Sv. T 1296 UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY f r PUTERBAUGH'S COMMON LAW PLEADING AND PRACTICE. A PRACTICAL TREATISE FORMS OF COMMON LAW ACTIONS, PLEADING AND PRACTICE. NOW IN USE IN THE STATE OF ILLINOIS, AND WHEREVER THE SAME SYSTEM PREVAILS. By SABIN D. PUTERBAUGH, late judge of the circuit court, and author of puteebaugh's chancery pleading and practice. Revised by Leslie D. Puterbaugh, JUDGE OF THE PROBATE COUET OF PEOBIA CO., ILL. SEVENTH EDITION. CHICAGO: CALLAGHAN & COMPANY. 1896. Entered according to Act of Congress, in the year 1896, by ANNA E. PUTERBAUGH, In the OflBce of the Librarian of Congress, at Washington. Stereotyped and Printed by the Chicago Legal News Company. T INTRODUCTION TO THE SIXTH EDITION. In presenting this, the sixth edition of this work, the author deems an extended introduction unnecessary. The first edition was published in 1864, then in a crude condition, with meager hopes of its success. Since then it has passed through four revisions, with a constant and earnest endeavor, on the part of the author, to make it as perfect and reliable as his abilities, amidst professional and judicial duties, would permit. Whatever merits or demerits former editions possessed are well understood by the courts and members of the profession throughout the State of Illinois, and other States and Territories where the work has been used and recognized. Since the last revision there have been constant, and in many instances material and radical changes in the Statutes upon subjects herein con- sidered. The decisions of the Supreme and Appellate Courts have shed much light upon questions of pleading and practice, and given constructions of statutory remedies and defenses which have rendered former editions, in many respects, an unsafe guide. Genei-al principles of law and justice are immutable, but the remedies for enforcing rights are subject to constant changes. As new exigencies arise, courts are called upon to give constructions to the same, as governed by such general legal principles. It is to be hoped that the present edition will be found to contain correct pleadings and practice at common law, and statutoiy remedies and defenses, so far as it pretends to treat, as it exists in Illinois to-day. * ******** It has been the constant aim of the author to compress into a single volume the greatest amount of information possible. In following this gen- eral plan much valuable matter is necessarily crowded out, and great brevity required in the subjects considered. To partially obviate this omission ref- erences have been freely made to other works of standard authority, where the several subjects have been separately and elaborately treated. Tlie author is grateful for the generous favor and kind reception with which former editions of this work have been received by the courts and members of the bar, and trusts the present edition will deserve and receive the same favorable reception and consideration. S. D. PUTEEBAUGH. Peoria, III., March 1, 1888. (3) 756401 INTRODUCTION TO THE SEVENTH EDITION. In the preparation of the present edition, the entire work has been thor- oughly revised and re-arranged. Although the volume contains much new matter, by the use of smaller type for forms, its size has not been materially increased. Several new chapters and a number of new forms have been added. Many additional cases are cited, including the decisions of the Supreme Court reported in from the 121st to the 161st volume of the Illinois Reports, and of the Appellate Courts from the 21st to the 62d volumes of the reports of its opinions. References are made to the latest Statutes. Tlie full titles to the cases cited are given instead of the book and page numbers only as in former editions. The work has been more fully indexed than formerly, and by the use of the side headings it is believed that the various subjects treated may be more readily found. LESLIE D. PUTERBAUGH. Peoria, III., October 1, 1896. (4) ANALYSIS OF CONTENTS. CHAPTEE I. GENERAL PRINCIPLES OF PLEADINGS. Object of — term defined 1 The common law system 1 In Illinois 2 Kinds of actions 3 Forms of actions 3 Order of pleading 4 CHAPTER 11. COMMENCEMENT OF AN ACTION. The Pr.^cipe 5 Forvi of 6 Bail in Civil Cases— Capias ad Respondenduji 7 Actions sounding merely in damages 7 Plaintiff to give bond 8 Bail bond 8 Forms of affidavit for capias 8, 9 Forms of order for capias 10 Form of bond to he given by plaintiff 10 Form of bond to be taken by sheriff from defendant 11 Affidavit of Plaintiff's Claim 11 Form of 12 Security for Costs ; . . . 13 When required 13 Suits by minors by next friend 14 Form of security for costs 14 Surety — Approval and effect of bond 14 Dismissal for want of security for costs 14 Motion to dismiss for want of 15 Rule to file security 15 Cross-motion for leave to supply 15 Objections to secm'ity 15 (V) Vi ANALYSIS OF CONTENTS. After action brought ^5 Form of affidavit for rule to give security for costs 16 Form of bond for costs 18 Plaintiff a Poor Person 18 Affidavit of poor person 18 Form of 19 PAKTIES TO AN ACTION. By and against whom brought 19 Suits for the use of another 20 Against insane persons 21 Against infants 21 PROCESS FOE APPEARANCE. Summons— Form— When returnable 23 How served 22 Alias writs 23 Corporation — How served 23 Keceivers — How served 24 Trustees of railroads — How served 24 Privileges of defendants 24 The return 25 THE DECLARATION. Its province 26 Variance between allegations and proof 27 Additional counts 27 Time for filing 28 Copy of instrument or account sued on 28 Continuance : 29 Dismissal where no declaration filed 30 Waiver of copy of account 30 With plea of set-off 31 BiU of particulars 81 CHAPTEE III. DEFENSES TO AN ACTION. I. Motion to Quash and to Dismiss 32 How made 32 When must be made 32 When writ will be quashed or suit dismissed on motion 33 n. Pleas to the Jurisdiction ant) in Abatement 34 Order of pleading 34 Pleas in abatement 35 Requisites of 35 When dilatory pleas must be pleaded 36 Statute in relation to pleas in abatement 37 ANALYSIS OF CONTENTS. Vll Premature action 37 Variance between summons and declaration 37 Amendments to cure matters of abatement 37 Death of sole plaintiff or defendant 38 Of sole plaintiff 38 Of sole defendant 39 Several parties 39 Death of part 39 Death of all on one side 40 Pleas in abatement 40 When to be verified 40 Judgment upon 40 By corporation 41 Plea to the jurisdiction 41 Form of 41 Plea of misnomer 43 Form of 43 Form of replication to 46 Plea of non-joinder of party as defendant 46 Form of. 46 Form of replication to 47 Plea of non-joinder of party as plaintiff 48 Form of. 48 Plea of misjoinder of defendant 49 Form of 49 Plea of another action pending 50 Form of. 50 Form of replication to — Nul tiel record 51 Form of replication to — New assignment 51 in. Pleas in Bar 53 Defined 53 Rules governing 54 Special Pleas in Bar 55 Must answer all it professes to answer 57 Pleas as to a part 57 Common and special similiter to plea 58 Form of special similiter 58 Leave to file pleas — Additional pleas 58 Replications to Pleas 59 Form of double replication 59 Form of similiter to replication concluding to country 59 Rejoinder to Replications 59 Form of commencement of 59 Form of conclusion of with verification 60 Form of rejoinder to double replication 60 IV. Demurrers 60 Nature of 60 May be carried back 61 Viii ANALYSIS OF CONTENTS. Effect of 62 Pleading over 62 Waiver of 62 May be general or special 63 Judgment upon 66 Demurrer to evidence 66 Form of, to declaration 67 jPonH. of joinder in demurrer 67 Form of general demurrer 68 Form of demurrer to plea in abatement 68 Form of joinder in demurrer to plea in abatement 68 Form of demurrer to plea in bar 68 Form of joinder in demurrer to plea in bar 66 CHAPTER lY. ASSUMPSIT. Nature of the Action 70 Express assumpsit ... 70 Implied assumpsit 70 Special assumpsit 71 Where the action lies 71 Consideration of contract 74 Privity of contract 75 Commencement of the action 75 Precipe 75 Form of 75 Declaration 75 Form of commencement and conclusion of 75 Indebitatus Assumpsit— Common Counts 76 Form of declaration 76 Form of common counts 76 I, Goods Sold and Delivered 76 II, Goods Bargained and Sold 76 III. Labor and Services 76 IV. Work and Material 76 V. Money Lent 77 VI. ]\IoNEY Expended 77 VII. Money Received 77 Vin. Interest 77 IX. Account Stated 77 X. Board and Lodging 77 XI. Hire of Horses, etc 77 XII. Stabling and Keeping Horses, etc 77 XIII. Necessaries 77 XIV. Physician's Bill 77 XV. Attorney's Bill 78 ANALYSIS OF CONTENTS. IX XVT. Warehouse Room, etc 78 Form of common counts consolidated 78 Form of common counts condensed 78 Observations upon Common Counts Money had and received 81 Money paid and expended 83 Work and materials 84 Quantum meruit 84 Form of quantum meruit count 85 Form of quantum valebant count 85 Fonn of declaration with common counts by sui^iving partner tipon iwomise to both partners 86 Same — Against surviving partner for icork done 87 Same — Husband and ivife for tcork, by unfe before marriage. . 87 Same — Against husband and wife for tvork, etc., done for wife before marriage 88 Same—by executor for work, etc., on promise to testator 89 Same — Additional count on promise to plaintiff as executor. . . 90 Same — By administrator on promise to intestate 90 Special Counts 91 Forms of declarations on promissory notes 91 Payee v. maker 91 Same 91 Same 93 On six notes, one count 93 Indorsee v. maker 94 Indorsee of executor against maker 96 Surviving partner of payee against surviving partner or maker 96 Executor of payee v. maker 97 Adm. of x>ayee v. maker 98 Partners, payees v. partners, makers 98 Payee v. husband and wife on note given by ivife ivhile sole 99 Indorsee v. indorser, alleging institution and jirosecution of suit V. maker 99 Suits against defendants, severally liable only 102 Measure of damages 102 Kind and degree of diligence required against maker 102 Indorsee v, indorser, suit v. maker unavailing 105 Indorsee v. indorser, maker having left state 106 Payee v. guarantor 108 Payee v, draioer on draft not accepted Ill Payee of check v. drawer Ill Declarations on Inland Bills of Exchange 113 Drawer v. acceptor on bill accepted generally 113 Draiver v. acceptor on acceptance varying as to time from bill 113 Same on bill payable to third person andreturned to and taken up by drawer 114 Payee v. acceptor on bill accepted generally 115 X ANALYSIS OF CONTENTS. First or mhsequent indorsee against acceptor 115 Payee v. draicer of bill, on default of acceptance 116 Same— Defendant had no effects in draioer's hands 116 Same— On defaidt of payment 116 Declarations on Warranties 118 Form on irarranty of horse, etc 118 " hops sold by sample 119 Declarations, Landlords against Tenants 131 Form for breach of duty, etc 121 " not keeping premises in repair 123 Declarations on Promise to Marry 123 Form on promise to marry, etc 133 " same, etc 123 " same, etc 133 " same, etc 124 Declarations against Bailees, etc 137 Form against hirer of horse, etc 187 " against carrier, etc 139 " same, etc 130 Declarations on Contracts of Sale 134 Form for not accepting goods 134 " same, etc 135 " for not delivering goods, etc 135 " same, etc 136 Declarations on Policies of Insurance 137 Form on fire insurance policy 137 " same, short form 140 raSCELLANEOUS DECLARATIONS. Form of on promise to be accountable for goods sold to a third person. 142 Form of on promise to pay money as difference in exchange of property 143 Form of on ivritten contract for employment, plaintiff discharged icithout cause 143 Form of on same, on verbal contract of employment 144 CHAPTER V. DEFENSES TO THE ACTION OF ASSUMPSIT. The General Issue 146 Form of plea of non-assumpsit 148 Affidavit of merits 149 Form of 149 General issue, with notice of special matters 150 Form of notice of set-off, under general issue 151 Statute of Limitations 153 Wlien the statute begins to run 1 54 New promise 155 ANALYSIS OF CONTENTS. XI On foreclosure 157 Form, plea of 157 " replication — Cause of action did not accrue withiti five years. 158 *' replication — Defendant out of state 159 " rejoinder to same 159 Infancy 160 Observations upon 1 60 Form of plea of 163 " " replication denying infancy 163 " " " that goods were necessaries 164 " " rejoinder to same 164 " " rejjlication, defendant confirmed p>roniise ] 64 " " rejoinder to same 164 Statute of Frauds 164 Collateral and original undertakings 166 Form of plea of, agreement not to be pei formed in one year and not in xcriting 169 Form of replication to same 169 " " plea of, promise to answer for debt of another and not in writing 169 Form of replication to same 169 Fraud 170 Diligence required of maker 173 " " "assignee 173 Form of plea alleging fraud in obtaining execution of instrument. . 174 " " " by surety that execution tvas obtained by fraud 175 " " " replication 175 Usury 176 Observations upon 176 Form of plea of 182 " " replication 183 Set-off 183 Observations upon 183 No dismissal after 189 Form of plea of 189 " " replication— Statute of limitations 190 " " " nil debet 190 Release 191 Observations upon 191 Form of plea of 194 " " replication non est factum 195 Payment 195 Observations upon 195 Form of plea of 197 " " replication denying payment .... 198 Accord and Satisfaction 199 Observations upon 199 Form of plea of delivery and acceptance of goods 301 Xil ANALYSIS OF CONTENTS. Form of replication denying delivery of goods, etc 202 " " plea of— Account stated, etc 203 Arbitrament and Award 203 Observations upon 203 Form of plea of 204 " " replication denying aivard 204 «• " same 205 *' " rejoinder 205 Former Adjudication 205 Observations upon 205 Form of plea of judgment recovered 208 " replication 209 Tender 210 Observations upon 210 Form of plea of 213 " " similiter to general issue and replication 215 " " " admitting the tender 216 Pleas by a Surety 216 Further time given to principal 216 Notice by surety to ci-editor to prosecute 219 Death of principal — Diligence against estate 221 Form of plea that creditor gave further time without assent 222 " " " " " was given notice to sue 222 Breach of Warranty 223 Observations upon 223 Form of plea of 225 Want or Failure of Consideration 226 Observations upon 226 Form of plea of want of consideration 227 " " " " total failure of consideration 228 " " same, breach of ivarranty 229 " " " note given for fees 230 " " " " " " realestate 231 " " p/ea of partial failure of consideration 233 Illegal Consideration 234 Observations upon 234 Form of plea— Money loon by gaming 235 " " replication to same 235 " •' plea — Gambling in grain 235 Discharge in Bankruptcy 236 Observations upon 236 Form of plea of 238 Pleas Denying Execution of Written Instrument 239 Observations upon 239 Form of plea of 239 Pleas Denying Joint Liability 241 Observations upon 241 Form of plea 241 ANALYSIS OF CONTENTS. Xlll Form of same 241 NuL TiEL Corporation 243 Observations upon 242 Form of plea of. 244 Puis Darrein Continuance 244 Observations upon 244 Form of plea 247 CHAPTER YI. ACCOUNT. The statute 248 Joint tenants 248 By whom may be brought 249 Compelling account 249 Process 250 Form of declaration 250 Trial — Judgment 250 Auditors 251 Hearing before auditors — Notice— Default 251 Administering oaths — Witnesses 252 Taking account — Testimony — Compelling witness, etc 253 Adjusting accounts— Report — Judgment — Costs 253 Producing books — Consolidation of accounts 253 Notice of hearing 253 Continuances — Pleadings — Before justice 254 Jurisdiction 254 Other provisions of statute 255, 256 Limitations 256 Demand 256 Time for which to be taken 256 Declarations in the Action. Form, against bailiff 257 " against receii^er 257 " tenants in common 258 *' suits beticeen partners 259 " same, relating to land, etc 260 Pleas in the Action. Form, never bailiff 261 " never receiver 261 •* in suits beticeen tenants in common, etc 263 " same, fully accounted 262 CHAPTER VII. COVENANT. Where the action lies, etc 264 Covenants in deeds, breaches, etc 266 XIV ANALYSIS OF CONTENTS. Declarations in Covenant 270 Form, grantee v. grantor, etc 270 same, etc. , etc 271 second or remote grantee v. grantor, etc 273 on covenants in lease, etc 273 apprentice v. master, etc 274 on fire insurance policy 275 Defenses to the Action 278 Pleas in abatement 278 Pleas in bar • 278 Form, non est factum 278 " payment, etc 279 Pleas as to part, etc 279 Plea to several counts on same instrument 280 Form, performance 280 " in suit by aj^prentice, etc 281 (See observations following each precedent.) CHAPTER YIII. TROVER. Nature of the action, etc 282 Where the action lies 282 Agatust an officer 286 By tenant in common 286 By an officer 287 Conversion, vfhat constitutes 287 Demand, whether necessary 289 Essentials to support the action 290 Judgment 291 Commencement op the Action . . 291 The Declaration 291 Form, general 292 " hy executor, etc 293 defenses in trover 295 Pleas in Bar 295 Form, not guilty 296 "What plaintiff must prove 297 Damages 297 (See observations following each precedent.) CHAPTEE IX. REPLEVIN. Nature and history of the remedy 298 Where the action lies, etc 299 Who may maintain the action 302 ANALYSIS OF CONTENTS. XV Who may be made defendants 306 Demand, when necessary 306 Commencement of the action 306 Venue 306 Affidavit 307 Form of affidavit 307 Bond 308 Declarations in 309 Form, generally 309 " count in trover, etc 309 Defenses to the Action 310 Pleas in, etc 310 Form, non cepit 310 " non detinuit 311 " not guilty to count in trover 312 " property in defendant 313 " replication to same 313 ' ' property in stranger 314 " replication to same 314 ♦' justification by officer under execution 315 " lien on property, etc 317 " property held as pledge, etc 317 " avowry, etc., for rent 318 " plea in bar to avowry, etc 318 " same, no rent in arrear 319 Judgment for plaintiff 319 Judgment for defendant — Retorno habendo 320 (See observations following each precedent.) CHAPTER X. TRESPASS. Nature of the action, etc 331 Distinction between trespass and case aboHshed 323 Injuries to the Person 323 Where the action lies for 232 Injuries to Personal Property 327 Where the action lies for 327 Against an officer 325 Who may maintain the action 330 Against whom it lies, etc 332 Injuries to Real Property 332 Where tire action lies for 332 c0m3iencement of the action 838 The Declaration, etc 338 Matter or tiling affected 338 The plaintiff's right or interest 339 XVI ANALYSIS OF CONTENTS. Statement of the injury 340 The damages 342 Pleasure of 343 Vindictive, etc 343 Joinder of counts 344 For Injury to the Person. Form, for assault, etc 344 " for common assault 345 " same, tcith pistol 346 (( j'Qy, riding, etc. , against plaintiff , 346 " by husband and wife, etc 346 " false imprisonment, etc 347 " same, etc 347 " for debauching plaintiff's daughter 348 " for criminal conversation 348 For Injury to Personal Property. Form de bonis asportatis 349 " for chasing cattle, etc 349 " for chasing mare, etc 349 " for driving carriage against plaintiff's — Injury, etc 350 " for lining plaintiff's horse 350 " for shooting plaintiff's dog 351 *' against constable, imder the statide, for taking exempt prop- erty 351 For Injuries to Real Property. Form, for breaking into dwelling, etc 353 " for common expidsion 353 " for entering close, etc 353 " for cutting and cai^rying away trees 354 " for digging, etc, in coal mine 355 " for mining ore, etc 355 Defenses to the Action 355 Pleas in Bar, etc 355 Form, pleanot guilty 357 " son assault demesne 358 " same, etc. , etc 359 " replication de injuria, etc 359 New assignment, etc 361 Form, lilea, molHter manus imposuit, etc , 331 " same, etc, etc 363 " justification by teacher, etc 363 " justification by J. P., etc 364 " same by officer making an arrest 364 " same, etc, etc 365 " same by private person, etc 367 •• by sheriff justifying, taking goods under execution 367 " replication to lileas of jxistification, etc., etc 369 " plea that injury was caused by plaintiff's negligence, etc. . . 370 ANALYSIS OF COXTENTS. XVll Form, plea of license 370 " replication to same 370 " liberuin tenenientum 373 " replication denying, etc 373 " new assignment 374 (See observations following each precedent.) CHAPTER XL ATTACHMENT. Proceedings in 375 Nature of proceeding 375 Where it lies, etc 376 Commencement of the Proceeding, etc 377 By affidavit, etc 377 Form of affidavit 377 Traversing affidavit 378 Amendments 379 Wliere suit to be brought 379 Plaintiff required to give bond 380 Against joint debtors 380 Execution of the writ, etc 381 Service 381 Certificate of levy 381 Eeturn 381 The Declaration, etc 382 Garnishees = 382 Notice to Defendant by Publication 383 Default— Continuance 383 Defenses to the Proceeding 384 Form of plea in abatement traversing affidavit 384 Practice and Pleading in 385 Forthcoming bonds, etc 386 Bond. etc. , for return of property 387 Interpleader by Third Party 387 Form, Interpleader 388 A'lTACHMENT IN AID OF SUIT PENDING. 388 Form of affidavit in aid, etc 389 " same, in case of tort, etc 390 " order of judge for 390 Service 390 Judgment where there is no personal service 390 Sale of property on execution 391 Division of proceeds, etc 391 Division by the sheriff, etc 393 Proceeds brought into court 392 Garnishment 393 Form of affidavit for, etc., on judgment, etc 393 2 XVlll ANALYSIS OF CONTENTS. Service and return of summons 393 Interrogatories and Answers 393 Form, interrogatories to garnishee 394 " ansicer of garnisJiee 395 Plaintiff may contest the answer 395 Garnishee may deduct demands 396 Other claimants of effects in hands of garnishee 397 Garnishee may contest proceedings, etc 398 What is subject to garnishment 398 Non-resident garnishee 401 Conditional Judgment 401 Final Judgment 401 Death of Garnishee, etc., etc 402 Effect of Judgment against Garnishee 402 When debt of garnishee is not due, etc 402 Form of judgment against garnishee 402 Effect of 402 Death of garnishee 402 Execution stayed when debt not due 402 Attachment of Water Crafts 403 For what lien is given 403 Lien on goods for freight 404 Limitation of proceeding 404 The Petition for Enforcement of Lien 404 Form of petition for attachment, etc 404 " same, etc., etc 405 Bond to be filed, etc 405 Notice by publication 405 Intervening creditors 406 Bonding vessel 406 Appraisement — Restitution— Sale 406 Answer — Affidavit of Merits— Default 406 Judgments— Order of Sale 407 Amendments 407 Distribution, etc 407 Jurisdiction of state and federal courts 407 Prior liens 408 (See observations following each precedent.) CHAPTEE XII. EJECTMENT. Action of 409 Nature of the action, etc 409 When the action lies, etc 409 Title necessary to sustain 411 By landlord against tenant 413 ANALYSIS or CONTENTS. XIX Who may maintain the action 413 Against whom to be brought 414 Suit against tenant 415 Commencement of the Action 416 The Declaration 416 Form, generally 417 " hy several persons, etc., etc 417 Defenses to the Action 418 Foiin, plea not guilty 419 Claim for Mesne Profits 420 Form, suggestion of claim for mesne profits 421 Defense to claim for same 421 Form, plea non-assumpsit, thereto 422 New trial under statute 422 Kevival of judgment 424 Common source of title 424 (See observations following each precedent.) CHAPTER XIII. DEBT, ACTION OF. Where the action lies 425 Penal actions under statute. 428 Commencement of the Action 430 Form, prtecipe for summons 430 Declarations in 430 Precedents of 434 Form, indebitatus count 434 " on promissory note, etc 436 " on bill of exchange 438 " on axvard, etc 438 " on judgment in same court 440 " same, of another state 440 " same, of justice of the peace, etc 442 " in action for rent, etc 443 " on hill or sealed note 443 Profert, when necessary 444 Actions on Penal Bonds, Statutory, etc 444 Judgments, etc. in Actions on Penal Bonds 445 Declarations upon Penal Bont)S, etc 445 Form, on appeal bond, etc 445 " on replevin bond, etc 448 " same, etc 45O " on sheriffs' bond, etc 453 " on guardian's bond 457 " same, etc. , etc 459 •' on administrator's bond 461 " devastavit, how alleged 464 XX ANALYSIS OF CONTENTS. Form on attachment bond 468 " on injunction bond 469 " on dram shop license bond, etc 475 " on statute, dram shop act, etc 476 •' on statute, cutting trees, etc 477 '* on statute, against drover, etc 480 Exceptions and provisions in statute 481 Form, on statide, against sheriff not admitting counsel to prisoner. 482 " on statute, landlord v. tenant, for double rent 483 To recover delinquent taxes 484 Against railroad companies 485 Against county clerk 486 Defenses to the Action 486 Pleas in Abatement 486 Pleas in Bar 486 Form, nil debet 487 " non est factum 489 " non est factum and nil debet, etc 490 " non est factum, after craving oyer, etc 490 Special non est factum 491 Form, escrow, etc 493 " onerari non 493 " tender, etc 494 " nul tiel record 494 " replication to nul tiel record 496 " plea of duress, etc 497 " replication to same 497 " plea of set-off, etc 498 '* payment, etc 498 " failure of consideration, etc 499 " performance generally 499 " non danmificatus 500 " no rent in arrear, etc 501 " no airard made 501 " plea of eviction 501 " replication denying same 502 " on replevin bond, merits not tried, property in defendant 502 " former conviction, etc 503 Demurrer after craving oyer. 504 (See observations followino each precedent.) CHAPTEH XIY. HABEAS CORPUS. History of the remedy, etc 505 When writ will be granted, etc 507 By whom application for may be made 509 ANALYSIS or CONTENTS. XXI To ^ehom it may be made ... 510 Petition for, etc 511 Form of petition, etc 512 " of, same, etc., etc 513 " of parent for child, etc 513 " peh7io>ier held by ca. ad res., etc 513 *' ad testificandum, etc 514 Allowing and Issuing of the Writ 515 Form of order by master in chancery 515 " general, of the ivrit 515 Indorsem^ent of writ 515 Service of the writ, etc 515 Expenses of, etc 516 Return of, etc 516 Precedence given to writ 517 Form,, return of lorit, etc 517 " same, denying custody, etc 517 " same, by private person, etc 518 Examination, etc. , etc 518 Denial of return, etc 518 Causes for discharge 518 Form, order of discharge, in vacation 520 *' order remanding prisoner, etc 521 " order of discharge, in term 521 " order remanding, etc., etc 521 (See observations following each precedent.) CHAPTER XY. SCIRE FACIAS. Nature of the %vi-it, etc 523 To Make Party to a Judgment 524 Against garnishees, etc 524 To revive a judgment 525 Form of prgecipe/o?- 526 " of, to revive judgment 526 " same, in ejectment 527 On Mortgages, Statutory 528 Form of, to foreclose mortgage 530 " same, etc., etc 581 On Recognizances, Statutory .^iSS Form of scire facias upon recognizance 533 Defenses to Scire Facias, etc 536 What a defendant may plead 536 (See observations following each form.; XXU ANALYSIS OF CONTENTS. CHAPTER XVI. MANDAMUS. Nature and purpose of the writ 539 Award of, discretionary 539 Purpose of writ 539 When will lie , 542 When will not lie 544 Jurisdiction given, in what courts 544 The relator, etc 545 Proceedings, summons 545 Demand necessaiy, etc 546 Petition for, etc 547 Requisites of 547 Summons to issue, etc 547 Default, answer, etc 547 Time to plead, etc 548 Pleadings, etc 548 False Return, Damages, etc 548 Judgment, etc. , etc 548 Making New Defendants, etc 548 Death of Defendant, etc 548 Effect of other Remedies, etc 548 Form, petition for ivrit 549 Defenses to, etc 551 Answer or pleas 551 Form, answer to petition 553 " plea to petition 554 (See observations following each precedent.) CHAPTER XYII. CERTIORARI. The Common Law Writ 555 Its nature and purposes 555 The Statutory Writ, etc 558 Its nature and purposes 558 The Petition, etc 560 Requisites of, etc 560 Form of petition for, etc 562 (See observations following each precedent.) CHAPTER XYIIL QUO WARRANTO. Nature of the writ, etc 565 The Proceedings by Information. Jurisdiction of Circuit Courts 566 ANALYSIS OF CONTENTS. XXIU Practice 566 When leave to file will be granted 566 When leave to file wiU not be granted 567 Limitations 567 When will lie 568 Statutory Proceedings, etc. Parties 573 Motion for leave to file iaif orniation 573 Form of information 573 Summons to be issued, etc 574 Service of the same 574 Defendant required to plead, etc 574 Burden of proof 575 Time allowed to plead 575 Judgment in Nature of, etc 575 Appeaxs and Writs of Error, etc 576 Process 576 The Information. Form of, by attorney general, etc 576 " of, at instance of relator, etc 577 Amendments 578 Defenses to the Proceeding 579 Pleas to, etc 579 Form of plea by corporation, etc., etc 580 " of plea by person, etc 580 Replications to pleas, etc 581 Authorities 581 (See observations following each precedent.) CHAPTER XIX. ARBITRATION AND AWARD. Nature of the proceeding, etc 583 Statutory Submission 583 In Suit Pending 583 Proceedings by arbitrators 583 Oath by arbitrators 584 Subpoenas for witnesses — swearing witnesses 585 The hearing 585 The award — publication of 586 Prima facie an award is valid 588 Either party not complying, award may be filed in court, etc 588 Judgment upon award 588 Enforcement of an award 589 Award, when set aside 589 For fraud 590 For mistake 593 Award prepared by attorney for one of the parties 593 XXIV ANALYSIS OF CONTENTS. Signing of the award 593 When court may correct award 593 When motion to set aside or modify must be made 594 Error and appeals 594 Compensation of ai'bitrators 594 Fees of witnesses, etc 594 Arbitrators may be compelled to act 595 Record of reference 595 In Controversies not in Suit 595 Statutory' provisions relating to 595 Construction of the statute 595 Proceedings under section 16 596 Award under section 16 596 Common Law Submission 596 Differs from statutory submission 596 How submitted 597 Revocation of submission 598 W^ho may be arbitrators 599 General powers and duties of arbitrators 600 Recommitting an award 601 Forms of Submission, etc 601 Form, agreement to submit in suit pending 601 " same, each party to select one arbitrator, and the court the third 603 " order referring suit pending, to arbitrators 602 " oath of arbitrators 603 " aivard in suit pending 603 " agreement of submission of a eontrorersy not in suit 603 " award in a controversy not in suit (statutory) under Sec. 16. 603 " general agreement for submission of all matters in contro- versy (Com. Law) 604 " agreement for submission of particular matters in contro- versy (Com. Law) 604 " arbitration bond, given by each party to the other 605 " award on common law submission, by single arbitrator 605 " same, by three, or more or less, arbitrators 605 CHAPTER XX. CONFESSION OF JUDGMENT. In Illinois 606 Practice 606 The declaration 606 Warrant of attorney 606 Form, proof of tcarrant of attorney 607 The cognovit 607 Form, cognovit 608 In term time 608 ANALYSIS OF CONTENTS, XXV In vacation — Power of clerk 609 When may be taken before maturity 610 Attorney fees 610 Confession by a partner 610 By corporation ; 611 By an infant 611 In cases of tort 611 Sureties 611 Vacating judgment 612 Limitations 614 Power to confess in lease 614 In forcible detainer 615 Appeal 615 Vacation, what is 615 CHAPTER XXL DISTRESS FOR RENT. Nature of , etc 616 Landlord's lien, statutory, etc 616 What may be distrained 617 Form, distress warrant 619 Return of warrant, inventory 620 Form, inventory to be filed, etc 620 Summons to be issued 620 Notice to non-residents, etc 620 Form, affidavit for publication 621 Proceedings — Pleadings 621 Defenses— Set-oflf, etc 621 Judgment for plaintiff 622 Where there is no personal service 623 Judgment for defendant 623 Release of property distrained, etc 623 Perishable property 623 Rights against sub-lessees 624 CHAPTER XXII. CASE, ACTION ON. Nature of the action, etc 625 Where the action lies, etc 625 Negligence 631 Commencement of the Action 633 Declarations in Case 633 In what countj" suit may be brought v. R. R. Co 637 Form, negligence of R. R. Co. in crossing highu-ays, etc 633 " on Statute v. R. R. Co. for not ringing bell, etc 637 XXVI ANALYSIS OF CONTENTS. Form, against street railioay Co. for negligence, etc 638 " V. R. R. Co., for negligence in managing train, etc 639 " V. same, damages from engine 640 " same, second count 640 " V. same, on statute for not fencing its road 643 " same, second count 643 " V. same, by administrator for causing death, etc 647 " V. City, for neglect to keep sideivalk in repair, etc 649 " for keeping vatdt uncovered, etc 651 *' V. defendant for obstructing natural floio of water 653 " V. proprietor of stage coach for negligence, etc 653 " for keeping vicious dog, etc 654 " for malicious prosecution 655 " same second count 656 " for criminal conversation 660 " for debauching plaintiff's daughter 661 " for deceit in obtaining goods on credit 663 *' for deceit in sale of horse 664 *' same, in sale of wool, etc 665 " V. Commissioners of Highways for flooding land 666 " for setting fire to prairie 667 *' V. sheriff for taking insufficient sureties in replevin 667 " for over-loading, etc., horse 668 " V. physician for malpractice 669 " V. attorney for negligence, etc. .' 670 " Y. R. R. Co. as carrier for negligence, etc 671 " V. saloon-keeper under the statute, causing intoxication and death of plaintiff's husband, etc 673 " V. landlord of dram shop, etc., under the statute, for injury caused by intoxicated person, etc 673 In Case for Slander and Libel 678 What amounts to slander 678 Where the action lies for, etc 678 Declarations for Slander and Libel 685 Form, for slander, etc 690 " words charging fornication, etc 691 " words charging perjury 691 *' same, second count 693 *' for words charging larceny 693 •' for words in foreign language 693 " for words imputing insolvency, etc 694 " for libel in newspaper 695 " for libel in letter, imputing insolvency, etc 696 Defenses to the Action of Case 698 Pleas in Bar, etc 699 Form, not guilty 699 Special pleas generally 699 General issue in actions for slander, etc 700 ANALYSIS OF CONTENTS. XXVll Special pleas in actions for slander, etc 702 Form, justification, etc 703 ' ' replication de injuria 704 " justification, etc 705 (See observations following each precedent.) CHAPTER XXIII. AMENDMENTS. Reform in the Practice, by 706 Amendments generally 706 Amendments before judgment 708 Terms upon which allowed 709 Of executions when allowed 709 Of returns of process, when, etc 709 Of records, etc 7 1 Of pleadings in vacation, etc 712 Of process out of term, etc 712 Of errors in fact, after judgment 712 Writ of coram nobis abolished 712 Other statutory' provisions 713 Changing cause from law to chancery 713 Judgments after term 714 Bills of exceptions 714 Defects cured by pleading to the merits 714 Defective pleading cured by verdicts 714 Trial without issue joined 715 Authorities 715 CHAPTER XXIV. CONTINUANCES. How and when applied for 716 For want of testimony, etc 716 Form of affidavit for, etc 717 By Reason of Amendment, etc 722 For Want of Declaration, etc 722 Defendant in Military Service 723 Party or Counsel in Legislature 723 On Remanding Cause from Supreme or Appellate Court 723 Terms may be Imposed 723 By Operation of Law 724 CHAPTER XXY. JURY. Right of Trial by 725 Who are Competent Jurors 726 XXVlll ANALYSIS OF CONTENTS. Who are Exempt, as 726 Challenges of Jurors 727 To the array 727 To the polL 728 For cause 728 Pereniptorj^ etc 731 Polling the Jury 732 CHAPTER XXYL ARREST OF JUDGMENT. When it will or will not be arrested 733 Time and manner of moving in arrest 736 CHAPTER XXVII. BILES OF EXCEPTIONS. Objections to decisions of court preserved by, etc 737 When exceptions must be taken 739 Signing and sealing of the bill, etc 739 What the bill should contain, and when necessary 741 Form of bill to evidence, instructions, etc 746 " same, refusal to grant a continuance 747 CHAPTER XXYIII. AGREED CASES— QUESTIONS OF LAW CERTIFIED. Agreed Cases 748 Certified to Supreme or Appellate Court 748 Statutory provision, etc 748 Agreed case must not be feigned 748 Must first be decided in trial court 748 Questions of Law Certified 749 Judges may certify 749 Statutory provisions 749 Exceptions to statutory provisions 749 What certificate must contain 749 Form, agreed case betioeen parties in suit pending 750 ' ' decision of court upon an agreed case 750 " agreement that judge may certify questions of law 751 *' agreement as to questions of law 752 *' certificate of judge of questions of law, etc. , etc 752 " agreement as to questions of law arising in the case 753 " decision of the judge upon the questions of law arising in case finally determined 755 Rule 20 of Supreme Court relating to agreed cases 756 Form, affidavit as to good faith 756 ANALYSIS OF CONTENTS. XXIX CHAPTER XXIX. REFEREES. Referring causes by agreement 757 Power of court discretionary 757 Proceedings must conform to the statute 757 Oath of referee 758 Report of referee 758 Exceptions taken thereto 758 When to be made 758 Witnesses required to attend 759 Referee may administer oaths 759 Judgment upon report 759 Referee's fees, costs, etc 759 Testimony taken to be reported, etc 759 Shall form part of record 759 Form, agreement to refer 759 " order appointing referee 760 " report of referee, for plaintiff. 760 " report of referee, for defendant 760 " exceptions to report 760 CHAPTER XXX. ATTORNEYS AND COUNSELORS AT LAW. Nature of the office, etc 762 How admitted 762 Qualifications 763 Authority of Attorneys, etc 764 It can not be delegated 766 Retainer, etc 767 Agreements made by for client, etc 767 Admissions by, etc 768 Termination of employment 768 Duties and Liabilities 768 Duty to court 769 Ought not to be witness for client, etc 769 Acting in another capacity 770 Can not act on opposite sides 770 Liability to third person 771 Dealings between attorney and client 771 Assigned by court to defend prisoners 773 Rights and Privileges 773 Privileged communications 773 Fees, etc 774 Lien of , etc 774 Change of attorney 775 XXX ANALYSIS OF CONTENTS. CHAPTEE XXXI. CHANGE OF VENUE. When same may be had, etc 776 Interest, etc ., of judge 776 Prejudice, etc. , of inhabitants, etc 777 Notice of application, etc 777 Form of notice 777 The Petition for, etc 777 Form, prejudice of judge, etc 778 " prejudice of inhabitants 778 When application may be made 778 By whom made 779 Part of plaintiffs or defendants 779 Order, granting in vacation 779 Terms and conditions 779 C'osts of the change 780 When to be paid 780 Transcript, Papers, etc 780 To What Court Changed, etc 780 Docketing cause, etc 781 Irregularities waived, etc 781 Criminal cases 781 To what judge 782 CHAPTER XXXII. SUBMISSION TO JUDGE. Statute relating thereto 783 Submission to be oral 783 Without formal pleadings 783 Agreement to submit to be in writing 783 Form, agreement to submit 783 Judge to determine such controversies in summary manner 784 Judgment or decree to be final and conclusive 784 No appeal allowed therefrom 784 All matters either in law or equity may be submitted 784 CHAPTER XXXIII. NEW TRIALS. Grounds for Granting New Trials 785 Misbehavior of party prevailing 785 Mistakes or misconduct of jury, etc 786 Verdict against the law and evidence 787 ANALYSIS OF CONTENTS. XXXI Excessive or inadequate damages 788 Admitting improper or refusing proper evidence 789 Error in the ciiarge to the jury 790 Newly discovered evidence 792 Absence or mistake of witnesses 793 Surprise, etc 794 Death of trial judge 795 Improper remarks of counsel 795 Statutory provisions 796 New trial by agreement 797 Mode of Applying for New Trial 797 Form of motion for 797 Setting aside Default, and Granting Trials on Merits 798 CHAPTER XXXIY. EVIDENCE. Mode of Procuring, etc 801 Documentary Evidence 801 Form, notice to produce on trial 802 Production of books and writings 803 Books of account as evidence 804 Oral Testimony of Witnesses, etc 806 Attendance of witness, how procured 806 Form, praecipe for subpoena for witnesses 806 Tender of fees, when required 807 Habeas corpus ad test 807 Depositions 807 When they may be taken 807 Witnesses residing in another county, etc 808 Form, affidavit to be filed, etc 808 * ' notice to be given, etc 809 Of witness residing in state, non-resident witnesses, etc 810 Form, of notice and interrogations, etc 811 Of non-resident witnesses upon oral interrogatories 812 Notice by mail, etc 813 Instructions for Taking Depositions 814 Form, of caption, etc 814 " of certificate, etc 815 Exceptions or objections to 818 (See observations following each form.) CHAPTER XXXY. JUDGMENTS. Nature and effect of , etc 820 Interlocutory or final 820 By default goj XXXii ANALYSIS OF CONTENTS. Assessment of damages upon 823 Writ of inquiry 822 By the court 823 By the clerk 823 Either party may require jury 824 Of non-suit, etc 824 Eilect of, etc 824 Judgment on demurrer 825 Judgment on verdict 825 Forms of judgments, etc 825 After death of defendant 827 CHAPTER XXXVI. TRIAL OF RIGHT OF PROPERTY— INTERPLEADER IN ATTACH- MENT. History of proceeding 828 Proceedings for 829 Trial in County Court 830 Notice 830 Service— Continuance 830 Notice by publication 831 Entry of appearance 831 Trial— Pleading— Jury 831 Trial by jury 831 Subpoenas 832 Judgment— Exempt property— Costs 832 Appeal— Trial de novo 832 Judgment— Indemnity , 832 Apportionment of costs 833 Form of notice to sheriff 833 Interpleader in Attachment 834 CHAPTER XXXYII. TRIAL AND VERDICT. Wlio may open the case 838 Order of proceedings on the trial 838 Deliberations of the jury 841 Delivery of the verdict 842 Verdicts, etc 843 General verdict, etc 843 Special verdict, etc 844 Special findings 844 Trial by Court 846 Propositions of law 846 Form of submission of 848 PUTERBAUGH'S COMMON LAW Pleading ajstd Pkactioe. CHAPTER I. GENERAL PRINCIPLES OF PLEADINGS. Object of — Term defined. — The important object to be attained in pleading is to bring the subject-matter of conten- tion in an action to an issue — to a point where a matter is affirmed on one side and denied on the other — to render the facts in each party's case plain and intelligible, and to refer the points at issue to the court and jury, with all possible sim- plicity, for their decision. Outside of the profession, the term pleading is most generally understood to be the forensic argument in a case; it is, how- ever, the statement, in a plain, logical and legal form, of those facts which, in law, show the justice of the demand made by the plaintiff, or the discharge and defense of the defendant. It is the formal mode of alleging that on the record which is the basis of the action, or the ground of defense. The common law system. — The common law system, which is retained and practiced in many states and territories of the Union, is one of great antiquity. Anciently, all pleadings were delivered orally, and in open court, and were contemporaneously entered on the record. This mode was in use in the reign of Henry III. In later times the pleader entered his statement in the first instance (1) 25 GENEKAL PRINCIPLES OF PLEADINGS. upon the parchment roll on which the record was formerly drawn up; the opposite party, having access to this roll, entered his answer in the same manner, and so on, until an issue was pre- sented; and the roll thus formed the record of the cause. This method beinmeeijje and care sliould be taken to give proper descrip- tion to the parties to the suit, and other particuhirs, as a va- riance between the writ and declaration as to the parties, cause of action, or amount of damages alleged, will be ground for a plea in abatement, or, in some cases, for motion to quash.' But where a suit is instituted in the individual names of school directors, in reference to a matter in which they are only interested in. their corporate capacit3^ the court will allow the title of the cause to be amended by striking out the individual names of the directors, and substituting their cor- porate name.'' Corporations should be described in all legal proceedings by their corporate names.' If a promise is made to or by a corporation or person by a wrong name, the action should be brought in the right name, setting forth the facts in the declaration; but otherwise where a specialty is entered into by a wrong name.^ The cautious pleader will generally file a praecipe, as a guide to the clerk in preparing the summons; and then if the writ should happen to be erroneous, the fault may be amended by the praecipe; " although it is not essential to the proper and legal issuing of the summons that a praecipe should be filed at all. Praecipe for Summons or Capias. In the Court of the County of , in the State of Illinois. A. B. ) vs. > . Damages $ , C. D. ) The clerk of the said court will issue a summons (or " capias ad respon- dendum "), as above, directed to the sheriff of the county of , and re- turnable to the term, 18 — . {Date.) To J. K, Clerk, etc. E. F., Attorney for Plaintiflf. ^ Rust V. Frothingham, Breese 20111.46; Reaugh v. McConnell, 36 331; Prince v. Lamb, Breese 378; 111. 373; Windett v. Hamilton, 53 Cruickshank v. Brown, 5 Gilm. 75; 111. 180. Weldv. Hubbard, 11 111. 574; Row- ^Shoudyv. Directors, 32 111. 290. ley V. Berrian, 12 111. 199; Carjien- ^ III. Hosp. v. Higgins, 15 111. 185. ter V. Hoijt, 17 111. 530; Plato v. Ter- * 1 Chitty's PI. 223; Gould's PI. 241. ri7/, 18111. 274; Schoonhoveny. Gott, ^Thompson v. Turner, 22 ill. 389. COMMENCEMENT OF AN ACTION. 7 Bail in civil cases — Capias ad respoiidendum. — The first section of tlie Illinois statute concerning bail in civil cases, in force from and after July 1, 1872, provides, that when any person shall be about to commence a suit in any court of record in the state, founded upon any specialty, bill or note in writing, or on the judgment of any court, and in all actions of covenant and account, and actions on verbal contracts or as- sumpsits at law, if the plaintiff, or his agent or attorney, shall make an affidavit setting forth the cause of action, and the amount due the plaintiff, and facts showing that the defend- ant fraudulently contracted the debt, or incurred the obliga- tion, respecting which the suit is about to be brought, or that he has concealed, assigned, removed, or disposed of his prop- erty with intent to defraud such plaintiff, and shall present such affidavit to a judge of a court of record, or if there be no such judge in the county at the time, then to a master in chan- cery, and if such judge or master shall be satisfied that suffi- cient cause is shown to require bail, he shall indorse an order under his hand, on such affidavit, directing the clerk of the court in which suit is about to be brought to issue a capias ad respondendum, directed to the proper officer to execute, for the arrest of the defendant or defendants in such proposed action; and the judge or master shall, in such order, fix the amount of the bail; and upon the filing of such affidavit and order, it shall be the duty of the clerk to issue a capias, and indorse thereon an order directing the sheriff, or officer to whom such process is directed, to hold the defendant to bail in the sum specified in such order, and the sheriff, or officer serving such process, shall take bail accordingly.' Actions sonnding merely in damages, — The second section provides, that in actions sounding merely in damages, where the same can not be ascertained, the affidavit shall also set forth the nature and cause of the action, with the substantial or chief facts in relation thereto, and that the affiant verily believes that the benefit of whatever judgment raav be obtained will be in danger of being lost unless the defendant is held to bail; and if upon examination thereof, the judge or '1 Starr & Curtis" An. Stat. 358; Rev. Stat. (1893) 190; Rev. Stat. (1895; 192. COMMENCEMENT OF AN ACTION. master shall be satisfied that sufRcient cause is shown to require bail, he shall make an order thereon, specifying in what amount the defendant shall be required to give bail, and like proceedings shall be had thereon as provided in section one of the same act, and the officer serving the process shall in like manner take bail. Plaintiff to give bond. — The third section requires that the judge or officer ordering the issuing of such capias shall require bond of the plaintiff in a penal sum of double the amount sued for, with security to be approved by the clerk issuing the Avrit, conditioned that the plaintiff shall prosecute the cajpias with effect and without delay, and pay the defendant all costs and damages that may be sustained by the wrongful suing out of such capias. And no capias shall issue until such bond is ap- proved and filed by such clerk. Bail bond. — The fourth section provides, that where any writ shall have been issued from any court of record in the state, whereon bail is required, the sheriff or other officer to whom the same may be directed, shall take a bail bond to him- self, with sufficient security, in the sum for which bail is required. The form of the condition of such bond is given in the same section, and is substantially the same as the condi- tion of the " bail bond in civil actions " hereafter given. The bond so taken is to be returned with the writ, on or before the first day of the term of the court to which the writ is returnable. The officer making the arrest is required to give the person arrested reasonable time and opportunity to pro- cure bail before committing him to jail. No. 1. Affidavit for capias ad respondendum, charging fraud, in action ex contractu. '"\ State of Illinois, County of f set. A. B., of , who is about to commence his action of (assumpsit, or as the case may be), in the Court of the said county, against C. D. of , makes oath and says, that the said C. D. is justly indebted to this affiant in the sum of dollars, for {here set forth tlie cause of action particularly) *. And this affiant further says, that the said C. D. (here set forth facts shoiving that the defendant fraudulently contracted the debt, or incurred the obligation, respecting tchich the suit is about to bzbrought). And this affiant further says, that he verily believ^-s COMMENCEMENT OF AN ACTION. 9 the benefit of whatever judgment he may obtain in this belialf will be in danger of being lost, unless the said C. D. be held to bail. A. B. Subscribed and sworn, etc. No. 2. Affidavit for capias, charging the defendant with concealing, assigniyig, removing, or disposing of his property, with intent to defraud the plaintiff. {Commence as in No. 1, inserting these words at the * :) And this affiant further says that the said C. D. (here set forth facts shou-ing that the de- fendant has concealed, assigned, removed or disposed of his property, as the case may he,) with the intent to defraud this affiant. And this affiant fur- ther says, that he verily believes the benefit of whatever judgment he may obtain in this behalf will be in danger of being lost, unless the said C. D. be held to bail. A. B. Subscribed, etc. No. 3. Affidavit for capias, in action sounding merely in damages, etc. State of Illinois, ) County of , [set. A. B., of , who is about to commence his action of (trespass, or as the case may be,) in the Court of tlie said county, against C. D. , of , makes oath and says, that (here set forth the nature and cause of the action, ivith the substantial facts in rela- tion thereto). And this affiant further says, that the amount of his dam- ages can not be definitely stated, but he believes he has sustained damages in this behalf to the amount of dollars. And this affiant verily be- lieves that the benefit of whatever judgment he may obtain in his said suit will be in danger of being lost, unless the said C. D be held to bail. A. B. Subscribed, etc. In setting forth the facts in the aiRdavit, it is advisable to state them substantially as they are required to be set forth in a declaration. The above forms, Nos, 1 and 2, may be varied to suit any action arising ex contractu, and form Xo. 3 can be adapted to all actions ex delicto. Before the passage of the act in force July 1, 1S72, the statute of Illinois did not go far enough to meet the requirements of the constitution.' It will be seen that the affidavit for a capias must be pre- sented to a judge of a court of record, or if there is no such judge in the county at the time, then to a master in chancery; and if such judge or master shall be satisfied that sufficient 1 In re Smith, 16 111. 347; Gorton v. Frizzell, 20 lU. 291; Parker v. Fol- lansbee, 45 111. 473. 10 COMMENCEMENT OF AN ACTION. cause is shown to require bail, be sball indorse an order, under his hand, on the affidavit, directing the clerk of the court in which suit is about to be brought to issue a capias ad respon- dendum, directed to the proper officer to execute, for the ar- rest of the defendant in such proposed action; and the judge or master shall in such order iix the amount of the bail. The judge or master ordering the issuing of such capias Avill require bond of the plaintiff in a penal sum of double the amount sued for, with security to be approved by the clerk issuing the writ. Judge's order for a capias ad respondendum, to hz indorsed on the affi- davit. Let a capias ad respondendum issue, directed to the sheriff of the county of , for the arrest of C. D., within named, of whom the sheriff will take bail in the sum of dollars. The within named A. B. will give bond in the sum of (double tlie amount sued for) dollars, conditioned according to law. (Date.) E. F., Judge. To G. H., Clerk of the Court of the county of . The order to be made by a master in chancery may be the same as the above, except that it should commence as follows : It appearing to the undersigned that there is no judge of a court of record in the covmty: Let, etc., etc. O. R., Master in Chancery. Bond to be given by the plaintiff before the issuing of the writ. Know all men by these presents, that we, A. B., E. F. and L. M., of , are lield and firmly bound unto C. D., of , in the penal sum of dol- lars, for the payment of which, well and truly to be made, we bind our- selves, ovir heirs, executors and administrators, jointly and severally, by these presents, sealed with our seals, and dated this day of , 18 — . The condition of this obligation is such, that whereas the above-bounden A. B . is about to sue out of the Court of the county of , in the State of Illinois, a writ of capias ad respondendum, in a plea of , against the said C. D., returnable to the next term of the said court, to be held at , on the day of next: Now if the said A. B. shall prosecute the said capias with effect, and without delay, and pay to the said C. D. all costs and damages that may be sustained by the wrongful suing COMMENCEMENT OF AN ACTION. 11 out of such ca^jms, then this obligation shall be void ; otherwise shall remain in full force. A. B. [L. s.] E. F. [L. s.] L. M. [L. s.] Taken and approved by me, this day of , 18—. R. S., Clerk. Bo7id to be taken by the sheriff from the defendant. Know all men by these presents, that we, C. D. and E. F., of , are held and firmly bound unto T. W., sheriff of the county of , in the State of Illinois, in the penal sum of {double the amount for which bail is required) dollars, for the payment of which, well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and sever- ally, by these presents, sealed with our seals, and dated this day of , 18-. The condition of this obligation is such, that whereas one A. B., plaintiff, has lately sued out of the Court of the county of a certain writ of capias ad respondendum, in a certain plea of , against the above-bounden C. D., defendant, returnable to the next term of the said court, to be holden at , on the day of next: Now if the said C. D. shall be and appear at the said court, to be holden at , on the day of next, and in case the said E. F. shall not be re- ceived as bail in the said action, shall put in good and sufficient bail, which shall be received by the said plaintiff, or shall be adjudged sufficient by the court, or, the said E. F. being accepted as bail, shall pay and satisfy the costs and condemnation-money which may be rendered against the said C. D. in the plea aforesaid, or surrender the body of the said C. D. in execu- tion in case the said C. D. shall not pay and satisfy the said costs and con- demnation-money, or surrender himself in execution when by law such surrender is required, then tliis obligation shall be void; otherwise shall re- main in full force. C. D. [l. s.] E. F. [L. s.] Affidavit of plaintiff's claim on contracts for payment of money. — Section 36 of the Practice Act provides, that " If the plaintiff in any suit upon a contract, expressed or implied, for the payment of money, shall file with his declaration an affidavit showing the nature of his demand, and the amount due him from the defendant, after allowing to the defendant all his just credits, deductions and set-offs, if any, he shall be entitled to judgment as in case of default unless the defendant or his agent or attorney, if the defendant is a resident of the county in which the suit is brought, shall file with his plea an 12 COMMENCEMENT OF AN ACTION. aiRdavit stating that he veril}^ believes that he has a good defense to said suit, upon the merits, to the whole or a portion of the plaintiff's demand, and if a portion, specifying the amount (according to the best of his judgment and belief), upon good cause shown, the time for filing such affidavit may be extended for such reasonable time as the court shall order; no affidavit of merits need be filed with a demurrer or motion: Provided, that this section shall not apply to any case where an executor or administrator shall defend in behalf of an estate: And provided further, that if the plaintiff, his agent, or attorney, shall file an affidavit stating that affiant is taken by surprise by such plea and affidavit of merit, and that he believes that plaintiff has testimony to support his claim against the defendant, which he can not produce at that term of court, but expects to produce by next term, the court shall continue such cause until the next term." ' The affidavit of the plaintiff's claim may be made by any one cognizant of the facts.' An affidavit of plaintiff's claim on an account is to be taken asprifiia facie evidence of the amount due, unless the defend- ant files an affidavit of merits with his pleas." An affidavit of claim or merits may be filed with a distress warrant,' or a declaration on an appeal bond.* Form of affidavit to he filed ivith declaration, (Venue and title of cause as on page 6, ante.) A. B., of etc., makes oath and says that he is, etc. (Here state u-hetJier he is plaintiff, agent, etc); that the demand of the plaintiff in the above entitled cause, is for, etc. (state the nature of the demand); and that there is due to the plaintiff from the defendant, after allowing to him all just credits, deductions and set-offs, the sum of dollai-s. A. B. Subscribed and sworn to, etc. ' Rev. Stat. (1893), 1076; 2 Starr & » 2 Starr & Curtis 1804; Rev. Stat. Cm-tisl801; Rev. Stat. (1895). 1160, (1893), 1076; Rev. Stat. (1895), 1160; 2 Wilder v. Aru-edsoJi, 80 111. 435; Coal Co. v. Field, 17 Bradw. 260. Brigham v. Atha, 84 111. 43; Young * Bartlett v. Sullivan, 87 111. 219. V. Browning, 71 111. 44; Haggard v. * Coursen v. Browning, 86 111. 57; Smith,lllll. 22Q; Oai-rityv. Lozano, Mestling v. Hughes, 89 111. 889; 83 111. 597; C. D. & V. R. R. v. Bank, Myers v. Slioneman, 90 111, 80. 89 111. 493; Haggard v. Smith, 76 111. 507. COMMENCEMENT OF AN ACTION. 13 The court, in its discretion, may allow an affidavit of plaintiff's claim to be. filed after plea is filed, and may then strike plea from files, unless affidavit of merits is filed.' An affidavit of claim ^ or affidavit of merits^ may be amended. The only effect of omission on the part of the plaintiff to file affidavit with declaration, is that the defendant may plead without verifying his plea." (See Affidavit of Merits, page 149, post.) SECURITY FOR COSTS. When required. — The statute provides, " that in all actions in any court of record on official bonds for the use of any per- son, actions on the bonds of executors, administrators or guard- ians, qui tarn actions, actions on a penal statute and in all cases in law or equity, where the plaintiff, or person for whose use an action is to be commenced, shall not be a resident of this state, the plaintiff or person for whose use the action is to be commenced, shall, before he institutes such suit, file or cause to be filed, with the clerk of the court in which the action is to be commenced, security for costs." ^ The statute applies to a writ of error sued out of the supreme or appellate courts; ' it applies to attachment, as an attach- ment bond does not satisfy this statute; ' and to non-resident landlords issuing distress warrants for rent; * but if an action is brought by a non-resident for the use of a resident; ^ or by two plaintiffs, one of whom is a resident and solvent; '" or in a bastardy proceeding, no security for costs is required." In an action brought in the name of the people for the use of a ' SpradZmgr V. i2HS.seZZ, 100 111. 522; v. Haines, 5 Gilm. 2\; Adams x. Bailey V. Valley Bank, 127 111. 332; Miller, 14 111. 71; Wood v. Goss. 24 Trusedell v. Hunter, 28 111. App. 111.627; Whitehurstv. Coleen,5Zl\\. 293. 247; Kolhe v. People, 85 111. 336. « Peirson v. Hendrix, 88 III. 34. '^ Roberts v. Eahs, 32 111. 474; Rlp- 3 Culver V. Johnson, 90 111. 91. ley v. Morris, 2 Gilm. 381; Hickman 4 Kern v. Strassberger, 71 111. 303. v. Haines, 5 Gilm. 20. 5 1 Starr & Curtis, 635; Rev. Stat. '' Casey v. Horton, 36 111. 234. (1893) 394; Rev. Stat. (1895) 432; ^ Lapointe x. Steivart, 16 III 291. Randolph v. Emerick, 13 111.345; ^ Caton v. Harmon, I Scam. 581. Smith V. Robinson, 11 111. 119; Caton "> Wood v. Goss, 24 111. 627. V. Harmon, 1 Scam. 581; Hickman '' Kolbe v. People, 85 111. 336. 14 COMMENCEMENT OF AN ACTION. county to recover a penalty for obstructing a public highway no bond for costs is necessary.' Suits by minors by next friend. — In section 18 of chapter 61, entitled " Guardian and Ward," " it is provided that suits may be commenced by any minor by his next friend, on such next friend entering into bond for costs, and filing the same in the court where such action may be instituted. An action brought by the next friend of an infant without an order of appointment or the filing of a bond for costs, will not be dis- missed if such bond be given when so ordered by tlie court. The giving of the bond for costs is not a jurisdictional matter.' Form of security for costs. — The statute requires that the security to be given before the commencement of the suit, shall be substantially in the following form : A. B. ) vs. [ {Title of Court.) CD.) I (E. F.) do enter myself security for all costs which may accrue iu the above cause. Dated this day of , A. D. 18—. (Signed) E. F.^ Surety — Approval and eifect of bond. — Such instrument is required to be signed by some responsible person, a resident of this state, to be approved by the clerk, and binds such per- son to pay all costs which may accrue in such action, either to the opposite party, or to any of the officers of the court in which the action is commenced, or to which it may be removed by change of venue or appeal.^ A bond for costs covers all costs without reference to the person to whom they may ac- crue.^ It was held under a former statute, that the security is not bound for costs made against his principal in the supreme court on appeal.' Dismissal for want of security for costs. — If a suit is com- ' People V. CouUas, 9 Bradvv. 39. *1 Starr & Curtis, 635; Rev. Stat. 5 1 Starr & Curtis, 1241; Rev. Stat. (1893). 394; Rev. Stat. (189o) 433. (1893) 793; Rev. Stat. (1895) 841. « i Starr & Curtis, 636; Rev. Stat. ^Railroad Co. v. Latimer, 138 111. (1893). 394; Rev. Stat. (1895), 433. 163. ^ Whitehurst v. Cohen, 53 111. 347. ' Clark v. Quackenboss, 28 111. 113. COMMENCEMENT OF AN ACTION. 15 menced without filing such security, the court on motion will dismiss the suit at the cost of the attorneys, unless such secu- rity shall be filed within such time as shall be allowed by the court, and when so filed, it will relate back to the commence- ment of the suit; and the right to require security for costs will not be waived by any pleading or other proceeding in the case; ' but a lack of a bond for costs can not be objected to for the first time in the supreme or appellate court." Motion to dismiss for want of security for costs. — To support a motion to dismiss a suit for want of security for costs, on the ground that the plaintiff was a non-resident, the de- fendant must file an affidavit, sufiicient to negative the fact that the plaintiff, or person for whose use the suit is brought, was a resident at the time of the commencement of tlie suit.* Rule to file security. — Upon a motion to dismiss a suit for want of security for costs, if the plaintiff is shown to have been a non-resident at the time of the commencement of the suit, the court will enter a rule on the plaintiff to file security within such time as may be fixed by the court. The suit should not be dismissed without giving such time.* Where the motion is based on the ground that the action is upon a penal statute, and that no securit}^ Avas given, the court may permit the plaintiff to file a bond for costs, after a motion to dismiss for want of such security.* Cross-motion. — On a motion to dismiss for want of securit}'- for costs, the better practice is for the plaintiff to file a cross- motion for leave to supply such security and it will be granted. Objections to security. — "Where the security to a bond for costs is objected to, it is incumbent on the party presenting it to satisfy the court, by competent proof, that it is sufficient.' After action brought. — In regard to security for costs after action brought, the statute provides that, " if at any time after n Starr & Curtis, 637; Eev. Stat. O'Connell v. Rea, 51 111. 306; John- (1893), 394; Rev. Stat. (1895), 432; son v. Huber, IS-ilU. 'Alt. Kimbark v. Blundin, 6 Brad. 539. ''Zee v. Waller, 13 Brarl. 403. ' Meyer v. Wiltshire, 92 111. 395. ^ Richards v. People, 100 111. 390; ^Leadbeater v. Roth, 25 111. 587; BaJcer v. Palmer, 83 III 5GS. Buckland v. Goddard, 36 111. 208; * Buckmaster v. Beames, 3 Giim. 97. 16 COMMENCEMENT OF AN ACTION. the commGncement of any suit by a resident of this state, he shall become non-resident, or if in any case the court shall be satisfied that any plaintiff is unable to pay the costs of suit, or that he is so unsettled as to endanger the officers of the court, with respect to their legal demands, it shall be the duty of the court, on motion of the defendant or any officer of the court, to rule the plaintiff, on or before a day in such rule named, to give security for the payment of costs in such suit; if such plaintiff shall neglect or refuse, on or before the day in such rule named, to file an instrument of writing of some responsi- ble person, being a resident of this state, whereby he shall bind himself to pay all costs which have accrued or may accrue in such action, the court shall, on motion, dismiss the suit, pro- vided, that the defendant or officer making such motion shall file therewith his affidavit or the affidavit of some credible person, stating that he has reason to believe, and does believe, that in case such suit is prosecuted to a conclusion, a judgment will be rendered against such plaintiff for such costs." ' The motion for a rule on the plaintiff to give security for costs is usually based upon the affidavit of the defendant, or the officer or person at whose instance the application is made, setting forth the ground upon which the rule is asked. Such affidavit may be as follows : Affidavit for rule to give security for costs. In the court. CD.) ats. > Assumpsit, A. B. ) CD., the above named defendant, makes oath and says, that A. B., the plaintiff above named, is unable to pay the costs of this suit {or state any other ground mentioned in the statute); affiant further states that he has reason to believe, and does believe, that in case said cause is pros- ecuted to a conclusion, a judgment will be rendered against the plaintiff for such cost. CD. Subscribed and sworn, etc. The plaintiff may file a counter affidavit, denying the insolv- ency, or other matter; and in that case, it seems, the rule will ' Starr & Curtis, 637; Rev. Stat. (1893), 394; Rev. Stat. (1895), 432. COMMENCEMENT OF AN ACTION. 17 be discharged.' Such motions are addressed to the discretion of the courts, and their decisions thereon can not in general be assigned for error; " but if the affidavit in support of the motion is insufficient, the court has no power under the statute to grant the rule, and if it does so, its decisions may be reviewed in an appellate court.' Motions of this kind, it is said, are not regarded very favorably by the courts, and slight evidence has usually been held sufficient to discharge the rule. . Upon a motion for a rule upon the plaintiff to file additional security for costs, an affidavit is insufficient which only avers the insolvency of the plaintiff and his surety. It should show, in addition, that the circumstances of the principal or surety have changed since the approval of the former security.^ On an appeal by the defendant from a judgment of a justice of the peace, an appellate court w^ill not grant a rule on the plaintiff to give security for costs.^ After the cause has been called for trial, a motion for a rule to give security for costs comes too late, even though the affidavit sets forth that the affiant has just learned that the plaintiff is insolvent." Where an action is brought in the name of one person for the use of another, and the defendant moves for a rule to give security for costs, it is not sufficient for the affidavit to show the insolvency or non-residence of the nominal plaintiff, but it must also show that the beneficial plaintiff is insolvent or non- resident.'' If security for costs is given after action is brought, the form of the instrument may be as follows : ' Hamilton v. Dunn, 23 111. 259; * Ball v. Bruce, 27 111. 333. Papineau v. Belgarde, 81 111. 61. ^ Teague v. Wells, Breese. 877; * Selhy V. Hutchinson, 4 Gilm. 319; Campbell v. Qiblin, 19 111. 54; Adams Gesford v. Critzer, 2 Gilm. 698; v. Miller, 12 III. 28. Clement v. Brown, 30 111. 43; Rail- « Railroad Co. v. South, 43 111. 176. road Co. v. South, 43 111. 176; CCon- Edicards v. Helm, 4 Scam. 143; Fra- ndl V. Rea, 51 111. 306. zer v. Zimmerly, 25 111. 184; Caton 3 Ball V. Bruce, 27 111. 332; Teague v. Harmon, 1 Scam. 581. V. Wells, Breese. 377; Rockford v. ' UConnel v. Rea, 51 lU. 306. Russell, 9 Bradw. 229; Twining v. Martin, 65 111. 157. 2 18 COMMENCEMENT OF AN ACTION. Security fur costs. In the Court. A. B. ) vs. > Assumpsit. CD. ) I hereby enter myself security for costs in this cause, and acknowledge myself bound to pay, or cause to be paid, all costs which have accrued, or may accrue, in this action, either to the opposite party or to any of the officers of this court, in pursuance of the laws of this state. Dated this day of , 18 — . E. F. Plaintiff a poor person. — The statute provides as follows : " If any court shall, before or after the commencement of any suit, be satisfied that the plaintiff is a poor person, and unable to prosecute his suit, and pay the costs and expenses thereof, the court may, in its discretion, permit him to commence and prosecute his action as a poor person; and thereupon such person shall have all the necessary writs, process and pro- ceedings, as in other cases, without fee or charge. The court may assign to such person counsel, who, as well as all other officers of the court, shall perform their duties in such suit with- out any fees, charge or reward; if judgment be entered for the plaintiff, there shall be judgment for his costs, which costs shall be collected for the use of the said officers." ' Allowing the plaintiff to sue as a poor person, or requiring security for costs, is discretionar}'- with the trial court.^ This section is broad enough it its terms to include all resident plaintiffs, whether they be adults or minors, who are poor per- sons, and are unable to prosecute their suits and pay costs and expenses. * Affidavit of poor person. — The statute also provides that " If, prior to the convening of any term of any court of record, a person desiring to commence suit in such court, shall file with the clerk thereof an affidavit stating that he is a poor person and unable to pay costs, and that his cause of action is merito- rious, such clerk shall issue and the sheriff shall serve all nec- essary process, without requiring costs." A motion for leave to prosecute as a poor person, under this ' 1 Starr & Curtis, 638; Rev. Stat. ' Clement v. Broivn. 30 111. 48; (1893), 395; Rev. Stat. (1895), 433. Eockford v. Russell, 9 Bradw. 229. » B. R. Co. V. Lane, 130 111. 116. COMMENCEMENT OF AN ACTION. J 9 section, should be supported by an affidavit, which may be as follows : Affidavit on motion for leave to prosecute as a poor x)erson. (Venue, and title of cause.) A. B., the above named plaintiff, makes oath and says, that he is a poor person, and unable to prosecute his suit in this behalf, and pay the costs and expenses thereof; that he is. etc. {here insert any other fact shoicing the jilaintiff's inability to give security or to pay costs); that he has reason to believe, and does believe that he has a meritorious cause of action and that he will recover a judgment against the defendant. A. B. Subscribed and sworn to, etc. Permitting a plaintiff to sue as a poor person is generally a matter within the discretion of the court.' PARTIES TO AN ACTION. A suit must be brought by the party who has the legal in- terest,'' and in his own name.^ Courts of law will not inquire whether plaintiff sues for himself or as trustee; it is sufficient that he has a legal interest." When a suit is brought by the party holding the legal interest, the action can not be defeated by showing that another person is entitled to the proceeds.^ An action for a breach of contract must be brought by the party with whom the contract was made." By whatever name a person may contract, he may, notwithstanding, sue and be sued by his right name.' "Where a number of persons associated in business are known to the world and transact business by a particular name, in a ^Clement v. Brown, 30 111. 43; ^ Kyle v. Thompson, 2 Scam. 432 Kockford v. Russell, 9 Bradw. 229; Richards v, Betzer, 53 111. 460 Sterling v. Pearl, 80 111. 251; Papi- Newman v. Ravenscraft, 67 111. 496 neau v. Belgarde, 81 111. 61. Caldtcell v. Lau-rence, 84 111. 161. ^ Chadsey v. Lewis, 1 Gilm. 153 *Lee\\ Pennington,! Bradw. 2\1; Manlove v. McHatton, 4 Scam. 96; Chapin v. Foss, 75 111. 280. Simons v. Waterman, 17 111. 371; ^ Lohman r . Bank, 87 111. Q\Q. Dix X. Ins. Co., 22 111. 272; Moore V. ^ Corbett v. Schumacker, 83 111. Maple, 25 111. 341 ; Ins. Co. v. Frost, 403. 37 111.333; Lamed v. Carpenter, m '' Steinfield \. Taylor, 51 111. App. 111. 543; Coal Co. v. Long, 91 111. 399. 617; Dinet v. Reilley, 2 Bradw. 316. 20 COMMENCEMENT OF AN ACTION. suit against the members, they may be described as members of an association of that name, and they can not defeat a re- covery by showing that in their articles of association they adopted a different name.' In the case of a simple contract, an undisclosed principal may bring an action in his own name, where the agent contracts personally.^ Judicial proceedings commenced and prosecuted in the name of a deceased per- son are a nullity.^ An executor or administrator may sue as such, as well as in his own name, upon a contract made with him in his representative capacity. In either case, the sum re- covered will be held to be for the benefit of the estate." All persons who are partners in a firm at the time a contract is made, must, unless there be a legal excuse for not joining them, be joined in an action to enforce its payment. If a partner be dead, the plaintiff suing must allege it as an excuse for not joining him.' Suits for the use of auother. — The assignee of a chose in action can only maintain a suit at law in the name of the as- signor, for his use." A party for whose benefit a promise is made may maintain an action upon a simple contract in his own name, although the consideration does not move from him.'' But it has been held that where the contract is under seal, the action must be in the name of the obligee, although the agreement may be for the use of another.* A party in whom is the legal right of action may, as re- spects the defendant, bring his suit for the use of whatever person he likes. It is no concern of the defendant for whose use the action is brought, nor is it necessary that the person 'Boggsv. OZcoff, 40111. 303. 7ns. Co. v. Ludwig, 103 111. 305; *Chit. PI. 9; Turnpike y. Whiting, Knight v. R. R. Co., 141 111. 110. 10 Mass. 328; 1 Pars. Cont. 62; Conk- ' Crandall v. Payne, 154 111. 627; linv. Leeds, 5S 111. 178; Saladinv. Steele v. Clark, 11 111. 471; Bristoio Mitchell, 45 111. 79; R. R. Co. v. v. Lane, 21 111. 194; Paper Co. v. Walsh, 85 111. 58. Serman, 29 111. App. 68. ^Risley v. Felloics, 5 Gilm. 531; ^Gautzert v. Hoge, 73 111. 30; Mills V. Bland, 76 111. 381; Cam- Moore x. House, MIW. \&2; Boats v. den V. Robertson, 2 Scam. 507. Nixon, 26 111. App. 517; but see * Miller v. Kingsbury, 128 111. 45. Harms v. McCormick, 30 111. App. ^Dement v. Rokker, 126 111. 174. 125. ^Carlyle v. Carhjle, 140 111. 445; COMMENCEMENT OF AN ACTION. 21 for whose use the action is brought should have any interest or connection otherwise with the subject-matter of the suit.' The fact that one person sues for the use of another does not make the person for whose use the suit is brought a party to it, nor is the judgment rendered a judgment in his favor." The fact that a suit is brought for the use of a third person need not be expressed in the record.^ Suits against insane persons. — Jurisdiction of an insane person may be acquired by the courts in the same manner as jurisdiction of a sane person." AVhere an insane person is properly brought before the court by personal service, the judgment rendered against him will be as valid and binding as any other judgment, and is said to be neither void nor voida- ble.* By the statute, the conservator of a lunatic is empow- ered to bring suit in his own name, as conservator, for demands due his ward.* But until the appointment and qualification of a conservator for an insane person, a suit may be brought in the name of such insane person.' The statute also provides that the court may in its discre- tion appoint a next friend for a particular purpose, notwith- standing there is already a conservator possessing general authority.' Suits against infants. — The statute provides that the guard- ian of an infant shall appear for and represent his ward in all suits or proceedings, unless another person is appointed for that purpose as guardian or next friend, provided that any court shall have power to appoint or allow any person, as next friend for a minor, to commence and prosecute a suit in his be- half.' The court is clothed with a discretion in appointing or allowing one other than the guardian to institute a suit on ' Tedrick v. Wells, 59 111. App. 657; ' Moloney v. Dewey, 127 III. 395. Edimn v. Cox, 61 111. App. 567; « 2 Starr & Curtis, 1577; Rev. Stat. Ins. Co. V. Barnish, 59 111. App. 78. (1893), 954; Rev. Stat. (1895), 1016. "> Morse V. Goetz, 51 111. App. 485; ^ R. R. Co. v. Munger, 78 111. 300. ISIorthrop v. McGee, 20 111. App. 108. ^ 2 Starr & Curtis, 1577; Rev. Stat. ^Ex. Co. V. Hazzard, 37 111. 465. (1893), 954; Rev. Stat. (1895), 1016; * Noel v. M. W. A.,&\ 111. App. iJyc/er v. ThppiMgf, 15 Bradw. 216. 597; Freeman on Judgments, Sec. ^ 1 Starr & Curtis, 393; Rev. Stat 123. (1893), 217; Rev. Stat. (1895), 218. 22 COMMENCEMENT OF AN ACTION. behalf of an infant. This discretion is necessary to prevent many suits in reference to the same subject-matter being brouirlit in behalf of an infant.* PKOCESS FOK APPEARANCE. Summons — Form^Wlien returnable. — Section 1 of the Practice Act provides that the first process in all actions shall be a summons directed to the sheriff of the county (or if the sherilf be interested in the suit, to the coroner) and shall be made returnable on the first day of the next term of the court to which the action may be commenced. That if ten da^'^s shall not intervene between the time of suing out the sum- mons and the next term of court, it shall be made returnable to the succeeding term, and that the plaintiff may, in any case, have summons made returnable at any term of the court which may be held within three months after the date thereof.^ A sum- mons made returnable eight terms after date is void." It must be under seal,^ and contain the names of all the plaintiffs;' and when the summons is dated less than ten days before the re- turn day it is void.* When a summons is held void it will be quashed on motion.' How served. — Section 3 provides that it shall be the duty of the sheriff to serve all process of summons, when practicable, ten days before the return day thereof, and to make return thereof by or on the return day, with an indorsement of his service and the time of serving it.' The statutory require- ments for service of process must be strictly complied with, and the return of the officer should show such compliance, otherwise the court will not obtain jurisdiction.' The mode of service of summons, where not otherwise pro- 9 Patterson v. Pullman, 104 111. 80. " Carter v. Rodeicold, 108 111. 351. ' StaiT & Curtis, 1771; Rev. Stat. ^ Hannum v. Thompson, 1 Scam. (1893), 1070; Rev. Stat. (1895), 1154; 238; Anglin v. Nott, 1 Scam. 395. Edimrds v. Having, 59 111. App. 147- ' 2 Starr & Curtis, 1775; Rev. = See Hochlander v. Hochlander. Stat. (1893), 1071; Rev. Stat. (1895), 73 111. 618. 1155; French v. Regan, 58 111. App. ^ Garland v. Britton, 12 111. 233. 261. * Richardson v. Thompson, 41 111. ^ Greenwood v. Murphy, 131 111. 202; Miller v. Handy, 40 III. 448. 604. COMMENCEMENT OF AN ACTION. 23 vided by statute, is by reading the same to the defendant, and the service by delivering a copy thereof to the defendant with- out reading is insufficient.' Where a summons is read in the hearing of a defendant, though the officer addressed himself to his clerk, both the clerk and he being aware of the officer's mis- take, it was held, that as what is read in the hearing of several persons is read to all of them, even though the reader ad- dresses only one especially, the service was sufficient." Alias writs. — Section 8 provides that whenever it shall ap- pear by the return of the sheriff that the defendant is not found, the clerk shall at the request of the plaintiff issue an- other, and so on until service is had.' Corporations — How served. — It is provided by section 4 of the Illinois Practice Act, that "An incorporated company may be served with process by leaving a copy thereof with its presi- dent, if he can be found in the county in which the suit is brought; if he shall not be found in the county, then by leav- ing a copy of the process with any clerk, secretary, superin- tendent, general agent, cashier, principal, director, engineer, conductor, station agent or any agent of said company found in the county; and in case the proper officer shall make re- turn upon such process that he can not in his county find any clerk, secretary, superintendent, general agent, cashier, princi- pal, director, engineer, conductor, station agent, or any other agent of said company, then such company may be notified by publication and mail in like manner and with like effect, as is provided in sections twelve and thirteen of an act entitled 'An act to regulate the practice in courts of chancer}^' " It has been held that the foregoing section is to be so con- strued as to render it in harmony with section 2 of the Practice Act, and does not authorize service on a corporation by publica- tion, except in the county where it has its residence.' The vice-president of a corporation is an "agent," Avithin the mean- ing of the statute, and process against the corporation may be served upon him as such.' > LaiP V. Gromvies, 158 111. 492. ^ Coal Co. v. Hughes, 45 111. App. * Metzger v. Huntington, 51 111. 566. App. 377. '' Cook V. Building Co., 152 111. 638. 3 2 Starr & Curtis, 1779; Rev. Stat. (1893), 1072; Rev. Stat. (1895), 1156. 24 COMMENCEMENT OF AN ACTION. A general solicitor of a corporation is a person not named in the statute providing for service of process upon corpora- tions.' When a corporation has suffered a person to hold him- self out to the public as its agent, so as to render it inequitable for the apparent agency to be denied, service of process upon such agent will be sufficient.' It has been held that where process is returned served upon one as the agent of a corpora- tion, the agency may be denied by plea in abatement.^ On receiver of corporation. — It is provided in an act en- titled "An act in regard to the serving of process on Eeceivers of Corporations," in force July 1, 1887 : " That the receiver or receivers of any incorporated com- pany may be served with process, by leaving a copy of such process with such receiver or receivers, if he or they can be found in the county in which the suit is brought; if he or they shall not be found in the county, then by leaving a copy of such process with any clerk, secretary, superintendent, general agent, engineer, conductor, station agent or any agent in the employ of such receiver or receivers, who may be found in the county in which such suit is brought." * On trustee of railroad. — Section 1 of paragraph 103 of the Practice Act provides that a trustee or trustees operating, managing, or controlling a railway may be served with process by leaving a copy of such process with such trustee or trustees, if he or they can be found in the county in which the suit is brought; if he or they shall not be found in the county, then by leaving a copy of such process with any clerk, secre- tary, superintendent, general agent, engineer, conductor, sta- tion ao"ent, or any agent in the employ of such trustee or trustees who may be found in the county in which such suit is brought.* Privileges of defendant. — It is a principle as old as the common law, that all persons who, in the discharge of their ' R. R. Co. V. Pairpoint Mfg. Co., v. Bank, 90 111. 56; Lanza v. Mc- 55 111. App. 231. Nulta, 46 111. App. 69. '■' Combs V. Oil Co., 58 111. App. 123. " Rev. Stat. (1893), 1072. ^R. R. Co.y. Keep, 22 111. 9; Bank 'Rev. Stat.( 1893), 1086; Rev, Stat. (1895), 1170. COMMENCEMENT OF AN ACTION. 25 duty, are in attendance upon courts of justice, and in going to and returning therefrom, are exempt from arrest on civil process. This is a privilege which extends alike to parties, witnesses, attorneys, jurors, and all others who are assisting in the administration of justice; and this immunity does not extend alone to persons who are in the immediate presence of the courts themselves, but to those also who are in attend- ance upon subordinate tribunals, and officers appointed by the courts to assist them in the discharge of their duties. Thus, it is held to extend to a party attending the execution of a writ of inquiry; ' to a witness attending before a magistrate to give his deposition under a rule of court; ' to a witness attending be- fore a commissioner for a like purpose;^ to a creditor or witness attending commissioners of a bankrupt; * to witness before arbitrators; ' and to a party attending a reference under a rule of court." A party while engaged in taking depositions to be used in his suit in another state, and for such time thereafter as is necessary to return to his home in that state, is not privileged from the service of a summons.' The exemption is alike the privilege of the person and the privilege of the court, and it is designed to render the admin- istration of justice free and unstranded, and to protect from improper influence all who are. concerned in it.* The weight of authority seems to be clearly in favor of the proposition that as regards this privilege, there is no difference between writs of capias ad respondendum and writs of sum- mons, but that the exemption extends to both alike.' The return. — The return of the service of a summons, ex- cept when otherwise provided by the statute, must show the 1 Walters v. Rees, 4 Moore 34; * Clark v. Grant, 2 "Wend. 356. Atchison v. Morris, 11 Bissell 191. ''Greer v. Youngs, 120 111. 184, ^United States v. Edme, 9 Serg. ^ Greer v. Youngs, 120 111. 184. & Rawle 147. ^ Hayes v. Shields, 2 Yeates 222; ^Holmes v. Morgan, 1 Phila. 217. Bolton v. Martin, 1 Dall. 296; MiUes *Ex parte King, 7 Vesey 312; Ex v. McCuUough, 1 Binney, 77; Dugan parte Byne, 1 Ves. & B. 316. v. Miller, 8 Vroom 782; Greer v. ^Sandford v. Chase, S Cowen 381; Youngs, supra. Randall v. G^iney, 1 Chitty R. 679. 26' C03IMENCEMENT OF AN ACTION, time when, upon whom, and how the service was made. A return, statino; that the summons has been duly served on " C. D." according to law, is not sufficient.' The service must be made strictly in accordance with the statute, and so shown by the returns of the officer, or the court will not have jurisdiction of the person.* Where service is by summons, parol evidence will not be heard to prove or to aid it.' A return of service " on the within named defendant," not giving the name, there being two defendants named in the summons, is insufficient.