial, and it is not necessary to aver in a declaration for the slander, that the preliminary oath was made before the party was sworn as a witness.
    The words “ he perjured himself,” impute to the plaintiff the commission of a felony, and are actionable per se without colloquium or inducement; but the pleader, by an innuendo, alleging that the defendant meant thereby that the plaintiff had “ sworn falsely,” restrains and limits the obvious meaning of the words.
    Words, which, in their common acceptation, amount to a charge of having sworn falsely, are actionable, whether spoken of and concerning a judicial proceeding or not. They are none the less so, because the pleader in his inducement avers that they were spoken in a conversation concerning such a proceeding.
    It is not necessary that the words spoken in a conversation concerning a judicial proceeding, should have been uttered under such circumstances as to impute the crime of perjury.
    The act declaring what words are actionable, is a public law, of which the court is bound to take notice, and in declaring for the slander, the statute need not be recited or referred to.
    Where the declaration for slander under the statute is general, charging the defendant with having said of the plaintiff, “he swore falsely,” without reference to any judicial or other proceeding, in which an oath could have been lawfully administered, a plea of justification, pointing the plaintiff to the time, place, and occasion of his false swearing, and alleging the truth of the words spoken, will be good.
    If the charge be of having sworn falsely in a judicial proceeding, without the necessary averments to make the slander amount to an imputation of perjury, then a plea of justification, that the plaintiff did swear falsely in the particular proceeding, would be sufficient.
    But if the declaration be so framed-, as to show that the defendant, by the slanderous words, intended to impute perjury to the plaintiff in a particular case, the defendant can only justify having made such a charge by showing that the plaintiff committed perjury in the case alluded to. •

      A justification must, in all cases, lie coextensive with the slander, and need not go further.
    This is an action on the case for slander. The declaration contained seven counts. A demurrer was interposed, in the court below, to the whole of the counts, and sustained to the first, fifth, and seventh counts, and overruled as to the others. The plaintiff then entered a nolle prosequi to all the counts except the first, fifth, and seventh. The demurrer was in the following form: “And the said defendant comes and defends the wrong and injury when, &c., and says that the said several counts of the said declaration, and the matters and things therein contained, in manner and form as the same are before pleaded and set forth, are not sufficient in law, nor are either of said counts of said declaration sufficient in law for the said plaintiff to have and maintain his aforesaid action thereof against him the said defendant, and that he is not bound by the law of the land, &c.”
    The following are copies of the first, fifth, and seventh counts of the declaration: —
    “ And whereas, also, before the commitment of the several grievances by the said defendant, as in the first and fifth counts hereinafter mentioned, a certain action had been depending before one David M. Wycoff, Esquire, a justice of the peace within and for the county of Fulton and State of Illinois aforesaid, of which said action the said justice had then and there jurisdiction, to wit, at Fairview, in said county, wherein the defendant in this suit was plaintiff, and the plaintiff in this suit was defendant, and which said action had then and there been lately tiled by the said David M. Wycoff, justice of the peace as aforesaid, and on said trial the said plaintiff in this suit had been and was examined on oath (he, the said defendant in this action, then and there, before said oath was administered, having waived any preliminary oath, and having consented that the said plaintiff in this action should be examined on oath, and testify in said cause,) in a matter material to the issue in said trial, and' having given his evidence as a witness, (as by the laws of this State he had a right to do,) to wit, at Fairview, to wit, at the county and State aforesaid, yet the said defendant, well knowing the premises, but greatly envying the happy state and condition of the said plaintiff, and contriving, and wickedly and maliciously intending to injure the said plaintiff in his good name, fame, and credit, and to bring him into public scandal, infamy, and disgrace, with and amongst all his neighbors, and other good and worthy citizens of this State, and cause it to be suspected and believed by those neighbors and citizens that he, the said plaintiff, had been and was guilty of the offences and misconduct hereinafter mentioned to have been charged upon and imputed to the said plaintiff, or any other such offences or misconduct, and to subject him to the pains and penalties by the laws of this State made and provided against and inflicted upon persons guilty thereof, and to vex, harass, oppress, impoverish, and wholly ruin him the said plaintiff, heretofore, to wit, on the tenth day of February, A. D. 1850, at Fairview, to wit, at the county and State aforesaid, in a certain discourse which he the said defendant then and there had with the said plaintiff, of and concerning the said plaintiff, and of and concerning the said action, and of and concerning the evidence of him the said plaintiff, given on the said trial, as such witness as aforesaid, in the presence and hearing of divers good and worthy citizens of this State, then and-there in the presence and hearing of the said last-mentioned citizens, falsely and maliciously spoke and published to, and of and concerning the said plaintiff, and of and concerning the said action, and of and concerning the evidence by him the said plaintiff given on the said trial as such witness as aforesaid, these false, scandalous, malicious, and defamatory words following, that is to say:
    “ ‘ You (meaning the said plaintiff) swore false,’ (meaning that he, the said plaintiff, in giving his evidence as such witness, on the said trial, before said justice of the peace as aforesaid, had committed wilful and corrupt perjury.)
    “ And afterwards, to wit, on the fifteenth day of February, 1850, to wit, at the county and State aforesaid, in a certain other discourse which the said defendant then and there had with Simon P. Pumyea, and divers good and worthy citizens and friends and neighbors of him the said plaintiff then and there present, and in hearing of the same, falsely and maliciously spoke and published of and concerning the said plaintiff, and of and concerning the said action, and of and concerning the evidence by him the said plaintiff given on the said trial, as such witness as aforesaid, before the said David M. Wycoff, Esquire, justice of the peace as aforesaid, these other false, scandalous, and malicious and defamatory words following, that is to say: ■1 He (meaning the said plaintiff) swore a lie.’ 1 He (meaning the said plaintiff) perjured himself.’ ‘ He (meaning the said plaintiff) swore false.’ (Meaning that he the said plaintiff, in giving his evidence as such witness, on the said trial, before the said David M. Wyckoff, Esquire, justice of .the peace as aforesaid, had sworn falsely.)
    “ Also for that, whereas, heretofore, to wit, at Fairview, in the county of Fulton aforesaid, and before the speaking of the words in this count mentioned, a certain action had been depending and was tried before one David M. Wycoff, a justice of the peace in and for said county, who had jurisdiction of the said action, in which the said John V. D. Gaddis was plaintiff, and the said Nathan P. Sanford was defendant, in which said action, on the trial thereof, the said Nathan P. Sanford was sworn as a witness, and then and there gave evidence and testified in a matter material to the issue in said action. Yet the said defendant, well knowing the premises, but contriving to injure and ruin the said plaintiff in his reputation and good name,' heretofore, to wit, on the tenth day of February, A. D. 1850, at and within the said county, and in the presence of divers citizens, falsely and maliciously spoke and published of and concerning the said plaintiff, and of and concerning the said action, and of and concerning the said evidence by him the said plaintiff given on the said trial, as such witness as aforesaid, these other false, scandalous, malicious, and defamatory words, that is to say: £ He (meaning the said plaintiff) swore a lie.’ £ He (meaning the said plaintiff) swore false.’ 1 He (meaning the said plaintiff) perjured himself,’ meaning that the said plaintiff, in giving his evidence as such witness, on the trial of said action, before the said David M. Wycoff, justice of the peace as aforesaid, had been guilty of swearing falsely, and which said words, in their common acceptation, do amount to such charge, viz., that said plaintiff had sworn falsely on said trial.”
    The decision in the Circuit Court of Fulton county, upon the demurrer, was made at September term, 1850, Kellogg, J. presiding.
    H. M. Wead, for the defendant.
    I. It is contended by the appellee, that the declaration is bad. The demurrer is general, and if either count is good it must be overruled. For that reason, also, the court erred in sustaining the demurrer to any part of the declaration.
    Two objections will be made to the first count. 1st. That it does not show that the necessary preliminary steps were taken before the justice by the plaintiff, to entitle him to be sworn; and, —
    2d. That the jurisdiction of the justice, and his right to administer the oath, are not sufficiently set forth.
    Neither of these objections can be sustained.
    1st. Of his right to be sworn.
    In a trial before a justice of the peace, if the plaintiff offer himself as a witness, and testify falsely, perjury may be assigned on his oath, though he were an incompetent witness, provided the justice had jurisdiction of the subject-matter. Montgomery v. State, 10 Ohio Rep. 220; Sharp v. Wilhite, 2 Humph. Rep. 434; Haley v. McPherson, 3 Id. 104; State v. Keene, 26 Maine Rep. 33; Henry v. Hamilton, 7 Blackf. 506.
    2d. The jurisdiction of the justice, and his right to administer the oath, are sufficiently set forth. The words of the declaration are, “ of which said action said justice then and there had jurisdiction.”
    This is sufficient even in an indictment for perjury. Roscoe’s Crim. Ev. 757; Rev. Stat. 166, sec. 84; People v. Phelps, 5 Wend. Rep. 10; State v. Ludlow, 2 South. N. J. Rep. 772.
    A declaration in slander, for charging a plaintiff with “ swearing a lie,” as a witness on a trial in a justice’s court, is good, though it is not stated that the justice had jurisdiction, or that the testimony was material. Butterfield v. Buffum, 9 N. H. 156; Niven v. Munn, 13 Johns. Rep. 48; Dalrymple v. Lofton, 2 McMullan’s S. C. Rep. 116; Wilson v. Harding, 2 Blackf. 241; Crookshank v. Gray et ux. 20 Johns. Rep. 344.
    The words (referring to the right of three justices to try a cause) “ they having full power and complete authority to administer the same,” were held to be a 'sufficient averment of jurisdiction. Chapman v. Smith, 13 Johns. Rep. 78.
    The same certainty is not requisite as in an indictment for perjury. Miller v. Miller, 8 Johns. Rep. 74. See Forms in Slander.
    II. The words charged in the 5th and 7th counts are actionable per se, without inducement or colloquium. Jacobs v. Fyler, 3 Hill, 572; Rev. Stat. p. 521, § 2; Stone v. Hill, 21 Pick. 51.
    Browning and Busi-well, for appellee.
    The words laid are charged to have been spoken in a conversation of and concerning a trial which had been had before a justice of the peace. The words charged in the first count are, “ You swore false.” Innuendo, that he had committed wilful and corrupt perjury.
    To make this count good, it should have been shown, that the justice who tried the cause had jurisdiction thereof. This is an inferior court, and no presumption is indulged in favor of its jurisdiction. The nature of the action pending, and the amount in controversy, should both have been shown.
    It is not sufficient, therefore, to aver generally that it had jurisdiction, where the gist of the action or defence depends upon its proceedings. The pleader must aver and set forth such facts as will show upon the record that it had jurisdiction. Wheeler v. Raymond, 8 Cow. 314; Borden v. Fitch, 15 Johns. 141; Bloom v. Burdick, 1 Hill, 139; Swigert et al. v. Harber et al. 4 Scam. 371.
    Now, if the justice who tried the cause mentioned in the colloquium had no jurisdiction, the proceedings before him were void, and the action cannot be maintained; and the declaration not showing the jurisdiction, this court will not presume it.