* TUE DECLARATION. The province of the declaration is to exhibit on the record the grounds of the plaintiflf's cause of action, as well for the purpose of notifying the defendant of the precise character of those grounds, as of regulating the plaintiff's proofs. When it performs such office in such a manner as to leave no doubt in the mind of the defendant, either as to the nature or origin of the plaintiff's claim, it ought not, on principle, to be ad- judged insufficient;' but it must, in every case, contain a full and explicit statement of the material facts upon which a re- covery is sought." Each count in a declaration must truly set out the cause of action, and if the evidence does not sustain it, the action as to such count fails." It is proper for the pleader to state what is in reality the same cause of action, in several counts of his 1 Ball V. Shattack, 16 111. 299; Wil- v. Thomas, 39 111. 227; 7. C. R. R. son V. Greathouse, 1 Scam. 174, 176; Co. v. McKee, 43 111. 119; People v. Bellingall v. Gear, 3 Scam. 575; Latie, 36 III. App. 649. Miller V. Handy, 40 111. 448. « I. C. R. R. Co. v. McKee, 43 111. ^Cost V. Rose, 17 111. 276; Boy- 119; Qnincy Coal Co. y. Hood, 17 III. land V. Boylaud, 18 111. 551; Miller 68; Dole v. Cloio, 21 111. App. 477; V. Mills, 29 111. 431; Fisher v. Fisher, R. R. Co. v. Friedman, 146 111. 583. 54111. 231; Greenwood v. Murphy, '' Mastinv. Toncray, 2 Scam. 216; 131 111. 604. Crittenden v. French, 21 111. 598; 3 Botsford V. O'Connor, 57 111. 72; Boynton v. Robb, 41 111. 349; Roberts Reedy v. Canfleld, 159 111. 260. v. Corby, 86 111. 182; Brown v. Bur- * Whitman v. Fisher, 74 111. 147. nett, 10 Bradw. 279; Porter v. Dren- 5 Cook V. Scott, 1 Gilm. 333; Quincy nan, 13 Bradw. 362. Coal Co. V. Hood, 77 111. 68; White COMMENCEMENT OF AN ACTION. 2i declaration, the purpose being to meet the varying phases of the evidence. When this is done, the counts are to be re- garded as distinct from each other, and by apt reference, or otherwise, must state a complete cause of action,' and the plaintiff will be entitled to recover, if he proves, by a prepon- derance of the evidence, either ground of action.^ Two distinct causes of action can not be set up in a single count of the declaration;" but as many distinct facts as maybe necessary to present one cause of action may be set forth in one count/ Variance. — The defendant has the right to insist that the grounds upon wliich the plaintiff claims the right to recover shall be clearly and concisely stated, and that the case made in the declaration shall be proven as alleged. One cause of action can not be alleged and a different one proved, over the defendant's objection made in proper time." Under our present practice to present the question of vari- ance between the allegations and proof, the evidence must be objected to at the time it is offered on that ground, or, when the variance becomes apparent, the party should move to exclude the evidence, or in some other appropriate way raise that question, so that the trial court can pass upon it; and to properly raise the question in any of these modes, the variance should be distinctly pointed out, so as to enable the trial court to pass upon it understandingly, and enable the plaintiff to obviate the objection by amendment.* Additional connts. — Under section 24: of the Practice Act, additional counts may be filed at any time before final judg- ment, by leave of court.' ' R. R. Co. V. Hessions, 150 111. 546. Waidner v. Pauhj, 141 III. 442; City ^R. R. Co. V. Cloiigh, 134 111. 586; v. 3Ioore, 139 111. 201; Foltz v. Har- 3 R. R. Co. V. Hill, 29 111. App. din, 139 III. 405; Schoot v. Youree, 583; R. R. Co. v. Ingraham, 131 111. 142 111. 233; Turnkey v. Hedstroin, 665. 131 III. 204; R. R. Co. v. Colton, 140 * White V. Clayes, 32 III. 325; 111. 486. Hereford v. Crow, 3 Scam. 423; Ins. '2 Starr & Curtis, 1787; Rev. Stat. Co. V. Wuster, 75 111. 285. (1893), 1074; Rev. Stat. (1895), 1158; '^ R. R. Co, V. Friedman, 146 111. Mutual Aid v. Paine, 122 111. 583. 625; Meinke v. Nelson, 56 111. App. 6 Libhy v. Seherman, 146 111. 540; 269. Richelieu v. Enc. Co., 140 111. 248; 28 COMMENCEMENT OF AN ACTION. Time for filing. — By section 17 of the Practice Act, it is provided that " If the phiintiff shall not file his declaration, together with a copy of the instrument of writing or account on which the action is brought, in case the same be brought on a written instrument or account, ten days before the court at which the summons or capias is made returnable, the court, on motion of the defendant, shall continue the cause at the cost of the plaintiff, unless it shall appear that the suit was commenced within ten. days of the sitting of the court, in which case the cause shall be continued without costs, unless the parties shall agree to have a trial; and if no declaration shall be filed ten days before the second term of the court, the defendant shall be entitled to a judgment, as in case of a non-suit : Provided, that in all suits by capias, where the de- fendant shall have been arrested, and in replevin and attach- ment, the plaintiff may be required to file his declaration at the first term, and the defendant may have a trial at such term, unless sufficient cause for a continuance is shown," ' Copy of instrument or account sued on. — If the document sued on is set out in haec verla in the declaration, an additional copy is not necessary to be filed.' If the declaration contains a special count on a promissory note or bill of exchange, etc., and common counts, and if the plaintiff stipulates that he will rely alone on the instrument described, no accounts need be filed under common counts." In Such case the defendant will be prevented from denying the execution of the instrument, except by a verified plea;' or from setting up a want or failure of consideration except by a special plea." A copv of document sued on is no part of the declaration," and a variance between the copy and the original itself, offered in 1 2 Starr &, Curtis 1783; Rev. Stat. "^ CMlds v. Fisher, 52 III. 205; (1893), 1073; Rev. Stat. (1895), 1157. McCarthy v. Neu, 91 III. 127. ^Benjamin v. Delahay, 2 Scam. ^ Wilson v. Kmg, 83 111. 232. 574; People v. Pearson, 1 Scam. ^ Bogardus v. Trial, 1 Scam. 63; 458. Harlan v. Bostoell, 15 111. 56; Franey '^People V. Pearson, 1 Scam. v. True, 26 111. 184; Gage v. Lewis, 458; Childs v. Fisher, 52 111. 205; 68 111. 604; Humphrey v, Phillips, McCarthy v. Neu, 91 111. 127; Boyle 57 111. 132. v. Carter, 24 lU. 49. COMMENCEMENT OF AN ACTION. 29 evidence, is no ground for excluding the latter.' If a suit is on a judgment, a copy of the record must be filed with the declaration." To make a copy of the instrument sued on a part of the declaration, so that the court may notice it for any purpose, the defendant must crave oyer.' Continuance. — The Practice Act provides,that " if the plaint- iff shall not file his declaration, together with a copy of the in- strument of writing or account on which the action is brought, in case the same be brought on a written instrument or ac- count, ten days before the court at which the summons or capias is made returnable, the court on motion of the defend- ant shall continue the cause at the cost of the plaintiff." * Under this provision it is held that if the declaration is not filed ten days before the term, the defendant may appear and have the cause continued at the plaintiff's costs; but if the de- fendant does not apply for such continuance the cause will be continued generally and the costs will abide the result of the suit.* If a copy of the instrument or account sued on is not filed ten days before the term, the defendant may obtain a contin- uance; but if he goes to trial without objection,® or pleads to the action,' he can not afterward take advantage of the failure to file such copy. The defendant is not compelled to appear at the first term and ask for a continuance.' Where common counts are added to a special count, a failure to file a copy of the account sued on under the common counts will be a ground for a continuance, unless the plaintiff stipu- ' Archer v. Claflin, 31 III. 317; 76 111. 319; Ins. Co. v. Stayart, 79 III. Stratton v. Henderson, 26 111. 68; 259; 3Ioocly v. Thomas, 79 111. 274; Flax Co. V. Beebe, 48 111. 138. Wilson v. King, 83 111. 232; Copper 5 Jefferson v. Alexander, 84 111. 278. Co. v. Barry, 56 111. App. 587. ^Sims V. Hugby, Breese 413; Peo- ^ Collins v. Tuttle, 24 111. 623; Jef- ple V. Pace, 57 111. App. 674. ferson v. Alexander, 84 111. 278. * Rhv, Stat. (1893), 1073; Rev. Stat. ^ Stratton v. Henderson, 26 111. 68; (1895), 1157; 2 Starr & Curtis, 1783, Kimball v. Kent, 2 Scam. 217, Collins V. Tuttle, 24 111. 623; Craft v. ' Grier v. Gibson, 36 111. 521; Mc- Tumey, 25 111. 324; Haivtlwrn v. Carthy v. Mooney, 41 111. 300. Cooper, 22 111. 22^; Hopkins v. Wood- ^ Herring v, Quimby, 31 111, 153. it/ard, 75 111. 62; Slade v. McClure, 30 COMMENCEMENT OF AN ACTION. lates that he relies only on the instrument sued on, or enters a nolle prosequi as to the common counts.' If a suit is brought by the indorsee of a negotiable instru- ment it is not necessary to file copy of the indorsement to pre- vent a continuance. The instrument sued on being the note or bill of exchange, and not the indorsement.'^ So, where the defendants are sued as guarantors of a promissory note, a copy of the note, showing the names of defendants as indorsers, is a sufficient copy of the instrument sued upon. The plaintiff is authorized to fill in the blank over the names at the trial." Dismissal at second term, where no declaration is filed. — If no declaration is filed ten days before the second term of the court, the defendant will be entitled to a judgment, as in a case of non-suit.' The statute is construed to mean the next term after that for which the service is in time.^ The objection, being in abatement only, and not in the bar of the suit, must be made before any steps are taken to defend the suit upon its merits.' A suit should not be dismissed at the second term for failure to file a copy of account, until the plaintiff has been ruled to file the same, and has failed to comply.' A plaintiff has the same time after notice of appear- ance in which to file his declaration as after service, unless the defendant applies for a special rule on him to file it at a particular time.* Waiver of. — Either party to a suit has the right to have the account or copy of the instrument upon which his adversary relies filed with his pleadings. But this right may be Avaived; and the party entitled to its enforcement must not so act as to lead the other to suppose it has been waived until it would subject him to loss or inconvenience to have it enforced.' ^Hawthorn v. Cooper, 23 111. 225; 344; Herring v. Quimby, 31 111. 153; Love V. Fairfield, 5 Gilm. 303. Waidner v. Pauly, 141 111. 442; but "^ Franey v. True, 26 111. 185; see Hoioellx. Ins. Co., %% l\\. bO. Roberts v. Thompson, 28 111. 79. « Beck v. I. B. Ass'n, 60 111. App. 3 Lee V. Mendel, 40 111. 359. 423; Tider v. Poe, 48 111. App. 158. * Kimball v. Kent, 2 Scam. 217; ' Kimball v. Kmt, 2 Scam. 217. McCamley v. Peek, 15 Bradw. 37; s jo/msoH v. iVoWe, 37 111. App. 314. Waidner \. Paidey,U\l\\. U2. ^ Hoive v. Frazer, 117 111. 191; 5 Wilkins v. English, 60 111. App. Fowler v. Meyers, 59 111. App. 248. COMMENCEMENT OF AN ACTION. 31 With plea of set-off. — A plea of set-off being in the nature of a declaration in a cross-action, section 32 of the Practice Act, requiring the defendant to file with his plea a copy of the instrument or account upon which he relies, is governed sub- stantially by the same rules and principles that are applied to section 18 of that act, requiring the plaintiff to file a copy of the instrument or account sued on.V Bill of particulars. — If the copy of the account filed is not sufficiently specific, the defendant, under the rules of practice, may apply to the court, who will grant a rule to file a sufficient bill of particulars.^ The object of requiring the plaintiff to file a bill of particulars is to inform the defendant of the claim he is called upon to defend against, and its effect is to limit and restrict the plaintiff, on the trial, to proof of the particular cause or causes of action therein mentioned. It is, however, subject to amendment as any other pleading.^ As a general rule the recovery will be confined to the amount specified in the bill of particulars.' A bill of particulars can not be re- quired in action ex delicto." ' Howe V. Frazer, 117 111. 191. * Hess v. Dan'son, 149 llJ. 1^8; Mor- 2 McCarthy v. Mooney, 41 111. 300; ton v. McClure, 22 III. 257. Howe V. Frazer, 117 111. 191. ^ j^, ji^ co. v. Smith, 10 Bradw. 359. 3 Waidner v. Pauly, 141 111. 442; McDonald v. People, 126 111. 150. CHAPTER III. DEFENSES TO AN ACTION. I, Motions to Quash, or to Dismiss. II, Pleas to the Jurisdiction and in Abatement, Replication Thereto, etc., with Precedents. III. Pleas in Bar, Replications Thereto, etc., with. Precedents. IV. Demurrers, with Precedents. The defendant to an action may make his defense in various ways, according to the circumstances : he may move to quash tJie writ, etc., or to dismiss the suit; or plead to the jurisdiction of the court, or in abatement of the action; or demur to the dec- laration; or plead in har of the action. The observations here submitted, on the subject of defenses, are applicable to all the forms of action, and will be referred to under the proper heads. I. MOTIONS TO quash, OR TO DISMISS. How made. — If sufficient ground appears from the papers or record it is not always necessary (although preferable) that the motion be in writing — as, where a suit is brought on an office bond, etc., without filing security for costs; but when the motion to dismiss is on the ground of the plaintiff's being a non-resident, and not having filed security for costs, then such motion must be based on an affidavit showing the non-residence of the plaintiff. As a general rule, however, motions should be made, and the grounds thereof set forth, in writing. When must be made. — All motions of a dilatory nature must be interposed at the first opportunity. If there is any delay in making such a motion, good reason for the delay (32) DEFENSES TO AN ACTION. 33 must be shown to the court.' A motion of this kind comes too late after a general appearance in the cause.^ As to what is a general appearance, it is held that where a defendant has made several successive motions in a cause, without in such motions limiting his appearance to the special purposes thereof, he has appeared generally; ^ and it is said that if a defendant appears for a special purpose, such as to show that he is not properl}^ in court, he ought to restrict his appearance accordingly in his motion, as otherwise he may be held to have appeared generally.' An appearance is not with- drawn by the withdrawing of a plea by leave of the court.* Where there was defective notice by publication to one of the defendants, a non-resident, but the record showed that the " defendants " had moved to quash the summons, it was held that there was such an appearance by the non-resident as cured the defect in the notice.* When writ, etc., will be quashed, or suit dismissed, on motion. — If the writ is not under seal,' or is returnable on my other day than the first day of the term, or the day fixed ' Menard v. Marks, 1 Scam. 26; Edwards v. Helm, 4 Scam. 143; Bines V. Proctor, 4 Scam. 174; Robertson V. Com., 5 Gilm. 559; Trustees v. Walters, 12 111. 154; Randolph v. Emerick, 13 111. 344; 3Ioss v. Flint, 13 111. 570; Miller \. Metzger. 16 III. 390; Frazure v. Zimmerly, 25 111. 202; Gihnore v. Nowland, 26 111. 200; ArcJierv. Claflin, 31 111. 306; Rob- erts V. Falls, 32 111. 474; Wayman v. Crozier, 35 111. 156; Clifford v. Town, 35 111. 444; Dunning v. Dunning, 37 111. 306; Yocum v. Town, 39 111, 220; Ruckinau v. Ahcood, 40 111. 128; People V. Cloud, 50 111. 439; Coiirson V. Bronming, 78 111. 208; Papineau V. Belgarde, 81 111. 61; Greer v. Young, 120 111. 184. ^ Beecher v. James, 2 Scam. 462: R. R. Co. V. Keei), 22 111. 9; Abbott V. Semple, 25 111. 107; Dart v. Her- cules, 34 111. 395; Miles v. Goodwin, 3 35 111. 53; Phelps v. Reeder, 39 111. 172; Price v. R. R. Co., 40 111. 44; Roberts v. Formhalls, 46 III. 66; Mc- Batn V. Peojile, 50 111. 503; Ins. Co. V. Broach, 31 111. App. 502. ^Abbott V. Semple, 25 111. 107; Flake v. Carson, 33 111. 5\S\'Miles v. Goodwin, 35 111. 53; Baldwin v. Mc- Clelland, 152 111. 42. * Miles V. Gcodivin, 35 111. 53; Ogle V. Coffey, 1 Scam. 238; Schoon- hoven v. Gott, 20 111. 46: McXab v. Bennett, 66 111. 157. ^ Dart V. Hercules, 34 111. 395. « Sullivan v. Sullivan, 42 III, 315. See Farber v. Iron Co., 50 111, App, 503, 'Ogle V, Coffey, 1 Scam. 238; Easton v. Altum, 1 Scam. 250; An- glin V. Nott, 1 Scam. 395; Garland V. Britton, 12 111. 232; Williams v. Vanmetre, 19 111. 293. 34 DEFENSES TO AN ACTION. by law,' or does not show with certainty in the court of what county the defendant is required to appear/ or varies mate- rially from the declaration, etc.'' (but not, it seems, when the variance is in the name of the defendant),^ such writ will be quashed on motion.' Where the defect does not appear upon the face of the writ, the same matters may be pleaded in abate- ment/ A writ of capias ad respondendum^ attachment or replevin may also be quashed on motion for insufficiency of the affidavit on which such writ is based, or defect in the writ itself; but in attachment the affidavit and writ,' and in re- plevin (in the discretion of the court) the affidavit ' may in Illinois be amended. Also, in the case of an attachment (and probably now of a capias), the Avrit may be quashed, or suit dismissed, for want of the bond required by law," unless the plaintiff will furnish the requisite bond; and if the decla- ration is not filed on the return of the attachment, or at the term to which the same is returnable, the defendant may, in the discretion of the court, have the suit dismissed.'" II. PLEAS TO THE JURISDICTION, AND IN ABATEMENT. Order of pleading. — " The law has prescribed and settled the order of pleading which the defendant is to pursue, viz. : ' Gould's PI. 267; Rattan v. Stone, (1895). 177; 1 Starr & Curtis 322; 2 Scam. 541; Hildreth v. Hough, Eussell w Martin, 2 Scum. 492. 20111. 331; Elee v. Wait, 28 111. 70. » Frink v. Flanagan, 1 Gilm. 35; ^Orendorffv. Stanberry, 20111. 89; Camjibell v. Head, 13 111. 122; AIc- Gin V. Hobbit, 23 111. 473. Claiighreyv. Cratzenberg, 39111. 117. ^Sclioonhoven V. Gott, 20 111.46; »Rev. Stat. (1893), 169; 1 Starr & Windettv. Hamilton, 52 lU. 180. Curtis 311; Rev. Stat. (1895), 173; * Reaughv. McConnell, 36 111. 373; Lawrence v. Yeatvian, 2 Scam. 15; but see Schoonhoven v. Gott, 20 111, Singleton v. Wafford, 3 Scam. 577; 46; 1 Chit. PI. 391. Love v. Fairfield, 5 Gilm. 303. * Gould's PI. 267, 251; Greer v. "Rev. Stat. (1893), 172; Rev. Stat. Yoimg, 120 111. 184. (1895) 176; 1 Starr & Curtis, 320; « Greer v. Young, 120 III. 184. Stoddard v. Miller, 29 lU. 291. ' Rev. Stat. (1893), 173; Rev. Stat. DEFENSES TO AN ACTION. 35 1st. To the jurisdiction of the court. 2dli/. To the disability, etc., of the jjerson : \ 1st. Of the plaintiff ; ) 2dly. Of the defendant. Sdly. To the count, or declaration. 4thly. To the ivrit : f 1st. To the form of the writ.: 1st. Matter apparent on the face of it 2dly. Matter dehors; Sdly. To the action of the writ. Sthly. To the axition itself, in bar thereof. I JLSl. J.U \ I This, it is said, is the natural order of pleading, because each subsequent plea admits that there is no foundation for the former — as when the defendant pleads to the person of the plaintiff, he admits the jurisdiction of the court," etc, " If this order of pleading be inverted, the defendant will be pre- cluded from pleading any matter prior in point of order." ' Pleas in abatement, — A plea in abatement is defined to be a plea that, without disputing the justness of the plaintiff's claim, objects to the place, mode or term of asserting it, and requires that therefore, and^ro /iac vlvi, judgment be given for the defendant, leaving it open to renew the suit in another place or form, or at another time/ The office of a plea in abatement is to set up matter which merely defeats the pres- ent proceeding but does not show that the plaintiff is forever concluded, and it must give the plaintiff a better writ.^ All dil- atory pleas are sometimes called pleas in afxitet)ient, as contra- distinguished from pleas to actions or in bar. This, how- ever, is never proper when strict accuracy is required.* Requisites of pleas in abatement. — Fleas of this charac- ter are required to be full, certain and formal in every partic- ular. Not being favored by courts, because of their dilatory nature, they are not aided by any intendment," and can not ' 1 Chit. PI. 379. ^Tidd'sPr. 639; 1 Chit. PI. 395; 2 1 Chit. PI. 441 ; Comyn's Digest, 1, Gould's PI. 75, 76; HoUoway v. Free- 11; Pitts Mfg. Co. v. Com. Nat. man, 22 111. 197; Fowler v. Arnold, Bank, 121 111. 582. 25 111. 284; Diblee v. Davison, 25 111! M Chit. Fl. 44Q et seq. ; Gregg v. 486; Parsons v. Case, 45 111. 296; Summer, 21 111. App. 110. Nixon v. Ins. Co., 47 111. 444; Buckles * Gould's PI., Sec. 35. v. Harlan, 54 HI. 361; Humphrey v. 3G DEFENSES TO AN ACTION. be altered or amended.' Whether a pica is in abatement or in bar is to be determined, not from the subject-matter of the plea, but from its conclusion. The relief sought by the prayer of the plea determines its character.' At Avliat time dilatory pleas must be pleaded.— All pleas in abatement (under which general name are here included pleas to the jurisdiction and all other dilatory pleas), and ob- jections of that nature, must be interposed at the first oppor- tunity, in any court, whether a court of record or not.' It is too late to plead in abatement after demurring to the decla- ration,' or pleading in bar of the action,' or joining in error; ' or to plead to the jurisdiction after a motion seeking the same object of the plea,' or after the defendant has appeared, and moved for a continuance.* Nor can a plea in abatement be pleaded after a similar plea has been stricken from the files." But it must be understood that the defendant is not bound to plead at all until the plaintiff is in a situation to compel him to plead.'" Phillips, 57111. 132; Feaslerv. Schrie- ver, 68 111. 323; U. N. Bank v. F. N. Bank, 90 lU. 56; Ryan v. Lander, 89 111. 554; Hill v. Harding, 93 111. 77; Garrick v. Chamberlain, 97 111. 620; Pitts V. Bank, 121 111. 586. 1 1 Chit. PI. 405; Gould's PI. 236; ' Holloimy v. Freeman, 22 111. 197; Cook V. Yarwood, 41 111. 115; Drake V. Drake, 83 111. 526; Pitts Mfg. Co. V. Com. Nat. Bank, 121 111. 582. n Tidd's Pr. 637; Jenkins v. Pep- ron, 2 Jolins. Cas. 312; Pitts. Mfg. Co. V. Com. Nat. Bank, 121 111. 582. ^Conley v. Good, Breese 135; Pearce v. Swan, 1 Scam. 266; Greer T. WJieeler, 1 Scam. 554; Bines v. Proctor, 4 Scam. 174; Duncan v. Charles, 4 Scam. 561; Wilson v. Net- tleton, 12 111. 61 ; Randolph v. Emer- ick, 13 111. 344; Moss v. Flint, 13111. 570- Thorpe v. Starr, 17 111. 199; Stum2)sv. Kelly, 22111. 140; Holloimy V. Freeman, 22 111. 197; Gilmore v. Nowland, 26 111. 200; Roberts y. Fahs, 32 111. 474; Wayman v. Crozier, 35 111. 156; Clifford v. Eagle, 35111. 444; Messeroy v. Beckivith, 41 111. 452; Archibald v. Argall, 53 111. 307; R. R. Co. V. Williams, 77 111. 354; Fond- ville V. Monroe, 74 111. 126; U. N. Bank v. Nat. Bank, 90111. 56; Fisher V. Cook, 125 111. 280. * Randolph v. Enierick, 13 111. 344; Fergersonv. Rawlings, 23 111. 69. 5 Walker v. Welch, 14 111. 277; Gilmore v. Nowland, 26 111. 200; Allen V. Watt, 69 111. 655; Lindsay v. Stout, 59 111. 491; Fisher v. Cook, 125 111. 280; Dodge v. People, 113 111. 495. ® Robinson V . Magarity, 28 111. 423; Oliver v. Cochran, 19 Bradw. 236. 1 Archer v. Claflin, 31 111. 306. » Roberts v. Thomj)son, 28 111. 79; U. N. Bank v. Nat. Bank, 90 111. 56. ^Cook V. Yarwood, 41 111. 115; 1 Starr & Curtis, 182; Rev. Stat. (1893), 102; Rev. Stat. (1895), 102. ^^Shepard v. Ogden, 2 Scam. 257; Archer v. Claflin, 31 Dl. 306. DEFENSES TO AN ACTION. 37 Statutory, etc., relating to pleas in abatement. — Section 4 of the statute in relation to abatement, declares that " when a defendant in an action upon a contract, express or implied, pleads in abatement the non-joinder of any other person as de- fendant, the court shall, at any time before issue joined on such plea, allow the plaintiff to amend his declaration, by inserting therein the name of the person named in such plea, and declar- ing against him jointly with the original defendant." ' Premature action. — A defense that a suit was begun before the claim was due, should be set up by plea in abatement, and not by plea in bar.'' Thus, if an action is brought in violation of contract to extend time of payment, it has been held, that is a defense in abatement only, and can not be set up after pleading in bar.' Tariance. — A variance between a summons and the declara- tion may be taken advantage of by a plea in abatement;^ and can only be taken advantage of by such plea, or by motion to quash," Amendments to cure matters of abatement. — By section 3 of the abatement act, it is provided that " No action or proceeding shall be defeated by plea in abatement, if the defect found is capable of amendment, and is amended on terms pre- scribed by the court." " A variance betAveen summons and declaration,^ misjoinder, non-joinder and misnomer can be cured by amendment. " No action, proceeding or complaint, in law or equity, commenced by or against a feme sole, either alone or with others, shall abate on account of her intermarriage before final judgment, ' 1 Starr & Curtis 181; Rev. Stat. Chit. PI. 389; Gould PI. 235; Allen v. (1893), 101; Rev. Stat. (1895), 101; IT'aff, 69 III, 655. Damron v. Siveetser, 16 Bradw. 339. ''Prince v. Lamb, Breese 378; Rust ^Palmer v. Gardiner, 77 111. 143; v. Fort, Breese 331; Weld v. Hulh- contra, McCoy v, Bahcock, 1 Bradw. bard, 11 111. 573; Thorp v. Starr, 17 414; Life Ass'n v. Hagler, 23 111. III. 199; Carpenter v. Hoyt, 17 111. App. 457. 529; Schoonhoven v. Gott, 20 III. 46; ^Cxdver v. Johnson, 90 III. 91; Windett v. Hamilton, 52 111. 180. Archibald v. Argall, 53 III. 307; Pitts « 1 Starr & Curtis' 181; Rev. Stat. V. Com,. Nat. Bk., 21 III. App. 483. (1893), 101; Rev. Stat. (1895), 101. * Simons v. Waldroji, 70 III. 281; ' Wildai/ v. Wright, 71 III. 374; Fonville v. Monroe, 74 III. 126; 1 Hesli}) v. Peters, S Scam. Ao. 38 DEFENSES TO AN ACTION. but she may continue to prosecute or defend the same in like manner as if she were sole." ' The statute provides that "a married woman ma3% in all cases, sue and be sued without joining her husband with her, to the same extent as if she were unmarried." " Death of sole plaintiff or flefeiitlant. — By the common law, the death of a sole plaintiff or sole defendant, pendente lite, abates the suit; and if one of several plaintiffs die pending the suit, it will in most cases abate; but if one of several defend- ants die, it is generally no cause of abatement, but the plaint- iff may suggest the death upon the record, and proceed in the same suit against the survivors, if the cause of action is such as would survive against them, as is almost universally the case.' But by statute, however, in England, and generally in the states of the union, the common law has been modified in respect to the abatement of suits by the death of parties, and provision has been made for the substitution of the represen- tatives of such deceased parties, and in all cases where the cause of action survives. Death of sole plaintiff. — By section 10 of the abatement act, it is provided that " where there is but one plaintiff, petitioner or complainant in an action, proceeding or com- plaint, in law or equity, and he shall die before final judgment or decree, such action, proceeding or complaint shall not on that account abate, if the cause of action survive to the heir, devisee, executor or administrator of such decedent, but any of such to whom the cause of action shall survive, may by suggesting such death upon the record, be substituted as plaintiff, petitioner or complainant, and prosecute the same as in other cases." * The suggestion of death, made w^ithout ob- • 1 Starr & Curtis, 182; Rev. Stat. 111. 122: R. R. Co. v. Button, 68 111. (1893), 102; Rev. Stat. (1895), 102. 409; Bassett v. Bassett, 20 Bradw. 'Rev. Stat. (1895), 855; Rev. Stat. 543; Bloomington v. Annett, 16 (1893), 806; 1 Starr & Curtis, 1269; Bradw. 199. Wingv. Goodman, 75 III. 159; An- ^Qould's PI. 246, 248. derson v. Friend, 71 111. 475; Martin * 1 Starr & Curtis, 182; Rev. Stat. V. Rohson, 65 111. 129; Chicago v. (1893;, 102; Rev. Stat. (1895), 102. Speer, 66 111. 154; Hennie v. Vogel, See Bunker v. Green, 48 111. 243; 66 111. 401; R. R. Co. v. Dickson, 67 Murphy v. McGrath, 79 lU. 594; DEFENSES TO AN ACTION. 39 jection from the adverse party, and an order allowing sub- stitution of names, is prima facie proof, for the purposes of the case, of the death of the original plaintiff.' An order substituting administrator of sole plaintiff is nec- essary.'' But entering judgment in favor of a dead person, without first reviving suit in the name of his representatives, is not such an error as requires a reversal of a judgment.' When the representatives of a deceased party are substituted in his stead, the declaration need not be amended by the in- sertion of their names.* Death of sole defendant. — Section 11 of the statute in rela- tion to abatement, provides that " when there is but one de- fendant in an action, proceeding or complaint, in law or equity, and he dies before final judgment or decree, such action, proceeding or complaint shall not on that account abate, if it might be originally prosecuted against the heir, devisee, executor or administrator of such defendant; but the plaintiff, petitioner or complainant may suggest such death on the record, and shall, by order of the court, have summons against such person or legal representative, requiring him to appear and defend the action, proceeding or complaint, after which it may proceed as if it had been originally commenced against him.- ' ^ The representatives of a deceased defendant will not be al- lowed to suggest the defendant's death, unless he submits him- self to the jurisdiction of the court.' Section 11 applies to appeals and Avrits of error,' and to attachment suits.' Several parties — Death of part. — Where there are several plaintiffs or defendants, and any of them die before final judg- Katzv. Moessinger, 110 111. 372; Coal s i gtarr & Curtis, 183; Rev. Stat. V. Long, 91 111. 617; Leamon v. Mc- (1893), 102; Rev. Stat. (1895), 102; Cuhhin, 82 111. 263, Sharpev. Morgan, 144 111. 382; Dow ' Stebbens v. Duncan, 108 U. S. v. Blake, 148 111. 76. 32. Life Ins. v. Fasseft, 103 111. 315. 2 Thorp V. Starr, 17 111. 199; MilH- See Danforth v. Danforth, 111 111, ken V. Marlin, 66 111. 13, 236. ^Bunker v. Green, 48 111. 243; •> jDzrerset/ v. S^??n77j, 9 Bradw. 437, Murphy v. McGrath, 79 111. 594. • 8 Davis v. Shapleigh, 19 111. 386. * Hozs V. Van Alstyne, 20 111. 202* 40 DEFENSES TO AN ACTION. irient, the action shall not abate, but the death may be sug- gested and the cause proceed as to the survivors.' It would not be proper to join administrator of deceased defendant with a surviving defendant,'* nor the administrator of a deceased plaintiff with the surviving partner.^ Death of all on one side. — In case all the plaintiffs or all the defendants die, the cause may be prosecuted or defended by or against the heir, devisee or administrator, to or against whom the cause survives, etc.* Pleas in abatement — When to he verified. — The first sec- tion of the abatement act provides : " That no plea in abate- ment, other than a plea to the jurisdiction of the court, or when the matters relied upon to establish the truth thereof appear of record, shall be admitted unless the same is verified by the affidavit of the person offering the same, or of some other per- son for him." ^ Every pleading Avhich sets up matter in abate- ment which does not appear of record to be true, must be verified by affidavit; and if not so verified should be stricken from the files on motion.' Where a summons has been issued, but not delivered to the sheriff to serve, the suit does not thereby abate.^ Judgment upon a plea in abatement. — In ordinary actions at law, in courts of record, the judgment on the finding of the issues for the plaintiff, upon a plea in abatement, is interlocu- tory or final, according to the nature of the action. If the ac- tion be for damages in assumpsit or in tort, it is interlocutory; but if it be in debt for a sum certain, or for a specific recovery of land or goods, it is final.^ If the judgment is for the plaint- ' 1 Starr & Curtis, 183; Rev. Stat. ^ Life Ass'n v. Fassett, 102 111. 315; (1893), 102; Rev. Stat. (1895), 103; Ryan v. Lander, 8Q III. 5M; King y, Steele v. Thatcher, 79 111. 400. Haines, 23 111. 340; Cook v. Var- ^ Etch V. Sievers, 73 111.194; see ^rood, 41 111. 115; McNah v. Bennett, Riclieson v. Ryan, 15 111. 13; Stoet- 66111. 157; 31ou7it v. Scholes, 120111. zell V. Fullerton, 44 111. 108. 394; Richer v. Schofield, 28 111. App. . 3 Betton V. Fish, 44 111. 83. 33. * 1 Starr & Curtis, 184; Rev. Stat. "> Schroeder v. 7ns. Co., 104 111. 71. (1893), 102; Rev. Stat. (1895), 102. » Steele v. Ry. Co., 20 Bradw. 366; n Starr & Curtis, 177; Rev. Stat. 2 TidcFs Pr. 740; Gould's PI. (4tli Ed.) (1893) 101; Rev. Stat. (1895) 101. Chap. 5, Sec. 159. defensp:s to an action. 41 iff on demurrer to the plea, the judgment is only interlocutory^ quod respondeat ouster.' The judgment for the defendant on a plea in abatement, whether on an issue of fact or in la^Y, is that the ^yrit be quashed;" or if a temporary disability or privilege is pleaded, that ih.Q plaint remained without day, until, etc.^ Plea ill abatement by corporation. —A plea by a corpora- tion aggregate, which is incapable of personal appearance, must purport to be by attorney.' A corporation may put in issue the fact of the service of process upon it by plea in abate- ment, and then contradict the officer's return, which is only lyrima facie evidence of the truth of the facts therein recited.^ In the case of The Protection Life Insurance Co. v. Palmer^ 81 111. 88, it was held that the question whether a summons has been properly served can not be raised by a plea in abatement; but can only be properly considered on motion to quash the service and return. The same rule was adopted in Greer v. Youngs, 120 III. 184; but the supreme court in Union National Banlc v. First National Bank, 90 111. 56, pronounce the rule laid down in The Protectioji Life Ins. Co. v. Palmer, as ohiter dicta merely; and that there was no design in that case to overrule the previous decisions. Term, 18—. No. 1. Plea to the Jurisdiction. In the Court. C. D. ) ats. y Assumpsit. A. B. ) And the said C. D., m his own pei-son, comes and defends, etc., and says, that before and at the time of the commencement of the said action of the said A. B., he, tlie said C. D., was, and from thence hitherto has been, and still is, residing in the county of , in the said State of Illinois, ' 1 Chit. PI. 405; Gould's PI. 277; 16 111. 306; Cushman v. Savage, 20 Delahay v. Clement, 3 Scam. 201; 111. 330; Spaulding v. Lowe, 58 111. Bradshaw v. Moorehouse, 1 Gilm. 96. 395: Weldv. Hubbard, 11 111. 573; ^ 1 Chitty's PI. 405. AtMnson v. Bank, 5 Blackf. 85; *Chitty's PL, Vol. 1, p. 551; Ma-on Haight v. Holley, 3 Wend. 263. v. Ins. Co., 47 111. 444; M.s^jeZ v. R. •^Gould's PI. 277; ItcKiiistey v. R. Co., i^i 111 311: Kankakee Drain. Pennoyer, 1 Scam. 319; Motherell v. Dist. v. Comm., 29 111. App. 86. Beaver, 2 Gilm. 69; Eddy v. Brady, ^ Bank v. Bank, 90 111. 56. 42 DEFENSES TO AN ACTION. and not in the said county of ; and that he, the said C. D. , was not found or served with process In the said action in the said county of , but was found and served with process in the said action in the said county of ; and this he is readj'^ to verify; wherefore he prays judgment if tlie court here will take cognizance of the action aforesaid. C. D. E. F., Counsel. The second section of the Illinois Practice Act of 1872 pro- vides that " it shall not be lawful for any plaintiff to sue any defendant out of the county where the latter resides or may be found, except in local actions, and except that in every species of personal actions, in law, where there is more than one defendant, the plaintiff commencing his action where either of them resides may have his writ or writs issued, directed to any county or counties where the other defendants, or either of them, may be found : Provided, that if a verdict shall not be found, or judgment rendered, against the defendant or de- fendants resident in the county where the action is commenced, judgment shall not be rendered against those defendants who do not reside in the count}^, unless they appear and defend the action." ' Unless a defendant, when sued in a foreign county, insists upon his privilege in apt time, b}'' a plea to the jurisdiction, it will be presumed that he has waived his right to be sued in his own county.* The matter is not pleadable in bar,^ nor can advantage be taken thereof by a motion to dismiss,* or on de- murrer, or writ of error." Superior courts of general jurisdiction (and such are the circuit courts in Illinois),' are presumed to be in the proper exercise thereof, until the contrary is shown; and pleas to their jurisdiction must set forth facts showing a want of jurisdiction, and must be certain in every particular.^ 'Rev. Stat. (1893), 1071; Starr & Inh. Co. v. Buckles, 49 111. 482; see Curtis, 1773; Rev. Stat. (1895), 1155; Safforcl v. Ins. Co., 88 111. 296; Mc- Fiink V. Ironmonger, 76 111. 506; R. CuUoch v. Ellis, 28 111. App. 439. R. Co. V. Williams, 77 111. 354. "Hardy v. Adams, 48 111. 533. * Holloway v. Freeman, 22 111. 197; ^ Kenney v. Gi^eer, 13 111. 432. Allen v. Watt, 69 111. 655; Stark v. •> Kenney v. Greer, 13 111. 432; Dib- Ratcliff, 111 111. 75. lee v. Davison, 25 111. 486; Aird v. 3 Waterman v. Tuttle, 18 111. 292. Haijnie, 36 111. 174; Jns. Co. v. * Holloway v. Freeman, 22 111. 197; Buckles, 49 111. 482. DEFENSES TO AN ACTION. 43 A plea showing that a defendant has been sued out of his county, on process sent to his county, is not strictly a plea in abatement, but a meritorious one to secure a substan- tial right, and if defective in form, is amendable.' Pleas to the jurisdiction must be pleaded in person, and not by at- torney,'' except when pleaded b}^ a corporation.' In a case where one of two defendants signed a plea of this kind by the initials of his given name, it was held insufficient;* though it would not seem to be necessary that the defendant should sign the plea at all, but merely that it should appear to be pleaded in person. In Illinois, as we have seen, these pleas are not required to be verified by affidavit." They should con- clude by praying judgment "if the court will take cognizance," etc., and not " that the writ be quashed." * It is not necessary, it would seem, in Illinois, to point out in the plea some other court in which the defendant ought to be sued, since the courts must take judicial notice of the law, which establishes certain tribunals in every county. See further, as to pleas to the jurisdiction, especiall}^ of inferior courts, 1 Chit. PI. 383-380, and Gould's PL 216-223. No. 2. Plea of viisnomer of defendant, in christian name. In the Court. Term, 18—. C. D. , sued by the name of E. D. , ] ats. [• Assumpsit. A. B. ) And C. D. (against whom the said A. D. has sued out his said writ by the name of E. D.), in his own per- son comes and says, that he is named and called C. D., and by that name and that surname has always hitherto been named and called; without this that he, the said C. D., now is, or ever was, named or called by the name of E., as by the said writ is supposed. And this he, the said C. D., is ready to verify; wherefore he prays judgment of the said writ, and that the same may be quashed, etc. G. H., Counsel. CD. ^Safford v. Ins. Co., 88 HI. 298; n Starr & Curtis 177; Rev. Stat. Drake v. Drake, 83111. 52G. (1893), 101; Rev. Stat. (1895). 101. '1 Chit. PI. 380; Gould's PI. 222; « 1 Chit. PI. 380; Gould's PI. 222. R. R. Co. V. Keep, 22 111. 9. Drake v. Drake, 83 lU. 526; see Wal- ^Nispel V. R. R. Co., 64 111. 311; Jace v. Cox, 71 111. 548; Safford v. Kankakee v. Comm., 29 111. App. 86. Ins. Co., 88 111. 296. * Holloway v. Freeman, 22 111. 197. 44 DEFENSES TO AN ACTION. In the Covirt. C. D., sued by the name of E. D., ) ats. > Assumpsit. A. B. ) C. D, the defendant in this cause, makes oath and says, that the plea hereunto annexed is true in substance and fact. C. D. Subscribed and sworn, etc. The affidavit must be positive;' it is not sufficient to say " to the best of the knowledge and belief" of the affiant." It is said that the affidavit must be entitled in the cause; but in Illinois it is held that this is unnecessary where the affidavit is written on the same piece of paper with the plea, and refers to it/ as is usually the case. The above form of plea can be readily adapted to the case of a misnomer of the defendant as to his surname. For a plea of misnomer of the plaintiff, see 3 Chit. PI. 903. It appears advisable, it is said, to plead misnomer of the de- fendant in person, and that coverture of the defendant should not be pleaded by attorney;* but it is presumed that all pleas, except those to the jurisdiction, may be pleaded by attorney. Misnomer in describing one of two defendants can not be pleaded by the other." If the right name was used in the writ, laut the defendant is miscalled in the declaration, it seems the latter may be amended." A defendant sued by his given name alone must plead the misnomer in abatement; and if it is not so pleaded the objection is waived.' A county which has adopted township organization can, in Illinois, only be sued by the name of the board of supervisors, and, if sued otherwise, it is not necessary to plead the matter in abatement. The capacity of a county to be sued is onh^ given by special statute, and the statute must be followed." 1 1 Chit. PI. 402, White, 71 111. 287; Goodkind v. 2A7«gv. fiame.s,23Ill. 340. Bartlett, 153 111. 419; Peiin Co. v. 3 Cook V. Yancood, 41 111. 115. Sloan, 125 111. 72; see Feasler v. 4 3 Chit. PI. 899n., 90 lo. Schriever, 68 111. 322. 6 1 Chit. PI. 391; Gould's PI. 240. « Rock Island v. Steele, 31 111. 543; « Schoonhoven v. Gott, 20 111. 46. Schuyler Co. v. Mercer Co., 4 Gilni. •'Hammond v. People, 32 111. 446; 20. Pond V. Ennis, 69 111. 341 ; Scott v. DEFENSES TO AN ACTION. 45 But generally a corporation defendant can not take advantage of a misnomer except by plea in abatement; ' and misnomer of a corporation plaintiff is also to be pleaded in abatement.^ If the misstatement of a name, in suing on a written contract, causes a variance, advantage may be taken of it under the gen- eral issue/ A defendant can not plead in abatement because of an alias dictus added to liis name/ An initial letter between the christian name and surname is no part of the name, and the omission of it does not cause a misnomer or variance/ If the name by which a party sues or is sued is the same in sound with his true name, there is no misnomer. In the fol- lowing instances it was held that the rule of idem sonans applied : Sinclair, for St. Clair' ° Samuel Ileadley, for Sam- uel Headly, Jr.; '' Little, for Lytle; ' McDonald, for McDon- nelV and Burnstein, for Barnstein}" But Schoonover and Schoonhoven are not the same; " and it will not be presumed, without averment, that Bart is an abbreviation of Barthol- omew.^'^ Where the name appears to be a foreign one, and there is simply a variance of a letter which, according to the pro- nunciation of the language to which the name belongs, does not vary the sound, it is not a misnomer — as Petris, for Petrie.'^ Respecting foreign names, it is said that courts should be slow to pronounce that a variance, unless obviously so, which may be only a misspelling or mispronunciation of the name/* The plaintiif may traverse the plea of misnomer, or reply 1 Gilbert v. Bank, 5 Mass. 97. « Lytle v. People, 47 111. 433. * 1 Chit. PI. 391; Hoereth v. Mill ^ McDonald v. People, 47 111. 533. Co., 30 111. 151; R. R. Co. v. Hein- *" Springer v. Hutchinson, 59 111. rich, 57 111. App. 899. App. 80. 34 Term R., 611; Chit, on Bills, 6th " Sdioonlioven v. Gott, 30 111. 46; Ed., 353; 1 Chit. PI., 391. see also Gonzalia v. Bartelsman, 143 * Reid V. Lord, 4 Johns. 118. 111. 634; Giiertin v. Mombleu, 144 111. s Thompson v. Lee, 21 111. 242; 32. Miller v. People, 39 111. 457; Bletch '^ Cvrtiss v. 3farrs, 39 111. 508. V. Johnson, 40 111. 116; Tucker v. ^'^ Petrie v. Woodworth, 3 Caine People, 123111. 588; Langdon v. Peo- 319. pie, 133 111. 395. '•» Chiniquy v. Cath. Bishop, 41 « Rivard v. Gardner, 39 111. 125. 111. 148. •> Headley v. Shaw, 39 111. 354. 46 DEFENSES TO AN ACTION. an estoppel/ or that the defendant is known as well by the one name as the other.^ It seems that where a misnomer was truly pleaded, the plaintiff might amend his declaration at common law and the suit might proceed.^ Where the real party in interest, and the one intended to be sued, is actually served with process in the cause, even though under a wrong name, he must take advantage of the misnomer by plea in abatement in such suit. If he does not, he will be concluded or decree rendered the same as if sued in his true name.* No. 3. Replication to No. 2. Defendant known as well by one name as the other. In the Court. Term, 18—. A.B. ) vs. > Assumpsit. E. D. ) And tlie plaintiff says, that the said writ, by reason of any- thing by the defendant in his plea above alleged, ought not to be quashed, (*) because he says that the defendant, long before and at the time of the issuing of the said writ, was, and still is, called and known as well by the name of E. D. as by the name of C. D. : And this the plaintiff prays may be inquired of by the country, etc. G. H., Attorney for Plaintiff. In a case where the plaintiff sued as S. S. Farrington, and the defendant pleaded that the plaintiff's name was Samuel S. Farrington, a replication that he was known as well, etb., was held good.^ No. 4. Plea of non-joinder of party as defendant. In the Court. Term, 18—. CD.) ats. > Assumpsit. A. B. ) And the said C. D., by E. F., his attorney, comes and defends, etc., and prays judgment of the said writ, because he says that the several supposed promises in the said declaration mentioned, if any such were made, were, and each of them was, made (*) jointly with oneE. F., who is still living, and not by the said C. D. alone: And this he, the said C. D., ' 3 Chit. PI. 1143. = 1 Chit. PI. 402. 2 3 Chit. PI. 1143; Gould's PI. 242; ^Pennsylvania Co. y. Sloan, 125 Schoonhoven v. Gott, 20 111. 46; 111. 72. Lucas V. Farrington, 21 111. 31. * Lucas v. Farrington, 21 El. 31. DEFENSES TO AN ACTION. 47 is ready to verify; wherefore, inasmuch as the said E. F. is not named in the said writ together with the said C. D., he, the said C. D., prays judg- ment of the said writ, and tliat the same may be quashed, etc. E. F., Attorney for Defendant, (Add affidavit, as ante, No. 2.) In deht on simple contract the form may be, " that the sev- eral supposed causes of action in the said declaration men- tioned, if any such accrued, and each of them, and every part thereof, accrued against the said C. D. jointly with one E. F., who is still living, and not against the said C. I), alone," etc. In debt on lond, the plea in abatement of non-joinder craves oyer of the bond, and avers that the party omitted sealed and delivered the deed, and that he is still living.' No. 5. Replication to No. 4, denying that promises were made jointly, etc. (As in No. 3, ante, to the asterisk:) because he says, that the said several promises were not made by tlie defendant jointly with the said E. F,, in manner and form as the defendant has above in his said plea alleged: And tliis the plaintiff prays may be inquired of by the country, etc. J. M., Attorney for Plaintiff. The plaintiff may deny the plea, as above, or he may reply that the person not joined as defendant was dead at the time of the«commencement of the suit," or was an infant, or a mar- ried woman ;^ or if there is in fact a debt due to the plaintiff from the defendant and a third person jointly, a new assign- ment seems proper, and sometimes necessary." "When a defendant in an action upon a contract, express or implied, pleads in abatement the non-joinder of any other per- son as defendant, the court shall at any time before issue joined on such plea, allow the plaintiff to amend his declara- tion by inserting therein the name of the person named in such plea, and declaring against him jointly with the orio-inal defendant." * ' 3 Chit. PI. 901. * 2 Swan's Pr. 6.50rt. 5 Cummings v. People, 50 111. 132; « Rev. Stat. (1898\ 101; see Smith Dement v. Rokker, 126 111. 174. t. Harris, 12 111. 402. 2 1 Chit. PI. 35. 48 DEFENSES TO AN ACTION. No. 6. Plea of non-joinder of party as plaintiff. {As in No. 4, ante, to the asterisk:) to the said A. B. and one E. F., (who is still living,) jointly, and not to the said A. B. alone: And this he, the said C. D., is ready to verify; wherefore, inasmuch as the said E. F. is not named in the said writ together with the said A. B., he, tin said C. D.. prays judgment of the said writ, and that the same may be quashed, etc. G. H. , Attorney for Defendant. {Add affidavit, as ante, No. 2.) The plea in abatement of non-joinder mnst aver that the party omitted is still living;' and if the defendant pleads in abatement the non-joinder of a party, and it turns out that . there are other joint contractors not named in the plea, the defendant will not succeed thereon.'' The non-joinder of a party who ought to be made co-plaint- iffs in actions on contracts, will in general be ground of non- suit and need not, though it may, be pleaded in abatement; ' but in the case of executors and others suing in right of rep- resentation, the omission can only be pleaded in abatement." If it appears from the plaintiff's own pleadings that there are other persons who ought to be, but are not, made plaintiffs, (or, in an action on a specialt}'-, if this is made to appear, by craving oyer,) the defendant may avail himself of the omis- sion on demurrer, or motion in arrest, or on error.* In actions ex delicto, however, the non-joinder of a person as plaintiff must be pleaded in abatement; otherwise no advantage can be taken of it except in mitigation of damages." But in Illinois, in debt, on the statute, for cutting trees, etc., all the owners of the land must join, and the defendant is not required to plead a non-joinder of them in abatement.'' With regard to defendants., the omission of a joint contractor must be pleaded in abatement.' If, however, it expressly ap- > 1 Chit. PI. 392. « Gould's PI. 257-258; 1 Chit. Pi. 2 1 Chit. PI. 33. 398; Edicards v. Hill, 11 111. 22; 3 1 Chit. PI. 8-393. Johnson v. Richardson, 17 111. 302. 4 1 Chit. PI. 393-393; Gould's PI. '' Edwards v. Hill, 11 111. 33. 257. 8 Chit. PI. 33, 393; Gould's PI. 255; 5 1 Chit. PI. 7, 8; Gould's PI. 257; Lurton v. Gilliam, 1 Scam. 577; Damronv. Siveetser.lQlW. App.33d; Thompson v. Strain, 16 111. 369; Dement v. Rokker, 126 111. 174. Page v. Brant, 18 111. 37; Cummings DEFENSES TO AN ACTION. 49 pears on the face of some pleading on the part of the plaintiff that the person omitted is still living, as well as that he jointly contracted, the defendant may demur, or move in arrest, or sustain a writ of error.' If there be a legal excuse for not joining a partner, as, if he be dead, the plaintiff must allege it.' In actions for toHs, no advantage can in general be taken of a non-joinder of persons as defendants'^ No. 7, Misjoinder of defendant — Plea by one defendant. In the Court. Term, 18—. C. D. and E. F. ) ats. j- Assumpsit. A. B. ) And the said E. F., by G. H., his attorney, comes and defends, etc., and prays judgment of the said writ, because he says that the several supposed promises in the said declaration mentioned, if any such were made, were, and each of them was, made by the said C. D. alone, and not by the said E. F. jointly with the said C. D. : And this he, the said E. F., is ready to verify; wherefore he prays judgment of the said writ, and that the same may be quashed, etc. G. H., Attorney for E. F. {Add affidavit, as ante. No. 2.) As to a misjoinder of plaintiffs or defendants, in actions on contracts, at common law advantage ma}'^ be taken of the mis- take as well under the general issue as by plea in abatement;* and this is the law in Illinois, as regsiixls plaint ij^s." In respect to defendants, the statute now in force in Illinois provides, that " in actions upon contracts, express or implied, against two or more defendants, as partners or joint obligors or payors, lohethef so alleged or not, proof of the joint liability or partnership of the defendants, or their christian or surnames, shall not, in the first instance, be required to entitle the plaintiff to judgment, V. People, 50 111. 132; Pearce v. Vieths v. Skinner, 47 111. App. 325; Pearee, 67 111. 207; Boss v. Allen, 67 See R.A.Co.v. Middlecoft, 150 111. 27. 111. 317; Dement v. Rokker, 126 111. "Gould's PI. 225,260; as to non-suit, 189. 1 Chit. PI. 8, 34; Zuel v. Boiven, 78 ' Chit. PI. 32; Thompson\. Strain, 111. 234. 16 111. 369; see Gould's PI. 260; De- ^Rev. Stat. (1893), 1075; Rev. Stat. ment v. Rokker, 126 111. 189. (1895), 1159; 1 Starr & Curtis 1799; M Chit. PI. 14, *15; Dement v. Snell v. De Land. ^Zl\\.'62i; Murphy Rokker, 126 111. 189. v. Orr, 32 111. 489; Dement v. Rok- 8 Chit. PI. 75, 393; Gould's PI. 261; ker, 126 111. 189. 4 50 DEFENSES TO AN ACTION. unless such proof shall be rendered necessary by pleading in abatement, or unless the defendant shall file a plea in bar deny- ing the partnership or joint Uabillty or the execution of the in- strument sued upon, verified by affidavit." ' This enactment differs, in the respects indicated by the words in italics, from the former law, under which all the cases on this subject here- tofore adjudged were decided.^ As therefore the partnership or joint liability of the defendants can now be put in issue by a plea in bar, and as there is a difficulty in pleading a misjoinder of defendants in abatement — since, though a party may well by his sworn plea deny that he made the alleged promises jointly with another, it may often be impossible for him to say on oath who did make them, and thus to give the plaintiff a better ■\vrit — it is presumed that such misjoinder will seldom be pleaded in abatement. In actions for torts, advantage of a misjoinder of plaintiffs may also be taken either by plea in abatement or under the general issue; ' but if several persons are sued for a tort com- mitted by one of them only, no advantage can be taken of it, as a misjoinder, in any way.* No. 8. Plea of another action pending. In the Court, Term, A. D. 18—. C. D. ) ats !- In an action of . A. B. ) And the defendant C. D., by E. F., his attorney, comes and defends the wrong and injury, when, etc., and prays judgment of the said writ {or declaration); because lie says, that before the issuing of said writ, to wit, on, etc., in the same court (or other court, describing it by proper title), the plaintilT impleaded the defendant, and issued his said writ, and filed his declaration against him in a plea of trespass on the case on promises, upon the same identical promises and undertakings in the said declaration in the present suit mentioned, as by the record and proceedings thereof, remaining in the said court, more fully appears; and the defendant 'Rev. Stat. (1893), 1075; Zuel v. ^ Gould's PI. 258; see 1 Chit. PI. Bowen, 78 111. 234; Rev. Stat. (1895), 55; Murphy \. Orr, 32 111. 489. 1159; 2 Starr & Curtis 1800. "1 Chit. PI. 74; Gould's PL 261; ^Stevenson v. Famsworth, 2 Gilm. Baker v. R. R. Co., 42 111. 73; Wins- lib; Wai^en v. Chambers, 12 111. 124; low v. Newlan, 45 111. 145. Kelleher v. Tisdale, 23 111. 405; War- ren V. Ball, 3T1U. 76. DEFENSES TO AN ACTION. 51 further says, that the parties to this and the said former suit are the same, and not other or different persons; and that the said former suit so brought and prosecuted against him, the defendant, by the plaintiff as aforesaid, is still depending in the said court; and this the defendant is ready to verify; wherefore he prays judgment of the saidwr t (o?- declaration) in this suit, and that the same may be quashed. G. H., Attorney for Defendant. (Add affidavit.) No. 9. Replication to No. 8. Nul tie! record. As in No. 3, ante, to the asterisk:) because he says, that there is not any record of the said supposed former suit remaining in the said court of the said county of , in manner and form as the said C. D. has above in his said plea alleged: And this the plaintiff is ready to verify, when, where and in such manner as the court here shall order, etc. L. M., Attorney for Plaintiff. The plaintiff may reply nnl tiel record., as above; or, if there is in truth another suit pending between the same parties for a cause of action similar to that mentioned in the declaration, it would seem proper that the plaintiff should new assign — as in the following form — that he is suing for a different cause of action/ No. 9a. Replication to No. S. New assignment, that suit is for different causes of action. (Venue and title of cause.) And the plaintiff as to the said plea of the defendant, by him above pleaded, says precludi non, because he says that the said several promises and undertakings in the said declaration mentioned, are not, nor are any or either of them, any of, or any one of the same identical promises and undertakings, as those or any of those in the said plea mentioned, and for and in respect whereof the said supposed action now pending in the said plea mentioned was instituted, in manner and form as the defendant has in his said plea alleged; and this the plaintiff prays may be inquired of by the country, etc. E. F., Att'y for Pl'ff. It is an ancient rule of the common law that a man shall not be twice vexed for one and the same cause, and the pend- ency of a former suit in the same jurisdiction between the same parties for the same cause of action and relief may be • 2 Swan's Pr. 652a. 52 DEFENSES TO AN ACTION. pleaded in abatement of a second suit.' The pendency of a proceeding under the mechanic's lien law of Illinois/ or of a prior suit bv attachment can not be pleaded in abatement of a suit in personam for the same debt, unless, in the latter case, the plea shows that the defendant was personally a party to the suit; ' nor can the pendency of a suit in one state be pleaded in abatement of a second action for the same matter in another state.* In England, the pendency of a prior action in an infe- rior court can not be pleaded in abatement of an action brought in one of the superior courts.' A writ of error, operating as a supersedeas, is pleadable in abatement of another action," but not if the writ Avas sued out after the commencement of such other action.' When a sec- ond suit is commenced after a writ of error, operating as a supersedeas, has been sued out, the court in which the second action is pending wnll, on application, stay the proceedings until the determination of the writ of error.' A subsequent suit may be abated by an allegation of the pendency of a prior suit, but the reverse of the proposition does not hold in personal actions.* To entitle a defendant to plead another action pending, it is not always necessary that both actions should be between the same parties; it is some- 1 Hatch V. Spofford, 22 Conn. 485; 10 Pick. 470; Brmnie v. Joy, 9 Johns. Wales V. Jones, 1 Mich. 254; Bond 221; il/ooj-e v. Spiegel, 143 Mass. 413. V. White, 24 Kan. 45; Gamslyy v. ' 1 Chit. PI. 392; Gould's PI. 266. Ray, 52 N. H. 513; Wentivorthv. ^ Hailmanx. Bvckmaster, 3 Gilm. Bamum, 10 Johns. (N. Y.)238; Rog- 498; Bird v. Caritat, 2 Johns. 342; ers V. Hoskins, 15 Ga. 270; Thomas Peynn v. Edwards, 1 Ld. Raym. 47; V. Freelon, 17 Vt. 138; Branigan v. Merritt v. Richey, 100 Ind. 416. Rose 3 Gilm. 123. '^ McJilton v. Love, 13 111. 486; Ren- 2 Delehay v. Clement, 3 Scam. 201; ner v. Marshall, 1 Wheat. 215. Tlieihnan v. Carr, 75 III. 385. * Hailman v. Biickmaster, 3 Gilm. ^ Branigan V. Rose, 3 Gilm. 123; 498; 1 Tidd's Prac. 530; 1 Stra. 419; Winthroj) v. Carleton, 8 Mass. 456; 1 Wils. 120. Morton v. Webb, 7 Vt. 123. ^ Renner v. Marshall, 1 Wheat. ^McJilton Y.Love, 13 111.486; Al- 215; Bird v. Caritat, 2 Johns. 342; ten V. Watt, 69 111. 655; Greer v. Callahan \. R. R. Co., 61 Mich. 15; Young, 120111. 184; Williams v. Ayr- Wood v. Lake, 13 Wis. 84; Rizer v. ault, 31 Barb. 364; Newell v. Newton, Gilpatrick, 16 Kans. 564; Blumen- thal V. Taylor, 44 lU. App. 139. DEFENSES TO AN ACTION. 53 times enough if the subject-matter is the same.' A suit to recov^er the price of goods sold, and another to recover the goods on the ground of fraud on the part of the vendee, can not be maintained at the same time.' The plea of another action pending must aver that it is still pending at the time of the plea pleaded." There are decisions to the contrary; * but this is the rule in Illinois, and it is said to rest on the better reasoning and authority." The defend- ant may demur when it appears on the face of the papers that there is another action for the same cause pending between the same parties." The plaintiff can not, after a plea of a prior action pending, avoid the effect of the plea by discontinuing the prior action.' Proof by the defendant of the issuing of a writ for the same cause of action shows j^rima facie the pendency of another suit, and shifts the burden of proof on the plaintiff." The in- justice of entertaining two suits against the same party at the same time, for the same cause of action, is so glaring as to give to a plea of another action pending a more favorable position than one merely dilatory; still the pleader must not nsglect any of the essential requirements of the law." III. PLEAS IN BAR. A plea in bar is one that impugns the right of action altoirether; it is a substantial and conclusive answer to the action. It must either deny all or some material part of the averments of fact in the declaration, or, admitting them to be true, allege new facts which obviate and repel their legal ^McConnell v. Stettenius, 2 Gi\m. 259; Johnson v. Johnson, 114 111. 707; Gould's PI. 263, 265. 611; Garrick v. Chamberlain, 97 2 Seligman v. Kalkman, 8 Cal. 206. 111. 620. 3 3 Chit. PI. 905; Ross v. Neshit, 2 ^ Moore v. Sheppard, 1 Met. (Ky.), Gilm. 252; Bancroft v. Eastman, 2 97; Foster Fed. Prac, Sec. 108. Gilni. 259; Johnson v. Johnson, 114: "'1 Chit. PI. 394; Commonw. v. 111. 611. Churchill, 5 Mass. 174; but see Mar- * Commonw. v. Churchill, 5 Mass. ston v. Dayton, 1 Johns. 397; Averill 174; Frogg v. Long, 3 Dana 157; v. Patterson, 6 Seld. 500. Parker v. Colcord, 2N. H. 36; Pros- ^Foider v. Bijrd, 1 Hemp. 213. ser V. Chapman, 29 Conn. 515. ^Buckles v. Harlan, 54 111. 361. '■Bancroft v. Eastman, 2 Gilman 54 DEFENSES TO AN ACTION. effect. Pleas in bar are divided into 'picas hy loay of traverse, or denial, and j^l^ds hy way of confession and avoidance. The following rules laid down by Stephen, in his work on pleading, may be useful in this place: 1. Every pleading must he an answer to the whole of what is adversely alleged.^ 2. Pleadings must not he doiihle.^ ■ 3. In general, whatever is alleged in pleading must he alleged with certainty.^ 4. Jt is not necessary to allege that which is merely matter of evidence.^ 5. It is not necessary to state Tnatters of which the court takes notice ex officio." Wor matters which would come more properly from the other side.^ 6. It is not necessary to allege circumstances necessarily im- plied^ Nor what the law will presume!" 7. Pleading must not he insensihle or repugnant! 8. Pleading must nothe argumentative!" 9. Pleading must not he amhiguous or douhtful in meaning^ and when two different meanings present theinselves, that con- ' Andrews' Stephen's PI., Sec. 133; « ibid. Sec. 188; Romer v. Conter, Goodrich v. Reynolds, 31 111. 490; 53 Minn. 171. Dickerson v. Hendryx, 88 111. 68; ' Ibid. Sec. 189; il/wZcoZm v. 0'i?et7Zt/, Hopkins v. Medley, 97 111. 403. 89 N. Y. 136; Jones v. Andrews, 10 8 Ibid. Sec. 143; 1 Chit. PI. 456; Wall. 337. Ry. Co. V. Ingraham, 131 111. 659; « Ibid. Sec. 190; Henke v. E. E. Kipp V, Bell, 86 111. 577; R. R. Co. Ass'ii, 100 Cal. 439; Campbell v. V. Magee, 60 111. 539. Cross, 39 Ind. 155; Ballon v. Cleve- 3 Ibid. Sec. 184; Com. Dig. PI., C. Zand, 35 Ohio St, 319. 23, 17; Harpham v. Haynes, 30 111. ^ Ibid. Sec. 197; Robinson v. Rice, 404. 20 Mo. 339; Cronk v. Cole, 10 Ind. ■•Ibid. Sec. 136; Church v. Gil- 485; McKyrijig v. Bull, 211. D.Smith man, 15 "Wend. 656; Fidlerv. Dela- (N. Y.) — ; Raymond v. People, 9 van, 20 Wend. 58; Clark v. Linebar- 111. App. 344; Barber v. Summers, 5 ger, 44 Ind. 233; Grun v. Palmer, 15 Blackf. 339; Hewett v. Brown, 21 Cal. 414; Hyatt v. McMahon, 25 Barb, Minn. 163. 457. 1" Ibid. Sec. 201 ; Mishner v. Gran- 5 Ibid, Sec, 187; Secrist v. Petty, ger, 4 Gilm. 78; Spurck x. Forsyth, 109 111. 108; Oliver v. State, 4 L, R. 40 111, 440; Daniels v. Hallenbeck, 19 A. 1. Wend. 410; Daggitt v. Mensch, 141 111. 395. DEFENSES TO AN ACTION. 55 struction shall he adopted which is most unfavorable to the party pleading.^ 10. Pleadings must not be by way of recital, but must be pos- itive inform.^ 11. Things are to be pleaded according to their legal effect or operation!' 12. There must be no departure in pleading.* 13. Surplusage is to be avoided! SPECIAL PLEAS IN BAR. It is the essence of special pleas that they confess the truth of the allegations which they propose to answer or avoid. It was formerly the practice in man\^ cases to frame such pleas with a formal confession, using the introductory phrase of " true it is, that," etc., and then proceeding to plead in answer to the matter thus explicitly admitted. But this method is now generally abandoned. It is essential, however, that the confession, though not express, should be distinctly implied in, or inferable from, the matter of the pleading." If a plea, therefore, purporting to be by way of confession and avoidance (or not pleaded by way of traverse), does not import a confession of the adverse allegations, it is defective, and insufficient.' Pleadings in confession and avoidance should give clear color.* The term color signifies an apparent or 'Ibid. Sec. 198; Knoebel v, Kir- * Ibid. Sec. 211; Libhy v. Brown, Cher, 33 111. 308; Evans v. Comm'r, 1 4 Pick. 137; Beard v. Hand, 88 Ind; Gilm. 654; HalUgan v. R. R. Co., 15 183; Smith v. Nicolls, 5 Bing. (N. C.) 111. 558; Leman v. Stevenson, 36 111. 208; Bank v. Hendrickson, 40 N. J. 49; Vining v. Leeman, 45 111. 246 Groff V. Ankenbrandt, 124 111. 51 Claycomb v. Hunger, 51 111. 373 Dougherty v. Catlett, 129 111. 431 L. 52; Murphy \. Bird, 1 Hemp. 221; Fiser V. R. R. Co., 32 Miss. 539. 5 Ibid. Sec. 216; Knoebel v. Kircher, 33 111. 308; Dugger v. Oglesby, 3 111. May V. Bank, 19 111. App. 604; Pen- App. 94; Shepherd v. Field, 70 lU. na. Co. V. Ellett, 132 111. 662; Law- 438; Goff v. Ry. Co., 28 111. App. rmce v. Trainor. 136 111. 485. 529. 2 Ibid. Sec. 205; Hollingsworth v. « Stephen's PI. 200. Holshausen, 17 Tex. 41; Curtis v. '1 Satind. 13, 27; Taylor v. Cole, Richards, d Cal 33. 8 Term 298; McPherson v. Daniels, 3 Ibid. Sec. 206; Ins. Co. v. Rog- 10 Barn. & Cress. 268. ers, 119 111. 474. ^ i ciiit. PI. 443, 446. 56 DEFENSES TO AN ACTION. prima facie right; and the meaning of the rule that pleadings in confession and avoidance should give color, is that they should confess the matter adversely alleged, to such an extent, at least, as to admit some apparent right in the opposite party, which requires to be encountered and avoided by the allega- tions of new matter.' When a plea purporting to be special amounts only to the o-eneral issue, it will be obnoxious to a special demurrer." Where the general issue is pleaded, other pleas amounting merely to that issue may be rejected on motion; ' so where two or more pleas are substantially alike, all but one may be rejected on motion.* A special plea always controls, so far as it goes, the general issue.' No matter of defense which de- nies what the plaintiff would be bound to prove under the general issue should be pleaded specially." A special plea which simply traverses a portion of tlie facts which the plaintiff is bound to prove to establish his right to recover under the declaration, is bad, as amounting to the o-eneral issue.' The object of special pleading is to present one single isolated question, or point in issue, so as to avoid confusion; but as many distinct facts as may be necessary to present one cause of action, or defense, may be set forth in one count or plea.* A special plea in bar, which commences as an answer to the whole declaration, and answers only one count, is bad.' Every > Steph. PI. 203. '' Edwards v. Ti-ustees, 30 111. App. ^Ahrams v, Pomeroy, 13 111. 133; 528. Curtis W.Martin, 20 III. 551; Quincy » Hereford v. Croiv, 3 Scam. 423; V. Warficld, 25 111. 317; Knoebel v. White v. Clayes, 32 111. 325; Ins. Co. Kircher, 33 111. 308; Johnson v. Uni- v. Wusterhousen, 75 III. 285. versity, 35 111. 518; Ogden v. Lucas, 9 Hinton v. Husbands, 3 Scam. 48 111. 492; Manny v. Rixford, 44 187; Buckmaster v. Beames, 4 Gilm. 111. 129; Ferry Co. v. Blakeman, 54 443; Goodrich v, Reynolds, 31 111. jU 201. 490; Allen v. Breusing, 32 111, 505; ■i Knoebel v. Kircher, 33 111. 308; Hatfield v. Cheaney, 76 111. 488; R. R. Co. V. Johnson, 34 111. 389; Glickanf v. Hirschoi-n, 73 111. 574; Manny v. Rixford, 44 111. 129. Ins. Co.v. Holly, 81 111. 353; People v. *Lomax v. Bailey, 7 Ind. 599; McCormack, 68 111. 226; Dickerson Wallace v. Scales, 36 Miss. 53. v. Hendryx, 88 111. 66. M2 La. An. 739. 6 Thayer v. Brervcr, 15 Pick. 217; Martin v. Woods, 6 Mass. 6. DEFENSES TO AN ACTION. 57 plea must answer all that it assumes to answer, and no more.' A special plea admits every material allegation except the one put in issue." A distinct averment, which can be stricken out without injuring the other averments, will not vitiate a plead- ing,' unless it renders the pleading double. The allegations of the plea and the proof must correspond.* A plea is defect- ive which is not good as a defense for all who interpose it. Matters of defense affecting a surety only should be pleaded by him alone, and not with his principals." A defendant prov- ing one of several pleas in bar is entitled to judgment.* When a law of another state is relied on for a defense, it must be pleaded.'' Must answer all that it professes to answer. — It is a familiar rule that a plea which professes to answer the whole declaration, but only answers a part, is bad." Pleas, etc., as to a part, etc. — It is to be observed, that a a plea Avhich only contains an answer to a part of the declara- tion must be qualified accordingly in the commencement; and a like rule applies to all subsequent pleadings. Such a plea may commence : " And for a further plea in this behalf, as to all the counts of the said declaration except the last," or '' as to all the several supposed promises in the said declaration mentioned, except as to the sum of dollars, parcel of the sums of money in the said declaration mentioned," (or as the case may be,) " the defendant says that the plaintiff ought not to have his aforesaid action," etc. In like manner, a replica- ' Warren v, Nexen, 3 Scam. 38; * Spangler v. Pugh, 21 111. 85; Snyder v. Gaither, 3 Scam. 91; Sherman v. Blackman, 2ill\. Ml. C'hadsey v. Brooks, 2 Gilm. 378; ' Beesley v. Hamilton, 50 111. 88. Goodrich v. Reynolds, 31 111. 490; « Letter v. Day, 35 111. App. 248; Barclay v. Ross, 32 111. 211; R. R. JMcClnrev. Williams, 65 III. 390. Co. V. Read, 37 111. 484; 1 Chit. PI. "" Chumasero v. Gilbert, 24111.293; 453. Mason v. Dousay, 35 111. 424. ' Waggeman v. Lombard, 56 111. « Peabody v. Kendall, 145 111. 519; 42; McClure Y. Williams, 65 IW. 390; People v. McClellan, 137 III. 352; Gould's PI. 317; People v. Gray, 72 Titcomb v. Straight, 57 111. App. 111. 343. 331 ; Rent Co. v. Hutchinson, 25 III. 3 Bank v. Billings, 17 Pick. 87; App. 476. Stevens v, Bigelow, 12 Mass. 433. 58 DEFENSES TO AN ACTION. tion may commence : " And as to the said plea of the defend- ant by him secondly above pleaded, so far as the same relates to the several promises in the said first and third counts of the said declaration mentioned, the plaintiff says that he ought not, by reason of anything in that plea alleged, to be barred," etc. Common and special similiter to plea, etc.— When the de- fendant pleads only one plea, concluding to the country, the issue is made up by adding, at the end of the plea, the com- mon shniliter, in these words : " And the plaintiff does the like." When, however, there are several pleas, some conclud- ing to the country, and others with a verification, the special similiter, as below, is proper as a replication to all the former, inserting the words " secondly," " thirdly," etc., " above pleaded," etc. This applies also to the making up of issues on replications, rejoinders, etc., concluding to the country. . Term, 18—. No. 10. Special similiter to plea. In the Court. A. B. ) vs. [ Assumi^sit. C. D. ) And the plaintiff, as to the plea of the defendant by him first above pleaded, and whereof he has put himself upon the country, does the like. Leave to file pleas. — When a defendant is in default and asks the court to allow him to file certam pleas, he will be re- quired to present with his motion good pleas. This rule does not apply where general leave to plead is given. If pleas filed thereunder are defective, the defect can be reached only by demurrer.' Additional pleas — Leave to file. — It is a matter of discre- tion with the court whether to allow a defendant to file ad- ditional .pleas, and its action will not be revived unless it shall appear that such discretion has become abused," An affidavit ' Bemis v. Homer, 145 111. 567. Dana, 3 Gilm. 344; Booth v. Brown, ■^Dow V. Blake, 148 111. 76; City v. 66 111. 419; Haas v. Stenger, 75 111. Water Co., 140 111. 445; Bicker v. 597; Lewis v. Ljpich, 61 111. App. Scofidd, 28 111. App. 32; Bryant v. 476. DEFENSES TO AN ACTION. 59 is not essential to justify leave to file additional pleas where it is not required by statute and all the facts are known to the court.* When a plaintiff is permitted to amend his declaration in a material respect, the defendant should be permitted to file ad- ditional pleas." See Defenses to the Action of Assumpsit, fost^ and plead- ings in bar under title of the respective forms of action. EEPLICATIONS TO PLEAS. For forms of replications in particular cases, see Defenses to the Action of Assumpsit, ante^ and pleadings in bar under titles of the respective forms of action. Iso. 11. Double replications. {Venne, and title of cause.) And tlie plaintiff, as to the said plea of the defendant, by him above pleaded, says, precludi non, because he says, etc. : {Here set out first repli- cation.) And the plaintiff, by special leave of the court, here first had and ob- tained, according to the form of the statute in that case made, as to the said plea of the defendant above pleaded, further says, precludi non, be- cause he says: {Here insert second replication.) E. F., Att'yforPl'ff. No. 12. Similiter to replication, concluding to the country. {Venue, and title of cause.) And the defendant, as to the said replication of the plaintiff to the plea of the defendant, and which the plaintiff has prayed may be inquired of by the country, doth the like. G. H.,Att'y for Deft. REJOINDERS TO REPLICATIONS. No. 13. Commencement of a rejoinder to replication to a special plea. {Venue, and title of cause.) And the defendant, as to the said replication of the plaintiff to the plea of the defendant, says, that the plaintiff ought not, by reason of anything by him in that replication alleged, to have or maintain his aforesaid action thereof against him, the defendant, because he says, that, etc.: {Here insert 1 G. W. T. & Co. V. Loicenthal, « Griswold v. Shaiv, 79 III. 449; 154 111. 261. McCarthy v. Neu, 91 111. 127. 60 DEFENSES TO AN ACTION. tlie subject-matter of the rejoinder, and if it deny the replication conclude thus:) And of this the defendant puts himself upon the country, etc. G. H., Att y for Deft. No. 15, Conclusion of a rejoinder with a verification. And this the defendant is ready to verify, wherefore he prays judgment if the plaintiff ought to have or maintain his aforesaid action thereof against the defendant. G. H., Atfy for Deft. No. 16. Rejoinder to a double replication. {Venue, and title of cause.) And the defendant says that the plaintiff, by reason of anything in the replication of the plaintiff first above pleaded, ought not to have or main- tain, etc., because the defendant says : (Here insert first rejoinder.) And as to the matters contained in the plaintiffs replication secondly above pleaded, the defendant further says that the plaintiff, by reason of anything contained in such replication last mentioned, ought not, etc., be- cause the defendant says, etc. : (Insert second rejoinder.) And this the de- fendant prays may be inquired of by the country, etc. G. H. Atty for Deft. IV. DEMURRERS. The following notes and observations upon the subject of demurrers are applicable to the various forms of action. If the defendant, upon examination of the declaration, is satis- fied that it is not sufficient in point of law to maintain the action, he should demur. If some of the counts are good and some bad, he should plead to the good counts, and demur to the bad ones. The demurrer will present an issue in law upon the facts stated in the declaration or counts, and this issue the plaintiff is bound to accept, or abandon his suit. Nature of. — A demurrer is an allegation that, admitting the facts of the preceding pleading to be true, as stated bj the party making it, he has yet shown no cause why the party demurring should be compelled by the court to proceed fur- ther. It is a declaration that the party demurring will go no further because the other has shown nothing against him. It imports that the objecting party will not proceed, but w^ill wait the judgment of the court whether he is bound to do so.' A party can not demur and plead at the same time to the ' 1 Bouv. Law Diet., 507. DEFENSES TO AN ACTION. 61 same count or plea.' A demurrer may be to the whole or a part of the pleading; but if to the whole, and a part be good, it ^Yi\\ be overruled/ May he carried back. — A party should not demur unless he is certain that his own previous pleading is substantially cor- rect, for it is an established rule, that upon the argument of a demurrer, the court will, notwithstanding the defect of the pleading demurred to, give judgment against the party whose pleading was first defective in substance/ But where the general issue is filed, a demurrer can not be carried back to the declaration/ The general rule that a demurrer may be carried back and sustained to the first defective pleading, does not apply so as to carry a demurrer behind a plea in abatement/ The rule applies only where the previous pleading is bad in substance, and not defective merely in form/ A demurrer to a special plea can not be carried back to the declaration, after a direct demurrer to the declaration has been overruled, and the general issue pleaded/ A plea of non est factum, in covenant, not being the general issue, will not pre- vent a demurrer to a special plea from being carried back to the declaration/ ^Am. Ex. Co. V. Pinckney, 29 111. 111. 340; Dupeev. Blake, 148 III. 453; 392; CTa?/co»i6 V. Hunger, 51 111. Schaluckyx. Field, 124:111. QVl\Dun- 373; Edbrookv. Cooper, 79 111. 582; lap v, Ry. Co., 151 111. 409; Peojjle Cradle v. Hoffman, 105 111. 147. v. Spring Valley, 129 111. 169. '•* Walton V. Stephenson, 14 111. 77; * Mount v. Hunter, 58 111. 246; Cul- Horan v. People, 10 Bradw. 21; ver v. Bank, 64 111. 528; Bills v. Morehead v. Year^zee, 10 Bradw. 263; Stanton, 6 J 111. 51; E. R. Co. v. Uir- Tiptonv. Corrigan, 10 Bradw. 318; ton, T2 111. 118; Compton v. People, People V. Weber, 92 111. 288; Mix v. 86 111. 176; Felsentliql v. Durand, 86 People, 92 111. 549; Bonham v. m. 230; Shunick v. Thompson, 25 People. 102 111. 434; Reece v. Smith, \\\, App. 619. 94 111.362. ^Ryan v. May, 14 111. 49; 1 Chit. 3 1 Chitty PL, 580; Phoebe v. Jay, PI. 405. Breese, 268; McDonald v. Wilkie, 13 « Txibbs v. Castvell, 8 Wend. 129; 111. 22; R. R. Co. v. Neill, 16 111. 269; Hooker v. Gallagher, 6 Florida 351; Culver V. Bank, 6i in. 52S; Chestmtt Patton v. Hamner. 28 Ala. 618; V. Chestnut, 11 111. 346; Ins. Co. v. Wales v. Lyon, 2mch. 216. Stanton, 57 111. 354; Safford v. Mil- ' Brainier v. Lomax, 23 111. 496. ler, 59 111. 205; People \. McCormick, <> Reeves v. Forman, 26 111. 313. 106 III. 184; Stearns v. Cope, 109 62 DEFENSES TO AN ACTION. Effect of demurrer. — A demurrer admits all such matters of fact as are well pleaded; ' but not the arguments or legal conclusions in the pleading.* Where a demurrer is overruled to any pleading its sufficiency is established.* Pleading over. — Where a demurrer to a pleading has been sustained, it is within the judicial discretion and almost a mat- ter of course to allow an amendment; and where a demurrer to a pleading has been overruled, like liberal practice prevails in the State of Illinois, and it is almost or quite a matter of course to allow the party demurring, to plead over.' Waiver of demurrer, — Where a party files a demurrer which is overruled, and he pleads without standing by his de- murrer, the demurrer is waived.^ By pleading to a declaration after the overruling of a demurrer, a party waives his right to move in arrest of judgment,' and to assign the decision of the court as error.' A plea to the merits is a waiver of a de- murrer, but a demurrer does not waive a plea of that kind.* ' 1 Chit. PI. 662; Compiler v. Peo- ple, 12 111. 290; Deem v. Crume, 46 111. 69; Lindley v. Miller, 67 111. 244; Barrow v. Windoic, 71 111. 214; Nispel v.Laparle, 74 111. 306; People V. Holdcii, 82 111. 93; Arenz v. Weir, 89 111. 25; Greig v. Russell, 115 111. 483; Cerveny v. C. D. N. Co., 139 111. 345; People v. Cooper, 139 111. 461; R. R. Co. V. Horan, 131 111. 288; De- vicnt V. Rokker, 126 111. 174; Daggitt V. Mensch, 141 111. 395. "^Compiler v. People, 12 111. 290; Nispel V. Laparle, 74111. 306; Peojjle V. Holden, 82 111. 93; Johnson v. Roberts, 102111. 655; Greig v. Russell, 115 111. 483. ^ Miles V. Danforth, 37 111. 156; Hunter v. Bilyeu, 39 111. 367. ^Stanton v. Kinsey, 151 111. 301. ^ McLaughlin v. People, 17 Bradw. 306; Beer -v. Philips, Breese 44; God- frey V. Buckmaster, 1 Scam. 447 Gilbert v. Maggord, 1 Scam. 471 McFadden v. Fortier, 20 111. 509 Snyder v. Gaither, 3 Scam. 91; Gardner v. Haynie, 42 111. 291; Camp V. Small, 44 111. 37: Russell v. -4cZm., 4 Scam. 7; Granger v. War- rington, 3 Gilm. 299; Gordon v. Reynolds, 114 111. 118; R. R. Co. v. Hill, 14 Bradw. 579; Barnes v. Brookman, 107 111. 317; R. R. Co. v. Morgenstern, 106 111. 216; Dunlap v. Ry. Co., 151 111. 409. ^Shreffler v. Nadelhoffer, 133 111. 536; I. b. M. V. Paine, 23 111. App. 171. ■> McFadden v. Fortier, 20 111. 509: Walker v. Welch, 14 111. 277; Brown V. 7ns. Co., 42 111. 366; Vanderbilt v. Johnson, 3 Scam. 49; Geary v. Bangs, 138 111. 77: R. R. Co. v. Samp- son, 31 111. App. 513; McFarlan v. Clayptool, 128 111. 397; Ambler v. Whipple, 139 111. 311; Foltz v. Hardin, 139 111. 405. » Marshall v. Duke, 3 Scam. 67; see Am. Ex. Co. v. Pinckney, 29 111. 392. DEFENSES TO AN ACTION. 63 May be general or special. — A demurrer may be general or special. A general demurrer is one which excepts to the suf- ficiency of a previous pleading in general terms, without pointing out specifically the nature of the objection; and such demurrer is on matters of substance.' A special demurrer is one which excepts to the sufficiency of the pleadings on the opposite side, and shows specifically the nature of the objection, and the particular ground of ex- ception. It is necessary where the objection is to the form.'' Under a special demurrer no objections as to form can be made other than those stated in the demurrer itself.^ But the party may, on argument, not only take advantage of the par- ticular faults which his demurrer specifies, but also all objec- tions in substance.* Although a declaration may be good in substance, yet if technically defective, a special demurrer for such defect will lie.' A demurrer for matter of form should in all cases be special,' and the particular exceptions intended to be relied on should be minutely set forth.' An objection for matter of form, not noticed in a special demurrer, will not be regarded by the court.* A single count may be divisible, part good and part bad; in such a case a demurrer to the count generally will not be sustained." Duplicity can be taken advantage of only by special de- murrer,'" stating in what the duplicity consists." The objec- '1 Chit. PI. 574, 639; Mut. Ace. 100; Bodwell v. Parsons, 10 East. Ass'n V. Tuggles, 138 lU. 428. 359. ■'Ee Assumpsit. CD. ) And the plaintiff says, that the said declaration {or "first count," 07- "replication") and the matters therein contained, in manner and form as the same are above set forth, are sufficient in law for him to maintain his aforesaid action; and he is ready to verify the same, as the court here shall direct : Wherefore, inasmuch as the defendant has not denied thesaid declaration (or "first count," or " replication,"), the plaintiff prays judgment, and his damages, etc., to be adjudged to him, etc. A joinder in a demurrer to a declaration or replication in debt, covenant, detinue, case or trespass, is like the above form, except in the prayer of judgment, which is the same as in the conclusion of a replication in the particular form of action. The two following forms, prescribed in England by the rule 68 DEFENSES TO AN ACTION. of court of Ilil. T. 4 Will. IV., are given in Stephen on Plead- ing, pages 45 and 56 respectively. No. 19. General demurrer to a declaration. {Title of court, etc.) And the said defendant, by his attorney, says that the declaration is not sufficient in law. No. SO. Demurrer to a plea in abatement. {Title of court, etc., as in No. 18, ante.) And the plaintiff says, that the said plea of the defendant, and the matters therein contained, in manner and form as the same are above pleaded, are not sufficient in law to quash the said writ, and that he, the plaintiff, is not bound by law to answer the same; and this he is ready to verify: Wherefore, for want of a sufficient plea in this behalf, the plaintiff prays judgment, and that the defendant may answer further to tlie said declaration, etc. Special causes of demurrer may be added, as suggested under form No. 17, ante. It is said that the plaintiff need never demur specially to a plea in abatement, but that it appears most advisable to do so when the plea is merely informal.' No. 21. Joinder in a demurrer to a plea in abatement. {Title of court, etc., as in No. 17. ante.) And the defendant says, that his plea, and the matters therein contained, in manner and form as the same are above pleaded, are sufficient in law to quash the said writ; which said plea, and the matters therein contained, he is ready to verify, as the court here shall direct : Wherefore, inasmuch as the plaintiff has not de- nied the said plea, the defendant as before prays judgment of the said writ, and that the same may be quashed, etc. A demurrer to a plea to the jurisdiction, and a joinder in such demurrer, will follow the language of the plea. After a demurrer to a plea in abatement has been overruled, the court can not grant leave to reply to the plea." No. 22. Demurrer to a plea in bar. (Similiter to general issue, as ante, No. 10.) And the plaintiff, as to the plea of the defendant by him secondly above pleaded, says that the same, and the matters therein contained, in manner and form as the same are above 1 Chit. PI. 404, 576. Tl. A05; 3Iotherell v. Beaver, 2Gilm. ' Eddy V. Brady, 16 111. 306; Cush- 69; McKinstry v. Pennoyer, 1 Scam. man v. Savage, 20' 111. 330; 1 Chit. 319. DEFENSES TO AN ACTION. 69 pleaded, are not suflBcient in law to bar him, the plaintiff, from having his aforesaid action, and that he is not bound by law to answer the same; and this he is ready to verify: Wherefore, for want of a sufficient plea in this behalf, the plaintiff prays judgment, and his damages, etc., to be adjudged to him, etc. Special causes of demurrer may be added, as suggested under form No. 17, ayite. In debt, the plaintiff " prays judgment, and his debt afore- said, together with his damages, etc., to be adjudged to him," etc.' No. 23. Joinder in a demurrer to a plea in bar. {Title of court, etc., as in No. 17, ante.) And the defendant says, that his said plea by him secondly above pleaded, and the matters therein con- tained, in manner and form as the same are above pleaded, are sufficient in law to bar the plaintiff from having his aforesaid action; and he, the de- fendant, is ready to verify the same, as the court here shall direct : Where- fore, inasmuch as the plaintiff has not denied the said plea, the defendant prays judgment, and that the plaintiff may be bai'red from having his afore- said action, etc. Joinder in demurrer. {Title of court, etc.) And the plaintiff says that the declaration is suffi- cient in law. It will be observed that these forms contain no prayer of judgment. ' Motherdl v. Beaver, 2 Gilm. 69; Kinstry v. Pennoyer, 1 Scam. 319; 1 Cushman v. Savage, 20111.330; Mo Chit. PI. 405. CHAPTER IV. ASSUMPSIT. Nature of the action. — Assumpsit in the matter of contracts, is an undertaking, either expressed or implied, to perform a parol contract. An action of assumpsit, so called, is an action on the case, and is properly entitled an action of trespass on the case.' It is an equitable action.^ It differs from debt^ since the amount claimed need not be liquidated, and from covenant^ since it does not require a contract under seal to support it.^ Express assumpsit is an undertaking made orally, by writ- ing, not under seal, or by matter of record, to perform an act or to pay a sum of money to another. Implied assumpsit is an undertaking presumed in law to have been made by a party, from his conduct, although he has not made an express promise. The law presumes such an un- dertaking or promise to have been made, on the ground that every person is supposed to have undertaken to do what is, in point of law, just and right. Such an undertaking is never implied where the party has made an express promise; nor or- dinarily against the express declaration of the party to be charged.* ISTor will it be implied unless there be a request or assent by the defendant shown," though such request or assent may be inferred from the nature of the transaction,' or from ' Carter v. White, 33 111. 509; * Bouv. L. D. 159; 2 Greenleaf Comyns' Dig.; 1 Chit. PI. Ill, 112. Ev., Sec. 103: Jewett v. Somerset, 1 "^ Smith V. Riddell, 87 111. 165; Maine 125; Wheelocky. Freeman, 13 Sandoval v. Main, 23 111. App. 395; Pick. 165. Watson V. Woolverton, 41 III. 241; ^ Greenleaf Ev., Sec. 107; Webb v. Bennett v. Connelly, 103 111. 50. Cole, 20 N. H. 490. 3 See Debt and Covenant, post; * Haicley v. Sage, 15 Conn. 52; North V. Nichols, 37 Conn. 375. Hall v. R. R. Co., 28 Vt. 401. (70) ASSUMPSIT. 71 the silent acquiescence of the defendant; ' or even contrary to fact, on the ground of legal obligation.^ Special assumpsit is an action of assumpsit brought upon an express contract or promise; and general assumpsit is an action of assumpsit brought upon the promise or contract im- plied by law in certain cases. In order to sujiport assumpsit there must be a promise or undertaking on the part of the defendant, express or implied, for a promise or contract is the very gist of the action.' An express promise excludes an implied one.* A promise is a suf- ficient consideration for a promise upon which to found an action." Where the action lies. — The action of assumpsit lies where a party claims damages for a breach of a simjile contract, a contract not under seal; and such promise may be implied as well as expressed. The law always implies a promise to do that which a party is liable to perform.* Where the duty for the breach of which an action is brought would not be implied by law by reason of the relations of the parties, whether such relations arose out of a contract or not, and its existence depends solely upon the fact that it has been expressly stipulated for, the remedy is in assumpsit, and not in tort, when otherwise, case is an appropriate remedy.' It lies w^henever the defendant has obtained money of the plaintiff, which in equity and good conscience he has no right to retain.* ^ 22 Am. Jur. 2; Doty v. Wilson, * Compton v. Payne, 69 111. 354. 14 Johns. 378; Bradley v. Rkliard- ^ GiIfillanv.FarriHgton,12Bradw. son, 2 Blatch. 343; Campbell v. Day, 101; Funk v. Hough, 29 111. 145. 90 111. 363. ^Frazer v. Carpenter, 2 McLean - Alna V. Plummer. 4 Maine 258; 237; Metcalf v. Robinson, 2 McLean McCloskey v. Miller, 72 Pen. St. 151 ; 334. 1 Chit. PI. 98, 99; Hanover v. Tur- ' Xevin v. P. P. C. Co., 106 111. 222. ner, 14 Mass. 227; Hapgood v. ^Trumhidl v. Campbell, 3 Gilm. Houghton, 10 Pick. 156; Wheeloek 502: Stejyhensony. Manny, 5Q III. 160; V. Brinek, 13 Johns. 480; Force v. Taylor v. Taylor. 20 111. 650; Sanga- Haines, 17 N. J. L. 385. inon v. Springfield, 63 111. 66; Alder- '^ Farmer Co. v. Taylor, 69 111. 440; son v. Ennot, 45 111. 128; Allen v. Wings v. Broini, 12 Rich. 279; Lan- Stenger, 74 111. 119; Belden v. Per- chester v. Frewer, 2 Bing. 361; Cand- kins, 78 111. 449; Barnes v. Johnson, ler V. Eossiter, 10 Wend. 487. 84 111. 95; Laflin v. Howe, 112 111. 253; 72 ASSUMPSIT. It lies to recover money lent by the plaintiff to the defend- ant, or paid by the plaintiff on account of the defendant at his request; or for money had and received by the defendant to the plaintiff's use; against an officer for fees illegally taken; ' or for money unlawfully demanded;" against a municipality for taxes paid under an illegal assessment or sale; " to recover an illegal tax paid under protest; * money paid by mistake; * or under a misapprehension of facts, or where there has been a total failure of consideration; * and monev obtained throuo-h fraud and false representation; ^ and against a common carrier for failing to deliver goods which he was employed to convey for the plaintiff/ It lies on promises to pay or repay money, or to do or for- bear some other act; as, for goods sold and delivered, for work and labor, use and occupation, for money lent or money paid, for money had and received, and on an account stated. It also lies for a breach of warranty, express or implied, in the sale or exchange of chattels, or the breach of a contract of bailment, or to recover for the labor of servants, or to recover the con- sideration money for land sold, on a promise to pay a debt barred by the statute of limitations, and for unpaid installments of a subscription to the stock of an incorporated company.* Assumpsit lies against a husband or father for necessary supplies furnished to his wife or child, whom he is bound to support, and has refused or neglected to supply, notwithstand- Harrison v. CoquiUard, 26 111. App. Mitchell, 88 111. 52; People v. Foster, 513; Chemical Bank v. Bank of Port- 133 111. 496; Devine v. Edwards, 101 age, 156 111. 149. 111. 138; Ass'n Co. v. Scammon, 133 ' 2 Serg, & Rawle, 48; Mayfield v. 111. v. 627; Bank v. Bartalott, 11 Moore, 53 111. 428. Bradw. 620. « Ripley v. Gelston, 9 Johns. 201. « Bradford v. Chicago, 25 111. 411 ; 3 Bradford v. Chicago, 25 111. 411; Raney v. Boyce, 39 111. 24; Town v. Stephenson v. Manny, 56 111. 160; Wood, 37 111. 512. Sup. V, Spmngfield, 63 111. 66. ''Dana v. Kemble, 17 Pick. 545; *Falkner v. H%int, 16 Cal. 167; Byxbie v.Wood,24.^.Y.m'1; Moses Ford V. Holden, 39 N. H. 143; City v. McFerlan, 2 Burr 1012. V. Powell, 2 Mete. (Ky.), 226; Bank ^Bowling v. Stewart, 3 Scam. T. Mumford, 4 R. I. 478. 193; 1. C. R. R. v. Johnson, 34 111. » Tmmhull v. Campbell, 3 Gilm. 389. 502; Stempel v. Thomas, 89 111. 146; » 1 Wait's Ac. & Def. 378, and cases Wolf V. Beard, 123 111. 585; Bank v. there cited. ASSUMPSIT. 73 ing his protestations against his liability; ' and against an attor- ney for negligence in transacting the business of his profession." It lies for ' the value of goods -which the defendant, by fraud, induced the plaintiff to sell to an insolvent person, and afterward obtained for his own benefit;^ upon an express promise to pay a debt upon a specialty, upon a new considera- tion, as for forbearance; * and for a penalty forfeited upon a by-law.' One who accepts a deed poll, requiring him to pay money, is liable in assumpsit, to pay such sum." Where there is no contract relation between the receiver of a telegram and the telegraph company transmitting the same, the former can not maintain assumpsit against the latter for a loss caused by a neo-- lect to send the message correctly.' It may be maintained bv an officer selling property under execution, against an accepted purchaser for the amount of his bid.* It will lie upon a judgment in condemnation proceedings, after possession has been taken of the propert}^' Under section 19 of the present Practice Act, assumpsit mav be maintained upon sealed instruments. That section has abolished the distinction between sealed and unsealed instru- ments."* Money lost at gaming," or betting on elections, horse racing and the like,'' may be recovered in this action. ' Hunt V. Thompson, 3 Scam. 179; Freeman on Executions, Sec. 313 li; Philli2)s V. Myers, 83 111. 67; Van Herman on Execution, Sec. 211. Valkenburg v.Watson,13 Johns. 4S0 ^ City \. Hayward, 60 111. App. * Church V. Mimiford, 11 Johns. 582. 4:1%; Stimpsonx. Spragne, Q Maine, '"/ns. Co. v. Nelson. 65 111. 415; 471; Ellis v. Henry, 5 J. J. Marsh. Ins. Co. v. Palmer, 81 111. 88; Daeg- (Ky.) 248. ling v. Schwctrtz, 80 111. 820; Ed- ^ Bonnell v. Cliamherlin, 26 Conn. wards v. Dillon. 147 111. 14; Ceme- 487. tery v. Weidenmann, 139 111. 67. * Knowlton v. Tiltoa, 38 N. H. 257. " 1 Starr & Curtis' An. Stat. 792; ^ Bavingtonv. B. R. Co.,3i:Feim. Tatman v. Stradcr, 23 111. 493; 358. Doxey v. 3Iiller, 2 Bradw. 30; Lock- « Schynidt v. Glade, 126 111. 485; hart v. Hullinger, 2 Bradw. 465; Guild V. Leonard, 18 Pick. 511; Parmalee v. Rogers,26 111. 5Q; Gar- Goodwin V. Gilbert, 9 Mass. 510. rison v. McGregor, 51 111. 473; Petil- ' W. U. T. Co. V. Dubois, 128 III. Ion v. Hippie, 90 111. 420. 248. ^^ Holland v. Sivai7i, 94 111. 1.54; 8 Webb V. Perkins, 60 111. App. 91; Mosher v. Griffin, 51 111. 184; Painn- alee v. Rogers, 26 111. 56. 74 ASSUMPSIT. Where a party performs labor under a special contract, and has been prevented by the act or default of the opposite party from completing it, he may recover for such labor in an action of assumpsit.' If one person converts the propert}^ of another into money or money's worth, the owner may waive the tort, and recover for money had and received for his use." Where a judgment has been reversed upon an appeal or writ of error, assumpsit may be maintained to recover money paid under it, or collected on execution.^ Where a broker em- ployed to make sale of grain for future delivery, advances money to fill the contract, he may recover same in assumpsit.* A surety, on the payment of the debt, may recover in assump- sit.' Consideration of contract. — Every promise, for the non- performance of Avhich an action of assumpsit may be main- tained, must be founded upon a sufficient consideration. Madum pactum, or an agreement to do or pay anything on one side, Vv'ithout any compensation on the other, is wholly void in law.* If founded on an illegal consideration it is also void.' But any act of the plaintiff from which the defendant derives a benefit or advantage, or any labor, detriment or in- ^ Butts V. Huntley, 1 Scam. 410 Selby V. Hutchinson, 4 Gilm. 319 Bannister v. Bead, 1 Gilm. 100 3 McJilton V. Love, 13 II'. 486; Clayes v. White, 83 III. 540; Field v. Anderson, 103 111. 403; McLagan v. Beedv. Fhillips, 4 Scam. 40; Her- Brown, 11 111. 524; Hays v. Cassell, rington v. Hubbard, 1 Scam. 569; 70 111.670; Herman on Ex. 608; Free- Webstery. En field, ^G\\m.2^S\ Lin- man on Ex., § 347; Freeman on coin V. Schwartz, 70 111. 135: Bishop Judgments, §§ 482, 483. V. Bauer, 62 111. 188; Cemetery v. Wei- " Perin v. Parker, 126 111. 201. denmann, 139 111. 67. ^Junker v. Bu.ih, 136 111. 179. ^Dickinson v. Whitney, 4 Gilm. ^Merkle v. Werheim, 32 111. 534; 406; Gray v. St. John, 35 111. 222; Kirkpa trick v. Taylor, 43 111. 207; Sfaaf V. -Erans, 35 111. 455; Alderson Hennessey v. Hill, 52 111. 281; ilfc- V. Ennor, 45 111. 128; De Clerg v. Lean v. McBean, 74 111. 134; Wilson Murgin, 46 111. 112; Creel v. Kirk- v. Keller, 9 Bradw. 347; Greenman ham, 47 111. 344; Leonard v. Dunton, v. Greenman, 107 111. 404. 51 111. 482; Ives v. Hartley, 51 111. ■" Henderson v. Palmer, 71 111. 579; 520; Parker v. Tiffany, 52 111. 286; Tenneyv. Foote, 95 111. 99; Patonv. Mclntyre v. Thompson, 14 Bradw. Stetvart, 78 111. 481; Wolf v. Flet- 554; City of Elgin v. Joslyn, 133 111. meyer. 83 111. 418; B. B. Co. v, Math- 525. ers, 104 111. 257. ASSUMPSIT. To convenience sustained by the plaintiff, hoAvever small the benefit or inconvenience may be, is a sufficient consideration if such act is performed or such inconvenience suffered by the plaintiff with the consent, either express or implied, of the defendant.' Privity of contract. — To maintain the action, there must be a privity between the parties, but it may be a ^jrivity in fact or in law.' If the plaintiff is a stranger to the consider- ation he can not maintain assumpsit.^ But a party may maintain an action on a promise made to a third party for his benefit.^ COMilEXCEMENT OF AN ACTION OF ASSUMPSIT. Form of praecipe for summons. In the Court of the County of , in the State of Illinois. A. B. ) vs. > Assumpsit. Damages $ . C. D. ) The clerk of the said court will issue a summons in the above entitled cause, directed to the sheriff of the county of , and retui'uable at the next term, A, D. 18 — . Dated this day of , A. D. 18—. E. F., Attorney for Plaintiff. To Esq. Clerk of said Court. DECLARATIONS IN ASSUMPSIT. No. S^. Commencement and conclusion of a declaration in assumpsit. In the Court. Term, A. D. 18—. State of Illinois, ) ^.^ County of . [ " A. B., plaintiff, by E. F., his attorney, complains of C. D., defendant, of ^Hulse V. Hulse, 84 Eng. Com. W. U. T. Co. \. Dubois, -[2% m. US; Law R. 711; Davis v. Nisbett, 100 Neillv. Chessen, 15 Bradw. 266; At- Id. 752; Child v. Morley, 8 Term R. terbemj v. Jackson, 15 Bradw. 27 \ 610. ^Bloomer \. Denman, 12 111.240; ^CritzerY. McConnel, 15 111. 172; Cabot v. Haskins, 3 Pick. 83. Trumbell v. Campbell, 3 Gilm. 502; * Bristoio v. Lane, 21 111. 194; Ball Hall V. Carpen, 27 111. 386; Carpen v. Benjamin, 56 111. 105: Lis. Co. v. V. Hall.29m. 512; Aldersonv. Ennor, Olcoff, 97 111. 439; Steel v. Clark, 17 45 111. 128; Allen v. Stenger, 74 111. 111. 471. 119; Bloomer v. Denman,12 111. 240; 76 ASSUMPSIT. a plea of trespass on the case on promises; (*) for tliat, etc., (insert declar- ing part a)id conclude) to the damage of the plaintiff of dollars; and therefore he brings his suit, etc. E. F., Attorney for Plaintiff. (Add copy of instrument, or account sued on.) It is the uniform practice to place the ad damnum at the end of the declaration, and then it applies to each of the counts which precede it. It is not necessary to add it to each count.' No. 25. Indebitatus assumpsit. (This count may be used in any of the following cases, by inserting in the brackets the grounds of action.) In the Court. Term, 18—. State of Illinois, ) County of , ) set. A. B., plaintiff, by E. F., his attorney, complains of C. D., defendant, of a plea of trespass on the case on promises: For that whereas the defendant, on the day of , in the year 18 — , in the county aforesaid, was indebted to the plaintiff in the sum of dollars, for (*) {here state the subject-matter of the debt, as in the follounng counts, and proceed as follows:) and being so indebted, the defendant, in consider- ation thereof, then and there promised the plaintiff to pay him the said sum of money, on request. Yet the defendant, though requested, has not paid the same, or any part thereof, to the plaintiff, but refuses so to do; to the damage of the plaintiff of dollars, and therefore he brings his suit, etc. E. F., Attorney for Plaintiff. I. Goods sold and delivered. (Insert in the brackets in form No. 25, after the (*), the following :) " goods, chattels and effects before that time sold and delivered by the plaintiff to the defendant, at his request." II. Goods bargained and sold, (Insert in form No. 25 :) " goods, chattels and effects before that time bargained and sold by the plaintiff to the defendant, at his request." III. Labor and services. (Insert in form No. 25 ;) " the labor and services of the plaintiff, by him before that time done and bestowed in and about the business of the defend- ant, at his request." rv. Worlc and materials. (Insert inform No. 25 :) " work before that time done, and materials for the same furnished, by the plaintiff for the defendant, at his request." ' E. B. Co. V. Wills, 140 111. 614. ASSUMPSIT. 77 V. Money lent. {Insert inform No. S5 :) " money before that time lent by the plaintiff to the defendant, at his request." VI. Honey expended. {Insert inform No, 25 :) *' money before that time paid and expended by the plaintiff for the use of the defendant, at his request." vn. Money received. {Insert in form No. 25 :) " money before that time received by the defend- ant, for the use of the plaintiff." VIII. Interest. {Insert in form No. 25 ;) " interest on divers sums of money before that time forborne by the plaintiff to the defendant, at his request, for the divers spaces of time before then elapsed." IX. Account stated. {Insert in form No. 25 :) " money found to be due from the defendant to the plaintiff, upon an account then and there stated between tliem." X. Board and lodging. {Insert in form No. 25 :) " the use and occupation of certain rooms and furniture of the plaintiff, before that time used and enjoyed by the defend- ant, at his request; and for meats, drinks and attendance, and other neces- saries and goods by the plaintiff before that time fovmd and provided for the defendant, at his request." XI. Hire of horses, etc. {Insert in form No. 25 :) " the use and hire of horses, carriage and goods by the plaintiff before that time let to the defendant, at his request, and by him accordingly had and used." XII. Stabling and keeping horses, etc. {Insert in form No. 25 :) " horsemeat, stabling, care and attendance by the plaintiff before that time provided and bestowed in and about the feed- ing and keeping of divers horses, mares, geldings and cattle, for the de- fendant, at his request." XIII. Necessaries. {Insert in form No. 25 :) '• meat, drink, washing, lodging, attendance and other necessaries and goods before that time found and provided by the plaintiff for the defendant, at his request." XIV. Physician's bill. {Insert inform No. 25 :) " medical attendance, advice and medicines be- fore that time given and provided by the plaintiff to and for the defendant, at his request." 78 ASSUMPSIT. XV. Attorney's hill. (Insert inform No. So :) " the work, care, diligence, journeys and attend- ance of the plaintiff, by him before that time performed and bestowed, as the attorney and solicitor of and for the defendant, at his request, and for fees due to the plaintiff in respect thereof, and for materials and necessary things by the plaintiff provided in and about the said work for the defend- ant, at his request." XVI. Warelioiise room, etc. {Insert in form No. 25:) " work done by the plaintiff, and warehouse room by him found and provided, in and about the stowing, keeping and taking care of certain goods before then stowed, kept and taken care of by the plaintiff, in certain warehouses and premises of the plaintiff, for the de- fendant, at his request." No. 26. Common counts, consolidated. {Commence as in No. 25, ante, page 76.) For that whereas the defendant, on the day of , in the year 18 — , in the county aforesaid, was in- debted to the plaintiff in the sum of dollars, for goods, chattels and effects before that time sold and delivered by the plaintiff to the defend- ant, at his request; and in the like sum for goods, chattels and effects be- fore that time bargained and sold by the plaintiff to the defendant, at his request; and in the like sum for work and services before that time done and bestowed, and materials for the same work furnished, by the plaintiff for the defendant, at his request; and in the like sum for money before that time lent by the plaintiff to the defendant, at his request; and in the like sum for money before that time paid and expended by the plaintiff for the use of the defendant, at his request; and in the like sum for money before that time received by the defendant for the use of the plaintiff; and in the like sum for interest on divers sums of money before that time forborne by the plaintiff to the defendant, at his request, for divers spaces of time before then elapsed; and in the like sum for money found to be due from the defendant to the plaintiff, on an account then and there stated between them; and being so indebted, the defendant, in considera- tion thereof, then and there promised the plaintiff to pay him, on request, the several sums of money so due to him as aforesaid. (*) Yet the defend- ant, though requested, has not paid the same, or either of them, or any part thereof, to the plaintiff, but refuses so to do; to the damage of the plaintiff of dollars, and therefore he brings his suit, etc. E. F., Attorney for Plaintiff. No. 27. Common counts condensed. {Commence as in No. 25, ante, and then proceed:) For that whereas, the defendant, at, etc., on etc., was indebted to the plaintiff in the sum of dollars, for the price and value of goods then and there sold and delivered by the plaintiff to the defendant, at his request; and in the sum of dollars, for the price and value of work then and there done ASSUMPSIT. 79 and materials for the same provided by the plaintiff for the defendant at his request; and in the sum of dollars for money then and there lent by the plaintiff to the defendant, at his request; and in the sum of dollars, for money then and there paid by the plaintiff for the use of the defendant at his request, and in the sum of dollars for money then and there had and received by the defendant for the use of the plaintiff; and in the sum of dollars, for money found to be due from the de- fendant to the plantiff, on an account then and there stated between them; and in the sum of dollars, for interest on divers sums of money then past due from the defendant to the plaintiff; and whereas, the defendant, afterward, on, etc., in consideration of the premises respectively, then and there promised to pay the said several sums of money, respectively, to the plaintiff on request, yet he has disregarded his promises and has not paid the said several sums of money, or any or either of them, or any part thereof, although often requested so to do; to the damage of the plaintiff of dollars, and therefoi'e he brings his suit, etc. E. F., Attorney for Plaintiff. {Add copy of (xccount sued on.) The joinder in one count of all the common counts has been in general practice in the English courts, and by most of those in the American states. The practice is not only sanctioned, but commended by the ablest jurists.' Where the declaration alleges a debt for work done, and a debt for goods sold, etc., though with only one general prom- ise to pay, the statement of each debt is regarded as a separate count; but where there is only one statement of debt, though founded on several considerations, it is one count only.' Several causes of action may be joined in one count, and it will not be necessary to prove all the causes alleged. Eecov- ery may be had ji?r«^. The administrator of a deceased part- 1 2 Chit. PI. 38, note a; Webber v. « 3 Chit. PI. 38, note b. Tivill, 2 Saund. 122, note 2. ASSUMPSIT. 87 ner should not join with the surviving partner in a suit to re- cover a debt due to the partnership,' It would be untechnical in a declaration merely to describe a deceased partner as a late partner, without averring his death.^ But the omission of the words, " since deceased," in a declaration, is no ground for de- murrer.' No. 31. Against surviving partner, for work done. In the Court. Term, 18—. State of Illinois, { . County of , J ' A. B., plaintiff, by G. H., his attorney, com- plains of C. D., defendant, of a plea of trespass on the case on promises: For that whereas the defendant and one E. F., in his lifetime, now deceased, on the day of , in the year 18 — , in the county aforesaid, were indebted to the plaintiff for work and services by the plaintiff before that time done and bestowed for the defendant and the said E. F., at their request (or for any otiier matter, to he here inserted as in No. 25, ante, page 76); and being so indebted, the defendant and the said E. F. , in consideration thereof, then and there, in the lifetime of the said E. F., promised the plaintiff to pay him the said sum of money, on request. Yet though requested, the defendant and the said E. F. have not, nor has either of them, ever paid to the plaintiff the said sum of money, or any part thereof, but they in the lifetime of the said E. F. wholly refused, and the defendant has ever since the death of the said E. F, refused, and still refuses, so to do; to the damage, etc. Where one of the joint makers of a contract dies, his execu- tor or administrator is discharged, at law, and an action can be maintained only against the survivor.* The survivor can not be sued jointly with the executor of the deceased.' No. 32. Husband and wife against defendant for work, etc., by wife before marriage. In the Court. Term, 18—. State of Illinois, ) County of , j set. A. B., and C, his wife, plaintiffs, by G. H., their attorney, complain of D. E., defendant, of a plea of trespass on the case on promises: For that whereas the defendant, while the said C. was sole and unmarried, to wit, on the day of , in the year 18 — , in the county aforesaid, was indebted to the said C. in the sum of dollars, for work and services by her before that time done and bestowed in and » Belton V. Fisher, 44 111. 32. < Ballance v. Samuel, 3 Scam. 380. * V. , 1 Har. & Wal. Conover \ . Hill, 76 111. 342. 108. 6 1 Chit PI. 50; Eggleston v. Buck, « Large v. Attwood, 3 Dowl. 551. 31 111. 254. 88 ASSUMPSIT. about the business of the defendant, and for him, at his request (or insert any other subject-matter of debt, as in the forms under No. 25, ante); and being so indebted, the defendant, in consideration thereof, then and tiiere, while the said C. was sole and unmarried as aforesaid, promised the said C. to pay her the said sum of money, on request. Yet the defendant, though requested, has not paid the said sum of money, or any part thereof, either to the said C. while she was sole and unmarried as aforesaid, or to the plaintiffs, or either of them, since their intermarriage, but refuses to pay the same; to the damage of the plaintiffs of dollars, and therefore they bring their suit, etc. Whenever a wife joins in a suit with her husband, her in- terest must appear.' In Illinois, since the passage of the act of February 21, 1861, entitled ^' An act to protect married women in their separate property ^'' 2ifeme covert may sue alone for her separate property, or for the enforcing of any of her rights, without joining her husband. So far as her separate property is concerned, she is unmarried, and she may institute suits even against her husband, should he, contrary to her wishes, and in contempt of her rights, unlawfully interfere.'" Such is the law also in Pennsylvania, and several other states.' At common law, for choses in action due to the wife before marriage, the husband and wife must join.' It is well settled that the husband can not sue alone upon a contract of the wife when sole, and before marriage." They must join in all actions upon bonds, and other personal contracts, made with the wife before marriage, whether the breach was before or during the coverture.* No. 33. Against husband and wife, for work done, etc., for wife, before marriage. In the Court. Term, 18—. State of Illinois, ) . County of , ) ' A. B., plaintiff, by G. H., his attorney, complains of C. D. , and E. , his wife, of a plea of ti-espass on the ' Ballance v. Samuel, 3 Scam. 383. ^ Goodyear v. Rumbaugh, 13 Penn. 'Rev. Stat. (1893), 806; Rev. Stat. 480; SheidJe v. Weishlee, 16 Penn. (1895), 855; Starr & Curtis, 1269; 134; Gilliard v. Chesney, 13" Texas Emersonx. Clayton, 32 111. 493; R. 337. R. Co. V. Dxuin, 52 111. 260; Beach MO Pick. 463. V. Miller, h\ 111. 206; Burger x.Bels- ^Decker v. Livingston, 15 Johns. ley, 45 111.72; Chestnut v. Chestnut, 479; Angel v. Felton, 8 Johns. 150. 77 111. 346; Chicago v. McGraic, 75 «1 Chit. PI. 29: Decker v. Living- 111. 566. ston, 15 Johns. 479. ASSUMPSIT. 89 case on promises: For tliat whereas the said E., while she was sole and unmarried, to wit, on the day of , in the year 18 — , in the county aforesaid, was indebted to the plaintiff in the sum of , for work before that time done, and materials for the same furnished, by the plaintiff for the said E., at her request (or insert any other subject-matter of debt, as in tJie. forms imder No. 25, ante); and being so indebted, she, the said E., in consideration thereof, then and there, while she was sole and unmarried as aforesaid, promised the plaintiff to pay him the said sum of money, on re- quest. Yet neither has the said E. , while she was sole and unmarried as aforesaid, nor have the defendants since their intermarriage, nor has either of them, ever paid to the plaintiff the said sum of money, or any part thereof, although thereto requested, but to pay the same the defendants refuse; to the damage of the plaintiff of dollars, and therefore he brings his suit, etc. la general, a feme covert can not be sued alone at common law; and when a feme sole., who has entered into a contract, marries, the husband and wife must in general be jointly sued.' But if d,feme sole marries pending a suit against her, the mar- riage need not be noticed in the subsequent proceedings. It does not affect the form of the proceedings, but the suit goes on as if no marriage had taken place.^ A wife can not be sued at law on a note executed by herself and husband for land conveyed to the wife.* No. 34. By executor, for work, etc., on promise to testator. In the Court. Term, 18—. State of Illinois, ) County of , jsct, A. B., plaintiff, executor of the last will and testament of E. F., deceased, complains of C. D., de- fendant, of a plea of trespass on the case on promises. For that, whereas, the defendant, in the lifetime of the said E. F., to wit, on the day of , in the year 18 — , in the county aforesaid, was indebted to the said E. F. in the sum of dollars, for work before that time done, and materials for the same furnished by the said E. F. for the defendant, at his request (any other debt, as for goods sold, etc., is to be described in tlie same manner); and be- ing so indebted, the defendant, in consideration thereof, then and there promised the said E. F. to pay him the said sum of money on request. Yet the defendant, though requested, has not paid the said sum of money, or any part thereof, either to the said E. F. in his lifetime, or to the plaintiff since the death of the said E. F., but refuses to pay the same; to the dam- age of the plaintiff, as executor as aforesaid, of dollars, and therefore he brings his suit, etc. iChit. PI. 57; Angel v. Felton, 8 '^ Roosevelt v. Dale, 2 Cow. 581. Johns. 149. « Carpenter v. Mitchell, 50 111. 470. 90 ASSUMPSIT. And the plaintiff brings into the court here the letters testamentary to him granted, whereby it fully appears to the court here that the plaintiff is executor of the said last will and testament of the said E. F., deceased, and has the execution thereof, etc. Where the plaintiffs added profert of letters testamentary in the following words, it Avas held sufficient : " And the said plaintiffs bring into court here the letters showing their qual- ifications as executors." ' No. 35. Additional count on pixunise to the plaintiff as executor. {First count as in No. 34, above.) And whereas also the defendant, in the lifetime of the said E. F., deceased, to wit, on the day first aforesaid, in the county aforesaid, was indebted to the said E. F. in the further sum of dollars, for other work before that time done, and materials for the same furnished by the said E. F. for the defendant, at his request {any other debt as " for other goods," etc., is to be described in like manner); and being so indebted, and the last mentioned sum of money being wholly iin- paid, the defendant, in consideration thereof, after the death of the said E. F., to wit, on the day of , in the year 18 — , there px-omised the plaintiff, as executor as aforesaid, to pay him that sum of money, on re- quest. Yet the defendant, though requested, has not paid the same, or any part thereof, to the plaintiff, but refuses so to do; to the damage, etc. {Add profert, as in last precedent.) The ad damnum and profert are only to be once inserted, at the conclusion of the declaration.^ No. 35a. By an administrator, on promise to the intestate. In the Court. Term, 18—. State of Ilunois, ) . County of , ) ' A. B., plaintiff, administrator of the estate of E. F., deceased, who died intestate, complains of C. D., defendant, of a plea of trespass on the case on promises: For that whereas {proceed as in count by executor. No. 34, ante, laying the damage to the plaintiff " as administrator as aforesaid," and add profert, thus:) And the plaintiff brings into the court here the letters of administration to him granted by the county court of the county of , in the state afore- said {or tchatever court or authority granted them), which give sufficient evi- dence to the court here of the grant of administration of the said estate to the plaintiff, etc. I Linder v. Monroe, 33 111. 388. ' Emerson v. Clayton, 33 111. 493; R. Co. V. Wills, 39 in. App. 655. ASSUMPSIT. 91 If deemed advisable, add a count on. promises to the ad- ministrator, as in the case of an executor, No. 35, ante. Where the declaration contains several counts, proceed in each only to the ad damnum^ which is to be stated at the conclusion, in a separate paragraph, as follows : To the damage of the plaintiff, as administrator as aforesaid, of dol- lars, and therefore he brings his suit, etc. {Add jprofert.) SPECIAL COUNTS. No. 36. On promissory note — Payee against maker. In the — Court. Term, 18—. State of Illinois, ) County of , J set. A. B., plaintiff, by E. F., his attorney, com- plains of C. D., defendant, of a plea of trespass on the case on promises: For that whereas the defendant, on the day of , in the year 18 — , in the county aforesaid, made his promissory note, and delivered the same to the plaintiff, and thereby then and there promised to pay to the plaint- iff, — after the date thereof, the sum of dollars, for value re- ceived; by means whereof the defendant then and there became liable to pay to the plaintiff the said sum of money in the said note specified, ac- cording to the tenor and effect thereof; and being so liable, the defendant, in consideration thereof, then and there promised the plaintiff to pay him the said sum of money, according to the tenor and effect of the said note. Yet, although the day of payment in the said note specified has elapsed, the defendant has not paid to the plaintiff the said sum of money, or any part thereof, but refuses so to do; to the damage of the plaintiff of dollars, and therefore he brings his suit, etc. No. S7. On promissory note — Payee against maker. In the Court. Term, 18—. State of Illinois, ) . County of . ) " A. B., plaintiff, by F. F., his attorney, com- plains of CD., defendant, of a plea of trespass on the case on promises: For that, whereas, the defendant, on the day of , in the year 18 — , in the county aforesaid, made his promissory note, and delivered the same to the plaintiff, and thereby tlien and there (by the name of ) promised to pay, 07i or before the day of next after the date thereof, to the order of the plaintiff {styling him ), at the Bank, in , the sum of dollars, for value received, with interest on tlie said sum, from the date of the said note, at the rate of per centum per anyium; by means whereof the defendant then and there, to wit, at the time and place first aforesaid, became liable to pay 92 ASSUMPSIT. to the plaintiff the amount of the said note, according to the tenor and ef- fect thereof; and being so liable, the defendant, in consideration thereof, then and there promised the plaintiff to pay him the said amount, accord- ing to the tenor and effect of the said note. {The words in italics are to he inserted or not, or varied, as the case may require. Add common counts on the consideration for which the note was given and the common money counts, interest, and account stated, laying the day in all the common counts after tlie maturity of the note, and gener- ally very recently. The consolidated common counts, as in No. 26, ante, as far as the (*) may he used. Conclude with a general hreach, a» follows:) Yet although the day of payment in the said note specified has elapsed, the defendant has not paid to the plaintiff the amount of the said note, or any part thereof, but refuses so to do; nor has the defendant, though re- quested, paid to the plaintiff the several other sums of money above speci- fied, or any or either of them, or any part thereof, but refuses to pay him the same; to the damage of the plaintiff of dollars, and therefore he brings his suit, etc. A variance between the note described in the special count and the note offered in evidence, as to date, or otherwise, would at common law be fatal. But if the execution of the note is proved, the note can be offered in evidence under common counts.' In declaring on a promissory note, it should be described as it really is; if any omission is made of any of the conditions or contingencies upon which a note is payable, there will be a variance. No. 3S. On promissory note — Payee against maker. [Oliver's Precedents, 195.] {Commence as in No. 37, ante.) For that the defendant, on the day of , in the year 18 — . in the county aforesaid, by his promissory note of that date, for value received, promised the plaintiff to pay him or his order the sum of dollars, after the said date, icith interest on tlie said sum, from that date, at the rate of per centum per annum. Yet, though requested, etc. It is better to add the common counts in suits upon promis- sory notes, bills of exchange and other instruments of writing for the payment of money, so as to enable the plaintiff to in- 1 Nickerson v. Sheldon, 33 111. 372; herger v. Scott, 88 111. 477; Childs v. Streetor v. Streetor, 43 111. 155; Box- Fischer, 52 111. 205. .ASSUMPSIT. 93 troduce the note, etc., in evidence under thera, in case he fails under the special count/ If the note is payable at a particular place, it must be so averred in the declaration;' the omission would cause a vari- ance.' Whore a cause of action depends upon the happening of an uncertain event, the declaration must aver the happening of such event.* No. 39. On six promissory notes, in one count. [1 Scammon, 447.] {Commence as in No. 36, ante, page 91.) For that whereas the defend- ants, on, etc., in, etc., made their six promissory notes, the date whereof is the day and year aforesaid, by one of which said promissory notes the de- fendants, on or before the 18th day of May then next, pi-omised to pay to the order of the plaintiff one thousand dollars, for value received, with interest thereon at the rate of ten per centum per annum after the same should become due; and by another of the said promissory notes, the defend- ants, on or before the said 18th day of May, promised to pay to the order of the plaintiff one thousand dollars, for value received, with interest thereon, at the rate of ten per centum per annum, from the said 18th day of May; and by another of the said promissory notes, the defendants, on or before the said 18th day of May, promised to pay to the order of the plaintiff one thousand dollars, for value received, with interest thereon, at the rate of ten per centum per annum, after the said note should become due; and bj' another of the said promissory notes, the defendants, on or before the said 18th day of May, promised to pay to the order of the plaintiff one thousand dollars, for value received, with interest thereon at the rate of ten per centum per annum, from the said 18th day of May; and by another of the said promissory notes, the defendants, on or before the said 18th day of May, promised to pay to the order of the plaintiff one thousand dollars, for value received, with interest thereon at the rate of ten per centum per annum, from the said 18th day of May; and by another of the said promis- sory notes the defendants, on or before the said 18th day of May, promised to pay to the order of the plaintiff one thousand dollars, for value received, with interest thereon at the rate of ten per centum per annum, from the said 18th day of May; and by another of the said promissory notes, the defendants, on or before the said 18th day of May, promised to pay to the order of the plaintiff one thousand dollars, for value received, with interest thereon at the rate of ten per centum from the said 18th day of May. Yet the defendants have not paid to the plaintiff the amount of the said several ^Lane v. Adams, 19 111. 167; Boyle ' Loice v. Bliss, 24 III. 168. v. Carter, 24 111. 50; Gilmore v. Now- 'Archer v. Claflin, 31 111. 306. land, 26 111. 201; Bell v. Thompson, * Williams v. Smith, 3 Scam. 524. 34 111. 529; Rowell v. Chandler, 83 111. 288. 94 ASSUMPSIT. promissory notes, or of any or either of them, or any part thereof, but refuse so to do; to the damage of the plaintiff of ten thousand dollars, and therefore he brings his suit, etc. The defendants demurred to a declaration substantially in the above form, in the circuit court of Madison county, at the August terra, 1637; the demurrer was overruled, and the cause taken to the supreme court, where the decision of the court below was affirmed. The declaration was decided to be good in form and in substance. The court, in the opinion, says that •' there is no misdescription, no incongruity or want of accuracy or certainty in the count." In our system of prac- tice, it is of infinite importance to introduce precision and con- ciseness; and whatever tends to dispense with prolixity and useless recapitulation should be encouraged.' In Chitty on Pleading, it is laid down that several distinct debts or contracts may be included in one count, and the plaintiff will succeed pro tanto^ though he only proves one of such contracts; for if the defendant is indebted for any one cause, it is a sufficient consideration for the promise (which the law raises) of the defendant to pay the money .^ No. Ji-O. On promissory note — Indorsee against maker. {Commence as in No. 37, ante.) For that whereas the defendant, on the day of , in the year 18 — , in the county aforesaid, made his promissory note, and delivered the same to one G. H., and thereby then and there {by the name of ) promised to pay, after the date thereof to the order of the said G. H., {styling him — ,) at the Bank in , the sum of dollars, for value re- ceived, with interest on the said s^im, from the date of the said note, at the rate of per centum per annum; and the said G. H. thereupon then and there, to wit. at the time and place first aforesaid, assigned the said note, by indorsement thereon under his hand, to one I. J., icho there- upon then and there assigned the same, by indor.sement thereon under his hand, to the plaintiff; by means whereof the defendant then and there be- came liable to pay to the plaintiff the amount of the said note, according to the tenor and effect thereof; and being so liable, the defendant, in con- sideration thereof, then and there promised the plaintiff to pay him the said amount, according to the tenor and effect of the said note. {The words in italics are to be used or not, or varied, according to the re- ' Godfrey v. Buckmaster, 1 Scam. Bailey v. Freeman, 4 Johns. 284; 447; Nelson v. Swan, 13 Johns. 484; Johnson v. Stark Co., 24 111. 75. ^ 1 Chit. PI. 301. ASSUMPSIT. 95 quirements of the case. Add thevionfy counts, interest, and account stated, and general breach, as follows. As there is no privity of contract between indorsee and maker, it is not nsiial to addany other common counts.) And whereas also the defendant, on the day of . in the year 18 — , in the county aforesaid, was indebted to the plaintiff in the sum of dollars, for money before that time lent by the plaintiff to the de- fendant, at his request; and in the like sum for money before that time paid and expended by the plaintiff for the use of the defendant, at his request; and in the like sum for money before that time received by the defendant for the use of the plaintiff; and in the like sum for interest on divers sums of money before that time forborne by the plaintiff to the defendant, at his request, for divers spaces of time before then elapsed; and in the like sum for money found to be due from the defendant to the plaintiff, on an ac- count then and there stated between them; and being so indebted, the de- fendant, in consideration thereof, then and there promised the plaintiff to pay him, on request, the several sums of money so due to him as aforesaid. Yet although the day of payment in the said note specified has elapsed, the defendant has not paid to the plaintiff the amount of the said note, or any part thereof, but refuses so to do; nor has the defendant, though re- quested, paid to the plaintiff the sevei*al other sums of money above speci- fied, or any or either of them or any part thereof, but refuses to pay him the same; to the damage of the plaintiff of dollars, and therefore he brings his suit, etc. The allegation in the above precedent, " assigned the said note, by indorsement thereon under his hand," conforms to the statute of Illinois.^ " Indorsed and delivered the said note," is, however, a sufficient averment.^ It has been held that a remote indorsee may declare as the immediate indorsee of the first indorser, or of any intermediate indorser — striking out on the trial the indorsements not stated;^ but it would seem that if the plaintiil wished to take the benetit of any intermediate indorser's title, this indorsement must be averred.' A note made payable to the order of the maker, becomes, by his indorsement and delivery, hke a note made to the order of any other person.* ' Rev. Stat. (1893), 993; Rev. Stat. ■• 1 Gale 198. (1895), 1061; 2 Starr & Curtis 1654; ^ Hall v. Burton, 29 111. 321; Me- Coal Co. V. Lickiss, 72 111. 521. Auliff v. Renter, 61 111. App. 32; « Chitty's PI. 127. Bank v. Nordgren, 57111. App. 346; 3 Chitty on Bills, 518; Bayley on Whitford v. Herting, 60 111. App. Bills, 114; Best v. Bank, 76 111. 608. 413. SeePorferv. Cushman, 19 111. 572; Steinfield v. Taylor, 51 111. App. 399. 96 ASSUMPSIT. No. 41. Indorsee of an executor against maker. (Commence as in No. 37, ante, page 91.) For that whereas the defendant, on the day of , in the year 18 — , in the county aforesaid, made his promissory note, and delivered the same to one E. F., and thereby then and there promised to pay, after the date thereof, to the said E. F., or his order, the sum of dollars, for value received, with interest thereon, etc.; and the said E. F. thereupon, on the da.y first aforesaid, there assigned the said not?, by indorsement thereon under his hand, to one G. H., since deceased: And the plaintiff avers that on, etc., the saidG. H. there made his last will and testament in writing, and thereby then and there appointed one J. K. executor thereof; and afterward, to wit, on, etc., the said G. H. there died; and thereupon the said J. K., on, etc., there duly proved the said last will and testament, and took upon himself the execution thereof; and the said J. K. , so being such executor, afterward, to wit, on the day last aforesaid, as such executor as aforesaid, there assigned the said note, by indorsement thereon under his hand, to the plaintiff: By means whereof , etc. (State lidbiUty and promise, and add money counts, etc., and breach, as in last precedent.) An administrator or executor, or one of several executors, may indorse a promissory note payable to the intestate, or tes- tator, so as to vest the legal interest in the assignee.* No. Ji2. Surviving partner or payee against surviving partner or maker, on promissory note. In the Court. Term, 18—. State of Illinois, ) ^^ County of , ) ' A. B., plaintiff, by J. K., his attorney, com- plains of E. F., defendant, of a plea of tres- pass on the case on promises: For that whereas in the lifetime of one C. D. and of one G. H., both since deceased, to wit, on the day of , in the year 18 — , in the county aforesaid, the defendant and the said G. H. made their promissory note (by the name and style of E. F. & Co.,) and de- livered the same to the plaintiff and the said C. D., and thereby then and there promised to pay after the date thereof, to the plaintiff and the said C. D., (styling them by the name and style of A. B. d- Co.,) or their order, the sum of dollars, for value received, toith interest thereon, etc. : by means whereof the defendant and the said G. H. then and there, to wit, at the time and place first aforesaid, became liable to pay to the plaintiff and the said C. D. the amount of the said note, according to the tenor and effect thereof; and being so liable, the defendant and the said G. H., in * Makepeace v. Jlfoore, 5 Gilm. 474; Newell, 15 lU. 333; Walker v. Craig, Williams on Ex. 796; Valentine v. 18 111. 116. Jackson, 9 Wend. 302; Dwight v. ASSUMPSIT. 97 consideration thereof, then and there promised the plaintiff and the said C. D. to pay them the said amount, according to tlie tenor and effect of the said note. {Second count.) And whereas also afterward, in the lifetime of the said C. D. and G. H., both since deceased, to wit, on, etc., in, etc., the defend- ant and the said G. H. were indebted to the plaintiff and the said C. D. in the sum of, etc. (Proceed iinth the money counts, interest, and account stated; and conclude with the general breach, as follows: Yet although the day of payment in the said note specified has elapsed, the defendant and the said G. H. have not, nor has either of them, ever paid to the plaintiff and the said C. D., or either of them, the amount of the said note, or any part thereof; nor have the defendant and the said G. H., though thereto requested, nor has either of them, ever paid to the plaint- iff and the said C. D., or either of them, the several other sums of money above specified, or any or either of them, or any part thereof; but the de- fendant and the said G. H. in his lifetime refused, and the defendant has ever since the death of the said G. H. refused, and still refuses, to pay the same; to the damage of the plaintiff of dollars, and therefore he brings his suit, etc. It seems it is not necessary to declare against a surviving partner as such,' he may be sued as having contracted alone, without noticing the deceased.^ ISfo. 4S. Executor of payee against maker, on promissory note. {Commence as in No. 34, ante, page 89.) For that whereas in the lifetime of the said E. F., to wit, on the day of , in the year 18 — , in the county aforesaid, the defendant made his promissory note, and delivered the same to the said E. F., and thereby then and there promised to pay, months after the date thereof, to the said E. F., or his order, the sum of dollars, for value received, toith interest thereon, etc., by means whereof the defendant then and there, to u'it, at the time and jylace first aforesaid, became liable to pay to the said E. F. the said sum of money in the said promissory note specified, according to the tenor and effect thereof ; and being so liable, the defendant, in consideration thereof, then and there prdhiised the said E. F. to pay him the said sum of money, according to the tenor and effect of the said note. {Add money counts, etc., laying the promises to the deceased, and conclude imth the breach, asfollo^vs:) Yet although the day of payment in the said note specified has elapsed, the defendant has not paid the amount of the said note, or any part thei'eof , either to the said E. F. in his lifetime, or to the plaintiff since the death of the said E. F. ; nor has the defendant, though thereto requested, paid the '1 Chit. PI. 40; Goelet v. McKins- Bank, 1 Har. & Gill., 231; 2 Chit. try. 1 Johns. Cases, 405; Raborg v. Rep. 406. 7 98 ASSUMPSIT. several other sums of money above sper-ified, or any or either of them, or any part thereof, either to the said E. F. in his lifetime, or to the plaintiff since the death of the said E. F. ; but to pay the same the defendant re- fuses, to the damage of the plaintiff, as executor, etc. {Add profert, as in No. 34, ante, page 89.) No. 44. Administrator of payee against maker, on promissory note. (Commence as in No. 35a, ante, paje 90.) For that vrhereas heretofore, in the lifetime of the said E. F., to wit, on, etc., in, etc., the defendant made his promissory note, and delivered the same to the said E. F., and thereby then and there promised to pay, after the date thereof, to the said E. F., or his order, the sura of dollars, for value received, with interest thereon, etc. : by means whereof the defendant then and there, to icit, at the time and place first aforesaid, became liable to pay to the said E. F. the said sum of money in the said promissory note specified, according to the tenor and effect thereof; and being so liable, the defendant, in consideration thereof, then and there promised the said E. F. to pay him the said sum of money, according to the tenor and effect of the said note. {Add money counts, etc., laying the promises to the deceased, and breach, as in last precedent, and prof ert as in No. 35a, ante, page 90.) No. 45. Partners, payees, against x)artners, makers, on promissory note. In the Court. Term, 18—. State of Illinois, } . County of , ( A. B., C. D. and E. F., (partners under the name and style of A. B. & Co.,) plaintiffs, by , their attorney, complain of G. H., O. K. and P. T., (partners under the name and style of Q. H. & Co.,) defendants, of a plea of trespass on the case, on promises : For that whereas the defendants, on, etc., in, etc., made their promissory note (by the said name and style of G. H. & Co..) and tliereby then and there promised to pay to the plaintiffs, (styling tliem by the said name and style of A. B. & Co.,) months after the date thereof, the sum of dollars, for value received, with interest thereon, etc.: by means whereof, etc. (State liability and promise, and add common counts, etc., and general breach, as in No. 37, ante.) In a declaration by or against partners, it seems it is unnec- essary to describe them as such,' and that part of the above form which is in italics might be omitted. It is well, however, to state how the parties to a note or other instrument are therein described. 1 1 Swan's Pr. 303, note a. ASSUMPSIT. 99 No. 46. Payee against Jiitshand and wife, on note given by loife' while sole. [2 Chit. PI. 1.36.] {Commence as in No. 33, ante, page 8S.) For that whereas the said E. here- tofore, and while she was sole and unmarried, to wit, on, etc., at, etc., made her certain promissory note in writing, bearing date the day andye^ir aforesaid, and thereby then and there promised to pay {two) months afttr the date thereof, to the plaintiff, or order, the sum of dolhirs, for value received, and tlien and there delivered the said promissory note to the plaintiff; by means whereof the said E. then and there became liable to pay to the plaintiff the said sum of money in the said promissory note specified, according to the tenor and effect of the said promissory note; and being so liable, she, the said E., in consideration thereof, afterward, and while she was sole and unmarried, to wit, on the day and year aforesaid, at, etc., aforesaid, pi'omised the plaintiff to pay him the said sum of money in the said promissory note specified, according to the tenor and effect thereof. {Add money counts, etc., and breach. See No. 33 ante, ipage 88.) No. 47. Indorsee against indorser of a promissory note, alleging institu- tion and prosecution of suit against maker. {Commence as in No. 37, ante, page 91.) For that whereas one E. F., on, etc. , in, etc. , made his promissory note, and delivered the same to the defend- ant, and thereby then and there promised to pay, after the date thereof, to the defendant, or his order, the sum of dollars, for value received, with interest tltereon, etc.; and thereupon the defendant, on the day first aforesaid, there indorsed and delivered the said note to the plaint- iff: And although on, etc., the said note became due, the said E. F. did not nor would then, or before or since that time, pay to the plaintiff the amount of said note, or any part of the same. And the plamtiff avers, that thereupon, on, etc., he impleaded the said E. F. in a plea of trespass on the case, on the said note, in the court of the said county of , (where the said E. F. then resided,) to the term of that court, in the same year; and such proceedings were thereupon had in that plea, tliat in the same term, to wit, on, etc., by the consideration of the same court, the | laintiff recovered against the said E. F. the sum of dollars, damages, as well* as the costs of the plaintiff by him about his su't in that behalf expendel, whereof the said E. F. was convicted; and the said judgmeni; being in full" force, and the said damages and costs remaining wholly unpaid, the plaint- iff, on, etc., for obtaining satisfaction thereof, sued out of the same court a writ of fieri facias, dir^-cted to the sheriff of the said countj' of — — , by which said writ the Peo le of the said State of Illinois commanded the said' sheriff that of the|goods and chattels, lands and tenements, in his comity, of the said E. F., the said sheriff should cause to be made the damages afore- said, and the sum of dollars, the costs aforesaid, together with in- terest thereon at the rate of six per centum per annum fi-om the time of recovering the same as aforesaid, and also the further sum of , accruing costs on the said judgment, and that the said sheriff sho dd have those moneys ready to render to the plaintiff, according to law, and should 100 ASSUMPSIT. make return of the said writ in ninety days after t\ie date thereof; -which said writ, on the day last aforesaid, was there deUvered to tlie said sheriff to be executed; and on the return day of tlie said writ, to wit, on, etc., the said slier if returned to the same court upon the said writ to the effect that in his county the said E. F. had not any goods or chattels, lands or tene- ments, whereof he, the said sheriff , could cause to be made the damages and costs aforesaid, or any part thereof: And so the plaintiff says, that before the commencement of this sviit he used due diligence, by the institution and prosecution of a suit against the said E. F., t > make of the said E. F. the amount of the said note, but without avail. By means whereof the defend- ant, on the day last aforesaid, having notice of the premises, there became liable to pay to the plaintiff, on request, the amount of the said note, and the costs aforesaid; and being so liable, the defendant, in consideration thereof, then and there promised the plaintiff to pay him the said amount, and the costs aforesaid, on request. Yet the defendant, though requested, lias not paid the same, or any part thereof, to the plaintiff, but refuses so to do; to the damage of the plaintiff of dollars, and therefore he brings bis suit, etc. (Form No, 48, following, may be adapted and used as a second count.) Under the law merchant, the indorsement of a noteamonnts to a contract on the part of the indorser, that if, Avhen duly presented, the note is not paid by the maker, the indorser will, upon due and reasonable notice given him of the dishonor, pay the same to the indorsee or other holder. An indorser may, by the form of his indorsement, make himself absolutely and positively, in all events, liable for the payment of the note, with or without due presentment or due notice of non-pay- ment. If there is an agreement, in writing, to dispense with any demand upon the maker, or with notice of dishonor, the language will be construed to import an absolute dispensation with the ordinary conditions of an indorsement, and the in- dorser will become as absolutely bound to pay the same, when due, as if a guarantor or surety.* As a general rule, the name of the payee, appearing on the back of a promissory note, is evidence that he is indorser, and proves that he has assumed the liability of an indorser, as fully as if the agreement were written out in words." An in- dorser of a note, although " without recourse," will be liable to the indorsee or holder, on the implied warranty that the ^Dunnigan v. Stevens, 123 III. 396. « Johnson v. Glover, 121 EL 283. ASSUMPSIT. 101 note is a valid obligation for the amount expressed upon its face.' An indorsement without date is presumed to have been made at the date of the note; but this presumption may be rebutted.* The assignee is not bound to give the assignor notice of non-payment. Presentment of the note to the maker at maturity, and notice to the assignor of non-payment, will not, under the statute of Illinois, give a right of action against the latter.' A guaranty of a note, by the payee or assignee, operates also as an assignment;* and if an unauthorized guaranty is written over an assignor's signature, the contract of assign- ment is not thereby invalidated or affected.' In an action by an assignee against an assignor, it is not competent for the latter to prove a verbal agreement made at the time of the indorsement of the note, to the effect that he should not be liable as indorser.* But where the payee of a note sold and delivered it after it became due, and some time afterward in- dorsed it, without consideration, and solely for the purpose of enabling the indorsee to sue thereon in his own name, and with the express agreement that the indorser should not be liable by reason of his indorsement, it was held that such in- dorser was not liable in an action by remote indorsees of the note.' The indorser is liable according to the law of the place of indorsement,* unless the indorsement specially provides that his liability is to be governed by the law of some other state.' ^Drennan v. Bunn, 124 111. 175; ^ Heaton v. Hulbert, 3 Scam. 491; Daniel on Negotiable Instruments, judson v. Gookwin, 37 111. 286; Vol. 1, Sec. 670; Parsons on Bills Childs v. Davidson, 38 111.437; Par- and Notes, p. 39. fce,. v.Wefherell, 44 111. App. 95. ^ White V. ITe.a-er, 41 111. 409; Du- ^ Croskey v. Skimier, 44 111. 321. 2my V. Schuyler, 45 111. 306; Rich- ^ Mason v. Burtcn, 54 lU. 349. ards V. Betzer, 53 111. 466; Clarke i Hayes v. Graham, 2 Scam. 429. v. Johnson, Mill 296; Sinithv. Nev- » Holbrook v. Vibbard, 2 Scam. lin, 89 111. 193; Hearson v. Orau- 465; Gay v. Rainey, 89 111. 221; dine, 87 111. 115; Cisne v. Chidester, Dunnigan v. Stevens, 122 111. 396; 85 111. 523. Wooley v. Lynn, 117 111. 244. ^Bank v. Hawley, 1 Scam. 580; » ^?/mar v. 5/i€Zdo7i, 12 Wend. 439. Hilborn v. Arties, 3 Scam. 344; Pierce v. Short, 14 III. 144. 102 ASSUMPSIT. The remote assignor of a note is liable to an action by the last assignee, upon any ground upon which an assignor can in any case be made liable.' It is unnecessary, in such action against a remote assignor, to set forth the intermediate indorsements, but the plaintiff may simply aver that the defendant indorsed the note to him/ And it seems that the right of an assignee to sue remote assignor will not be impaired by the fact that the former has obtained a judgment against an intermediate as- signor/ Suits against defendants severally liable only. — By an amendment to the Illinois statute in relation to negotiable in- struments, in force July 1, 1895, it is provided that "persons severally liable upon bills of exchange or promissory notes, payable in money, may all or any of them severally be included in the same suit at the option of the plaintiff, and judgment rendered in said suit shall be without prejudice to the rights of the several defendants as between themselves." Said amendment also prescribes the manner in which judg- ment in any such suit shall be entered, and the proceedings as to the other defendants where the judgment is paid by one or where all the defendants have not been served." Prior to the enactment of said amendment, where there were several in- dorsements on a note the consecutive indorsers were liable severally only, and could not be sued jointly.* Measure of damages. — In a suit by an assignee against an assignor of a note, the measure of damages is the amount paid by the assignee for the note, with interest on that amount,* with the limitation that the recovery must not exceed the sum due upon the face of the note; ^ and it is said the plaintiff's costs in the suit against the maker are recoverable in the suit ag'ainst the assignor.' Diligence required of maker. — By the statute of Illinois, ' Hayes v. Graham, 2 Scam. 429; Givens v. Bank, 85 111. 442; Kayser Clifford V. Keating, 3 Scam. 250; v. Hall, 85 111. 511. Roberts v. Haskell, 20 111. 59. « Raplee v. Morgan, 2 Scam. 561; ^ Hayes v. Graham, 2 Scam. 429; Wilson v. Van Winkle, 2 Gilm. 684. Chit, on Bills, 572. ''Schaeffer v. Hodges, 54 111. 337; 3 Hayes v. Graham, 2 Scam. 429. Short v. Coffeen, 76 111. 245. *Rev. Stat. (1895), 1061-2. ^Corgan v. Frew, 89 111. 31. ^ Brown v. Knower, 1 Scam. 470; ASSUMPSIT, 103 the assignor of a negotiable instrument is liable to the action of the assignee, if the latter has without avail used due dili- gence, by the institution and prosecution of a suit, to compel the maker to pay the debt; but the assignee is excused from using such diligence, where the institution of a suit against the maker would have been unavailing, or where the maker had absconded, or resided without or had left the state, when the instrument became due.* Where the plaintiff in a suit against the indorser relies upon the insolvency of the maker, the burden is upon him to show that such insolvency continued until the commencement of the suit.^ Upon a note assigned after maturity, the assignor is chargeable if the assignee has been unable to com- pel payment by the maker, after using due diligence by suit, or if such suit would have been unavailinof.* Diligence, to charge the assignor, must be by suit,* and the absence of the maker from the county is not a sufficient excuse for not bringing suit/ Such suit must be brought to the first term of court after the note falls due/ But where it was previously announced by the judge that the term would not be held, it was decided that the assignee was not required to bring suit to such term; ' and it seems he would be excused from commencing his action at the first term, if unable by diligent effort to ascertain in time, the residence of the maker/ Where the amount is within the jurisdiction of a justice of the peace, it has been held that a suit brought on the note, before a justice, within three days after maturity, » Rev. Stat. (1895), 1061; Bai-ber Blanchard, 86 111. 165; Bonnell v, V. Bell, 77 111. 490; WickersJiam v. Holt, 89 111. 71; Woolverto7i v. Tay- Altoni, 77 111. 620; Kayser v. Hall, lar, 43 111. App. 424. 85 111. 511; Baer v. Lichten, 24 III. '^ Mason v. Wash, Breese 39. App. 311; Telford w. Oarrels, 132 TarZ^on v. 3MZer, Breese 68. 111. 550. ^Lusk V. Cook, Breese, 84; Chal- ^Baer v, Lichten, 24 111. App. 311; mers v. 3Ioore, 22 111. 359; Kayser Bledsoe v. Graves, 4 Scam. 382; v. Hall, 85 111. bl\', Finley v. Green, Summers v. Sheldon, 40 111. App. 85 111. 535; Bacr v. Lichten, 24 111. 189. App. 311; Garrity v. Belts, 20 111. ^Crouch V. Hall, 15 111. 263; see App. 327. Pierce v. Short, 14 111. 144; Clayes "i Brown v. Pease, 3 Gilm. 191. V. White, 83 111. 540; Aldrich v. ^Bestorv. Walker, 4. Gilm. 14. Goodell, 75 lU. 453; Babcock v. 104 ASSUMPSIT. was in good time.' And it seems the assignee ought to sue before a justice, if the amount is within a justice's jurisdiction, and satisfaction of the debt could thus be sooner obtained." Suit must not only be brought, but everything in the as- signee's power must be done to obtain judgment, at the first term.^ And he must proceed with diligence to enforce the judgment by execution, unless it can be clearly shown that execution would be unavailing." If a justice's judgment, exe- cution must be sued out thereon, and returned " no property," and then a transcript of the judgment must be filed in the office of the clerk of the circuit court, and execution issued thereon, so as to reach any real estate of the maker, and such execution must be returned in like manner.* But the assignee is not bound to apply to a court of chan- cery to remove obstructions in the way of an execution against the property of the maker;^ nor, it would seem, to have a ca. sa. issued;' nor to resort to process of garnishment against debtors of the maker — not, at least, unless the assignee had notice of the existence of the debts, if indeed he is bound in any event to pursue that remedy;' nor to present his claim in the United States district court, in a proceeding in bankruptcy against the maker;" nor, it would seem, to cause goods of a non-resident maker to be attached in transitu}" The execution must remain in the officer's hands during its whole lifetime; or, if returned before the expiration of that time, the assignee must aver and prove that its further con- tinuance in the hands of the officer would have been unavail- ing-" The execution must issue to the county in which the suit was brought;'" and the assignee is not required to seek else- where with an execution for property of the maker; though if the maker has property in another county, and that fact is ^Raplee v. Morgan, 2 Scam. 561. "> Cmvles v. Litchfield, 2 Scam, 359. 2 Allison V. Smith, 20 111. 104. ^Pierce v. Short, 14 111. 146. 8 Bestor v. Walker, 4 Gilm. 3. » Booth v. Storrs, 54 111. 472. * Gay V. Rainey, 89 111. 221. ">il/ason v. Burton, 54 111. 349. ^Saunders v. OBriant, 2 Scam. ^^ Hnndiii x. Reynolds, 22 111. 207. 370. ''^ Bestor v. Walker, 4 Gilm. 18. * Bledsoe v. Graves, 4 Scam. 383. ASSUMPSIT. 105 known to the assignee, it would seem that he ought to endeavor to make his money out of such property/ The suit against the maker must be brought in the county where he resides, and the assignee is not required to sue in any other.'' If, however, his residence is wholly unknown to the assignee, the latter may elect to consider as the place of the maker's residence the county where the note was made, if he is found there/ If the assignee, by reasonable diligence, might have known of property of the maker, sufficient to satisfy the debt, in the county where the suit against the latter was brought, the former can not recover against the assio-nor/ If the maker has property worth more than any incumbrance on it, it is the duty of the assignee to have it levied on, and at least offered for sale; and whenever others set up claims to property in pos- session of the maker, the assignee is bound to contest those claims, or take the responsibility of showing their validity/ The assignor Avill be liable where the assignee is unable to compel payment from the maker by reason of fraud or other matter in the original contract between the maker and the payee/ It will be seen from the authorities cited that the assignee may excuse any neglect, or cessation of effort, on his part, in his proceedings against the maker, by showing that any greater or further diligence would have availed nothing. No. 48. Indorsee against indorser of promissory note— Suit against the maker unavailing. (State making and indorsement of note, as in last precedent and proceed thus:) And although on, etc., the said note became due, the said E. F. did not nor would then, or at any time before or afterward, pay to the plaintiff the amount of the said note, or any part thereof; (*) and the jilauititf avers that the said E. F. was wlien the said note became due as aforesaid, and from thence hitherto has continued to be, insolvent, and unable to pay the said amount, or any part thereof, wherefore the institution of a suit against liim on the said note, at that time or afterward, would have been unavail- ing; of which premises the defendant then and there had notice : By means 1 Bestor v. Walker, 4 Gilm. 3. ^ Roberts v. Haskell, 20 111. 59; ^ Bestor v. Walker, 4 Gilm. 3; Chalmers v . Moore, 22 111.359. Judsfn V. Gooku-in, 37 111. 286. « Wilson v. Van Winkle, 2 Gilm. 3 Bestor v. Walker, 4 Gilm. 3. 684. 4 i\ wou V. Weijrich, 20 111. 600. 106 ASSUMPSIT. wiiereof , the defonrlant then and there became liable to pay to the plaintiff, on request, tlie amount of the said note; and being; so liable, the defendant, in consideration tliereof, then and there promised the plaintiff to pay him the said amount, on request. Yet the defendant, though requested, has not paid the same, or any part thereof, to the plaintiff, but refuses so to do; to the damage of the plaintiff of dollars, and therefore he brings his suit, etc. It is not sufficient to allege in the declaration, in the general terms used in the statute, that a suit against the maker would have been unavailing. The declaration must show why such suit would have been useless, as that the maker was insolvent, or that the note was made without any consideration, and was assigned after maturity.' In order to charge the assignor on the ground of the maker's insolvency, it should appear not simply that his liabilities ex- ceeded his means of payment, but, in the language of the statute, that the institution of a suit against him would have been unavailing.'' But where the maker has only the kind and amount of property which is exeippt from execution, the assignee is not bound to proceed against him upon the bare possibility that the debtor will not insist upon the exemption.^ Though the maker may have been solvent at the maturity of the note, yet the assignor is not released from liability un- less such solvency continued until a suit could have been made availing.* If it appears that by the use of proper diligence the maker could have been compelled to pay any considerable part of the debt, the assignor will only be liable for the residue." No. 49. Indorsee against indorser, the maker having absconded, or left the state. (As in last precedent to the (*), aiid then proceed thus:) And the plaintiff avers, that before the said note became due as aforesaid, to wit, on, etc., the said E. F. absconded and left the said State of Illinois, and from thence ^Humphreys v. Collier,! Scam. ^ Pierce v. Short, lillLMQ; Ham- 53; Haiinon v. Thornton, 2 Scam. tin v. Reynolds, 22 111. 207. 351; Bledsoe v. Graves, 4 Scam. 383; * White v. Clayes, 32 111. 325. Crouch V. Hall, 15 111. 264. « White v. Clayes, 32 111. 325. 2 Bestor v. Walker, 4 Gilm. 3; Shu- feldt V. Sutphen, 52 111. 255. ASSUMPSIT. 107 hitherto has remained out of the said state; of which premises the defend- ant, on, etc., there had notice: By means whereof, etc. {State liability, promise and breach, as in last precedent.) If the maker is absent from the state at the time when, in order to fix the liability of the assignor, a suit should be com- menced against the maker, or at the first term after the note falls due, then the assignor is liable.' The assignee is not bound to pursue the maker into a foreign jurisdiction, but ma^' at once resort to the assignor for payment. The circumstance that the maker resided in another state, and that this was known to the assignee when he received the note, does not vary the liability of the assignor, Avhich is the same whether the maker left the state after making the note, or never lived in the state.'' But the supreme court has said that the liabil- ity of an assignor does not arise from a mere temporary ab- sence of the maker from the state Avlien the note falls due, or when the suit is about to be commenced.^ In a case where the maker resided in another state, at and ever after the time of the making of the note, which was as- signed after it became due, it was held that the contract of the assignor was that he would pay the money if it could not be made of the maker by the use of diligence by suit, or if a suit would be unavailing; and that the case was not within that clause of the statute which makes the assignor liable if the maker is not within the state when the note matures.' The liability of the assignor having once attached, by reason of the absence of the maker from the state at the maturity of the note, it seems that liability would not be discharged, although the maker was frequently in the state, buying goods and shipping them away, after the note became due, and be- fore suit brought against the assignor, and this was known to the assignee." ' Hilborn v. Ai-tus, 3 Scam. 344; ^ Hilborn v. Artits, 3 Scam. 344. Ilason V. Burton, 54 111. 349; AM- * Crouch v. Hall, 15 111. 268; Pierce rich V. Goodell, 75 111. 453; Barber v. Short, 14 111. 144. V. Bell, 77 111. 490. ^ Mason v. Burton, 54 111. 349. ^Schuttler v. Piatt, 13 111. 418; Maso)i V. Burton, 54 111. 349. 108 ASSUMPSIT. No. 50. Payee against guarantor of promissory note. {Commence as in No. 37, ante, page 91.) For that whereas one E. F., on, etc. , in the county aforesaid, made his promissory note, and thereby then and there promised to pay, after the date thereof, to the plaintitf , or his order, the sum of dollars, for value received, with interest thereon, etc.; and thereupon, on the day first aforesaid, in consideration that the plaintiff, at the request of the defendant, would accept and receive of the said E. F. the said note, the defendant, by his indorsement thereon, there guaranteed the payment of the said sum of money, and promised the plaint- iff to pay him the same, according to the tenor and effect of the said note, if the said E. F. should not so pay the same. And the plaintiff avers that thereupon he, confiding in the said undertaking of the defendant, then and there accepted and received of the said E. F. the note aforesaid; and that although the day of payment in the said note specified has elapsed, the said E. F. did not nor would on that day, or at any other time, pay to the plaintiff the amount of the said note, or any part thereof, but refused so to do; whereof the defendant, on the day last aforesaid, there had notice. Yet the defendant has not paid to the plaintiff the amount of the said note, or any part thereof, but refuses so to do: to the damage of the j)laintiff of dollars, and therefore he brings his suit, etc. The liability of the guarantor of a promissory note does not depend upon the use of diligence in prosecuting tlie maker, etc., nor is any demand necessary, or notice of non-payment, to fix such liability. Upon the failure of the maker to ]my at the maturity of the note, the holder may at once sue the guaran- tor, and recover the amount due.' But it is said that the defendant may discharge himself from liability by showing laches on the part of the plaintiff, such as an omission to make demand and give notice within a reasonable time, and a conse- quent injury — the burden of proof being on the defendant.^ In an action on a guaranty of a note, it is necessary to aver and prove a consideration; but in the absence of proof to the contrary, the presumption is that the guaranty was made when the note was executed, in which case, the guaranty be- ing a part of the original transaction, the consideration of the note is the consideration of the guaranty, and no new con- sideration needs to be shown. AVhere, however, it appears that the guaranty was made after the note was delivered, the J Heaton v. Hnlbert, 3 Scam. 489; 111. 638; Hooker v. Gooding, 86 111. Carroll v. Weld, 13 111. 682; Klein v. 60; Gridley v. Capen, 72 111. 11. Currier, 14 111. 237; Rich v. Hatha- '^Heaton v. Hulbert, 3 Scam. 489; way, 18 111. 548; Hance v. Miller, 31 Gage v. Bank, 79 111. 62. ASSUMPSIT. 109 plaintiff must show a new consideration/ A guaranty by the payee needs no new consideration, though made long after the execution of the note.^ A blank indorsement of a promissory note, at the time of its execution, by a person not a party to the note, is evidence prima facie of a liability as guarantor, and is authority to a holder in good faith to write a guaranty over the signature. This presumption may, how- ever, be rebutted.^ "Where the payee or holder of a note has indorsed it in blank, the presumption is only that he assumed the liability imposed by the statute upon an assignor, and the blank may be filled with the assignment usuall}' employed for the transfer of such paper.* The general rule is, that an in- dorsement in blank gives authority to the holder of the instru- ment to fill up the indorsement by writing over the signature anything consistent with the nature of the instrument and the intention of the parties.* Although the signature of a third person on the back of a note in the hands of the payee, is QNv^exiCQ prima facie of the liability of such third person as a guarantor, yet it seems that where a note has gone into circulation, and passed under blank indorsements, from holder to holder, it ought to be shown that the name of the person sought to be held liable as guarantor was on the note while in the hands of the payee." A note payable to the order of the maker has no validity until his name is indorsed thereon; and another person writ- 1 Carrold v. Weld, 13 111. 682; v. Taylor, 75 111. 629; Eberhart v. Klein v. Currier, 14 III. 237; Rich v. Page, 89 111. 550; Schnell v. 31. Co., Hathaway, 18 111. 548; Harwood v. 89 111. 581; Boynton v. Pierce, 79 111. Johnson, 20 111. 367; Joslyn v. Col- 146; Stowell v. Raymond,^ 111. 120; linson, 26 111. 61; Heintz v. Calm, Bank v. Nixon, 125 111. 615; Kings- 29 111. 308; Parkhurst v. Fai7,73Ill. landv. Koeppe, 137 111. 344; Bank 343; Story on Bills, Sec. 458; 2 Story v, Nordgren, 57 111. App. 346; Coal onCont., Sec. 685; Grier v. Cable, Co. v. Crane, 138 111. 207. 45 111. App. 405. ^Hance v. Miller, 21 111. 636. - Judson V. Gookwin, 37 111. 286. = Camden v. McKoy, 3 Scam. 437; 3 Camden v. McKoy, 3 Scam. 437; Webster v. Cobb, 17 111. 459; Hance Cushman v. Dement, 3 Scam. 497; v. Miller, 21 111. 636; Boynton v. Heintz V. Cahn, 29 Dl. 308; Under- Pierce, 79 111. 145; Bank v. Diefen- wood V. Hossack, 38 111. 208; Lin- dorf, 90 111. 396; Featherstone v. coin V. Hinzey, 51 111. 435; Glickauf Hendrick, 59 111. App. 497. V. Kaufman, 73 111. 378; Pahlman « Webster v. Cobb, 17 111. 459, - 110 ASSUMPSIT. ing his name on it before it is thus indorsed, undertakes that when the note takes effect his name shall appear thereon as second indorser. His contract is not that of a guarantor/ Where an assignor of a note guarantees it, the holder may recover upon the contract of assignment or upon the guarant}^ as he may choose.^ A guarantor is not liable beyond the ex- press terms of his contract, and a material alteration of such terms Avill avoid it." An indorsement in the form of a guaranty will pass the title and also bind the maker as guarantor.* By the Avords, " 1 guarantee the coJhctlon of the within note," the liability of an assignor is neither increased nor diminished. He is simply liable as an assignor.^ But where the payee indorses upon the note, ^^ I guarantee the payment of the within note at ma- turity^'' he is liable to pay the note at maturity and the holder is under no obligation to demand payment of the maker.' The guarantor of the payment of a promissory note is not jointl}^ liable with the maker of the note. In such case the note and guaranty are separate and distinct contracts, and the guarantor is not liable until the failure of the maker of the note to pay the same at its maturity.' On the subject of guaranty, the additional authorities noted below may be con- sulted.' • Blatchfordv. 3Ellikin, 35 111. 434; Dietrich v. Mitchell, 43 111. 40; Cros- Kayser v. Hall, 85 111. 511; Bank v. key v. Skinner, 44 111. 321; Bying- Nordgren, 57 111. A pp. 347. ton v. Gaff, 44 111. 510; Dust in v. ■'Hance v. Miller, 21 111. 636. Hodgen, 47 111. 125; Hatch v. Ayi- ^ Neivlan v. Harrington, 24 111. trim, 51 111. 106; Darst v. Bates, 51 206. 111. 439; Andrus v. Carpenter, 52 •^Heatonv. Hulbert, 3 Scam. 489; 111. 171; Gage v. Letvis, 68 111. 604; Parker v. Wetherell, 44 111. App. 95. Penny v. Crane, 80 HI. 244; Hamil- ^Judson V. Gookwin, 37 111. 286. tonv. Johnston, 82 111. 39; Bank v. 6 Heaton v. Hulbert, 3 Scam. 489; Frazer, 86 111. 133; Munson v. Gagex. Bank, 79 111. 62. Adams, 89 111. 450; Eicketson v, T Abbott V. Brown, VSim. 108; see Giles, 91 111. 154; Davis v. Black- Eev. Stat. (1895) 1061. ivell, 5 Bradw. 32; King v. Hannah, »Knoebel v. Kircher, 33 111. 308; 6 Bradw. 495; Edwards v. Shields, Otto V. Jackson, 35 111. 349; Childs 7 Bradw. 70; Spurck v. Leonard, 9 V. Davidson, 38111. 437; DjotcrsoHv. Brad. 174; Clark v. Morgan, 13 Dorrickson, 39 111. 574; Voltz v. Bradw. 597; Pool v. Roberts, 19 Harris,'i01U.. 155; White V. Weaver, Bradw. 438; Johnson \. Glover, 19 41 111. 409; Allen v. Coffil, 42 111. 294; 111. App. 585; Kinsley v. Charnley, ASSUMPSIT. Ill No. 61. Payee against drawer, on an order not accepted. {Commence as in No. 37, ante, page 91.) For that whereas the defendant, on. etc.. in, etc.. made his order in writing, and delivered the same to the plaintiff, and thereby then and there requested one E. F. to pay to the plaintiff, or his order, the sum of dollars, on demand, and charge the same to the account of the defendant: And the plaintiff avers, that on the day aforesaid, he there presented the said order to the said E. F. , and re- quested him to accept the same, and pay the said sum of money; but that the said E. F. did not, nor would then or afterward accept the said oi'der, or pay the said sum of money, or any part thereof, but refused so to do; whereof the defendant then and there had notice: By means whereof the defendant then and there became liable to pay to the plaintiff, on request, the said sum of money; and being so liable, the defendant, in consideration thereof, then and there promised the plaintiff to pay him the said sum of money on request. Yet the defendant, though requested, has not paid to the plaintiff the said sum of money, or any part thereof, but refuses so to do; to the damage of the plaintiff of dollars, and therefore he brings his suit, etc. {The common counts, etc., as directed in No. 37, ante, page 91, may be in- serted, in which case conclude icith general breach, as foUoics:) Yet the defendant, though requested, has not paid to the plaintiff the said several sums of money above specified, or any or either of them, or any part thereof, but refuses so to do; to the damage of the plaintiff of dollars, and therefore he brings his suit, etc. No. 52. Payee of a check against draioer. {Commence as in No. 37, ante, page 91.) For that whereas the defendant, on, etc., in the county aforesaid, made his order in writing, commonly called a check, on a banker, and directed the same to certain persons by the name and style of Messrs. E. F. and G. H. , and thereby required the said Messrs. E. F. and G. H. to pay to the plaintiff, or bearer, the sura of dollars, and then and there delivered the said order to the plaintiff: And the plaintiffs avers, that on the day aforesaid the said order was there pre- sented to the said Messrs. E. F. and G. H. for payment thereof, and they were then and there requested to pay the said sum of money, according to the tenor and effect of the said order; but that the said Messi-s. E. F. and G. H. did not nor would then, or at any other time, pay the said sum of money, or any part thereof, but refused so to do; whereof the defend ant then and there had notice: By means whereof the defendant then and there became liable to pay to the plaintiff, on request, the said sum of money; and being so liable, the defendant, in consideration thereof, then and there promised the plaintiff to pay him the said sum of money on request. {The common counts, etc., may be added, as directed in last precedent.) 33 111. App. 556: Ruffner v. Love. 33 tcold, 37 111. App. 616; BanTc v. Bank, 111. App. 605: Delemeter v. Kearns, 40 111. App. 641; Frankel v. Stcrn.m 35 111. App. 634; Strigart v. Weare, 111. App. 54 ; Brandner v. Krehbs, 54 37 111. App. 262; Donovan v. Gris- 111. App. 653. 112 ASSUMPSIT. In order to fix the liability of the drawer on an inland bill of exchange, or check, in case of non-payment, the holder should present the bill or check to the person or bank on which it is drawn, within business hours of the day next suc- ceeding the receipt of the paper, and give notice of the dis- honor to the drawer.' If the holder of a bank check, instead of demanding its payment, obtains its certification by the bank, he will thereby discharge the drawer of the check from all liability, and its presentment on the next business day after its issue and non- paym.ent will not in any manner revive the drawer's liability. The rule is different when the drawer procures the certifica- tion of his check before its deliver}^ to the drawee. In that case the drawer' will be liable for non-pa^mient on presenta- tion." The giving of a check by a depositor in a bank oper- ates, at least after presentment, as an assignment to the holder of a sufficient amount of the deposit to pay the check, and is therefore a definite appropriation of that sum to its pavment, binding upon all the parties to the check.^ DECLARATIONS ON INLAND BILLS OF EXCHANGE. No. 53. Drawer against acceptor, on a hill accepted generally. {Commence as in No. 37, ante, page 91.) For that whereas the plaintiff (by the name and style of ) on, etc., in the county aforesaid, made his bill of exchange, and directed the same to the defendant {styling him ), and thereby then and there requested the defendant to pay, after the date thereof, to the plaintiff, or his order, the sum of dollars, for value received, with interest thereon, from the date of the said bill, at the rate of per centum per annum; which said bill the defendant {by the said name and style of ,) on the day first aforesaid, upon sight thereof, there accepted: By means whereof the defendant then and there became liable to pay to the plaintiff the said sum of money, according to the tenor and effect of the said bill and of the said acceptance thereof; and 1 1 Parsons on Notes, etc., 446, 447; ^ Bank v. Jones, 137 111. 634; see Bickford v. Bank. 43 111. 238; 31c- Broini v. Leckie, 43 111. 497; Bank Donald v. Mosher, 23 111. App. 206; v. Bank, 80 111. 212; Bank v. Ind- Bank v. Cornhauser, 37 111. App. Banking Co. , lU IW. 483; Hoganv. 480; Star v. Smith, Id. 218; Mad- Edwards, 9 Bradw. 148; Pabst v. rferojiv. ifeaf/(, 85 111. App. 590. Reeves, 43 111. App. 154; Bank v. ^Bankv. Jones, 137 111. 634; Bank Retzinger, 20 Bradw. 27. V. Cornhauser, 37 111. App. 475. ASSUMPSIT. 