      It should, at all events, have been alleged, that the plaintiff, upon the trial of the cause, had been duly sworn, and that the justice of the peace then and there had competent and lawful authority to administer such oath. 2 Chit. Plead. 637.
    The declaration must allege all the circumstances necessary to be adduced in evidence in support of the action. 1 Chit. Plead. 285; Bullock v. Koon, 9 Cow. 31.
    Here, the action could not have been sustained without proof that the justice had jurisdiction, and lawful and competent authority to administer the oath. Chapman v. Smith, 13 Johns. 78.
    And where the proceeding is before an inferior tribunal, the court will not take notice of either of these facts, but they must be averred and proved. 1 Chit. Plead. 251, 252, 253.
    And where a party shows upon the face of his declaration that he has no cause of action, a demurrer will be sustained.
    The declaration, to be good, should contain an averment of the same facts, relative to the court, the administration of the oath, and the evidence given, which would be necessary in an indictment against Sanford for perjury. It is very clear that, upon the allegations in the seventh count, an indictment could not be sustained. Bullock v. Koon, 9 Cow. 31.
    It was not a voluntary oath, administered without lawful authority, and a mere voluntary oath will not constitute perjury. Ross v. Rouse, 1 Wend. 476; Martin v. Melton, 4 Bibb, 99.
    In the first and fifth counts, there is an attempt made to bring the case within the exception of the statute to the general rule, that a person cannot be called as a witness in a cause in which he is a party. This is done by the statement, in parenthesis, in the first count of the declaration. “ He, the said defendant in this action, then and there, before said oath was administered, having waived any preliminary oath, and having consented that the said plaintiff in this action should be examined on oath, and testify in said cause.”
    The exception is introduced by the 39th section of the law in relation to justices of the peace, (Rev. Code, 320,) is in derogation of the common law, and must be construed to embrace only such cases as are within’ both the letter and spirit of its provisions.

      Such is the decision of this court, in the case of Pickering vMisner, 11 Ill. Rep. 599.
    Neither the justice of the peace nor the parties have a dispensing power, which will enable them to waive the preliminary oath required by the statute. Before the justice can receive a party as a witness, the preliminary oath must be administered, and the adverse party must refuse to be sworn and testify; and if, before this is done, he receives a party as a witness in the cause, and permits him to testify, he acts without authority. The oath he administers is a nullity, and imposes no such obligation as will subject the witness to the pains and penalties of perjury. Could an indictment for perjury be sustained against Sanford upon the aEegation in this declaration ? Clearly not; and, if not, neither can this action, for the declaration itself shows that no perjury could have been committed. Bloss v. Toby, 2 Pick. 328, 329.
    If the fifth and seventh counts were intended to be upon the statute, they should have concluded, contrary to the form of the statute, &c. The omission of these words would have been cured by verdict, but is fatal on demurrer. Wilcox v. Webb and wife, 1 Blackf. 258.
   Trumbull, J.

The Circuit Court sustained demurrers to the first, fifth, and seventh counts of plaintiff’s declaration; whereupon he dismissed the other counts, and judgment was entered against him for costs. The sustaining of the demurrer to the counts named is assigned for error.

It has been contended that, if either count of the declaration was good, the demurrer should have been overruled. Such would be the case if the demurrer were general to the whole declaration; but it is to each count of the declaration, and alleges that neither is sufficient in law.