113 b&ing so liable, the defendant, in consideration tliereof, then and there promised the plaintiff to pay him the said sum of money, according to the tenor and effect of the said bill and of the acceptance thereof aforesaid. {Add common counts, etc., and breach, as in No. 37, ante, page 91, using tJie word bill, instead of note, in the breach.) If the bill is payable so many days after sight, describe it accordingly. lu that case the words in the breach, " although the day of payment in the said bill specified has elapsed," are unnecessary. Though usual to state the address of the bill — that the drawer " directed the same to the said," etc., it seems it is unnecessary to do so. It is, however, sometimes convenient, for the purpose of alleging the name by which the drawee is styled in the bill, if he is misdescribed therein. If the bill is not addressed to the drawee, this statement should be omitted. If the acceptance is dated on a day different from the date of the bill, it should be so described. An acceptance by an agent may be described as made by the party himself.' The pleader should observe that the precedents given are framed upon bills as usually drawn; but as bills vary in tenor, care should be taken not to follow the forms too closely, for fear of a vari- ance. The precedents given of declarations on promissory notes will be useful to the pleader in framing declarations on bills of exchange; and for declarations by and against particu- lar persons, he is referred to those precedents. No. 54. Drawer against acceptor, on his acceptance, varying as to time from bill. {Commence as in No. 37, ante, page 91; and after stating the bill, as in last precedent, payable in thirty days for instance, proceed as follows :) which said bill the defendant, on the day first aforesaid, upon sight thereof, there accepted, payable ninety days after the date of the said bill: By means whereof the defendant, on the day first aforesaid, there became liable to pay to the plaintiff the amount of the said bill, according to the tenor and effect of tlie said acceptance thereof; and being so liable, the defendant, in consideration thereof, then and there promised the plaintiff to pay him the said amount, according to the tenor and effect of the acceptance aforesaid. {Add the common counts, etc, , as in No. 37 ante, page 91. The breach will be as follows:) Yet although the day of payment in the said acceptance specified has ' Chit, on Bills, 357. 8 11-i ASSUMPSIT. elapsed, the defendant has not paid to the plaintiff the amount of the said bill, or any part thereof, but refuses so to do; nor has the said defendant, though requested, paid to the plaintiff the several other sums of money above specified, or any or either of them, or any part thereof, but refuses to pay the same; to the damage of the plaintiff of dollars, and there- fore he brings his suit, etc. No. 55. Drawer against acceptor, on a hill payable to a third person, and returned to and taken up by drawer. {Commence as in No. 37, ante, pagre 91.) For that whereas the plaintiffs, on, etc., in the county aforesaid, made their bill of exchange, and de- livered the same to Messrs. J. A. & Co. , and thereby then and there re- quested the defendants to pay, after the date thereof, to the said Messrs. J. A. & Co., or their order, the sum of dollars, for value re- ceived; which said bill the defendants, on the day ^rsf aforesaid, upon sight thereof, there accepted: And the plaintiffs aver, that when the said bill became due, to wit, on, etc., the same was there presented to the defendants for payment thereof, and they were then and there requested to pay the said sum of money, according to the tenor and effect of the said bill, and of their acceptance thereof aforesaid; but that the defendants did not nor would then, or at any time before or afterward, pay the amount of the said bill, or any part thereof, but refused so to do; and thereupon the said bill was then and there returned to the plaintiffs for non-payment thereof, and they were called upon and obliged to pay, and did then and there pay, the amount of the said bill to the said Messrs. J. A. & Co. , whereof the defend- ants then and there had notice: By means whereof the defendants then and there became liable to pay to the plaintiffs, on request, the amount of the said bill; and being so liable, the defendants, in consideration thereof, then and tliere promised the plaintiffs to pay them the said amount on request. {Add the common counts, etc., as in No. 37, ante, page 91. The breach will he as follows:) Yet the defendants, though requested, have not paid to the plaintiffs the amoimt of the said bill, or any part thereof, or the several other sums of money above specified, or any or either of them, or any part thereof, but refuse so to do; to the damage of the plaintiffs of dollars, and there- fore they bring their suit, etc. If the plaintiff has been compelled to pay to any other holder than the payee of the bill, the fact of payment should be averred accordingly. The averment of presentment to the defendant, he being the acceptor, may perhaps not be strictly necessary,' and should not be made unless it can be proved. It is certainly necessary to show that the defendant did not » Bank v. Smith, 11 Wheat. 171; Foden v. Sharp, 4 Johns. 183. ASSUMPSIT. 115 pay the bill, and that it was returned to the plaintiff, as the latter has no title to it except by virtue of those facts.' It is not necessary to state the names of partners who are parties to a bill of exchange or promissory note, unless thev are plaintiffs or defendants. Thus a bill or note mav be alleged to have been made by " certain persons using the style and firm of John Smith & Co.," or to have been payable to "certain persons by the name and style of William Jones & Co." (or, it seems, simply by " Smith & Co.," or to " William Jones (fe Co." ); and thereafter the makers, etc., may be de- scribed throughout as "the said drawers of the said bill," or " payees," etc., as the case may be.^ No. 56. Payee against acceptor, on bill accepted generally. (Commence as in No. 37, ante, page 91.) For that whereas one E. F., on, etc., in the county, aforesaid, made his bill of exchange, and delivered the same to the plaintiff, and thereby then and there requested the defendant to pay, after the date thereof, to the plaintiff, or his order, the sum of dollai-s, for value received; which said bill the defendant, on the day first aforesaid, upon sight thereof, there accepted: By means whereof the defendant then and there became liable to pay to the plaintiff the said sum of money, according to the tenor and effect of the said bUl and of the said acceptance thereof: and being so liable, the defendant, in consideration thereof, then and there promised the plaintiff to pay him the said sum of money, according to the tenor and effect of the said bill and of the acceptance thereof aforesaid. {Add the money counts, etc., as in No. 40, ante, page 94, using the word Bn:,L, instead of note, in the breach.) No. 57. First, or subsequent, indorsee against acceptor. (Commence as in No. 37, ante, page 91.) For that whereas one E. F., on etc., in, etc., made his bill of exchange, and delivered the same to one G. H., and thereby then and there requested the defendant to pay, after the date thereof, to the said G. H. , or his order, the sum of dollars, for value received; which said bill the defendant, on the day first aforesaid, upon sight thereof, there accepted; and thereupon the said G. H. then and there indorsed and delivered the said bill to one F. K., ivho thereupon then and there indorsed and delivered the same to the plaintiff: By means whereof the defendant then and there became liable to pay to the plaintiff the said sum of money, according to the tenor and effect of the said bill and of the said acceptance thereof; and being so liable, the defendant, in consideration '1 Swan's Pr. 240; 2 Chit. PI. 241, note; Bagley on Bills, 264; Case 147, n. a. v, Hefner, 10 Ohio 180. 2 2 Chit. Pi. 150; 1 Swan's Pr. 116 ASSUMPSIT. tliereof, then and there promised the plaintiff to pay him the said sum of monej% according to the tenor and effect of the said bill and of the accept- ance thereof aforesaid. (Add the money counts, etc., as in No. 40, ante, 2^(^9^ ^4, using the word BILL, instead of note, in the breach.) No. 5S, Payee against drawer of bill, on default of acceptance. {Commence as in No. 37, ante, page 91.) For that whereas the defendant on, etc., in the county aforesaid, made his bill of exchange, and delivered t^ie same to the plaintiff, and thereby then and there requested one E. F. to pay, after the date thereof, to the plaintiff, or his order, the sum of dollars, for value received: And the plaintiff avers, that on, etc., the said bill was there presented to the said E. F., for his acceptance there- of, and he was then and there requested to accept the same; but that the said E. F. did not nor would then, or at any time afterward, accept the said bill, or pay the amount of the same, or any part thereof, but refused so to do; (*) of which premises the defendant then and there had notice: By means whereof the defendant then and there became liable to pay to the plaintiff, on request, the amount of the said bill; and being so liable, the defendant, in consideration thereof, then and there promised the plaintiff to pay him the said amount on request. (If the drawer had no effects in the hands of the draivee, and notice of non-acceptance can not be proved, add a count like the next form, and also add counts on the consideration of the bill, and the money counts, etc., as directed in No. 37, ante, page 91. The breach will be as follows:) Yet the defendant, though requested, has not paid to the plaintiff the amount of the said bills, or either of them, or any part thereof, or the several other sums of money above specified, or any or either or any part of the same, but refuses so to do; to the damage of the plaintiff of dol- lars, and therefore he brings his suit, etc. No. 59. Payee against drawer — Defendant had no effects in draicer's hands. First count same as last precedent; second count same as far as the aster- isk, and then proceed as follows:) And the plaintiff avers, that at the time of the making of the last mentioned bill, and from thence until and at the time when the same was so presented to the said E. F. for his acceptance thereof, as aforesaid, he, the said E. F., had not in his hands any effects of the defendant, nor had he, the said E. F. , received any consideration from the defendant for the acceptance or payment by him, the said E. F., of the last mentioned bill, nor has the defendant sustained any damage by reason of his not having had notice of the non-acceptance of the same by the said E. F. ; of which premises the defendant, on the day last aforesaid, there had notice: By means whereof, etc. (State liability, and promise to pay on request, as in last precedent.) No. 60. Payee against drawer, on default of payment. (Commence as in No. 37, ante, page 91.) For that whereas the defendant, on, etc., in the county aforesaid, made liis bill of exchange, and delivered ASSUMPSIT 117 the same to the plaintiff, and thereby then and there requested one E. F. to pay, after the date thereof, to the plaintiff, or his order, the sum of dollars, for value received; which said bill the said E. F., on the day first aforesaid, upon sight thereof, there accepted: And the plaintiif avers that when the said bill became due, to wit, on, etc. , the same was there presented to the said E. F. for payment thereof, and he was then and there requested to pay the said sum of money, according to the tenor and effect of the bill; but that the said E. F. did not nor would then, or at any time before or afterward, pay the amount of the said bill, or any part thereof, but refused so to do; of which premises the defendant then and there had notice: By means, etc. (State defendant's liability, and promise to pay the amount of the hill on request. If doubtfid whether due notice to defendant of non-payment can he proved, and he had no effects in hands of dratvee, insert a count like the last precedent. No. 59, averring that " at the time of the making of the last- mentioned bill, and from thence until and at the time when the same was so presented to the said E. F. for payment thereof," the defendant had no effects, etc.; and add common counts, etc., and hreach, as suggested in No. 58.) Other counts may be inserted, according to the circumstances, viz.: a count alleging that the defendant dispensed with pre- sentment for payment; a count alleging that the drawee could not be found; * and one averring that the drawee was dead.^ It seems that the averment of acceptance in the above pre- cedent, though usual, is unnecessary, and should be omitted if there is any doubt as to the proof of the acceptance.^ Where sufficient notice to the drawer of non-payment is not proved, the bill may still be admitted, and authorize a recovery, under the common money counts, if the evidence shows a waiver of notice, or that the defendant had no funds in the hands of the drawee,* or, it is presumed, if any other matter appears, sufficient to excuse notice. To charge the drawer of a bill of exchange by the payee, upon the ground of non-acceptance or non-payment, it is usually essential that proof be made of prompt notice to the drawer of such non-payment or non-acceptance, as the case may be. Notice to the drawer of a bill of exchange of its non-accept- ance or non-payment by the drawee is not essential, when the 1 2 Chit. PJ. 160; 1 Swan's Pr. 247, ^ 2 Chit. PI. 158; 1 Swan's Pr. 243. 248. ^Broicer v. Rupert, 24 111. 182, 2 1 Swan's Pr. 248. 118 ASSUMPSIT. drawer is so situated that he can not be prejudiced by the want of notice. \yhen a drawer of a bill of exchano^e in good faith believes that he has funds in the hands of the drawee to meet the bill, though in fact he may not have such funds, he is entitled to prompt notice of the non-acceptance or non-payment, and if such notice is not given he will not be liable to the payee. In such case the law does not require the drawer to show that he has been actually injured by the want of notice, but only that he may have been so injured.' The leading additional cases in the supreme and appellate courts of Illinois, relating to bills of exchange, are noted below.^ ON WAEEANTIES. No. 61. On a warranty of a horse to be sound. (Commenceas in No. 40, ante, pnge 94.) For that whereas on, etc., in the county aforesaid, in consideration that the plaintiff, at the request of the defendant, would buy of the defendant a certain horse, at a certain price, to wit, the sum of dollars, to be therefor paid by the plaintiff, the defendant promised the plaintiff that the said horse then was sound; and thereupon the plamtiff, confiding in the said promise of the defend- nVelchv. Mfg. Co. , 83 111. 579. v. Woodhull, 29 111. 92; Curtis v. •^'Bradley v. Morris, 3 Scam. 1835 Marrs, 29 111. 508; Hodgen v. La- Kaskaskia v. Shannon, 1 Gilm. 15; iham, 30 111. 188; Ins. Co. v. Tincher, State Bank v. Stanton, 2 Gilm, 30 111. 399; Gillilan v. Myers, 352; Strawbridge v. Robinsoii, 5 31 111. 525; Burnap v. Cook, 32 Gilm. 471; Dunlap x. Buckingham, 111. 168; Jones v. Bank, 34 111. 313; 16 111. 109; Miller v. Lumsden, 16 111. Kupfer v. Bank, 34 111. 328; Strong 161; Adams v. King, 16 111. 169; v. King, S5 III. Q; Mason y. Dousay, R. R. Co. V. Neil, 16 111. 269; Bond 35 111. 424; Walker v. Rogers, 40 111. V. Bragg, 17 111. 69; McAllister v. 278; Wood v. Price, 46 111. 435; Smith, 17 111. 328; Harivood v. Rogers v. Gallagher, 49 111. 182; Tucker, 18 111. 544; Cook v. Ren- Sturgesv. Bank, 49111. 220; Phelpsv. ick, 19 111. 598; Cronise v. Kellogg, Northrup, 56 111. 156; Ray v. Fatdk- 20111. 11; Curtis v. Martin, 20 111. ner, 73 111. 469; Nowak Y.Stone Co., 557; Diversy v. Moore, 22 111. 331; 78111. 307; Montelius v. Charles, 76 Diversy v. Loeb, 22 111. 394; Earll v. 111. 303; Givens v. Bank, 85 111. 442; Mitchell, 22 111. 530; Sturges v. Wood v. Surrells, 89 111. 107; Bank Bank, 49 111. 220; Lowe v. Bliss, 24 v. Diefendorf, 90 111. 396; Hardy v. 111. 168; Brower v. Rupert, 24 111. Ross, 4 Bradw. 501; Quinn v.Han- 182; Tobey v. Berley, 26 111. 426; ley, 5 Bradw. 51; Haines v. Nance, Kupperv. Marc, 28 lU. 388; Herring 52 111. App. 406. ASSUMPSIT. 1 19 ant, then and there bought the said horse of the defendant and paid him therefor the said sum of money. Yet the defendant did not regard his said promise, but thereby deceived and defrauded the plaintiff, in this, to wit, that the said horse, at the time of the making of the said prom- ise of the defendant, was not sound, but on the contrary thereof was at that time unsound; whereby the said horee there became and was of no value to the plaintiff, and the plaintiff has there been put to great charges and expenses, amounting to a large sum, to wit, - — dollars, in and about the feeding, keeping, and taking care of the said horse. {If only a part of the price was j)aid, aver that the plaintiff " paid him therefor the sum of dollars, part of the said price, and then and there promised the defendant to pay him the residue thereof on request," or " three months after that date," as the case may be.) {Second count.) And for that, whereas, also, on the day aforesaid, in the county aforesaid, in consideration that the plaintiff, at the request of the defendant, had then and there bought of the defendant a certain other horse, at a certain other price, to wit, the sum of dollars, and had then and there paid that sum to the defendant for the last-mentioned horse, the defendant promised the plaintiff that the last-mentioned horse, at the time of the said sale thereof, was sound. Yet the defendant did not regard his last-mentioned promise, but thereby deceived and defrauded the plaintiff, in this, to wit, that the last-mentioned horse, at the time of the said sale thereof, was not sound, but on the contrary thereof was then unsound; whereby the same horse there became and was of no use or value, etc. , etc. {as in the first count). {A third count may be added, like the second, omitting the tt^ords in italics; and add a count for horse-keep, if there was any contract to that effect, and the money counts; and conclude as folloivs:) Wherefore the plaintiff says that he is injured, and has sustained dam- age to the amount of dollars, and therefore he brings his suit, etc. The particular description of unsoundness is not required to be stated, it being a rule in pleading that the breach may in general be assigned in the negative of the words of the con- tract.^ The above forms may be readily adapted to any case of warranty of a horse, as a warranty that the animal was "free from vice," or was "sound, kind, and would go well in single or double harness," etc. The warranty must be de- scribed accurately, and must be co-extensive with the breach.* No. 62, On warran ty of hops sold by sample. {Commence as in No. 36 ante, page 91.) For that whereas on, etc., in the county aforesaid, in consideration that the plaintiff would buy of the de- 1 Com. Dig. PI. C. 45; 1 Chit. PI. ^Chit. PI. 281, note p. 291. 120 ASSUMPSIT. fendant, at his request, five pockets of hops, at a certain price, to wit, dollars, the defendant promised the plaintiff to deliver to him the said five pockets of hops, and that the hops contained in the said five pockets, re- spectively, should all be of like goodness and quality with certain samples thereof, then and there shown by the defendant to the plaintiff, that is to say, a sample of the contents of each of the said five pockets : And the plaintiff avers that thereupon he, confiding in the said promise, then and there bought of the defendant the said five pockets of hops, at the price aforesaid; and the defendant afterward, to wit, on, etc., there delivered to the plaintiff five pockets of hops, as and for hops of like goodness and quality with the respective samples so as aforesaid shown to the plaintiff. Yet the defendant did not regard his said promise, but thereby deceived and defrauded the plaintiff in this, to wit, that the hops contained in the five pockets, respectively, so as aforesaid delivered to the plaintiff, at the time of the said delivery thereof were not all of like goodness and quality with the respective samples aforesaid, but on the contrary thereof the hops con- tained in each and every one of those five pockets were then all of greatly inferior goodness and quality to the respective samples so as aforesaid shown to the plaintiff, and were bad, damaged and unsalable; whereby the plaintiff lost the benefit of selling the same, etc., and gaming large profits, etc. (State any special damage there may have been, as freight paid, insur- ance, etc.) {Second count. Hops sold as good, etc.) And for that whereas also, on the day first aforesaid, in the county aforesaid, in consideration that the plaintiff would buy of the defendant, at his request, five other pockets of hops, at a certain price, to wit, dollars, the defendant promised the plaintiff to deliver to him the last mentioned hops, and that the same should be good, sound and merchantable hops: And the plaintiff avers that there- upon he, confiding in that promise, then and there bought of the defendant the last mentioned hops, at the price aforesaid; and the defendant after- ward, to wit, on, etc., there delivered to the plaintiff five pockets of hops, 88 and for good, sound and merchantable hops. Yet the defendant did not regard his promise last aforesaid, but thereby deceived and defrauded the plaintiff, in this, to wit, that the last mentioned hops, at the time of the said delivery thereof to the plaintiff, were not good, sound and merchanta- ble hops, but on the contrary thereof were then and there bad, damaged and unmerchantable; whereby the plaintiff lost the benefit of selling the same, etc. (as in first count). (Add the money counts, and conclude asin last precedent, No. 61.) In the case from, which the above precedent is drawn/ it was decided that when there is a latent defect in a coram odit\^, un- known to the seller, and he sells with warranty of goodness equal to a sample, he is not liable on such warranty for any 1 Parkinson v. Lee, 2 East 314, ASSUMPSIT. 121 damage resulting from such latent defect; nor will the law raise an implied promise, in such case, that the commodity is sound and merchantable, though a fair price is given for the same; since no fraud is imputable to the seller. In order to bind the seller, there should be an exjpress warranty of the soundness. It would seem preferable, in a count like the first in the above precedent, to allege that the defendant promised the plaintiff that the merchandise " should be of like goodness and quality with a certain sample then and there shown by the defendant to the plaintiff as and for a sample of " the merchan- dise sold. The principal Illinois cases on the subject of warranty are noted below.' BY LANDLORD AGAINST TENANT. No. 63. Landlord against tenant from year to year, on implied contract to use farm in husbandlike manner, and according to custom of country. {Commence as in No. 36, ante, page 91.) For that whereas the defendant, on, etc. , in the county aforesaid, was tenant to the plaintiff of a certain farm there situate, and in consideration thereof the defendant then and there promised the plaintiff to manage, use and cultivate the said farm during the said tenancy, in a good and husbandlike manner, and according to the custom of the country where the said farm is so situate: And the plaintiff avers that the defendant there continued tenant to the plaintiff of the said farm, from the time of the making of his said promise until the day of , in the year 18— (or "hitherto"). Yet the defendant did not nor would, during the said tenancy, manage, use or cultivate the said farm in a good and husbandlike manner, and according to the custom of the country where the same is so situate; but on the contrarv thereof after the making of the said promise, and during the said tenancy, to wit' ' England v. Clark, 4 Scam. 486; 565; Koerper v. Jung, 33 111. App. VanBuskirk v. Murden, 22 111. 446; 144; Rumming v. Caldwell, 43 111, Howard v. Cormick, 24 111. 455; App, 175; Kingman v. Decker, 43 Marckle v. Haskins, 27 111. 382; Ap- 111. App. 303; Kempx. Freeman, 42 plfbee V. Rumery, 28 111. 280; Linton 111. App. 500; Miller v. Low, 44 111. V, Porter, 31 111. 107; Kohl v. App. 630; Kemp v. 3Iiller, 46 111. Lindley, 39 111. 195; Milk v. Moore, App. 2l3; Aidtman v. Witherow, 48 39 m. 584; Schmidt v. Ins. Co., 41 111. App. 492; Lanzv. Wachs, 50111. Ill 295; Hanson v, Busse, 45 111. App. 262; Aidtman v, Wirth, 54 111, 496; Woodriiff v, Thome, 49 111. App. 18; Edwards v. Dillon, 147 88; Robinson v. McNeill, 51 111. 111. 14. See, also, cases cited in ob- 225; Osborn v. Flood, 11 Bradw. servations upon plea of breach of 408; EveHngliam v. Lord, 19 111. App. warranty, No. 126, post. 122 ASSUMPSIT. in the year 18 — ( or " in the successive years 18 — and 18 — "), there wrong- fully (here state any act or omission complained of), contrary to the course of good husbandry and the custom of the country where the said farm is situate as aforesaid, and contrary to the said promise of the defendant. (Second breach.) And the plaintiff further says that the defendant, after the making of his said promise and during the said tenancy, did not nor would (here state any other omission), as the defendant, according to the course of good husbandry, ought to have done; but on the contrary thereof, the de- fendant during that time, to wit, on the day first aforesaid, and at divers other times between that day and the day of aforesaid, there wrongfully Qiere state the act done in place of the act which ought to have been done), contrary to the course of good husbandry and the custom of the said country, and contrary to the said promise of the defendant. {It may, in some cases, be advisable to add a second cotint, similar to the first, but leaving out what relates to the custom of the country; and also to insert a third count, stating the promise as in the first, and a general breach of good husbandry, without stating the jmrticidars. Any special damage is of course to be averred; and if the plaintiff has been forced to expend money, add counts for money paid, etc. Conclude as in No. 61, ante.) No. 64. Against tenant for keeping and leaving premises out of repair. {Commence as in No. 36, ante, page 91.) For that whereas on, etc., in. etc., in consideration that the plaintiff, at the request of the defendant, would let to the defendant a certain messuage, with the appurtenances, there situate, to hold the same to the defendant, as tenant thereof to the plaintiff, to wit, from the day of then Aext, for one whole year, and so from year to year, so long as the plaintiff and the defendant should respectively please, the defendant promised the plaintiff that he, the defend- ant, would, during the continuance of such tenancy, keep the said messuage, with the appurtenances, in tenan table repair, order and condition: And the plaintiff avers that thereupon he, confiding in the said promise of the defendant, on the day first aforesaid, there let the said messuage, with the appurtenances, to the defendant, for the time and upon the terms aforesaid, and that the defendant was tenant to the plaintiff of the said messuage, with the appurtenances, under and by virtue of the said letting, from the time of making his promise aforesaid until and upon the day of, etc. Yet the defendant did not nor would, during the continuance of the said tenancy, keep the said messuage, with the appurtenances, in tenantable repair, order and condition; but on the contrary thereof, the defendant, during the con- tinuance of his said tenancy, to wit, on the day first above mentioned, and from thence until and upon the said, etc., wrongfully suffered the said mes- suage, with the appurtenances, to be, and the same were, during all that time, ruinous, prostrate, foul and in untenantable repair, order and condi- tion, for want of needful repairing, cleansing and amending thereof; and on the day last aforesaid the defendant there delivered up to the plaintiff the said premises, so ruinous, prostrate, broken down, foul and in bad and unten- antable order, repair and condition as aforesaid, contrary to the said prom- ise of the defendant. ASSUMPSIT. 123 ON PROMISES TO MAKKY. No. 65. On promise to marry on request. {Commence as in No. 36, ante, page 91.) For that whereas on, etc., in, etc., in consideration that the plaintiff, being then unmarried, had then and there promised the defendant, at his request, to marry him, when she, tlie plaintiff, should be thereto requested, the defendant promised the plaintiff to marry her, when he should be thereto requested: And the plaintiff avers that she, confiding in the said promise of the defendant, has always from thence hitherto remained and still is unmarried, and has been for all the time aforesaid, and still is there ready and willing to marry him. Yet although the plaintiff, after the making of the said promise of the defendant, to wit, on the day aforesaid, there requested the defendant to marry her, the defendant did not nor would then, or at any time before or afterward, marry the plaintiff, but refuses so to do. The above count is for not marrying on request. One or all of the following counts may be added, according to the circumstances. No. 66, Count for marrying another looman. For that whereas on, etc., in, etc., in consideration that the plaintiff, be- ing then unmarried, had then and there promised the defendant, at his request, to marry him, when she, the plaintiff, should be thereunto re- quested, the defendant promised the plaintiff to marry her on request: And the plaintiff avers that she, confiding in the said promise of the de- fendant, has always from thence hitherto remained and still is unmarried. Yet the defendant, after the making of his said promise, to wit, on , there wrongfully married a certain other person, to wit, one , contrary to It is last-mentioned promise. No. 67. Count on promise to marry in a reasonable time. And whereas also on, etc., in, etc., in consideration that the plaintiff, being then unmarried, had then and there promised the defendant, at his request, to marry him, the defendant promised the plaintiff to marry her within a reasonable time thereafter: And the plaintiff avers that, confidino- in the last-mentioned promise of the defendant, she has always hitherto re- mained and still is unmarried, and there has been, during all the time last aforesaid, and still is, ready and willing to marry the defendant, whereof he has always there had notice. Yet although a reasonable time for the defend- ant to marry the plaintiff has elapsed since the making of the last-men- tioned promise of the defendant, and although the plaintiff, after tlie lapse of such reasonable time, to tvit, on, etc., there requested the defendant to marry her, he did not nor would, within such reasonable time as aforesaid, or when so requested as aforesaid, or at any other time, marry the plaintiff, but refuses so to do. {It may be advisable to insert a count like this, leav- ing out the words in italics.) 124 ASSUMPSIT. No. 68, Count on promise to marry at a particular time. For that whereas on, etc., in etc., in consideration that the plaintiff, being then unmarried, had then and there promised the defendant, at his request, to marry him in the {latter part of February next — state the time according to facts — ) he, the defendant, promised the plaintiff to marry her in (the latter part of February then next). And the plaintiff avers that she, con- fiding in the said promise, in {the latter part of February next) after the making thereof, and before and ever since, was and has been ready and willing to marry the defendant, whereof he then and there had notice. Yet the defendant did not nor would in {the said latter part of February next) after the making of his said promise, or at any time before or afterward, marry the plaintiff; and afterward, to wit, on, etc., he there wholly de- clined and refused to marry the plaintiff, and wholly discharged her from the performing of her said promise. Where the promise is special, as " after the death of the de- fondant's father," it should be so declared on, with proper averments.' The action on a promise to marry is sustainable only when the contract is mutual." An infant is not liable on his executory contract to marry.* And though one of the par- ties is an infant, yet the contract is binding on the other side, * and can be sustained by a man against a woman; ' but an executor can not sue." It is not necessary that the time of marriage should be specified to make the promise binding.' If no definite time is fixed in law the contract is one to be performed in a reasonable time.* If the promise was to marry on a particular day, it should be so described in one count of the declaration; * but for fear the plaintiff should not be able to prove such particular promise, it is usual and better to add a count to marry on 1 Peake, 103; Chitty on Contracts, Cowen 22; Hamilton v, Lomax, 26 426. Barb. 616; McConkey v. Burnes, 42 ^King v. Kersey, 2 Ind. 402; 3Ior- 111. App. 511. gan v. Yarborough, 5 La. An. 321; *2 Stra. 937; Bac. Abr., Infant; Kelly V. Riley, 106 Mass. 339; Allard Willard v. Stone, 7 Cow, 22. x.Smith,2Uetc. (K\.),2m; Wills \. ^Carth. 467; 1 Salk. 24; 5 Mod. Padgett, 8 Barb. 324; Roman v. 511: J^eZZ?/ v. jRra/ro, 9 Ala. 328. Earle, 53 N. Y. 267; Conrad v. ^2 K.&S. iQS\ Smith v. Sherman, Williams, 6 Hill 444; Ellis v. Chig- 4 Cush. 408; Kelly v. Riley, 106 genheimer, 20 Pa. St. 287; Espy v. Mass. 330; Wade v. KaWfleisch, 50 Jones, 37 Ala. 379. N. Y. 282. 3 1 Parsons on Cont. 544: Holt v. '^ Carth. 467. Ward, 2 Strange 937; Hunt Y.Peak, ^Judy v. Sterrett, 52 111. App. 265. 5 Cowen 475; Willard v. Stone, 7 » 2 Chit. PI. 321, note m. ASSUMPSIT. 125 request, another to marry in a reasonable time, and another to marry" generally/ Under a count to marry on request, positive proof of such request and refusal is never required. This may be inferred from circumstances, and especially from testimony showing a substantial refusal by the defendant. The request need not necessarily be made by the plaintiff herself. It may be made by her father, or other friend, whose authority to do so may be inferred from the relations existing between the parties.^ In an action for a breach of marriage contract, seduction of the plaintiff by the defendant, under promise of marriage, may be given in evidence in aggravation of damages.^ The reason for this rule of law is manifest. A party is always entitled to such damages as are the natural and proximate results of the act complained of.* Whatever damages the plaintiff may have suffered in consequence of the defendant's refusal to marry her, she is legitimately entitled to recover in this action. And these damages are to be estimated from the circumstances of the parties, and the situation in which the plaintiff is left by the defendant's refusal to perform his contract.^ The rules applicable to contracts of marriage do not differ materially from those governing contracts in general. In both, the intention of the parties must be collected from the terms employed, whether the contract is verbal or in writing, and their rights and liabilities determined accordingly. In the case of mutual and dependent promises, neither can main- tain an action without first showing a willingness and an offer to perform on his part, or that the other party has done some act dispensing with such offer.* If the declaration is upon a promise to marry upon request, or in a reasonable time, the plaintiff must aver and prove a special request, or an offer to perform; a bare allegation of readiness and willingness is not 1 1 M. & P, 239; 2 Chit. PI. 323. * 2 Greenl. Ev. 256; Tubbs v. Van ^Prescott V. Guyler, 32 111. 312. Kleck, 12 111. 446. 3 Tubbs V. Van Kleck, 12 111. 446; * Tubbs v. Van Kleck, 12 III. 446. Burnett v. Simpkins, 24 111. 264; « Greenup v. Stoker, 3 Gilm. 202; Paulv. Frazier, 3 Mass. 72; King v. Porter v. Rose, 12 Johns. 209; Burks Hersey, 2 Ind. 402; Green x. Spencer, v. Shain, 2 Bibb. 341; 1 Chitty PI. 3 Mo. 318; Wlialen v. Layman, 2 303. Blackf. 194. 126 ASSUMPSIT. sufficient/ "Where there is a general promise to marry, the law will imply that it is to be performed within a reasonable time.' If a man tells a woman's father that he does not intend to perform his matrimonial engagement to his daughter, it is sufficient for her to maintain her action.^ The promise to marry, the acceptance, or the request or refusal, may be proved by circumstances.* In an action for a breach of promise of marriage, the de- fendant may prove particular acts of the plaintiff tending to shoAV that she was an unchaste woman, if such acts and her character were unknown to him until after the making of the promise, but not otherwise,^ except in mitigation of damages; ® and to absolve the defendant, he must have terminated the engagement immediately upon being apprised of the facts.' A promise of marriage made in consideration of sexual inter- course is void.* It would seem that very slight facts and circumstances tend- ing to prove misconduct, may be shown in mitigation of dam- ages; ' but while this is true, and the defendant is entitled to offer, in mitigation^ general rumor of bad character,'" yet he shall not har the action without proof substantiating the charges; nor shall he be allowed to prove either general repu- tation or particular actSj if such reputation or acts were the result of his own fault." Contracts of marriage may be inferred from unusual and marked attentions and continued intimacy, and those mani- festations of attachment and regard which usually precede the consummation of such contracts.'^ 1 Greemip v. Stoker, 3 Gilm. 202. ^ Butler v. Eschleman, 18 111. 44. ^ Blackbiirn v. 3Iann, 85 111. 222; ^Burnett v. Simpkins, 24 111. 264; Atchison v. Baker, Peake Ad. Cas. Kantzler v. Grant, 2 Bradw. 236; 103; Coil V. Wallace, 24 N. J. L. Doubet v. Kirkman, 15 III. App. 622. 291; Wagensellerv. Simmers, 97 Pa. ''Burnett v. Simpkins, 24 111. 264. St. 465. « Judy v. Sterrett, 153 111. 94. 2 Gough V. Farr, 2 Car. & Payne, « Foulkes v. Selway, 3 Esp. 236; 631. Willard v. Stone, 7 Cow. 22; Whar- * Greenup v. Stoker, 3 Gilm. 202; ion v. Leivis, 1 Car. & Payne 529. Prescott V. Guyler, 32 111. 312; Rock- '" Baddeley v. Martlock, 1 Holt. N. afelloio V. Neivcomb, 57 111. 186; F. 1; Foidkes v. Selivay, S Esp. 236; Blackburn V. Mann, 85111. 222; Judy '• Boynton v. Kellogg, 3 Mass. 189. V. Sterrett, 52 111. App. 265. 12 Qreenup v. Stoker, 3 Gilm. 202. ASSUMPSIT. 127 AGAINST BAILEES. No. 69. Against hirer of horse, for using it improperly, and on a differ- ent journey, etc. {Commence as in No. 36, ante, page 91.) For that whereas on, etc., in the county aforesaid, in consideration that the plaintiff would let to hire and deliver to the defendant , at his request, a certain horse of the plaintiff, of the value of dollars, for the defendant to go and perform a certain journey therewith, to wit, from, etc., to etc., and from thence back again to, etc., aforesaid, for certain reasonable reward to the plaintiff in that be- half, the defendant promised the plaintiff that he, the defendant, would not go or perform with the said horse any other journey than the one afore- said, and that he would ride {or " drive") and use the said horse in a mod- erate, careful, and proper manner: And the plaintiff avers that there- upon he, confiding in the said promise, then and there let to hire and delivered the said horse to the defendant, and the defendant then and there hired and received the same of the plaintiff, for the purpose, and upon the terms aforesaid. Yet the defendant, not regarding his said promise, there- upon, on the day aforesaid, went and performed with the said horse another journey than the one aforesaid, that is to say, a certain journey from, etc., aforesaid to, etc., aforesaid, and from thence to a certain place called , in the county of , and from thence back again to, etc., aforesaid; and in going and performing the last mentioned journey, the defendant so im- moderately, carelessly, and improperly rode (or " drove") and used the said horse, that by means of the several premises the said horse became and was greatly lamed and hurt, and so remained for a long time, to wit, hitherto, during all which time the plaintiff was deprived of the use and benefit of his said horse, and also thereby the said horse became and was greatly damaged and lessened in value. (The second count is usually for riding the horse immoderately, and is as follows:) And whereas also on, etc., in etc., in consideration that the plaintiff, at the request of the defendant, had let to hire and delivered to the defendant a certain other horse of the plaintiff, of the value of dollars, to be by the defendant ridden and used, he, the defendant, promised the plaintiff to ride and use the last mentioned horse in a moderate, careful and proper manner. And although the defendant then and there received the last mentioned horse of the plaintiff, for the purpose last aforesaid, yet the defend- ant, not regarding his last mentioned promise, did not nor would ride or use the last mentioned horse in a moderate, careful or proper manner; but on the contrary thereof, the defendant, after the making of his last men- tioned promise, to wit, on the day aforesaid, there so carelessly and im- properly rode and used the last mentioned horse that by means thereof the same became and was greatly lamed and hurt, and so remained for a long space of time, to wit, hitherto, during all which time the plaintiff thereby was deprived of the use and benefit of his last mentioned horse, and also thereby the same horse became and was greatly damaged and lessened in value. 128 ASSUMPSIT. {If there is any doubt whether the injury was oceasionedhy improper rid- ing or driving, it is advisable to add a count like the last, but stating tlie defendant's promise to have been " that whilst he should so have the use of the last mentioned horse, as aforesaid, he would take due and proper care thereof," a?id auerringr "that the defendant had the use, etc., and that whilst he so had the use, etc, he did not take due and proper care thereof, but wholly neglected so to do; and by reason thereof the last-mentioned horse, on, etc., there became and was greatly damaged," etc. It may also be advisable to add anotlier count, stating, " that whereas on. etc., in, etc., in consideration that the plaintiff had delivered to the defendant, at his re- quest, a certain other horse, to be had and used by the defendant" — omit- ting the statement as to hire — " the defendant promised," etc., stating the promise as in the count last suggested. If there is any demand for horse- hire, add a count therefor, as ante, under No. 25, and the account stated.^ Conclude as follows:) Wherefore the plaintiff says that he is injured and has sustained dam • age to the amount of dollars, and therefore he brings his suit, etc. A hirer is not bound to exercise more than ordinary care with the thing let to hire," but a borrower is bound to use ex- traordinary care.' The use of domestic animals necessarily in- volves their keeping, and the expense incurred by the borrower for such keeping is not a compensation to the lender which makes the bailment one of hiring.* The hirer of a horse is not liable to make compensation for his death, occasioned by error of a farrier called in, but is lia- ble if he, the hirer, imprudently gave medicine himself; nor is the hirer liable for a horse's falling, etc., without the hirer's fault." He must not ride a horse after it is exhausted and re- fuses its feed.' The burden is on the bailee of an animal received in good and returned in bad condition, to shoAv how the change hap- pened.' An agister of cattle for hire is liable for the negligence of his servants, but not for their willful or malicious acts, com- mitted without his knowledge.' 12 Chit. PI. 337, 339. *Hotvard v. Babcock, 21 111. 259; «Ld. Raym 916; Bui. N. P. 72; Bennett v. O'Brien, 31 III. 250. Jones, 89; Metcalf v. Hess, Will. "8 Camp. 5. 129; Hnlty v. Markel, 44 111. 225. «Gow, C. N. P. 1. ^Phillips V. Conden, 14 111. 84; '' Burlingame v. Home, ZOIW. A'^p. Howard v. Babcock, 21 III. 259; Ben- 332. nett V. aBrien, 21 111. 250. ^Halty v. Markel, 44 111. 225. ASSUMPSIT. 129 No. 70, Against carrier by land, for loss of goods. (Commence as in No. 36, ante, page 01.) For that whereas the defendant, before and at the time of the making of his promise hereinafter next men- tioned, was a common carrier of goods and chattels for hire, in and by a certain wagon, from to ; and the defendant being such carrier as aforesaid, the plaintiff, on, etc., at, etc., at the request of the defendant, caused to be delivered to him certain goods and chattels of the plaintiff, to wit, etc., {describe them, as in trover,) of the value of dollars, to be taken care of and safely carried by the defendant, as such cari-rier as afore- said, in and by the said wagon, from, etc., aforesaid, to, etc., aforesaid, and at the last named place to be safely delivered hj the defendant for the plaintiff: and in consideration thereof, and of certain reward to the defend- ant in that behalf, he, the defendant, on the day aforesaid, in the county aforesaid, promised the plaintiff to take care of the said goods and chattels, and safely to carry the same, in and by the said wagon, from, etc., afore- said to, etc., aforesaid, and at the last named place safely to deliver the same for the plaintiff. And although the defendant, as such carrier as aforesaid, then received the said goods and chattels, at the place first afore- said, for the purpose aforesaid, yet not regarding his said promise, he has not taken care of the said goods and chattels, or safely carried the same from, etc., aforesaid, to etc., aforesaid, nor has at the last mentioned place safely delivered the same for the plaintiff; but on the contrary thereof, the defendant so carelessly behaved himself with respect to the said goods and chattels, that by and through the mere negligence and improper conduct of the defendant and his servants in this behalf, (*) the said goods and chattels aftei-ward, to wit, on the day aforesaid, became and were wholly, lost to the plaintiff. (If only a part of the goods icas lost, proceed from the asterisk in this count as folloivs: " divers of the said goods and chattels, to wit, etc., of the value of, etc., were on the day aforesaid wholly lost to the plaintiff " — and, if according to the fact — " and divers others thereof, to wit, etc., of the value of, etc., were then greatly damaged, and lessened in value to the amount of, etc.," or " the residue thereof was then greatly damaged, etc." Or see averment of partial loss in the following form, No. 71.) (Second count, for not carrying icithin a reasonable time.) And for that whereas also, on the day aforesaid, at, etc., aforesaid, in consideration that the plaintiff had then and there caused to be delivered to the defendant, at his request, divers other goods and chattels of the plaintiff, to wit, etc., of the value of dollars, to be taken care of and safely carried by the de- fendant fi-om, etc., aforesaid to, etc., aforesaid, and at the last mentioned place to be by him delivered for the plaintiff, for certain reward to the de- fendant in that behalf, he, the defendant, promised the plaintiff to take care of the last mentioned goods and chattels, and safely to carry the same fi'om, etc., aforesaid to, etc., aforesaid, and at the last mentioned place to deliver the same for the plaintiff, in a reasonable time then next foUowino-. And although the defendant then received the last mentioned goods and chattels, at the place first aforesaid, for the purpose aforesaid, and although a reasonable time for the cai-riage and delivery tliereof as aforesaid has 9 1 30 ASSUMPSIT. long since elapsed, yet the defendant did not nor would within such reason- able time, or afterward, though often requested, safely carry the last men- tioned goods and chattels from, etc., aforesaid to, etc., aforesaid, or at the last named place deliver the same for the plaintiff, but has hitherto wholly neglected so to do; whereby the last mentioned goods and chattels have been and are wholly lost to the plaintiff. (Add counts for money had and received, and upon an account stated, and conclude as in No. 61 or No. 69.) No. 71. Against the captain of a ship, on his bill of lading, for loss of goods. {Commence as in No. 36, ante, page 91.) For that whereas the defendant, before and at the time of the making of his promise hereinafter next men- tioned, was the master of a certain vessel called the , then at, etc., and bound from thence to, etc.; and the plaintiff, on, etc., at, etc., aforesaid, at the request of the defendant, caused to be shipped on board of the said ves- eel divers goods and chattels, to wit, etc., then in good order and icell con- ditioned, of the value of dollars, to be taken care of and safely carried by the defendant, on board of the said vessel, from, etc., aforesaid, to, etc., aforesaid, and at the last mentioned place to be safely delivered, in the like good order and icell conditioned, for the plaintiff (f/ie dangers of navigation only excepted); and in consideration thereof, and of certain reward to the defendant in that behalf, he, the defendant, thereupon, on the day and in the county aforesaid, promised the plaintiff to take care of and safely carry and deliver the said goods and chattels as aforesaid {the dangers of naviga- tion only excepted): And although the defendant, so being such master of the said vessel as aforesaid, then and there received the said goods and chat- te's, to be carried and delivered as aforesaid, and although a reasonable time for the carrying and delivering of the same as aforesaid has long since elapsed, and the defendant has delivered for the plaintiff, at, etc., aforesaid, a part of the said goods and chattels, to wit, etc. ; yet the defendant, not regarding his said promise, did not nor would take care of and safely carry the residue of the said goods and chattels from, etc., aforesaid, to, etc., aforesaid, and at the last mentioned place safely deliver the same for the plaintiff {although no dangers of navigation did j)revent the defendant from so doing); but on the contrary thereof, the defendant, so being such master of the said vessel as aforesaid, so carelessly behaved himself with respect to the said residue of the said goods and chattels, that on the day aforesaid, by and through the mere negligence and improper conduct of the defendant and his servants in that behalf, the said residue of the said goods and chattels, being of the value of dollars, became and was wholly lost to the plaintiff. {The words in italics, in the above count, will be inserted, or omitted, or varied, according to the terms of the bill of lading.) {Second coimt.) And for that whereas also, on the day aforesaid, at, etc., aforesaid, in consideration that the plaintiff had then and there delivered to the defendant, at his request, divers other goods and chattels, to wit, etc., of the value of, etc., to be taken care of and safely carried by the defendant on board of a certain other vessel, from, etc., aforesaid, to, etc., aforesaid, and ASSUMPSIT. 131 at the last named place to be safely delivered for the plamtiff , for certain re- ward to the defendant in that behalf, he, the defendant, promised the plaintiff to take due care of the last mentioned goods and chattels whilst he should have the care and custody thereof for the purpose aforesaid : And although the defendant, on the day aforesaid, at, etc., aforesaid, received the last men- tioned goods and chattels, for the purpose aforesaid, yet, not regarding his last mentioned promise, he took so little and such bad care of those goods and chattels, whilst he had the care and custody thereof for the purpose aforesaid, that on the day aforesaid, by and through the mere negligence of the defendant in that behalf, the same became and were wholly lost to the plaintiff. {Conclude as in No. 69, ante.) It does not appear to be necessary, in assumpsit, to com- mence with an inducement of the defendant's being a common carrier, or of the nature of the conveyance, but the declaration will suffice if it merely states the deliver}'- to the defendant of the goods, etc., to be carried from, etc., to, etc., and his under- taking to carry them accordingly.' The places to and from which the goods were to be carried must be stated accurately." An exact description of the goods is not material;^ nor is it necessary to state the amount of the reward paid, or to be paid, for the carriage of the goods.* In general, the consignee of the goods should be the plaintiff ; * but if the consignee had no propert}-^ in the goods at the time of the delivery thereof to the carrier, the consignor must sue.' In an action on the case, however, the consignor, thouo-h only a bailee, may sue, and so may the real owner, and so may the consignee, but the first recovery of damages is a bar to any other.^ And the consignor may control the destination of property in transitu, and the carrier is bound to obey his di- rections in that regard." 'IWils. 281; Bac. Abr., tit. Car- Raymond v. Rowland, 12 Wend. rier, A. 176; Everett \. Saltus, 15 Wend. 474. ^ Tucker V. Clarklin, 2 Stark 385. '' R. R. Co. v. McComas, 33 111. 3 2 Saund. 74 a. 185; M. D. T. Co. v. Smith, 76 111. * Andrews \. Whitehead, 13 East. 543; R. R. Co. v. Emrich, 24 111. 114, note a; 2 New Rep. 458; Dal- App. 245; R. R. Co. v. Miller, 32111. stonv. Janson, 3 Ld. Raym. 115. App. 259. ^ Dawes v. Peck, 8 T. R. 330. » Lewis v. R. R. Co., 40 111. 281; ^Sargent v. Morris, 3 B. & A. 277; Strahorn v. Trans. Co., 43 111. 424. Potter V. Lansing, 1 Johns. 223; 132 ASSUMPSIT. The carrier lias two distinct liabilities : Fu-d, for losses by accident and mistake, where he is liable as insurer. Second, for losses by default or negligence, Avhere he is answerable as an ordinary bailee.' It is provided by the statute of Illinois, that " whenever any property is received by any railroad cor- poration to be transported from one place to another, within or without this state, it shall not be lawful for such corporation to limit its common law liability safely to deliver such property at the place to which the same is to be transported, by any stipulation or limitation expressed in the receipt given for the safe delivery of such property." ^ The statute does not prohibit common carriers from limit - ino- their common law liability by contract with the owner of the property delivered for transportation. It only prohibits the limitation of the carrier's liability by a stipulation or clause expressed in the receipt given for the property. A railway carrier, in many respects may, by express con- tract, limit its strict common law liability. It may, by special contract, limit its liability to such damage or loss as may occur on its own line of carriage; and against loss by fire without its fault; and its liability may thus be limited as an insurer, and ao-ainst other loss not attributable to its negligence or that of its servants; and it may require the value of goods offered for transportation to be fixed by the shipper, to protect itself against fraud in case of loss. But in this state a common carrier can not, even by express contract, exempt itself from liability resulting from gross neg- ligence or willful misconduct committed by itself, or its serv- ants or employes; nor can it limit its liabilit}^ in amount, as against damages resulting from such negligence.* The mere 1 Boscotvitz V. Am. Ex. Co., 93 111. 239; R. R. Co. v. Hale, 2 Bradw. 523, 150; R. R. Co. v. Harmon, 12 Bradw. « 2 Starr & Curtis 1945; Rev. Stat. 54; R. R. Co. v. 3IorHson, 19 III. (1893), 1121; Rev. Stat. (1895), 1205. 136; R. R. Co. v. Read, 37 111. 485; 3 R. R. Co. v. Chapman, 133 111. R. R. Co. v. Adams, 42 111. 474; R. 96; Coles V. R. R. Co., 41 111. App. R. Co. v. Owens, 53 111. 391; R. R. 607; R. R. Co. v. Jaggerman, 115 Co.\. Hall, 58 111. 409; R. R. Co. v. 111.407; R.R. Co. v. Brown, 51 111. Montfort, 60 111. 175; Arnolds. R. App. 656; Ex. Co. v. Stettaners, 61 R. Co., 83111. 273; R. R. Co.\. 111. 184; R. R. Co. v. Wilcox, 84 lU. 85 lU. 80. ASSUMPSIT. 133 acceptance of a bill of lading or receipt, which contains condi- tions restricting the carrier's liability, raises no presumption of assent to its terms.' The adjudications on the subject of common carriers are too numerous to permit even a summary of them in a work of this kind. The principal cases in the supreme and appellate courts of Illinois relating to the duties and rights of carriers of goods,^ money,' baggage,* and passengers,' and not herein- before cited, are noted below. ' Lawrence on Carriers, Sec. 104, p. 411; R. R. Co. V. Herndon, 81 111. 143; Ex. Co. v. Haynes, 42 111. 89; Express\. StettanersM 111. 184; i?. R. Co. V. Wilcox, 84 111. 239; Trails. Co- \. Thielbar, 86 111. 71; Trans. Co. v. Leyson, 89 111. 43; Trustees v. Mesen- heimer, 89 111. 151; Ex. Co. v. Spel- man, 90 111. 455; Trans. Co. v. Dater, 91 111. 195; W. T. Co. v. Hosking, 19 Bradw. 607; M. D. T. Co. v. Furih- mann, 149 111. 66: R. R. Co. v. Jag- german, 115 111. 407. 2 Trans. Co. v. Joesting, 89111. 152; R. R. Co. V. Eriekson, 91 111. 613; Tr. Co.v. Moore. 88 III. 136; R. R. Co. V. Johnson, 34111. 389; R. R. Co. v. Smyser, 38 111. 355; Am. Ex. Co. v. Lesem,39 111. 312; R. R. Co. v. Montgomery, 39 111. 335; R. R. Co. V. Ames, 40 111. 249; I. C. R. R. V. Waters, 41 111. 73; Baker v. R. R. Co., 42 111. 73; R. R. Co. v. Scott, 42 111. 132; R. R. Co. v. Cobb, 48 111. 402; Marshall v. Railroad, 48 111. 425; Vincent v. R. R. Co., 49 111. 33; Railroad v. Memll, 52 111. 123; N. T. Co. V. Sellick, 52 111. 249; R. R. Co. V. McClellan, 54 III. 58; jR. R. Co. V. Frankenberger, 54 III. 88; Ry. Co. v. Gilvin, 81 111. 511; Express Co. v. Greenhalgh, 80 III. 68; Coles v. R. R. Co., 41 111. App. 609; R. R. Co. v. Peojjle, 19111. App. 141; R. R. Co. V. Davis, 54 111. App. 130; Express Co. y.WtUstein,2SIU. App. 101; Shearer V. Ex. Co., 43111. App. 641. ^ Baldwin v. Am. Express Co., 23 111. 197; I. C. R. R. Co. v. Copeland, 24 111. 332; Express Co. v, Baldwin, 26 111. 504; Express Co. v. Haggard, 37 111. 465; Ghidliverv. Express Co., 38 111. 503; Ten Eyck v. Harris, 47 111. 268. •» IVoodv. Devin, 13 111. 746; Par- meleev. McNulty, 19 111. 556; Partne- lee V. Smith, 21 111. 620; Railroad v. 3Ieyers, 21 111. 627; Pannelee v. Fischer, 22111. 212; Davis v. Rail road, 22 III. 278; I. C. R. R. v. Copeland, 24 111. 332; R. R. Co. v. Fahey, 52 111. 81; Bartholomew v, R. R. Co., 53 lU. 227; R. R. Co. v. Collins, 56 lU. 212; R. R. Co. v. Oehm, 56 111. 293; R. R. Co. V. Carrow, 73 111. 348; R. R.Co. V. Boyce. 73 111. 510; Parmelee V. Lowitz, 74 111. 116; R. R. Co. v. Clayton, 78 III. 616; Ry. Co. v. Hard- way, 17 111. App. 323; R. R. Co. v. Addizoat, 17 111. App. 635; Rice v. -R. iJ. Co., 22 111. App. 643; Parme- lee V. Raymond, 43 111. App. 609; Packet Co. v. Oatiman, 127 111. 610. » J'n'nfc V. Potter, 17 111. 406; ii. i2. Co. V. Yarwood, 17 111. 509; Frink V. Schroyer, 18 III. 416; C, B. se of carrying on or ex- ercising therein any ti'ade, business or vocation denominated hazardous or extra-hazardous, or specified in the memorandum of special rates in the ' 2 Chit. PI. 370; 1 ^wan s Pr. 327. 138 ASSUMPSIT. conditions annexed to the said policy, or for the purpose of storing therein any of the articles, goods or merchandise in the same conditions denomi- nated hazardous, or extra-hazardous, or included in the said memorandum of special rates, unless in the said policy otherwise specially provided, or thereafter agreed to by the defendant m writing, added to or indorsed on the said policy, then and from thenceforth, so long as the same building should be so appropriated, applied or used, the said policy should cease, and be of no force or effect; and that the said insurance so witnessed by the said policy was not intended to apply to or cover any books of account, written securities, deeds or other evidences of title to land, nor to bonds, bills, notes, or other evidences of debt, nor to money or bullion; and that the said policy was made and accepted with reference to the said conditions thereto annexed, which were to be used and resorted to in order to explain the rights and obligations of the said parties to the said policy, in all cases not therein otherwise specially provided for, and that the same insurance (the risk not being clianged) might be continued for such further term as might be agreed upon, on payment of the premium therefor, and indorse- ment of such payment on the said policy, or receipt given for the same; and that the interest of the plaintiff in the said policy was not assignable, unless by consent of the defendant, manifested in writing; and that in case of any transfer or termination of the interest of the plaintiff in the siid property, either by sale or otherwise, without such consent, the said policy should thenceforth be void. And the plaintiff avers that the said conditions in the said policy mentioned are as follows, that is to say : {here insert, verba- tim, the conditions, or such parts thereof as constitute a condition prece- dent.) And the plaintiff further avers that afterward, to wit, on, etc., in, etc., in consideration of the payment of the further sum of dollars, then and there made by the plaintiff to the defendant, the receipt whereof was by the defendant then and there acknowledged in writing, and indorsed on the said policy, the defendant continued the said insurance for the further term of, etc. , then and there agreed upon between the plaintiff and the defend- ant, to wit, from the day last aforesaid, at noon, until, etc., at noon. And thereupon, on, etc., aforesaid, in consideration of the premises, and that the plaintiff had promised the defendant to keep and perform all things in the said policy contained on the part of the plaintiff to be kept and performed, the defendant there promised the plaintiff that it would keep and perform all things in the said policy mentioned on its part to be kept and performed and the defendant then and there became and was an insurer to the plaint- iff of the said sum of, etc., upon the said property as aforesaid. And the plaintiff further avers (*) that at the time of the making of the said policy, and from thence until the happening of the loss and damage hereinafter mentioned, he had an interest in the said property to the amount of the said sum so by the defendant insured thereon as aforesaid. And the plaint- iff further avers that on, etc., the said property was consumed and de- stroyed by fire, whereby the plaintiff then and there sustained loss and danx- age on the said property to the amount of the sum last aforesaid, which said loss and damage did not happen by means of any invasion, insurrection, ASSUMPSIT. 139 riot or civil commotion, or of any military or usurped power. And the plaintiff further avers that forthwith after the happening of the said loss and damage, to wit, on, etc., he there gave notice thereof to the defendant, and as soon thereafter as possible, to wit, on, etc. , there delivered to the defendant as particular an account of the said loss and damage as tlie nature of the case would admit; which said account was signed by the plaintiff, and accom- panied by his oath that the same was in all respects just and true, and showed the value of the said property, and in what general manner the said build- ing was occupied at the time of the happening of the said loss and damage, and the name of the person then in the actual possession thereof (or ' ' in charge thereof, there being no person in the actual possession of the same '■), and when and how the said fire originated, so far as the plaintiff knew or believed, and his interest in the said property at that time; to which said account was annexed, and therewith delivered, a certificate under the hand and seal of the notary public nearest to the place of the said fixe, to wit, E. F. , showing that he, the said notary, had examined the circumstances attending the said fire, and the loss and damage alleged, and was acquainted with the character and circumstances of the plaintiff, and verily believed that the plaintiff had by misf ortiine, and without fraud or evil practice, sus- tained loss and damage on the said property to the amount of dol- lars. And the plaintiff further avers that there was not at or since the time of the making of the said policy (or " the continuance of the said in- surance as aforesaid ") any other insurance on the said property; and that the said building was not at or since that time appropriated, ai^plied or used to or for the purpose of carrying on or exercising therein any trade, business or vocation denominated hazardous or extra-hazardous, or specified in the said memorandum of special rates, or for the purpose of storing therein any of the articles, goods or merchandise in said conditions denominated hazardous or extra-hazardous, or included in tlie said memorandum of special rates (except as specially j^^'ovided in the said policy as aforesaid, etc.) (*) And the plaintiff further avers that although he has kept and per- formed all things in the said policy contained on his part to be kept and per- formed, and although he has sustamed loss and damage by fire on the said property, in the manner and to the amount aforesaid, nevertheless tlie de- fendant, though often thereto requested, has not yet paid to the plaintiff that amount, or any part thereof, but refuses so to do; to the damage of the plaintiff of dollars, and therefore he brings his suit, etc, {If more than one count, tlie conclusion will be as in No. 61, ante.) Policies of insurance vary so greatly in their forms and pro- visions, that the precedents given are only to be considered as indicating the general structure of the declaration. As to the necessity of the averment of interest in the plaintiif, see the authorities mentioned in the note.' > 2 Chit PI., 2 Am. Ed., 181, note fc, 223; 7ns. Co. v. 3ffg. Co., 1 Gilm and cases cited; Id., 11 Am. Ed. 181 236; Ins. Co. v. Wetmore, 32 111. 221. note m, and cases cited; 01. Prec. 140 ASSUMPSIT. Where a term of insurance about to expire is continued, and a renewal receipt given, such receipt does not constitute a new contract of insurance, but merely continues the policy in force for another term; and if a loss occurs during the new term, a recovery must be had, if at all, on the original con- tract.' And this is the case, though the new premium was paid by the assignee, and the renewal receipt was given to him." It seems it is otherwise, however, where a receipt is given i-enewing a policy that has expired." A policy of insurance is not assignable, so as to enable the assignee to sue in his own name;* but where the assignee of a policy has taken a renewal receipt to himself and has paid the new premium, he can, in case of loss, maintain assumpsit in his own name, not on the policy, but on the new and ex- press promise of the insurer to pay him for the loss.^ Policies of insurance are to be construed as other mercantile contracts, but the conditions and provisions of such policies are to be construed strictly against the underwriters." The following is merely suggested as a shorter form of de- claring on a policy of insurance : No. 77. On a Hi-e insurance policy. {Commence asinthelost precedent.) For that whereas the defendant, on, etc., in, etc., made its poUcy of insurance, and dehvered the same to the plaintiff; and for the consideration therein expressed promised the plaintiff in the terms of the said policy and the conditions thereto annexed, which said policy and conditions here follow in these words and figures, to wit : {here insert the policy and conditions \eYha.iiva.) And the iilaintiff avers {proceed as in the last j^recedent , from the one asterisk to the other): Nev- ertheless, although the plaintiff has kept and performed all things in the said policy mentioned on his part to be kept and performed, the defendant has not yet paid to the plaintiff the said amount of the loss and damage aforesaid, or any part thereof, but refuses so to do. ' Ins. Co. V. Wetmore, 33 111. 221. 111. App. 545; Glover v. Wells, 40 Uns. Co. V. Wetmore, 32 111. 221. 111. App. 353. ^ Ins. Co. V. Walsh, 54 IlL 164; */«s. Co. v. iJerre?/, 34 111. 46. Ins. Co. V. Hervey, 34 111. 46. « 7ns. Co. v. Eddy, 49 111. 106; Ins. 4 Ins. Co. V. Wetmore, 32 111. 221; Co. v. Brockway, 39 111. App. 43; Ins. Co. V. Hervey, 34 111. 46. and Ass'n v. Frohard, 33 111. App. 183; cases cited; Wilson v. Hakes, 36 Hecdey v. Ass'n, ISS III. 5QI; Ins. Co. V. Gordon, 121 111. 372. ASSUMPSIT. 141 This mode of declaring — alleging that the defendant prom- ised in the terms of a certain writing, and setting it out in hceo verba — is sufficient,' and has some advantages where the con- tract is of the vexatious length and complexity usual in policies of insurance. The principal Illinois authorities on the subject of Jlre,^ ' Man. & Gr. 709; 16 A. & E. N. S. 90; 1 Freeman's PI. 476; Ins. Co. V. Rogers, 119 111. 474. Uns. Co. V. a Neil, 13 111. 89; Nor- ton V. 7ns. Co., 16 111. 236; Ins. Co. V. Wright, 23 111. 462; Id. v. McCor- mick, 24 111. 455; Ins. Co. v. Staaden, 29 111. 38; Id. v. Frost, 37 111. 333; Id. V. Wolf, 37 lU. 354; Id. v. Schitter, 38 111. 166; Pomeroy v. Lis. Co., 40 111. 398; Schmidt v. Ins. Co., 41 lU. 295: Ins. Co. v. Stivers, 47 111. 86; Id. T. Botts, 47 111. 516; Ducat v. City, 48 lU. 172; 7ns. Co. v. Mark, 45 lU. 482; Id. V. Favorite, 49 111. 259; Id. V. Chestnut, 50 111. Ill; Id. v. 3Ic- Dowell, 50 111. 120; Id. v. Malloy, 50 IlL 419; Id. V. Ajiapow, 51 lU. 283; Id. V. Maguire, 51 111. 342; Honorev. Ins. Co., 51 111. 409; Ins. Co. v. Spankneble, 53 lU. 53; Id. v. Booner, 52 111. 442; Id. v. Huckberger, 53 111. 464; Keith v. 7ns. Co., 52 111. 518; 7ns. Co. V. Fix, 53 111. 151; Id. v. Holz- graf, 53 111. 516; Id. v. McGlesher, 54 lU. 513; Id. v. Eddy, 55 111. 213; 7A V. 7»-es, 56 111. 402; Id. v. Cooper, 60 III. 509; 7d. v. Hauselein, 60 III. 521; 7d. V. Tre6sfe/% 69 111. 392; Id. V. Fish, 71 111. 620; 7d. v. Farrish, 73 111. 166; Id. v. Barrington, 73 111. 230; 7d. v. Dunsmore, 75 111. 14; Edivard v. 7ns. Co., 74 111. 84; 7n.s. Co. V. Cor?/, 83 111. 453; 7ns. Co. v. A'eZson, 75 111. 548; Id. v. Padfleld, 78 111. 167; 7d. v. Shipman, 77 111. 189; Id. V. Johnson, 77 111. 598; 7d. V. iJttbm, 79 111. 402; Id. v. GonZd, SOUL 388; Id. v. Congr. 80 lU. 558; Id. V. Gunning. 81 111. 236; 7d. v. Roths- child, 82 111. 166; Id. v. Jackson, 83 111. 302; 7d. v. McGinnis, 87 111. 70; 7(7. V. IFeZZs, 89 111. 82; Id. v. Ward, 90 111. 545; 7d. v. Foster, 90 111. 121; Id. V. Htdman, 92 111. 145; 7d. v. i^osfer, 92 111. 334; Id. v. TncA-er, 92 111. 64; Johnson v. Ins. Co., 91 111. 92; 7ns. Co. Y.McKee, 94111. 494; 7ns. Co. V. OZco^f. 97 111. 439; Id. x. Chipp, 93 111. 96; Id. V. Scammon, 100 111. 644; Scammonw. Ins. Co., 101 111. 631; C. ^. Co. V. Scammon, 102 111. 46; 7ns. Co. V. Garland, 108 111. 220; Thomas V. 7ns. Co., 108 111. 91; SchroederY. Ins. Co., 109 lU. 157; 7ns. Co. v. Steiger, 109 111. 254; Id. v. ireaj-i/, 4 Bradw. 74; Id. v. Mann, 4 Bradw. 485; 7d. v. Clancey, 9 Bradw. 137; 7d. V. Wrenn, 11 Bradw. 242; W^. A. Co. V. Mason, 5 Bradw. 141; 7?is. Co. V. Grunert, 112 111. 72; C. M. Co. V. ^ss'n. Co., 118 111. 398; 7ns. Co. V. Barren, 114 111. 102; Id. v. Broivn, 123111. 356; 7d. v. Steiger, 124 111. 84; Schimp v. 7ns. Co., 124 111. 355; 7ns. Co. v. La Pointe, 118 111. 387; Id. V. Gordon. 121 111. 372: 7d. V. TTtcfc, 135 111. 363; Id. v. Cotton, 135 III. 135; 7d. v. Pulver, 136 111. 332; C. ^. Co. v. Scammon, 126 111. 360; 7ns. Co. v. Riiskman, 127 111. 372; Id. V. Kletoer, 129 111. 607; 7d. V. Cneefc, 130 111. 351; Id. v. PecA;, 133 111. 233; Id. v. Kinneard, 136 111. 201; 7d. V. Storig, 137 111. 651; Car- lock V. 7ns. Co., 138 111. 210; 7ns. Co. V. Brookivay, 138 111. 644; Id. V. iJace, 143 111. 338; Id. v. ^ef/ie/, U2 ASSUMPSIT. llfe^^ and accident '' insurance are given below. See also ob- servations under Form No. 154, post. MISCELLANEOUS DECLARATIONS IN ASSUMPSIT. Ko. 75. On jjromise to he accountable for goods sold to a third person. (Commence as in No. 24, ante, to the (*) then proceed:) For that, whereas, heretofore, to wit, on, etc., at, etc., in consideration that the plaintiff, at the special instance and request of the defendant, would sell and deliver to one O. P. on credit, all such goods as the said O. P. should have occasion for and require of the plaintiff in the way of the plaintiff's trade and business of a (inerchant), he, the defendant, undertook, and then and there promised the plaintiff to be accountable to the plaintiff for whatever goods the plaintiff should sell and deliver to the said O. P. as aforesaid; and the plaintiff avers that he, confiding in the said promise of the defendant, did, afterward, to wit, on, etc., at, etc., aforesaid, sell and deliver to the said O. P., on cer- 142 111. 537; Id. v. Scammon, 144 111, 490; Id. V. Stock, 149 111. 319; Id. v. Hodges, 149 lU. 298; Id. v, Pacand, 150 111. 245; Heuer v, Ins. Co., 151 111. 331; Piatt v. Ins. Co., 153 III, 113. >Ju.s. Co. V. Fennell, 49 111. 180; Foley V. McMahan, 73 111. 66; Ins. Co. V. Schlitz, 73 111. 586; Ins. Co. V. Hogan, 80 111. 35; Society v.Win- throp, 85 111. 537; Ins. Co. v. Gray, 91 111, 159; Id. V. Pierce, 75 111. 426; J^. V. Anderson, 77 111. 384; Id. v, 3Iudler, 77 111. 22; People v. Phelps, 78 111. 147; Ins. Co. v. Foote, 79 III, 361; Id. v. Warner, 80 111. 410; So- ciety V. Baldwin, 86 111. 479; Ins. Co. V. Palmer, 81 111. 88; Id. v. Baker, 85 111. 410; Id. v. Robinson, 98 111. 324; Lawrence v. Ins. Co. , 5 Bradw, 280; 7ns. Co. v, Latvrence, 8 Bradw, 488; St. C. Co. v. Fielsom, 97 111. 474; Ins. Co. v. Wecic, 9. Bradw. 358; Id. V. Paul, 10 Bradw. 431; Glanz V. Gloeckler, 104 111. 573; Johnson v. Van Epps, 110 111. 551; Ass'n V. Hoffman, 110 111. 603; Miller V. Ins. Co., 110 111. 102; Martin- v. Stubbings, 126 lU. 399; Ass'n v. Blue, 120111. 123; 7ns. Co. v. Rogers, 119 111. 478; Ins. Co. v. American, 119 111. 331; Pinneo v, Goodspeed, 120 111. 529; Cov. Ass'n v. Sears, 114 111. 110; Ass'nx.Hall, 118 111. 171; Hayes v. Ins. Co., 125 111. 626; A', of H. V. Dalberg, 138 111. 508; Alex- ander V. Parker, 144 111. 355; A. O. U. W. V. Belcham, 145 111. 308; Hansen v, K. of H, 140 111. 301; Ass'n V, Robinson, 147 111. 138; Id. v, Lommis, 142 111. 560; Id. v. Mueller, 151 m. 254. ^Acc. Ass'n V, Tuggles, 138 111. 428; Id. V. Taylor, 42 111. App. 97; Id. V, Wanner, 24 111, App. 357; Id. V, Frohard, 134 111, 228; Ben. Ass'n V, Sears, 114 111. 108; Lodge v. Cohn, 20 Bradw. 335; Supjnger v. Ben. A.ss'n, 20 Bradw. 599; Beii Ass'n v. Sears, 114 111, 536; Ace. Ass'n v. 3Iiller, 26 111, App, 230; Id. v, Reil, 38 111. App. 425; Healey v. Ace. Ass'n, 133 111, 560; 7ns, Co. v. Etten, 40 111. App. 233; Ace. Ass'n v. Mil- liard, 43 111, App, 148; Id. v, Kelsey, 46 111. App. 371; Getman v. 7jis. Co., 46 111. App. 489; Shaffers. Ins. Co., 31 111. App. 113; Ace. Ass. v, Stoiie, 50 111. App. 222; Id. v. Sanford, 50 111. App. 424; Mueller v. ,4cc, ^ss'n, 51 111, App, 40. ASSUMPSIT. 143 tain credit, then and there agreed upon between the plaintiff and the said O. P.. to wit, months, certain goods of great value, wliich he, the said O. P. , then and there had occasion for and required in the way of the plaintiff's said trade and business, and at and for certain reasonable prices then and there agreed upon by and between the plaintiff and the said O. P., amounting in the whole to a large sum of money, to wit, the sum of dollars; and although the said credit, and the time of payment of the price of the said goods, by the said O. P. to the plaintiff, as aforesaid, hath long since elapsed, yet the said O. P. has not, although requested by the plaintiff so to do. as yet paid the said sum of dollars, or any part thereof, to the plaint- iff, but has hitherto neglected and refused, and still neglects and refuses so to do; of all which said premises the defendant afterward, to wit, on, etc., had notice; yet the defendant, not regarding his promise and undertaking, has not as yet accounted to the plaintiff, or paid him the said sum of money for the said goods, or any part thereof, although requested so to do; and has neglected and refused so to do; and the said sum of dollars still remains wholly due and unpaid to the plaintiff; to the damage of the plaintiff of dollars; and therefore he brings his suit, etc. E. F.. Attorney for Plaintiff. (Add copy of account sued on.) No. 79. Declaration on promise to pay money as difference in exchange of property. (Commence as in No. 24. ante, to the (*) aiid then proceed:) For that whereas, heretofore, to wit, on, etc., at, etc., in consideration that the plaintiff, at the special instance and request of the defendant, would deliver to the defendant, a certain (horse) of the plaintiff, of great value, to wit, etc., in exchange for a cei'tain (horse) of him, the defendant, the defendant undertook, and then and there promised the plaintiff to deliver the said (horse) of the defendant, to the plaintiff, and to pay the plaintiff a certain sum, to wit, the sum of • dollars, in exchange for the said (horse) of the plaintiff; and the plaintiff avers that he did, afterward, to wit, on the same day aforesaid, at the place aforesaid, deliver to the defendant the said (horse) of the plaintiff; and although the defendant, in part performance of his said promise and undertaking, did then and there deliver to the plaint- iff the said (horse) of the defendant, in exchange for the said (horse) of the plaintiff, yet the defendant, not further regarding his said promise and undertaking, has not, although often requested, as yet paid to the plaintiff the said sum of dollars, or any part thereof, but neglects and refuses BO to do, to the damage of the plaintiff of dollars; and therefore he brings his suit, etc. E. F. , Attorney for Plaintiff. No. SO. Declaration on auTitten contract for employment — Plaintiff dis- charged icithout cause. {Commence as in No. 24 ante, to the (*) and then proceed:) For that whereas, heretofore, to wit, on, etc., at, etc., the plaintiff then and there being a bookkeeper by occupation, and the defendant a merchant, by a 144 ASSUMPSIT. certain agreement in writing, then and there entered into between the plaintiff and defendant, the defendant agreed to, and did employ the plaint- iff to keep the books and accounts of the defendant connected with his said business as a merchant, for the period of years from the date of said contract; and the plaintiff then and there acce^ited the said emploj^ment, and in consideration thei'eof , the defendant then and there undertook and promised the plaintiff to pay him for such services the sum of dollars per annum, payable monthly; and the plaintiff further avers, that he then and there entered into the employment of the defendant as such book- keeper, and continued therein until on. etc., when the defendant, without any reasonable or just cause, discharged the plaintiff from such service and employment, and refused to allow the plaintiff to continue therein; and the plaintiff further avers that he has always been ready and willing and has offered the defendant to continue in the service of the defendant as aforesaid, and to perform all the duties required of him to be performed, according to the terms of said contract; and the plaintiff further avers that there is now due him from the defendant a large sum of money, to wit, the sum of dollars, being the amount due the plaintiff under said contract, from the date of his wrongful discharge as aforesaid, until, etc. And the plaintiff further avers that afterward, to wit, on, etc., he re- quested the defendant to pay him, the plaintiff, the said sum of money, but the defendant refused, and still refuses so to do; and the said sum of money remains wholly due and unpaid to the plaintiff; to the damage of the plaintiff of dollars, and therefore he brings his suit, etc. E. F., Attorney for Plaintiff. {Addcopij of contract sued on.) No. 81. Declaration on a verbal contract of employment — Plaintiff dis- charged unthout cause. {Commence as in No. 24 , ante, to the (*) a7id then proceed : ) For that whereas, heretofore, to wit, on, etc., at etc., the defendant then and there being a merchant, and the plaintiff a salesman, in consideration that the plaintiff would enter into the employment of the defendant as such sales- man, the defendant then and there undertook and promised the plaintiff to employ him as such salesman, for the period of one 3'ear from said date; and to pay him, the plaintiff, for such services the sura of dollars, to be paid in monthly installments of dollars each, at the end of each and every month: and the plaintiff, in consideration of such employment and salary to be paid, on, etc., entered into the service of the defendant as such salesman, and continued therein until, on, etc., when the defendant, without any reasonable cause, wrongfully discharged the plaintiff from his said service, and refused to permit the plaintiff to complete his contract for service as aforesaid; and the plaintiff further avers, that at the time of his discharge, and from thence until the expiration of the period of his employ- ment, he was ready, able and willing to perform the duties of such service for the defendant, and in every respect to comply with the terms of said contract with the defendant; and the plaintiff further avers that by reason ASSUMPSIT. 145 of the premises the defendant became liable to pay the plaintiff the full amount of the salary so promised to be paid for the full period of one year, and that there is now due from the defendant to the plaintiff, under said contract, a large sum of money, to wit, dollars, and although often requested, the defendant refuses to pay the same, or any part thereof, to the plaintiff; and the said simi of money remains due and unpaid to the plaintiff; to the damage of the plaintiff of dollars; and therefore he brings his suit, etc. E.F., Attorney for Plaintiff. (Add copy of account sued on. Coviinon counts may also be added.) 10 CHAPTER V. DEFENSES TO THE ACTION OF ASSUMPSIT. THE GENERAL ISSUE. The most usual plea by way of traverse, in the action of as- sumpsit, is what is called the general issue — non assumjysit — which imports a general denial of all the material allegations in the declaration. The declaration in an action of assumpsit states that the de- fendant, upon a certain consideration set forth, made a certain promise to the plaintiff. The plea of 7ion,-assumj)sit, or gen- eral issue, states that the defendant "did not promise in man- ner and form," etc. It would seem at first glance that this only put in issue the promise as alleged in the declaration. A much wider effect, however, is given to this plea. The law will always imply a promise in consideration of an existing debt or liability; and this action may consequently, as we have seen, be founded upon an implied promise, as well as upon one ex- pressed. When the promise relied on is an implied one, and the plea of non-assumpsit is interposed, the plaintiff must prove on the trial the liability from which the implied prom- ise arises; and in such case it is proper that the defendant should, under his plea denying the promise, be permitted to show any circumstance by which the liability is disproved. This plea puts in issue the contract or promise, as stated in the plaintiff's declaration, and enables the defendant to show that he never in fact contracted at all; and also, that he did not contract in the manner stated in the declaration, and thus to take advantage of any material variance. A special plea which simply traverses a portion of the facts which the plaintiff is bound to prove in order to establish prima facie a right to recover under his declaration, is bad as (146) DEFENSES TO THE ACTION OF ASSUMPSIT. 147 amounting to the general issue; ^ and when the general issue and special pleas are pleaded, and the matter of the special pleas can be given in evidence under the general issue, the special pleas are obnoxious to a special demurrer,^ and may be stricken from the files,^ even after a general demurrer thereto has been overruled.* The plea of the general issue compels the plaintiff to prove every essential averment in his declaration that goes to make up the liability of the defendant.^ Under this plea, however, the character in which the plaintiff sues is admitted.® If the suit is brought by a corporation, the defendant, by pleading the general issue, admits the plaintiff's right and capacity to sue; if he wishes to deny the existence of the corporation, he should put in a plea for that purpose.'' It can not be put in issue by the general issue and notice denying that the plaintiff is a corporation.^ Evidence tending to prove payment may be given in evi- dence under the general issue,' but evidence of set-off can not be.'" If the fact of usury appears by the declaration, it need not be specially pleaded;" and the same is true in some cases of the defense of the statute of limitations." The non-joinder of a party as plaintiff may also be shown under the general issue." When the defendant desires to put in issue the execution of a note, or other instrument specially declared on, it would 1 Kroebel v. Kircher, 33111. 308; R. Linville v. Earlyxnne, 4 Blackf.469 R. Co. V. Johnson, 34 111. 389; John- Freeman v. Mill Co., 38 Maine 343 sonv. UnwersiYy, 35 111. 518. McNulta v, LocA;r?dge, 137 III. 270 2 Manny v. Rixford, 44 111. 129; ' Mclntire v. Preston, 5 Gilm. 48 Ogden v. Lucas, 48 111. 492; Wad- McNulta v. Lockridge, 137 111. 270 hams V. Simn, 109 111. 47; Edwards Freeman v. Mill Co., 38 Maine 343. V. Tnistees, 30 111. App. 531. 8 Bailey v. Bank, 127 111. 332. ^ Manny \. Rixford, 44 111. 129; ^ CreicsY. Bleakley. Will 21: Gray Oovernor v. Lagow, 43 111. 134. v. Tunstall, 1 Hemp. 558; 1 Chit. *R. R. Co. V. Johnson, 34 111. 389, PI. 418-20. * Diuiley v. Sumner, 5 Mass, 438; '" Kennard v. Secor, 57 111. App. R. R. Co. V. Brotcn, 23111, 94; Gay 415. V. Keys, 30 111. 413; Conant v. Grif- " Drake v. Latham, 50 111. 270. fin, 48 111. 410; see Governor v, '^ Thomi^son v. Reed, 48 III, 118. Lagow, 43 111. 134. '^ Henrichsenv. Miidd, 33 111. 47G; ® McKinley v. Braden, 1 Scam, 64; Dement v. Rokker, 126 111. 191. 148 DEFENSES TO THE ACTION OF ASSUMPSIT. seera that the plea of non-asstimjysit^ verified by affidavit, is the proper plea under the statute of Illinois.' It is not competent under the general issue to show a total or partial failure of the consideration of a promissory note." In a suit by an agent against his principal, for services performed, the defendant may under the general issue show gross misconduct, fraud, negligence and unskillfulness on the part of the plaintiff in the performance of his duties, and thus defeat his right to compensation.^ Under the general issue in assumpsit, the defendant's covert- ure at the time of making the contract may be given in evi- dence.* Damages for delay in completing work under a con- tract may be recouped under the general issue.^ Recoupment is permissible under the general issue, in a suit for the price of an article sold, where there was a warranty of the article and the evidence shows a breach of the warranty.* No. 82. Plea of non-assumpsit. In the Court. Term, 18—. C. D. ) s. V. ats. V Assumpsit. A. B. ) And the defendant, by E. F., his attorney, comes and defends the wrong and injury wlien. etc., and says that he did not promise in manner and form as the plaintiff has above thereof complained against him; and of this he puts himself upon the country, etc. 1 Hinton v. Husbands. 3 Scam. eott v.White, 18 111. App. 322; Har- 187; Warren v. Chambers, 12 111. vey v. Cook, 24 111. App. 134. 124; SJmfeldt x. Seymour, 21 111. 524; ^ Streeter v. Streeter, 43 111. 155; 1 see Stevenson v. Farnsworth, 2 Gilm. Chit. PI. 388, 417. 715; Hunt v. Weir, 29 111. 83; Mur- ^ Cook v. Preble, 80 III. 381; Maijer chie V. PecJc, 57 111. App. 396; Will- v. Mitchell, 59 111. App. 26. iams V. Pow. Co., 36 111. App. 107; « Higgins v. Lee, 16 111.495; Bah- By. Co. V. Carson. 51 111. App. 552; cock v. Trice, 18 111. 420; Hears v. Renting Co. v. Hutchinson, 25 111. Nicols. 41 111. 207; Hutt v. Burck- App. 476. man, 55 111. 441; Murry v. Carlin, 2 Rose V. Mortimer, 17 111. 475; 67 111. 286; Cook v. Preble, 80 111. Keith V. Mafit, 38 111. 303; Swain v. 381; Wadhams v. Swan, 109 111. 46; Caioood, 2 Scam. 505; Leggat v. Tidly v. Ron Works, 115 lU. 544; Sands, 60 111. 158; Schroier v. Wes- McCormick v. Robinson, 60 111. sel, 89 111. 113. App. 253; Underwood v. Wolf, 131 3 Denew v. Deverell, 3 Camp. 451; 111. 425. Dodge v. Trilsen, 12 Pick. 328; Pres- DEFENSES TO THE ACTION OF ASSUMPSIT. 149 AFFIDAVIT OF MERITS. In Illinois, were the plaintiff files with his declaration an affidavit of his claim, the defendant must file with his plea an affidavit of merits; ' and for want of such affidavit the plea will be stricken from the files.' If the affidavit is defective, the court, in its discretion, may grant leave to amend, upon terms, such as showing a meritorious defense.'' ThQ statute has not made it obligatory on the defendant to set out in de- tail his defense in an affidavit of merits filed with his pleas.' An affidavit which states that the defendant has a good and valid defense to the whole of the plaintiff's demand upon the merits, as he verily believes, is a sufficient compliance with the requirements of the statute. If it meets all the substantial requirements of the statute it will be sufficient, although not in its precise words." The evident purpose of the statute is to facilitate the collec- tion of debts, by cutting off pleas which are without foundation in fact, and are interposed merely for delay. If the defendant attempts to state the facts of his defense, and the}^ are insuffi- cient, the affidavit will be bad, and may be stricken from the files.' No. 83. Affidavit of merits, to he filed with plea. {Title of court and cause.) C. D. makes oath and says that he is the defendant in the above entitled cause, and that he verily believes that he has a good defense to this suit, upon the merits, to (*) the whole of the plaintiff's demand. C. D. (Add jurat.) ' Rev. Stat. (1893), 1076; Rev. Stat. v. Crooker, 83 111. 