Had separate demurrers been written out to each count, it cannot be denied that some of them might have been sustained and others overruled, as the counts, on examination, were found to be either good or bad. Why, then, should not one general demurrer, made several to each of the counts, be treated in the same way? We regard it as a commendable practice, to avoid incumbering the record with useless papers, and can see no good reason why a party should not be permitted to make his demurrer several to each count, without writing out as many formal separate demurrers as there are counts in the declaration.

The objections taken to the first count are, that it does not show that the justice of the peace had jurisdiction of the case in which the plaintiff was sworn as a witness, or that he was duly sworn.

That count contains this averment, in reference to the jurisdiction of the justice : “ Of which said action the said justice, then and there, had jurisdiction; ” and this, we think, was sufficient, without setting forth the facts which gave the jurisdiction.

The gist of the action is the speaking of the slanderous words; not the proceedings before the justice of the peace, which are only referred to incidentally, for the purpose of showing the application and meaning of the words used. In such a case, it is not necessary to set forth the facts which give the justice jurisdiction with the same particularity as in cases founded directly upon the judgment, or some other proceeding of the justice.

It was wholly unnecessary to aver, that the justice had authority to administer the oath. This necessarily follows, from his authority to try the case. The jurisdiction of the justice to try the cause being once shown, the court will intend that he had the power to proceed in the ordinary mode to a final disposition of the case without a special averment, in reference to each step in its progress, that he had authority to take it.

It has been objected, that the first count shows that the plaintiff was a party, and, therefore, an incompetent witness in the case wherein he gave his evidence; or, at least, that he was a voluntary witness; and, in either event, it is insisted that he would not be guilty of perjury in swearing falsely. Consequently, that the charge set forth in that count does not amount to an imputation of that crime.

We are not prepared to admit, that an incompetent or interested witness may not be guilty of perjury in testifying falsely. The authorities to which reference has been made would seem to establish the converse of this proposition as the law, and that an erroneous opinion of a judge or justice as to the competency of a witness, would not give him license, if improperly admitted, to disregard the truth and set at defiance both the laws of God and man. But, whether this be so or not, it does not follow because a person is a party to an action before a justice of the peace, that he is therefore an incompetent witness. So far from it, the statute expressly authorizes either party to prove his claim or set-off, if he has no other witness, by his own or the oath of the adverse party, whenever he will make oath that he has no other means of establishing it. Rev. St. ch. 59, § 39.

It appears that the plaintiff, who was defendant in the action before the justice, was sworn as a witness by consent of the present defendant and then plaintiff, who waived the making of the preliminary oath. A party is not bound to avail himself of a privilege which the law gives him, but may always waive it and admit a fact, when he alone is to be affected by the admission, and there is nothing in the policy of the law to forbid it. Had the preliminary oath been made, and the defendant declined to testify, the plaintiff’s right to be sworn would have been unquestionable. It is not, therefore, against the policy of the law to allow a party to become a witness under certain circumstances; but the existence of those circumstances is a matter in which the parties to be affected thereby are alone interested, and can consequently admit.

The evidence of a party before a justice of the peace is always voluntary. The privilege of becoming a witness is first extended to the adverse party, and if he declines to be sworn, the party seeking the evidence is then permitted to testify; but neither is compelled to give evidence; and yet it would hardly be insisted that a party, after consenting to testify under such circumstances, could not be convicted of perjury for swearing falsely.

The fifth and seventh counts each charge the defendant with having spoke of the plaintiff, among other words, the following: “ He perjured himself.” These words of themselves impute to the plaintiff the commission of a felony, and are actionable per se without colloquium or inducement. But the plaintiff has thought proper to limit and restrain the obvious meaning of the words by an innuendo alleging that the defendant meant thereby, that the plaintiff had sworn falsely. Every false swearing, even in a judicial proceeding, does not constitute perjury; and it is clear from the innuendo that the plaintiff did not design, in these two counts, to charge upon the defendant, in the speaking of the above words, an intention to impute to him the crime of perjury. These counts are, however, good under the statute, which declares, “ It shall be deemed slander, and shall be actionable, to charge any person with swearing falsely, or with having sworn falsely, or for using, uttering, or publishing words of, to, or concerning any person, which in their common acceptation amount to such charge, whether the words be spoken in conversation of and concerning a judicial proceeding, or not.” Rev. St. ch. 101, § 2.

In addition to the words before quoted, the fifth and seventh counts each contain words which, in their common acceptation, amount to a charge, of having sworn falsely, and each has an inducement showing that the words were spoken in a conversation concerning a judicial proceeding. If not spoken in reference to such a proceeding, they would still be actionable, and they are none the less so for having been spoken in that connection. It is not necessary that the words spoken in a conversation concerning a judicial proceeding should have been uttered under such circumstances as to impute the crime of perjury; if it were, the statute would present the strange anomaly of making actionable words charging a person generally .with having sworn falsely, while the same charge, if made against a person in conversation concerning his evidence in a judicial proceeding, would be no slander, unless it turned out upon investigation, that the false swearing was upon a point material to the issue. Such a construction would be in the very teeth of the statute, which makes it actionable to charge a person with swearing falsely, whether the words be spoken in a conversation concerning “ a judicial proceeding, or not.”

It is immaterial whether the counts under consideration show that the plaintiff was a competent witness and duly sworn, or not. They clearly do show that the defendant charged the plaintiff with having sworn falsely in a judicial proceeding, and this is sufficient under the statute. It has been suggested, that in a plea of justification to these counts the defendant will be compelled to show that the plaintiff swore falsely under such circumstances as to make him guilty of perjury. Such is not the case, for the reason that the charge, as alleged in these counts, does not impute to the plaintiff that crime. The defence must be as extensive as the slander, and need be no broader. If the averment in a declaration be general, charging the defendant with having said of the plaintiff that he had sworn falsely, without reference to any judicial or other proceeding in which an oath could have been lawfully administered, a plea of justification pointing the plaintiff to • the time, place, and occasion of his false swearing, and alleging the truth of the words spoken, would be good. If the charge be of having sworn falsely in a judicial proceeding, without the necessary averments to make the slander amount to an imputation of perjury, then a plea of justification that the plaintiff did swear falsely in the particular proceeding would be sufficient; but if the declaration be so framed as to show that the defendant, by the slanderous words, intended to impute perjury to the plaintiff in a particular case, the defendant can only justify having made such a charge by showing that the plaintiff committed perjury in the case alluded to. The justification must in all cases be coextensive with the slander, and need not go farther.

It has been objected, that the fifth and seventh counts do not profess to have been framed under the statute, and that they cannot, therefore, be aided by it. The act declaring what words shall be actionable is a public law, of which the courts are bound to take notice without a special reference thereto. It is not like a statute imposing a penalty, in declaring for which it is necessary to allege that the act complained of was done contrary to the form of the statute, but may be likened to an action of replevin in a case not authorized at the common law; and who ever supposed it necessary to aver in a declaration in such a case, that the injury complained of was contrary to the form of the statute in such case made and provided ? The necessity for such an averment in a declaration is confined to actions upon penal statutes, and cannot with propriety be extended to a case like the present. Reed v. Northfield, 13 Pick. 99. We are of opinion that the first count to which the demurrer was sustained is good at the common law, and that the fifth and seventh are good under the statute.

The judgment is reversed, and the cause remanded.

Judgment reversed.


text:
    John Martin, Plaintiff in Error, v. The People of the State of Illinois, Defendants in Error.
    ERROR TO BROWN.
    Instructions not excepted to cannot be assigned for error. Exception should be taken to the decisions of the court in giving or refusing instructions at the time.
    An instruction must be understood, in reference to the state of case before the court, when it is given.
    When, in giving instructions, the existence of certain facts is assumed, about which the parties are agreed, neither party can afterwards make the assumption ground of objection.
    The statute authorizing the refusal to grant new trials to be assigned for error, has noapplieation to criminal cases.
    On the trial of a party indicted for obstructing a highway, if he introduces proof to show that the highway in question was not a legal one, it would not be error to instruct the jury, that the supervisor, having ordered the defendant to open the road and remove the obstruction, was competent evidence, tending to prove that the high- ■ way had not been abandoned by the public.
    John Martin was indicted at August term, 1850, of the Brown Circuit Court, for obstructing a highway leading from Mount Sterling in Brown county to Meredosia in the county of Morgan. At the trial of the cause at April term, 1851, Martin was found guilty. Minshall, Judge, presided at the trial of the cause. The points of discussion raised in the Supreme Court, are fully stated in the opinion of the court.
    Warren and Edwards, for plaintiff in error.
    R. S. Blackwell, for the people.
   Trumbull, J.

This record presents a single question for decision, which is, the correctness of the third instruction given to the jury on behalf of the people. Objections were made on the argument to other instructions; but as they were not excepted to when given, the giving of them cannot be assigned for error. Leigh v. Hodges, 3 Scam. 15; Hill v. Ward, 2 Gilm. 285.

The only way for a party to avail himself in this court of objections to instructions in the court below, is to except to the decisions of the court in giving or refusing them, at the time they are made.

It was insisted on the argument, that all the instructions given on behalf of the people were excepted to. The bill of exceptions is too plain to admit of doubt upon this subject. Its language is: Which said several instructions the court gave to the jury as asked, to the giving of which said instruction, numbered three, the said defendant by his counsel objected; but the court overruled said objection, and gave the said instruction to the jury, to the giving of which said instruction, the said defendant by his counsel excepted at the trial.” No reasoning or language could make it more apparent, that it was the third instruction alone which was excepted to. That instruction reads as follows: “ That if the jury believe from the evidence, that the road ceased to be travelled by the public by reason of its obstruction by the defendant, and that the supervisor ordered said defendant to -open said road and remove said obstruction, this is competent evidence tending to prove that the public have not abandoned the road as a public highway.” It is objected to this instruction, that it assumes that there once had been a road which the public had travelled, without leaving that question to the jury. That it is the province of the jury to decide matters of fact is an admitted principle; and if the material question in dispute had been whether there had ever been a road which the public had travelled, the instruction would have been erroneous for the reason assigned. But the defendant himself introduced witnesses in the court below, who testified that they believed the old road leading from Mount Sterling to Meredosiawas not a legal highway, on account of there being no record of its having been laid out and established. There was no dispute between the parties as to there once having been a road which the public travelled; but the points in controversy were, whether such road had been legally laid out, or if ever legally established, whether it had not been abandoned.

The instruction must be understood in reference to the state of case then before the court, and when so regarded, it is free from all objection. Its object was not to tell the jury that there once had been a road; both parties admitted that fact; but the design of the instruction was to inform the jury, that if the public had ceased to use the road by reason of its obstruction by the defendant, the reason which led to the non-user of the road by the public would be a circumstance tending to prove that they did not intend to abandon it as a public highway. The idea of the abandonment of a road by the public presupposes its voluntary disuse; and it would be a strange doctrine, if the people were not allowed to show that they had been compelled by the acts of the defendant to cease using a road, in answer to his allegation that they had abandoned it.

It is often a matter of convenience in giving instructions, and avoids circumlocution, to assume the existence of certain facts about which the parties are agreed; and neither party, under such circumstances, can afterwards make the assumption a ground of objection to the instructions.

The refusal of the Circuit Court to grant a new trial, and the insufficiency of the evidence to warrant the finding of the jury, have been assigned for error; but those questions cannot be examined by this court, for the reason that they are wholly within the discretion of the court below, the statute authorizing the refusal to grant new trials to be assigned for error, having no application to criminal cases. Pate v. The People, 3 Gilm. 644.

The judgment of the Circuit Court is affirmed, with costs.

Judgment affirmed.


author: Per Curiam.

text:
    Seymor B. Moody, Plaintiff, v. John L. Peake, Defendant.
    AGREED CASE PROM SANGAMON.
    The Supreme Court cannot review a judgment not yet rendered.
    This was "an agreed case, intended to raise the question of the right of unnaturalized persons to vote at a charter election in ¡ the city of Springfield. |
    W. H. Herndon, city attorney, for Moody.
    Stuart & Edwards and J. C. Conicling, for Peake.
   Per Curiam.

The record shows that the parties filed an agreed case in the Circuit Court, containing a stipulation that the case might be decided, pro formé, for the plaintiff. But it fails to show that the court took any action in the case. There is, therefore, no judgment to be reviewed in this court. The case is still pending in the Circuit Court. The writ of error will be dismissed.


text:
    David Randolph, Plaintiff in Error, v. Jacob Emerick, Defendant in Error.
    error to McDonough.

      montonon for secul'ity for costs, where a non-resident is plaintiff, must be made in apt time; it mil be too late, if made after a defendant should have pleaded in abatement.
    ^ the recor^ shows affirmatively, that a motion to dismiss was made and sustained for a particular reason, it is sufficient to bring up the cause for revision, without the a ^ ^CBpti0118-
    The office of a bill of exceptions, is to introduce matter into the record; but where the record shows upon its face all the necessary proceedings and decisions, a bill of exceptions is unnecessary.
    This was an action of assumpsit brought by Randolph against Bmeiack in the McDonough Circuit Court. The declaration contained two counts, one against Emerick as an indorser of a promissory note, and the other for money paid, laid out, and expen¿e¿_
    To this declaration a demurrer was filed, and sustained to the count against the indorser. Randolph, on leave of the court, amended his declaration, and filed three new counts, all declaring against Emerick as indorser. Emerick filed a demurrer to the first and third of the amended counts, and moved to have the second amended count struck from the files. The court sustained the demurrer to the first of the amended counts, and overruled it as to the third, and continued the cause. At the next term, Emerick did not file any other plea, and the court, Minshall, Judge, presiding, gave judgment for Randolph, by default, for $298.50 and costs. On the same day, Emerick filed his affidavit in support of a motion to set aside this judgment. The court, at October term, 1850, sustáined the motion, and the judgment was set aside.' Emerick then filed his affidavit, showing that Randolph, at the time of the commencement of the suit, was not a resident of this State, but was a resident of the State of Ohio, and moved the court to have the suit dismissed, for the want of security for costs on file; which motion the court sustained, and dismissed the suit, and entered judgment against Randolph for costs, and awarded execution. The record shows the following entries:—

      “ D. Randolph v. Jacob Emerick, assumpsit.”
    “ And now again comes the defendant and files his motion to dismiss this suit for want of security on file.”
    “ David Randolph v. Jacob Emerick, assumpsit.