556; C^dver v. (1895), 1160; 2 Starr & Curtis 1801; Johnson, 90 111. 91. Kassings v. Griffith, 86 111. 265; * Beardsley v. Gosling, 86 111. 58; Honore v. Bank, 80 111. 489. Hayes v. Loomis, 84 111. 18; Wads- ^ Filkins v. Byrne, 72 111. 101; tcorth y. Bank. 84 HI. 272; McCor- Bank v. Hull, 74 111. 106; Goldie v. viick v. Wells, 83 111. 239. McDonald, 78 111. 605; Coursen v. * Harrison v. Willett, 79 111. 482; Browning, 86 111. 57; Braidicood v. Stuber v. Schack, 83 111. 191; McCor- Weiller, 89 ill. 606; Bailey v. Bank, mick v. Wells, 83 111. 239; Hayes v. 127 111.332; Truesdell y. Hunter, 2S Loomis, 84 111. 18; Wadsicorth v. 111. App. 292. Bank, 84 111. 272. ^McKichan v. Follett, 87 111. 103; ^Stuber v. Shack. 83 111. 191; Mc- Hays V. Loomis, 84 111. 18; McCord Cord v. Crooker, 83 111. 556. 150 DEFENSES TO THE ACTION OF ASSUMPSIT. The affidavit may be sworn to by one of several defendants pleading jointly.' If the defense is to a part only of the de- mand, the affidavit may be as in the above form to the asterisk, and will then proceed thus : " a part of the plaintiff's demand, which said part amounts to dollars, accoi'ding to the best of his judgment and belief." An affidavit stating that the defendant has a good defense as to all of the plaintiff's demand, except a certain sum named, is a virtual admission that the sum thus excepted is due to the plaintiff.' And he may take judgment therefor, regardless of pleas to the whole cause of action.' GENERAL ISSUE, WITH NOTICE OF SPECIAL MATTERS. The statute of Illinois provides that " the defendant may plead as many matters of fact in several pleas as he may deem necessary for his defense, or may plead the general issue, and give notice in writing under the same of the special matters intended to be relied on for a defense on the trial; under which notice, if adjudged by the court to be sufficiently clear and ex- plicit, the defendant shall be permitted to give evidence of the facts therein stated, as if the same had been specially pleaded, and issue taken thereon;" and that " the defendant in any ac- tion brought u])on any contract or agreement, either expressed or implied, having claims or demands against the plaintiff in such action, may plead the same, or give notice thereof under the general issue, or under the plea of payment." Such notice relieves the defendant of the necessity of plead- ing specially any facts not provable under the general issue, and to introduce evidence in their support, if material and ex- plicitly stated, as if the same had been specially pleaded. The court, on the trial, must determine the materiality of the facts stated. But in no sense does the notice take the place of the general issue, or the plea of no7i est factum, or the like plea." •SHn77iv. Bafeman, 79111. 531. v. Watt, 69 111. 655; Haggard v. •^ Williams v. Reynolds, 86 111. 263. Smith, 71 111. 226. ^ Henry v. 31. Co., 83 III. 461; May- ^Rev. Stat. (1893), 1075; Rev. Stat. berry v. Van Horn, 83 111. 289; Allen (1895), 1159; 2 Starr & Curtis 1789. ^Bailey v. Bank, 127 111. 333. DEFENSES TO THE ACTION OF ASSUMPSIT. 151 No. S4. Notice of set-off, under general issue. In the Court. CD.) ats. y Assumpsit. A. B. ) The plaintiff will take notice that on the trial of this cause the defend-: ant will give in evidence, and insist, that the plaintiff was before and at the time of the commencenaent of this suit, and still is, indebted to the de- fendant in the sum of dollars, for {here state tJie matter or matters of set-off, precisely as in a plea; demands such as would be recoverable under common counts may be set forth as in such counts, or as in the con- solidated common counts;) and that on such trial the defendant will set off and allow to the plaintiff, against any demand on his part to be proved on such trial, so much of the said sum {or ' ' sums ") of money so due from him to the defendant as will be sufficient to satisfy and discharge such de- mand. Dated this day of , 18 — . E. F., Attorney for Defendant. The commencement of this form may be used in notices of any other matters of defense. In practice, the notice is writ- ten by the pleader at the foot of the plea or pleas, and is not served on the plaintiff. It is said that the notice of set-off should, in point of form, be as certain as a declaration.' By the statute of Illinois, the defendant is required to file with his plea or notice of set-off a copy of the instrument or account upon which he intends to rely. After such plea or notice has been interposed, the plaintiff can not dismiss his suit without the consent of the defendant, or leave of the court.^ It is only when evidence is offered under a notice, that the suiSciency of the notice can be tested; and if the matters stated therein do not constitute a defense to the action, the evi- dence offered will be excluded. No issue of law or fact can be formed on the notice,^ It is strongly intimated, however, in one of the cases noted (29 111. 83), that the sufficiency of the notice is a preliminary question, which ought to be raised hj demurrer. > Bui. Ni. Pri. 179. v. Weir, 29 111. 83; Miller v. Miller, 2 Rev. Stat. (1893), 1075; Rev. Stat. 16 111. 296; Whitehall v. Smith, 24 (1895), 1159; Starr & Curtis 1797; 111. 166; Bailey v. Bank, 127 III. 332; Sav. Inst. V. Brocksmith, 72 111. 370. Tottleben v. Blankmship, 58 111. * Burgwin v. Bahcock, 11 111. 28; App. 47. Sherman V. Dutch, 16 111. 283; Hunt 152 DEFENSES TO THE ACTION OF ASSUMPSIT. Where a notice filed with the general issue is inconsistent, or indefinite and uncertain, it may be stricken from the files.' A special notice should apprise the plaintiff with reasonable certainty of the matter of defense, so that he may not be taken by surprise on the trial." The general issue, with notice of special matter, and special pleas, can not be pleaded at the same time; and if this is at- tempted to be done, the pleas may be stricken from the files.^ A partial failure of consideration can not be given in evidence under the general issue and a notice of set-off and of total failure of consideration.* When the general issue is pleaded, with a notice of special matter to be proved on the trial, if such special matter goes to the denial of the execution of a note sued on, the evidence offered to establish this fact will be inadmissible. Such a de- fense must be by plea, verified by oath. PLEA OF STATUTE OF LIMITATIONS. At present the statute of Illinois (act of 1872) requires all suits on unwritten contracts, expressed or implied, to be brought within five years, and all suits on written contracts or other evi- dences of debt within ten years, after the accruing of the respect- ive causes of action. If any payment or new promise is made, in writing, on any such written contract or evidence of debt, within or after such period of ten years, an action may be com- menced thereon at any time within ten years after such pay- ment or promise. If the person entitled to bring a personal action is an infant or insane, or imprisoned on a criminal charge, at the time of the accruing of the cause of action, the suit may be brought within two years after the disability is removed. And if a person liable to an action fraudulently conceals the cause of such action from the person entitled thereto, the action may be commenced at any time within five years after the person entitled to bring the same discovers that he has such cause of action.* ^ Henrichsen y. 3Iudd, 33 111. 476. ^Rev. Stat. (1893), 941: Rev. Stat. 2 Rosenburg v. Angell, 6 Mich. 508. (1895), 1003; Starr & Curtis 1553-3; 3 Gilmore v. Noidaiid, 36 111. 300. Knight v. Ry. Co., 141 111. 110. * Swain v. Cawood, 3 Scam. 505. DEFENSES TO THE ACTION OF ASSUMPSIT. 153 Actions for a statutory penalty must be commenced within two years next after the cause of action accrued.' Five years is the period of limitation in Illinois, to an action on a judg- ment obtained in another state.^ The limitation law in force when the cause of action accrues is the law which governs as to the time within which the action must be brought.' The statute of limitations must be specially pleaded to all actions of a personal nature.* The statute may be interposed by demur- rer when the declaration or petition discloses the proper facts to raise the question.^ Under the former law of Illinois, in respect to personal ac- tions, if a person against whom there was a cause of action was out of the state, either at the time of the accruing of such cause or afterward (within the time limited), so that process could not be served on him, the statute ceased to run for the time of his absence, whether he had removed absolutely or was merely absent temporarily." The present statute (in force on and since July 1, 1S73) pro- vides, that "if, when the cause of action accrues against a person, he is out of the state, the action may be commenced within the times herein limited after his coming into or re- turn to the state; and if, after the cause of action accrues, he departs from and resides out of the state, the time of his absence is no part of the time limited for the commencement of the action." ' Municipal corporations are not within the operation of the statute of limitations, as respects public rights, although the 1 Gridley v. Barnes, 103 111. 211. 111. 397; R. R, Co. v. Glenney, 28 111. ^Ambler v. Whi2?ple, 139 lU. Sll; App. 364. Bobbv. Anderson, 43 111. App. 575. ^County v. Com., 52111. 454; Ilett ^Beesley v. Spencer, 25 111. 216; v. Collins, 103 111. 74; Bank v. Jen- Garrison V. People, 87 111. 96; Dick- kins, 104 111. 143; Bell v. Johnson, insonv. R. R. Co., 77 111. 331; Hy- 111 III. 374; PeopZe v. £o?/d, 132 111. 6o! man v. Bayne, 83 lU. 256; Univer- ^Vanlandingham v. Huston, 4 sity V. Weer, 21 111. App. 29; Tilton Gilm. 125; Chenotv. Lefevre, 3Gilm. V. Yount, 28 111. App. 580; McMullen 637. V. McCormick, 117 111. 83; Wooley ^2 Starr & Curtis 1556; Rev. Stat. x.Yarnell,U2m.U2;Druryv.Hen- (1893), 941; Rev. Stat. (1895), 1003; derson, 143 111. 315. see Pellsv. Snell, 130 111. 379; Wooley * 1 Chit. PI. 420; Burnap v. Wright, v. Yarndl, 142 111. 443. 14 111. 303; Gebhart v. Ada7ns, 23 15J: DEFENSES TO THE ACTION OF ASSUMPSIT. rule is different as to contracts, or mere private rights,' Wliere a statute of limitations begins to run, it will continue to run until it operates as a complete bar, unless there is some saving- clause or qualification in the statute itself." Cases within the reason, but not within the words of the statute, are not barred by it,^ and it will not be applied to cases not clearly within its provisions.* Where separate causes of action are set up in separate counts and the defendant pleads the statute to the whole declaration, the plaintiff is entitled to recover if one of the causes of action is not within the bar.* The death of the debtor Avill not stop the running of the statute." Where all the items of an open unliquidated account are on one side, the last item which happens to be within six years, will liot draw after it those that are of longer standing, so as to protect them from the operation of the statute of lim- itations.' When the statute begins to run. — The statute of limita- tions begins to run when the cause of action accrues.' Where an action barred by limitation is revived by a new promise to pay, an immediate right of action will arise therefrom, and the statute of limitations in force at that date will apply and fix the time within which such right of action may be enforced by the courts." If a suit is brought to recover for services, and amounts have been paid from time to time on the services, 1 Catlett V. People, 151 111. 16; Thompson v. Reed, 48 111. 119; People V. Oran, 121 111. 650. Eeevesv. Herr, 59 III. App. 81. '^ People Y. White, \l\\\.M2; Peoria ^ Shelburne v. Robinson, 3 Gilm. Co.r. Gordon, 83 111. 435. 597; Thompson v. Reed, 48 111. 118; 3 Bedell v. Janney, 4 Gilm. 194; Collins v. Thayer, 74 111. 138; Coch- Dawdy v. Nelson, 12 Bradw. 74; ranv. Oliver, 1 Bradw. IIQ; Daicdy McClintic v. Layman, 12 Bradw. v. Nelso7i, 12 Brad, 74; Dugan v. 356_ Follett, 100 111. 581; Selleek v. Selleck * Hazell V. Shelby, 11 111. 9. 107 111. 389; McConnell v. Kebbe, 33 nChit. PI. 546; Perkins v. Bur- HI. 175; M. D. Co. v. Topping, 89 6a.?ifc. 2 Mass. %l;Penna Co. v. Sloan, HI. 65; Schillo v. McEicen, 90 111. 125 111. 72, ''"''; Emmons v. Moore, 85 111. 304; ^ Baker v. Broion, 18 111. 91; Peo- Dickerson v, Merriman, 100 111, 342: pie V. '[Miite, 11 111. 350; Shelburn v. Ry. Co. v, Jenkins, 103 111. 588; Robinson, 3 Gilm. 598; Bonney v. Rentchler v. Kunkelman, 17 Bradw. Stoughton, 122 III. 536; see Pinkney 343; Sttppiger v. Gniaz, 137 111. 216. V. Pmfcne?/, 61 111. App. 525. ^ Drnry v. Henderson, 143 111. ' Kimball v, Broivn, 7 Wend. 322; 315. DEFENSES TO THE ACTION OF ASSUMPSIT. 155 the statute does not begin to run until the date of the last pay- ment/ When one continuous piece of work, consisting of a number of parts or items, is to be performed, the statute of limitations does not begin to run upon the completion of each separate part or item but upon the completion of the whole. If the several items are merely parts of one transaction, the statute begins to run from the date of the last item.^ The statute bemns to run against an assessment by a corporation upon its stock- holders at the date of the assessment,^ In a case where some act is to be done, or condition precedent to be performed, by a party, to entitle him to his right to sue, and no definite time is fixed at which the act is to be done or condition performed, he must exercise a reasonable diligence to do the one or per- form the other, or he w^ill be barred by the statute of limita- tions.* To support a plea of the statute of limitations to a new^ count, where such plea will not lie to the original declaration, it must appear that the new count introduces into the case a cause of action which is substantially and essentially new. If a new^ count merely tells the same story in a different w^ay, or is a mere amplification or more specific statement of the cause of action already declared upon, the plea can not be sustained.^ Where no new cause of action is introduced, courts will allow amendments liberally for the purpose of avoiding the running of the statute.*^ New promise. — The promise to pay a debt barred by the statute only removes the bar, and leaves the case to be proved as if no statute had been pleaded,' An acknowledgment that the original debt once existed is not sufficient to take the case ^Miller v. Cinnamon, 61 111. App. Phelps, 4 Bradw. 238; Fish v. Far- 429, well, 54 111. App. 457; R. R. Co. v. 2 aBrien v. Sexton, 140 111. 517, Jones, 149 111. 361; Blanchard v. Ry. ^Tel. Co. V, Barker, 56 111. App, Co., 126 III. 416; Ry. Co. v.Henne- 402. berry, 153 111. 354. * Shelburne v. Robinson, 3 Gilm. * McDowell v. Toicns, 90 111, 359; 597, Coal Co. v. Taylor, 81 111. 590; Ins. 5 R. R. Co. V. Trayes, 17 Bradw. Co. v. Mueller, 77 111. 22; Challenor 136; Mill Co. v, Monka. 107 111. 340; v, Niles, 78 111. 78, Pheljis V. R. R.Co., 94 111. 548; I. C. ' Kimmell v. Schicartz, Breese 278; Co. V, Cobb, 64 111. 128; R. R. Co. v. Teessen v. Camblin, 1 Bradw, 424. 156 DEFENSES TO THE ACTION OF ASSUMPSIT. out of the statute, but there must be an unqualified admission that the debt is due and unpaid,' and an intention evinced to pay it.^ To take the case out of the statute of limitations the new promise must be made to the party seeking its benefit, or to some one authorized to act for him. A promise to a stranger is insufficient.' If a maker of a note maices a partial payment thereon, the law implies a new promise to pay the balance. But this new promise can only be implied where the maker designedly makes a payment on the note. If the holder in- dorses a credit without authority from the debtor, it will not impose upon him the obligation of a new promise.* There must be an unqualified acknowledgment of the debt; a promise to pay on a contingency which has not happened is not sufficient." A promise by the defendant that he will set- tle with the plaintiff as soon as he gets the money for certain work, is a conditional promise, and can neither serve for the foundation of an action nor be taken as a waiver of the stat- ute of limitations, without at least proving that the defendant received the money for the work.' In order to revive a debt barred by the statute of limita- tions, where the cause of action has accrued after the act of April 4, 1872, took effect, the new promise must be in writ- ing.' The requirement that the payment or new promise ^Wetzell V. Bussard, 11 Wheat. ^Loioery v. Gear, 22 III S82; Pease 309; Bell v. Morrisoyi, 1 Peters 360; v. Catlin, 1 Bradw. 88; Ditch v. Ayers y. Richards, \2\\\.\i&; Bangs Vollhardt, 83 111, 134; Connelly \. V. Hall, 2 Pick. 368; Waldron v. Pierson, 4 Gilm. 108; Simmons v. Alexander, 136 111. 550. Aelson, 48 111. App. 520. ^Qiiayle v. Guild, 91 111. 878; ^ Dickerson \. Sutton, 10 111. 40S; Keener v. Cridl, 19 111. 189; Norton Cagivin v. Ball, 2 Bradw. 70; Hay- V. Colby, 52 111. 198; Wooters v. tcard v. Gunn, 4 Bradw. 161; Kal- King, 54 111. 343; Wachter v. Albee, lenbach v. Dickenson, 100 111. 427; 80 111. 47; Mandel v. Gundershimer, Bassett v. Noble, 15 Bradw. 360; 61 111. App. 333. Horner v. Starkey, 27 111. 13: Sen- 3 Keener v. Cndl, 19 111. 189; Tees- nott v. Horner, 30 111. 429; Patter- sen V, Camblin, 1 Bradw. 424; son v. Collar, 31 111. App. 348; Mur- Wachter v. Albee, 80 111. 47; McGrew phy v, Holimy, 25 111. App. 554. V. Forsythe, 80 111. 596; Carroll v. ^ Mtdlet v. Strumph, 27 111. 107; Forsythe, 69 111. 127; Bloomfield v. Murphy v. Hohcay, 25 111. App. 554. Bloomfield, 7 Bradw. 261; Katz v. ''Robinson v. Brisco, 55 111. App. Moessinger, 7 Bradw, 536; Patterson 131; Ziegler v. Tennery, 23 111. App. V, Collar, 31 111. App, 848, 133; Baldwin v, Baldwin, 26 111, DEFENSES TO THE ACTION OF ASSUMPSIT. 157 shall be " in writing" does not apply so far as to require the evidence of it to be so preserved, and the words " in writing " have reference alone to the specified new promise to pay.^ An admission of the indebtedness will take the case out of the statute, although the amount of the indebtedness is not fixed.^ A verbal promise to pay a note previously given has the same effect, as regards the statute of limitation, as a re-delivery of the note, and the note is good for the same period that it would be if it were dated on the day of the new promise.'^ One joint debtor can not, by a partial payment, made without knowledge, assent, or subsequent ratification by the other, bind the latter so as to authorize the inference of a new prom- ise on his part, and avoid the effect of the statute of limita- tions/ To take a case out of the statute by a partial payment it must appear that the payment was made on account of the debt for which the action is brought; ^ and there must be proof that such payment was made by the defendant.^ The acknowl- edgment of a debt, in order to take it out of the statute, must clearly refer to the very debt in question between the parties/ On foreclosure of mortgage.— Section 11 and section 16 of the limitation law are to be construed together. The effect of the former section, when so construed, is the same as the law implied before its passage, that is, that the period of lim- itation which bars the debt bars also the mortgage or deed of trust securing the same.* No. 85. Plea of the statute of limitations. {If pleaded as a first plea, commence as indicated in the observation under this form; if as a second or subsequent plea, commence as follows:) And for a further plea in this behalf, the defendant says that the plaintiff ought not App. 177; Honn v. Pinnell, 61 111. ^ Lowery x. Gear, 32 111. 382; City App. 187; Davis v. Mann, 43 111. v. Hunter, 10 Bradw. 230. App. 301.- ^Loivery v. Gear, 32 111. 382; Kal- ^Bou-les V. Keator, 47 111. App. 98. lenbach v. Dickinso7i, 100 111.427. " Schmidt v. Pfau, 114 111. 495; see ' Clarke v. Dutcher, 9 Cowen, Neustacher v. Schmidt, 25 111. App. 674. 626. ^ Schifferstein v. Allison, 123 111. ^Sennottv. Horner, 50 m. 429. 662; Waughop v. Barflett, 61 111. * Boynton V. S2:>afford, Ql III. App. App. 252; Harris v. Hills, 28 III. 384; Kallenbach v. Dickenson, 100 44; Gilbert v. Guptill, 34 111. 112. 111. 427. 158 DEFENSES TO THE ACTION OF ASSUMPSIT. to have his aforesaid action a^i^ain^t liiiii, the defendant, because he says (*) that the several supposed causes of action in the said dechiration men- tioned did not, nor did any or either of them, accrue to the plaintiff at any time within five years next bMfore the commencement of tliis suit, in nianner and form as the plaintiff has abo.'e complained against him, the defendant: And this the defendant is ready to verify; wherefore he prays judgment if the plaintiff ought to have his aforesaid judgment against him, etc. K first plea, when special^ commences (after the title of the court, etc.) in this manner: "And the defendant, by G. H., his attorney, comes and defends the wrong and injury, when, etc., and says that the plaintiff ought not to have his aforesaid action," etc. The above form of the plea of the statute of limitations {cictio non accrevit, etc.,) is necessary whenever it is desired to plead that defense to a declaration containing a count on a cause of action Avhich did not accrue until after the making of the contract — as on a promissory note, for example; and it will suffice in all cases, though in indehitatiis assumpsit, and in other instances where the statute begins to run from the time of the promise, it is proper to plead that the defendant did not at any time within five years, etc., promise, etc. {non assumpsit, infra, etc.y The italicized words, to the ■plaintiff, are to be omitted in actions at the suit of executors, etc. No. 86. Replication to No. S5 — Causes of action did accrue within five years. (Similiter to general i^^ne, if pleaded, as ante, No. 10; if not, entitle first replication as in that form.) And the plaintiff, as to the plea of the defend- ant by him secondly auove pleaded, says that he, the plaintiff, by reason of anything in that plea alleged, ought not to be barred from having his afore- said action, because he says (*) that the said several causes of action, and each and every of them, did accrue to him within five years next before the commencement of this suit, in manner and form as he has above complained against the defendant : And this the plaintiff prays may be inquired of by the country, etc. Under this replication the plaintiff may not only show that the cause of action did accrue within five years, but may prove a promise or acknowledgment made after the accruing of the orio-inal cause of action, and within the time limited by the 1 3 Chit. PL 940, 941, notes; Leaper v. Tatton, 16 East 421. DEFENSES TO THE ACTION OF ASSUMPSIT. 159 statute;' though it is said a special replication is in general advisable, because it reduces the proof to be adduced by the plaintiff on the trial.'' No. 8S. Replication to No. 85. Defendant was out of the state when causes of action accrued. (As in No. 86, to the asteHslc, and then proceed :) that the defendant, at the time when the said several causes of action accrued to the plaintiff, was out of this state, to wit, at , in ; and that he, the defendant, after- ward, to wit, on etc., returned to this state; which said return of the de- fendant was his first return to this state after the accruing of the several causes of action aforesaid: And the plaintiff further says, that he com- menced his said action within five years next after the defendant's first re- turn as aforesaid to this state after the accruing of the said several causes of action. And this the plaintiff is ready to verify; wherefore he prays judg- ments, and his damages, etc., to be adjudged, to him, etc. The plaintiff may (in Illinois) also reply that after the cause of action accrued, the defendant departed from and resided out of the state, etc' No. 89. Rejoinder to No. 88, denying that action was commenced uiithin five years after defendaiifs return, etc. (Similiter as ante. No. 87, to any replication or replications there may he, concluding to the country. If none, entitle first rejoinder as in that form.) And the defendant, as to the said replication of the plaintiff to the said second plea of the defendant, says that the plaintiff ought not, by reason of anything in that replication alleged, to have his aforesaid action against him, the defendant, because he says (*) that the plaintiff did not commence his said action within five years next after the defendant's first return to this state after the accruing of the said several supposed causes of action, in manner and form as the plaintiff has above in that replication alleged: And of this the defendant puts himself upon the country, etc. The principal Illinois cases, not already cited, relating to limitations of personal actions, are noted below.* ' 1 Chit. PL 502; 2 Swan's PI. 699, c. Hedges v, Madison, 1 Gilm. 306; . 2 1 Chit, PI. 503. RhineJiardt v. Schuyler, 2 Gilm. 473; »Rev. Stat. (1893), 941; Rev. Stat. Rectory. Rector, d Gilm. 105; Thomp- (1895), 1003; 2 Starr & Curtis 1556. son v. Alexander, 11 111. 54; Burnap * Naughty. O'Neal, BreeseSGiBanh y. Marsh, 13 111. 535; Tnistees v. y.Brown,lScam.lOQ; Tufts y. Rice, Chamherlain, 14 111. 495; Ryan v. Breese 64; Wliite v. Hight, 1 Scam. Jones, 15 111. 1; Watt v. Kirhy, 15 111. 204; Watkins v. White, 3 Scam. 549; 200; Dunlap v. Buckingham, 16 111. 160 DEFENSES TO THE ACTION OF ASSUMPSIT. PLEA OF INFANCY. An infant becomes of full age on the day preceding the twenty-first anniversary of his birth/ and females are at their majority at eighteen, in Illinois." The implied contracts of an infant for necessaries are binding upon him.^ What are nec- essaries is determined by the court; whether furnished, and their value, by the jury." An infant is not liable for repairs on his dwelling house, although he made a contract therefor, and such repairs were necessary to prevent an immediate and seri- ous injury to the house." The note of an infant is not void, but voidable, and a prom- 109; King v. Hamilton, 16 111. 190; Walker V. Goodrich, 16111. 341; Bour- land V. Peoria, 16 111. 539; Baker v. Broivn, 18 111. 91; Stevenson v. West- fall, 18 111. 209; Van Alstine v. Lem. ens, 19 111. 394; Campbell v. Vinning, 23 111. 525; Campbell y. Harris, 30 111. 395; Baker v. Backus, 32 111. 79; Hitt V. Sharer, 34 111. 9; Avery v. Babcock, 35 111. 175; Ballengerv. McKee, 36 111. 255; Wells v. 3Iiller, 45 111. 33; Milner V. Briggs, 45 111. 349; 3Iason v. Tif- fany, 45 111. 392; Lijon v. Bobbins, 46 III. 276; Simmons v. Butters, 48 111. 226; Zacharie v. Godfrey, 50 111. 186; Cutter V. Jones, 52 111. 84; Henry Co. V. Drain Co., 52 111. 299; Roberts v. Fleming, 53 111. 196; Dolton v. Erb, 53 111. 289; Sale v. Fike, 54 111. 292; Governor v. Woodworth, 63 111. 254; Freeman v. Freeman, 65 111. 106; Hallesy v. Jackson, 66 111. 139; Mc- intosh V. Saunders, 68 111. 128; Gal- braith v. Littiech, 73 111. 209; Lane v. Peojile, 76 111. 300; Logan Co. v. City, 81 III. 156; Leroyy. City, 81 111. 114; Haytvard v. Gtinn, 82 111. 385; Keil V. Healey, 84 111. 104; Emmons v. Iloore, 85 111. 304; Foster v. Letz, 86 111. 412; Emory v. Keighan, 88 111. 482; Schillo v. McEwen, 90 111. 77; James v. R. R. Co., 91 111.554; Ram- sey V. Clinton, 92 111. 225; Bemis v. Stanley, 93 111. 230; Lambkin v. Peo- ple, 94 111. 501; Holmes v. R. R. Co., 94 111. 439; Piatt Co. v. Goodell, 97 111. 84; Walden v. Karr, 88 111. 49; Dodge v. CoZe, 97 111. 338; Wernse v. ifaZZ, 101 111. 423; Bonham v. PeqpZe, 102 111. 434; Lee v. Mound, 118 111. 312; FjgfMS v. GBannon, 118 111. 339; Bartelott v. BaJifc, 119 111. 259; Steere V. Brownell, 124 111. 27; Whittaker v. Crow, 132111.627; IFoodv. Williams, 142 111. 209; Kreiz v. Behrensmeyer, 149 111. 496; Ba?ifc v. Coleman, 11 Bradw. 508; i2. ii. Co. v. I^^Zcoa;, 12 Bradw. 43; Boides v. Keator, 47 111. App. 98; ifi'ZZ V. Sommer, 55 111. App. 345; Grant v. Odiorne, 43 111. App. 402; Parks v. Cadivallader, 53 111. App. 236; Green v.Baird, 53 111. App. 211; same case, 61 lU. App. 72; Trustees v. ^r?ioZcZ, 58 111. App. 103. 1 ^FeZZs V. PFeZZs. 6 Ind. 447. "^Kester v. Stark, 19 111. 328; ^Sfe- venson v. Westfall, 18 111. 209. ^CoZev.Penjioyer, 14111.158; 2Md. Ch. Decis. 81; Squier v. Hydiff, 9 Mich. 274; iocfce v. ^miZ/i. 41 N. H. 346. * Henderson v. Fox, 5 Ind. 489. ^Tupper V. Cad well, 12 Metcalf 559; see McCarty v. Carter. 49 111. 53. DEFENSES TO THE ACTION OF ASSUMPSIT. 161 ise to pay, made by him after he becomes of age, renders the note valid. If the promise is conditional, performance or the happening of the condition must be affirmatively shown, to sustain an action. A promise to pay as soon as he could, is conditional, and unavailing without proof of ability/ A nego- tiable note given by an infant, even for necessaries, is voidable.^ Where a minor contracted to work nine months, but only worked one month and a half, and then ceased, it was held that he was not bound by his contract, and could recover from his employer the value of the services rendered.'* An infant can not bind himself by bond; and if he has made a bond during infancy, and after he comes of age makes a parol promise to pay a smaller sum, in lieu of the amount of the bond, the suit should be brought on the parol promise.* To make a voidable contract with an infant binding upon him, he must expressly ratify it after he attains full age; and a ratification will not be inferred from a mere acknowledo-- ment of the debt. A promise to pay, or a direct confirmation after the person has attained his full age, is evidence of such ratification; " and it must be made with a full knowledge that the party is not liable by law.° It must be voluntary, and not under terror of an arrest, and must be made before the com- mencement of the action.'' Where an infant, upon being applied to for payment of a note made by him during his infancy, acknowledged that the money was due, and promised that on his return to his home he would endeavor to procure it, and send it to his creditor, it Avas held that there was a sufficient ratification of the original promise.' ' Everson v. Carpenter, 17 Wend. Smith v. Mayo, 9 Mass. 64; Martin 419; Goodsell v. Myers, 3 Wend. 479; v. Mayo, 10 Mass. 140; Whitney v. Reynolds v. McCurry, 100 111. 356. Dutch, 14 Mass.457; Ford v. Phillips, ^Swasey v. Adm., 10 Johns. 33; 1 Pick. 202; Thompson v. Lay, 4 Wieland v. Kobick, 110 III. 16; Nor- Pick. 48. ton V. Steward, 5 Bradw. 533. ^ Smith v. Mayo, 9 Mass. 62; Ford v. ^Ray V. Haines, 52 111. 485. Philli2)s, 1 Pick. 202; see Bennett v. * Bliss V. Ferryman, 1 Scam. 484; McLaughlin, 13 Bradw. 349. see 1 Parsons Cont. 323, 325, 326; ' Smith v. Mayo, 9 Mass. 62; Ford Field V. Herrick, 101 111, 110. v. Phillips, 1 Pick. 202. ' Conkling v. Ogburn, 7 Ind. 553; * Whitney v. Dutch, 14 Mass. 457. 11 1G2 DEFENSES TO THE ACTION OF ASSUMPSIT. The ratification of an infant's contract should be a promise to a party in interest, or his agent; and such ratification sliould be equivalent to a new contract.' If after becoming of age he does any act clearly showing an intention to affirm a con- tract, he can not afterward repudiate it,^ Contracts made by an infant are not void, but voidable only, and by the infant alone.^ It is a personal privilege, of which none can take advantage but the infant.* Infancy in legal proceedings will not, as a general rule, be presumed. It must be pleaded and proved, as the case may require.^ But infancy maybe given in evidence under the general issue, in assumpsit, though it is in general better to plead it.® AVhen infancy is alleged, the burden of proof devolves upon him who alleges it.' But if a new promise is replied, the infancy is admitted.* Where one of two defendants pleads his infancy, it has been held that the plaintiff may enter a nolle j^f'osequi as to him, and proceed to judgment against the other defendant; or the jury mav find a verdict for the infant defendant, and a verdict for the plaintiff against the other defendant.® This may doubt- less be done under the practice act of Illinois, but the contrary seems to have been the rule at common law.'" A judgment against an infant, without first appointing a guardian ad litem, is erroneous." Such a judgment may be set aside in the court where it is rendered, on motion; and when the judgment has been set aside, the defendant may make any defense to which he may be entitled.'^ An exchange of property made by a minor is voidable.'* See further, as to ^ Goodsellv. Myers, 3 Wend. 479; ^ Hartness v. Thompson, 5 Johns. Mayer V. McLiire, 36 Miss. 389. 160; Woodward v. Newhall, 1 Pick. ■^Curryy. Ploiv Co., 55lU.App. 82. 500: Mies v. Drake, 17 Pick. 516: ^Slocum V. Hooker, 13 Barb. 536. Cuts v. Gordon, 13 Maine 474; Jud- *2 Kent Com. 249; 2 Parsons on son\. Gibbons, 5 Wend. 228. Con. 275; Van Bramerv. Cooper, 2 ^'^IChit.VX. '8a; Chandler v. Parker, Jolms. 279; Jackson v. Todd, 6 Johns. 3 Esp. 76; Tidd's Pr., 7th Ed. , 710. 257; Campbell v. Wilson, 23 Texas ^^ McDaniel v. Correll,\Q 111. 226; 253. Crocker v. Smith, 10 Bradw. 376; 5 Pitcher v. Laycock, 7 Ind. 398. Lloyd v. Kirkwood. 112 111. 329; Mil- 6 1 Chit. PI. 417, 421; see Curry v. lard v. Marmon, 116 111. 649. PZou' Co., 55 111. App. 82. ^'' Peak v. Shasted, 21 111. 137; ' Greenleaf Ev., § 81. Lemon v. Stveeney, 6 Bradw. 507. 8 Goodsell V. Myers, 3 Wend. 479. '^ Williams v. Brown, 34 Me. 594. DEFENSES TO THE ACTION OF ASSUMPSIT. 163 the law in respect to infancy, in Illinois, the additional cases given in the note/ No. 90. Plea of infancy. (As in No. S5, ante, to the asterisk, and then proceed:) that he, the defend- ant, at the time of the making the several supposed promises in the said declaration mentioned, was an infant within the age of twenty-one years, to wit, of the age of years : And this he is ready to verify; wherefore he prays judgment, etc. {concluding as in jVo. 85). If the defendant is still an infant, the commencement of the first plea should be (after entitling it) as follows : "And the said C. D., by G. H., admitted by the court here as guardian of the said C. D., to defend for him, the said C. D., who is an infant under the age of twenty -one years, comes, etc., and says," etc. No. 91. Replication to No. 90, denying infancy. {As in No. 86, ante, to the asterisk, and then proceed :) that the defendant, at the time of making of the said several promises, was of the full age of twenty-one years, and not within the age of twenty-one years, as the de- fendant has above in that plea alleged : And this the plaintiff prays may be inquired of by the country, etc. ^French v. Creath, Breese, 31; Greer v. Wlieeler, 1 Scam. 554; Thornton v. Vaughn, 2 Scam. 218; McClay v. Norris, 4 Gilm . 370; Smith v. Sackett, 5 Gilm. 534; Sconce v. y/hitney, 12111. 150; Hitt v. Ormsb7j, 12 111. 166; Enos v. Capps, 12 111. 255; Hamilton v. Gilman, 12 111. 266; Dufield V. Cross, 12 111. 397; Holmes V. Field, 12 111. 422; Walker v. Ellis, 12 111. 470; Enos v. Capp.s, 15 III. 277; Tiittle v. Garrett, 16 III. 354; Cost V. Rose, 17 111. 276; Masterson V. Wim^old, 18 111. 48; Sinklear v. Emert, 18 111. 64; Carr v. Fielden, 18 111. 77; Peak v. Pricer, 21 111. 164; Chaffinv. Kimball, 2S 111^6 ; Blank- enship v. Stout, 25 111. 132; Tibbs V. Alleti, 27 111. 119; Reddick v. Ba7ik, 27 111. 148; Cox v. Reed, 27 111. 434; Btirger v. Potter, 32 111. 66; Waugh v. Robbins, 33 111. 182; Black V. Hills, 36 111. 377; Davidson v. Young, 38 111. 145; Kuchenheiser v. Beckert, 41 111. 172; McDermid v, Russell, 41 111. 490; Caldivell v. Sher- man, 45 111. 338; Quigley v. Roberts, 44 III. 503; Preston v. Hodgen, 50 111. 56; Kane Co. v. Herrington, 50 III. 232; Barnes v. Hazelton, 50 111. 429; Hess v. Voss, 52 111. 473; Hoyt V. Swar, 53 111. 134; Greenman v. Harvey, 53 111.386; F/sc/ier v. Fischer, 54 111. 231; Hickenbotham v. Black- ledge, 54 III. 316: Matthews v. Cowan, 59 111. 341; Thomas V. Adams, 59 III. 223; Scott v. White, 71 111. 288; Reed V. Degener, 82 111. 508; Patterson v. Pidlman, 104 111. 80: Beederman v. O'Conner, 117 111. 496; Allen v. Jacobs, 14 Bradw. 277; Ashlock v. Vivell, 29 111. App. 393; McLean v. Tr77.so7?, 36 111. App. 658; 3Iijer v. Rehkoff, 30 111. App. 210; M. Co. v. Sj^ehr, 46 111. App. 24. 16i DEFENSES TO THE ACTION OF ASSUMPSIT. No. 02. Replication to No. 90, that goods, etc., were necessaries. {As in No. 86, ante, to the asteinsJc, and then proceed :) that the said goods, chattels and effects {or whatever the declaration charges), in the said decla- ration mentioned to have been sold and delivered by the plaintiff to the de- fendant, were necessaries suitable to the condition and estate of the defendant : And this the plaintiff is ready to verify; vrherefore he prays judgment, and his damages, etc. , to be adjudged to him, etc. For a replication of this kind as to certain counts, with a nolle prosequi as to the rest of the counts, see Chit. PI. 1146, and 2 Swan's Pr. 695. No. 93. Rejoinder to the last replication, denying it. {As in No. 89, ante, to the asterisk, and thenprocezd:) that the said goods, chattels and effects, in the said declaration mentioned to have been sold and delivered by the plaintiff to the defendant, were not necessaries suit- able to the condition and estate of the defendant, as the plaintiff has above in that replication alleged: And of this the defendant puts himself upon the country, etc. No. 94. Replication to No. 90, that defendant confirmed his promises after coming of age. ' {As in No. 86, ante, to asterisk, and then proceed :) that the defendant, after the making of the said several promises, and before the commence- ment of this suit, to wit, on, etc., attained his full age of twenty-one years; and that he, the defendant, after he had so attained his age of twenty-one years, and before the commencement of this suit, to wit, on, etc. , in the county aforesaid, ratified and confirmed the said several promises: And this the plaintiff is ready to verify; wherefore he prays judgment, and hi" damages, etc., to be adjudged to him, etc. No. 95. Rejoinder to the last replication, denying it. {As in No. 89, ante, to the asterisk, and then proceed :) that he did not, after he attained the age of twenty -one years, and before the commence- ment of this suit, ratify or confirm the said several supposed promises, or any or either of them, in manner and form as the plaintiff has above in that replication alleged: And of this the defendant puts himself upon the country, etc, PLEA OF THE STATUTE OF FRAUDS. The defense of the statute of frauds must be set up and re- lied upon in some manner,' but it may either be pleaded ' See another form, 3 Chit. PI. * Thornton v. Henry, 2 Scam. 219; 1147. Lear v. Chouteau, 23 111. 39; War- DEFENSES TO THE ACTION OF ASSUMPSIT. 1G5 specially or shown under the g'eneral issue.' Advantage may be taken of the statute, under the plea of non assumjysit, by objection to all verbal evidence offered in support of the dec- laration,' It would seem to have been usual in England to prove this defense under the general issue, but the defendant was at liberty to plead it specially/ On appeal from a justice's court, where the proceedings are ore tenus, the statute of frauds is presumed to have been pleaded, if necessary to the defense/ The plea of the statute of frauds is a personal privilege, like the plea of infancy, which a party may waive. Another person can not plead it for him, or compel him to plead it.* It has been held that the statute has not changed the mode of pleading, and hence that the dec- laration need not aver that the agreement was in writing, but the defendant may rely upon the statute under the evidence." To take a case out of the statute, no particular form of words is necessary in the written agreement or memorandum; anything from which the intention may be gathered is suffi- cient — any kind of a writing^ from a solemn deed down to mere memoranda in books, papers or letters. These must be certain enough on their face, or by reference, to show the parties, the interest or property to be affected, and the con- sideration.' The person to be charged, or his agent, must sign the agreement; and parol proof of the agency is sufficient miv. Dickson, 27 111. 115; Hull v. M c^it. PI. 421. Peer, 27 111. 312; Boston v. Nichols, ^Comstock v. Ward, 22 III, 248; 47 111. 352; Dock Co. v. Kinzie, 49 Williams^. Corhett,2Sl\\.2Q2; Deyo 111, 289; Beard v. Converse, 84 111, v, Ferris, 22 111. App. 154. 512; Finucan v. Kendig, 109 111. 198; ^ McCoy v, Williams, 1 Gilm. 584; Gordon v, Reynolds, 114 111. 118; Dock Co. v. Kinzie, 49 III. 289; Gor- Bragg v. Olson, 128 111. 545; Hogan den v. 3Iill Co., 20 Bradw. 559; King V. Easterday, 58 111. App. 45; Mc- v, BusJmell, 121 111. 658; Kelly v. Clure V, Otrich, 118 111. 320. Kendall, 118 111. 652; Singer v. Car- ^ Buggies v. Gatton, 50 111. 412; pe^^er, 125 111. 119. Myers v. Morse. 15 Johns. 425. As ^ Elting v. Vanderlyn, 4 Johns, to general issue, see 1 Chit. PI. 417; 237; see Gould's PI. 307; Buggies v, Gould's PL 307; Meyers v. Schemp, Gatton, 50 111. 412; Struble v. Hake, 67 111. 469; Beard v. Converse. 84 111. 14 Bradw. 546; Darst v. Bates, 95 512; Finucan v. Kendig, 109 111. 198. 111. 495, 2 Gould's PI, 307; Beard v. Con- "> McConnell v, Brillhart, 17 111, verse, 84 111, 512; Durant v. Rogers, 254; Doty v. Wilder, 15 111, 407; 71 111. 121. Far well v, Lowther, 18 111, 252; 166 DEFENSES TO THE ACTION OF ASSUMPSIT. to hold the party who has acted by agent. The signing may be in the caption, in the body, or at the end of the instrument. The agreement must be signed with an intent to enter into it, and must be mutual and upon good consideration.^ When, in performance of a verbal contract originally within the statute, money has been paid, it can not be recovered." Collateral and original undertakings. — If a promise to answer for a debt incurred for the benefit of another is an original undertakjjig, it need not be in writing; ^ but there must be a consideration; and the plaintiff must declare as upon an original contract.* To render a promise to pay the debt of another, an original undertaking, some benefit must move between the promisee and promisor, and the original debt must be surrendered.^ Where, on a sale of goods, a third person guarantees that the purchaser will pay for them, and thereupon the goods are de- livered, this is a collateral undertaking; but there is no neces- sitv for any distinct consideration passing between the seller and the guarantor, for it being all one entire transaction, the delivery of the goods to the purchaser will support not only his promise but the promise of the guarantor; and such a Loomis V. Newhall, 15 Pick. 159 see Burke v. Haleij, 2 Gilm. 614 Underwood v. Hossack, 38 111. 44 111. 505; Williams v. Corbett, 28 111. 262; Geary v. aNeill, 73 III. 593; Hartley v. Varner, 88 111. 561; Res- Lasher V. Gardner, 124 111. 44. seter v. Waterman, 151 111. 169. ^ 3IcConnell v. Brillhart, 11 111. * Hite v. Wells, 11 III. 88; Borchsen- 854; Johnson v. Dodge, 17 111. 433; ius v. Canutson, 100 111. 82. R. R. Co. V. Bronkerhoff, 21 Wend. * Borchsenius v. Canutson, 100 111. 139; see Farwell v. Lowther, 18 92; Eddy v. Roberts, 17 111. 505; 111. ^52; Sivanzy v. Moore, 23 111. Wilso7iv.Bevans,5Sll\. 232; Hartley 63; Omex. Cook, 31 111.239; Curtis v. Warner, 88 111. 561; Williams v. V. Sage, 35 111. 122; Bennett v. Mat- Corbett, 28 111. 262; Bunting v. Dar- son, 41 111. 332; Perkins v. Hadsell, byshire, 75 111. 408; Murto v. Mc- 50111. 216. Knight, 28 111. App. 238; Bank v. 2 James v. Morey. 44 III. 352; see Waterman, 30 III. App. 535; same Blunt V. Tomlin, 27 111. 93; Hull v. case, 134 111. 467; Bacharach v. Peer, 27111. 312; seei^razerv. Howe, McCurrach, 43 111. App. 584; Ames 106 111. 563. "^' Foster, 106 Mass. 403; Allen ^Sciidder v. Carter, 43 111. App. v. Thompson, 10 N. Y. 32; Resseter 252; Bacharach v. McCurrach, 43 v. WatermaJi, 151 111. 169; Scudder 111. App. 584; Eddy v. Roberts, 17 v. Carter, 43 111. App. 252. DEFENSES TO THE ACTION OF ASSUMPSIT. 167 guaranty, in writing, is valid without any further consid- eration." If the whole credit is given to the person who comes in to answer for another, his undertaking is not collateral. Where one person procures services to be performed for, or goods to be delivered to, another, he will be held liable for their value; ^ but if services are performed, or goods sold, on the credit of him who receives them, a third person who verbally agrees to be responsible for the price thereof will not be liable in an ac- tion on his promise. The real question is, in such case, to whom was the credit given ? If to another than the defend- ant he is not liable.' If goods purchased were charged to the person who bought them, this is strong evidence that the credit was given to him, but it is not conclusive, and may be rebutted.* The slightest damage to the plaintiff, or benefit to the de- fendant, affords a sufficient consideration to support a promise to pay.* Whether an undertaking is original or collateral is to be determined, not from the particular words used, but from all the circumstances of the transaction." Where the moving consideration for the promise is the liability of the third person, the promise must be in writing; ' and a consid- eration is necessary to support any promise, whether in writ- ^ Leonardv. Vredenhurgh, S Johns. ^Cornell v. Electric Co., 61 111. 29; see Eddy v. Roberts, 17 111. 505. App. 325; Webbev. Stone Co., 58 III. ^Hughes v. Atkins, 41 111. 213; App. 222; Walker v. Sherman, 11 Gallupy. Smith. 24 111. 586; Ruggles Met. 170. V. Gatton, 50 111. 412; see Scott v. ^ Hite v. Wells, 17 111. 88; Blank Thomas, 1 Scam. 58; Hite v. Wells, v. Dreher, 25 111. 831; Moshier v. 17 111. 88; Onie v. Cook, 31 111. 239; Aryiold, 87 111. 18; Schoenfeld v. Rabermann v. Wiscainp, 54 111. 179: Brown. 78 111. 487; Oiven v. Stevens, Coal Co. V. Liddell, 69 111. 639; Snell 78 111. 462; 7ns. Co. v. Olcott, 97 III. Cheney, 88 111. 258; Hartley v. Var- 439; Bank v. Waterman, 134 111. ner, 88 111. 561. 461. i Hughes v. Atkins, 41 111. 213; ''Scott v. Thomas, 1 Scam. 58; Hardman v. Bradley, 85 111. 562; Hite v. Wells, 17 111. 88; Eddy v. Geary V. O'Neill, 73111. 593; Clifford Rogers, 17 111. 505; Williams v, Cor- V. Luhring, 69 111. 401; Denton v. belt, 28 111. 262; Frame v. August, Jackson, 106 111. 433. 88 111. 424; Power v. Rankin, 114 IlL * Ruggles v. Gatton, 50 III. 413; 52. Borchsenius v. Canutson, 100 111. 82. 163 DEFENSES TO THE ACTION OF ASSUMPSIT. ing or not,' A verbal promise to accept or pay an existing or non-existing bill of exchange, is not within the statute of frauds, and is valid.* Where a person enters into a verbal contract with another, for the benefit of a third person, such third person may main- tain an action for a breach of the contract, and such a con- tract is not within the statute of frauds.^ And where A. owes B., and B, owes C, and it is agreed among them that the debt from B. to C. shall be canceled, and that A. shall pay his debt to C, the agreement is binding, although not in writing.' A con- tract for services, which by its terms is not to be performed within the space of one year from the making thereof, is within the statute of frauds, and can not be enforced.^ The cases relating to the statute of frauds, decided in the supreme court of Illinois, and not already cited, are given in the note below." Many of these have relation to that branch of the statute which refers to contracts concerning lands. ' Hite V. Wells, 17 111. 88; Eddy v. Roberts, 17 111. 505; Durant v. Rog- ers, 71 111. 121; Patmor v. Haggard, 78 111.607; Laidlow v. Hatch, 75 111. 11; Graham v. Mason, 17 Bradw. 399. '^Nelson v. Bank, 48 111. 36; see Jones V. Bank, 34 111. 319; Mason v. Dousay, 35 111. 424. 8 Eddy V. Roberts, 17 lU. 505; Brown V. Strait, 19 111. 88; Pi-ather v. Vine- yard, 4 Gilm. 40; Wilson v. Bevans, 58 111. 232; Walden v. Karr, 88 111. 49; Thompson v. Dearborn, 107 111. 87; Parsons on Cont. 303, 307, 308, and notes m and w. 4 Corbin v. McChesney, 16 111. 232; see Prather v. Vineyard, 4 Glim. 40; Eddy v. Roberts, 17 111. 505; Broumv. Strait, 19 111.88; Bristow V. Lane, 21 111. 194; Lindleyy. Simp- son, 45 111. App. 648. f- Steel Works V. Atkinson, 68 111. 421; Haynes v. Mason, 30 111. App. 85; Schanzenbach v. Brough, 58 111. App. 526. ^Everett v. Morrison, Breese 79; Whitney v. Cochran, 1 Scam. 209; Thornton v. Davenport, 1 Scam. 296; Prevo v. Lathrop, 1 Scam. 305; Updike V. Annstrong, 3 Scam. 564; Perry Y. McHenry, 13111. 227; Jeffer- son V. Ferguson, 13 111. 33; Davis v. Hop)kins, 15 111. 519; Ballingall v. Bradley, 16 111. 373; Bourland v. Peoria Co., 16 111. 538; McConnell V. Brillhart, 17 111. 354; Stevens \. Wheeler, 25 111. 300; Bozza \. Rowe, 30 111. 198; 3Iason v. Blair, 33 111. 195; Keys v. Test, 33 111. 316; Par- sons V. Coal Co., 38 111. 430; Fitz- simmons v. Allen, 39 111. 440; Chi- cago V. Hyde, 40 111. 150; Bright v. Bright, 41 111. 97; Poivell v. Rich, 41 111. 466; Holmes v. Holmes, 44 111. 168; 3Ioore v. Titman, 44 111. 367; Rugglesv. Gatton, 50111.412; Holmes V. Holmes, 49 111. 31; Kaiie v. Har- rington. 50 111. 232; Lantry v. Lan- try, 51 111. 458; Runde v. Runde, 59 111. 98; Warner v. Hale, 65 111. 395; Cox V. Siraisi;er, 62 111. 383; White v. DEFENSES TO THE ACTION OF ASSUMPSIT. 169 No. 96. Plea of the statute of frauds — Agreement not to he performed within a year, and not in writing. {First plea, non assumpsit, as ante, No. S2; second plea as ante, No. S5, to the asterisk, and then proceed:) that each and every one of tlie sevei-al sup- posed promises in the said declaration mentioned was an agreement which was not to be performed within the space of one year from the time of the making thereof, to wit, the day of , in the year 18 — , and was not nor is, nor was nor is any memorandum or note thereof, in writing, signed by the defendant, or by any other person thereunto by him lawfully au- thorized, according to the form of the statute, etc. : And this, etc. {con- clude with a verification, as ante, No. 85.) No. 97. Replication to No. 96, that agreement was to be performed within a year. {As in No. S6, ante, to the aste7-isJc, and then proceed:) that each and every one of the said several promises was an agreement "which was to be per- formed within the space of one year from the time of making thereof as aforesaid, and not an agreement which was not to be performed within the space of one year from that time, as the defendant has above in that plea alleged: And this the plaintiff prays may be inquired of by the country, etc. The plaintiff may rely that the agreement was in writing and signed, etc., and set out the agreement in the replication,* No. 98. Plea of the statute of frauds — Promise teas to answer for the debt of another person, and was not in writing. {First j^lea, non assumpsit, as in No. 83, ante; second plea as ante. No. 85, to the asterisk, and then proceed:) that each and every one of the several Jtfai«and, 71 111. 250; Scott T.Wliite. v. Fernandes, 126 111. 230; Doiigh- 71 111. 287; Carpenter v. Davis, 74 erty v. Cuttell, 129 111. 438; Allison 111. 14; Wheeler v. Frankenthal, 78 v. Perry, 130 111. 16; Morrison v. 111. 124; Tel. Co. v. R. R. Co., 86 Herrick,r60 111. 631; KochY. Nafl 111. 246; Hayward v. Gunn, 82 111. Union, 137 111. 497; Neagle v. Kelly, 385; Bradley v. Coolbaugh, 91 111. 146 111. 460; Leavitt v. Steam, 159 148; Kershmo v. Kershaw, 102 111. 111. 526; Mathers v. Carter, 7 Bradw. 307; Albertson v. Ashton, 102 111. 50; 225; Geelan v. Reid, 22 Dl. App. 165; Warren v. Warren, 105 111. 568; Ins. People v. Brooks, 22 111. App. 594; Co. V. White, 106 111. 67; Chappell Murtox. McKnight, 28111. App. 248; V. McKnight, 108 111. 570; Wliitsett v. Ingraham v. Strong, 41 111. App. 46; Trustees, 110 111. 125; Bay v. Will- Tanquary v. Walker, 47 111. App. iams, 112 111. 96; Fishbeck v. Gross, 451; McCarland v. Doorley, 47 111. 112 111. 214; Irwin v. Drake, 114 111. App. 513; Stein v. Bleake, 56 111. 305; Clark v. Clark, 122 111. 391; App. 525. Vallette v. Tedens. 122111. 610; Cloud > 11 Price, 494. V. Greasley, 125 111. 316; McGinnus 170 DEFENSES TO THE ACTION OF ASSUMPSIT. supposed promises in the said declaration mentioned was a special promise to answer for the debt of another person, to wit, one {or " the said ") L. M., and was not nor is, nor was nor is any memorandum or note thereof, in writing, signed by the defendant, or by any other person thereunto by him lawfully authorized, according to the form of the statute, etc. : And this, etc. (cotichide with a verification, as in No. S5, ante). No. 99. Replication to No. 9S, that the promise was not to answer for the debt of another person. {As in No. S6, ante, to the asterisk, and then proceed:) that the several promises aforesaid were not special promises, nor was either of them a special promise, to answer for the debt of the said L. M., as the defend- ant has above in that plea alleged: And this the plaintiff prays may be inquired of by the country, etc. The above forms of pleas can be readily adapted to any- other cases within the statute — promises b}'' executors or ad- ministrators, agreements upon consideration of marriage, or contracts concerning hinds, etc. PLEA OF FRAUD. A plea which attempts to set up fraud should aver a sdenter;' but it would seem that an averment that the plaintiff " falsely and fraudulently represented," etc., is sufficient,* It is held that the burden of charging, as of proving, fraud, is on the party alleging it; and that while it is not necessary or proper that he should spread out, in his pleadings, the evidence on which he relies, he must aver fully and explicitly \hQ facts constituting the alleged fraud, and not mere conclusions.^ But it seems that at common law it is in general unnecessary to state the particulars of fraud, at least in a replication.' Fraud must always be proved; the law never presumes it.* It may, however, be proved by circumstances.* 1 White V. Watkins, 23 111. 480. * 1 Chit. PI. 502; 2 Swan's Pr. 2 Richards v. Betzer, 53 111. 466; 1 742. Chit. PI. 338. * Wright v. Grover, 27 111. 426; 3 Keller v. Voivell, 17 Ark. 445; Stewart v. English, 6 Ind. 167; 1 Keller v. Johnson, 11 Ind. 337; Cole Chit. PL 204; Kiehn v. Bestor, 30 111. V. O. H. Co., 79 111. 96; Jones v. Al- App. 458; E. St. L. v. Trustees, 123 bee, 70 111. 34; Hopkins v. Wood- 111. 643. ward, 75 111. 62; Waj'd v. Lnneen, * Bryant v. Simoneau, 15 111. 324; 25 111. App. 160; Endsley v. John, Bullock v. Narrott, 49 111. 62; Boies 120 111. 475; Gas Co. v. Higbie, 134 v. Henney, 32 111. 130: Botvden v. 111. 557; Stunz v. Stunz, 131 111. 318. Bowden, 75 111. 143; Edlevianv. By- DEFENSES TO THE ACTION OF ASSUMPSIT. 171 Fraud may consist in making a false representation with the knowledge at the time that it is false, and with a design to deceive and defraud, or in the willful concealment of the truth for a similar purpose.' It can not exist without an in- tention to deceive.* Fraud vitiates all acts, as between the parties to such acts, and is cognizable in a court of law, as well as in equity.^ It is not every false affirmation that amounts to a fraud, A knowledge of the falsehood of the representation must rest with the person making it, and he must use some means to deceive to make it a fraud.* Where a transaction is tainted with fraud, as between the parties to the fraud, a court will not assist either, but will leave them in the position where they have placed themselves.* In actions upon instruments which are covered b}^ the statute concerning negotiable instruments, fraud in the considera- tion may be shown; but as to a, sealed instrument not within the statute, fraud in the consideration can not at lavr be made a defense.* Where fraudulent representations are made with the inten tion to deceive and defraud the person to wdiom they are made, and he thereby suffers, the person making such representations ers, 75 111. 367; Johnson v. Worth- * Sims v. Klein, Breese 302; Diin- ington, 30 111, App. 617; Fowler v. bar v. Bonesteel, 3 Scam. 32; Loomis, 37111. App. 363. Fames v. Morgan, 37 111. 260; Rich- ^Sims V. Klei7i, Breese 302; 3/c- ards v. Betzer, 53 111. 466; see 3/er- Connell v. Wilcox, 1 Scam. 344; ryman v. David, 31 111. 404; Fish v. Kohe V. Lindley, 39 111. 195; Mitchell Cleland, 33 111. 238; Miller v. V. Deeds, 49 111. 416; see Lockridge Young, 33 111. 355; Fauntleroy v. V. Foster, 4 Scam. 569; 3Iiller v. Wilcox, 80 111. 477; Heicett v. Craig, 36 111. 109; 2 Kent's Com. Johnson, 72 111. 513; Kenner v. 490; Whitside v. Taylor, 105 111. Harding, 85 111. 264; By. Co. v. 496. Rice, 85 111. 406; Bond v. Ramsey, 2 Miller v. Howell, 1 Scam. 499; 89 lU. 29. Walker v. Hough, 59 III. 375; By. " 3Iiller v. Marckle, 21 111. 152; Co. V. Rice, 85 111, 406; Wharf v. Winston v. McFarland, 22 111. Roberts, 88 111. 426. 38 ; see Anderson v. Warne, 71 ^Express Co. v. Willsie, 79 111. 92; 111. 20. Jamison v. Beauhien, 3 Scam. 113; s Hawkins v. Harding, 37 111 App. Loivry v. Orr, 1 Gilm. 70; Rogers 564, V. Brent, 5 Gilm. 573; Slack v. Mc- Lagan, 15 111. 242, 172 DEFENSES TO THE ACTION OF ASSUMPSIT. will be liable.' But if such false representations are made in the belief that they are true, and the person making them has no reason to believe them to be false, they will not be held fraudulent, and will not render him liable.'' Evidence of oral representations, made by a party before the making of a written contract, may be introdiiced to show fraud; "* and a fraudulent intent may be found from the act of a purchaser after the sale.^ All the members of a partnership are liable for the fraud of one of them, or of their agents in the course of their employment, in the sale of partnership property.* Under the statute of Illinois, the plea of fraud in obtaining the making of the instrument is good against an innocent as- signee." The plea of fraud in obtaining the execution of a note and mortgage may be set up as well in a suit by an as- signee as in a suit by the person to whom they were made.' Where the question of fraud is one of extent, it is to be de- termined by the jury.* The fraud which will vitiate a note, in the hands of an innocent assignee, must be fraud practiced in obtaining the execution of the note. Fraud in respect to the consideration, or in the contract on which the note is given, is not sufficient.' Where one who was sued on a promissory note pleaded, not that he did not know he was signing such a note, but merely that, by the terms of an instrument attached to the note when it was executed, it was only to be paid on a certain contin- gency, which did not happen, and that this instrument was wrongfully detached from the note after its execution, it was 1 Bank v. Hamilton, 2 Ind. 457; (1895), 106^; Starr & Curtis 1665; Fames v. Morgan, 37 111. 260; see Woods v. Hynes, 1 Scam. 103; Mul- Kohl V. Lindley, 39 111. 195; Wharf ford v. Shepard, 1 Scam. 583; V. Eoherts, 88 111, 426. Adams v. Woldridge, 3 Scam. 255; 2 Bank v. Hamilton, 2 Ind. 457; Hewitt v. Jones, 73 111. 218. Hopper V. Sisk, 1 Ind. 176; Bond v. ' Marshall v. Billingsly,! Ind. 250; Ramsey, 89 111. 29; Grier v. Puter- Wilson v. Miller, 72 111. 616. haugh, 108 111. 602. « Marshall v. Billingsly, 7 Ind. 250; 3 Holbrook v. Burt, 22 Pick, 546; Smith v. Brittenham, 109 111. 541. Wilson V, Watts, 9 Md. 356. » M^ood v. Hynes, 1 Scam, 103; * Bowen v. Schider, 41 111. 192, Mulford v. Shepard, 1 Scam, 583; ' Locke V, Stearns, 1 Mete, 560, Latham v. Smith, 45 111. 2l5;Richei:cu « Rev, Stat, (1893), 994; Rev, Stat v. Encampment, 140 111, 248. DEFENSES TO THE ACTION OF ASSUMPSIT. 173 held that tliese facts did not constitute fraud in obtaining the execution of the note, but fraud perpetrated after its execution, and therefore could not avail as a defense aii^ainst an assio-nee before maturity.' But in a case where it appeared that the defendant, under circumstances which showed no lack of rea- sonable caution on his part, signed a paper which he did not know was a note at all, but was induced to believe was an in- strument of an entirely different character — and it was prob- able that the note sued on was embraced in the paper which the defendant executed, ar.d was afterward detached and assigned — the defense of fraud and circumvention was sus- tained ao;ainst an assig'nee before maturitv." Diligence required of maker of note. — The mere fact that a person can read will not cut him off from alleging, even against an assignee before maturity, that the execution of a promissory note made by him was obtained by fraud and cir- cumvention. But he who signs a paper should use reasonable and ordinary precautions to avoid imposition; if able to read readily, he should examine the instrument; if unable to read, or able only to read with difficulty, he may have it read to him by some one present. He can not act recklessly, disre- garding all the usual precautions, and then interpose the de- fense of fraud as against the assignee.* Diligence required of assignee of note. — The assignee, equally with the maker, is bound to use proper diligence. Where strangers offer to sell promissory notes, under circum- stances which ought to arouse suspicion, a purchaser of such notes, who could ascertain the truth in regard to them by in- quiring of the supposed maker, will be deemed to have acted without due caution if he fails to make such inquiry.* If fraud and circumvention are used in procuring the exe- cution of a note, and the payee is a party to such fraud and ' Clarke v. Johnson, 54 111. 296; v. Watson, 71 111. 456; Ry. Co. v. Vanhruntv. Singley,Sbl\\.2S\;Sim Lewis, 13 Bradw. 166; Carroll v. V. Pyle, 84 111. 271; Stevenson v. People, 13 Bradw. 206; Brophy v. O'iVeaZ. 71111.314. Lawler, 107 111. 284; Muhlke v. 'Taylor v. Atchison, 54 111. 196! ^eg^erness, 56111. App. 322; see JTmgr- Champion v. Ulmer, 70 111. 322. man v. Reinemer, 58 III. App. 173. ^Taylor \. Atchison, 54 111. 196; * Ibid. Holmes v. Hale, 71 III. 552; Swannell 17-i DEFENSES TO THE ACTION OF ASSUMPSIT. circumvention, the note is void. It is otherwise if he is free from any participation in the fraud.' If the party defrauded acquiesces in or confirms the contract, with full knowledge of the fraud, others not defrauded or injured can not avoid the contract for him." Advantage can not be taken of a fraud except by the party defrauded or injured,^ A surety or guarantor can not interpose the fraudulent or false representations of his principal as a defense to the pay- ment of a note or bond, without connecting the payee with such representations.* See further, as to fraud generally, the additional Illinois cases noted below.* iVo. 100. Plea of fraud and circumvention in obtaining execution of in- strument. (First plea, non assumpsit, as ante, No. 82; second plea as in No. 85, ante, to the asterisk, and then proceed :) that the several supposed causes of action in the said declaration mentioned are one and the same, to wit, t'le supposed cause of action in the first count of the said declaration mentioned, and not different causes of action; and that the execution uf the writing or supposed I Easter v. Minard, 26 111. 494. ' Edmunds v. Hildreth, 16 111. 214. 3 Edmunds v. Hildreth, 16 111. 214; Walbridge v. Day, 31 111. 379; Shel- don V. Harding, 44 111. 68; Howell v. Edmonds, 47 111. 79; Machine Co. v. Buckles, 89 111. 243: Ladd v. Trust- ees, 80 111. 233; Mathewv. Cowan, 59 111. 341; Stonerv. Millikin, 85111. 218. * Davis V. Buckles, 89 111. 243; Ladd V. Trustees, 80 111. 233; Smith V. Board, 59 111. 413; Stoner v. Mil- likin, 85 111. 218. 5 Tou-cll V. Gatewood, 2 Scam. 23; Pou-ell V. Jeffries, 4 Scam. 387; Dra- per V. McFarland, 1 Gilm. 310; Cho- teanv. Jones, 11 111. 301; Jefferson v. Ferguson, 13 111. 33; Nelson v. Rock- ivell, 14 111. 375; Clement v. Evans, 15 111. 92; Kennedy v, Northup, 15 111, 148; Grimes v. William, 16 111. 47; Waggojier v. Cooley, 17 111. 239; Brown v. Riley, 22 111. 45; Whitney V. Roberts, 22 111. 381; Warner v. Carleton, 22 III. 415; Chaffin v. Kim- ball, 23 111. 36; Neece v. Haley, 23 111. 416; Bank v. Godfrey, 23 111. 579; De Wolfv. Hayden, 24111. 529; Lloyd V. Higbie, 25 111. 603; Myers v. Kin- zie, 26 111. 36; Fuller v. Paige, 26 111. 358; Moore v. Bracken, 27 111. 23; Gosney v. Frost, 27 111. 53; Scarlett V. Gorham, 28 111. 319; Nelson v. Smith, 28 111. 495; Wood v. Shaw, 29 111. 444; Perley v. Catlin, 31 111. 533; Gray v. St. John, 35 111. 222; Wight- man V. Hart, 37 111. 123; Cameron v. Savage, 37 111. 172; Hessing v. 3Ic- Closkey, 37 111. 341; Blue v. Blue, 38 111. 9; Lockwood v. Mills, 39 111. 603; Taylor v. Hopkins, 40 111. 442; Ryan V, Brant, 42 111. 78; Peters v. Smith, 42 111. 417; Waterman v. Donalson, 43 111. 29; Underwood v. West, 43 111. 403; Blow v. Gage, 44 111. 208: Banta V. Palmer, 47 111. 99; Shinkler v. Letcher, 47 111, 216; JoJmson v. iriZ- son, 33 111, App. 639. DEFENSES TO THE ACTION OF ASSUMPSIT. 175 promissory note in that count mentioned was obtained from the defendant, by the plaintiff, {or, if the action is by an assignee, say "by the said J. K.," the payee, or by the beneficiary,) by fraud and circumvention, that is to say, that {here set forth the facts constituting the fraud, and that the defendant, confiding, etc., executed the icriting, etc. — see next form). And this etc. {conclude loith a verification, as in No. So, ante). No. 101. Plea of fraud— In action by assignee of note, plea by surety that execution of note was obtained from him by fraud of payee and prin- cipal.^ {First plea, non assumpsit, as ante, No. S2.) And for a further plea in this belialf , the defendant E. F. says that the plaintiff ought not to have his aforesaid action against him, the said E. F., because he says, that the sev- eral supposed causes of action in the said declaration mentioned are one and the same, to wit, the supposed cause of action in the first count of the said declaration mentioned, and not different causes of action; and that the execution of the writing or supposed promissory' note in that count men- tioned was obtained from him, the said E. F., by the said J. K. {the payee) and the said C. D., {the principal, and co-defendant,) by the use of fraud and circumvention, that is to say, that the said J. K. and C. D., colluding to injure and defraud the said E. F., before the execution of the said writ- ing, to wit, on the said {date of note), in the county aforesaid, falsely and fraudulently represented to the said E. F. that if he would execute the said writing as a surety for the said C. D., one L. M. would also execute the same as a co-surety; and the said J. K. and C. D. then and there falsely and fraudulently promised the said E. F. that the said writing should not be delivered to or received by the said J. K. unless the said L. M. should so execute the same as aforesaid; and thereupon the said E. F., confiding in the false and fraudulent representation and promise aforesaid, then and there executed the said writing as a surety for the said C. D. , and not otherwise, and without any consideration whatsoever. And the said E F further says, that thereupon the said writing was by the said C. D. then and there fraudulently delivered to the said J. K., and by him fraudulently re- ceived, although the said L. M. did not nor would then or at any other time execute the said writing as a co-surety as aforesaid , or otherwise And this, etc. {conclude tcith a verification, as in No. 85, ante). No. 102. Replication to No. 100 or No. 101, denying that execution of instrument was obtained by fraud. {As in No. S6, ante, to the asterisk, and then proceed :) that the execution of the said promissory note was obtained fairly, and not by the fraud or cir- cumvention of the plaintiff, {or, if action is by an assignee "of the said J. K.") in manner and form as the defendant {or " the said E. F.") has above in that plea alleged : And this the plaintiff prays may be inquired of by the country, etc. ' Easter v. Minard, 26 111. 494. 176 DEFENSES TO THE ACTION OF ASSUMPSIT. PLEA OF USURY. The act of 1879— in relation to interest and usury — as amended by act of 1891, provides that parties to contracts may agree upon any rate of interest not exceeding seven per cent per annum; and that if any greater rate shall be reserved the whole of the interest shall be forfeited and only the principal sum shall be recovered. " The defense of usury shall not be allowed in any suit, un- less the person relying upon such defense shall set up the same by plea, or file in the cause a notice in writing stating that . he intends to defend against the contract sued upon or set off, on the ground that the contract is usurious." ' The defense of usury is regarded as in the nature of a penal action, and not only is great strictness required in the plead- ings, but the contract must be proved as alleged, by a clear preponderance of the evidence.' It is not sufficient to plead , in o-eneral terms, that a transaction was usurious; the fact con- stituting the usury must be set forth.* Usury is not to be pre- sumed in any case. It must be made to appear from the evi- dence in the case. If it appears on the face of the instrument sued on, no other proof would seem necessary, provided usury has been set up and is relied on by way of plea, or a notice filed with the general issue.* The plea should only profess to answer so much of the declaration or count as it really does answer.^ Under a statute which provided a penalty of three-fold the amount of the interest, and that the defendant should recover costs, it was held that this defense was in the nature of a penal action, and great strictness would be required in pleading it, and that the plea should state specifically the amount forborne, the time of forbearance, and how much was paid, or agreed to ' Rev. Stat. (1893), 878; Rev. Stat. v, 3Iorris, 57 111. 138; Goodwin v. (1895), 928; 1 Starr & Curtis 1367; Bishop, 50 III. App. 145. see forms of plea; Wilday v. Mor- * Wilson v. Kirby, 88111. 566; Mur- Wson. 66111. 532. ry \. Crocker, 1 Scam. 212: Smith 2 Mosier v. Norton, 83 111. 519, v. Whitaker, 23 111. 367; Partlow v. 'i Hosier v. Norton, 83 111. 519; Williams, 19 lU. 132; Frank r.Mor- Hoskins v. Cole, 34 111. App. 541; ris, 57 111. 138; Bank v. Barton, 21 Dunham v. Tucker, 40 111. 520; Frank 111. App. 403. » Nichols V. Stewart, 21 111. 106. DEFENSES TO THE ACTION OF ASSUMPSIT. 177 be paid, by way of interest.' To constitute usury, there must be a borroAving and lending of money, or the forbearance of a pre-existing debt.* Discount, or the taking of the legal rate of interest in advance, is not usury.' Under laws declaring usurious contracts void, the lender is never allowed to take advantage of the statute, because he is the guilty party; but the borrower may do so, because he is not a. pari ice2?s crhninis. This principle is applied to every contract declared to be void by statute, in the making of which but one of the parties is guilty of a violation of the law.* Any contract or assurance for the loan or forbearance of money, or any other thing, upon which a greater rate of inter- est than the law permits has been directly or indirectly re- served, discounted, or taken, is usurious.^ The statute against usury can not be evaded by a substitution of securities.* The defense of usury can not be set up against a note in the hands of an assignee in good faith, who received the note be- fore its maturity, and without notice of the usury.'' But if a note tainted with usury is assigned by the payee to a creditor, as collateral securit}^ for a pre-existing debt, though the latter is a holder for a valuable consideration, he is so only to the ex- tent of the debt due to him; and the same defense may be made to the residue of the note as if it had not been assigned.' Where a note provides that if it is not paid when due a greater rate of interest than is allowed by law shall be paid ' Hancock v. Hodgson, 3 Scam. ^ Delano v. Rood, 1 Gilm. 690; 309. Leonard v. Patton, 106 111. 99; 2 ij)id. Bank v. Davis, 108111. 633; see Har- '^ McGill V. Ware, 4 Scam. 21; ris v. ^ressZe?-. 119 111. 467; L'ressZer Goodrich v. Reynolds, 31 111. 490; v. Harris, 19 Bradw. 430. see Hamill v. Mason, 51 111.488; ^Hunter v. Hatch, 45 111. 178; Mitchell V. Lijman, 77 111. 525; Lovelandv. Ritter, 50 111. bi; Say- Colehour v. Sav. Inst., 90 III. 152; lor v. Daniels, 37 111. 331; Harris v. Broimv. S. A. M. Co., 110 111. 235; Dressier. 119 111. 467; McGuire v, Hoyt V. Paiotucket, 110 111. 390; Tel- Campbell 58 III. App. 188. ford V. Garrels, 132 111. 550; Max- ■> Conkling v. Underhill, 3 Scam. ivellv. Willett. 49 111. App. 564; Po- 388; Saylor v. Daniels, 37 111. 331; len V. Palmer, 53 111. App. 223; Hos- Hememvay v. Cropsey, 37 111. 357; kins V. Cole, 34 111. App. 541. Wooduorth v. Huntoon, 40 111. 131. * Ferguson v. Sutphen, 3 Gilm. ^Saylor v. Daniels, 31 lU.r 31; see 547; Durst v. Bates, 95 111. 493. Kleeinan v. Frisbie, 63 111. 483. 12 ITS DEFENSES TO THE ACTION OF ASSUMPSIT. from that time, the contract will not be considered usurious.' If, however, a note should be given, due at its date, or in a short time, so as to induce the belief that it was only designed to evade the statute, it would be deemed usurious/ A provision in a promissory note for the payment of the high- est legal rate of interest from its date, annually, and if not so paid, the annual interest should become principal and bear the same rate of interest as the original principal, does not render the note usurious, and the principal is recoverable with the interest named. But the law will not allow the recovery of compound interest. There are but two exceptions to this latter rule : first, in rela- tion to interest-bearing coupons attached to bonds, or other securities, for the payment of money. Such coupons, when payable to bearer, have, by commercial usage, the legal effect of j^romissory notes. The interest on such bonds is not com- pounded indefinitely, but once only. The second exception is in cases where, the interest having become due and remaining unpaid, the debtor then agrees to have the accrued interest added to the principal and become interest-bearing.^ An agreement in a note that in the event that it is not paid at maturity, and shall be placed in the hands of an attorney for collection, the maker will pay a specified sum as attorney's fee, is not usurious.* A note made payable one day after date, and if not paid when due to draw twenty per cent interest, is usurious, if it was the understanding of the parties that it should not be paid when due, but should draw the rate of interest specified." If there is no design to evade the statute against usury, interest at a rate greater than the legal one may be agreed to be paid ^ Funk V. Buck, 91 111. 515; Colony ^ Botmian v. Neelij, 137 111. 443; V. Edgerton, 26 111. 54; Gould v. same case, 151 111. 37; Telford v. Colony, 35 111. 324; Davis v. Eider, Garrels, 132 111. 550. 53 111. 416; Sanner v. Smith, 89 111. * Barton v. Bank, 122 111. 352; 123; Downey v. Beach, 78 111. 53. Bicker v. Scofield, 28 111. App. 32. 2 Gould V. Colony, 35 111. 324; » Osbom v. McCoicen, 25 111. 218; Davis \. Rider, 5S 111.416; Pike v. Gould v. Colony, 35 III. 324; see Crist, 63 111. 461; Wilday v. Mor- Walker v. Abt, 83 111. 226; Burke v. rison, 66 111. 532; Witlwoiov. Briggs, Raab, 4 Bradw. 338. 67 111. 96. DEFENSES TO THE ACTION OF ASSUMPSIT. 179 for delay in the pa^nnent of money after it becomes due, though no certain time of forbearance is agreed upon.' It is not presumed that the purchaser of a note from the payee, a bill-broker, knew that the transaction in wliich the note was given was usurious, merely because such broker had before sold other notes to the same purchaser at usurious rates. A payee of a note may sell it at such rate as he may choose."* In equity, a creditor defendant, against whom his debtor obtains relief on the ground of usury in the contract, forfeits only so much interest as is in excess of the amount allowed by law — upon the principle that be who seeks equity must do equity; ^ but a creditor complainant, where the transaction is shoAvn to have been usurious, forfeits all interest.* In Illinois, since the passage of the act of 1857, usurv vol- untarily paid can not be recovered," or even when paid by means of a sale of property under a power of sale contained in a mortgage;^ nor can it be made available under a plea of set- off.' It would seem, however, to be otherwise, at least in equity, where the payment was compulsory, and under circum- stances where the debtor could not make the defense.* But although money voluntarily paid as usury can not be recovered, still, so long as any part of the debt remains unpaid, the debtor may insist on a deduction of the usury there- from. The usury received is considered as havino- been extorted by means of the debt, and is to be applied in part pav- ment of the same.* A debtor on settlement, mav, if he ^ Colony Y. Edgerton, 26 111. 54; TompMns v. Hill, 2S1\\. b\^; Manny Peavler v. McLaughlin, 20 Bradw. v. Stockton, 34 111. 306; Ramsey \. 536; Bressler V. Harris, 19 Bradw. Perley, MIl\. 504:-, Saylor v. Daiiiels, 480. 37 111. 331; Town v. Wood, 37 111.' ^ Sherman v. Blackman, 24 111. 512; Carter v. 3Ioses, 39 111. 539; 345; Colehour v. Sav. Inst., 90 111. Pitts v. Cable, 44 111. 103; Pedicord 152. V. Connard, 85 III. 102; Scroggin v. 2 Farwell v. 3Ieyer, 35 111. 40; Broivn, 14 Bradw. 340. Stephen v. Cushman, 35 111. 186; ^ Perkins v. Conant, 29 111. 184. Cushman v. Stephen, 42 111. 256; 'iJadden v. Jn«es, 24 111. 381. Kinsey v. Nisley, 23 111. 505; Tooke ^ Woodivorth v, Huntoon, 40 111. V. Newman, lb 1\\.%\1. 131; see Mason v. Pierce, 142 111. * Snyder v. Griswold, 37 111. 216; 331. but see Mapps v. Sharp, 32 111. 13. ^ Farwell v. Meyer, 35 III. 40. ^Hadden v. Jnnes, 24 111. 381; Booker \. Andei-son, 35 111 GO; Say- ISO DEFENSES TO THE ACTION OF ASSUMPSIT. chooses, allow interest on annual interest due and unpaid, and this will not render the transaction illegal/ Where A. and others give their note to B., to satisfy a debt from him to C, and the note is usurious, the makers of the note may avail themselves of the defense of usury/ Privies as well as parties to a usurious transaction have a right to take advantage of the statute against usury/ But one cred- itor can not raise against another the question of usury in be- half of the debtor/ By the statute of Illinois, interest may be recovered on a sum agreed upon as due, from the time of the agreement/ To interpose the defense of usury to a note made in another state, the defendant should plead the statute of that state, if there be one, which the note violated/ as usury is illegal only as it is made so by statute/ A contract reserving interest at any rate which is authorized by the law of the country where such contract is made, or where it is to be performed or paid, will be recognized and en- forced in a court of another country, though by the laAv of the latter such rate of interest may be usurious/ Where a note is made payable at a particular place, it will be presumed that the parties intended to adopt the law of that place in respect to the rate of interest/ lor V. Daniels, 37 111. 331; Parmalee Stiger v. Bent, 111 111. 328; Darst v. V. Laicrence, 44 111. 405; Reinback v. Bates, 95 111. 493; Mason v. Pierce, Crahtree, 77 111. 1S2; Mitchell v. 143 111.331; Bank v. Bank, 123 111. Lyman, 11 111. 525; House v. Davis, 510. 60 111. 3G7; Pike v. Crist, miW. 461; ^Colony v. Edgerton, 26 111. 54; Riddle v. Roscnfield, 103 111. 600; 1 Starr & Curtis 1356; Clark v. Dut- Harrisy.Bressler.WMW. 467; Bress- ton, 69 111. 521; Ditch v. Vollhardt, ler V. Harris,ld Bradw. 430; Mason 82 111. 134. V. Pierce, 142 111. 331. « Giddings v. McCumber. 51 111. ' Haworth v. Haling, 87 111. 23; App. 373; Barnes v. Whittaker, 22 Jenkins v. Greenbaum, 95 111. 11; 111. 606; Chrisman v. Garr, 14 Jenkins \. Bank, 97 111.568; McGov- Bradw. 405. ern\. Ins. Co., 109 111. 151; Telford 'Tyler on Usury 65. V. Garrets, 132 111. 550. « McAllister v. Smith, 17 111. 328 2 Nickerson v. Babcock, 23 111. 561. see Adams v. Robertson, 37 111. 45 ^Saffordv. Fat7, 22 111. 327; Hen- Griffin v. Marine Co., 52 111. 130 derson v. Bellew, 45 III. 322; Valen- Palmer v. Marshall 60 111. 289; Har- tine X. Fish, 45 111. 462. ris v. Bressler, 119 111. 467. * Adams \. Robertson, 37 111. 45; » Ibid. DEFENSES TO THE ACTION OF ASSUMPSIT. 181 A court of law may open a judgment rendered on a cognovit, and let the defendant in to plead to the merits, where usury is alleged to constitute a part of the amount recovered — the judgment continuing in force, for the security of the plaintiff, till the determination of the issue, when it may be reduced, or set aside, if the verdict shall so require,' The statute of Anne made contracts reserving usurious in- terest void, but the Illinois statute of 1833 (and 1845) did not, and the rights of parties under the two statutes were very dif- ferent.^ The statute of Illinois of 1849 attached no penalty to an usurious transaction; it merely modified the contract, so that the defendant should be bound to pay only the principal sum, with legal interest.^ The sixth section of the interest law of 1845 (Illinois) by its terms only gave an action for the recovery of three-fold the amount of the interest paid on an usurious contract, and did not provide a defense against usury contracted for and unpaid,* The fourth section of the act of 1845, above mentioned, pro- vided for a forfeiture of three-fold of the amount of the inter- est reserved, if interest at a higher rate than six per cent should be received,, or agreed to be paid. This act was amended by the act of 1849, which allowed the reserving of interest, in contracts for money loaned, at any rate not exceeding ten per cent per annum. The act of 1857 allows parties to contract for the payment of interest at an}'- rate not exceeding ten per cent per annum, on " money loaned or in any manner due and owing," and provides that all the interest reserved shall be for- feited, in case a higher rate is agreed upon — repealing all other laws providing penalties for the reserving of usurious interest," Under the present statute, when the defense of usury is estab- lished the plaintiff can only recover the principal, less all pay- ments made up to the time of trial, No interest for a period before or after the maturity of the note can be recovered,^ 1 i^'Zemfngf V. Jencfcs, 23 III 475. Hawhe v. Smjdaker, 86 III. 197; ^ McGill V. Ware, 4 Scam. 21. Maker v, Lanfrom, 86 111. 513. 3 Nichols V. Stewart, 21 lU. 106. « Stein v. Goldsmith, 44 111. App. < Lvcas V. Spencer, 27 111. 15. 108; see Harris v. Bressler, 119 III. i Matthias v. Cook, 31 111. 83; 467. 182 DEFENSES TO THE ACTION OF ASSUMPSIT. The act of May 24, 1879/ forbids corporations to interpose the defense of usurj'-; and this statute applies to insurance com- panies as well as to other corporations." But although the debtor is a corporation and therefore incapable of interposing the defense of usury, a contract by it to pay more than the leo-al rate of interest is nevertheless unlawful and can not be enforced/ The contract is governed by the law in force at the time the contract was made/ Loans made according to the provisions of the act for the incorporation of loan associations have been held to be not usurious," Brokers negotiating loans of the money of others ma}'^ charge the borrower commissions without thereby making a loan at the full rate of legal interest usu- rious." See further, as to the law relating to usury, in Illinois, the additional cases noted below.' No. 103. Plea of usury. (First plea, non assumpsit, as ante, No. S2.) And for a further plea in this behalf, the defendant says that the plaintiif ought not to have his afore- said action against him, the defendant, for any greater sum than^ve thou- sand dollars {the sum actually received by the defendant), because, he says, that the several supposed causes of action in the said declaration mentioned are one and the same, to wit, the supposed cause of action in the first count of tlie said declaration mentioned, and not different causes of action; and ' 1 Starr & Curtis 1368; Rev. Stat. "< Leonard v. Patton, 106 111. 99; (1893), 879; Rev. Stat. (1895), 929. Bank v. Davis, 108 111. 633; Thayer - Ins. Co. V. Hadden, 28 111. 260; v. Mining Co., 105 111. 540; Payne v. Hurdv. Mari^le, 2 Bradw. 402. Neivcomb, 100 111. QU; Kihlholz v. 3 Bank v. Ry. Co., 145 111. 208. Wolf, 103 111. 362; 3Ieers v. Stevens, * Matthias v. Cook, 31 111. 83. 106 111. 549; Goodrich v. Rogers, 101 5 Freeman v. Ass'n, 114 111. 182; HI. 533; Cox v. Ins. Co., 113 lU. 382; Holmes v. Smith, 100 111. 413; Ass'n Cooper v. Nock, 27 111. 301; Ins. Co. V. Cady, 55 111. App. 469. v. Hadden, 28 111. 260; Johnson v. ^ Ballinger\.Bourland,SlT[\.^\^; Thompson, 28 111. 352; Blair v. Phillips V. Roberts, 90 111. 492; Boyl- Chamberlain, 39 III. 521; Durhamv. stonv. Bain, 90 111. 283; Hoyt v. Tucker, iOlW. 519; King v. Cushman, Ins. Co., 110 111. 390; Cox v. Ins. 41 111. 31; Parmaleev. Laivrence, 48 Co., 113 111. 382; Goodwin v. Bishop, Hi. 331; R. R. Co. v. Miles, 52 111. 145 111. 421; Callender v. Roberts, 174; Galbraith v. Fullerton, 53 111. 17 111 App. 539; Telford v. Garrets, 126; Driscoll v. Tannock, 76 111. 154; 132 111. 550; Proof Co. v. Bank, 145 Reinback v. Crabtree, 77 111. 182. 111. 481; Sanford v. Kane, 133 111. 199. DEFENSES TO THE ACTION OF ASSUMPSIT. 183 that before the making of the supposed promissory note in that count men- tioned, to wit, on, etc., in, etc., it was corruptly and unlawfully agreed be- tween the plaintiff and the defendant that the plaintiff should lend to the defendant the said sum of five thousand dollars, and should forbear the same to him for the space of months from that day, and that the defendant, for the loan and forbearance of the said sum of money as aforesaid, should pay to the plaintiff, at the end of that space of time, the sum of five hun- dred dollars, making, with the said sum of money so to be lent to the de- fendant as aforesaid, the sum of five thousand five hundred dollars in the said note mentioned, and also that the defendant should then pay to the plaintiff interest on the last mentioned sum of money, fi'om the day first aforesaid, at the rate of ten per centum per annum, and that to secure the payment as aforesaid of the last mentioned sum of money and the said in- terest, the defendant should make and deliver his promissory note therefor to the plaintiff; and the defendant further says, that thereupon, on the day first aforesaid, in pursuance of the said corrupt and unlawful agreement the plaintiff tliere lent to the defendant the said sum of five thousand dol- lars; and that to secure the payment thereof and of the said sum of five hundred dollars as aforesaid, with interest on both those sums of money as aforesaid, he, the defendant, in further pursuance of the said corrupt and unlawful agreement, theri and there made and delivered to the plaintiff the said promissory note in the first said count mentioned, and the plaintiff then and there received the said note of the defendant, in pui*suance of the said corrupt and unlawful agi-eement, and for the purpose aforesaid. And the defendant avers that the said sum of five hundred dollars, and the in- terest aforesaid of the said sum of five thousand five hundred dollars, ex- ceed the rate of eight dollars for the forbearing of one hundred dollars for one year, contrary to the form of the statute, etc. By means whereof, and by force of the said statute, the said note, so far as the amount thereof ex- ceeds the said sum of five thousand dollars, was and is wholly void in law. And this, etc. {conclude with a verification as in No. 85, ante). The averments of the plea will, of course, vary according to the circumstances of the case. The replication may be as follows : No. lOJ^. Replication to No. 103, that note was given on a legal contract. {As in No. S6, ante, to the asterisk, and then proceed:) that the said prom- issorj' note was made for a good and legal consideration, and not in pursu- ance of the corrupt and unlawful agreement, or for the purpose, in the said second plea mentioned, in manner and form as the defendant has above in that plea alleged- And this tlie plaintiff prays may be mquired of by the country, etc. PLEA OF SET-OFF. If the defendant desires to set off any counter claim not in- cluded in the subject-matter of the action, as set up in the dec- lS4r DEFENSES TO THE ACTION OF ASSUMPSIT. laration, he must plead it specially or give notice in writing under the general issue.' A set-off or counter claim can be pleaded only when there is an indebtedness from the plaintiff to the defendant which might be made the subject of an in- dependent suit, and the filing of a plea of set-off is tantamount to the institution of a cross-action by the defendant against the plaintiff in the same proceeding.* The defendant assumes the attitude of the plaintiff and is bound to prove the same facts in relation to his demand as if he had instituted an ac- tion upon it.* The plea must describe the debt intended to be set off, with the same certainty as a declaration for the like demand.* A plea of set-off so much resembles a declaration, that two parts of such a plea are considered as two counts in a declaration, and if one part is good, a general demurrer to the whole is bad.^ This defense exists only by virtue of the statute, as at com- mon law a defendant could not set off his demand against that of the plaintiff.