    “ And now on this day came on to be heard the motion to dismiss this suit; and after hearing the argument of counsel, it is ordered by the court that said motion be sustained, and that this suit be dismissed. Thereupon it is ordered by the court, that the defendant have and recover of the plaintiff his costs by him in this behalf laid out and expended, and that execution issue therefor.”
    Randolph assigns for error the dismissal of the suit, for the want of security for costs.
    Browning & Bushnell, for plaintiff in error,
    Cited Gallimore v. Dazey, 12 Ill. 143; Trustees of Schools v. Walters, Id. 154.
    R. S. Blackwell, for the defendant in error,

      Cited 2 Ill. (1 Scam.) 233; 6 Ill. (5 Gilm.) 559; 12 Ill. 27; Id. 154.
   Treat, C. J.

Randolph brought an action of assumpsit against Emerick. The defendant filed a demurrer to the declaration, which was sustained to the first count, and overruled as to the second count. The plaintiff then amended his declaration by the addition of two new counts; and a demurrer was sustained to one of them, and overruled as to the other. At the next term, a judgment by default was rendered against the defendant. It was set aside on his application; and he then entered a motion to dismiss the suit, because no bond for costs had been filed. The court sustained the motion, and dismissed the case. That decision is assigned for error.

The statute requires a non-resident plaintiff to file a bond for costs, before the commencement of his action. The opinion was expressed in the case of the Trustees v. Walters, 12 111. 154, that a motion to dismiss a suit, for a failure by the plaintiff" to comply with this requisition of the statute, must be made before the time has passed for pleading in abatement, or it will not avail the defendant. The objection is of a dilatory character, in the nature of a plea in abatement, and if not insisted on at the proper time, is to be considered as waived. In this case, the motion came too late. A defendant cannot plead in abatement of an action, after he has demurred to the declaration. If his demurrer is overruled, he must plead to the merits.

It was suggested on the argument, that the plaintiff should have taken a bill of exceptions to the decision of the cóurt dismissing the case. The record recites a motion made by the defendant, to dismiss the suit because no bond for costs had been filed by the plaintiff. This statement is sufficient to bring up the decision of the Circuit Court for revision. It affirmatively appears, from an entry on the record, that the court sustained a motion to dismiss, which the defendant had no right to interpose. The office of a bill of exceptions is to introduce matter into the record, which does not already appear there. Here, the character of the motion, and the circumstances under which it ■was made, clearly appear on the face of the record; and a bill of exceptions would not have brought any new matter into the record. If the record failed to show the nature of the motion, a bill of exceptions might be necessary to present the question, for otherwise this court would not be advised of the ground upon which the suit was dismissed.

The judgment is reversed, and the cause remanded.

Judgment reversed.


author: Trd'mbull, J.

text:
    Charles Gardner et al., Appellants, v. William Watson et al., Appellees.
    APPEAL PROM SANGAMON.
    Where a judgment creditor agreed with one of three defendants, who was the principal in the debt upon which the judgment was recovered, the others being sureties, that so long as the principal would pay the interest on the judgment, and if he would pay the costs, the matter might stand as though no judgment had been obtained, which agreement was for an indefinite length of time: —

      Held, that such an agreement could not be enforced in a court of equity.
    A promise to delay the collection of a debt for an uncertain period, will not discharge a surety. To discharge a surety by extension of time, there must be a sufficient consideration, and a time definitely fixed.
    The appellees filed their bill in chancery, setting out that they became the sureties of one John A. Corneau, in a promissory note, about the 13th day of March, 1840, payable to Charles Gardner, as follows:
    “ Springfield, Ills., March 30, 1840.
    “ On or before the first day of October next, we jointly and severally promise to pay Charles Gardner, or order, one hundred and six dollars, value received, and if not paid when due, to draw interest thereafter at the rate of 12 per cent, per annum, payable semi-annually till paid. J. A. Corneau, $106.00. Thomas Moffett,
    H. Webster. Security. W. W. Watson.”
    That judgment by confession was recovered on said note, at the July term of the Sangamon Circuit Court; that afterwards, Gardner and Corneau agreed, that if Corneau would pay on said judgment interest at the rate of twelve per cent, per annum, payable semi-annually, and the costs of said suit, Gardner would issue no execution on said judgment, or would waive his right to issue execution. Said agreement was without the consent of the appellees. The appellees charge that Corneau complied with his agreement. They allege that said judgment has been assigned to D. and I. P. Spear, without recourse, and that they have issued execution. They pray for a perpetual injunction, which is decreed upon the hearing. Oath being waived, Gardner answers that, in 1840, he placed money in the hands of E. Wright, to loan, and that he knew nothing of the said note or judgment until 1842, when Wright toned all his business as agent to Gardner, his principal. Gardner denies the agreement stated in the bill, and also denies the receipt of any interest from Corneau in any way, except interest due to him by Corneau, on other notes than the one referred to.
    The Spears answer, denying all knowledge of any transaction such as alluded to in the bill, and say they are bond fide assignees of the said judgment, and that they have caused execution to issue.
    The appellees, to sustain their bill in the court below, offer the deposition of Corneau, to prove that he was principal in the said note, and that the appellees were mere sureties; also to prove the agreement as alleged in the bill of the appellees. The depositions are objected to, because Corneau is an interested witness, and party to the record. The objection is overruled by the court below. Corneau deposes that he is principal, and Watson and Moffett are sureties in said note, and that this was known to Gardner; that after the rendition of said judgment, he agreed with Gardner, that if he paid the interest on said note and judgment, at the rate of twelve per cent, per annum, Gardner would have no execution issued on said judgment, and if he would pay the costs which had then accrued the matter might be considered, in the same light as though no judgment had been rendered, and this agreement or contract was for an indefinite length of time. Corneau further deposes that he paid the interest which had accrued, and the costs, according to his contract, and about subsequent payments of interest he cannot distinctly state. Corneau further deposes that Watson and Moffett knew nothing of the contract.
    The appellees further introduce, to sustain their bill, the said judgment and execution, returned by order of the plaintiff, and that no execution was issued until 1849. The proceedings show a judgment, under a power to confess, executed by J. A. Corneau, W. W. Watson, Thomas Moffett, and F. Webster, jr., under their hands and seals.
    E. Wright, witness for defence, testifies that Gardner came to Springfield in the fall of 1842; before that time he loaned money; has no knowledge of making any arrangement with Corneau about return of execution ; if any arrangement was ever made, it was with the consent of all parties interested; there were other notes taken from Corneau for loaned money; when money was loaned to Corneau security was. required; doubtful of his responsibility; his impression money could have been made out of the securities after judgment; has exercised no authority over Gardner’s business since August, 1842.
    William Harvey, sheriff in 1844: had claims against Corneau; made none by force of levy and sale; Corneau reputed insolvent up to the time he left, in 1845 or 1846; never went to ascertain if Corneau had property subject to execution; Corneau had more property than the law allowed him ; Corneau said there was a mortgage on his property.
    Robinson, constable, 1846 : Corneau turned out property on execution, but arranged the matter; Corneau had his house well furnished.
    Charles Gardner released and sworn. Corneau gave other notes besides the one in judgment; denies making any contract such as Corneau speaks of; denies the receipt of interest on said judgment, but received interest on other debts due by Corneau ; knew nothing of the relation of the parties to the note; does not say absolutely about the payment by Corneau of interest on the judgment; but his belief is that he did not; Corneau, he understood, was not good, and Moffett and Watson were both hard cases, and the reason he did not issue execution was that he did not wish to spend money unnecessarily. A man might forget, but have no recollection of an agreement to wait on Corneau ; generally knows what he is about; always applied to Corneau for payment.
    The complainants then introduce William F. Elkin, sheriff, who returned the execution; his recollection very indistinct about it; but his impression is that he had authority from E. Wright to return execution; his impression Corneau had no property subject to execution; such impression was not from Corneau; Corneau arranged executions; never tested whether Corneau had property subject to execution; Corneau said his personal property was mortgaged to Clifton, and his understanding was that the title to his real estate was not in him.
    Stephen A. Corneau, says his brother had plenty of property to satisfy execution of one or two hundred dollars before he left here in July, 1846.
    B. A. Watson, says his father, W. W. Watson, was responsible since 1837, and execution for $200 could have been made out of him.
    Fee-book introduced, showing payment of costs in the original suit of Gardner v. Watson, Moffett et al., July 28,1844.
    Unsatisfied judgments in the Sangamon Circuit Court against Corneau to a considerable amount are in evidence.

      Errors Assigned.

    In admitting the deposition of Corneau; in decreeing a perpetual injunction to the collection of the judgment; and, a general assignment.
    The decree in this case was ordered by Davis, Judge, at December term, 1851.
    E. B. Herndon, for appellants.
    S. T. Logan and W. H. Herndon, for appellees.
   Trd'mbull, J.

In the view we take of this case it is unnecessary to notice more than a single point. The only ground upon which the appellees seek relief is, that they were securities for Corneau on a note dated in 1840, upon which judgment had been entered against both him and them in the Circuit Court of Sangamon county in 1842; that after the rendition of judgment Corneau without their knowledge or consent, made an arrangement with Gardner, the payee of the note and plaintiff in the judgment, whereby it was agreed, that if Corneau would pay the costs of said judgment and interest thereon at the rate of twelve per cent, per annum, as specified in the note, said plaintiff would issue no execution on said judgment, or would waive his right to issue such execution. The bill then alleges that Corneau did pay the costs, and the interest at twelve per cent, for some length of time, which agreement and suffering the judgment to remain dormant up to near the time of filing the bill in 1850, is alleged to be a fraud upon the securities of Corneau, whereby they are released from their responsibility as securities. The evidence in reference to this agreement is as indefinite as the bill. Corneau, the only witness upon the subject of the agreement, says : There was an agreement or contract entered into between said Gardner and myself, that if I would continue to pay the interest on said note and judgment at the rate of twelve per cent, per annum, he would have no execution issued on said judgment, and if I would pay the costs which had then accrued, I might consider the matter in the same light as though no judgment had been obtained; and .this contract or agreement was for an indefinite length of time.” This witness further stated that the agreement was made shortly after the rendition of judgment, and that he paid the costs and interest which had accrued, but did not pretend that any subsequent payment of interest was made. The agreement as set forth in the bill and proved by Corneau is entirely too indefinite to be enforced in a court of equity. It does not appear that Gardner waived his right to issue execution for any definite period; so far from it, Corneau expressly states that the contract was for an indefinite length of time. There was nothing in the agreement to prevent Gardner from suing out execution the next moment after Corneau paid up the interest. Gardner did no act which could have prejudiced the rights of the securities, because he did not put it out of his power to issue execution at any moment when required. There was no obligation on Corneau to pay the twelve per cent, for any particular length of time; but he was at liberty to cease paying it the moment after the agreement was made, as the record shows he actually did. An agreement to be binding must be mutual, and if Gardner could not compel Corneau to pay the twelve per cent, interest for any particular length of time, neither could Corneau compel Gardner to suspend execution for any definite period.

A promise to delay for an uncertain period will not discharge a surety, for the reason that the stay, being indefinite, can be arrested at any time the sureties request it to be done. The cases of Miller v. Stem, 2 Barr, 286, McGee v. Metcalf, 12 Smedes & Marshall, 535, and Alcock v. Hill, 4 Leigh, 622, are express to the point, that to discharge a surety by extension of the time of payment there must be not only a sufficient consideration, but the time must be definitely fixed.

Gardner’s promise to Corneau that the latter might consider the matter as if no judgment had ever been obtained, if he would pay the costs, was wholly without consideration, as Corneau was bound for the costs at all events. This part of the agreement amounted to nothing more than a mere indulgence, determinable at the will of the party by whom it was made. An agreement, without consideration, to enlarge the time of payment, will not discharge the surety. Reynolds v. Ward, 5 Wend. 501; Bank of Utica v. Ives, 17 Wend. 501; McLemore v. Powell, 12 Wheat. 554; Creath v. Sims, 5 How. 192; Leavitt v. Savage, 16 Maine, 72; Waters v. Simpson, 2 Gilm. 570.

The decree of the Circuit Court is reversed and the bill dismissed. Decree reversed.


author: Catón, J.

text:
    John F. Darby, Public Administrator, &c., Appellant, v. Murray McConnel, Appellee.
    APPEAL PROM MORGAN.
    Suits may be commenced and process made returnable to a special term of the Circuit Court, appointed by the judge in vacation, whether issued before or after such term was appointed.
    A special term of the Morgan Circuit Court, was in vacation appointed to be held in November, 1851, by the judge of that court, under the provisions of the fiftieth “section of the act in relation to Courts, in Revised Statutes of 1845, page 149.
    After the appointment of said special term, Darby sued Mc-Connel, filed his declaration, and obtained service of process, returnable to said special term, more than ten days before the commencement thereof. At said special term McConnel entered his motion to dismiss the suit for want of jurisdiction, and because the plaintiff had no right to have process returnable to said special term, the said court not having power to hold pleas of suits or writs not brought or returnable to the regular term preceding, and because said special term was not a return term for writs, or at which new suits could be brought. This motion was sustained pro forrad, by the court, Woodson, Judge, presiding. Darby excepted, and brings the record to this court.
    D. A. Smith, for appellant.
    R. S. Blackwell, for appellee.
    A special term of the Circuit Court of Morgan county, Elinois,. was appointed by the judge of the Fust Judicial Circuit, in vacation, to be held on the 3d day of November, 1851. After the appointment of the special term, Darby sued out a summons against McConnel in debt, returnable to said special term. Service was had. At said special term, McConnel appeared and moved to quash said summons and dismiss said suit, for want of jurisdiction in the court, because the summons was returnable to the said special term. The motion was sustained and suit dismissed. The decision of the Circuit Court is assigned for error.
    1. The 43d section provides, that at a regular term the court may appoint a special term for the hearing of chancery causes, and all suits then depending may be heard and determined at said term, &c. Rev. St. 148, § 43, cl. 1.