* The statute is permissive, and not compul- sory, and the defendant may waive his right, and bring an action against the plaintiff.' Under this plea the defendant can only introduce by way of set-off such demands as Avere existing- causes of action in his favor at the time the suit was instituted. He is not permitted, after he has notice of the suit, to buy up claims against the plaintiff, and, by producing them on the trial, defeat the plaintiff's action, and subject him to costs.* > Chitty's PL 595; Cox v. Jordan, 560; Pettis v. Westlake, 3 Scam. 535; 86 III. 560; Waterman v. Clark, 76 Kelly v. Garrett, 1 Gilm. 649. 111. 428; Hubbard v. Rogers, 64 111. "- 1 Chit. PI. 496. 434; Stow v. Yarwood, 14 111. 427; *Babb on Set-off, 1; Mwton v. Jockisck V. Hardke, 50 111. App. 202; Bailey, 1 Scam. 214; Borsdisenius v. Theodorson v. Ahlgren, 37 111. App. Canutson, 100 111. 82. 140. ' Morton v. Bailey, 1 Scam. 213; « Litch V. Clinch, 136 111. 410. Tompkins v. Gerry, 43 111. App. 255; ^ Kelly V. Garrett, 1 Gilm. 649; Litch y. Clinch, 13QI\\.A\(); Farrow Ellisv. Cothran, 117 111. 458; Harber v. Flatt, 61 111. App. 118. V. Cycle Co., 151 111. 84. » Pettis v. Westlake, 3 Scam. 538; * Chit. PI. 495; R. R. Co. v. Dodge, 2 Steph. N. P. 538; Ayre's v. M'Con- 72 111. 253; Breen v. Sullivan, 5 net, 15 111. 230: Ri/an v. Burger, 16 Bradw. 449; Cox v. Jordan, 86 111. 111. 28; Mack v. Woodruff, 87 lU. 570; DEFENSES TO THE ACTION OF ASSUilPSIT. 18o Unliquidated damages, arising ex contractu, may be set off in an action of assumpsit.' This, however, can not be done where the claim for unliquidated damages is totally uncon- nected with the plaintiff's cause of action.'' A separate demand can not be set off against a joint demand nor a joint debt against a separate debt.' Only such de- mands can be set off as are mutual between the parties to the suit, or the parties in interest,' and in their own right.^ In a suit against a party and his sureties, a debt or demand due from the plaintiff to the principal defendant, may be set off.® Where the maker of a note seeks to set up as a defense, in a suit by an indorsee after maturity, a cross-demand which the maker had against the payee and indorser before the assign- ment, such demand, or so much thereof as may be necessary, should be pleaded specially, under the statute, and not as a set- off.' The words "claims or demands," as used in the ITth section of the Illinois Practice Act of 1827, embraced all claims or de- mands arising out of contracts, whether express or implied.* Section 29 of the act now in force is substantially the same.'' Ellis V. Cothran, \m\\. ihS; Dryer HilUard v. Walker, 11 111. 644; Co. V. Livermore, 60 111. App. 390; Ryan v. Barger, 16 Hi. 28; R. R. Co. Sprigg v. Oranneman, 36 111. App. v. Neill, 16 111. 239; Walker v. Cho- 103. vm, 16 111. 489; Hinckley v. West, ' Bridge Co. v. Shannon, 1 Gilm. 4 Gilm. 136; Sergeant v. Kellogg, 5 15; Edwards v. Todd, 1 Scam. 462; Gilm. 273; Gregg v. James, Breese, Nichols V. Ruckells, 3 Scam. 298; 143; Lemon v. Stevenson, 36 111. 49; East V. Crow, 70 111. 91; Underwood Lemon v. Baldwin, 36111. 53; Coats V. Wolf, 131 111. 425. V. Prestoyi, 105 111. 470; Scammon ^Sergeant v. Kellogg, 5 Gilm. 273; v. Kimball, 92 U. S. 362. Haivksv. Layids, S Gilm. 221; Harts- ^ R. R. Co. v. Neill, 16 111. 269; horn V. Kinsman, 16 Bradw. 555; Ayres v. McConnel, 15 111. 230; see Clause V. Press Co., 118 111. 612; 3IcCord v. Crocker, mm. 55Q. Dock Co. V. Dunlap, 32 111. 207; De ^ Hivirod v. Baugh, 85 111. 435 Forrest v. Oder, 42 111. 500; Robin- see Waterman on Set-offs, Sec. 237 son V. Hibbs, 48 111. 408; Dev. Co. v. Graff v. Kahn, 18 Bradw. 485 Clapp, 50 111. App. 301. Hayes v. Cooper, 14 Bradw. 490. 3 Chit. PI. 571; Ryan v. Barger, •» Favorite v. Lord, 35 111. 142. 16 111. 28; Burgwin V. Babcock, 11 ^Nichols v. Ruckells, d Scam. 299; 111. 28; HilUard v. Walker, 11 111. Edwards v. Todd, 1 Scam. 462. 644. 9 Starr & Curtis 1791; Rev. Stat. * Burgwin v. Babcock, 11 111. 28; (1893), 1075; Rev. Stat. (1895), 1159. 186 DEFENSES TO THE ACTION OF ASSUMPSIT. Mutual demands arising out of the same subject-matter, and capable of being balanced against each other, may be adjusted in one action, by recoupment. It is not necessary that the op- posing claims should be of the same character, A claim orig- inating in contract may be set up against one founded in tort, if the counter claims arise out of the same subject-matter, and are capable of adjustment in one action. The defendant in such case can not, however, as in the case of a set-off, recover any excess in his favor. His claim is used in mitigation of damages only.* The materia] difference between set-off and payment as a de- fense is, that it is optional with the defendant to plead his set- off in defense or make it the subject of an independent suit, while, ordinarily, at least, the defense of payment must be pre- sented and litigated in the suit brought to recover the indebt- edness alleged to have been paid, or it will be barred and lost.'^ It has been held in Indiana that where, in a suit upon a promissory note in which one of the defendants is principal and the other surety, the defendants plead as a set-off a debt of the plaintiff to the principal, the plaintiff may, in order to meet the plea, set up in reply any debt from the principal to the plaintiff, or to any former holder of the note, which is a legit- imate subject of set-off; and the excess only of the defendant's claim shall go in bar of the action.' An amount not due, claimed as a set-off to a former suit, and not allowed, may, after it becomes due, be recovered,* A court has discretion to allow items of set-off' that have been withdrawn to be again filed. ^ A judgment recovered after action brought, and after plea pleaded, can not be set off against the ])laintiff's demand.' A defendant can set off a judgment obtained b}'' a third party against the plaintiff and assifi'ned to the defendant before suit brought.^ ^Stoxv V. Yarimod, 14 111. 424; ^ i2. i2. Co. v. Zeep, 22 111. 9. Tully V. Iron Works, 115 III. 544; ^ Irvin v. Wright, 1 Scam. 135, Clause V. Printing Co., 20 Bradw, Waterman on Set-off, 93, 365 113. Ford V. Steioart, 19 John. 343 '- Litch V. Clinch, 136 111. 410. Wright v. Cobleigh, 3 Foster 32 3 Turner v. Simpson, 12 Ind. 413. Wilson v. Reeves, 4 Sneed. 173 ^Crabtree v. Welles, 19 111. 55; Young v. Young, d2 III App. 109. Cary v. Bancroft, 14 Pick. 315. DEFENSES TO THE ACTION OF ASSUMPSIT. 1S7 A defendant is not bound to set off his debt against the plaintiff's demand, except in suits before a justice of the peace.' The personal debt of an executor or administrator can not be set off against a debt due to the estate.* In an action to re- cover a debt accruing to an administrator after the death of the intestate, the defendant can not set off a debt which was owing to him from the intestate in his lifetime." An administrator is not bound to set off any debt or de- mand against a claim presented by a creditor against the estate, and his omission to do so will not bar an action against such creditor.* A note payable in mason-work is not assio-n- able so as to enable the assignee to plead it as a set-off to an action against him, or to enable him to institute a suit thereon in his own name.^ Where the plaintiff brought an action of assumpsit against the defendants to recover for the transportation of goods from Buffalo to Chicago, it was held that the defendants might give in evidence under the general issue, and a notice, either by way of set-off or in reduction of damages, that a part of the goods had been lost or destroyed on the voyage by the carelessness or negligence of the plaintiff." The defendant can not be allowed a set-off, nor can accounts between the parties be adjusted, in an action of trover.'' "Where bank-notes were introduced by way of set-off, in a suit where the bank was plaintiff, it was held that the defend- ant must prove that he held them when the suit was com- menced.* A banker can not set off a demand he holds against the presenter of a check on such banker.' A claim against a plaintiff in a representative capacity, can not be set off in a suit brought in his individual capacity.'" It may be shown that the plaintiff in a suit is a trustee of the payee of the note sued on, so as to let in a set-off against the ^Morton v. Bailey, 1 Scam. 214; ^Ransom v. Jones, 1 Scam, 291. see Buckner v. Thompson, 11 111. ^Edwards v. Todd, 1 Scam. 462. 563. ''Keaggy v. Hite, 12 111. 99. •2 Wisdom V. Becker, 52 111. 342. ^Kelly v. Garrett, 1 Gilm. 169. ^Neivhall v. Turney, 14 111.338; ^ Broun Y.Leckie,A^l\\.4Sil; Coats Harding v. Shepard, 107 111. 264. v. Preston, 105 111. 470. ^Morton v. Bailey, 1 Scam. 214; ^^Greww. Burditt, 9 Pick. 265. Cook V. Lovell, 11 Iowa 81. 188 DEFENSES TO THE ACTION OF ASSUMPSIT. payee.* In a suit on a note assigned after maturity, a set-off against the assignor is allowed." But the demand of the maker against the payee should in such case be pleaded specially, and not as a set-off.' In an action by a surviving dormant partner, the defendant may set off a debt due from the partnership.* Courts of equity will sometimes interfere to set off one judg- ment against another, if a party is unable to enforce his judg- ment at law.^ An order drawn by the mayor of a city on its treasurer, com- monly called a city order, is a proper subject of set-off in a suit brought by the city against the holder to recover a penalty for a breach of an ordinance of the city.® A set-off is not allow- able in a proceeding by scire facias for foreclosure,' or in debt on a judgment.' But as to suits on judgments, etc., in Illinois, see section 18, above referred to, of the Practice Act of 1872. The defendant may plead a set-off in a proceeding by distress for rent.' Where suit is brought by a party in his own name, for a debt due him, in trust for another, and the nominal plaintiff has no interest in the cause of action, it seems the better rule is to allow the defendant to set off so much of any demand held by him against the beneficial plaintiff, as will sat- isf}^ the plaintiff's demand, and thus lessen litigation.'" Section IT of the limitation act gives the defendant the right to plead a set-off barred by the statute while held and owned by him, to any action the cause of which was owned by the plaintiff, before such set-off was barred; and the defendant, as to such set-off, may recover judgment against the plaintiff for any balance found to be due him.'^ 1 Hen}'?/ V. S^coff, 3 Ind. 412. ^Springfield v, HicJcox, 2 Gilm. ^Driggs v. Rockwell, 11 Wend. 241. 504: Mead v. Gillett, 19 Wend. 397. ■> Woodbury \. Mcmlove, 14 III. 218; 3 Favorite v. Lord, 35 111. 142. Shetoe v. Ellis, 14 111. 75. 4 Beach v. Hayward, 10 Ohio 455. ^Rae v. Hurlbut, 17 111. 572. ^Buckmaster v. Qrundy, 3 Gilm. ^Rev. Stat. (1893), 922; Rev. Stat. 626; Wade v. Wade, 12 111. 89; see (1895), 977; 2 Starr & Curtis 1502; see Phelps V. Reeder, 39 111. 172; Doivns Cox v. Jordan, 86 111. 560; Crate v. V. Jackson. 33 111. 465; Raleigh v. Kohlsaat, 44 111. App. 460. Raleigh, 35 111. 512; Derby v. Gage, ^'^ Rothschild v. Brvscke, 131 111. 265 38 111. 27; Matson v. O'Berne, 25 111. ''Rev. Stat. (1893), 941; Rev. Stat. App. 213. (1895), 1003; 2 Starr & Curtis 1556; DEFENSES TO THE ACTION OF ASSUMPSIT. 189 No dismissal after plea of set-off. — Section 30 of the Prac- tice Act provides that when a plea or notice of set off shall have been interposed, the plaintiff shall not be permitted to dismiss his suit without the consent of the defendant, or leave of the court.' The additional Illinois cases noted below may be consulted on the subject of set-off." See also observations under the form of notice of set-off under general issue, No. 84, page 151, arite. No. 105. Plea of set-off. (First 2^1 ea, non assumpsit, as ante, No. 83; second plea as in No. S5, ante, to the asterisk, and then proceed:) that the plaintiff was before and at the time of the commencement of this suit, and still is, indebted to him, the defendant, in the sum of dollars, for (liere set forth the matter or mat- ters of set-off; demands such as tvould be recoverable under common counts may be stated as in such counts — see consolidated common counts, ante. No. see Ste^re v. Broumell, 124 111. 27; Broicn v. 3Iiller, 38 111. App. 263; Sherman v, Slierman, 36 111. App. 482. ' Eev. Stat. (1893), 1075; Rev. Stat. (1895), 1159; 2 Starr & Curtis 1797; see Savings Inst. v. Brockschmidt, 72 111. 370; E. St. Louis V. Thomas, 9 Bradw. 412; Tel. Co. v. Horasck, 9 Bradw. 309; Butler v. Cornell, 148 111. 276, ' Parkinson v. Trousdale, 3 Scam. 367; R. R. Co. v. Neill, 16 111. 269; Bull V. Ghnswold, 19 111. 631; Mer- ritt V, Merritt, 20 111. 65: Stoio v, Yarwood, 20 111, 497; Crabtree v. Kile, 21 111, 180; Morton v. McClure, 22 111. 257; Hinrichsen v. Reinbeck, 27 111. 295; Allen v, Breusing, 32 111. 505; Heckenkemper v, Dingivehrs, 32 111. 538; Willets v. Burgess, 34 111. 494; Peck v. Bligh, 37 111. 317; Pack- icood V. Gridley, 39 111. 388; Bradley y. King, 44 111. 339; King v. Bradley, 44 111. 342; Messmore v. Larson, 86 111, 268; Raymond v. Kerker, 81 111. 381; Stinson v. Gotdd, 74 111. 80; Zuckerman v, Solomon, 73 111, 130; Gaddis v. Leeson, 55 111. 522; Clays V. White, 65 111. 357; Freiborth v. Mann, 70 111. 523; Lockhartv. Wolf, 82 111. 37; Seavey v. Carrington, 4 Bradw. 324; Engs v. Matson, 11 Bradw. 639; Ellis v. Bank, 11 Bradw. 275; Hariris v. Pierce, 5 Bradw. 622; Buchanan v. Meisser, 105 111. 635; Howev. Hickox, 106 111. 461; Hozce v.Frazer,}!! 111. 192: R. R. Co. v, Ennor, 116 111. 67; Dodge v. People, 113 111. 496; M. Co. v, Kelly, 26 111. App. 394; Wolf v. Beaird, 123 111. 588; M'ieland v. Oberne, 20 111. App, 119; Bank v. Jones, 119 111. 409; Bank V. Banking Co., 114 111.487; Wenner v. Penny, 17 111. App. 629; Aholzy. Gultra, 114 111. 241; Hayden V. Bank, 29 111. App. 464; Ass. Co. V, Scammon, 133 111. 632; Murtaugh V, Colligan, 28 111. App. 437; Cald- well V. Evans, 39 111. App. 615; Roths- child V. Brusckki, 131 111. 270; Jeffers V, Jeffers, 139 111. 368; Rulfv. Rich. 149 111. 436; Morgan v. Campbell, 54 111, App. 242; Harper X. M. C. Co., 151 111, 84; Snell v. Ball, 55 111. App. 501; Leavitt v. Stern, 159 111. 526; Osgood V. Groseclose, 159 111. 511. 190 DEFENSES TO THE ACTION OF ASSUMPSIT. 2G; demands by virtue of specialties, records and sjjecial contracts shotdd he set forth specially: ) which said sum {or " sums ") of money so due from the plaintiff to the defendant, as aforesaid, exceeds (or " exceed") the damages sustained by the plaintiff by reason of the non-performance by the de- fendant of the several supposed promises in the said declaration mentioned, and out of which said sum (or "sums") of money the defendant is ready and willing, and hereby offers, to set off and allow to the plaintiff the full amount of the said damages. And this, etc. {conclude with a verification, as in No. S5, ante). No. 106. Replication of statute of limitations to a plea of set-off. {Venue, and title of cause.) And the plaintiff as to the said plea of the defendant, by him above pleaded, says precludi non, because, he saj's, that the said several supposed debts and causes of set-off in the said plea mentioned, did not, nor did any or either of them, arise or accrue to the defendant at any time within ^ue years next before the exhibiting of the bill of the plaintiff in this suit, in manner and form as the defendant has above in his said plea in that behalf alleged. And this the plaintiff is ready to verify; wherefore he prays judgment, etc. E. F., Att'y for Pl'ff. By the Illinois Practice Act, the defendant is required to file with his plea or notice of set-off a copy of the instrument or account upon which he intends to rely.' It is to be ob- served that the 18th section of the act above mentioned, provides that " demands upon simple contracts may be set off against demands upon sealed instruments, judgments or decrees." No. 107. Replication to No. 105— nil debet. {As in No. 86, ante, to the asterisk, and then proceed:) that he, the plaint- iff, was not nor is indebted to the defendant, in manner and form as the defendant has above in that plea alleged: And this the plaintiff prays may be inquired of by the comitry, etc. The plaintiff may reply nil debet to a plea of set-off on sim- ple contract, but if the set-off is on a specialty, or a judgment or other matter of record, he should reply non est factum., mil tiel record., or payment, etc.;^ or to a plea setting up both a debt of record and a debt on simple contract, he may reply nul tiel record as to the former, and nil delet as to the latter, in 'Rev. Stat. (1893), 1075; Rev. Stat. n (^hit. PI. 502; Solmnons v. (1895), 1159; 2 Starr & Curtis 1797; Lyon, 1 East 369. Eddie v. Eddie, 61 111. 134. DEFENSES TO THE ACTION OF ASSUMPSIT. 191 the same replication; ' and in other instances the replication may contain several distinct answers to different parts of the plea.^ Any matter may be replied which a defendant in an action might plead/ not excepting a counter demand/ PLEA OF KELEASE. A release may be given in evidence under non assumpsit, or pleaded with it; ^ but in debt on a specialty it must be pleaded.® Where a release has actually been given, it is some- times advisable to plead it, in order to narrow the evidence on the trial. The statement of the subject-matter of the release, etc., will of course vary, according to the terms of the instrument. This defense, like various others, may be proved under the gen- eral issue, although there is also a special plea in which the ground of defense may not have been correctly set forth.'' In an action on the case a release need not be specially pleaded.® If one maker of a note is discharged by the release of the other maker, the former alone can avail of such defense. Such a defense is purely personal.^ The general rule is, that a release of one of several joint, or joint and several, promisors or obligors discharges all, even though such release specially provides that it shall not operate to discharge the others." But in the case of Parmalee v. Lawrence, reported in vol. 44, Illinois Eeports, p. 405, the court, after observing that there are facts in that case which widely distinguish it from two former cases in which the court had adhered to the above rule," says that " the weight of the modern authorities is against these cases, and in favor of the more reasonable rule that where the release of one of sev- eral obligors shows upon its face, and in connection with the '1 Chit. PI. 499, 562; 3 Chit. PI. ^2Green\. Ev., Sec. 2B1; Coal Co. 935; Solomons v. Lyon, 1 East 369. v. Peterson, 45 111. App. 507. n Chit. PL 499, 562; 3 Chit. PI. » Thomas v. Mueller, 106 111. 36. 1158, 1159; Solomons v. Lyon, 1 East '" BenjamiuY. McConnell, 4 Gilm. 369. 536; Rice\. Webster, 18 111. 331; 5 "3 1 Chit. PI. 502. Bac. Abr. 702 g; see Mueller v. Ddb- *Reilly v. Rucker, 16 Ind. 303. schuetz, 89 111. 176. B 1 Chit PI. 418; 3 lb. 931 o. " Benjamin v. McConnell, 4 Gilm, » 1 Chit. PI. 426. 536; Rice v. Webster, 18 111. 331. ' 1 Chit. PI. 419. 192 DEFENSES TO THE ACTION OF ASSUMPSIT. circumstances that it \yas the intention of the parties not to release the co-obligors, such intention, as in the case of other written contracts, shall be carried out, and to that end the in- strument shall be construed as a covenant not to sue; " and the court quotes from Parsons on Contracts, vol. 1, p. 24, that " though the word release be used, even under seal, yet if the parties (the instrument being considered as a Avhole, and in connection with all the circumstances of the case and the rela- tions of the parties )can not reasonably be supposed to have in- tended a release, it will be construed as only an agreement not to charge the person or party to whom the release is given, and will not be permitted to have the effect of a technical re- lease; for a general covenant not to sue is not of itself a release of the covenantee, but is so construed by the law to avoid circuity of action; and a covenant not to sue one of many who are jointly indebted does not discharge one who is a joint debtor to the covenantor, nor in any way affect his obligation." ' This case was in chancery, and the evidence showed a scheme on the part of the obligors to procure a release to one of them, for the purpose of escaping the full payment of the debt. In the case above mentioned, the court also says that the reason why a release of one of several obligors discharges all is that by such release the right to enforce contribution is cut off, and that if that right is reserv^ed, the release should be construed as a simple covenant not to sue, leaving the liability of the co-obligors unimpaired. " The reason of the rule fail- ing, the rule itself should cease, the more especiall}'- when its application would work injustice." One of several joint payees or obligees may receive payment or satisfaction, and discharge the entire obligation, and the others will be bound by his acts in that regard. This is the general rule. But to give that effect to a release executed by one of several joint obligees, it must be the intention of the parties to the release that it shall so operate, and the transaction must be free from all fraud upon the rights of those of the obligees who do not join in the execution of the release.*^ 1 Moore v. Stamvood, 98 111. 605; Clark v. Laumann, 52 111. App. 637; Tliomason v. Clark, 31 111. App. 404. Lindley on Part. 135. Uns. Co. V. Preble, 50 111. 332; DEFENSES TO THE ACTION OF ASSUMPSIT. 193 A release is to be construed according to the particular pur- pose for which it Avas made, and a particular recital in such an instrument will restrain its general words.' A release under seal may be pleaded in bar of a demand for a larger sum ihan was paid to obtain the release;^ but a release not under seal is no bar in such case.' When made for a sufficient consideration, a release not under seal is binding." An agreement to extend the time of payment of a debt, without an agreement not to sue, does not har a suit for the debt commenced before the expiration of the ex- tended time,^ but such agreement is pleadable in abatement of the suit.* A covenant not to sue is in equity a release." In a case where the defendant, a railroad company, relied upon a release under seal it was held that if the plaintiff ex- ecuted the release under the belief, induced by the representa- tions, words or acts of the defendant's agents, that it merely covered a month's time, or wages, such release would not operate as a bar; and that whether the plaintiff so executed it or not was a question for the jury.* Where one of several persons jointly liable is sued alone, and a recovery is had against him, the others are released;' and such former recovery may be given in evidence under the gen- eral issue.'" But where the contract is several as well as joint, separate actions may be prosecuted upon it against the several parties liable, until satisfaction is obtained." The release of, ' Seymour V. Butler, 8 Clark (Iowa) ■" Jones v. Bank, 29 Conn. 25; Blair 304. V. Reed, 20 Texas 310. « Kingsley v. Kingsley, 20 111. 203; ^R.R. Co. v. Welch, 52 111. 183. Com. Dig., Release, E, 2,3; Flan- HVann y. McNulty, 2 Gilm. 355; ningham v. Hogue, 59 111. App. 315. Tlioinpson v. Emmert, 15 111. 415; 3 Curtis V. Martin, 20 111. 557; Moore v. Rogers, 19 111, 347: Mitch- Kingsley v. Kingsley, 20 111. 203; ell v. Brewster, 28 111. 163; Ward v. Hayes v. Ins. Co., 125111. 626; 3Iar- Johnson, 15 Mass. 148. fmv. TFMfe, 40 111. App. 281; Ins. ^'^ Wann v. McNulty, 2 Gilm. Co. V. Detwiler, 23 111. App. 656; 355; Lampton v. Jones, 5 Monroe Murphy \. Halleran, 50 111. App.594. 236; Yo^mg v. Bumivell, 2 Hill 580;. * Benjamin v. J/cCon.ne/Z, 4 Gilm. Young v. Black, 7 Craneh. 565. 536; i2. iJ. Co. V. iJead, 37 111. 484. ^^ Moore v. Rogers, 19 lU. 347; ^Pomroy v. Parmlee, 9 Iowa 140. 1 Chit. PL 33; 1 GreenL Ev., Sec. ^ Archibald V. Argall, 53 III. 307; 239 a. see 1 Chit. PI. 393. 13 19J: DEFENSES TO THE ACTION OF ASSUMPSIT. or receipt of full satisfaction from one joint wrongdoer dis- charges all. Release to, or the receipt of money from one who is not in fact liable with another will not discharge such other.' The additional Illinois cases noted below may be consulted on the subject of release generall}^^ and on the particular sub- ject of the release of sureties.* No. lOS. Plea of release. {As in No. 85, ante, to the asterisk, and then proceed:) that after the mak- ing of the several promises in the said declaration mentioned, and before. > Wilson V. Reed, 3 Johns. 175; Turner v. Hitchcock, 20 Iowa 310; Pogel V. Meilke, 60 Wis. 248; Wag- ner x. Transit Co., 41 111. App. 408; Oilpatrick v. Hunter, 24 Me. 18; Bronson v. Fitzhiigh, 1 Hill. 185; Vigeant v. Scidly, 35 111. App. 46. •'Scott V. Bennett, 3 Gilm. 243; People V. Compiler, 14 111. 447; Ryan V. DunJap, 17 111. 40; Lucas v. iJorm, 20111. 165; Whitev. Walker, 31 111. 422; Iglehart v. Crane, 42 111. 261; Governor v. Lagow, 43 111. 134; Bradley v. King, 44 111. 339; Hubbard v. Jasinski, 46 111. 160; Simmons v. Johnson, 47 111. 350; Burch V. Hubbard, 48 111. 164; Fahs V. Roberts, 54111. 192; Zirke v. Joliet, 79 111. 334; Packet Co. v. Defries, 94 111. 598; Raymond v. Kerker. 2 Bradw. 496; R. R. Co. v. Bartlett, 120 111. 607; R. R. Co. v. Hurst, 25 111. App. 98; Fey v. Watch Co., 32 111. App. 630. ^Capps V. Sniith, 3 Scam. 177; Davis V. People, 1 Gilm. 409; Wa- ters V. Simpson, 2 Gilm. 570; People V. McHatton, 2 Gilm. 638; People v. McHatton, 2 Gilm. 731; People v. White, 11 111. 341; PearZ v. Well- vians, 11 111. 352; Gardner v. li^a^ soji, 13 111. 347; Taylor v. Beck, 13 111. 376; PeopZe v. Blackford, 16 111. 166; Qreen v. PFardweM, 17 ill. 278; Gray v. McLean, 17 111. 404; Barnett V. S//iiY/i, 17 111. 565; Pa^/Jie v. Web- ster, 19 111. 103; Chapman \. Mc- Greu\20 111. 101; Boyntonv. Robb, 22 111. 525; Allbee v. Peopte, 22 111. 533; Cunningham v. WVenji, 23 111. 64; Lyle V. Morse, 24 III. 97; Newlan v. Harrington, 24 111. 206; Warner v. Campbell, 26 111. 282; Proiw v. Haggerty, 26 111. 469; People v. Osrde/i, 27 111. 27; SeeZ?/ v. Peojile, 27 111. 173; PeopZe v. Lott, 27 111. 215; Flynn v. Mudd, 27 111. 323; Montague V. Mitchell, 28 111. 481; Preio v. Drury, 31 111. 250; Kennedy x. Evans, 31 111. 258; iifirtds v. Ligham, 31 111. 400; irard v. SZomZ, 32 111. 399; Woodford x. Doio, 34 111. 424; Ram- sey X. Perley, 34 111. 504; Pirkins v. Rudolph, 36 111. 306; PeopZe v. Ad- mire, 39 111. 251; Governor v. Pow- man, 44 111. 499; Breese x. Schuler, 48 111. 329; Phares x. Barbour, 49 111. 370; Galbraith x. Fullerton, 53 111. 126; Foss v. City, 34 lU. 488; Far- well X. Meyer, 35 111. 40; Landis v. People, 39 111. 79; Governor x. Lagow, 43 111. 134; Rogers v. Trustee, 46 111. 428; Boynton x. Phelps, 52 111. 210; Oxley V, Stoner, 54 111. 159; Moore X. Stamcood, 98 111. 606; Po«er v. Grosenback, 117 111. 407; il//g. Co. v. Parmenter, 41 111. App. 639; Dupee V. PZaA;e, 148 111. 453. DEFENSES TO THE ACTION OF ASSUMPSIT. 195 the commencement of this suit, to wit, on, etc., in, etc., the plaintiff, by his deed bearing date of that day, and now to the court here shown, released to the defendant the said several promises, and all demands and causes of action whatsoever which the plaintiff then had against the defendant, or might thereafter have or allege against him, by reason of any matter or thing previous to that time; as by the said deed, reference being thereto had, will fully appear: And this, etc. {conclude with a verification, as in No. 85, ante). In debt on simple contract, saj " after the making of the several contracts; " in debt on a specialty, or in covenant, say, " after the making and delivery of the said writing;" and in trespass, say "after the committing of the several trespasses" — in case, etc., "grievances;" and so on, throughout the plea, using words appropriate to the particular form of action. (In any pleading where it is meant to dispute the validity of the contract or promise set up on the other side, it is proj^er to refer to such contract or promise by the term " supposed^'' e. g.^ " the said supposed promise, etc.; or a deed or other instru- ment may be referred to as " the said writing;" and in like manner alleged trespasses or grievances may be referred to as " the said supposed trespasses," etc.) For a form of general release, at full length, see the precedent of a plea of release in 3 Chitty's Pleading. No. 109. Replication to No. 108 — non est factum. (vis in No. 86, ante, to the asterisk, and then proceed:) that the supposed writing of release in that plea mentioned is not his deed; and this he prays may be inquired of by the coxintry, etc. The replication may be " that the said supposed writing of release was obtained from the plaintiff by the fraud and covin of the defendant," concluding with a verification; or that the writing was obtained by duress, for which see the precedent of a plea of duress, in the action of debt, post. PLEA OF PAYMENT. Payment may be given in evidence under the general issue in assumpsit, and in debt on simple contract,' but in debt on a specialty it must be pleaded." Under the plea of pay- ' 1 Chit. PI. 417-422; Gould's PI. * 1 Chit. PI, 426; Gould's PI. 303. 304-306; Greenl. Ev., Sec. 516; Crews V. Bleakley, 16 111. 21. 196 DEFENSES TO THE ACTION OF ASSUMPSIT. ment, the defendant may, by proving payment in full, defeat a recovery altogether; and by showing partial payment he may defeat it j^ro tanto.' A payment to a nominal plaintiff is not a satisfaction of the debt.' Where a person makes a payment of money, he is bound to know whether the person to Avhom the payment is made is authorized to receive it. If he who has paid money could have successfully resisted a suit brought by the person to wiiom he has paid it, then such payment is not good; and this is the true test of the validity of a payment.' A receipt in full of all demands is evidence prima facie of the payment of all notes and claims existing at the time the receipt is given.* Where a debtor makes a payment without specifying to what debt it shall be applied, the creditor has the right to select the debt on which he will give the credit.' AVhere notes of third persons are placed in the hands of a creditor as col- lateral security, but are not paid, the person depositing them can claim no credit for the amount due by such notes." A payment to one of several partners is a pa3aiient to all, un- less such payment to the one is strictly forbidden by the others.' The giving of a bond in satisfaction of a judgment is in law 1 Hays V. Smith, 3 Scam. 437; 196; Dehner v. Boiling Mill, 7 Keyes v. Fuller, 9 Bradw, 528. Bradw. 47; Craig v. Miller, 103 111. 2 Tuplet V. Scott, 13 111. 137, 605; Hintz v. Calin, 39 111. 308; ^ Holmes V. Field, 13 111. 434; Peo- Lowery v. Gear, 32 111. 383; see 2 pie V. Smith, 43 111. 230; Dutclier v. Greenl. Ev., Sec. 530, 533; Jackson Beckicith, 45 111. 460; People v. \. Bailey, \2 III. \b^; Sp)0ully. Sani- Deams,Q21\\. 192; Stover V. Mitchell, uel, 4 Scam. 136; Starr v. Rich- 45 111. 213; Toimer v. McClelland, mond, 30 111. 376; Miller v. 3Iont- IIOIW. 5^2; Lochenmeyer v. Fogarty, gomery, 31 111.350; Express Co.\. 113 111. 573. Lesem, 39 111. 313; Sprague t. Ha- * 3Iarstonv. Wilcox,! Scam. 370; zenicinkle, 53 111. 419; Hare v. Ste- Laxorence v. Lane, 4 Gilm. 354; gall, 60 111. 380. Holmes v. Field, 12 111. 434; Haral- * Prettyman v. Barnard, 37 111. sonv. Bridges, 14 111. 37; Capps v. 106; see Wilhelmv, Schmidt, 84 111. Graham, 14 111. 198; Neal v. Hand- 183. ley, 116 111. 431. '' Gregg v. James, Breese^43; see ^ McFarland v. Leivis, 2 Scam. Granger v. McGilvra, 34 111. 154; 347; Bayley v. Wynkoop, 5 Gilm. Kipp v. McChesney, 66 111. 460; Ly- 449; Arnold v. Johnson, 1 Scam, man v. Gedney, 114 111. 388. DEFENSES TO THE ACTION OF ASSUMPSIT. 197 a payment of such judgment,' A payment in good faith to an agent of the creditor, authorized to receive it, is a payment to the creditor, even though the agent misapplies the amount received." A payment may be in goods as well as in money.' The giv- ing of a new note is a payment of a former one,' if it be so understood and agreed by the parties,* but in the absence of anything showing a contrary intention the presumption of law will be that the new note is not a payment of the old one,^ The giving of a note for a debt does not pay or discharge the debt, unless it be agreed that it shall be accepted as pay- ment and satisfaction.' The giving of a note for an open account I's, prima facie a payment of the account,* but the note when due ma}'" be surrendered and an action maintained on the original cause of action.' An attempted payment by a draft or check which is dis- honored is no payment.'" Under the plea of payment, evidence of set-off, or of matter in recoupment, is admissible.'^ No. 110. Plea of payment. (First p7ea, non assumpsit, as ante, No. 82; second plea as in No. 85, ante, to the asterisk, and then proceed:) that after the making of the several ^ Cox V. Reed, 27 111. 483; Rals- v. Iron Wks., 124:111.623; Fairbanks ton V. Wood, 15 111. 159; see Wood- v. Bank, 132 111. 120. burnv. Woodburn, 115 111. 427. ^ Sav. Bank v. Bormnan, 124 III. ^Executors v. Brabham, 3 Ohio 200; S. & G. Co. v. Iron Works, 124 275; Melvin v. 7ns. Co., 80 111. 446. 111. 623; Adams v. Squires, 61 III, 3 Cannon v. Wood, 2 M. & W. 465; App. 513; Chisholm v. Williams, 128 Kyle V. Green, 14 Ohio 497; see Ryan 111. 115. V. Dtinlap, 17111. 40; Stevens v. Brad- ' Walsh v. Lennon, 98 111. 31; Gage ley, 22 111. 244. v. Leicis, 68 111. 604; Ralston v, *Smalley v. Edey, 19 111. 207; Ded- Wood, 15 111. 171; Smalley v. Edey, manv. Williams, 1 Scam. 154; Gran- 19 111. 207; Hitt v. Sharer, 31 111. 9; ger v. McGilvra. 24 111. 154; Miller PaddockY. Stout, 121 111.571; Mfg! V. Lumsden, 16 111. 161; Hodgen v, Qo. v. Cheese Co., 59 111. App. 573. Latham, Sdm.U4:;Kai}pes V. Lum- ^ Morrison v. Smith, 81 III. 221; ber Co., 1 Bradw. 280; Gage v. Hoodless v. Reid, 112 111. 105. Lewis, Q8 111. 604; see Wheelock v. ^ Ibid. Berkeley, 138 III. 153. ^o Matthews v. Cowan, 59 lU. 341; * Yates V. Valentine, 71 111. 644; Bank v. McCrea, 106 III. 281. Thompson v, Briggs, 28 N. H. 40; n Hill v. Austin, 19 Ark. 230; see Hill V. Morey, 49 N. H. 268; Jansen Alien v. Breusing, 32 III. 505; Heck- v, Grimshaiv, 125111, 476; S. & G. Co. enkemper v, Dingwehrs, 32 III. 538. 198 DEFENSES TO THE ACTION OF ASSUMPSIT. promises in the said declaration mentioned, and before the commencement of this suit, to wit, on, etc., in, etc., (*) he paid to the plaintiff, and the plaintiff accepted from him, the defendant, divers moneys, amounting to a large sum, to wit, the amount of all the sums of money in the said declara- tion mentioned, in full satisfaction and discharge of the said several prom- ises and of the sums of money last aforesaid : And this, etc. (conclude with a verification, as in No. 85, ante). In order to adapt this plea to an action of debt on simple contract, it will be sufficient to substitute the Avord contracts for the word promises, throughout the plea; or other forms of words, appropriate to that action, may be used. If it is desired to plead a partial payment only, the plea is to be limited accordingly in the commencement; and if a payment after action brought is to be pleaded, the defendant says in the com- mencement that the plaintiff " ought not further to maintain his aforesaid action," etc.^ The above form, substantially, of the plea of payment is be- lieved to be the one generally used, but it seems rather to be a plea of accord and satisfaction than of payment. No prece- dent of a plea of payment in assumpsit, or in debt on simple contract, is found in Chitty on Pleading, probably for the rea- son that it was not usual in England to plead this defense spe- cially in those actions. It is submitted that a plea would be sufficient in which the defendant should allege that "he paid to the plaintiff all the moneys in the said declaration alleged to be due to him from the defendant" — substituting these words for those between the asterisk and the conclusion in the above precedent. No. 111. Replication to No. 110, denying the payment. {As in No. 86, ante, to the asterisk, and then proceed :) that the defendant did not pay to the plaintiff the moneys in the said second plea in that behalf mentioned, in full satisfaction and discharge of the several promises and sums of money in the said declaration mentioned, in manner and form as tlie defendant has above in that plea alleged : And this the plaintiff prays may be inquired of by the country, etc. (If the plea should be that the defendant " paid to the plaintiff all the moneys in the said declaration alleged to be due to him ' See forms, 2 Swan's Pr. 702-706. DEFENSES TO THE ACTION OF ASSUMPSIT. 199 from the defendant," then the replication would be simply " that the defendant did not pay to the plaintiff the moneys in the said second plea in that behalf mentioned, or any part thereof, in manner and form," etc,} PLEA OF ACCORD AND SATISFACTION. "Accord is a satisfaction agreed upon between the party injuring and the party injured, which, when performed, is a bar of all actions upon this account." ' In order to make a good accord it is essentia) : 1. That it be legal; an agree- ment to drop a criminal prosecution as a satisfaction for an as- sault and imprisonment is void.* 2. It must be advantageous to the party accepting; hence, restoring to the plaintiff his property, of which the defendant has wrongfully dispossessed him, will not be any consideration to support a promise by the plaintiff not to sue him for the injury.' 3. It must be certain; hence, an agreement that the defendant shall relinquish the possession of a house in satisfaction, etc., is not valid, unless it is also agreed at what time it shall be relinquished." 4. The defendant must be privy to the contract; if, therefore, the consideration for the promise not to sue proceeds from another, the defendant is a stranger to the agreement, and the circum- stance that the promise has been made to him will be of no avail.* 5. The accord must be executed.* » 3 Blacks. Com. 15; Bacon's Abr., Watts (Pa.) 434; Rusk v. Gray, 83 Accord; 2 Greenl. Ev. 28; Ins. Co. Ind. 589. V. Sfeue?is, 48 111. 32. •'Yelv. 125; 4 Mod. 88; Bird w. 2 Edgecombe v. Rodd, 5 East 294; Caritat, 2 Johns. 342; 1 Bouv. L. D. see 2 Wils. 341; Cro. Eliz. 541; 1 189. Bouvier's L. D. 47; Smith v. Grable, ' Stra. E. 592; Clow v. Burst, 6 14 Iowa 429; Walon v. Kerhy, 99 Johns. R. 37; 3 Mod. 302: Daniels v. Mass. 1; Johnson v. Hunt, 81 Ky. Hallenbeck, 19 Wend. 408. 321. * Watkinson v. Inglesby, 5 Johns. 3 1 Bouv. L. D. 47; Fitch v. Sut- R. 592; Kromer v. Heim, 75 N. Y. ton, 5 East 230; Cumber v. Wane, 574; Bragg v. Pierce, 53 Maine 65; 1 Stra. R. 426; Heathcote v. Crook- dishing v. Wyinan, 44 Me. 121; shank, 2 T. R. 24; Steinman v. Lynn v. Bruce, 16 Johns. 86; Rtis- Magnes, 11 East. 390; Logan v. .4ms- sell v. Lytic, 6 Wend. 390; Clark v. tin, 1 Stew. R. 476; Blinn v. Ches- Dinsmore, 5 N. H. 136; Bank v. De ter, 5 Day R. 360; Le Page v. Mc- Grauw, 23 Wend. 342; see Fitch v. Crea, 1 Wend. 164; Davis v. Noaks, Haight, 4 Scam. 51; McGehee v. 3 J. J. Marsh. 497; Keeler v. Neal, 2 Shafer, 15 Texas 198. 200 DEFENSES TO THE ACTION OF ASSUMPSIT. Accord with satisfaction, when completed, has two effects. It is a payment of the debt, and it is a species of sale of the thino- See precedent, 3 Chit. PI. 937. DEFENSES TO THE ACTION OF ASSUMPSIT. 205 No. 117. Replication to a plea of award. {Venue, and title of cause.) And the plaintiff as to the said plea of the defendant, by him above pleaded, says, predudi non, because he says that the said causes of action above declared on were not included in the said submission to arbitration, and were not in differe7ice between the parties thereto at the time; and this he is ready to verify, etc., wherefore he prays judgment, etc. E. F., Att'y for Prflf. No. 118. Rejoinder to a replication to a plea of aicard. {Venue, and title of cause.) And the defendant as to the said replication of the plaintiff, to the plea of the defendant, says actio non, because he says that the matters above declared on were included in the said submissioix to arbitration, and were in difference between the parties thereto at the time; and of this he puts himself upon the country, etc. G. H., Att'y for Deft. See chapter entitled Arbitration and A. ward, post. PLEA OF FORMER ADJUDICATION. Where the subject-matter of a cause of action has been once determined by the final judgment or decree of a court of com- petent jurisdiction, such judgment or decree will be conclusive between the parties thereto and will be a bar to any other proceeding on the same cause of action.' But it must appear, either upon the face of the record, or be shown by extrinsic evidence, that the precise question was raised and determined in the former suit. If there be any uncertainty on this head in the record, the whole subject-matter of the record will be open to a new contention, unless this uncertainty be removed by extrinsic evidence showing the precise point involved and decided in the former proceeding.* ^ Jones V. Smith, 13 111. 301; Ticker, 14 Bradw. 558; Brackett v. Abrams v. Lee, 14 111. 167; Zimmer- People, 115 111. 29; Kilgour v. Dr. man v. Ziinmei-man, 15 111. 84; Corn., Ill III. 342; Stickney v. Gondij, Crosby v. Glpps, 16 111. 352; Vanlan- 132 111. 213; Moore v. Williams^ 132 dingliam v. Ryan, 17 111. 25; R. R. 111. 589; Kit^on v. Farivell, 182 111. Co. v. Allen, 39 111. 205; Kreuchi v. 327; Shunick v. Thomson, 25111. App. Dehler, 50 111. 176; Oetgen v. Ross, 619; City v. Cameron, 120 111. 457; 54 111. 79; Hawley v. Simons, 102 Webber v. Mackey, 31 111. App. 369; 111. 115; Cooper v. Corbin, 105 111. Riverside v. Townsend, 120 111. 13. 224; Noyes v. Kern, 94 111. 524; Pe- ^Palmer v. Sanger, 143 111. 34. terson v. AW. 80 111. 25; Miller v. 206 DEFENSES TO THE ACTION OF ASSUMPSIT. A former adjudication by a court of competent jurisdiction is not only final as to the matter actually determined, but as to every other matter which the parties were bound to litigate and bring to a decision as an incident to, or essentially con- nected with, the subject-matter in litigation.' The rule, however, can not be invoked where there has been fraud in obtaining such adjudication if the party defrauded is not esto})ped by want of diligence." Where some controlling fact or matter material to the determination of two causes of action has been adjudicated in a former proceeding in a court of competent jurisdiction, and the same fact or matter is again at issue between the same parties, the adjudication of the fact or matter in the first suit, if properly presented, will be con- clusive upon the same question in the latter suit, irrespective of whether the cause of action is the same in both suits or not.' Parol evidence may be admitted to show what was adjudi- cated upon in a former suit, but not what the adjudication was.^ A former adjudication is sometimes binding upon per- sons who are not parties to the record. One in whose behalf or under whose direction a suit is prosecuted or defended, will be barred by the judgment or decree rendered in it, and parol evidence will be admitted to show who is the real party in in- terest, and that such person conducted the litigation in the name of another person.^ A judgment on demurrer for defect in the pleadings, or on a non-suit for want of proof or for a variance, or on a non-suit by agreement after trial on the merits, will not be a bar to an- other action for the same cause; * and if such a judgment is 1 R. R. Co. V, Cheshire, 59 N. H. ^Smithy. Express Co., 135 111. 279; 4,09; Windettv.Im. Co., 211\\.ATpp. Cheney v. Patton, 134 111. 422; 68; Harmon \. Auditor, 123111. 133; Harding v. Fuller, 141 111. 308. Bennett v. Mining Co., 119 111. 14. ^Vanlandingham\.Ryan,\l 111.25; 2 ShinUer v. Letcher, 47 111. 216. Smalley v. Edey. 19 111. 207; Howes ^Wright v. Griffey, 147 111. 496; v. Austin, 35 111. 396; Miller \. Mc- Leopold V. City, 150 111. 568. Manis, 51 111. 126; Briscoe v. Power, * Zimmerman v. Zimmerman, 15 85 111. 420; Davis v. Kennedy, 105 111. 84; Shepard v. Butterfleld, 41 111. 300; Beatley v. CBryan, 111 111. 111. 76; Leopold v. City, 150 111. 568; 53; Brackett v. People, 115 111. 29. Wright v. 'Griffey, 147 111. 496. DEFENSES TO THE ACTION OF ASSUMPSIT. 207 pleaded in bar, the plaintiff may reply that the same was not obtained on the merits.' It is not to be understood, however, that a judgment on a demurrer is in no case a bar.'' Where the promise of several is joint, and not several, a judgment against one or more is a bar to another action on the same contract, whether against the same or other parties; ^ thus a judgment against one member, for a debt due from the partnership, is a bar to a recovery against the other members.'* A judgment in favor of the maker of the note, on its merits, in an action by an assignee, is a bar to a subsequent action brought by the payee against the maker. The payee having, by his in- dorsement, authorized his assignee to sue upon the note, is bound by the judgment against the assignee, upon the merits.^ A plaintiff who recovers in replevin against one person, and obtains a return of the goods, can not afterwards sue the same and another person in trespass for the same taking; and it makes no difference whether the damages awarded in the re- plevin suit have been paid or not.' It is said that " if the damages recovered were for the de- terioration in the value of the plaintiff's property" (caused by a nuisance), " such recovery would be a bar to any further pros- ecution for the same cause; but if they were for annoj^ance merely, and for rendering the air unwholesome, then a similar recovery might be had at every term of the court," so long as the nuisance should continue.' The owner of property alleged to have been injured on a railroad, through neglect of duty on the part of the engine- driver, may elect to sue either the driver or the railroad com- pany; but it is said, when a jury has found, in an action against the company, that there was no negligence, it is a bar to a re- covery against the servant.* Where, however, a person had sued a city, to recover damages for injuries received by reason > 1 Chit. PI. 179. Benjamin v. AfcConnell, 4 Gilm. 536; ^Vanlandingham \.Ryan,\l 111.25; Mitchell v. Breivster, 28 111. 163; Jan- Nispel V. La Parle, 74 111. 306. sen v. Grimshato, 125 111. 468. ^ Moore v. Rogers, 19 111. 347; ^ Leslie v. Bonfe, ISO III. 4d8. Thompson v. Emmert, 15 111. 415; ^Karr v. Barstoic, 24 III. oSO. Chit. Bills, 563, 564. "i R. R. Co. v. Grabill, 50 111. 241. * Wayin v. McNidty, 2 Gilm. 355; »R.R. Co. v. Hutchins, 34 111. 108. Thompson v. Emmert, 15 111. 415; 208 DEFENSES TO THE ACTION OF ASSUMPSIT. of the leaving of a hatchway in the sidewalk in an unsafe con- dition, and there was judgment for the citj', it was held that this was no bar to a subsequent action, by the person injured, against the person through whose negligence the accident oc- curred, although he had aided in the defense of the former suit, in pursuance of a notice given to him by the city.' The principal Illinois cases, not already cited, relating to this subject, are given in the note below.^ No. 119. Plea of judgment recovered. (As in No. 85, ante, to the asterisk, and then proceed :) that the plaintiff heretofore impleaded him, the defendant, in the said court of the said county of , to the term of the same court, in the year 18 — , in a certain plea of trespass on the case on promises, to the damage of the plaintiff of dollars, for not performing the very same promises in the said declaration mentioned; and such proceedings were thereupon had in that plea, that afterwards in that same term {or in whatever term thejudg- > Severin v. Eddy, 52111. 189. See Goodrich v. Hanson, 33 111. 499. ^ Dalton V. BentJy, 15 111. 430; Foltz V. Prouse, 15 111. 434; Crahtree V. Wells, 19 111. 55; McConnel v. Kibbe, 33 111. 175; Dunning v. City, 40 111. 487; Shepard v. Butterfield, 41 111. 76; Lucas v. Le Compte, 42 111. 303; Dickson v. Todd, 43 111. 504; McClosky V. McCormick, 44 111. 336; Lloyd V. Lee, 45 111. 277; Wells v. Miller, 45 111. 382; Hamilton v. Quimby, 46 111. 90; Wright v. Dun- ning, 46 111. 271; Gibbsy. Jones, AQ 111. 319; Stihvell v. People, 49 111. 45 Elston V. Kennicott, 52 111. 272 Morgan v. Sherwood, 53 111. 171 Gaddis v. Leison, 55 111. 522; Briscoe V. LZoyd, 64 111. 33; Hicks v. Chapin, 67 111. 375; Rogers v. Higgins, 57 111. 244; Lathrop v. Hayes, 57 111. 279; Williams v. Walker, 62 111. 517; R. R. Co. V. Cobb, 82 111. 183; Riie- gerv. R. R. Co., 103 111. 449; Tilley V. Bridge, 105 111. 336; Russell v. Epler, 10 Bradw. 304: Schertz v. People, 105 111. 27; Drake v. Perry, 58 111. 122; Bliss v. Heasty, 61 111. 338; Clayes v. White, 65 111. 357; Hibbard v. Thrasher. 65 111. 479; Crowx. Bowley, 68 111. 23; PhillijJS V. 3Ioir, 69 111. 155; Hotvell v. Good- rich, 69 111. 556; Kelly v. Donlin, 70 111. 378; Smith v. Wright, 71 111. 167; Kingsbury v, Buckner, 70 111. 514; Rudolph V. 7ns. Co., 71 111. 190; Coal Co. V. Cobb, 94 111. 55; Pritch- ard V. Daly, 73 111. 523; City v. Sansnm, 87 111. 182; Town v. Cool- edge, 89 111. 529; R. R. Co. v. Maher, 91 111. 312; G. L. Co. v. Howell, 92 111. 19; G.C. Co. V. People, 92 111. 620; R. R. Co. v. Goldbery, 2 Bradw. 228; Muellers. Henning, 102 111. 646; Neff V. Smyth, 111 111. 110; Jolly v. Fitzgerald, 23 111. App. 514; Jenkins V. Bank, 111 111. 471; McCartney v. Osburn, 118 111. 408; Umlaufv. Urn- lauf, 117 111. 583; Drennanx. Bunn, 124 111. 183; McMillan v. Lovejoy, 115 111. 500; Dulinv. Prince, 29111. App. 212; Richards v. R. R. Co., 124 111. 516; Litch v. C«nc7i, 136 111. 410; R. R. Co. V. Slater, 139 111. 190; Nappin V. ^bboff, 51 111. 617; Meier v. Pm- over, 21 111. App. 551. DEFENSES TO THE ACTION OF ASSUMPSIT. 209 ment icas rendered), by the consideration and judgment of the same court, the plaintiff recovered against the defendant the sum of dollars dam- ages, as well as the costs of the plaintiff in that behalf whereof the defend- ant was convicted, as by the record thereof still remaining in the same court more fully appears; which said judgment still remains in full force. And this the defendant is ready to verify by the said record; wherefore he praj^s judgment if the plaintiff ought to have his aforesaid action, etc. This precedent can readily be adapted to different forms of action; in trespass, for example, the allegation would be that the former action was " for committing the very same tres- pass," etc. See the observations under the precedents of pleas of payment and accord and satisfaction. A judgment recovered may be given in evidence under the general issue in assumpsit, debt on simple contract, and case, but in debt on a specialty, and in covenant and trespass, it must be pleaded.^ If a judgment has in fact been recovered, it is advisable to plead it specially."'' No. 120. Replication to a plea of judgment recovered. {Venue, and title of cause.) And the plaintiff, as to the said plea of the defendant, by him ■ above pleaded, says, precludi non, because he says, that the said sevei-al promises and undertakings in the said declaration mentioned, were not, nor was any or either of them, any of, or any one of the same identical promises and undertakings as those or any of those in the said plea mentioned, and for and in respect whereof the said supposed judgment in the said plea men- tioned was recovered, in manner and form as the defendant has alcove in his said plea alleged. And tliis the plamtiff prays may be inquii-ed of by the country, etc. E. F., Att'y forPrff. It would seem that whenever the plaintiff has in truth re- covered a judgment, for a cause of action similar to that men- tioned in the declaration, and the defendant pleads such recovery in bar, a new assignment is necessary;' but accordino- to the authority of some cases, the plaintiff may take issue on the allegation that the promises are the same, by a replication > 1 Chit PL 418, 422, 426, 429, 432, ' 3 Chit PI. 929, note. 441; Gould's PL 303-311; Wann v. n ggp. 452; 3 Chit. PI. 1213, note; McNulty, 2 Gilm. 355; Cook v. Vi- see 1 Chit. PL 542 et seq. mont, 6 Monroe 284; Miller v. Man- ice, 6 HiU 124. 14 210 DEFENSES TO THE ACTION OF ASSUMPSIT. denying it, as in the above form/ for which see a precedent, 3 Chit. PL 1213. A case in 3 Levinz's Eeports, p. 92, is cited, in which it was held that to a justification in trespass, con- cluding with a statement that the trespasses mentioned in the plea were those mentioned in the declaration, the plaintiff could not reply that they were not the same without showing some other trespass."* See a form of new assignment to a plea in abatement, «n^e, No. 9 a. If the plaintiff wishes to deny the alleged former recovery, the replication will be 7iul tiel record, which can be framed from the precedent Iso. 9, ante. PLEA OF TENDER. To make a valid tender of money, the debtor must produce the precise sum due, in current money such as is by law made legal tender, and must actually offer it to the creditor; to make a valid tender of goods, the specific articles agreed for must be produced at the place agreed upon, and offered to the other party.' The tender must cover the entire debt," and must be absolute and not hampered by conditions.* A ten- der must be pleaded specially, in every form of action.' The plaintiff may at once take out of court the sum tendered, even thouffh he denies the tender.' The plaintiff may reply a demand made, and a refusal to pay, before * or after ' the tender — as this, if established, shows that the defendant was not always ready and willing to pay.'" But a prior demand, in order to defeat the tender, must not ^ Bagot V. Williams, 3 B. «& Ores. Cothran v. Scanlan,S4Ga. 555; Base 235; Seddon v. Tutop, 6 T. R, 607; 3 v. Duncan, 49 Ind. 269; Shmv v. Wils. 384. Sears, 3 Kans. 236; Richardson v. 2 3 Cliit. PI. 1213, note. Boston ,9 Met. 42; Henderson v. Cass, 3 Am. & Eng. Ency. Law, Vol. 25, 107 Mo. 50, 901 and cases there cited. » 1 Chit. PI. 420-432-426^29-511. * Moore v. Newman, 43 Minn. 428; ''2 Swan's Pr. 709. Rose V. Duncan, 49 Ind. 269; Weed * Hume v. People, 8 East 168; V. Adams, 152 Mass. 74; Montague Birks v. Treppet, 1 Haund. 33; Bui. V. Tongan, 68 Mich. 98; Patnote v. N. P. 156; Goodland v. Blewith, 1 Sanders, 41 Vt. 66; Brandt v. R. R., Camp. 478; 2 Swan's Pr. 710. 26 Iowa 114; Helphley v. R. R., 29 » 3 Went. 180; Spybey v. Hide, 1 Iowa 480. Camp. 181. ' Pulsifer v. Shepard, 36 III. 513; '» See forms, 3 Chit. PI. 1154-1155; Sanford v. Bulkley, 30 Conn. 344; 1 Chit PI. 501. DEFENSES TO THE ACTION OF ASSUMPSIT. 211 have been of a larger sum than the amount tendered; ' and to sustain a replication of a subsequent demand, the plaintiff must prove a demand of the precise sum tendered.' A tender is stricti juris, and must be clearly proved/ A tender to a lawyer, or clerk, who is authorized to collect the money, is good/ In order to keep a tender good," it is not necessary to bring the money into court, and deposit it, but it is sufficient if the money is in readiness when ordered by the court; at least this is the rule in equity/ A tender must be kept good, and the money must be ready to be delivered within a reasonable time after the acceptance of it is signified/ In a case where a tender was pleaded, and no other plea, but the money was not brought into court, and the defendants refused to comply with an order to bring it in, it was held proper for the court to dis- regard the plea, and give judgment for the plaintiffs; or, it was said, the plea might have been stricken from the files/ A person making tender can not insist upon a receipt in full, but he must rely on the tender/ To avoid costs it must be made before the suit is commenced/" By the statute " a tender may also be made after an action is brought upon any con- tract, of the whole sura due thereon, with the legal costs of ' See Rivers v. Griffith, 5 B. & A, 24 Pick. 168: Marine Band v. Rusli- 630; see 1 Esp. 151; Spybeyv. Hide, more, 28 III. 463; Pidsifer v. Shep- 1 Camp. 181. ard, 36 111. 513; Wood v. Trust Co., ' Rivers v. Griffith, 5 B. & A. 630; 41 111. 267; Webster v. Pierce, 35 111, see Spybey v. Hide, 1 Camp. 181. 158; McDaniel v. UjJton, 45 III. App. * Buchenau v. Homey, 12 111. 336; 151; Brooks v. Laivyer, 61 111. App. Kerney v. Gardner, 27 111. 162. 366. ■* 14 Eng. Com. Law 385; see Starr » Knox v. Light, 12 111. 86. & Curtis' Stat. 2387; Rev. Stat. (1893) » Thayer v. Brackett, 13 Mass. 450; 1425; Rev. Stat. (1895)1523. Wagenblast v. McKean, 2 Grant's 5 Doerr v. Brune, 56 111. App. 657, Cases 393; Hamar v. Dimick, 14 ^Webster v. French, 11 111.254; Ind. 105; P? Assumpsit. C D. ) And the plaintiff, as to the plea of the defendant by him first above pleaded, and whereof he has put himself upon the country, does the like. And as to the said plea of the defendant by him above pleaded as to the said sum of dollars, parcel, etc., the plaintiff says that he ought not, by reason of anything in that plea alleged, to be barred from having his afore- said action to recover further damages than that sum of money, because he says, that the defendant did not tender or offer to pay to him, the plaintiff, the sum of dollars, parcel, etc., in manner and form as the defendant has above in that plea alleged; And this the plaintiff prays may be in- quired of by the comitzy, etc. When a tender can be proved, and the plaintiff is prepared » 3 Chit. PI. 95.5. * 1 Chit. PI. 511, 512; 3 Chit. PI. 2 3 Chit. PI. 1021. 1198. 3 1 Chit. PL 441; 3 Cliit. PL 10G6. 216 DEFENSES TO THE ACTION OF ASSUMPSIT. to prove more to be due than the sum tendered, the following replication is proper.' No. 123. Replication to No. 121, admitting the tender. (Similiter to general issue, as in last precedent.) And the plaintiff, inas- much as he can not deny but that the defendant did tender and offer to pay to him, the plaiutifF, the said sum of dollars, parcel, etc., in manner and form as the defendant has above in his said second plea alleged, freely takes and accepts the same out of the court here; therefore, as to tlie said sum of dollai-s, the plaintiff is satisfied, etc. See on the subject of Tender generally, the additional Illi- nois cases mven in the note.* PLEAS BY SURETV. Further time given to priiicipa]. — It seems this defense may be proved under the general issue.' Matters affecting > 3 Ch. PI. 1156, note; 1 Chit. PI. 501. ^Lincoln v. Cook, 2 Scam. 61; Bush V. Shipman, 4 Scam. 186; Doyle V. Teas, 4 Scam. 202; DeWolf V. Long, 2 Gilm. 679; Keys \. Jasper, 4 Scam. 305; Wright v. McNeely, 11 111. 241; Webster v. French, 11 111. 254; People v. Dubois, 18 111. 333; Morgan v, Herrick, 21 111. 481; Coyi- wayv. Case, 22 111. 130; Smithx. Lamb, 26 111. 396; Blunt v. Tomlin, 27 lU. 93; Dodge v. Deal, 28 111. 304; Wolfv. Willitts, 35 111. 88; Staat v. Evans, 35 111. 455; Hammer v. Kauf- man, 39 111. 87; White v. TJiomas, 39 III. 227; Headley v. Shaiv, 39 111. 354; Hunter v. Rilyea, 39 111. 368; Vromanv. Darrow, 40 111. 171; 3Ic- Pherson v. Gale, 40 111. 368; Mc- Pherson v. Walker, iO 111. 371; Nel- son V. Oren, 41 111. 19; Supervisors V. Henebery, 41 111. 180; Mears v. Nichols, 41 111. 207; Ryan v. Brant, 42 111. 78; Leake v. Brown, 43 111. 372; Hanna v. Ratckin, 43 111. 462; Dwen V. Blake, 44 111. 135; McPher- son V. Hally 44 111. 264; Higgins v. Halligan, 46 111. 173; City v. Wider. 46 111.351; Cityw. Wehrung , A% IW. 392; Boston v. Nichols, 47 111. 354; alley V. Hawkins, 48 111. 308: Smith V. Gillett, 50 111. 290; Liebrandt v. 3Iyron, 61 111. 81; Smith v. Sheldon, 65 111. 219; Jcnks v. Burr, 56 111. 540; Loomis v. Stave, 72 111. 623; Reinback v. Crabtree, 77 111. 182; By. Co. V. Noe, 77 111. 513; Sanborn V. Benedict, 78 lU. 309; Berger v. Patterson, 78 111. 633; Bradley v. Parks, 83 111. 169; Carr v. Mmer, 93 111. 604; Harding v. Loan Co., 84 111. 251; Downing v. Plate, 90 111. 268; Comstock V. Gage, 91 111. 328; Long- felloiv V. Moore, 102 111. 289; Plumb V. Taylor, 27 111. App. 238; Lyman V. Gedney, 114 III. 395; Dulin v. Prince, 124 111. 76; Doyle v. Sanford, 26 111. App. 156; TFwgr v. Beach, 31 111. App. 85; Cheney v. Roodhouse, 135 111. 268; Manistee v. 5a)^^^ 143 111. 490; 5a'/^A; v. Manister, 43 111. App. 525; Hollenberg v. Tomp- kins, 49 111. App. 323; Z>a?/ v. /?iv. Co., 153 111. 293. * M^arnerv. Crane, 20 111. 148. DEFENSES TO THE ACTION OF ASSUMPSIT. 217 the surety only, should be pleaded by him alone.' In England the rule is said to have prevailed, that the remedy of the suret}^, where further day of payment has been given without his consent, is only in chancery, unless the fact that he is such surety appears on the face of the contract; and some courts in the United States have followed the same rule. But the weight of authority, in this countr}^, is to the effect that the surety may show that such was his relation to the contract, and avail himself of this defense, in a suit at law, although he appears as a principal in the contract,^ Where a note is taken, with personal security, and at the same time other securitv therefor — as for instance a morts'ao-e on land — is existing or taken, the destruction of such other security, by the holder of the note, without the consent of the sureties, will release the latter.^ The contract of a surety is to be construed strictl}?-, both at law and in equity, and his liability is not to be extended by implication beyond the terms of his undertaking, as under- stood when the contract was made." It is a general rale that mere delay to sue does not discharge the surety; ' but where a creditor, without the assent of the surety, gives further time of payment to the principal, the surety is discharged, both at law and in equity.* ' Beesley v. Hamilton, 50 111. 88. v. Studebaker, 15 Ind. 45; Hunt v. ■Flynnv. Mudd, 27 111. 323; Ward Bridgeman, 2 Pick. 581; see Broicn V. Stout, 32 111. 399; Rogers v. Trust- v. Haggerty, 26 111. 469; Grabfetter ees, 46 lU. 428. v. Willis, 10 Bradw. 330; Wittmer ^Rogers v. Trustees, 46111. 428. v, Ellison, 72 111. 301. * Reynolds v. Hall, 1 Scam. 35; ^ Davis v. People, 1 Gilm. 409; People V. Moon, 3 Scam. 123; Field Gardiner v. Harbeck, 21 111. 129; V. Raidings, 1 Gilm. 581; Waters v. Ward v. Stout, 32 111. 399; Pilgrim Simpson, 2 Gilm. 570; Ryan v. v. Dykes, 24 Texas 383; Phares v. Trustees. 14 111. 20; Flynn v. Mudd, Barbour, 49 111. 370; see Faricell v. 27 111.323; Tipton^. Carrigan, 10 Meyers, ZolW.'^Q; Galbraith x . Ful- Bradw. 318; Grindal v. Ruby, 14 lerton, 53 111. 126; Bank v. Water- Bradw. 439; Ins. Co. v. Johnson, 120 man, 134 111. 467; Reynolds v. Bar- Ill. 622; Vinyardv. Barnes, 124 lU. 7iard, 36 111. App. 221; Edmonds v. 346. Thomas, 41 111. App. 507; Truesdell 5 Moreland v. State Bank, Breese v. Hunter, 28 111. App. 296; Brokaw 263; Peojjle v. White, 11 111. 341; v. i^ieW, 33 111. App. 141. Pearl v. Wellmaii, 11 111. 352; Kirby 218 DEFENSES TO THE ACTION OF ASSUMPSIT. A promise to delay the collection of a debt for an uncertain period will not discharge a surety.' To discharge the surety by extension of time, there must be a sufficient consideration, and a time definitely fixed.' But an equitable estoppel may sometimes result, ^yhich will prevent a recovery against a guar- antor, where an agreement has been executed, although there was no consideration for such agreement.^ An agreement, for a good consideration, between the holder of a note and the principal, to extend the time of payment for a definite period, will discharge the surety, unless he consents to such agreement at the time, or subsequently ratifies it."* To enable a surety to interpose the defense to a note that further time Avas given to the principal, it is not necessary that his name should appear upon the note as surety. It will be suffi- cient if he was actually a suret3^ and this was known to the payee when the note was given;' and the fact that he w^as a surety may be proved by verbal testimony. The payee of a note is presumed to know the relation which the parties thereto sustain to each other, and to accept the note with that knowledge." The payment of interest upon a note in advance, is a suffi- cient consideration to support an agreement with the principal for an extension of time, so as to discharge the surety.' An agreement, after the maturity of a note, to pay the interest thereon at the rate therein specified, and also one hundred ' Gardner v. Watson, 13 111. 347; 103 111. 428; Dodgson v. Henderson, Huntv. Knox, 34 Miss. 655; Alcock 113 111. 364; Truesdell v. Hunter, 28 V. Hill, 4 Leigh. 622; Villars v. 111. App. 292; Reynolds v. Barnard, Palmer, 67 111. 204. 36 111. App. 218; Barnard v. Eey- •^ Gardner v. Watson, 13 111. 347; nolds, 49 111. App. 596; Kerns v. Woolfordv.Dou',Um.424\Immi7ig Ryan, 26 111. App. 177; Bank v. V. Fielder, 8 Bradw. 256; Waters y. Waterman, 134 111. 461. Sim23son, 2 Gilm. 570; Meyers v. ^ Flynn v. Mudd, 21 IW. d23; Ward Bank, 78 111. 257; Kriz v. Fokrok, v. Stout, 32 111. 399; Rogers v. 46 111. App. 418. Trustees, 46 111. 428. 3 White V. Walker, 31 111. 422. « Ward v. Stout, 32 111. 399. * Flynn v. Mudd, 27 111. 323; Gard- ■> Warner v, Campbell, 26 111. 282; nerv. Watson, 13111. 347; Gardiner Flynnv. 3Iudd, 27111. 323; Montague V. Harbeck, 21 111. 129; Hinds v. v. Mitchell, 28 111. 481; Woolford v. Ingham, 31 111. 400; Woolford v. Doiv, 34 111. 424. Dow, 34 111. 424; Bradshaw v. Combs, DEFENSES TO THE ACTION OF ASSOIPSIT. 219 dollars every month until it is discharged, entered into between the payee and the principal debtor, without the knowledge or consent of a surety, does not constitute a valid agreement to extend the time of payment; not being supported by a new consideration, it will not discharge the surety from liability on the note.' Any operative agreement, founded upon a valuable consid- eration, by which the holder of a note agrees to give time to the principal, without the assent of the surety, will release the latter; and this whether before or after the maturity of the note.^ The agreement must, however, be a binding one, and not unlawful by reason of usury or other matter." Any change in an agreement, without the assent of the surety, releases him;* but it is otherwise if he consents to or approves of such change.* A parol agreement to vary a contract under seal can not be pleaded in a court of law to defeat a recovery on such contract; and such an agreement will not discharge a surety from liability." Notice by surety to creditor to prosecute. — We will next consider when a surety may discharge himself by giving the creditor written notice to prosecute the principal. The first section of the statute, entitled '• Sureties," pro- vides : " That when any person bound as surety for another for the payment of money, or the performance of any other contract in writing, apprehends that his principal is likely to become insolvent or to remove from the state without discharsrino- the contract, if a right of action has accrued on the contract, he may, by writing, require the creditor forthwith to sue upon the same; and unless such creditor shall, within a reasonable time and with due diligence, commence suit thereon and prosecute the same to final judgment and execution, the surety ' Woolford V. Doiv, 34 111. 424; see * Cunningham y. Wrenn, 23111. 64; Gardner v. Watson, 13 111. 347. Gardiner v. Harbeck, 21 111. 129. 2 Warner v. Crane, 20 111. 148; ^ Gardiner v. Harbeck, 21 111. 129; Warner v. Campbell, 26 111. 282; see Hinds v. Ingham, 31 111. 400. Faricell v. Meyer, 35 111. 40. « Chapman v. McGrew, 20 III. 101; 3 Galbraith v. Fullerton, 53 111. but see niiite v. Walker, 31 111. 422. 126. 220 DEFENSES TO THE ACTION OF ASSUMPSIT. shall be discharged; but no such discharge shall in any case affect the rights of the creditor against the principal debtor." ' The undertaking of a surety is absolute in its terms, and he is not permitted to discharge himself by requesting the cred- itor to proceed against his principal.^ The rights of the cred- itor against the surety are not im])aired by mere delay, except where the surety has the right to require the creditor to pros- ecute the principal, and insists on the right by giving notice m writing to prosecute." To release the surety there must be a written notice by him to the holder of the obligation to bring suit, served personally, and a neglect to comply therewith.* Where there are two or more sureties on a note, a notice to sue given by one surety on his own behalf, will not operate to discharge another surety who does not give notice." A plea by a surety which is sub- stantially in the language of the statute is sufficient.® In the case of Payne v. ^Yebster^ 19 111. 103, the plea con- tained no averment of notice that the defendant was a surety in the note, but alleged that he " signed the said note as secu- rity; " and the court, holding it good, said that to sustain that plea it must appear on the face of the note that the defend- ant signed it in that character. But it would seem from the case of Ward v. Stout, 32 111. 399, that where a surety on a prom- issory note seeks to avail himself of a failure on the part of the creditor, after notice given to bring suit, the suretyship may be established by evidence outside of the note. To alloAV this, the court says, does no violence to the rule that a writ- ten instrument can not be varied by verbal testimony, for »2 StaiT & Curtis, 2372; Rev. Stat. '^ Bartlett v. Cunningham, 85 111. (1893), 1420; Rev. Stat. (1895), 1518; 22; Tipton v. Carrigan, 10 Bradw. Villarsv. Palmer, 67 111. 204; Hoxise 318; Imniing v. Fielder, 8 Bradw. V. Trustees, 83 111. 368; Taylor v. 256. Beck, 13 111. 376; Bank v. Pierce, 99 * Wilson v, Tebbets, 29 Ark. 579; 111. 272; Miller v. Gray, 31 111. Ronton v. Lacey,!!, Mo. 899; Letcher App. 453; Trustees v. Southard, 31 v. Yantes, 3 Dana 160; Klingensmith 111. App. 359; Dallemand v. Bank, v. KUngen^mith, 31 Penn. St. 460; 54 111. App. 600. Alford v. Baxter, 36 Vt. 158; 2 Taylor v. Beck, 13 111. 376; Carr Trustees v. Southard, 31 111. App. V. Ilou-ard, 8 Blackf. (Ind.) 190. 359. =■ People V. White, 11 111. 341; Pearl « Imming v. Fielder, 8 Bradw. 256; V. Wellman, 11 lU. 352. Payne v. Webster, 19 111. 102. DEFENSES TO THE ACTION OF ASSUMPSIT. 221 such proof of the suretyship does not affect the terms of the contract, but merely establishes a collateral fact and rebuts a presumption. The gratuitous giving of time by creditor to principal does not discharge the surety, though the latter gave verbal notice to the creditor to sue the principal, who was then solvent but afterwards became insolvent.^ Bat if the notice given was in writing, the creditor must sue in a reasonable time, or the surety will be discharged.^ See statute relating to sureties on official bonds, sureties on exe(3utor's, administrator's and guardian's bonds, and sure- ties on negotiable instruments, etc. Death of principal — Diligence against estate. — Section 3 of the act relating to Sureties, provides that " Whenever the principal maker of any note, bond, bill or other instrument in writing shall die, if the creditor shall not, within two years after the granting of letters testamentary or of administration, present the same to the proper court for allowance, the sure- ties thei^eon shall be released from the payment thereof to the extent that the same might have been collected of such estate if presented in proper time, but this section shall not be con- strued to prevent the holder of any such instrument from pro- ceeding against the sureties within said two j^ears." ^ But the holder is not prevented from suing the surety within the two years allowed for filing claims. The holder's right is barred only by a failure for two years to file a claim against the estate, and failing to sue the surety. He may sue the surety during such period.* Any consideration which is sufficient to support the promise of the principal will sustain the promise of the surety.* ' Cavr V.Howard, 8 Blackf. (Ind.), v. Mack, 90 111. 606; Tipton v. Car- 190; Wittmerv. Ellison, 72 III. 301; rigan, 10 Bradw. 318. see Taijlor v. Beck, 13 111. 376. ^ Grindol v. Ruby, 14 Bradw. 439; 5 Reid V. Cox, 5 Blackf. (Ind.), 312; Villars v. Palmer, 67 111. 204; Hud- Overturfv. Martin, 2 Ind. 507; Mc- dleston v. Francis, 124 111. 196. Allister v. Ely, 18 111. 250; Ward v. » Pritchett v. People, 1 Gilm. 525; Stout. 32 111. 399. U. S. v. Linn, 15 Peters (U. S.), 290; 3 2 Starr & Curtis, 2373: Rev, Stat. Leonard v. Vredenburg, 8 Johns. (1893), 1420; Rev. Stat. (1895), 1518; 29. House V, Trustees, 83 111. 368; Curry 223 DEFENSES TO THE ACTION OF ASSUMPSIT. No. 134. Plea by surety (to declaration on promissory note, ivith common counts), that without his assent creditor gave further time to principal. (First plea, non assumpsit, as ante, No. 82 : ) And for a further plea in this behalf, the said E. F. says that the plaintiff ought not to have his afore- said action against him, the said E. F., because he says, that the several sup- posed causes of action in the said declaration mentioned are one and the same, to wit, the supposed cause of action in the said first count mentioned^ and not different causes of action; and that the promissory note in that count mentioned was made and delivered to t\\e plaintiff hj the said C. D. {the other defendant), as principal debtor, and by him, the said E. F., as surety for the said C. D., and not otherwise, whereof the plaintiff, at the time of the making and delivery of the said note as aforesaid, there had notice (*); and that when (or " before," or " after," as the case may he), the said note became due, to wit, on, etc., the plaintiff, at the request of the said C. D., and in consideration (liere state the consideration according to the fact), there agreed with the said C. D. to give, and did then and there give to him further day of payment of the amount of the said note, to wit, until the day of then next ensuing, without the knowledge or consent of him the said E. F. , by reason whereof he, the said E. F. , became discharged from all liability upon the said note. And this he, the said E. F., etc. {con- clude li'itli a verification, as in No. 85, ante). To the above plea the plaintiff may reply that the defend- ant did not execute the note as surety; or that there was no such agreement as therein alleged; or that the giving of fur- ther day of payment was with the knowledge and consent of the surety, or was ratified by him. No. 125. Plea by surety {to declaration on promissory note, with common counts), that creditor was required in writing to put note in suit, but did not. {As in the last precedent, to the asterisk, and then proceed: ) and that after the said note became due, to wit, on, etc., he, the said E. F. (apprehending that the said C. D. was likely to become insolvent, \or, " to migrate from this state,"] without previously discharging the said note, so that it would be impossible or extremely difficult for him, the said E. F., after being compelled to pay the money due by the said note, to recover the same from the said C. D.,) did there require the plaintiff, by notice in writing, forth- with to put the said note in suit; but that, nevertheless, the plaintiff did not, within a reasonable time thereafter, commence suit on the said note, and proceed with due diligence, in the ordinary course of law, to recover a judgment for, and by execution to make, the amount due by the said note; by means whereof , and by force of the statute, etc., the plaintiff has for- feited all right to demand that amount of him, the said E. F. And this he, etc. {conclude with a verification, as in No. 85, ante). DEFENSES TO THE ACTION OF ASSUMPSIT. 223 PLEA OF BEEACH OF WAERANTT. Damao^es arising from a breach of warranty may be proved under the general issue, by way of recoupment/ See the observations under the forms of declarations on war- ranties, ante^ and the authorities there cited; and see also the authorities hereafter cited, relating to want and failure of con- sideration. A plea which avers that a note was given for a boiler and fire- place, and for the warranty of the same to be of a certain quality, and avers a breach of that warranty, and that they were valueless, shows a failure of consideration, and is a good plea." A manufacturer who sells a boiler, impliedly warrants that it is well made, and of sound material.' Where a manufacturer vends his own articles, there is an implied Avarranty that they are manufactured in a workman- like manner. It is otherwise if he is only a vendor; in that case, if there is neither fraud nor warranty, the purchaser buvs at his peril.* If a purchaser directs as to the manufacture of an article, the manufacturer is not then held liable for any in- sufficiency caused by following such direction.* Kg particular form of words is necessary to establish a con- tract of warranty, but it must appear that the alleged war- rantor intended to bind himself to make good the quality of the article sold; and the evidence should show that this made a part of the consideration of the bargain.' A warranty, in or- der to be valid, must be made at the time of sale; or if made afterward, it must be upon a new consideration.' Where a party is to deliver a quantity of corn, (not bought on inspec- tion,) under an executory contract, the law will imply a war- • Babcock v. Trice, 18 111. 420; Misner v. Granger, 4 Gilm. 69; Crabtree \. Kile, 2\ IWASQ; %ee Stow Leather Co. v. Reissig, 48 lU, 75; v.Yarivood, 14 111. 24; Stookeyv. Phelan v. Andrews, 52 IW. 486. Hughes, 18 111. 55; Seeley v. Peojjle, * Archdale v. Moore, 19 III. 565. 27 111. 178; Story on Sales, 393. « Adams v. Johnson, 15 111. 345; = Beers v. Williams, 16 111. 69; Oer- Ender v Scott, 11 111. 35; Hawkins v.' tel V. Schroeder, 48 111. 133. Berry, 5 Gilm. 36; Mlieeler v. Eeed, ^ Beers v. Williams, 16 111. 69; 36 111.81; see Richards v. Betzer, Cemetery v. Smith, 32 111. 253; see 53 111. 466. Sears v. Crazier, 53 111. 245. ■> I'oicell v. Gatewood, 2 Scam. 23, * Archdale v. Moore, 19 111. 565; 22i DEFENSES TO THE ACTION OF ASSUMPSIT. ranty that it is to be of a fair and merchantable quality.' The acceptance of the corn by a \Yarehouseraan, or by the purchaser himself, is not a waiver of this implied Avarranty." The purchaser of an article not warranted as to quality, must take the hazard of his bargain. If he was not to keep the ar- ticle purchased, unless it suited him, he should return it, if it does not suit him, at the earliest practicable moment." Where wheat is sold in stack, there is an implied warranty that it is merchantable." If an administrator takes upon himself to warrant personal property sold by him, the maker of a note given for such prop- erty may show a breach of the warranty, and consequent fail- ure of consideration.' Damages for a breach of warranty of chattels sold may be recovered in an independent suit, or they may be recouped or set off in an action on the contract of sale. And a notice of the defect, or an offer to return the property, is unnecessary in order to recover damages." "Where diseased cattle are sold under a warranty of their healthiness, the measure of damages is the difference between the contract price and their value in their diseased condition, at the time of delivery, together with the amount of any other immediate damages resulting from the breach of warranty. And in a case where cattle were so sold, and the seller knew at the time that they were designed to be sent directly to New York, to be sold for beef, and they were so sent, it was held that expenses incurred on such of the cattle as died, or showed disease, before reaching New York, were immediate damages.' A representation which is positive, and relates to a matter of fact, will constitute a warranty. But where the representation relates to that which is a matter of opinion or fancy, it is to be regarded as an expression of opinion rather than as such a statement of fact as will amount to a warranty, unless that i Bdbcockv. Trice, 18 in A20; Mis- ^Nichols v. (?Mt&or, 20 111. 285; ner v. Granger, 4 Gilm. 69; Pars. Douglass v. Gardner, 10 Cush. 88. Con. 465, 466. * Fish v. Roseberry, 22 111. 288. « Babcock v. Trice, 18 111. 420; « Welch v. Hoyt, 24 111. 117. Mears v. Nichols, 41 111. 207; Chit. ^Crabtree v. Kile, 21 lU. 180; Chit. Cont. 401. Cont. 362, 363. ' Crabtree v. Kile, 21 111. 180. DEFENSES TO THE ACTION OF ASSrMPSIT. 225 idea is excluded by an express warranty, or such other decla- rations as leave no doubt of the intention to make a warranty.' Where a person selling a breast pin asserts positively that it is a diamond, such assertion amounts to a warranty.^ A war- ranty of soundness in a horse or mule sold, amounts to a war- ranty against any defect which renders it not capable of imme- diate use.' The additional recent Illinois cases noted below may be con- sulted on the subject of breach of warranty.* No. 126. Plcaof breach of tcarranty, etc. (To declaration on promissory note, with common counts.) (First plea non-assumpsit, as ante, No, 82; second plea as in No. S5, ante, to the asterisk, and then proceed:) ihaA the several supposed causes of action in the said declaration mentioned are one and the same, to wit, the sup- posed cause of action in the said first count mentioned, and not different causes of action; and that heretofore, to wit, on etc., aforesaid, in consider- ation that the defendant would buy of the plaintiff, at his request, a cer- tain boiler, at the price of dollars, and would pay him the sum of dollars, parcel of the said price, and would make and deliver to him the promissory note of the defendant for the residue thereof, payable to the order of the plaintiff months after that day, the plaintiff promised him, the defendant, that the said boiler was then sound, and fit for the purpose of driving the machinery of a certain mill of the defendant; and there- ' Towell V. Gatewood, 2 Scam. 23; v. Henderson, 32 111. App. 334; Lake see Roberts Y. Applegate, 153111. 210. v. McRitchie, 134 111. 207; Hoover v. ^Sparling v. Marks, 86 111. 125; Doefsc/i, 54 111. App. 65; Roberts v. see i2»^ v. JajTe^f, 94 111. 475. Applegate, 153 111. 2\0; Barnes \. ^Kenner v. Harding, 85 111. 264; Sisson, 44 111. App. 327; 3Ifg. Co. v. Putt V. Duncan, 2 Bradw. 461. Saile, 45 111. App. 562; \Vhite v. * Schoenberger v. McEicen, 15 GresTiom, 52 111. App. 399; 47(Z??na» Bradw. 496; Lwni v. Wrenn, 113111. v. Weber, 28 111. App. 94; Titley v. 175; Drennan v. Bunn, 124 111. 183; Ent. S. Co., 127 111. 462; Cook v. 7ns. Co. v. Morgan, 22 111. App. 198; Travener, 41 111. App. 644; Broicnv. McCormick v. Snell, 23 111. App. 79; Reinholdt, 41 111. App. 602; Whee- Ricev. Fan .4c^'ere, 22 111. App. 588; lock v. Berkley, 38 111. App. 519; Becker v. Brawner, 18 111. App. 39; Keist v. Kingman, 36 111. App. 493; Siegel v. Brooke, 25 111. App. 207; Henkins v. Miller, 45 111. App, 34; Xingfmonv. 3far?m, 24111. App. 435; Ardtman v. Johnson, 45 111. App. H. P. D. Co. V. Schurlock, 23 111. 313; Hodgman v. R. R. Co., 45 111. App. 426; Gibbs v. Kaszezki, 18 111. App. 395; Ryan v. Miller, 153 111. App. 623; Tidly v. Ex., 115 111. 545; 138; Gliddonv. Pooler, 50 111. App. Cox V. Colics, 17 111. App. 504; IVil- 36; Wrightman v. Tucker, 50 111. cox V. Carson, 29111. App. 72; Under- App. 75; Edwards v. Dillo;i, 147 III. wood V. Wolf, 131 lU. 434; Aidtman 14. 15 226 DEFENSES TO THE ACTION OF ASSUMPSIT. upon the defendant, confiding in that promise, then and there bought of tlie plaintiff the said boiler, and, upon the sole consideration of the same promise and of the sale of the said boiler as aforesaid, paid to him the said sum of dollars, parcel of the said price, and made and delivered to him the promissory note of the defendant for the residue thereof, as aforesaid, which is the same note in the said first count mentioned; yet the plaintiff did not regard his said promise, but thereby deceived and defrauded the defendant, in this, to wit, that the said boiler at the time of the making of the said promise of the plaintiff, was not sound, and fit for the purpose of driving the machinery of the said mill, but on the contrary thereof was then unsound, and unfit for that purpose, whereby the said boiler became and was of no use or value to the defendant; and by reason of the unsoundness and unfitness of the said boiler as aforesaid, the same afterwards, to wit, on etc., there burst and was destroyed, whereby the defendant suffered dam- age and loss of his property to the amount of dollars. And this, etc. (conclude ivitha verification, as in No. S5, ante.) PLEA OF WA;NT or FAILURE OF CONSIDERATION. The 9th section of chapter 98, in regard to Negotiable In- struments, provides, that " In any action upon a note, bond, bill, or other instrument in writing, for the payment of money or property, or the per- formance of covenants or conditions, if such instrument was made or entered into without a good and valuable considera- tion, or if the consideration upon which it was made or entered into has wholly or in part failed, it shall be lawful for the de- fendant to plead such want of consideration, or that the con- sideration has wholly or in part failed; and if it shall appear that such instrument was made or entered into without a good or valuable consideration, or that the consideration has wholly failed, the verdict shall be for the defendant; and if it shall a]ipear that the consideration has failed in part, the plaintiff shall recover according to the equity of the case : Provided, that nothing in this section contained shall be construed to affect or impair the right of any hona fide assignee of any in- strument made assignable by this act, when such assignment was made before such instrument became due." ' 12 Starr & Curtis 1661; Rev. Stat. v. Johnson, 17 Bradw. 549; Jones v. (189^^, 994; Rev. Stat. (1895), 1062; Hubbard, 17 Bradw. 564; Mahon v. see Potter v.Gronbeck, 117 111. 404; Gaither, 59 111. App. 583; Waitev. Miller v. Lamed, 103 111. 562; Allen Kalicrisky, 22 111. App. 382. v. Mason, 17 Bradw. 318; Lanferty DEFENSES TO THE ACTION OF ASSUMPSIT. 227 The statutory defenses of a want of consideration, or a total or partial failure thereof, are distinct defenses and must be separately and specially pleaded.' And under a plea of total failure, a partial failure can not be given in evidence." No. 127. Plea of want of consideration. {To declaration on promissory note, with common counts.) (i<^ir.s# p7ea, non-assumpsit, as ante. No. 83; second plea as in No. S5, ante, to the asterisk, and then proceed:) that the several supposed causes of ac- tion in the said declaration mentioned are one and the same, to wit, the supposed cause of action in the said first count mentioned, and not differ- ent causes of action; and that the supposed promissory note in that count mentioned (*) was {here set forth the facts attending the making of the note, and which show that it was without consideration — as that it icas given for past forbearance, or for natural affection, etc. — and conclude thus:) And so the defendant says, that the said supposed promissory note (*) was made without any good or valuable consideration. And this, etc. {verification as in No. 85, ante.) If the note or other writing was given without any pretense or show of consideration, omit all between the asterisks in this form.^ The burden of proof, under this plea, is on the de- fendant.* The want of sufficient or legal consideration for the contract, or illegality in the contract itself, may, it is said, be given in evidence under the general issue, in assumpsit, though it must be pleaded in debt on a specialty, or in cove- nant; ^ but it would seem that in Illinois and Indiana a want of consideration must be specially pleaded in an action on a promissory note.* 1 Wadhams v. Swan, 109 111. 46; ♦ Stacker v. Watson, 1 Scam. 207 Wickersham v. Beers, 20 III. App. McFarland v. Williams, 107 111. 33 243; Smith v. Munich, 21 111. App. Grier v. Puterbaugh, 108 111. 602 323; Belden v. Church, 23 111. App. Wheat v. Summers, 13 Bradw. 444 473; L. D. Co. v. Clapp, 50111. App. Wickersham\. Beers, 20 Bradw. 243 301. McCartney v. Washburn, 52 111 ^Swainv. Catcood, 2 Scam. 505; App. 540. Sims V. Klein, Breese 302; Johnson ^ 1 Chit. PL 417-428; Wi7ieman v. V. Wilson, 54 111. 419; Wadhams v, Obeme, 40 111. App, 270; Wilson v Sivan, 109 111. 46; Lumley v. Golden, King, 83 111. 232. 15 Bradw. 462. *See Stacker v. Watson, 1 Scam, "See Poole v. Vanlandingham, 207; Buckmaster v. Grundy, 1 Scam Breese, 47, note 2; Sheldon v. Lewis, 310; Henderson v. Palmer, 71 III 97 111. 640; Booth v. Wiley, 102 lU. 579; Tenney v. Foote, 95 111. 99; Pa- 84. ton V. Stewart, 78 111. 481. 223 DEFENSES TO TUE ACTION OF ASSUMPSIT. A note given for past forbearance of a debt is without con- sideration;' and natural affection is not a valid consideration for a note, or other executory contract.' It is a good plea to an action on a promissory note, that the consideration was a lease which was null and void.' Where A's house was burned by accident, and the fire ex- tended, and burned the house of B., and the latter, by falsely representing that he could prove the fire to have been caused by the negligence or misconduct of A., induced him to give his promissory note for a part of the amount of the loss, the note was held to have been given without consideration.* A promissory note may be given upon different distinct and independent considerations, and if one consideration is valid and the other not, there may be a recovery ^w tanto so far as it is founded on a valid consideration.^ A quit-claim deed is a sufficient consideration for a promissory note." A note given as collateral security for a pre-existing debt is founded upon a valid consideration.