      2. By the same section, the court, at a regular term, may appoint a special term for the trial of civil and criminal cases on the common-law side of the court, to which special term “ suits may be instituted and process made returnable to such special term, in the same manner and with like effect as at a regular term,” &c. Rev. St. 148, § 43.
    In this case the County Commissioners’ Court are required to summon a grand and petit jury, See.; and power is conferred upon the courts to try “ all civil and criminal causes.”
    “ And all judgments, orders, and proceedings made and had at said special term, shall be as valid and effectual as if made and bad at a regular term of the court.”
    The 45th section provides for the call of a special term when a person is in custody, charged with the commission of a capital offence, &c. Rev. St. 148, § 45.
    The 50th section provides, that the* judges in vacation shall have power to appoint a special term, “whenever it may be necessary for the prompt and efficient administration of justice,” and declares that “ all process which may have been made returnable to the regular term, shall be deemed in law returnable to the said special term, appointed as aforesaid.” Rev. St. 149, § 50.
    Whether this section alludes to the return of process to the preceding or succeeding term of the court, makes no difference, as in either event the court, at its special term, cannot take cognizance of the suit.
    The evident object of this law was to enable the circuit judge, where his docket was encumbered, and he was unable to dispose of the causes upon the docket at the preceding regular term, to call a special term, “ for the prompt and efficient administration of justice,” between suitors already in court. And this in compliance with the constitutional requirement “ that every person ought to find a certain remedy for all injuries and wrongs, promptly, and without delay,” Sic. Rev. St. 38, § 12 of Schedule.
    The law was' not intended to place a person who sued after the regular term had passed, upon a footing of equality with him who had sued long before, but whose suit had not been reached on account of an encumbered docket.
    The later suitor must bide his time, and wait until the succeeding term, fixed by the general laws of the land, for the trial of his cause.

      Such is the opinion of the counsel on the opposite side. 11 Ill. 225, “ Brief.”
    In Rucker v. Fuller, 11 Illinois, 228, this court say, that “ this provision of the statute has reference to process made returnable to a regular term beyond the special term. Suits commenced to a regular term subsequent to the special term, and before its appointment, would, by this statutory provision, become returnable to the special term, &c.”
    It is respectfully submitted that this idea is wrong, inasmuch as it would work injustice in thisA defendant is bound* by law to take notice of the holding of the regular terms of court. Ignorance of the law excuses no man. Rogers v. Miller, 4 Scam. 334; Love v. McRae, 12 Ala. 444.
    But common justice requires that he should have notice in fact of the time of holding a special term, because this is not fixed by law, but by appointment of the judge. It is a question of fact, and not of law. Ignorance of fact is excusable, and equity and law relieve a party from its consequences.
    The law requires actual notice to the defendant, or the judgment is void. Holliday v. Swailes, 1 Scam. 516,517.
    According to the construction of the statute by this court, in 11 Illinois, the defendant has neither actual nor constructive notice of the trial of the cause, though he had notice of the pendency of the suit.
   Catón, J.

The only question in this case is, whether,process which is sued out after the judge in vacation has appointed a special term of the Circuit Court, shall be made returnable to the special term or to the succeeding general term. The appointment of this special term was authorized by the 50th section of the chapter entitled Courts, which says that “ all process which may have been made returnable to the regular term shall be deemed in law returnable to the said special term appointed as aforesaid.” It was decided, in Rucker v. Collins, (11 Ill. 223,) that under this provision process which had been sued out previous to the appointment of the special term, and which upon its face was returnable to the next succeeding general term, should be deemed and held returnable to the special term. Further reflection has but confirmed us in the views which we then entertained. The words “ which may have been,” refer to process issued at any time before the event alluded to, which was the appointment of the special term, and which was still returnable. But it could not mean process which had been issued before the previous term, for to that term such process must necessarily have been returned, and consequently could not have been returnable. The words, then, could refer only to process issued subsequent to the previous term, and before the appointment of the special term. It is true that the 43d section of the same chapter, which provides for the appointment, at any regular term of the court, of a special term, provides that suits “ may be instituted and process made returnable to such special term,” and it is argued with much force that the omission of that provision in the 50th section raises a strong implication that it was not the intention of the legislature that suits should be brought to the special term provided for in that section. But this implication, if allowed the effect contended for, would prove too much; for, by the same rule, we should have to hold that the court, at the special term appointed in vacation, could only try such causes as had been commenced after the general term and before the appointment of the special term; for in the 43d section it is provided that “the court shall have power at such special term to try all civil and criminal causes, and all orders, judgments, and proceedings made and had at such special term shall be as valid and effectual as if made or had at a regular term of the court.” As there are none of these provisions found in the 50th section conferring powers upon the court at a term appointed in vacation, there would be the same implication that by their omission in the 50th section the legislature intended to withhold those powers and that sanction from the court during such special term. Such a construction has never been contended for. It would leave the court virtually without jurisdiction which could be of any practical utility, and it would be unable to answer the purposes- manifestly contemplated by the legislature. That the court may at such special term try all causes which have been continued from the previous regular term has never been doubted; and yet we look in vain in the 50th section for that authority to do so, which is so expressly given in the 43d section. In the former it must be implied, while in the latter it is express; and with the same propriety we may imply the authority to institute suits and make process retumable to such 'special term. Our past legislation shows many examples where the legislature has authorized the judge to appoint all the terms, in particular counties, instead of fixing the terms by law, and that, too, without specifying the powers and jurisdiction of the court at such term; and yet it was never doubted that the court, at such terms, was authorized to dispose of all causes then pending, precisely as if the term had been appointed by law. I am unable to appreciate the argument of inconvenience and surprise, which was earnestly raged at the bar. The party was regularly served with process ten days before the commencement of the term, which truly told him of the time and place at which he was required to appear and answer to the suit; and there could be no more inconvenience or surprise than there would be if the term had been appointed by law, and the suit commenced and service made in the usual way. There was nothing in the whole proceeding, by which the party could be led into error. Those parties whose suits had been continued at the previous regular term over to the next regular term, the time of which was fixed by a public law, would seem to have some reason to complain at being called upon to answer, at an earlier day, at a special term, and of which it is most improbable that they might be ignorant in fact; and yet, notwithstanding the apparent reasonableness of such a complaint, as before remarked, the right of the court to try all suits continued has never been and probably never will be doubted. But it seems to me that, independent of all other provisions of the statute on the subject, the first section of our Practice Act settles this question conclusively. That section provides that the first process in an action shall be a summons, which “ shall be made returnable on the first day of the next Circuit Court in which the action may be commenced.” This is broad language, and certainly embraces within it special as well as general terms. Indeed, it will require construction to exclude from its operation the special chancery term provided for in the forepart of the 43d section and the special term for the trial of prisoners in jail, provided for in the 45th and 46th sections. It has already-been decided by this court, in the case of Rogers v. Miller, (4 Scam. 333,) that a summons which is returnable to the first day of the next term of the Circuit Court is sufficient without specifying the day. Had such been the direction of the summons in this case, it would have been returnable to the special term, unless it can be shown that that was not a term of the court. We are of opinion that this action was properly brought to the special term, and that the decision of the Circuit Court be reversed, and the cause remanded.