^ JVb. 12S. Plea of total failure of consideration — breach of ivarranty. {To declaration on promissory note, ivith common counts.) {First plea, non' assumpsit, as ante No. 82; secondplea as in No. 85, ante, to the asterisk, and then proceed:) that the several supposed causes of action in the said declaration mentioned are one and the same, to wit, the sup- posed cause of action in the said first count mentioned, and not different causes of action; and that on, etc., aforesaid, the plaintiff there sold to the defendant a certain boiler, at the price of dollars, and warranted the said boiler to be then sound, and fit for the purpose of driving the machin- ery of a certain mill of the defendant; and that thereupon the defendant, upon the sole consideration of the said sale and warranty of the said boiler as aforesaid, then and there paid to the plaintiff the sum of dollars, 1 Carter v. Moses, 39 111. 539; Mul- Ry. Co. v. Mathers, 104 111. 257: holland v. Bartlett, 74 111. 58; Edle- Reeves v. Hyde, 14 Bradw. 233. man v. Byers, 75 111. 367; Thayer v. *Knotts v. Preble, 50 111. 226. Allison, 109 111. 180; Parker v. En- ^Parish v. Stone, 14 Pick. 198; slow, 102 111. 272; Henderson v. Forbes v. Williams, 13111 App. 280; Palmer, 71 111. 580. Graves v. Safford, 41 111. App. 659. 2 Kirkpatrick v. Taylor, 43 111. 207 Forbes v. Williams, 13 Bradw. 280 PadfieM v. Padfield, 68 lU. 210 6 Bonney v. Smith, 17 111. 531; Shel- don V. Harding, 44 111. 68. ' Hancock v. Hodgson, 3 Scam. Pratt V. Trustees, 93 111. 475; Will- 329; Blackwood v. Bowen, 43 111. iams V. Forbes, 114 111. 167. App. 320. ^Kinzie v. Chicago, % Scam. 187; DEFENSES TO THE ACTION OF ASSUMPSIT. 220 parcel of the price aforesaid, and made and delivered to him the promis- sory note in the said first count mentioned, to secure the payment of the residue of the said price; and that the said boiler, at the time of the said sale and warranty thereof as aforesaid, was not sound and fit for the pur- pose of di'iving the machinery of the said mill, but on the contrary thereof was then unsound, and unfit for that purpose, whereby the said boiler be- came and was of no use or value to the defendant: and that by reason of tJie unsoundness and unfitness of the said boiler, as aforesaid, the same afterward, toxcit, on, etc., there burst, and was thereby destroyed: And so the defendant says that the consideration upon which the said note was made has wholly failed. And this, etc. {conclude with a verification, as in No. 85, ante.) No. 129. Plea of total failure of consideration — breach of warranty of a horse. {To declaration on promissory note, with common counts.) First plea, non assumpsit, as ante, No. 82; second plea as in No. 85, ante, to the asterisk and then proceed: ) that the several supposed causes of action in the said declaration mentioned are one and the same, to wit, the supposed cause of action in the said first count mentioned, and not differ- ent causes of action: and that on, etc., aforesaid, the plaintiff there sold to the defendant a certain horse, at the price of dollars, and warranted the said horse to be then sound; and that thereupon the defendant, upon the sole consideration of the said sale and warranty of the said horse, aforesaid, then and there made and delivered to the plaintiff the promis- sory note in the said first count mentioned, to secure the payment of the said sum of dollars; and that the said horse, at the time of the said sale and warranty thereof, as aforesaid, was not sound, but on the contrary thereof was then unsound (*) and affected with disease, whereby the said horse became and was of no use or value to the defendant, and of the same disease afterward.'^ died: And so the defendant says, that the consideration upon which the said note was made has wholly failed. And this, etc., {conclude with a verification as in No. 85, ante.) The plaintiff may reply that the horse was sound, and free from disease, or deny the warranty. The plea of failure of consideration, setting up a breach of a warranty of soundness, should state the breach co-extensively with the contract of war- ranty. It must negative the words of the contract. The par- ticular unsoundness need not be stated.' A plea of failure of consideration to an action upon a note should state particularly in what the failure consisted. Gen- eral allegations are not sufficient.' In pleading a total failure ^ LeeperT. Shaivman, X'i Ind. 463; ^Taylor v. Sprinkle, Breese 17 2 Saund. PI. & Ev., 1226; 1 Chit. PI., Cornelius v. Vanorsdall, Breese 23 291; 9 Co. 60, b. Poole v. Vanlandingham, Breese 47 230 DEFENSES TO THE ACTION OF ASSUMPSIT. of consideration, the plea should set forth every distinct element entering into the consideration, and then as distinctly aver a failure of each and all the parts of it.' A partial failure of consideration can not be given in evi- dence under the general issue and a notice of set-off,^ or under a notice or plea of total failure of consideration.' Mere inad- equacy of consideration is no ground for impeaching a con- tract.* Parol evidence may be received to impeach the consid- eration of a note, but not to vary its terms.' A general plea of failure of consideration is bad.' No. 130. Plea of total failure of consideration of note given for fees. {First plea, non assumpsit, as ante, No. 82.) And for a further plea in this behalf, the defendant says that the plaintiff ought not to have his aforesaid action against him, the defendant, (or actio non) because he says that the sole and only consideration of the said promissory note, in the said declaration mentioned, was an agreement entered into by the plaintiff with the defendant relating to his fees in a murder case pending in the state of Missouri ; that before and at the time of the execution and delivery of said note to the plaintiff, the plaintiff had been and was the attorney for one G. H. in said prosecution for murder, and had then already earned some fees therein ; and the defendant then and there being desirous that the plaintiff should not make any charge against the said G. H. for his legal services ah-eady performed, or that he might in the future perform therein, it was agreed between the defendant and the plaintiff, that if the defendant would give the plaintiff the said promissory note for the sum of dollars, for his fees in said cause, he, the plaint- iff, would never make any charge or claim against the said G. H . for his services in said cause; that in consideration of this agreement on the part of the plaintiff, and for no other consideration whatever, the defendant executed and delivered the promissory note in suit to the plaintiff; and the Bradshaw v. Neivman, Breese 133; v. Cook, 33111. 168; Johnson v. Wil- Sims V. Klein, Breese 302; Pai'ks v. son, 54 111. 419. Holmes, 22 ill. Ty22: Kinney v. Turner, * Major v. Brush, 7 Ind. 232; Vest 15 111. 181; Christopher v. Cheney, v. Weir, 4 Blacki. 135. 64 III. 26; Honeymann v. Jarvis, 64 ' Penny v. Graves, 12 111. 287; Gage 111. 366; Convith v. Colter, 82 111. 585. v, Lewis, 68 111. 604; 3Io7'ris v. Till- ^ Kinney v. Turner, 15 111. 182; son, 81 111.607; Ruffy. Jarrett, 94: Wilson v. King, 83 111. 232; Sheldon 111. 475; Mann v. Smyser, 76 111. 365; V. Lewis, 97 111. 640. Broadwell v. Sanderson, 29 111. App. ' Swain v. Cawood, 2 Scam. 505; 384; Kidder v. Vandersloot, 114 111. Sheldon v, Letvis, 97 111. 640. 136; Martin v. Stubbings, 27 111. ^ Stvaiyi v. Cawood, 2 Scam. 505; App. 121. Sims V. Klein, Breese 302; Bitmap ^ Applegate v. Crawford, 2 Carter (Ind.) 579. DEFENSES TO THE ACTION OF ASSUMPSIT. 231 defendant further avers, that after the maturity of said note, the plaintiff, in violation of said agreement, brought suit against the said G. H. for the sum of dollars, for his fees in the said murder case; that after wai'ds the said suit of the plaintiff against the said G. H. was settled and compro- mised for the sum of dollars, paid by the said G. H. to the plaintiff, in full satisfaction and discharge of his fees as aforesaid; and so the de- fendant says, that the consideration upon which the said note was exe- cuted, has wholly failed; and tliis the defendant is ready to verify; where- fore he prays judgment, etc. G. H., Att'y for Deft. No. 131. Plea of total failure of consideration — to action by assignee of promissory note given on purchase of real estate. {Count on note and common counts.) {First plea, non assumpsit, as ante. No. S2; second plea as ante,Ao. 85, to the asterisk, and then proceed:) that the several supposed causes of action in the said declaration mentioned are one and the same, to wit, the sup- posed cause of action in the said first count mentioned, and not different causes of action; and that the promissory note in that count mentioned was assigned to the plaintiff after the same became due; and that the consider- ation upon the said note was made has wholly failed. And the defendant further in fact says, that before the making of the said note, to wit, on, etc., aforesaid, the said E. V. {the payee) there agreed with the defendant to sell to him, at the price of dollars, and to convey to him in fee simple, by deed with covenants of warranty, a certain parcel of land, to wit, {here describe the land;) and thereupon the said E. F. , on the day aforesaid, there made and delivered to the defendant a deed purporting to be a deed of conveyance of the said parcel of land, in fee simple, (which said deed, bearing date the day aforesaid, is now to the court here shown,) and thereby covenanted with the defendant, among other things, that {here set out such of the covenants as may be desired, for example as follows — ) he the said E. F. was then well seized of the said parcel of land, as of a good, sure, pei-fect, absolute and indefeasible estate of inheritance in the law, in fee simple, and then had good right, full power and lawful authority to gi'ant, bargain, sell and convey the same in fee simple, as aforesaid; as by the said deed, reference being thereto had, will more fully appear; and thereupon the defendant, to secure the payment of a part of the said price, and upon the sole consider- ation of the sale and conveyance so agreed and purported to be made of the said parcel of land as aforesaid, and of the said covenants in the said deed contained, then and there made and delivered the said note to the said E. F. And the defendant further says, that at the time of the making and delivery of the said deed the said E. F. was not well seized of the said j^arcel of land, as of a good, sure, perfect, absolute and indefeasible estate of in- heritance in the law, in fee simple, nor had he then good right, full power and lawful authority to gi"ant, bargain, seU and convey the same as afore- said, but on the contrary thereof the said E. F. did not then have, nor has he since acquired, any right or title whatsoever to the said parcel of land, or any part thereof; by means whereof {here set forth an eviction, under 232 DEFENSES TO THE ACTION OF ASSUMPSIT. paramount title, if such has been the fact, or allege as folloics—) the de- fendant has not had, nor has. the possession or enjoyment of the said parcel of land, or any part thereof. And this, etc. (conclude with a verification, as in No. 85, ante.) The plaintiff may reply that the note was not indorsed after maturity;' or that the consideration was not as alleged in the plea, or that the title to the land has not failed. If deemed essential to put in issue more than one of the allegations of the plea, the plaintiff may, by leave of the court, reply several replications. To a plea that the plaintiff does not own a certain title to land, and consequently can not convey it as agreed, it seems that he may reply that he owns the title in equity, and can control it for the benefit of the purchaser.' "Where the consideration of a note is an agreement to con- vey lands, and at the time fixed for the conveyance the vendor has no title to the lands, and consequently can not convey them, there is such a failure of consideration as will bar a recovery on the note.' The title to the land, whatever the covenantor professes to have, is the true consideration of the note given for the pur- chase money thereof, and not the covenants in the deed," It is a sufficient defense to an action on a note, to show a breach of a covenant of warranty in a deed for the conveyance of lands, for the price of which the note was given.* But a pur- chaser of land, receiving a deed with covenants of title, can not avoid the payment of promissory notes given for the pur- ' See Ebersole v. Bank, 36 lU. App. * Tyler v. Young, 2 Scam. 444: 267. Owiags v. Thompson, 3 Scam. 502; ^Eunkle v. Johnson, 30 111. 328. 3Iasonv.Wait, 4 Scam. 127; Gregory ^Elston V. Blanchard, 2 Scam. v. Scott, 4 Scam. 393; Furness v. 420; Tyler v. Young, 2 Scam. 444; Williams, 11 111. 229; Comcay v. ifyers v. Aikman, 2 Scam. 452; Case,221\\. 121; see Miller v. Howell, Gregory v. Scott, 4 Scam. 392; Davis 1 Scam. 499; Schuchmann v. Knoebel, V. McVicker, 11 111. 337; Lull v. 27 111. 175; Runkle v. Johnson, 30 Stone, 37 111. 224; see Bailey v. 111. 328; Willets v. Burgess, 34 111. Cromirell, 3 Scam. 72; Wagy v. 494. Lane, S Scam. 2S1; Sargeantv. Kel- ^ Slack v. McLagan, 15 111. 242; logg, 5 Gilm. 273; Foster v. Jared, Watts v. Parker, 27 111. 226; Christy 12 111. 451; Vining v. Leeman, 45 v. Ogle, 33 111. 295; Laforge v. 111. 246. Matthews, 68 111. 328. DEFENSES TO THE ACTION OF ASSUMPSIT. 233 chase money on the ground that the grantor had no title, if the possession of the purchaser has not been disturbed nor the paramount title asserted.' Where there is neither fraud nor warranty on the part of the vendor in a sale of land, the vendee can not recover the purchase money paid, although there may be a total failure of title.^ In an action on a note given on a purchase of land the defendant may recoup an amount he has been compelled to pay in order to remove an incumbrance on the land.^ For cases where total or partial failure of consideration was pleaded — the consideration being the title to real estate — see the cases reported in 4 Scam. 392, 561; 22 111. 127; 27 111. 175; 34 111. 494; and 45 111. 246. No. 132. Plea of partial failure of consideration. (To declaration on promissory note, with, common counts.) (First plea, non-assumpsit, as ante, No. S2.) And for a further plea in this behalf, the defendant says that the plaintiff ought not to have his aforesaid action against him, the defendant, except as to the sum of dollars, because he says (proceed as in No. 129, ante, to the asterisk, and thence as follows :) and so has continued from thence hitherto, by reason whereof the said horse was not nor is of any greater value than the said sum of dollars: And so the defendant says, that the consideration upon which the said note was made has failed except as to that sum of money. And this the defendant is ready to verify; wherefore he prays judgment if the plaintiff ought to have his aforesaid action, except as to the said sum of dollars. A partial failure of consideration may be pleaded to a prom- issory^ note given for the purchase of land.* A plea which commences as a plea of partial failure of consideration (which goes only to a part of the action,) and concludes as a plea of fraud (which is a defense to the whole action,) is bad.^ See further, as to consideration, and want or failure thereof, the additional Illinois cases noted below.' 1 Vining v. Leeman, 45 111. 246; ^Schuchmann v. Knoehel, 27 111. gee Linton v. Porter, 31 111. 107. 175. 2 Do?/?e V. J?'?ia^9j), 3 Scam. 334; see * Schuchmann v. Knoehel, 27 111. Bertrand v. Morrison, Breese 227; 175; Webster v.Vickers, 2 HQam..2^ii; Merriwether v. Smith, 2 Scam. 31; see Willetsv. Burgess, 34 111. 494. Farness v. Williams, 11 111. 229; ^ Sims v. Klein, Bveese 302. Willets V. Burgess, 34 111. 494. « Wood v. Hynes, 1 Scam. 103; 231 DEFENSES TO THE ACTION OF ASSUMPSIT. PLEA OF ILLEGAL CONSIDEKATION. By the statute of Illinois, all promises, notes, etc., for the payment of money or pro|3erty won at play are void absolutely; and no assignment of any such note, etc., affects the defense of the person who has given the same.' Illegality in the contract itself— as gaming, etc. — may, it seems, be given in evidence under the general issue in assump- sit, or debt on simple contract, but in actions on specialties it must be pleaded." On the subject of gaming contracts the additional Illinois cases given in the note may be consulted.* Stalker v. Hewitt, 1 Scam. 307; Hancock v, Hodgson, 3 Scam. 329; Conkling v. Uuderhill. 3 Scam. 388; Bradley v. Case, 3 Scam. 585; Bar- ger v. Jones, 3 Scam. 613; Hall v. Perkins, 4 Scam. 548; Mason v. Caldwell, 5 Gilm. 196; Walter v. Kirk, 14 111. 55; Harlow v. Boswell, 15 111. 56; Myers v. Turner, 17 111. 179; Bonney v. Smith, 17 111. 531; Sigsivorth v. Coulter, 18 111. 204; Buntainv. Diifton, 21 111. 190; Young V. Ward, 21 111. 223; Stephens v. Thornton, 26 111. 328; McHenry v. Yokum, 27 111. 160; Kerney v. Gard- ner, 27 111. 163; Buntain v. Button, 21 111. 190; Watt v. Parker, 27 III. 226; Hill v. Todd, 29 101; Hoyt v. Jaffrey, 29 111. 104; Conkling v. Vail, 31 111. 166; Cassell v. Ross, 33 111. 244; Stafford v. Fargo, 35 111. 481; Newell V. County, 37 111. 253; How- ell V. Edmunds, 47 111. 79; Austin v. Painter, 50 III. 308; Bothwell v, Broicn, 51 111. 234; Hennessey v. Hill, 52 111. 281 ; Townsend v. Conim., 63 111. 26; Richards v. £e?zer, 53 111. 467; Gates V. Hoeckethal, 57 111. 534; Tuttle V. Ridgway, 62 111. 515; 7ns. Co. V. Smith, 63 111. 187; Davenport V. Springer, 63 111. 276; Kirkham v. Boston, 67 111. 599; Padfield v. Pad- ^eZd, 68 111. 210; 5«ZZ v. Benjamin, 73 111. 39; A'?ay/if v. Hulbert, 74 111. 133; £es< v. £a?ifc, 76 111. 608; Win- kelman v. Choteau, 78 111. 107; Harms v. Anfleld, 79 111. 257; T^'er- rier v. i'Vies, 85 111. 350; Chetlain v, /ns. Co., 86 111. 220; Silverman v. Chase, 90 111. 37; C7. T. Co. v. i2t> don, 93 111. 458; Di^ennan v. Bunn, 124 111. 175; Pr/ce v. Bank, 124 111. 317; Hodges v. iVas/i, 141 111. 391; Rich- ardson V. Richardson, 148 111. 563; Cothranv. Ellis, 125 111. 498; i/ardi/ V. Ross, 4 Bradw. 501; McJntyre v. Robinson, 8 Bradw. 115; Forbes v. Williams, 13 Bradw. 280; Martin v. Stubbings, 20111. App. 381; Wheeler V. Wheeler, 28 111. App. 385; Frolich V. 4Zea;a?icZer, 36 111. 428; 7ns. Co. v. SZiVZ, 43 111. App. 233; Cro/M« v. Aldrich, 54 111. App. 541. ' 1 Starr & Curtis, 792; Rev. Stat. (1893), 492; Rev. Stat. (1895), 534; Chapin v. Drake, 57 111. 296; Bank V. Van Kirk, 39 111. App. 23; Trust Co. V. Goodrich, 75 111. 554; Holland V. Swain, 94 111. 154; Abrams v. Camp, 3 Scam. 290; Williams v. Jtfdi/, 3 Gilm. 282; Pearce v. T'ooZe, 113 111. 228; Pope v. Hanke, 53 111. App. 453. n Chit. PI. 417, 421, 425; see Beadles v. Bliss, 37 III. 330. ^ Lurton v. Gilliam, 1 Scam. 577; ^da?fts V. Woldridge, 3 Scam. 353; Morgan v. PeZZfZ, 3 Scam. 539; Nash\. Monheimer, 30 111. 315; Sf7?iz7/t V. 6'miY/i, 31 111. 344; Gordon v. DEFENSES TO THE ACTION OF ASSUMPSIT. 235 If any part of the entire consideration of a contract or any part of an entire promise be illegal, whether by statute or at com- mon law, the whole contract is void.' A note signed by one as surety upon the promise that the maker thereof shall not be prosecuted for embezzlement, being based upon an illegal consideration, is void.^ See the obser- vations under the precedents of pleas of payment, accord and satisfaction, etc., ante, in regard to adapting the plea to the different forms of action. No. 133. Plea that promises were for money icon by gaming. {First plea, non-assumpsit, as ante, No. 83; second plea as in No. 85, ante, to the asterisk, and then x>roceed :) that the sev^eral supposed promises in the said declaration mentioned were, and each of them was, made upon the consideration of money won by the plaintiff from the defendant by gam- ing, to wit, by playing at certain games with cards; wherefore, by force of the statute, etc., the said supposed promises were and are wholly void. And this, etc. {conclude loith a verification, as in No. So, ante). (The plaintiff may reply that the promises were made upon good and lawful consideration, and not upon the supposed unlawful consideration mentioned in the plea. See the replication to the plea of usury, No. 104, ante.) No. 134. Replication to a plea that note icas for money icon at play. '^ {Venue and title of cause.) And the plaintiff as to the said plea of the defendant, by him above pleaded, says precludi non, because he says, that the said pi-omissory note was made and delivered to hitn by the defendant for the sum of money therein mentioned, and which was bona fide due and owing to him by the defendant, and not for money won, etc. {negative the plea). And this he prays may be inquired of by the country, etc. E. F., Att'y forPl'ff. No. 135. Plea of illegal consideration — Gambling in grain. {Commence as in No. 85, ante, to the (*) and then proceed:) that the sev- eral supposed causes of action in the said declaration mentioned are one Casey,2^1\\.1(i; TotmariY. Strader, Henderson v. Palmer, 71 111. 579; 23 111. 493; Stevens v. Sharp, 26 111. Miles v. Andrews, 40 111. App. 164. 404; Beadles v. Bliss, 27 111. 320; '^ Henderson \. Palmer, '11 l\\. ol^; McClurken v. Detrich, 33 111. 349; Gorham v. Keyes, 137 Mass. 583; Graymanv. Burlingame, 36 111.201; Rouse v. Mohr, 29 111. App. 326. Mosher v. Griffin, 51 111. 184; Gar- ' Riedle v. 3Iulhauser, 20 111. App. rison v. McGregor, 51 111. 473. 68; 2 D. & E. 439. ' Nash v. Monheimer, 20 111. 215; 236 DEFENSES TO THE ACTION OF ASSUMPSIT. and the same, to wit, the supposed cause of action in the first count men- tioned, and not different causes of action; that the sole and only considera- tion upon which the said promissory note in the said count mentioned was executed, was for money won by the plaintiff from the defendant in spec- ulating on the market price of grain, to wit, by buying and selling deals and options in grain; that in each and all of said deals and options it was understood and intended by both the plaintiff and defendant, that neither party was to receive or deliver the grain so bought or sold; and that the loss or gain resulting from such transactions should be settled by the pay- ment or receipt of the difference between the price agreed upon and the market value of the same at the time appointed for the delivery thereof. Wherefore, by force of the statute in such case provided, the said promis- sory note is wholly void; wherefore, the defendant prays judgment, etc. The intent of the statute (sec. 130, chap. 38) is to prohibit all dealing's in options in grain or other commodities. The statute should be justly and fairly construed to enable it to accomplish this end, and not to defeat it.' PLEA OF DISCHARGE IN BANKRUPTCY. The bankrupt law provides that a discharge in bankruptcy may be pleaded by a simple averment that on the da}^ of its date such discharge was granted to the bankrupt, setting the same forth in hcec verha; and the certificate shall be conclu- sive evidence, in favor of such bankrupt, of the fact and the regularity of such discharge.' It was not intended by any of the provisions of the bankrupt law that the bankrupt courts should pass, in a plenary manner, upon the question whether a particular claim will or will not be released by a discharge. That inquiry is one properly to be made only by the court in which a direct suit on the debt is pending. When the dis- 1 Fearte v. Foote, 113 111. 228; Mc- Foote, 95 111. 99; Brand v. Hender- Cormick V. Nichols, 19 Bradw. 334; son, 107 111. 141; PennY. Boniman, Coffman v. Yotmg, 20 Bradw. 76; 102 111. 523; Powell v. McCord, 121 MUler V. Bensley, 20 Bradw. 528; 111. 333; Cothran v. Ellis, 125 111. Larnedv. Tiernon, 110 111. 173; Eng- 496; Schneider v. Turner, 130 111. 28; lish V. Cannon, 17 Bradw. 475; Benson v. Morgan, 26 111. App. 22; Pickering V. Cease, 79111. d28; Lyon Wheeler v. McDermid, 36 111. App. V. Cidbertson, 83 111. 33; Tenney v. 179; Bank v. Vankirk, 39 111. App. Foote, 4 Bradw. 594; Webster v. 23; Dillon v. McCrea, 59 111. App. Sturges, 7 Bradw. 560; Bank v. 505. Sjmids, 8 Bradw. 493; Doxey v. 2 g^c. 34, Bankrupt Law of 1867; Spaids, 8 Bradw. 549; Kreigh v. see By. Co. v. Jenkins, 103 111. 588. Sherman, 105 111. 49; Tenney v. DEFENSES TO THE ACTION OF ASSUMPSIT. 237 charge is pleaded, the question of the extent of its operation upon the debts of the bankrupt, and whether a particular debt is or is not discharged by it, comes up for determination by the court in which it is pleaded, and the determination will be a binding judgment between the parties/ A discharge duly granted, when pleaded in bar to the further maintenance of an action for a prior debt, can not be impeached in a state court for any cause which would have prevented the granting of it under section 29, or would have been sufficient ground for annulling it under section 34 of the bankrupt law.'' Section 33 of the bankrupt law provides " that no debt created by the fraud or embezzlement of the bankrupt, or by his defalcation as a public officer, or while acting in any fiduciary character, shall be discharged under this act." ' JSTo debt contracted by fraud can be discharged, even though the debt is merge'd in a judgment.* Where the record of the action shows a material and traversable allega- tion of fraud as its sole foundation the debt or demand may fairly be said to be one founded in fraud, and is not merged by a judgment thereon.^ A claim is not discharged which is founded on a deceit by means of false and fraudulent representations and inducements whereby the bankrupt procured from the plaintiff an assign- ment of a complete stock in trade, including goods, choses in action, etc., in exchange for a note of much less value than was represented, if not wholly worthless." The act, from its language, seems to have been intentionally made so broad as to include a debt created by a defalcation of the bankrupt while acting in any fiduciary capacity whatever, and not to be confined to any special fiduciary capacity.^ A claim against a person for withholding the proceeds arising from the sale of ' Bump's Law of Bankr. 395; 36 * See Katz v. Moesinger, 110 111. How. Pr. R. 167. 372; St. John v. Stevenson, 90 111. 83, * Bates V. West, 19 III. 134; Bump's ^ Bump's Law of Bankr. 392. Law of Bankr. 396; Bailey v. « Bump, 392; 2 B. R. 11; 1 L. T. B. Moore, 21 111. 165. 90. 3 Bump's Law of Bankr. 391; Al- •> B. R. Sup. 7; S. C, 1 Bt. 248; len V. Hickling, 11 Brad. 549; see Bump, 392. Ames V. Moir, 130 III. 582. 238 DEFENSES TO THE ACTION OF ASSUMPSIT. goods consigned to him to be sold on commission, is a debt con- tracted by him in a fiduciary capacity.' A discharge in bankruptcy, like the statute of limitations, does not annul the original debt or liability of the bankrupt, but merely suspends the right of action for its recovery. It therefore follows that no one but the bankrupt can plead his discharge in avoidance of his liability. He may, if he chooses? treat his covenants and obligations as still binding upon him.' A judgment obtained against a bankrupt in the state court pending a proceeding by him in the United States court for a discharge in bankruptcy is valid, notwithstanding his subse- quent discharge. The bankrupt, after his discharge, may apply for and have a stay of the execution of the judgment.' A discharged debt of a bankrupt may be revived by an abso- lute or conditional promise, but it must be clear, distinct and unequivocal." The subsequent promise need not have been made after the discharge but it is sufficient if it is made after the petition in bankruptcy is filed." (In debt on simple contract, the word contracts may be ^vh- ^t\tuie(\ ^ov J) romises; Siudi inactions on specialties say "the writing," or " the supposed writing obligatory," instead of " the several supposed promises.") No. 136. Plea of discharge in harikruptcy. (First plea, non-assumpsit, as ante, No. 82; second plea as in No. S5, ante, to the asterisk, and then proceed:) that after the making the several supposed promises in the said declaration mentioned, and before the commencement of this suit, to wit, on, etc., the district court of the United States of America for the district of granted to the defendant a certain dis- charge, in these words and figures, to wit : {Here set forth the discharge, in haec verba.) And the defendant further says, that the several supposed causes of action in the said declaration mentioned are in respect of debts and claims, and each of them is in respect of a debt and claim by the said act of congress made provable against the estate of the defendant, and which existed on the said day of ; and that the said supposed causes of action are not, nor are any nor is any one of them, in respect of 1 2 B. R. 74, 114; S. C, 2 Bt. 554; *St. John v. Stevenson. 90 111. 82; S. C, 6 Blatch. 292. Cheiiey v. Barge, 26 111. App. 182. 2 Pease v. Pitch, 132 111. 638; » Cheney v. Barge, 26 111. App. Bush v. Stanley, 122 111. 406. 182; Wheeler v. Wheeler, 28 111. App. 3 Lackey v. Steere, 121 III. 598. 385. DEFENSES TO THE ACTION OF ASSUMPSIT. 239 any such debts or debt as are or is by the said act excepted from the opera- tion of a discharge in bankruptcy. And this, etc. (conclude icith a verifica- tion, as in No. 85, ante.) PLEA DENYING EXECUTION OF WRITTEN CONTRACTS. The 33d section of the Illinois Practice Act provides that " no person shall be permitted to deny, on trial, the execution or assignment of any instrument in writing, whether sealed or not, upon which any action may have been brought, or which shall be pleaded or set up b}'' way of defense or set-off, or is admis- sible under the pleadings when a copy is filed, unless the per- son so denying the same shall, if defendant, verify his plea by affidavit; and if plaintiff, shall file his affidavit denying the exe- cution or assignment of such instrument; provided, if the party making such denial be not the party alleged to have executed or assigned such instrument, the denial may be made on the information and belief of such party." * This section controls United States circuit courts in Illinois.' In assumpsit, when the execution of the instrument sued on is sought to be put in issue, the proper plea is non assumpsit, verified by affidavit;' and in debt on a specialty, and covenant, the proper plea is non est factum, verified in like manner.* The affidavit is not, however, competent evidence upon the issue as to the execution and delivery of the instrument.' In debt on simple contract in writing, the following form may be used, and it will answer in any action at law on a written instrument. iN'o. 137. Plea denying execution of instrument. (As in No. 85, ante, to the asterisk, and then proceed:) that he did not make and dehver the writing in the said declaration mentioned, in manner ' 2 Starr & Curtis 1797; Rev. Stat. ner v. HarhacTc, 21 111. 129; Home F. (1893), 1075; Rev. Stat. (1895), 1159; Co. v. Beebe, 48 111. 138; Williams v. see Bailey v. Bank, 127 111. 332. Poio. Co., 36 111. App. 107; Murchie "^R. R. Co. V. Knight, 122 U. S. 76. v. Peck, 57 111. App. 396; Bailey v. ^Baird v. Best, 13 Bradw. 385; Bank, 21 111. App. 642. Martin v. Culver, 87 111. 49; Hitch- *Longley v. Norvall, 1 Scam. 389; cock V. Buchanan, 105 U. S. 416; Witter v. McNeill, 3 Scam. 433; 3Iix Hinton v. Husbands. 3 Scam. 187; v. People, 92 111. 549. Ry. Co. V. Neill, 16 111. 269; see ^Hunter v. Harris, 131 111. 482. Vance v. Funk, 2 Scam. 263; Gardi- 240 DEFENSES TO THE ACTION OF ASSUMPSIT. and form as the plaintiflF has above in that behalf alleged: And of this the defendant puts liimself upon the country, etc. In the Court. C. D. ) ats. [Assumpsit. . A. B. ) The said C. D., defendant, mates oath and says, (*) that the foregoing plea is true in substance and in fact. CD. Subscribed and sworn, etc. Where a firm name is improperly used for the private pur- poses of one of the partners, the proper practice would be for the other to file a plea denying the execution of the instru- ment, verified by affidavit.^ The affidavit must be made by the person pleading the plea; and if it is pleaded by several persons, they must all verify it. If verified by but one, the plaintiff has to prove his case as to that one only.^ If the person denying the execution or assignment of an instrument is not the person alleged to have made or assigned the same, the words " upon his information and belief " are to be inserted in the affidavit, where the asterisk is placed in the above form. Keplications and rejoinders, denying the execu- tion of written contracts pleaded or replied, can be framed from the above form of plea; or non est factum can be re- plied or rejoined, when the execution of a specialty is to be denied. See the additional Illinois cases noted below,' and those noted under the next two forms. 1 Zuel V. Bowen, 78 111. 234; see v. Menkins, 15 111. 339; Adams v, Davis V. Scarritt, 17 111. 202; Still- King, 16 111. 1Q9; Martin y. Culver, son V. Hill, 18 111. 262; Smith v. 87 111. 49; Wallace v. Wallace, 8 Knight, 71 111. 148; Spurck v. Leon- Bradw. 69; Baird v. Best, 13 Bradw. ard 9 Bradw. 174. 385; Shufeldt v. Henderson, 26 111. ^ Stevenson x.Farnsworth,2Gi\m. Apv. 593; Renting Co. v. Hutchin- 715; Kennedy v. Hall, 68 111. 165; Svn, 25 111. App. 476; Aultman v. Kingv. Haines, 23 111. 340; Bailey Henderson, 32 111. App. 331; Don- V. Bank, 21 111. App. 643. nell v. McDonald, 37 111. App. 144; ^Linn v. Buckingham, 1 Scam. Jwdd v. Crad/e, 37 111. App. 149; Gid- 451; Delahay v. Clement, 2 Scam. ding v. McCumher, 51 111. App. 373; 575; Archer v. Bogue, 3 Scam. 526; Crawford v. Crane, 61 111. App. Dunght v. Newell, 15 lU. 333; Frye 459. DEFENSES TO THE ACTION OF ASSUMPSIT. Si I PLEA DENYING JOINT LIABILITY. Section 35 of the Illinois Practice Act is as follows : " In actions upon contracts, express or implied, against two or more defendants, as partners or joint obligors or payors, whether so alleged or not, proof of the joint liability of the defendants or partnership of the defendants, or their christian or surnames, shall not in the first instance be required, to entitle the plaint- iff to judgment, unless such proof shall be rendered necessary by pleading in abatement, or unless the defendant shall file a plea in bar, denying the jpaHnership, or joint liability, or the execution of the instrument sued upon, verified by affidavit." ' This differs, in the respects indicated by the words in italics, from the law as it existed before July 1, 1872. No. 138. Plea by one defendant, denying joint liability. (See form No. 85, ante, as to commencement — ) the said E. F. says that the plaintiff ought not to have his aforesaid action against him , the said E. F., because he says, that he is not nor ever was jointly liable with the said C. D. in respect of the several supposed causes of action in the said declaration mentioned, or any or either of them, in manner and form as the plaintiff has above in that behalf alleged: And of this he, the said E. F., puts himself upon the country, etc. {Add affidavit, as in last precedent.) 139. Plea denying joint liability. {As in No. 85, ante, to the asterisk, and then proceed :) that they are not nor ever were jointly liable in respect of the several supposed causes of action in the said declaration mentioned, or any or either of them, in man- ner and form as the plaintiff has above in that behalf alleged: And of this tlie defendants put themselves upon the country, etc. {Add affidavit as in No. 137, ante.) In a case under the former law, the court said that where several defendants, sued on an instrument in writing, denied the execution of the instrument, by plea verified by affidavit, such plea also put in issue the joint liability; but that if the writing was not denied, or the action was not on a writing, then the joint liability could only be put in issue by plea '2 Starr & Curtis 1800; Rev. Rosenberg v. Barrett, 2 Bradw. Stat. (1893), 1075; Rev. Stat. (1895), 386; Zuel v. Boicen, 78 111. 234; 1159; Goodenow v. Jones, 75 III. 48; Smith v. Knight, 71 111. 148. 16 242 DEFENSES TO THE ACTION OF ASSUMPSIT. in abatement.' In another case, however, which was an action on a promissory note, where one of the defendants pleaded non assumpsit, verified by affidavit, it was said that this did not put in issue the joint liability, w^hich could only be done by plea in abatement;^ and the same thing was said, as to the necessity of a plea in abatement, in another case (which w^as not, however, an action on a writing), where non assumpsit, verified by affidavit, was pleaded by one of two defendants.* Where several persons are sued as joint makers of a prom- issory note, the production of a note signed at the foot by two of the defendants, the name of the other appearing on the back, \7\\\, prima facie, support the declaration; and in the absence of a sworn plea by the party whose name appears on the back, he can not deny that he was a joint maker of the note." See the observations (especially as to the affidavit), and the cases noted, under the head of " Pleas, etc., denying execu- tion of written instruments," ante, and the additional cases noted below; " also the remarks under the head of pleas in abatement, ante. Plea of iiul tiel corporation. — The plea of nul tiel cor- poration appears to be of modern introduction. It is not to be found in the older books on pleading, though now in common use. Formerly it was held, that where a private corporation sued, either on a contract or to recover real property, it must, at the trial under the general issue, show that it was a cor- poration, or be non-suited; but the rule now prevails that in a suit brought by a corporation, the defendant, by pleading the general issue, admits the capacity of the plaintiff to sue. If he would deny the existence of the corporation, he must put in a plea for that purpose.* It can not be put in issue by the > Warren v. Chambers, 13 111. 134; 43111. 134; Gardner x. N. W. M. Co., Zuel V. Botoen, 78 111. 334. 53 111. 367. ^Shufeldt V. Seymour, 31 111. 534. ^ Mclntire v. Preston, 5 Gilm. 48; 3 McKinney v. Peck, 38 111. 174. Morris v. Tinistees, 15 111. 266; Spang- ^Lincolnv.Hmzey, 51 m. 435. ler v. Ry. Co., 21 lU. 277; Hoereth 6 Petrie v. Neicell, 13 111. 647; Still- v. Mill Co., 30 111. 151; Legnard v. son V. Hill, 18 111. 363; Robinson v. Crane Co., 54 111. App. 149; Bailey Magarity, 38 111. 423; Warren v. v. Bank, 137 111. 333. Ball, 37 111. 76; Governor v. Lagow, DEFENSES TO THE ACTION OF ASSUMPSIT. 2-13 general issue, and notice denying that the plaintiff is a cor- poration.' Where the plaintiff sues as a corporation, no further allega- tion that it is such is necessary." But where a chartered com- pany seeks to enforce rights which do not ordinarily and necessarily belong to such corporations, it must set forth and prove its authority for so doing.* A plea of 7nd tiel corporation is a plea in bar, and may be interposed with other pleas. Where a corporation sues by a wrong name, the defendant can only take advantageof it by a plea in abatement; but where there is no misnomer, he can onl}^ plead nul tiel corporation in bar.* The issue on the plea is for the court and not for a jury.* In an action of replevin, where the defendant justified the taking of the property as collector of taxes for a municipal corporation, and the plaintiff replied that there was no such corporation as that for which the defendant claimed to be col- lector of taxes, the replication Avas held bad, because the ques- tion whether or not such town had ever been incorporated or had forfeited its franchises, could not be tried in such collat- eral proceeding." A plea denying that the plaintiff is a corporation is overcome by proof that the defendant sold land to the plaintiff, and made and delivered to it a deed of convevance, thus recoo-niz- ing the plaintiff as a corporation.^ Where certain persons, composing an association under a name which imports a cor- porate existence, exercise corporate powers by that name, ' Bailey v. Batik, 127 111. 333. « 1 Chit. PI. 557; Brady v. Com- ^Frye v. Bank, 5 Gilm. 332; Har- monw. 1 Bibb. 517; Eppes v. Smith, rut V. Mfg. Co., 4 Blackf. (Ind.) 267; 4 Murf. 4G6; Bourcher v. Wilbour- see Mclntire v. Prestoji, 5 Gilm. 48. son, 1 Dana 227. ^ Fryer. Bank, 5 Gilm. 332. « Coal Co. v. Andreivs, 53 111. 176; *noereth v. Mill Co., 30 111. 151 Mellor V. Spateman, 1 Saund. 340 Society v. Pawlett, 4 Peters, 501 Stoddard v. Church, 12 Barb. 573 see Broivn v. Mortgage Co., 110 111. 235; Osborn v. People, 103 111. 224; Ry. Co. v. Shires, 108 111. 617. ''Wood V. Coal Co., 48 111. 356: see Express Co. v. Haggard, 37 Mix v. Bank, 91 111. 20; Mitchell v. III. 465; Osborn v. People, 103 111. Deeds, 49 111. 416: Lo?n6ard v. Cong. 224; Hudson v. Seminary, 113 111. 64 111. 477. 618. 2-i4: DEFENSES TO THE ACTION OF ASSUMPSIT. they sliould not be heard to deny that there is any such cor- poration.' No. 140. Plea of mil tiel corporation. (.-Is in No. S5 ante, to the asterisk, and thence as foUoics:) that there is not, nor was at the time of the commencement of this suit, any such cor- poration as the company, as by the said declaration is above supposed: And of this the defendant puts himself upon the country, etc. PLEA OF PUIS DARREIN CONTINUANCE. A plea puis darrein continuance must show some matter of defense which has arisen since the last continuance — that is, since the last stage of the suit; and it is said that the day of con- tinuance, and the time and place when and where the matter of defense arose must be set forth. Great certainty is requisite in pleas of this description.' A plea of this kind involves grave legal consequences that do not attach to an ordinary plea. It only questions the plaintiff's right to further maintain the suit. When filed, it, by operation of law, supersedes all other pleas and defenses in the cause, and the parties proceed to settle the pleadings de novo just as though no plea or pleas had theretofore been filed in the cause. By reason of pleas of this kind having a tendency to delay, great strictness is required in framing them." There is a distinction to be observed between a plea setting up matter of defense which has arisen since the commencement of the action, but before plea pleaded, and one alleging matter of defense which has arisen after plea pleaded. The former is not, properly speaking, di plea puis darrein continuance.* It is said that" when matter of defense has arisen after the commence- ment of the suit it can not be pleaded in bar of the action gen- erally, but must, when it has arisen before plea or continuance, ' Express Co. v. Bedbury, 34 111. 3 Gilm. 99; Ryholt v. Milliken, 5 459; Powder Co. v. Hotchkiss, 17 Bradw. 490; Straight v. Hancheft, 111. App. 622; By. Co. v. Ry. Co., 75 23 III. App. 584. 111. 113; Thompson v. Candor, m ^ Mount \. Scholes, \2(il\\.%M. 111. 244; Hudson v, Semi7iary, \IS * Ken yon y. Sutherland, 3 Gilm. 111. 618; Fitzpatrick v. Butter, 58 99; Lincoln v. McLaughlin, 74 111. 111. App. 532. 11: Gibson v. Bourland, 13 111. App. « Boss V. Nesbit, 2 Gilm. 252; 1 352. Chit. PI. 572; Kenyon v. Sutherland, DEFENSES TO THE ACTION OF ASSUMPSIT. 215 be pleaded as to the further maintenance of the suit, and when it has arisen after issue joined, puis darrein coritinuancer ' In an action on the case, however, the defendant is permitted under the general issue to give in evidence a release, a former recovery, a satisfaction or any other matter ^a? post facto w^hich shows that the cause of action has been discharged.^ The issues joined may be either of law or of fact." Matter of defense arising after plea pleaded can only be taken advantage of by plea of the kind last mentioned.* Pleas puis darrein continuance may be either in abatement or bar, according to the subject-matter, and if anything happens pending the suit wdiicli would in effect abate it, this may be pleaded puis darrein continuance though there has been a plea in bar.^ A plea in abatement of this kind begins and con- cludes like a plea in abatement w^hen pleaded in the first in- stance,® If matter in abatement is pleaded ptuis darrein con- tinuance the judgment, if against the defendant, is peremptory, as w^ell on demurrer as on trial.' A plea puis darrein contin- loance is a waiver of any former plea or pleas.' It is said that there can be but one plea of this kind in one and the same cause.* A settlement and release of a cause of action, an accord and satisfaction, or other matter arising after the last pleading which goes simply in discharge of the original cause of action, must generally be availed of by plea puis darrein continuance. 1 1 Chit. PI. 569; Rowell v. Hay- ^ Gould's PI. 247; 1 Chit. PI. 571. den, 40 Me. 582; Yeaton v. Lyman, ^ Gould's PI. 347; see 1 Chit. Pi. 5 Peters 224; Cornell v. Weston, 20 572. Johns. 414; see Kenyan v. Suther- "> 1 Chit. PL 571; Renner v. Mar- land, 3 Gilm. 99; City v. Bahcock, shall, 1 Wheat. 215. 143I11.;358; 3Ioimt v. ScJioles, 120 III M chit. PI. 571; Gould's PI. 347; 394; Straight Y. HancJiett, 23 111. Wallace v. 3IcConnell, IS Peters VSQ; App. 584. Good v. Davis, 1 Hemp. 16; Adlerv. 2 City V. Bahcock, 143 111. 358. Wise, 4 Wis. 159; Mount v. Scholes, 3 Gould's PI. 346; 1 Chit. PI. 569. 120 111. 894; City v. Renshaii\ 153 4 Longworth v. Flagg, 10 Ohio 300; 111. 491; Ryan v, R. R. Co., 60 III. Allen V. Newberry, 8 Clarke (Iowa), App. 612, 65; Jessup v. King, 4 Cal. 331; M Chit. PI. 572, 573: Gould's PL McDougalv. Rutherford, 30 Ala. 253: 347; City v. Renshaw, 153 111. 491. see Stephen's PL 64; Gould's PL 345-348; 1 Chit, PI. 569-573. 24:6 DEFENSES TO THE ACTION OF ASSUMPSIT. But when the parties seek not only to adjust the amount of the claim, but further, to have judgment entered for such amount, the court may, on motion, execute the agreement by giving judgment in pursuance thereof.' Where issue is taken on a plea of payment and satisfaction of this description, evidence of a settlement of accounts, and pay- ment of the amount found due, is admissible; so is an order from the plaintiff, to his attorney of record, to discontinue the suit.' Regularly, if the defendant suffers another continuance to intervene before he pleads the new matter — does not plead it at the first opportunity after the happening of it — he waives it, and can not afterward plead it.' But whether or not a plea of this kind shall be pleaded after a continuance has intervened is in the discretion of the court,' which may give leave to plead it nunc pro tunc; and when the court thus exercises its discre- tion, it may impose the payment of costs.^ It is said that no plea inds darrein continuance can be pleaded after a demurrer determined, or verdict found," though it may after the jury has gone from the bar.' But in a case in Illinois, where the defendant Avas sued in an action of debt on a statute, for the penalty, and after verdict against him, but before judgment, the legislature passed an act releasing all penalties incurred under that statute (including those sued for), it was held that this might be pleaded jpwis darrein contin- tiance; * and in New York an insolvent has been allowed to plead his discharge even after verdict.* Such plea may, in Illinois, be filed at any time before trial.'" Fleas after the last continuance must be verified by affidavit;" but it is held in Illinois that pleas of this kind in har need not be so verified.'^ » Washington v. By. Co. , 13G 111. 49. '' 1 Chit. PI. 572. * Neil V. Hepburn, 6 Ohio 534. ^ Coles v. County, Breese 154. sGould'sPl. 346. ^Bank v. Hazard,^ Johns. 393; *Eoicell V. Hayden, 40 Me. 582; Mount w. Sclioles,\20l\\.ZU. Morganv. Dyer, m Johns. l&U Tufts ^^ City v. Renshaw, 153 111.491; V. Gibbons, 19 Wend. 639; Rangley Robinson v. Burkell, 2 Scam. 378. V. Webster, 11 N. H. 299. " 1 Chit. PI. 660; Mount v. Scholes, n Chit. PI. 571; Stevens v. TJiomp- 120 111. 394. S071, 15 N. H. 510. ''^ Robinson v. Burkell, 2 Scam. 6 Gould's PI. 347; 1 Chit. PI. 473. 278; see Ross v. Nesbitt, 2 Gilm. 252. DEFENSES TO THE ACTION -OF ASSUMPSIT. 247 The following form of a plea of this kind is given in Chitty on Pleading, vol. 3, page 1238. {Title of court, etc.) And now at this day, that is to say, on next after , in this same term, until whicli day the plea aforesaid was last continued, comes the said A, B., by , liis attorney, and the said C. D., by his attorney aforesaid; and the said C. D. saith that the said A. B. ought not further to have or maintain his aforesaid action thereof against him, because he saith, that after the last continuance of this cause, that is to say after next after , in this same term, from wliich day this cause was last continued, and before this day, to wit, on, etc., at, etc., he, the said A. B. (here state the release, * * * or other subject-viatter of the plea;) ami this he, the said C. D., is ready to verify; wherefore he prays judgment if the said A. B. ought further to have or maintain his aforesaid action there- of against him, etc. The following form of a plea, denominated a ^^ jplea to the further maintenanee of the action^ is given in Andrews' Stephen's Pleading, page 156. (TYfZe of court, etc.) The said defendant, by his attorney \or in person], says, that the said plaintiff ought not further to have or maintain his afore- said action against him; because, he says, that after the last pleading in this cause, that is to say, on the day of , in the year of our Lord , the said plaintiff, by his certain deed of release, sealed with his seal, [the release niaj^ be here stated, * * * ]. And this the said defendant is ready to verify. Wherefore he prays judgment if the said plaintiff ought further to have or maintain his aforesaid action against him, etc. It is submitted that the following form is suited to our mode of practice, and is sufficient. No. 141. Plea puis darrein continuance. In the Court. Term, 18—. C. D. ) ats. V Assumpsit. A. B. ) And now on this day of , in this same term, comes the defendant, by Ms attorney aforesaid, and says that the plaintiff ought not further to maintain his aforesaid action against him, the defendant, because he says, that after the last pleading {or, if there tcere any proceedings after the last pleading, say " after the last proceedings " ), in this cause, that is to say, after the day of , in the term last past, {or, " in this same term,") and before this day, to wit, on, etc., {Iiere set forth the sub- ject-matter of the pilca, as a release, or an atcard, or a revocation of letters of administration, etc.) And this the defendant is ready to verify; where- fore he prays judgment if the plaintiff ought further to maintain his afore- said action, etc. CHAPTER YL ACCOUNT. The elementary works which treat of the action of account, and almost every case relating thereto, inform us that it is an action seldom brought. In England it seems to have fallen almost entirely into disuse; and although the action is ex- pressly authorized by the statute, a case is seldom to be met with in the courts of Illinois.^ Frequently, where this remedy applies, the matters of ac- count are of an intricate and complicated character, involving various interests, and the parties choose rather to resort to a court of chancery, where all the interests involved can be more satisfactorily adjusted and settled.^ This action has, however, in Illinois, some advantages over proceedings in chancery, which should not be overlooked. It may, under cer- tain circumstances, be commenced by attachment^ or by capias,* thus affording to the plaintiff the advantage of those writs, which may give him more speedy means of securing his claim than can be given in equity. It will be observed that the third section of the statute provides that if the defendant does not appear at the return of the writ, he shall be attached by his body to appear and render his account. The provisions of the Illinois statute of account, in respect to when this action may be maintained, are given below. Joint tenants, etc., to account. — ^Section 1 provides " that where one or more joint tenants, tenants in common, or copar- ceners in real estate, or any interest therein, shall take and 'Lee V. Abrams, 12 111. 110; see ^Humphreys v. Matthews, 11 111. Bracken v. Kennedy, 3 Scam. 558. 471. 2 See Lee v. Abrams, 12 111. 110; «1 Starr & Curtis 357; Rev, Stat. Bracken v. Kennedy, 3 Scam. 558. (1893), 190; Rev. Stat. (1895), 193. (248) ACCOUNT. 249 use the profits or benefits thereof, in greater proportion than his, her or their interest, such person or persons, his, her or their executors and administrators, shall account therefor to his or their co-tenant, jointly or severally." ' A tenant in com- mon can not sue his co-tenant for his proportion of rents, in assumpsit. His only remedy is by action of account under the statute, or by bill in chancery," By whom brought. — Section 2 provides that the action of account may be sustained — First. By one joint tenant, tenant in common or coparce- ner, his or her executor or administrator, against the other or others, who receive, as bailiffs, more than his or their due pro- portion of the profits or benefits of such estate. Second. By an executor, or an administrator with the will annexed, being residuary legatees against the co-executor, or co-administrator with the will annexed. Third. By a residuary legatee against executors and ad- ministrators. Fourth. By and against executors and administrators, in all cases in which the same might have been maintained by and ao:ainst their testator or intestate. Fifth. ]^Y one or more co-partner or co-partners against the other co-partner or co-partners, to settle, and adjust their co- partnership accounts and dealings, making all said co-partners parties to said action, either as plaintiffs or defendants. Sixth. On book account. Under this section the right of action is enlarged so that it may be maintained on book accounts.^ The action may be maintained by one partner against another partner or partners, to settle and adjust partnership accounts, and may be so main- tained immediately upon the dissolution of the partnership, and without any previous adjustment of the accounts.* Compelling account. — Section 3 provides that when any person is or shall be liable to account as guardian, bailiff or receiver, or otherwise, to another, and will not give an 11 Starr & Curtis 187; Rev. Stat, ^ Garrity v. HamburgJier, 136 111. (1893), 104; Rev. Stat. (1895), 104; see 499. Woolleyv. Schracler, 116 III. 29. ^ Horn v. Ingraham, 125 111.198; " Crow v. Mark, 52 111. 333. Bonney v. Stoughton, 122 111. 536. 250 ACCOUNT. account willingly, the party to whom such an account ought to be made, may bring his or her action of account; and if the person against whom such action may be brought be sum- moned, and does not appear at the return of the writ, and abide the order of the court, then such defendant shall be at- tached by his body to appear and render his account. Process, — Section 4 provides that the original process in actions of account shall be the same as is or may be provided by law for other personal actions, and shall be served and returned in the same manner. Form of declaration. — Section 5 provides that the declara- tion in an action on book account, (except the commencement and conclusion,) may be in the following form, to wit : In a plea that the defendant render to the plaintiff the sum of dollars, which the plaintiff says is justly due from the defendant, to balance book accounts between them, as by the plaintiff's original book, ready to be produced in court, may appear: Now the plaintiff says that the defendant, though often requested, has ever refused, and still does refuse, to settle and adjust the account of the plaintiff, or to pay the balance thereon due. Trial — Judgment.^-Section 6 provides that " If the de- fendant in an action of account shall plead in defense any plea, which being true, he ought not to account, the issue thereon may be tried by a jury, and if a verdict be found ao-ainst him, or if such defendant shall not appear, or appear- ino-, shall confess that he ought to account with the plaintiff, the court shall render judgment that he do account." ^ The only plea in bar to an action of account which may be interposed before the court, is one which shows that the defend- ant is not then liable to account to the plaintiff, and no such plea can be tiled after the entry of the interlocutory judgment to account. In such case no plea to the declaration is needed, and no issue is required to be made up thereon.^ l^o formal pleas are allowed before the auditors.^ The only issue before the court is whether there should be an accounting. Evidence is therefore inadmissible before the ' See Garrity v. Hamburger Co., * Ihid., 136 III. 499; Lockicood v. 136 111. 499. Doane, 107 111. 235; Culver v. Elwdl, 2 Ihid., 136 111. 499. 73 111. 536. ACCOUNT. 251 court as to whether or not profits had accrued, or whether one tenant in common or joint tenant had received more than his share.' The judgment qiLod computet merely determines the defend- ant's liability to account, but determines nothing as to what may be due after account taken. If the liability to account is denied, the issue may be tried by a jury.* Auditors. — Section 7 provides that "Whenever a judg- ment shall be rendered against any defendant that he accounts, the court shall appoint one or more able, disinterested and judicious men as auditors, to hear, examine and adjust the accounts between the parties, who shall, before they enter on their duties, be sworn faithfully and impartially to take and state the account between the parties, and make report to the court." In the absence of any showing otherwise, it will be pre- sumed that the auditors took the requisite oath to faithfully and impartially take and state the account between the par- ties.' The requirement that an auditor, in an action of account, shall be sworn before entering upon his duties is not jurisdictional, but is one that may be waived by the parties; and the appearance of the parties before the auditor, and the examination of witnesses, without objection that he is not sworn, will constitute such waiver, and the fact that one appointed an auditor in an action of account is also a master in chancery of the same court in which the action at law is pend- ing, will not relieve him of the necessity of being sworn, if there be no waiver of the oath before entering upon the dis- charge of his duties." Hearing before auditors —Notice— Default. — Section 8 provides that " Such auditors, or a majority of them, shall have power to appoint the time and place for the hearing, and shall cause reasonable notice thereof to be given to the parties, and if the defendant shall fail or refuse to attend at the time 1 Hawley v. Burde, 6 Bradw, 454. ^ Garrity v. Hamburger, 136 III. « Pardridge v. Ryan, 134 111. 247; 499. Garrity v. Hamburger Co., 136 III. * Pardridge v. Ryan, 134 lU. 247. 499; Lee v. Yanaway, 52 111. App. 23. 252 ACCOUNT. and place appointed, and render his account, or appearing, shall not render an account, the auditors shall proceed to take the account, and shall award to the party appearing such sum as, on his showing, shall appear to be justly due, which show- ing shall be on the oath of the party, or other evidence, as the nature of the case may require or admit." Administering oaths— Witnesses. — Section 9 provides that any auditor, so appointed, may administer all necessary oaths or affirmations, either to parties or witnesses, in the hearing and examination of such accounts, and require, by subpa3nas, the attendance of such witnesses and the production of such books and papers as may be required by either party. Taking account — Testimony— Compelling witnesses.— Section 10 provides that " at the time and place of the hearing, such auditors, or a majority of them, shall proceed to take and state the accounts, and take the testimony of witnesses, and examine either or all of the parties, on oath, respecting any ac- count or item thereof submitted by either party, and compel the attendance of witnesses and production of books and papers. If either party or any witness shall refuse to be sworn or answer proper questions respecting said accounts, or any item thereof, the auditors, or a majority of them, may report the same to the court, and the court shall commit him to jail, there to remain until he consent to be sworn, or answer the interrogatories, or be discharged by the court according to law; or if any party shall refuse to be sworn or to answer directly anv question put by the auditors or under their direction, such refusal, relative to the particular matter to which oath or answer is required, shall be taken against the party so refusing." The statute contemplates that the auditors shall hear the evidence and pass upon questions of fact, and if any question of law arises upon which they deem it advisable to take the opinion of the court, it may be done by having the question certified to the court and there decided.' The admission of incompetent and improper evidence before the auditor will not require the court to set aside the report, when there appears sufficient competent evidence to sustain the auditor's finding.^ 1 Garrity v. Hamburger, 136 111. * Pardridge v. Ryan, 134 111. 247. 499. ACCOUNT. 253 Adjusting accounts — Report — Judgment — Costs. — Section 11 provides that tlie '"auditors, or a majority of them, shall liquidate and adjust the accounts and state the balance, and to whom due, and make report to the court, and if no just cause be shown to the contrary, after the same shall be approved by the court, judgment shall be rendered on such report for such sum as shall be found in arrear from either party, with costs; and the party in favor of whom the report is made shall pay the auditors their fees, to be fixed by the court, which shall be taxed as costs." Where the liability to account is conceded, the judgment quod comjnitet is the only one that can be entered prior to the coming in of the auditor's report,' and the final judgment then entered is based upon the auditor's report, and only indirectly upon the declaration.^ Producing books. — Section 12 provides "that the court be- fore which the action shall be pending, and also the auditors so appointed, or a majority of them, may call upon either party to produce, at any time pending the suit, either his ledger or orig- inal book of entries, or both, as they may think proper, and no disputed account shall be allowed upon the oath of the party, when it shall appear that he has an original book of entries, unless such book shall be produced upon reasonable request." Consolidation of accounts. — Section 13 provides that " the auditors appointed in any action of account, in hearing, examining and adjusting the accounts of the parties, shall hear, examine and adjust all the accounts existing between them of a similar nature, and in the same right, to the time of such hearing, including all questions of interest thereon^" Notice of hearing. — Section 14 provides that " the audi- tors may notify the parties of the time and place of hearing by causing them, or either of their attorneys of record, to be personally notified, or by citation, left at such parties' usual abode, at least ten days previous to the time of such hearing; and if the party have no domicile in this state, and have no attorney of record, by leaving such citation in the oflice of the ' Garrity v. Hamburger, 136 111. ^ Qarrity v. Hamburger, 136 111. 499; Pardridge v. Ryan, 134 111. 247 . 499. 254 ACCOUNT. clerk of the court in which such action shall be pending, at least thirty days before the time of hearing, which shall be deemed sufficient notice." Continuances. — Section 15 provides that "the auditors may continue the hearing of r.ny account from time to time, in their discretion." Pleadings. — Section 16 provides that " no formal pleading shall be allowed to be filed before the auditors who may be appointed to take and state an account between the parties in any action of account." ' Accounting before justices. — Section 17 provides that " jus- tices of the peace shall have jurisdiction in all actions on book account where the amount of the balance owing to the plaintiff shall not exceed $200; and in such actions brought before a jus- tice of the peace, on book account, or when any book account shall be pleaded in offset before a justice of the peace, such justice shall have the same power to examine parties under oath that is given to auditors under this act." Jurisdiction. — Section 18 provides that " in all cases com- menced under the first, fourth and fifth enumerations in section 2 of this act, the several courts of record in this state having chancery jurisdiction are empowered to hear, try and determine the same, to appoint auditors or commissioners in their discre- tion, to take testimony or to find the state of facts, or to take, adjust and state accounts between said co-tenants, co-parceners or co-partners; and said courts are also empowered to make all such orders and decrees, either interlocutory or final, as may enable such courts to do complete justice to all parties, and such as such courts sitting in chancery could lawfully make in order to the adjustment and final settlement of all co-partner- ship accounts, matters and dealings whatever; and such courts shall render final judgment or judgments in any such action in favor of or against such co-tenants, co-parceners or co-partners respectively, as shall be just and equitable, and such as said courts, sitting in chancery, might render, and may enforce such 'See Oarrity v. Hamburger, 136 111. 499; Lockwood v. Doane, 107 111. 235; Culver V. Elwell, 73 111. 536. .ACCOUNT. 255 judgment or judgments by execution, or in any other way in which such courts sitting in chancery could enforce the same." Powers of auditors. — Section 19 provides that " auditors and commissioners, appointed agreeably to the provisions of tho last preceding section, shall have the same power to admin- ister oaths to parties and witnesses, and to compel the attend- ance of witnesses and the production of books and papers, and the parties shall have the same right and be under the same obligation to testify, as is provided in actions of account gen- erally." Action on book account. — Section 20 provides that " When- ever, on the trial of any action on book account, it shall appear to the court that any item or items of account, or deal be- tween the same parties, more properly belong to some other action of account under this act, the same may be tried and adjusted in said action on book account." If it shall appear to the court upon the trial of an action of assumpsit, or other action, that the trial more properly belongs to an action of account, it will be competent for the court not only to try and adjust the account between the parties in such pending action the same as though brought as an action of account, but where no objection is interposed, to adjudge that the form of action be changed to an action of account. In such case the court may allow a count in the action of assumpsit to be filed, which will be taken as a substitute for the original count in assumpsit.* Appeal — Error. — Section 21 provides that "either party may appeal or prosecute a writ of error from the final judg- ment rendered under and by virtue of this act, in the same manner and upon the same conditions as provided by law in other cases." An order to account is an interlocutory order from which an appeal will not lie.* Chancery jurisdiction preserved. — Section 22 provides that " nothing in this act contained shall be so construed as to de- ' Garrity v. Hamburger, 136 111. 23; Anderson v. Lundburg, 41 111. 499; Pardridge v. Ryan, 134 111. 247. App. 248; Motor Co. v. Lewis, 47 111. ^ Lee V. Yanaway, 52 111. App. App. 576. 256 ACCOUNT. prive courts of chancery of their jurisdiction in matters of account," Suits between executors, etc. — Section 119 of the act on administration provides that " where there are two or more ex- ecutors or administrators of an estate, .and anyone of them takes all or a greater part of such estate and refuses to pay the debts of the decedent, or refuses to account with the other executor or administrator, in such case the executor or admin- istrator so aggrieved may have his action of account or suit in equity against such delinquent executor or administrator, and recover such proportionate share of said estate as shall belong to him; and every executor, being a residuary legatee, may have an action of account or suit in equity aga'nst his co-ex- ecutor or co-executors, and recover his part of the estate in his or their hands. Any other legatee may have the like remedy against the executors ; provided, that before any action shall be commenced for legacies as aforesaid, the court shall order them to be paid." ' Limitations.— The action of account is barred unless com- menced within five years next after the cause of action shall have accrued,''' and it has been held that the right of action by a partner did not accrue until the partnership had ceased to exist.^ Demand. — A demand to account, or something which amounts to such demand, is in general necessary to perfect the cause of action.* But the plaintiff is not put upon proof of the demand, except by plea denying it; and the plea of " never bailiff " does not have that effect.* Time for which account is to be taken. — The weight of authority seems to sustain the rule, that even if the period to ■which the account is to extend is specified, yet the account ' Rev. Stat. (1891) 129; Rev. Stat. * Chadwick v. Dival, 12 Verm. 501; (1895)129; 1 Starr «& Curtis, 245. but see Sturges v. Bush, 5 Day ^Quayle v. Guild, 91 III. 378! (Conn.) 452. Richardson v. Grejory, 126 111. 168; ' Chadwick v. Dival, 12 Verin. Bonney v. Stoughton, 122 111. 536; 501; see Stedman v, Gassett, 18 Homey. Ingraha7n, 125 m. 198. Verm. 347; Aiken v. Smith, 21 ^Askeiv v. Spi'inger, 111 III 662; Verm. 173. Blake v. Sweeting, 121 111. 70 ACCOUNT. 257 shall be brought down to the time of the award of the auditors, without regard to the time laid in the declaration.' No. 140. Against a bailiff, to account for goods. In the Court. Term, 18—. State of Illinois, ) County of . \ set. A. B., plaintiff, by E. F., his attorney, complains of C. D., defendant, of a plea that he render to the plaintiff a reasonable account for the time he, the defendant, was (*) bailiff to the plaintiff, in the county aforesaid: For that whereas the defendant, on the day of , in the year 18 — , and from thence until the day of , in the year 18 — , was there bailiff to the plaintiff, and during that time there had the care and administration of divers goods of the plaintiff, to wit, sixty barrels of sugar, twenty sacks of coffee and fifty sacks of salt, of the value of dollars, to merchandise and make profit thereof for the plaintiff, and thereof to render him a reasonable account, when he, the defendant, should be thereto requested: Yet the defendant, though he was afterwards, to wit, on, etc., there requested by the plaintiff thereunto, has not rendered to him a reasonable account of the said goods, but refuses so to do; to the damage of the plaintiff of dollars, and therefore he brings his suit, etc. A person is chargeable as bailiff where he has the administra- tion or charge of lands, goods or chattels (or even moneys), to make the best benefit thereof for the owner.'* Against such bailiff an action of account lies for the profits which he has raised or made, or might, by his industry and care, have rea- sonably raised or made, his reasonable charges and expenses being deducted.* Where the defendant is charged as bailiff, the declaration should specify the particular goods of which he had the care and management.* No. IJ).!. Against a receiver. {As in last precedent, to the asterisk:) receiver of the moneys of the plaintiff, in the county aforesaid: For that whereas the defendant was there receiver of the moneys of the plaintiff, from the day of, etc., un- til, etc., during which time the defendant there received, of the moneys of * 1 Freem. Pr. 246. * McMurray v. Rawson, 3 Hill (N. 2 1 Humph. Pr. 184; Co. Litt. 271. Y.) 59. ^Sargent v. Parsons, 13 Mass. 149. 17 258 ACCOUNT. the plaintiff, dollars by the hands of one J. K., dollars, by the hands of one L. M., and dollars by the hands of one N. O., amounting in the whole to dollars, to render a reasonable account thereof to the plaintiff, wlien he, the defendant, should be thereto requested: 'Yet the de- fendant, though he was afterwards, to wit, on, etc., there requested by the plaintiff so to do has not rendered to him a reasonable account of the said moneys, but so to do has refused, and still refuses; to the damage of the plaintiff of dollars, and therefore he brings his suit, etc. A person is chargeable as receiver where he receives money for the owner; ' but not Avhere he receives property to sell for the owner, and retains the money arising from the sales; there he is chargeable as bailiflf. He is also chargeable as receiver of goods, when such receiving is not coupled with an authoritj^ to sell." A receiver is answerable only for the precise sum of money, or goods, received; " and he can only claim such charges and expenses as are agreed upon.* It seems a defendant may be charged both as bailiff and receiver, in the same count.* In declaring against one as receiver, it is necessary to set forth by whose hands he received; but where he is charged as bailiff it is not necessary,' nor, it is said, when the action is between merchants.' Particularity with regard to the exact amount of the money, or the precise time of receiving it, is not re- quired.* No. IJfZ. By one tenant in common against his co-tenant. {Title of c'onrt, etc.) A. B. plaintiff, by E. F., his attorney, complains of C. D., defendant, of a plea of account render: For that whereas on the day of, etc., and from thence until the day of, etc., {or " until and at the time of the commencement of this suit,'") the plaintiff was seized in his demesne, as of fee, of the one undivided half part of certain parcels of land, situate, etc. ; and the defendant, and divers other persons whose names are to the plaintiff unknown, during all that time held the said parcels of land together with the plaintiff, as tenants in common; and the defendant there had also, during all that time, the care and management >Co. Litt. 173. 186; Jordan v. Wilkins, 2 Wash. (C. 2 1 Humph. Prac. 184. C. R.) 482. 3 01. Free. 96. "> 3Ioore v. Wilson, 2 Chipm. 91; 4 Co. Litt. 172. see Bishop v. Eagle, 11 Mod. 186. 5 1 Humph. Free. 184, 186. « Burdet v. Thnile, 2 Lev. (K. B.) «Co. Litt. 172a; Jaggard v. Trip, 126. 3 Keb. 425; Bishop v. Eagle, 11 Mod. ACCOUNT. 259 of the whole of the said parcels of land, to receive and take the profits and benefits thereof, and as bailiff of the plaintiff of what he, the defendant, received more than his due proportion of the same, to render a reasonable account thereof to the plaintiff, and his share thereof, when he, the defend- ant, should be thereto requested, according to the form of the statute, etc. : And although the defendant, during the time aforesaid, there received more than his due proportion of the profits and benefits of the said parcels of land, and the plaintiff's share thereof, that is to say, the whole of the said profits and benefits, yet the defendant, though he was afterwards, to wit, on, etc., there requested by the plaintiff so to do, has not rendered to him a reasonable account of the said profits and benefits so received as aforesaid, or any part thereof, or of the said share of the plaintiff, or any part thereof, but refuses so to do, contrary to the form of the statute, etc. ; to the damage of the plaintiff of dollars, and therefore he brings his suit, etc. A second count may be added, omitting any allegation that the defendant was bailiff, and following the language of the first section of the statute — charging that the defendant took and used the profits and benefits in greater proportion than his interest. A third count may also be added, charging the defendant as bailiff of a moiety of the land, without disclos- ing that he was tenant in common. Ko. 143. Partner against partner, as receiver. (Commence as in last precedent.) For that whereas on, etc., and from thence until, etc., in the county aforesaid, the plaintiff and the defendant were partners in trade, equal in interest, under tlie name and firm of, etc. ; and during that time the defendant was there receiver of the moneys of the plaintiff and the defendant, belonging to them as partners as aforesaid, and received of such moneys, by the hands of divers persons, divers sums, amounting to dollars, for tlie common benefit of the plaintiff and the defendant, and to render to the plaintiff a reasonable account respecting the same, when he, the defendant, should be thereto requested: Yet the defendant, though he was afterwards, to wit, on, etc., there requested by the plaintiff so to do. has not rendered to him a reasonable account in that behalf, but so to do has refused, and still refuses; to the damage of the plaintiff of dollars, and therefore he brings his suit, etc' In another count the defendant may be charged, in like man- ner, with receiving divers goods, etc., describing them gener- ally; and other counts may charge him as bailiff of money and 1 See May v. Williams, 3 Vt. 243; v. Wilkins, 2 Wash. (C. C. E.) 482; James -v. Broicn, 1 Dall. 389; Irvine 01. Prec. 103. V. Hanlon, 10 S. & R. 219; Jordan 260 ACCOUNT. goods, to merchandise, etc., for the common benefit of the partners; and others as receiver, and as bailiff, of the plaint- iff's share of the money and goods; and still others as tenant in common of the goods, with the plaintiff. The general rule is, that where the plaintiff declares against one as receiver, the declaration must specify the amounts re- ceived, and by whose hands; but it is said that " where the ground of liability is a privity or connection as a partner, or as principal and agent, or bailor and bailee, the nature of which leads to an habitual receiving, and disposing of property, the allegation of that privity, and of the receiving of divers sums, etc., in consequence of it, is sufficient, without stating the sums or the persons from whom received.'- ' From the lan- guage of the decisions and precedents, however, it would seem better to allege the sums and persons where it can be done. Upon proof of a receipt by the hands of any one of the per- sons mentioned in the declaration, the plaintiff is entitled to a general verdict under an issue upon the plea of ne unques receiver* It has been said that in account between mercantile part- ners, the defendant should be charged as receiver." But this would appear to depend on the circumstances, since in the pre- cedents partners are sometimes charged as bailiffs, and some- times as receivers; and in some cases they are charged as receivers in one count and as bailiffs in another count of the same declaration.* No. m. Partner against partners, as hailiffs of lands and goods. {Commence as in No. 14^, ante.) For that whereas on, etc., and fi-om thence, until, etc. , in the county aforesaid, the defendants were bailiffs to the plaintiff of certain parcels of land of the plaintiff and the defendants, situate, etc., with the appurtenances; and for all that time the defendants there had the care and management of the said parcels of land, with the ap- purtenances, and received the issues and profits thereof, for the common benefit and profit of the plaintiff and the defendants, and to render to the plaintiff a reasonable account of the same, when they, the defendants, '1 Freem. Pr. 244; May v. Will- ^McMurray\. Rawson, 3 Hill (N. iams, 3 Vt. 243; see Moore v. Wil- Y.) 59. son, 2 Chip. 91; Bishop v. Eagle, 11 * Whelen v. Watmough, 15 S. & Mod. 186; 01. Prec. 104. R 153; 01. Prec. 97-104; Humph. Urvine v. Hanlin, 10 S. & R. 219. Prec. 189, ACCOUNT. 261 should be thereto requested : And also, during all that time, the defendants were there bailiffs to the plaintiff, and had the care and management of great quantities of hay, etc., etc., of the plaintiff, and the defendants, for the common benefit and profit of the plaintiff and the defendants, and to render to the plaintiff a reasonable account thereof, when the}^ the defend- ants, should be thereto requested. Yet the defendants, though they were afterwards, to wit, on, etc., there requested by the plaintiff so to do, have not rendered to him a reasonable account of the premises, or any part thereof, but so to do have refused, and still refuse; to the damage, etc.^ When the action is against two or more partners, a joint lia- bility to account must be shown.'' It has been held that the action would not lie where there were more than two partners; * but this is denied,* and precedents of declarations by one part- ner against several are found in the reports and the books of forms." No. 145. Plea — never bailiff . In the Court. Term, 18— CD.) ats. > Account. A. B. ) And the defendant, by G. 11., his attorney, comes and defends the wrong and injury, when, etc., and says that the plaintiff ought not to haA'e his aforesaid action against him, the defendant, because he says, (*) that he never was bailiff to the plaintiff, or had the care and administration of the goods in the said declaration mentioned, to merchandise and make profit thereof for the plaintiff, or thereof to render to the plaintiff a reasonable account, when he, the defendant, should be thereto requested, in manner and form as the plaintiff has in the said declaration above alleged: And of this the defendant puts himself upon the country, etc. No. 146, Plea — never receiver. (As in the last precedent, to the asterisk :) that he never was receiver to the plaintiff, of the moneys in the said declaration mentioned, or any jjart thereof, by the hands of the said J. K., L. M. and N. O., or any or either of them, to render to the plaintiff a reasonable account tliereof, when he, the defendant, should be thereto requested, in manner and form as the plaintiff » 01. Prec. 100, Murray v. Rawson, 3 Hill (N. Y.) 59; ^ Whelen v. Watmough, 15 S. & Co. Lit. 172a. p. 153. ■* Whelen v. Watmough, 15 S. &, 3 Beach v, Hotchkiss, 2 Conn. 429; R. 153; see 1 Freem. Pr, 239-243. Appleby v. Brown, 24 N. Y. 143; see * WheL'u v. Watmough, 15 S. & Woodv. Merrow, 25 Vt. 340; Mc- R. 153; 01. Prec. 97-104; PI. Assist. 35; 1 Freem. Pr. 239. 2G2 ACCOUNT. has above in the said declaration alleged: And of this the defendant puts himself upon the country, etc. No. 147. Plea, to declaration by tenant in common, that defendant did not have the care, etc., to render account as bailiff, etc. {As in No. 14s, ante, to the asterisk :) that he never had the care and man- agement of the parcels of land in the said declaration mentioned, or any part thereof, to receive and take the profits and benefits thereof, or, as bailiff of the plaintiff of what he, the defendant, received more than his due proportion of the same, to render a reasonable account thereof, to the plaintiff, and his share thereof, when he, the defendant, should be thereto requested, in manner and form as the plaintiff has above in the said decla- ration alleged: And of this the defendant puts himself upon the country, etc. No. 14s. Plea, to declaration by tenant in common, that defendant has fully accounted. And for a further plea in this behalf, the defendant says, etc., etc., be- cause he saj's, that after the time during which he is in the said declaration alleged to have had the care and management of the said parcels of land in the said declaration mentioned, to receive and take the profits and benefits thereof, and, as bailiff of the plaintiff, to render such account as therein mentioned, to wit, on, etc., he, the defendant, there fully accounted with the plaintiff concerning the said time and the said profits and benefits in the said declaration mentioned, and his said share thereof: And this the defendant is ready to verify; wherefore he prays judgment, etc. If pleaded to a declaration containing several counts, the foregoing pleas are of course to be limited to the particular count or counts which they are intended to answer. See page 57, ante. In the action of account, there is no general issue. The defendant may plead infancy; and when sued as bailiff or receiver in fact, he may plead that he was not bailiff or receiver; but when sued as tenant in common, under the statute, if the declaration is properly framed, a plea (in the ordinary form) that he was not bailiff or receiver would be insufficient. In such case the defendant may deny the tenancy in common. The defendant may also plead that he has accounted, or a re- lease, arbitrament, bond given in satisfaction, and the statute of limitations,' and various other matters. A plea is sometimes interposed, denying that there was any request to account;' and 1 1 Chit. PI. 429; Bac. Abr. Acct. E. Aiken v. Smith, 21 Vt. 172; see Chad- ■^Stedman v. Gassett, 18 Vt. 346; tcickv. Divol, 12 Vt. 501. ACCOUNT. 263 there is a precedent of a plea that the goods bailed were de- stroyed by fire.* In Illinois, the rule laid down is " to require the defendant to file before the court, in the first instance, every defense which shows that he is not then liable to account to the plaintiff, whether it be that he never was so liable, or that some act has been done which has discharged him from that liability, ad- mitting that it once existed;" * and, by statute, no formal pleadings are now allowed before the auditors/ The relation of guardian, executor, administrator, tenant in common, etc., may be denied in like manner as that of bailiff or receiver. The pleader is referred to chapter 3, ante^ Defenses to an Action^ for replications, pleas in abatement, de- murrers, etc. For an able and elaborate discussion and defense of the action of account, see Freeman's Illinois Forms, Pleading and Practice, sections 456 to 643. >1 Wentw. PI. 88. 8Rev. Stat. (1893), 106; Rev. Stat. s£ee V. Abrams, 12 111. 110. (1895), 106; 1 Starr & Curtis 190. CHAPTER VII. COVENANT. The action of covenant lies for the recovery of damages for the breach of a covenant or contract under seal; ' and can not be maintained except against a person who, by himself, or some other person acting on his behalf, has executed a deed under seal, or who, under some very peculiar circumstances, has agreed by deed to do a certain thing.^ The action may be maintained on the covenant under seal, whether the covenant is express, or implied hy laio from the terms of the deed; * and implied covenants may be set forth in the declaration in the same manner as if they were expressed in the instrument.* It lies upon an indenture of apprenticeship against the mas- ter, for not instructing his apprentice, or against the party who covenants for the due service of such apprentice, but it will not lie against an infant apprentice." It lies on articles of agreement under seal; or deeds for separate maintenance; and on covenants in deeds of conveyance, etc., for good title, etc.; on charter-parties of affreightment; on policies of insur- ance, under seal, against fire, etc.; and on annuity and mort- gage deeds.* It will not lie against the grantee in a deed, for a failure by * Gale V. Nixon, 6 Cowen, 445 Ludlum V. Wood, 2 N. J. L. 55 Trible v. Oldham, 5 J. J. Marsh. 137 188; Kent v. Welch, 7 Johns. 258; Dorsey v. Jackman, 1 Serg. & Rawle 43. Vicary v. 3Ioore, 3 Watts 451; Davis * Grannis v. Clark, 8 Cowen 36; V. Jwdd, 6 Wis. 85; McVoyv. Wheeler, Tompkins v. Elliott, 5 Wend. 502. 6 Port. (Ala.) 201; 1 Chit. PL 105. *1 Chit. PI. 105; Commonifealth ^ Somerville Y.Stephenson, 3 Stew- x.Wiltbaiik, 10 Serg. & Rawle 416. art 271; Reesv. Overbaugh, 6 Cowen * 1 Chit. PI. 106; Nichols v. Carr, 746; Poioers v. Ware, 2 Pick. 451; 1 35 Penn. 381; Herron v. Ins. Co., 28 Chit. PI. 115. 111. 235. "Frost V. Raymond, Cai. (N. Y.) (2G4) COVENANT. . 265 the grantee, after the accepting of the deed and taking posses- sion under it, to perform the conditions upon which the deed, as therein expressed, was executed.' It is the peculiar rem- edy upon contracts under seal, where the damages are unliqui- dated and depend in amount on the opinion of the jury, in which case neither debt nor assumpsit can be supported.^ Covenant, not debt, lies on a writing obligatory for the pay- ment of a certain sum in land office money ,^ or in United States bank notes,^ or in " banking money," ^ or in " lumber," ' So covenant, not debt, lies for installments of a sealed note, due and sued for before the coming due of the last installment.' Covenant will not lie on the condition in a title bond to con- vey land.* It will not lie on a contract under seal, which has been materially varied by a subsequent parol agreement. The remedy is on the subsequent agreement.* Covenant will lie upon a lire insurance policy which has been renewed, and which provided that the same might be con- tinued in force, the premium being paid, and a renewal receipt given." The remedy by covenant for a breach of contract for the sale of lands, is bungling and inadequate; the equity remedy is better and ought to be encouraged." A plaintiff may sustain covenant on a sealed instrument, although it may be so defectively executed on his part that only assumpsit can be maintained against him.'^ Where a grantee of land who holds under a deed containing covenants of seizin, warranty, etc., is obliged to yield up the premises in favor of a prior mortgagee, he can not resort to a court of chancery for relief against his grantor, because he has ' R. R. Co. V. Beckmeir, 72 111. 267; ' Stevens v. Chamherlin, 1 Vt. 25; Burnett v. Lynch, 5 Barn. & Cress. North v. Eslava, 12 Ala. 24. 589. li Huddle v. Worthington, 1 Ohio, 2 1 Chit. PI. 108; Hedges v. Gray, 423; Abrams v. Kounta, 4 Ohio 214. 1 Blackf. 216; Wilson v. Hickson, 1 » McVoy v. Wheeler, 6 Port. (Ala.) Blackf. 231, 201; Raymond v. Fisher, 6 Mo. 29; 3 Hedges v. Gray, 1 Blackf. 216. Foundry v. Hovey, 21 Pick. 417. " Osborn v. Fulton, 1 Blackf. 233; i" Herron v. Ins Co., 28 111. 235. Wilson V. Hickson, 1 Blackf. 230. " 1 Grant (Penn.) 83. * Harper v. Levy, 1 Blackf. 