Judgment reversed.


text:
    Adaline Collins, Administratrix, Appellant, v. Rescarick Ayers, Appellee.
    APPEAL PROM MORGAN.
    Saits brought by foreign or domestic administrators, are alike subject to the same rales of pleading.
    The statute authorizing foreign administrators to bring suit, regulates the mode of proof, when their fiduciary character is questioned.
    An administrator, bringing suit, must plead his appointment with a profert, which should be questioned by a plea of ne ungues administrator, otherwise he will not be required to make proof of his representative character.
    By demanding oyer of the letters, and demurring to the declaration, a defendant may take advantage of a variance between the authority produced and the statement of it in the declaration. In this way a substantial defect on the face of the letters may be reached.
    The certificates attached to an appointment of a foreign administrator, are matters of evidence. Their sufficiency may be tested on the trial of a suit, at which time another copy of the appointment in question may be read, if properly granted and authenticated.
    When the representative character of an administrator is put in issue, he will be required to exhibit a copy of the letters of administration authenticated as the Act of Congress directs, together with the certificate of the proper officer,"that the same were granted in pursuance of, and conformable to, the laws of the State in which they were granted.
    This was an action of debt based upon a note and account. The declaration is in the usual form, except that the plaintiff, being an administratrix of St. Louis county, State of Missouri, makes proferí of her letters issued by the County Court of said county.
    The defendant craved oyer of said letters, and filed a plea in abatement, setting out the letters and the certificates of authentication; and saying that said certificates were insufficient in not stating that the letters were granted in pursuance of the laws of the State of Missouri.
    To this plea there was a demurrer, and the court sustained the demurrer and ordered the defendant to answer over.
    The defendant then craved oyer of a certified copy of the letters of administration of said plaintiff, and of the certificates of authentication thereof, although no proferí is made of any such documents. He then put in a plea in bar, setting out a paper called by him the letters of administration issued to the plaintiff, and several certificates thereto attached, and says that said plaintiff ought not to have and maintain this action, because this copy of said letters produced by him is not authenticated as required by the laws of the State of Illinois in this, that it is not certified that the letters were issued according to the laws of the State of Missouri. He also filed a plea of nil debet, and gave notice of special matter to be given in evidence under said plea, on a plea of general issue.
    To this plea in bar there was a demurrer, and the demurrer was overruled by the court.
    The plaintiff stood by her demurrer; and the court, (Wood-son, Judge, presiding,) at a special term, in November, 1851, of the Morgan Circuit Court, rendered a judgment against the plaintiff for costs, and that she be forever barred. The plaintiff appeals to this court, and assigns for error, the overruling of the demurrer and the sustaining of the plea, and the rendition of the judgment for defendant.
    M. Me Conned, for appellant.
    A party suing as administrator, is not bound to do more than make proferí of bis letters of administration; and no certificate or other authentication need be stated. 1 Chit. Plead. 398, 399, 465, 469, 470, 739. A defendant cannot crave oyer of a paper of which no profert is made, or of which a profert is made unnecessarily. 1 Id. 463, 465; 1 Saund. Rep. 9, 9 a, 9 b, 9 c, and notes.
    Where a defendant wishes to take advantage of any misstatement or misdescription, by a plaintiff, of letters of administration, he must crave oyer of the letters, and then set them out, and state the variance or defect in the letters, not a defect in a certificate, of which no profert is made. 1 Chit. Plead. 465, 466.
    The making of profert, and its objects and intention, are only to say to the Court, that the party will prove the allegations of his declaration; therefore, the opposite party cannot crave oyer of the tendered proof, and bring it before the court by plea, denying or contradicting the proof; but only by demurrer, admitting its truth, and denying its effects only. Gould’s Plead, edition of 1824, p. 437, 438, 443, 444.
    Is this a subject-matter of a plea in bar ? A plea in bar must go to the merits of the case, and deny that the plaintiff has a cause of action. This plea must either deny that the plaintiff ever had a cause of action; or if he had, that, because of some new fact, said cause no longer exists. 1 Chit. Plead. 502, 503, 509.
    This, perhaps, was intended for a plea of estoppel. This form of plea can only be put in under two states of case, — where the party against whom it is pleaded has done or admitted some fact, by his previous pleading in the case, that he is not permitted to deny; where some act has been done or suffered by the party against whom it is pleaded, whereby he is prevented from pleading any particular fact relied upon in his case. The act or thing here pleaded is neither of those said certificates of authentication, being first introduced by the defendant; and the thing pleaded not being an act done or suffered by the plaintiff. Stephen’s Plead. 239, 240, 357, 399, 401, 402.
    D. A. Smith, for appellee.
   Treat, C. J.

Adaline Collins, as administratrix of Charles Collins, brought an action of debt against Ayers. The declaration was in debt, in a promissory note made by the defendant to the plaintiff’s intestate. The plaintiff made profert of letters of administration, obtained in the State of Missouri. The defendant craved oyer of the letters, and pleaded, in abatement of the action, that it did not appear by the authentication thereof, that they were granted in pursuance of the laws of Missouri. The court sustained a demurrer to this plea. The defendant then craved oyer of the letters, and of the certificates of authentication of the same, and pleaded, in bar of the action, that it did not appear from said certificates that the letters were granted in pursuance of, and conformable to, the laws of Missouri. The court overruled a demurrer to this plea, and the defendant had judgment.

The only question presented by the assignment of errors relates to the sufficiency of the special plea in bar. The statute declares, “ That, when any person or persons have obtained, or may obtain, administration on the estate of any intestate in any one of the United States or territory thereof, such person or persons shall be enabled to prosecute suits in any court in this State, in the same manner as if administration had been granted to such person or persons by virtue of the laws of this State. Provided, that such person or persons shall produce a copy of the letters of administration, authenticated in the manner which has been prescribed by the laws of Congress of the United States, for authenticating the records or judicial acts in any one State, in order to give them validity in the other States; and that such letters of administration had been granted in pursusance of, and agreeably to, the laws of the State or territory, in which such letters of administration were granted.” Rev. Stat. p. 596, § 1. This provision authorizes foreign administrators to maintain suits in our courts. And such suits are subject to the same rules of pleading as actions brought by domestic administrators. If the course of the defence compels a foreign administrator to prove that he is such, the statute applies and regulates the manner and character of the proof. He must then produce a copy of the letters of administration, authenticated according to the law of Congress, and a certificate of the presiding officer of the court from which the letters issued, that the same were granted in pursuance of, and agreeably to, the laws of the State or territory in which they were obtained. See Rev. Stat. p. 597, § 2. In other respects, the two classes of cases stand on the same footing.

Letters testamentary, and of administration, must be pleaded with a profert, when an executor or administrator is plaintiff. If a defendant intends to question the right of a plaintiff to .sue in such a capacity, he must plead ne unques executor or administrator. If he fails to put the fact in issue, the plantiff will not be compelled on the trial to make any proof of his representative character. It is considered as admitted by the defendant. He may, however, by demanding oyer of the letters and demurring to the declaration, take advantage of any material variance between the letters produced on oyer, and the statement of them in the declaration. 1 Chit. Plead. 465. And he may, in the same mode, reach any substantial defect apparent on the face of the letters. Gould’s Rep. 449.

In this case, profert was made of the letters of administration only. Indeed, the certificates attached to the letters were not the proper subject-matter of profert or oyer. They formed no part of -the letters, but were evidence simply. It was not competent for the defendant to bring before the court, by plea, any question as to the sufficiency of these particular certificates. By putting in issue the right of the plaintiff to sue as administratrix, he might have compelled her to make strict proof of her representative character. And, in order to sustain such an issue on her part, she would be required to exhibit a copy of the letters of administration, authenticated as the act of Congress' directs, together with a certificate of the proper officer, that the same were granted in pursuance of,- and agreeably to, the laws of Missouri. But, in making such proof, she would not be compelled necessarily to use the certificates in question. She might introduce another copy of the letters of administration, properly certified and authenticated.

The judgment is reversed, and the cause remanded.

Judgment reversed.