294. "^ Directors v. McFadden, 1 Grant ^ Cassady x, Laughliii, 3 Blackf. (Penn.) 230. 134. 266 COVENANT. acom])lete remedy at law, by action of covenant.* The action will lie for the breach of a covenant by defendant that he will abstain from the exercise of his calling for a limited time in a particular place.^ Covenants in deeds relating to lands — What will consti- tute a breach, etc. — To constitute a breach of covenants for quiet enjoyment, there must be a union of acts of disturbance and lawful title." At least, the covenantee must affirmatively prove that his adversary has a paramount title against which it would be unavailing to struggle." A covenant of warranty is prospective and runs with the land into the hands of all those to whom it may come by pur- chase or descent; * and the grantees in a deed of conveyance can not claim the benefits of any covenants in the deeds to those from whom he takes, except those for quiet enjovment and warranty.* The covenant of warranty is broken only by an eviction or something equivalent thereto;' and on an action for the breach thereof, the plaintiff must show an eviction or ouster by some title paramount to the grantors.* In a case where the grantor had covenanted that the grantee should peaceably and quietly hold the premises without any let, suit, etc., of the grantor, or any person lawfully claiming under him, and that they were free from all former incum- brances, of what nature or kind soever, made by the grantor, it was held that a judgment against the grantor, outstanding at the time of executing the deed, was a breach of the cove- nant.^ A covenant of seizin is broken, if at all, the moment it is > Ohliy^g v. Luitjens, 32 111. 23. Williams, 66 111. 395; Fitch v. John- "^ Boyer v. Watson, 52 111. App. so?i, 104 111. 111. 361. ^Barry v. Guild, 126 111. 439. ^Beehe v. Su-eet, 3 Giim. 162; '' Brady v. Sjmrh, 21 111. 418; Ou^n Barry v. Guild, 126 111. 439. v. Thomas, 33 111. 320; Jones v. War- *Furnessv. Williams, 11 111. 229. ner, 81 111. 343; Scott \. Kirkendall, s Brown v. Metz, 33 111. 339; Clay- 88 111. 465. combv. 3Iimger, 51 111. 373; Wead » Owen v. Thomas, 33 111. 820; V. Larkins, 54 111. 489; Dorsey v. R. Jones v. Warner, 81 111. 343. B. Co., 58 111. 65; Sterling Co. v. ^ Hall v. Dean, 13 Johns. 105; Watson V. Gardner, 119 111. 312. COVENANT. 267 made;' and when a grantee in a deed containing a covenant of general warranty has taken possession, he can not maintain an action for a breach of such covenant until evicted by legal proceedings, or until he yields to a paramount title.^ The entry of a mortgagee, for foreclosure, in pursuance of Eev. Stat., C. 107, of Mass., is held to be such an eviction; ^ so if the grantee yields without suit, to one having a paramount title, demanding possession,* or if he buys in such paramount title in order to avoid eviction; * but the burden of tlie proof is on to him, to show that the title to which he yields is good.® The existence of an inchoate right of dower has been held to constitute a breach of the covenant against incumbrances.'' A right of way over land is an incumbrance.^ And where a devisee, holding an inalienable life estate in land, executed a conveyance of the premises, in fee, covenanting against all in- cumbrances, it was held that the existence of this life estate, inalienable in its character, in the grantor, was a subsisting in- cumbrance, and constituted a breach of the covenant against incumbrances immediately upon the execution of the deed.^ Where there is an outstanding incumbrance on the land, the purchaser need not wait until he is evicted, but may satisfy the incumbrance, and then resort to his action on the covenant against incumbrances.'" And if the covenantee dies before the limitation of the ejectment suit, and in reviving the same against his heirs, one is omitted, and the suit progresses to a ' Wadhams v. Sivan, 109 111. 46; ^ Chapel v. Bull, 17 Mass. 213. Holbrook v. Debo, 99 111. 372; Brady ^Hamilton v. Cutis, 4 Mass. 349. V. Spurk, 27 111. 478; King v. Gib- "< Shearer \. Ranger, '22 Pick. 447; son, 32 111. 348; Baker v. Hunt, 40 but see Ayres v. McConnell, 15 111. 111. 264. 230; Biglow v. Hubbard, 97 Mass. ^Ou-env. Thomas, SSm. 320; Bost- 195; McAlpinv. Woodruff, 11 Ohio wick V. Williams, 36 111. 65; Jones St. 120. V. Warner, 81 111. 343; Scott v. ^ Harlow y. Thomas, 15 Pick. 56; Kirkendall, 88 111. 465; Bugger v. Beach v. Miller, 51 111. 206. Oglesby, 99 111. 405. 9 Christy v. Ogle, 33 111. 295. 3 miitev. Whitney, 3 Mete. (Mass.) " Willetts v. Burgess, 34 111. 494 81; Estabrook v. Smith, G Gray 512. Claycomb v. Hunger, 51 111. 373 * Hamilton -v. Cutis, 4 Mass. 349; Harding v. Larkin, 41 111. 413 Owen V. Thomas, 33 111. 320. McConnell v. Downs, 48 111. 271. 263 COVENANT. recovery against all the heirs but one, it would still be an eviction/ AVhere an agreement under seal contains several covenants, to be performed by one party, and in consideration of such cov- enants the other party agrees to perform an act, the first are precedent covenants, and a performance thereof must be averred and proved, to warrant a recovery on the latter and dependent covenant.* A covenant of seizin only extends to a title existing in a third person, which ma}'" defeat the estate granted by cov- enantors. It does not embrace a title that may be already in the grantee.' The making of a deed with a covenant of gen- eral warranty is a performance of a covenant to make a suf- ficient conveyance of land.* Where the title fails to a part of the land, sold for a gross sum, the measure of damages for a breach of the covenant of warranty is a sum in such proportion to the whole con- sideration paid, as the value of that part of the land to which the title has failed bears to the value of the whole land, and interest on such sum.' A covenant to make a general warranty deed is performed by making a deed containing the words, " will warrant and forever defend the title," etc.; and such a covenant is, in effect, a covenant for quiet enjoyment." The covenants created by the use of the words " grant, bar- gain and sell," under the 11th section of chapter 24 of the Revised Statutes of Illinois, are not operative Avhen the grantor has inserted other covenants in the deed. This enactment is in derogation of the common law, and should be construed strictly,' ,A party who contracts to give a deed, with a covenant against incumbrances, does not meet his obligation by offer- ing such a deed, if the property is actually incumbered.* • Harding v. Larkin, 41 111, 414. « Athens v. Nale, 25 111. 195. '^Hoy V. Hoy, 44 111. 469. ' Finley v. Steele, 23 111.56; Wuma ^Furness v. Williams, 11 111. 229. v. McGaughan,! S. M. 427. * Clark V. Lyons, 25 111. 105. ^ Comcay v. Case, 22 111. 127; Sil- ^ Major w. Dunnavant, 25 III. 262; vermanv. Loomis, 104111. 137; Pat- see Willetts V. Burgess, 34 111. 494; terson v. Sweet, 3 Bradw. 550. Wadhams v. Swan, 109 111. 48. COVENANT. 269 "Where a covenant is to be implied from statutory words, the very words of the statute must be used.' By statute in Illinois, the words " grant, bargain and sell," in a deed, amount to an express covenant that the grantor was seized of an indefeasible estate, in fee simple, free from incum- brances, done or suffered from the grantor, as also for quiet enjoyment against the grantor, etc." A. conveyed land to B,, his unmarried daughter, and to the heirs of her body forever. Before issue born of her body, B. made a deed purporting to reconvey the land to A.; after- wards A. conveyed the land to C, with covenants that he was seized of a good, sure, perfect, absolute and indefeasible estate of inheritance in the law in fee simple. Held, that the cove- nants were broken as soon as it was made, and that C. could sue and recover for the breach, notwithstanding he was put into possession.' In order to maintain an action upon a covenant of warranty, the party suing, if he has neglected to give notice to the war- rantor of the pendency of the action of ejectment, b}'- which he has been evicted, must come prepared to prove that the eviction was by force of an adverse or superior title; in other words, he must show that if the warrantor had appeared, and de- fended the action of ejectment, he could not have prevented a recovery.' When a contract under seal has afterwards been varied in its terms by a subsequent parol contract made on a new consideration, such substituted agreement must be the subject of an action of assumpsit and not of covenant.^ ' Vipond V. HurTburt, 22 111. 226. Huestis, 68 111. 594; Blair v. Va7i- 2 Rev. Stat. (1893), 353; Rev. Stat. blarcum, 71 111. 290. (1895), 3T4; 1 Starr &Ciirtis 572; see * Sisk v. Woodruff, 15 111. 15; Hatok V. McCullough, 21 111. 220; Harding v. Larkin, 41 111. 413; Mc- Finley v. Steele, 23 111. 56. Connelly. Doicns, 48 111. 271; Claj- ^Frazer v. Supervisors, 74 III. 282; comb v. Munger, 51 111. 373. Voris V. Sloan, 68 111. 588; Butler v. ^ Weinman v. Hughson,^l\l. App. 22. 270 COVENANT. DECLARATIONS IN COVENANT. No. 149. Grantee against grantor, on covenants in a deed of conveyance of land. In the Court. Term, 18—. State of Illinois, ) Count}^ of . ) set. A. B., plaintiff, by E. F., his attorney, complains of C. D., defendant, of a plea of breach of covenant : For that whereas the defendant, on the day of , in the year 18 — , in the county afore- said, by his deed bearing date of that day, and now to the court here shown, for the consideration therein mentioned did convey and warrant to the plaintiff, his heirs or assigns, in fee simple, certain real estate in the county aforesaid, to wit {here describe the property): And the defendant did by the said deed, for himself and his heirs and personal representatives, covenant with the plaintiff, his heirs and assigns, amongst other things, that at the time of the making and delivery of the said deed he. the defendant, was lawfully seized of an indefeasible estate, in fee simple, in and to the said real property, and then had good right and full power to convey the same; and that he warranted to the plaintiff, his heii's and assigns, the quiet and peaceable possession of the said real estate, and would defend the title thereto against all persons who might lawfully claim the same. Nevertheless, the plaintiff avers, the defendant was not, at the time of the making and delivery of the said deed, lawfully seized of an indefeasible estate, in fee simple, in and to the said real property, nor had he then good right and full power to convey the sam?. And the plaintiff f urtheravers, that he could not, by force of tli« said deed, quietly and peaceably possess the said real estate, nor did nor would the defendant, though often requested, defend the title thereto against all persons who might lawfully claim the same; but on the contrary thereof, one G. H., who had at the time of the making and delivery of the said deed, and still has, lawful right and title to the said real estate, afterwards, to wit, on, etc., evicted the plaintiff from the said real estate, by due process of law, and entered into the same, and kept, and still keeps, the plamtiff out of the possession thereof. {Any special damages may here be alleged, in this m.anner: " by reason of which premises the plaintiff has not only been de- prived of the said real estate, and lost a large amount of money, to wit, dollars, by him expended in repairing and improving the same, but has also been compelled to pay, and has paid, the costs sustained by the said G. H. in prosecuting a certain action of ejectment for the recovery of the said real estate, and has also been compelled to pay, and has paid, a large amount, to wit, dollars, in endeavoring to defend the said action of eject- ment.") And so the plaintiff says, that the defendant has not kept his covenants aforesaid, but has broken the same; to the damage of the plaintiff of dollars, and therefore he brings his suit, etc. (This form is framed upon the statutory warranty deed in Illinois.) If the breach of the covenants in the deed consists in the fact that the defendant was not seized, and had no right COVENANT. 271 to convey, it is sufficient to simph^ negative the covenants.' But with regard to the covenants for quiet enjoyment, and against incumbrances, and to warrant and defend, it is neces- sary to assign the breach, by showing the interruption or in- cumbrance complained of, or by showing an ouster by an elder title.^ It is said that the costs and counsel fees in the action of ejectment are covered by the general claim of damages, and that it is not necessary to set them out.' Where, in describing an instrument, the words of art are used, such as indenture, deed, or writing obligatory, wdiich of themselves import that the instrument w^as sealed by the party, the declaration will be good without averment of sealing.* No. 150. Grantee against grantor — On the covenant against incumbrances in a deed of conveyance. {Commence as in the last precedent.) For that whereas the defendant, on, etc., in, etc., by his deed bearing date of that day, and now to the court here shown, for the consideration therein mentioned did grant, bargain and sell to the plaintiff, his heirs and assigns, a certain parcel of land in the said deed particularly described, situate, etc. , to have and to hold the same to the plaintiff, his heirs and assigns, forever; and the defendant did by the said deed covenant with the plaintiff, his heirs and assigns, amongst otlier things, that at the time of the ensealing and delivery of the said deed the said parcel of land was free and clear from all former or other grants, bar- gains, sales, liens, taxes, assessments and incumbrances of what kind or nature soever. Yet, the plaintiff avers, the said parcel of land was not, at the time of the ensealing and delivery of the said deed, free and clear from all former or other grants, bargains, sales, liens, taxes, assessments and in- cumbrances of what kind or nature soever; but on the contrary thereof, the defendant before that time, to wit, on, etc., by his deed of that date had mortgaged the said parcel of land to one G. H., to secure the payment of dollars, with interest thereon, etc., to the said G. H., by the day of, etc.; (*) which said sum of money, with interest as aforesaid, is still unpaid, and the said parcel of land is still chargeable with tlie payment thereof. And so the plaintiff says, that the defendant has not kept his cov- enant aforesaid, but has broken the same, to the damage of the j)lauitiff of dollars, and therefore he brings his suit, etc. If the plaintiff has paid off the mortgage debt, then, in lieu » 2 Chit. PI. 546. * Weinman v. Hugh son, 44 111. •■'2Chit. Pi. 546. App. 22; Cabell \. Vaughau, I Saund. ^Bickert v. Snyder, 9 Wend. 416. 291, note. 272 COVENANT. of the averment following the asterisk in the above form, say: "Wliich said sum of money, with such interest thereon, being still unpaid, and the said deed of mortgage being still an incumbrance on the said pai'cel of land, the plaintiff, on, etc., to relieve the said parcel of land from the said incumbrance, there paid to the said G. H. the said sum of money, with interest thereon as aforesaid, whereof the defendant then and there had notice; and, though requested, the defendant has not paid to the plaintiff the said sum of money and interest, or any part of the same." It is sufficient, in the declaration, to say "certain land in the said deed particularly described," as in the above form without any more precise description.' No. 151. Second or remote grantee against grantor, on covenant of war- ranty in a deed of conveyance. {Commence as in No. 1^9.) For that whereas the defendant, on, etc. , in, etc. , by his deed bearing date of that day, and now to the court here shown, for the consideration therein mentioned did grant, bargain, sell and convey to one G. H., his heirs and assigns, a certain parcel of land, with the appurte- nances, situate, etc., to wit, (here describe the property;) to have and to hold the same to the said G. H., his heirs and assigns, forever: And the defendant did by the said deed covenant with the said G. H. , his heirs and assigns, amongst other things, that he, the defendant, would warrant and forever defend the said premises to the said G. H., his heirs and assigns, against all lawful claims whatsoever. And the plaintiff avers, that after- wards, to wit, on, etc. , the said G. H. , by his deed bearing date of that day, and now to the court here shown, for the consideration therein mentioned did grant, bargain, sell and convey the premises aforesaid to the plaintiff, to have and to hold the same to him, his heirs and assigns, forever. Yet, the plaintiff avers, the defendant did not nor would (though often requested) warrant and defend the said premises to the plaintiff, so being such assign of the said G. H. as aforesaid, against all lawful claims whatsoever; but on the contrary thereof, at and after the time of the ensealing and delivery of the defendant's said deed, one J. K. had lawful claim and paramount title to the said premises, and by virtue of his said lawful claim and paramount title the plaintiff afterwards, to wit, on, etc., was evicted from the said premises, by due process of law, and is still kept out of the possession of the same. And so the plaintiff says, that the defendant has not kept his covenant aforesaid, but has broken the same; to the damage of the plaintiff of dollars, and therefore he brings his suit, etc. {See No. I49, ante, for averment of special damage.) • 2 Chit. PI. 550, e. COVENANT. 273 The covenant of warranty is prospective, and runs with the land to all those to whom it may come bv purchase or descent. But the covenants of seizin and power to sell are in ijrcE- senti, and if the grantor has no title at the time of making them, they are broken as soon as made; and they then become a mere chose in action, not assignable so as to enable the as- signee to sue thereon at law, in his own name.' No. 152. On a covenant, in a lease, to pay rent. {Commence as in No. 14-9, ante.) For that whereas on, etc., in, etc., by a certain indenture then and there made between the plaintiff, of the one part, and the defendant, of the other part, and bearing date of that day, {tlie counterpart of which said indenture tlie plaintiff now brings here into court,) the plaintiff did demise and to farm let unto the defendant, his ex- ecutors, administrators and assigns, a certain parcel of land in the county aforesaid, to wit, {here describe tJie property;) to have and to hold tlie same to the defendant, his executors, administrators and assigns, from, etc., to, etc. ; yielding and paying therefor yearly and every year, to the plamttff, his heirs or assigns, the clear yearly rent or sum of dollars, payable quarterly, to wit, on, etc., in each and every year: And the defendant did thereby, for himself, his executors, administrators and assigns, covenant with the plaintiff, his heirs and assigns, amongst other things, that he, the defendant, would well and truly pay, or cause to be paid, to the plaintiff, his heirs or assigns, the said yearly rent or sum of dollars, at the sev- eral days and times aforesaid. Yet, the plaintiff avers, after the making of the said indenture, and during the said term thereby granted, to wit, on, etc., a large sum of money, to wit, dollars, of the rent aforesaid, for years and a half of the said term, became and was, and still is, in arrear and unpaid to the plaintiff, contrary to the tenor and effect of the said indenture, etc. And so the plaintiff says, that the defendant has not kept his covenant aforesaid, but has broken the same; to the damage of the plaintiff of dollars, and therefore he brings his suit, etc. If both parts of the deed are originals, that is, signed by all the contracting parties, instead of " counterpart," in the pro- fert, say '''' one part of which said indenture," etc. In Illinois, by statute, prqfert is unnecessar}'-." In an action upon the covenants in a lease, the covenantees are the proper plaintiffs, and the covenantors the proper 1 Brady v. Spurck, 27 111. 478; see 104 111. Ill; Webster v. Nichols, 104 Broicn v. Metz, 33 111. 339; Clay- 111. 160. comb V. Munger, 51 111. 373; Wead ' Rev. Stat. (1893), 1073; Rev. Stat. V. Larkin, 54 111. 489; Leopold v. (1895), 1157; 2 Starr & Curtis 1786. Salkey, 89 111.412; Fitch v. Johnson, 18 274: COVENANT. defendants, and in case of the death of some of the parties thereto, the actions must be brought and judgment recovered by or against the survivors.' The words " demise " and " demised " in a lease, import a cov- enant on the part of the lessor of good right and title to make the lease, and also imply a covenant for quiet enjoyment. A covenant can not be sued upon by the person for whose bene- fit it is made, if he is not a party to the deed, but the suit must be brought in the name of the party with whom the covenant is made. And this rule is not abrogated by section 19 of the Practice Act relating to " sealed instruments." ^ No. 153. Apprentice against master, for breach of covenants in indenture. {Commence as in No. 149, ante.) For that whereas on, etc., in. etc., by a certain indentm-e then and there made between the plaintiff, (by and with the consent of G. H., his father,) of the one part, and the defendant, of the otlier part, and bearing date of that day, (one part of which said indenture, sealed with the seals of the plaintiff, the said G. H., and the defendant, is now to the court here shown, the plaintiff did place and bind himself ap- prentice to the defendant, to learn his art and calling of a blacksmith with him, and to remain with and serve him fi-om the said day of the date of the said indenture until the defendant should attain the age of twenty -one years, to wit, until the day of, etc. : And the defendant, for the consideration therein mentioned, thereby covenanted with the plaintiff to instruct him, or cause him to be instructed, in the art and calling of a blacksmith, which the defendant then used, and to find and allow to the plaintiff good and sufficient meat, drink, lodging, washing and apparel, both linen and woolen, and all other necessaries, both in sickness and in health, during the said term of apprenticeship; and to cause the plaintiff, within the said term, to be taught to read and write, and the ground rules of ai'ith- metic; and at the expiration of the said term to give to the plaintiff a new bible, and two new suits of clothes suitable to his condition in life: As by the said indenture, reference being thereto had, will more fully appear: In pursuance of which said indenture, the plaintiff, on the day first afore- said, there entered into the service of the defendant, as such apprentice as aforesaid, and remained in such service, under the said indenture, for a long space of time, to wit, from that day until the day of, etc.; and the plaintiff did always, during that space of time, well and truly keep and perform all things in the said indenture contained, on his part to be kept and performed. And although the plaintiff was always there ready and willing, from the day last aforesaid until the expiration of the said term, to con- tinue well and faithfully to serve the defendant, and keep and perform all things in the said indenture contained, on the part of the plaintiff to J Walker v. Doane, 131 111. 27. " Harms v. McCormack, 132111. 104. COVENANT. 275 be kept and performed, whereof the defendant always there had notice; yet the defendant did not nor would, during the residue of the said term, instruct the plaintiff, or cause him to be instructed, in the said art and calling of a blacksmith; nor did nor would the defendant, during the said residue of the said term, find and allow to the plaintiff good and sufficient meat, drink, lodging, washing and apparel, both linen and woolen, and all other necessaries both in sickness and in health; nor did nor would the defendant, during that time, cause the plaintiff to be taught to read and write, and the ground rules of arithmetic; nor did nor would the defend- ant give to him, the plaintiff, a new bible, and two new suits of clothes suitable to his condition in life, although the plaintiff did on, etc., attain the age of twenty-one years. And so the plaintiff says, that the defendant (though often requested so to do) has not kept his covenants aforesaid, but has broken the same; to the damage of the plaintiff of dollars, and therefore he brings his suit, etc. In an action of covenant by a master against an apprentice, in Illinois, it would seem that the declaration should sufficiently show an indenture in conformity with the statute (which see), as all indentures, etc., for the taking of any apprentice, etc., not in conformity with the statute, are utterl}'^ void, as against such apprentice, etc' No. 154' On afire insurance policy. {See Nos.76 and 77 ante.) Title of court, etc.) A. B., the plaintiff, by E. F.,his attorney, complains of the insurance company, defendant, of a plea of breach of covenant; For that whereas on, etc., in etc., by a certain deed or policy of insurance, sealed with the seal of the defendant, and bearing date of that day, (which said deed or pohcy the plaintiff now brings here into court,) the defendant, for the consideration therein mentioned, did covenant with the plaintiff in the terms of the said deed or policy, which here follows in these words and figures, to wit: {Here insert the policy, verbatim. If there are conditions, or proposals, not in the body of the deed, but referred to therein, say : " And the plaintiff avers that the conditions in the said deed or policy mentioned are as follows that is to say; " and then insert the conditions, or projjosals, verbatim, or snch parts thereof as constitute a condition precedent.) And the T^ilSimiSS. further a\evs, {proceeding as in No. 76, ante, from the one aster- isk to the other:) And the plaintiff further avers, that although he has kept and performed all things in the said deed or policy contained on his part to be kept and performed, yet the defendant, though often thereto re- quested, has not paid to the plaintiff the amount of the said loss and dam- age so by him sustained as aforesaid, or any part thereof, but refuses so to do. And so the plaintiff says, that the defendant has not kept its covenant 1 Eev. Stat. (1893). 162; Rev. Stat. (1895), 164; 1 Starr & Curtis 297; see Ford V. McVay, 55 111. 119. 276 COVENANT. aforesaid, but has broken the same, to the damage of the plaintiff of dollars, and therefore he brings liis suit, etc. See the forms of declarations on policies of insurance, in as- sumpsit, ante, pages 137-140 and the observations there made, and authorities cited. Covenant will lie upon a fire insurance policy which has been renewed, and which provided that the same might be continued in force— the premium being paid, and a renewal receipt given.' The original application for insurance need not be set out in a declaration on the policy. The insured is not bound to set out and prove the truth of his representations. It need not be averred in pleading that the notary, whose cer- tificate formed a part of the preliminary proof of loss, was the nearest notary to the place of the fire, if the certificate is re- ceived without objection; if there is such a formal defect in the proof of loss, exception should be taken in time for the assured to correct it.^ Under an averment of a total loss, a party may recover for a partial loss, in an action of debt on an insurance policy.' In- surance companies have a right to limit by their policies the time within which an action shall be brought upon them." In an action on an insurance policy which contains a condi- tion that, in the event of a loss, the company may, at its option, restore the building, it is unnecessary to negative the perform- ance of this condition in the declaration. It is a condition subsequent, and if performed, the company should allege it in defense of the action.* Where one of three partners, who have effected an insurance, afterward, and before a loss, assigns his interest to the other two, without any notice to or consent by the insurers, the two can not recover on the policy, especially where they so declare in their declaration, and the policy forbids such an assignment. An action on a contract must be in the name of the party in whom the legal interest is vested.® 1 Uerron v. Ins. Co., 28 111. 235. ^ j^s. Co. v. WliiteMll, 25 111. 466; 2 Herrcm v. Ins. Co., 28 111. 235; Case v. Ins. Co., 13 111. 676. Ins. Co. V. Whitehill, 25 111. 466; * Ins. Co. v. WhitehiU, 25 111. 466. Ins. Co. V. Staaden, 26 111. 360; Ins. Uns. Co. v. Phelps, 27 111. 71. Co. V. Lewis, 18 III. 553. * Dix v. 7ns. Co., 22 111, 272; 7ns. Co. V. Wetmore, 32 lU. 221. COVENANT. 2 ( 7 In an action on a policy of insurance against fire, the plaintiff must prove that he had an insurable interest in the premises, before he can recover.' The plaintiff's interest should be al- leged.' A general averment of interest is sufficient." The in- sured must generally have an interest in the property at the time of the loss, to entitle him to recover; but this is not true in every case, for the insured may have assigned his interest with the consent of the insurers, and in that event, the suit should be brought in the name of the insured, for the benefit of his assignee.* No act of the party insured, after the assignment of the policy with the assent of. the insurers, can inipair the rights of the assignee.* Policies of insurance are within the purview of the 33d section of the Practice Act, and may be read in evi- dence without proof of their execution, unless denied by plea, properly verified by affidavit.* Where, by the charter of an insurance company, the charter itself is made a part of the contract of insurance, and the in- sured is made a member of the company, he can not plead ignorance of the provisions of the charter.^ It is impossible to give a precedent that will be applicable in every case, as the provisions of insurance policies are varied. Although the policy is often copied into the declaration, it is sufficient to set forth the substance of the instrument, according to the legal effect of the material parts of it on Avhich the plaintiff intends to rely.* Stipulations and conditions indorsed upon the policy are parts of it, and must be set forth so far as they are materiaL^ ^ Ins. Co. V. Marseilles, 1 Gilm. ^ las. Co. v. Wetmore, 32 111. 221; 236; Dixv. Ins. Co. , 22 111. 272; 3Iann 3Ioore v. Lis. Co. , 29 Me. 97. Y. Ins. Co., 4 Hill 187; Carpenter y. ^ Ins. Co. v. Marseilles, 1 Gilm. Ins. Co., 16 Pet. 495; Birdsey v. Ins. 236. Co., 26 Conn. 165; see G. 31. Co. v. ■> Jns. Co. v. Marseilles, 1 Gilm. Ass. Co., 118 111. 398. 236. 2 3 Taunt. 513. « Miles v . Sh eu-a rd, 8 East 7 ; Clarke 3 Granger v. 7ns. Co. , 5 Wend. 200; v. Graij, 6 East 564. De Forest V. Jjis. Co., 1 Hall 84. ^Strong v. Ride, 3 Bing. 315; *Ins. Co. V. Wetmore, 32 111. 2^; Strong v. Harvey, 3 Bing. 304. Ins. Co. V. McGowan, 16 Md. 47; see Stephens v. Ins. Co., 43 111. 327. 278 COVENANT. If the policy has been altered, by consent, after execution, the alteration must be set forth.' If the declaration consists of several counts, the policy is not repeated, but reference is made to the first count in the subsequent ones." DEFENSES TO THE ACTION OF COVENANT. Pleas in abatement. — For pleas in abatement, and observa- tions thereon, see Defenses to an Action, ante, chapter III. Pleas in bar. — For g-eneral observations upon pleas in bar, see Defenses to an Action, ante, chapter III. Term, 18 — . No. 155. Plea of non est factum. In the Court. C. D. ) ats. V Covenant. A. B. ) And the defendant, by G. H., his attorney, comes and defends, the wrong and injury, when, etc., and says, that the said supposed inden- ture {or " deed," or " the said writing") in the said declaration mentioned is not his deed; and of this he puts himself upon the country, etc. There is, strictly speaking, no general issue in covenant, for the plea of non est factum only puts the deed in issue,' and ad- mits all the other material averments of the declaration.* The defendant must therefore plead specially every matter which it would be necessary to plead in debt on a bond or other specialty. Under the plea of non est factum, however, the de- fendant may on the trial avail himself of a variance in the statement of the deed, either in respect of a misstatement or of the omission of a covenant qualifying the contract; and this although the defendant has agreed to admit on the trial the due execution of the deed; and if the plaintiff omits to state a condition precedent, the defendant may crave oyer, and set out the deed, and demur." And the plea of non est factum is » 3 Chit. PI. 188. Cooper v. Watson, 10 Wend. 303; ''Stiles V. Nokes, 7 East 505. Kam v. Sanger, 14 Johns. 89; Lara- 3 Chit. PI. 438; Longley v. Norvall, way v. Perkins, 10 N. Y. (6 Selden) 1 Scam. 389; Norman v. Wells, 17 871; Reynolds v. Rogers, 5 Ohio Wend. 136; Hebbard v. Deplain, 3 169. Hill 187; Dale v. Roosevelt, 9 Cow. n Chit. PI. 438; Howell v. Rich- 307; Granger v. Granger, 6 Ohio 35. ards, 11 East 639. *McNeish v. Stewart, 7 Cow. 474; COVENANT. 279 such a general issue that notice of set-off, or other matter in bar, may be given with it.' In Illinois, this plea does not put the plaintiff upon proof of the execution of the deed, unless verified by affidavit. See the form of the affidavit, ante^ Ko. 137. Where several defend- ants unite in a plea of non est factum^ if the instrument appears to be the deed of any one of those so uniting in the plea, the issue must be found for the plaintiff.^ See the observations under the plea of non est factum, in Debt, j96>5^, chap. XIII. A plea of non in f regit conventionem is bad on demurrer, though it would be aided after verdict; ' at least it is not a good plea where the breach is in the negative,* if it is ever good. But where issue is joined on such a plea, the effect of it is to deny every matter which goes to constitute a breach.^ It is not a general issue.' No. 156. Plea of payment— To action on covenant for payment of money. {If pleaded as a first plea, commence as indicated in the observation under this form; if as a second or subsequent plea, commence as folloivs:) And for a further plea in his behalf, the defendant says that the plaintiff ought not to have his aforesaid action against him, the defendant, because he says, (*) that on the said day of, etc., in the county aforesaid, he did pay to the plaintiff the said sum of dollars, in the said indenture mentioned : And of this the defendant puts himself upon the country, etc. The commencement of 2b first plea (except non est factum) is, after the title of the court, etc., in this manner: "And the de- fendant by G. H., his attorney, comes and defends the wrong and injury, when, etc., and says that the plaintiff ought not to have his aforesaid action," etc. Pleas as to a part, etc. — If there are several breaches of covenant assigned, or if there are several counts, and the plea is not an answer to all of them, it is to be limited accordingly ^ Cotircier V. Gra/iam, 1 Ohio 330; "* Bac. Abr. Cov. L. ; Phelps v. Granger v. Granger, Q Ohio 3^y, see Saicyer, 1 Aik. 150; Bender v. Lonqley v. Norvall, 1 Scam. 389. Fromberger, 4 Dall. (U. S.) 436; » CJ. S. V. L«m, 1 How. (U. S.) 104. Roosevelt v. Fulton, 7 Cow. 71; 8 1 Chit. PI. 438; Hodgson v. Fast Story's PI, 213; 2 Swan's Pr. 750, India Co., 8 T. R. 278; Com. Dig. ^ Roosevelt v. Fulton,'! Cow. 71. Pleader, 3 V. 5; Roosevelt v. Fulton, « 1 Aik. (Vt.) 170. 7 Cow. 71. 280 COVENANT. in the commencement, thus : " And for a further plea in this behalf, as to the supposed breach of covenant first above assigned, the defendant says," etc.; or, " as to so much of the supposed breach of covenant secondly above assigned as relates to," etc.; or, " as to the tJiird count of the said declaration;" and so on, restricting the plea to the breach or count, or part thereof, which it is designed to answer. (See page 57.) A plea of tender as to a part begins, "And the defendant, by, etc., comes, etc., and as to the supposed breach of covenant first above assigned, so far as the same relates to dollars, par- cel of the said sum of dollars in the said declaration men- tioned says that the plaintiff ought not to have his aforesaid action against him, the defendant, to recover any greater dam- ages than the said sum of, etc., {the sum tendered,) on occasion of the said supposed breach of covenant in this behalf, because he says," etc. ; and concludes by praying " judgment if the plaintiff ought to have his aforesaid action to recover any greater damages than the said sum of, etc., on occasion of the said supposed breach of covenantors^ above assigned," etc. And in any plea concluding with a verification, if the conclu- sion is Avritten out in full, the prayer of judgment ought to cor- respond with, and be founded upon, the premises in the plea. In a plea of set-off to any one of several breaches, the de- fendant alleges that the sum due to him " exceeds the damages sustained by the plaintiff on occasion of the said supposed breach of covenant first above assigned," and offers to set off to the plaintiff " so much as will be sufficient to satisfy the damages by him sustained on occasion," etc. Plea to several counts on the same instrument. — Where there are several counts on the same instrument, and the plea is intended to apply to all such counts, it may allege, in the proper case, " that the supposed indenture in the said first count of the said declaration mentioned, and the supposed in- denture in the said second count of the said declaration men- tioned, were and are one and the same indenture^ and not other or different." A^o. 157. Plea of performance, {As in the last precedent, to the asterisk, and then proceed:) that he, the defendant, did (here state the performance in the words of the covenant if COVENANT. 281 in the affirmative and conclude as folloivs:) according to the form and effect of the said indenture, and of the said covenant by the defendant in that behalf made as aforesaid: And of this the defendant puts himself upon the country, etc. The plea of covenant performed, where it is not sustained, admits nothing more than the plaintiff's right to recover nominal damages.* No. 158. Plea, to declaration by apprentice on indenture, that plaintiff deserted defendant's service. (First plea, non est factum; second plea as in No. 156, ante, to the aster- isle, and then proceed:) that after the making of the said indenture, and before the expiration of the said term of apprenticeship therein mentioned, to wit, on, etc., the plaintiff wrongfully, and without the license or consent of the defendant, there deserted and left the service of the defendant, and did not at any time afterwards return thereto : And the defendant further says, that he did continually, from the making of the said indenture until the plaintiff so deserted and left the service of the defendant as afoi'esaid, well and truly keep and perform all things in the said indenture contained, and on his part to be kept and performed within that time; and that dur- ing the residue of the said term he was ready and willing to well and truly keep and perform, and would have well and truly kept and performed, all things in the said indenture contained, on his part to be kept and performed during the said residue of the said term, if the plaintiff had not so deserted and left, or had returned to, the service of the defendant. And this he, the defendant, is ready to verify; wherefore he pr^ys judgment if the plaintiff ought to have his aforesaid action, etc. For other pleas in covenant, see the special pleas in assump- sit and debt, which may readily be adapted to this form of ac- tion. The plaintiff may, as we have seen, plead no7i est factum^ and give notice therewith of any special matter of defense. Pleas in covenant so much depend on the particular facts of each case, that it would not be practicable, in a concise work like this, to give more than a few general forms. For repli- cations, demurrers, etc., see the same subjects in Defenses to an Action, ante, chapter III. ^Reed v. Hobhs, 2 Scam. 297. CHAPTER VIII. TROVER. Trover is a common law action, in common use in England and in many of the states of the Union, to recover the value of personal propertv wrongfully converted by another to his own use. The plaintiff declares in substance, that on a certain day he was lawfully possessed of a certain chattel, and casually lost the same; that it came into the possession of the defendant by finding; and that the defendant has refused to deliver it to the plaintiff and has converted it to his own use. This action is one form of trespass on the case. In the distant age when it was first used, the declaration may have narrated accurately the facts of the case; but for a long time the losing and finding have been regarded as mere legal fictions, which the defendant is not at liberty to deny. Where the action lies. — Trover lies for any species of goods and chattels — as for a horse, a ship, or anything that can be identified; for a chose of action — as a promissory note, bank bill, bond, deed, mortgage; for coins, medals, plants in boxes; for animals valuable as merchandise, whether reclaimed or not; for a dog; ' for animal fercB naturce, if reclaimed, but other- wise not; and for wild animals which have strayed away with- out gaining their natural liberty.^ It will lie for the wrongful conversion of valuable papers, or evidences of title to real or personal property, for checks, bills of exchange, drafts, certificates of stock in incorporated com- panies, securities of any kind, books of record and account, vouchers, etc., and insurance policies.* ^ Gumming s v. Perham, 1 Mete. ^ Hays v. Life Ins. Co., 125 111. Q2Q; (Mass.) 555. Bank v. Meadowcroft, 95 111. 124; ■Amory v. Flyn, 10 Johns. 103^ Garvin v. Wiswell, 8S I\\. 215; Can- Leonard V. Belknap, 47 Vt, 693. field v. Monger, 12 Johns. 347; Svdr (282) TKOVER. 2S3 Trover will lie for manure lying upon the ground and not incorporated with the soil.' It may be maintained for a prom- issory note which has been paid and by mistake left with the holder.^ It lies for a building removed from the freehold, if it had been erected under an agreement that it should be treated as personal property; ^ but it will not lie for a fixture.* A trustee with the mere naked title to personal property, may maintain trover for it.'' And a finder of goods has a suf- ficient title for this purpose.® Trover lies by an administrator for a conversion in the lifetime of his intestate; ' and against executors for a conversion in the lifetime of their testator.* A mortgagor may maintain the action.* Trover can not be maintained for an article sold under con- tract of pledge.'" If one employed to sell goods on commission pawns them the owner may have trover after demand and re- fusal." It lies against a carrier who, by mistake, delivers goods to a wrong person.''' It lies against difi'erent individuals for bury V. Steaims, 21 Pick, 148; Loiore- more v. Berry, 19 Ala. 130; Alex- anders. Bundle, 75 III. 85, JarvisY. Rogers, 15 Mass. 389; Stone v. Clough, 41 N. H. 290; Nettleton v. Biggs, 1 Root (Conn.) 125; Gristvold V. Judd, 1 Eoot (Conn.) 221; Allison V. King, 25 Iowa 56; Keeler v. Fas- sett, 21 Vt. 539; Olds v. Board of Trade, 33 lU. App. 445. ^ Pinkham v. Gear, 3 N. H. 484; Stone V. Proctor, 2 Chip. 116; Strong V. Doyle, 110 Mass. 92. ^Pierce v. Gilson, 9 Vt. 216; Graves v. Dudley, 20 N. Y. (6 Smith) 76. ^ Davis V. Taylor, 41 111. 405; Smith V. Benson, 1 Hill 176; Dame v. Dame, 88 N. H. 429; Parker v. Goddard, 39 Me. 144; Pullen v. Bell, 40 Me. 314. *LemanY. Best, 30 111. App. 323 Prescott V. Wells, 3 Nevada 82 Guthrie v. Jones, 108 Mass. 191 Darrah v. Baird, 101 Pa. St. 265. ^Thompson v. Ford, 8 Ired. 418; Coleson v. Blanton, 3 Hayw. 152; see Hutton v. Arnett, 51 111. 198. ^ Clark V. Malloney, 3 Harring. 68; Cook V. Patterson, 35 Ala. 102; Mc- Avoy V. Medina, 11 Allen (Mass.) 548. ''Parrottv. Dubignon, Charlt. 261; Towle V. Lovett, 6 Mass. 394; Weiser V. Zeisinger, 2 Yeates 537; Pressey V. Powers, 82 111. 125; Bressler v. Baum, 42 III. App. 190. 8 Decroio v. Mone, 1 Hayw. 21 ; Clark V. Kenan, IHayw. 308; Avery V. Moore, 1 Hayw. 362; ^Badger v. Mfg. Co., 70 111. 302; Parkhurst v. Jacobs, 17 Mich. 302; Forth V. Pursley, 82 111. 152. 10 Harris v. Thomas, 37 111. App. 517; Cole v. Dalziel, 13 111. App. 23; " Hydev. Noble, 13 N. H. 494; Car- penter V. Hale, 8 Gray (.Mass.) 157. " I. C. R. B. V. Parks. 54 111. 294; R. R. Co. V. Herndon, 81 111. 143. 2S4 TKOVER. successive conversions of the same property, but the plaintiff can receive but one satisfaction.' AVhere a party has been induced to sell goods upon a credit, by false and fraudulent representations, he may disaffirm the sale and bring his action of trover or replevin for the recovery of the property obtained by the fraud, or damages for its con- Aversion/ Where crops are raised upon land without license or authority trover may be maintained by the owner of the land for the recovery of the value of such crops.^ A general owner may maintain the action against any person taking the goods out of the possession of his agent.* Trover will lie for stolen property against a purchaser thereof, without a prosecution or conviction of the thief. Markets overt^ as known to the common law, are unknown in Illinois.^ A person who aids a mortgagor of personal j^roperty in carrying it away and concealing it will be liable therefor to the mortgagee in an action of trover, even though he was ignorant of the existence of the mortgage.' In trover for the unlawful seizure of goods, the fact that the plaintiff may have reclaimed them, or that they may have been returned, does not go in bar of the action, but merely in mitigation of damages.' "Where the cattle of one person break into the enclosure of another and eat and destroy the growing crop of the latter, his remedy is not trover but tres- pass." Driving a horse a greater distance than is agreed, or in a different direction, will be conversion.' ^ Matthews Y. Menedger, 2 M.cLeKn. Parks, AS 1\\. 511; Rogers \. Huie, 145; see Bailey v, Godfrey, 54 111. 1 Cal. 429; Cassidy v. Cattle Co., 58 507. 111. App. 39. 2 Gray v. St. John. 35 111. 222; see ^Flanders v. Colby, 8 Foster (N. Gibbs V. Jones, 46 111. 319; Faru^ell H.), 34; Hoivie v. Briggs, 98 Mass. V. Hanchett, 120 111. 573. 510; Spraights v. Hawley, 39 N. Y. ^ Sinipkins v. Rogers, 15 111. 397. 441. * Cooper V. Cooper, 132 111. 80. ''Smith v. Douming, 6 Ind. 374; Lantz V. Drum, 44 111. App. 607; Sjmrks v. Purdy, 11 Mo. 219; Gfreen- Gauchev. 3Iayer, 27 III. ISA; Cannon field v. Leavitt, 17 Pick. 1; Gibbs v. V. Kinney, 3 Scam. 9. Chase, 10 Mass. 125; Wheelock v. ^ Newkirk Y. Dalton, 17 111. 413; Wheelu-right, 5 Mass. lOi; Barrelett Hoffman v. Caroiv, 22 Wend. 285; v. Bellgard, 71 111. 280. Curtisv. Cane, 32 Vt. 232; Haddexx. « Smith v. Archer, 53 111. 241. Einstman, 14 Bradw. 443; Sharp v. ^ Wheelock v. Wheelright, 5 Mass. TKOVEE. 285 If a bailee for a special purpose used the property for an- other purpose, without leave of the owner, he is liable as for a conversion ; yet this should be understood only of such an use as occasions an injury or damage; and the damage or injury, and not the value of the property, would be the measure of the damages to be recovered, if the propert}^ is returned. Where no injury is sustained only nominal damages can be recovered. Such an use of property by bailee as is without detriment to the bailor, does not amount to a conversion.' Where the defendant received oxen Irom the plaintiff, to be kept until a particular time, and before the expiration of the time sold a portion of them, it was held that the plaintiff Avas entitled to recover the value of the oxen at the time of their conversion by the defendant.^ Trover will lie in case of irreo-- ularities in disposing of property contrary to the statute by the landlord after distress. ' By statute in Illinois, trover may be maintained for money or other valuable thing lost at gaming.* Where trespass de bonis asportatis will lie, trover may be sustained.^ One tres- passer or wrongdoer can not maintain trover against the other.® Trover will lie against one partner who converts to his own use property which has been entrusted to his firm for manu- facture.' A wife is jointly liable with her husband for a tort; and trover lies against both for a joint conversion.* The possession honafide of goods gives a sufficient right to enable the possessor 104; Homer v. Thwing, 3 Pick. 392 Campbell v. Stakes, 2 Wend. 137 Lucas V. Trumbull, 15 Gray 306 <1 Starr & Curtis 792; Rev. Stat. (1893), 492; Rev. Stat. (1895), 535; Richardson v. Kelly, 85 111. 491; Perhamv. Coney, 117 Mass. 102; Fciil Winchester v. Rounds, 55 111. 451 V. McArthur, 31 Ala. 26. ^Haines v. Briggs, 9 Ark. 46 1 Johnson v. Weedman, 4 Scam. Pierce v. Benjamin, 14 Pick. 356 495; Campbell v. Stakes, 2 Wend. Drew v. Spaulding, 45 N. H. 472 137; Crocker v. Gullifer, 44 Me. 491; 31eade v. Smith, 16 Conn. r45. Pillsbury v. Webb, 33 Barb. 213; « Turley v. Tucker, 6 Mo. 583; R. Hart V. Skinner, 16 Vt 138; Green R. Co. v. Ellsey, 85 Pa. St. 283. v. Sperry, 16 Vt. 390. ''Stevens v. Faiccett, 24 111. 483. Wtter v. Williams, 21 111. 118; ^ Davis v. Taylor, 41 III 405; Hut- Thrall v. Lathrop, 30 Vt. 307. ton v. Arnett, 51 Ul. 198. 3 Tripp V. Grouner, 60 111. 474; Shutz V. Baker, 38 III. App. 349. 2SG TROVEK. to maintain trover against a wrongdoer.' If the possession of property is fraudulently obtained from a bailee by the general owner, the bailee may maintain trover for his property against either the owner or his subsequent vendee." A person owning property mingled with that of another may, on its conversion, maintain trover.' By tenant in common.— Trover can not be supported by one joint tenant, tenant in common or co-parcener against his co- tenant for a thing still in the latter's possession, because the possession of one is the possession of both; * but if the co-tenant destroys ' or sells the property," or assumes exclusive control over it,' the other may maintain this action against him. By statute, in Illinois, a joint tenant, tenant in common or coparcener may have his action of trespass or trover against his co-tenant, if the latter " shall assume and exercise exclusive ownership over, or take away, destroy or lessen in value, or otherwise injure or abuse" the common property.* Under this statute it has been held that trover may be maintained for the conversion of a promissory note, or the proceeds thereof, although the plaintiff and defendant were jointly interested in the note.® Against an oiflcer. — Trover lies against an officer for goods sold on execution which are by law exempt from such sale; '" » Coffin V. Anderson, 4 BlacM. 395; * Case v. Hart, 11 Ohio 364; Wil- Lamb v. Clark, 30 Vt. 347; Cook v. son v. Beed, 3 Johns. 175; Needham Patterson, 35 Ala. 102; Vining v. v. Hill, 127 Mass. 123; Heath v. Hub- Baker, 53 Me. 544; Watty. Scqfield, bard, 4 East 121; 1 Chit. PI. 144; 76 111. 261; see Hollenbeck v. Todd, White v. Osborn, 21 Wend. 76. 19 111. App. 452. ' Wheeler v. Wheeler, 33 Me. 347; * McConnel v. Maxicell, 3 Blackf. Webb v. Mann, 3 Mich. 139; Permin- 419; Hyde v. Noble, 13 N. H. 494. ter v. Kelly, 18 Ala. 716. » Jackson v. Anderson, 4 Taunt. 24; ^2 Starr & Curtis 1376; Eev. Stat. Whitehouse v. Frost, 12 East. 614; (1893), 882; Kev. Stat. (1895), 932; Bank v. Meadowcraft, 95 111. 124. see Benjamin v. Stremple, 13 111. *2 Saund. 47; St. John v. Stand- 46&; Boyle v. Levings, 28 111. 314; ring,2Johns.4GS; 3Iersereauv. Nor- Sicartwout v. Evans, 37 111. 442; ton, 15 Johns. 179. Carter v. Wingard, 47 III. App. 296. -"Martyn v. Knoll, 8 T. R. 146; ^ Boyle v. Levings, 28 111. 314. WtZ&m/iam V. Snow, 2 Saund. 47, h; ^^ Davlin v. Stone, 4 Cush. 359; Goel V. Morse, 126 Mass. 480; Weld Stephens v. Laivson, 7 Blackf. 275; V. Oliver, 21 Pick. 559; Delaney v. McCoy v. Brennan, 61 Mich. 362; Boot, 99 Mass. 546. Howard v. Cooper, 45 N. H. 339; TKOVEE. 287 or against an officer who seizes property by virtue of process and sells it without notice; ' or where he seizes the property of one person on a writ of execution against another." The re- moval and detention of the personal property of a stranger, by an officer acting by the direction of the party, is a conver- sion by both aside from any demand and refusal;' but a judg- ment creditor is not liable for a wrongful seizure or sale by the sheriff on the execution, which he did not direct or assent to/ Where the sheriff sells the property of a partnership, as the individual property of one partner, on a writ of execution against such partner individually, he is liable in trover to the other partner therefor; and the plaintiff is entitled to recover the value of his individual share in the property so sold with- out regard to the state of the partnership accounts/ Trespass may also be maintained in such case/ Trover lies against the purchaser and constable for the landlord's share of a crop seized and sold on execution against the tenant/ By an officer. — A sheriff or constable who has seized goods on execution or attachment, has a special property in them, and may maintain trover for them; * but a custodian appointed by such officer can not maintain the action/ Conversion the gist of the action — What constitutes. — Conversion consists in any tortious act by which the defend- Sanbom v. Hamilton, 18 Vt. 589; *Averilly. Williams, 1 Denio 501; Belon V. Bobbins, 76 Wis. 416. Mulheisen v. Lane, 82 111. 117. 1 Wright v. Spencer, 1 Stew. 576; ' Walshv. Adams, 3 Denio (N. Y.), Perkins v, Johnson, 3 N. H. 144. 125. ' Jamison v. Hendricks, 2 Blackf. ^ Smyth v. Tankersley, 20 Ala. 212; 94; Sanborn V. Hamilton, 18 Vt. 590; Markley v. Rand, 12 Cal. 275. McFarland v. Farmer, 42 N. H. 386; ' Case v. Hart, 11 Ohio 364; Fall- Locke y. Garrett, 16 Ala. 698; Han- man v. Turck, 26Barh. 167; Champ- chett V. Williams, 24 111. App. 56; ney v. Smith, 15 Graj' 512; Home v. Duncan v. Stone, 45 Vt. 118; Robin- Briggs, 98 Mass 510; Mead v. son V. McDonald, 2 Geo. 116. TJiompson, 78 III. 62. ^Calkins v. Lockwood, 17 Conn. ^Gardner v. Willis, Breese 368; 154; Christopher v. Covington, 2 Davidson v. Waldron, 31 III. 120; Mon. 359; Libby v. Soide, 1 Shep. Mulheisen v. Lane, 82 111.117; Rich- 310; Hanchett v. Williams, 24 III. ard^on v. Rardin, 88 111. 124. App. 56; Duncan v. Stone, 45 Vt. ^ Ludden v, Leavitt, 9 Mass. 104; 118; Robinson v. McDonald, 2 Geo. Warren v. Leland, 9 Mass. 265; see 116; Burgin v. Burgin, 1 Ired. 453. Common, v. Morse, 14 Mass. 217. 28 S TROVER. ant deprives the plaintiff of his goods, either wholly or for a time.' Cutting growing corn, and carrying it away, will be a conversion of it sufficient to sustain trover.^ There may be a conversion by the wrongful taking of per- sonal property; by some illegal assumption of ownership; by illegally using or misusing property; or by its wrongful deten- tion. If a person fraudulently sues out a writ of replevin, and thereby obtains possession of property, and then dismisses his suit, it will be an illegal taking and assumption of owner- ship of the property, and a sufficient proof of conversion, ren. dering a demand unnecessary to sustain an action of trover.^ The wrongful assumption of the property in, or the right to dispose of the goods, may be a conversion in itself, and render unnecessary a demand and refusal." If a person has a lien on property for a special purpose, and applies it to another pur- pose, it is a waiver of the lien, and a conversion.' And if a person, having a lien on property, upon being requested to de- liver it up, claims to retain it on a different ground from that upon which he rests his lien, he waives such lien,' as well as any tender of charges.' Where one of two joint owners of personal property de- mands of the other, not the joint use and possession, as joint owner, but the property as sole owner, the latter is at entire liberty to disregard such a demand. To make a demand avail- able under such circumstances, the party making it should de- mand the equal enjoyment of the property as joint owner.* » 2 Stark. Ev. 842; 3 Stepli. N. P. ' <^offin v. Anderson, 4 Blackf, 396; 2704; Ins. Co. v. Cochran, 27 Ala. C^ark v. Rideout, 39 N. H. 238; 228; N. T. Co. v. Sellick, 52 111. 249; Thrall v. Lathrop, 30 Vt. 307; see Tran. Co. v. Mallory, 157 111. 554. Johnson v. Woodman, 4 Scam. 495. ^Pierrepont v. Barnard, 5 Barb. ^Boardmanv. Sill, 1 Camp. 410; 364; Nelson v. Burt, 15 Mass. 204. 3 Steph. N. P. 2694; West v. Tupper, ^Bruner v. Dyball, 42 111. 34; see 1 Bailey (S. C.) 193; Beniorv.Pac- Ogden v. Lucas, 48 111. 492; R. R. g.uin, 40 Vt. 199. Co.v. Trenton Car Co., 3 Vroom "• Boardman v. Sill, 1 Camp. 410; 517. 2 M. & S. 298; West v. Tupper, 1 ^McComliev. Davies,Q East 538; Bailey (S. C.) 193; 3 Steph. N. P. Reynolds v. Shider, 5 Cowen 323; 2681; 11 Rich. Law (S. C.) 267; 3 H. Bissel V. Drake, 19 Johns. 66; Raw- & N. 931. son V. Tuel, 47 Maine 596; 1 Chit. ^ Swartwout v. Evans, 37 111. 443. PI. 141. TKOVER. 289 An adulteration of liquor by a carrier, or his servant, will be a conversion of it.^ The fraudulent mixing, by one person, of his own goods with the goods belonging to another, in such a manner that the property of each can no longer be distin- guished, constitutes a confusion of goods, if the goods mixed are of unequal value, and the innocent party is entitled to the whole, and may maintain trover for them against a purchaser In good faith.^ Possession of property, with a claim of title adverse to that of the true owner, is sufficient evidence of conversion.^ When goods or choses in action have been pledged to secure the payment of a debt, before the owner can reinvest himself with the right to resume possession of the property, he must pa}'' the debt or at least make a sufficient tender." A refusal by the possessor to deliver goods to the owner, on pretense that they belong to another, is evidence of a conversion.' If a bailee gives a sufficient reason for not delivering the goods on a demand, his refusal so to deliver will not amount to a con- version.* A common carrier is liable in trover for losing- goods,' but a mere delay in delivery by a carrier is not a con- version of the property.* Parties may be sued in action of trover, though there was no joint conversion in fact. A joint conversion may be im- plied in law, by the consent of a partner to the acts of his copartner.' Demaud — Whether uecessary. — Proof of a demand and ' Bench v. Wallcer, 14 Mass. 500; * Underwood v. Latham, 1 Ind. Young v. Mason, 8 Pick. 551. 276; Briggs v. R. R. Co., 28 Barb. 2 Bank v. Meadowcraft, 95 III. 124; 515. HaddixY. Einstman, 14 Bradw. 443; ' Bankx. Leavitt, 17 Pick. 1; Pas- Bank V. McCrea, 106 111. 281. kard v. Getman, 4 Wend. 613; R. ^Maxwell v. Harrison, 8 Geo. 61; R. Co. v. Parks, 54 111. 294; Ry. Co. see N. T. Co. v. Sellick, 52 111. 249. v. Gilvin, 81 111. 511; Stone v. Ry. * Henry v. Eddy, 34 III. 508; Pic- Co., 9 Bradw. 48; Ry. Co. v. Mc- quet V. McKay, 2 Blackf. 465. Comas, 33 111. 185; M. D. Co. v. «■ Coffin V. Anderson, 2 Blackf. Synith, 76 III. 542; Forbes v. R. R. 395; iliuiger v. Hess, 28 Barb. 75; Co., 133 Mass. 154; Dow v. Bank, 91 Bud V. Pumphrey, 2 Md. 261; U. S. 618. Clark V. Hale, 34 Conn. 398; Campen « Briggs v. R. R. Co., 28 Barb. 515. V. Bemis, 35 111. App. 37. * Bane v. Detrick, 52 III. 20. 19 290 TROVER. refusal is necessary, in trover, when the defendant comes law- fully into possession, and the plaintiff is not prepared to prove a distinct and actual conversion. But demand and refusal are unnecessary, if the taking was tortious, or if an actual con- version was shown.' The demand and refusal where neces- sary are conclusive evidence of conversion, if not explained.'' Essentials to support the action. — In trover, the plaintiff must recover on the strength of his own title, without regard to the weakness of that of his adversary. It is a possessory action, and in order to maintain it, the plaintiff must show in himself either a general or special property in the thing alleged to have been converted. It is essential that the plaintiff, at the time of the conversion, should not have only the right of property in the chattel, but also the right to the immediate possession. His right to possession must be immediate, absolute and unconditional, and not dependent on some act to be done by him. It is not enough that he has a mere right of action, or a right to take possession at some future day.' The plaint- iff must prove a conversion of the property by the defend- ant at a time when the right of possession existed in the plaintiff;* but it is not necessary that the plaintiff's interest in the goods should have continued until the commence- ment of the suit; ^ and to show a conversion, it must be made to ^Hays V. Ins. Co., 125 111. 626; vidson v. Waldron, 21111.120; M erty, of divers goods and chattels, to wit, (describe the property,) of the value of dollars; and being so possessed thereof, he, the said E. F., in his lifetime, afterwards, to wit, on the day aforesaid, <;here casually lost the said goods and chattels out of his possession, and the same afterwards, and in the lifetime of the said E. F. , to wit, on the same day aforesaid, there came to the possession of the defendant by finding: Yet the defendant, w^ell knowing the said goods and chattels to be the property of the said E. F., in his lifetime, and of right to belong to him, and to the plamtiff, as executor as aforesaid, after the decease of the said E. F., did not deliver the said goods and chattels, or any or either of them, or any part thereof, to tlie said E. F., in his lifetime, nor has the defendant as yet delivered the same, '2 Chit. PI. 835, n; 4 B. & A. 206. Neilson, 15 N. J. L. 837; Pierson v. 2 South. 211; Taylor v. Morgan, 8 Toumsend, 2 Hill (N. Y.) 550. Watts. 333; see 2 Chit. PI. 835. ^ Hixon v. Pixley, 15 Nev. 475; « 2 Chit. PI. 835, n. but see 2 Bouv. L. Diet. 606; Connoss *Fry V. Baxter, 10 Mo. 302; see v. Meir, 2 E. D. Smith (N. Y.) 314; Taylors. Morgan, 3 Watts, 333; Bis- Richardsonv. Hall, 21 Md. 399; KuJu sell V. Drake, 19 Johns. 66; Bank v. land v. Sedgwick, 17Cal. 123; Byan V. Hurley, 119 Ind. 115. 294: TKOVER. or any or either of them, or any part thereof, to the plaintiff, executor as aforesaid, since the death of the said E. F. (althougli often requested so to do); (*) and the defendant afterwards, and in the lifetime of the said E. F., to wit, on the same day aforesaid, there converted and disposed of the said goods and chattels to his own use: To the damage of the plaintiff, as execu- tor as aforesaid, of dollars, and therefore he brings his suit, etc. And the plaintiff brings into the court here the letters testamentary to him gran ted, whereby it fully appears to the court here that the plaintiff is exec- utor of the said last wiU and testament of the said E. F., deceased, and has the execution thereof, etc. {If the suit is by an administrator, commence as in No. 35a, va\te,page SO, and malceprofert of letters as in same form.) If the trover was in the lifetime of the testator or intestate, but the conversion after his death, then in lieu of the clause immediately following the asterisk in the above form insert the words : And the defendant afterwards, and after the death of the said E. F., to wit, on, etc., there converted and disposed of the said goods and chattels to his own use. If the action is brought by an administrator in that capac- ity, the property may be alleged in the intestate, whether the conversion was before or after his death, if before admin- istration granted; but if any one takes property belonging to the estate after administration granted, the administrator may declare on his own possession.' If the trover was first and the administration afterwards, the plaintiff may declare specially, or lay trover after the ad- ministration; ^ for an executor has a constructive possession of the goods from the time of the testator's death.^ The prop- erty of the goods draws to it a possession in law, and there- fore an executor may declare on his own possession " as exec- utor," though in fact he never has had possession.* In trover by an administrator, where the property is laid in the intes- tate, evidence is not admissible, under the general issue, to dispute the plaintiff's representative character; but it is other- wise as to a count on the plaintiff's possession.* 1 Oliver's Precedents 467. *2 Chit. PI. 840, n. 2 Comb. 304. »2 Chit. PI. 839; 1 Chit. PI. 489. ^ Smith v. Milles, 1 T. R, 480; 01. Prec. 470. TKOYER. 295 DEFENSES IN TROVER. For pleas in abatement, see chapter III, " Defenses to an Action," which, with very little variation, can be made appli- cable to this form of action. Pleas in bar. — In trover the general issue is " not guilty," and it is not usual in this action to plead any other plea, ex- cept the statute of limitations, and a release.' The defendant may, however, plead specially anything which, admitting the plaintiff had once a cause of action, goes to discharge it. Thus a release may be pleaded, as before observed; accord and satis- faction; arbitrament and award; and a former recovery for the same conversion.* Fleas attempting to /i/6'?^//y are incon- sistent with the admission of a conversion, and amount to the general issue.* A precedent is given in Chitty's Pleading, Yol. 3, page lOiO, of a plea to an action of trover, brought by an administrator, that the grant of administration was void, because not made by the proper authority. The plaintiff is compelled to proX^e his property, general or special, in the goods; possession, actual or constructive; and such an unlawful disposition of them by the defendant as amounts to a conversion. Any evidence to rebut this proof, in any particular, may be given under the general issue.* A plea in trover, that the goods have been consigned by the plaintiff to the defendant on commission, and the latter had sold them pursuant to the plaintiff's order, is bad, as amount- ing to the general issue.* So a plea to an action of trover for a buggy, that it had been delivered to the defendant upon a contract of bailment for hire, and that it had been destroj^ed by accident, without the fault of the defendant, is bad for the same reason.^ A plea in trover for bank notes, that the defendant, as 'ICliit. PI. 436; see Kennedy v. Biiggsv. Brou-n,'3B.i]lS7; Beckman Strong. 10 Jolins. 291. v. McKay, 14 Cal. 250; see Davidson ^ 1 Tidd's Pr. 598; Andrews' Steph. v. Waldron, 31 111. 120. PI. 88, note. * Kennedy v. Strong, 10 Johns. 288. 3 Andrews' Steph. PI. 88, note; but ^Carter v. Tarns, Dist. Court, see 1 Chit. PI. 435. Phila. 1836. ■•Andiews' Steph. PI. 88, note; 296 TROVEE. cashier of a bank, received tiiem from the holder on special deposit, is bad; and no special plea in bar of the action can be ffood, unless it confesses and avoids the conversion.' The right of the plaintiff to maintain trover is put in issue by the plea of " not guilty; " ^ and under this plea the defendant may show a right of entry for rent in arrear, under which he en- tered, distrained and sold.^ In this action, a plea of property in a third person is bad." Evidence of such matter may be given under the issue.* The plea of " not guilty " puts in issue nol merely the conversion in fact, but the wrongful conversion.^ In trover, upon the general issue, the plaintiff must recover on the strength of his own title, and not on the weakness of that of his adversary.'' It seems that where a special plea is pleaded which only amounts to the general issue, the exception may be taken either by motion ' or by special demurrer." Accounts can not be adjusted, nor a set-off be allowed, in an action of trover." It has been held that a defendant can plead to an action of trover, in justification, that he had a special property in the goods, or a lien thereon," but the weight of authority is against it. No, 161. Pica of not guilty — General issue. In the Court. Term, 18—. C. D. ) ats. V Trover. A. B. ) And the defendant, by E. F., his attorney, comes and defends 1 Coffin V. Anderson, 4 Blackf. 395. Stephenson v. Little, 10 Mich. 433; ^Coffin V. Anderson, 4 Blackf. Beckmanw. McKay, \^C3i\. 2^(i. 896; Hurst v.Cooh, 19 Wend. 462. ^Jackson v. Hobson, A Scam. 411. ^ BriggsY. Brown, S Will, 811 ; see * Kennedy v. Strong, 10 Johns. GonkVs PI. 319. 389; Abramsv. Pomeroy, 13 111. 133; * Hurst V. Cook, 19 Wend. 469; Klein v. Currier, 14: 111. 237; Jack- Lhincan v. Speer, 11 Wend. 54; son v. Hobson, 4: Scam. 411; Curtiss Harker v. Dement, 9 Gill. 7. v. Martin, 20 111. 557; City v. War- ^Schemerhom y.VanValkenburg, field, 25 III. 317; Briggs v. Broum, 11 Jolms. 529; Duncan v. Speer, 11 3 Hill (N, Y.) 87; Turner v. Waldo, Wend. 54; see Gould's PI. 319. 40 Vt. 51; Fenlason v. Rackcliff, 50 e Young v. Cooper, 6 Exch. 259; Me. 362. Knyaston v. Crouch, 14 M. W. 266. ^^ Keaggy v, Hite, 13 111. 99; see 2 ' Bricker v. Hughes, 4 Ind. 146; Cain's Cas. 200. Davidson v. Waldron, 31 lU. 120; " Tidd's N. P. 330; 2 Bing. 755. TROVER. 297 the wrong and injury, when, etc., and says that he is not guilty of the said supposed gi-ievances above laid to his charge, or any or either of them, in manner and form as the plaintiff has above thereof complained against him: And of this the defendant puts himself upon the country, etc. What plaintiif must prove. — Under the plea of "not guilty" the plaintiff must prove: (1) Propert}- in himself, either general or special,' and a right of possession at the time of the conversion. (2) A conversion of the thing by the defendant to his own use; and whether the defendant originally came to the possession of the thing by right or by wrong, is not material. If by right, a demand and refusal must be proved, unless there was an actual conversion.^ (3) The value of the goods at the time of the conversion. Damages.— In trover, if the plaintiff recover, he is entitled to the full value of the property converted, with interest from the time of the conversion.^ The measure of damages in trover for a note is the amount due on its face, unless it is proved to be of less value,* and interest from its maturity to the time of conversion, and interest on the aggregate from that time to the time of the verdict.^ The measure of damages for the conversion of a paper of no intrinsic value in itself, but evidence of title to a valuable right, interest or property, is the value of such right or inter- est, with interest from the date of conversion to time of trial.^ For pleas of the statute of limitations, release, accord and satisfaction, etc., and for demurrers, see the same subjects in " Assumpsit " and " Defenses to an Action." ^ Pyne v. Dor, 1 Term. 56; Wil- * l7igalls v. Lord, 1 Cowen 24:0. braham v. Siwui, 2 Saund. 47, a; ^ St. John v. OConnell,! Porter Picquet v. McKay, 2 Blackf. 465; (Ala.) 466; see, also, jRo??i/(7 v. iJom/g, Odiorne v. C alley, 2 N. H. 66; Da- 2 Rawle 241; Bank v. Mas. Hall, 63 vidson V. Waldron, 31 111. 120. Ga. 271; but see Benjamin v. Bank, ^Stevens v. Low, 2 Hill. 132; see 63 Wis. 470. Bruner\. Dyball, 42 111. 34. ^Am. Ex. Co. v. Parsons, 44 111. ^Keaggyv. Hite, 12 111. 99; Otter 312; Hayes v. Lis. Co., 125 111. 626; V. Williams, 21 111. 118; Baldwin v. Olds v. Bd. Trade, 33 111. App. 445; BmdZey, 69 111. 32; Sturgesv. Keith, Bank v. Strang, 28 111. App, 825; 57 111. 451; Forbes v. R. R. Co., 133 Sutherland on Dam. 520. Mass. 154; 2 Greenl. Ev., Sec. 276, 649. CHAPTER IX. REPLEVIN. The institution of the action of replevin is ascribed to Glanvil, Chief Justice to Henry II., and it was originally the peculiar and exclusive remedy in cases of wrongful distress for rent, or of cattle damage feasant. The object was to prevent the beasts of the plough, cattle, and other goods of the tenant in arrear from being unjustly or excessively distrained by the landlord, lest, as Littleton observes, " the husbandry of the realm and men's other trades might thereby be overthrown or hindered." At the common law, a distress was considered merely as a pledge or security for the rent, or damages, or for service due from the tenant to his superior lord, and a means of enforcing payment or performance thereof. The property could not be sold or disposed of by the distrainor, but he was compelled to hold it as a pledge until payment or other satis- faction was made. The law was altered in this respect, in England, by statute 2 William and Mary, (A. D. 1693) which authorized the distrainor, with the assistance of the sheriff, to have the distress appraised by competent appraisers, and sold for the highest price which it would bring, unless reguhirly replevied by the tenant or owner within five days after seizure. There were two ways in which a distress could be replevied, one according to the common law, and the other by statute. The common law allowed the owner a writ of replegiari facias^ which was sued out of the chancery, and directed to the sheriff of the county in which the distress was taken, commanding him to redeliver it to the owner, and afterwards to do justice in respect of the matter in dispute, in his county court. The statute of Marlbridge, 52 Henry III. (A. D. 1268), pro- vided that if the beasts of any man were taken and AvrongfuUy withheld, the sheriff should, upon complaint made to him thereof, deliver them to the owner " without let or gainsaying (298) REPLEVIN. 299 of him who took the beasts." The owner was required to first give security (in pursuance of the statute of Westm, 2), similar to the bond required by statute in Illinois and other states. The original writ of replegiari facias was thus dispensed with; and the proceeding upon a complaint made to the sherijff, under the statute, was called a proceeding by " plaint." The statute of Illinois provides that the proceedings in action of replevin shall be commenced hj plaint, and the word has the same meaning that it had in regard to proceedings under the statute of Marlbridge. It signifies that there is to be a complaint •made that the goods were wrongfully taken, or wrongfully detained. The statute of Illinois requires the plaintiff, or some one in his behalf, to make oath or affirmation that he is the owner of the property about to be replevied, or that he is then lawfully entitled to the possession thereof, and that the same has not been taken for any tax, assessment or fine levied by virtue of any law of the state, nor seized under any execution or attach- ment against the goods and chattels of such plaintiff, liable to execution or attachment.* It has been usual to file an affidavit, and to allege therein that the goods and chattels were wrong- fully taken, or wrongfully detained; and in that manner the plaint mentioned in the statute has been usually made.^ The primary purpose of the action is to recover property in specie — not its value.^ Where the action lies, etc. — The action of replevin lies, for the recovery, in specie, of any personal chattel which has been taken and detained from the owner's possession, together with damages for the detention; unless the taking and deten- tion can be justified or excused, or the right of action is sus- pended or discharged.* It lies at common law, not only for goods distrained, but for goods taken and unjustly detained for any other cause what- ever; except that, where goods are taken by process of law, the party against whom the process issued can not replevy them; but if the goods of a stranger are taken, he may replevy 1 Rev. Stat. (1893), 1173; Rev. Stat. « Herdic v. Young, 55 Pa. St. 176. (1895), 1256; 2 Starr & Curtis 2012. '^2 Greenl. Ev., Sec. 560; Stanley 5 Anderson v. Hapler, 34 111. 436. v. Eobinson, 14 111. App. 480. 300 KEPLEVIN. them from the sheriff/ By statute in most of the states of the Union, replevin may be brought whenever goods or chat- tels have been wrongfully distrained, or otherwise wrongfully taken, or are wrongfully detained. It lies by a bailee entitled to possession, against the owner of chattels.^ If a chattel is sold by a borrower of it, the owner may re- cover it in an action of replevin of whomsoever he may find in possession of it.' Where a purchase of goods is effected by means of false and fraudulent representations on the part of the buyer, the seller may treat the sale, though on credit, as void, and maintain replevin ' without any previous demand." Where a person operating a ferry unlawfully seizes a boat belono-ing to a rival ferry, for an alleged encroachment upon his franchise, the person aggrieved may recover his boat by an action of replevin." Where a person had agreed to make three wao-ons for another, within a limited time, it was held that it was a general contract, and that no title passed on the comple- tion of the wagons without a delivery, and therefore an ac- tion of replevin would not lie to recover them.^ If a person sells goods to another, and delivers them, al- though the purchaser is to give a note with security for the goods at a future day, a sale by the purchaser w^ill be good, and the buyer from him in good faith will hold the goods ao-ainst the first vendor.* Warehousemen have a lien on prop- erty stored with them, for proper charges, and may retain possession of the property to secure payment of such charges.' ' Svnmons v, Jenkins, 76 111. 479; chett, 120 111. 573; Faricell v. Linii, Samuel v. Agnew, 80 111. 553; Cav- 59 111. App. 245. ener \. SMnkle,89 lU. 161; Keller ^ Hall y. Gilmore, 40 Me. 578 V. Robinson, 153 111. 458; Gipp. on Hancliett v. Sorg, 15 111. App. 493 Rep. 141; CZarfcv.-S'fcnmer, 20 Johns. Doane v. Lockimod, 115 111. 490 470; 2 Greenl, Ev., Sec. 560. Fanvell v. Hancliett, 120 111. 573. 2 Simpson v. Wrenn, 50 111. 223. « Gear v. Bullerdick, 34 111. 74. s Roland v. Gundy, 5 Ohio 202; "> Uj^dike v. Henry, HIU. S'^8; Led- 3IcNeill V. Arnold, 17 Ark. 154; better v, Blessingame, 31 Ala. 495; Trudo V. Anderson, 10 Mich. 357. Fettengill v, Merrill, 47 Me. 109; *Gray v. St. John, 35 111. 222; Haver stick v. Fergus, 71 111. 105. Siveitzer v. Tracy, 76 111. 345; Ex. * Brundage v. Camp, 21 111. 330. Co. V. Willsie, 79 111. 92; R. R. Co. » Low v. Martin, 18 111. 286; see V.' PhiUips, 60 111.190; Ames v. Henry y. Eddy, UIW. ^m. Moir, 130 111. 592; Farwell v. Han- REPLETIISr. 301 It has been held in Indiana, that if the plaintiff in an action of replevin is nonsuited, he is not thereby barred from bring- ing another action, the statute of Westm. 2, c. 2, prohibiting a second replevin after a nonsuit, being local to England, and not in force in that state." In Illinois the plaintiff may plead, to a suit brought upon the replevin bond, that the merits were not tried in the replevin suit." Where one wrongfully sues out a writ of replevin, and dismisses the suit, he illegally takes and assumes ownership of the property; and in such a case the owner may maintain replevin for the property, and is not confined to the remedy on the bond. The first replevin suit does not change the ownership of the property.* The general ownership of property is not necessarily in- volved or determined in replevin, but the right of possession is." Eeplevin lies for books of records," and to recover the books of a corporation which are w^rongfully detained,* or for private letters.^ It may be brought to recover possession of a deed which is withheld from a person in whom the title to the land thereby conveyed is vested." In general, it lies for any tortious or unlawful takino- of the property of another, or w^henever trespass de honis asportatis can be sustained.^ Replevin lies for a swarm of bees; '" and for the increase of an animal, though the increase was after the tak- ing." It will not lie for animal s/igrtc natures, and unreclaimed.'" Money in a box, or leather made into shoes, if sufficiently identified, may no doubt be recovered in replevin. When property has undergone an alteration, a new right of action 1 Daggett v. Robins, 2 Blackf. ' Eyer v. Higbee, 35 Barb. 503. 415; see Walbr idge v. Shaw, 1 Cush, ^King v. Gilson, 33 III. 348; see 560. Wilson v. Rybolt, 17 Ind. 391; Ewell 2 Rev. Stat. (1893), 1174; Rev. Stat. on Fixtures 417. (1895), 1258; Starr & Curtis 2018- » Wheeler v. McFarland, 10 Wend 3 Brunerv. Dyball, 43 111. 34. 332; Allen v. Crary, 10 Wend. 349 * Warier v. Matthews, 18 111. 83; Rogers v. Arnold, 13 Wend. 32 McCoy V. Cadle, 4 Iowa 557; Curd Hopkins v. HopMns, 10 Johns. 369 V. Wnnder, 5 Ohio 92; Cleaves v. Bufflngton v. Gerrish, 15 Mass. 156; Herbert, 61 111. 136; R. R, Co. v. Stoughton v. Rappallo, 3 S. & R.' Shaw. 46 111. App. 603. 562. 5 Sawyer v. Baldivin, 11 Pick. 492; '" Morris on Replevin 54. Sudbury v. Steams, 21 Pick. 148. " Morris on Replevin. « Road v. Hixon, 5 Ind. 165. '* Morris on Replevin. 302 REPLEVIN. arises to reclaim it by replevin in that shape which it has assumed. And in such case it should be described in the writ as it existed at the time of the commencement of the suit.^ A person may maintain replevin for boards made from trees wrongfully cut on his land and taken away. And it is a gen- eral principle that the owner of property wrongfully taken may pursue it so long as it can be identified, unless it is annexed to or made part of some other thing which is the principal — as lumber put into the house.^ If property or choses in action have been pledged to secure a debt, the owner must pay, or at least tender, the amount due, before he can claim the right to resume possession of the property, or bring replevin for its recovery.' Where property is sold and delivered to the purchaser, a part of the price be- ing paid and the residue to be paid in installments the vendor can not maintain replevin for such property, upon the refusal of the purchaser to make further payment — on the ground that the property is not such as he bargained for — without re- funding the money already paid.* The question of the validity of a tax can not be considered in an action of replevin.^ Replevin will not lie in a state court ao-ainst a United States marshal who has seized goods under an execution from a United States court.' Who may maintain tlie action.— It is not necessary, in order to maintain this action, that the plaintiff should be the owner of the property. He must, however, have either the o-eneral property in the goods taken or detain(;d, or a special property therein.^ And it makes no difference whether the ^Broivn v. Sax, 7 Cow. 95; Betts * Hamilton v. 3Ifg. Co., 54111. 370. V. Lee, 5 Johns. 348; Wingate v. * R. R. Co. \. Andrews, 53 111. Smith, 20 Maine 287. 177; McClaughrey v. Cratzenherg, ^ Davis V. Easley, 13 III, 192; 39 111. 117; Bilbo v. Henderson, 21 Cromelian v. Brink, 29 Penn. 552; Iowa 56; Rev. Stat. (1893), 1172; Rev. Warren v. Leland, 2 Barb. 613; So- Stat. (1895), 1256; 2 Starr & Curtis, cietyv. Fleming, 11 Iowa 533; An- 2012. derson v. Hapler, 34 111. 436. « Covell v. Heyman, 111 U. S. 176; ^ Henry V. Eddy, 34 111. 508; 2 Freeman y. Howe, 24 B.ow. 450. Greenl. Ev. , Sec. 648; Chickering v. ' Boughton v. Bi-uee, 20 Wend. Raymond, 15 111. 363. 234; Shearick v. Huber, 6 Binn. 3; EEPLEVIN. 303 claimant's property in the goods is absolute or qualified/ or whether he has ever had the possession or not,* if he has the right of possession. He must, however, have at least a special property in the goods claimed/ Thus a mere custo- dian,* or receiptor to an officer or any other bailee for safe keeping,* or a mere servant, who has charge of goods as such only,' can not maintain replevin. The plaintiff must have had a right to the possession of the property at the time of the taking or detention.' If he has not the immediate right of possession, the action can not be supported,' but he must proceed by an action on the case." One joint owner of a chattel can not maintain replevin against the other.'" A father, as the natural guardian of his children, where they have no other guardian, may maintain the action for their property." Where a minor makes an exchange of a horse belono-ino- to his father, and the father apparently acquiesces in the bargain for a considerable time after it has been made, he can not re- cover the horse his son has exchanged in action of replevin.'* If a person seeks to maintain an action of replevin for a steam Young v. Kimball, 23 Penn. 193; ''Gates v. Gates, 15 Mass. 310; Broadwater v. Darin, 10 Mo. 277; Collins v. Evans, 15 Pick. 63; Wal- 1 Chit. PI. 163. pole v. Smith, 4 Blackf. 304; Pratt ^Collins V. Evans, 15 Pick. 63; v. Parhman, 24 Pick. 42; 1 Chit. P]. Rogers v. Arnold, 12 Wend. 30; 163; Broadwater v. Darine, 10 Mo. Whitewell v. Wells, 24 Pick. 25; 277; Pilkingtonv. Trigg, 28 Mo. 95; Gillett V. Treganza, 6 V/is. 343; Les- School v. Lord, 44 Maine 374; Ator ter V. McDonald, 18 Penn. St. 91; v. Rix, 21 III. App. 309. Gartside v. Nixon, 43 Mo. 138. » j qjjJ^ pj ^gg^ ^. -[Yj^^^i^y, ^ * Whitewell V. Wells, 24 Pick. 25; Tram, 3 Pick. 255; Collins v. Evans, Johnson v. Hiint, 11 Wend. 137; 15 Pick. 63; Ingraham v. Martin, Williams v. West, 2 Ohio 82; Bos- 3 Shepley 373. " tick V. Brittain, 25 Ark. 482. 9 1 Chit. PI. 263, a. 3 5 Dane's Dig. 515; Pattison v. lo 3IcElderry v. Flanaghan, 1 H. Adams, 7 Hill, 126; Haller v. Cole- & G. 308; Prentice v. Ladd, 12 son, 23 lU. App. 324. Conn. 331; Wills v. Ncyes, 12 Pick. * Harris v. Smith, 3 S. & R. 20; 324; Belcher v. Van Dusen, 37 111. Perleyy. Foster, 9 Mass. 109; Harris 281; Gaarv. Hard, 92111. 315; Stan- V. Mcintosh, 1 Johns. 380. ley v. Robinson, 14 Bradw. 480; ' Waterman v. Robinson, 5 Mass. " Smith v. Williamson, 1 Hex. & 303; Simpson v. McFarland, 18 J, 147. Pick. 427. " Hall v. Harper, 17 111. 82. "> HarHs v. Smith, 3 S. & R. 20. 304: REPLEVIN. saw-mill building situated upon the land of another,' with all the machinery, etc., belonging to the same, he should at least aver in his plaint and declaration that the property in question is personal estate. Replevin does not lie for house perma- nently attached to land.^ The owner of land may bring replevin for chattels severed from it where there was no adverse possession, but not if the land is held adversely. He can not assert his title to the land in that manner.' Consistently with this rule, a landlord may bring replevin for chattels wrongfully severed from the free- hold bv a tenant, as the title to the land is not thereby drawn in question.* Replevin can only be supported for taking personal chattels, and not for taking things attached to the freehold, and which are in law considered fixtures, and can not be delivered to tbe plaintiff or to the defendant upon a writ of retorno hahendo.^ Hence it does not lie for trees growing; but if they are cut down by a stranger, who converts them into posts and rails, the action may be maintained.^ Where the property is left with a person who has advanced money upon it, and is to keep it until he shall be reimbursed, he may replevy it from one who attaches it as a creditor of the pledgor; ^ and unless it is made to appear that the attaching partv was really a creditor he can not complain that it was a design to protect the property of the debtor. The writ of at- tachment does not of itself show that the party in it was debtor of the plaintiff. It only shows that the officer Avho made the attachment acted in behalf of an assumed creditor.^ ^ Chatterton v. Saul, 16 111. 149; ^DeMott v. Hagerman, 8 Cowen soe Ogden v. Stock, 34 111. 522: Dorr 220; Cresson v. Stout, 17 Johns. 116; V. Dudderar, 88 111. 107. see Anderson v. Hapler, 34 111. 436. 2 Salter v. Sample, 71 111. 430. « Johnson v. Hunt, 11 Wend. 137; ^Anderson v. Hapler, 34 111. 436; 1 Chit. PI. 146; Anderson v. Haj)ler, Davis V. Easley, 13111. 192; 1 Smith's 34 III. 436; Davis v. Easley, 13 111. Lead. Cas. 485. 192; Robertson v. Jones, 71 111. 405. *Langdon v. Paul, 22 Vt. 205; ' Cttrr/er v. Ford, 26 111. 488. Sands V. Pfeiffer, 10 Cal. 258: San- ^Currier v. Ford, 26 111. 488; Bas- ders V. Reed, 12 N. H. 558; A7ider- sett v. Armstrong, 6 Mich. 397. son V. Hapler, 34 111. 436; Ogden v. Stock, 34 lU. 522. EEPLEVIN. 305 A person wlio consents that grain left in a \varehoiise may b(3 put in bulk with other grain, with the understanding that a like quantity and quality shall be delivered to him on request, can not maintain replevin for the grain. If the intermixture of grain was without the consent of the bailor, or was the wrongful act of the warehouseman, it might be otherwise.' If there is confusion of goods by reason of intermixture (by consent of the owners), so that each owner can not distinguish his property, each will have a proportionate interest in the whole. Keplevin lies for specific property, capable of identi- fication and an actual return, not for an undivided interest or share.' If it was understood and intended thai the title to the prop- erty should pass without any further action of the parties pur- chasing and selling, then the purchaser may maintain replevin, whether the goods had been delivered to him or not.^ But where a contract was made to sell so many bushels of corn, more or less, to be delivered within a specified time, and a small sum was paid to bind the bargain, it was held that the buyer had no right to replevy corn in the possession of the seller, on the failure of the latter to perform the contract. The only remedy of the buyer was an action on the contract.* A mortgagee, or assignee of a chattel mortgage," upon con- dition broken, may maintain replevin. But if it is agreed that the mortgagor shall retain possession for a stipulated time, the mortgagee can not maintain the action until such time has expired.® One who has bought and receipted for goods, at a sheriff's sale, is the owner of such goods, and may replevin them.^ An officer may maintain replevin against a custodian who refuses to deliver goods entrusted to him by the officer, and the ^Low V. Martin, 18 111. 286; see heter v. Blessingame, 31 Ala. 495; Warner V. Cushman, 31111.883. Bradley v. Michael, 1 Ind. 551; '^ Low V. Martin, 18 111. 286; Hart Winslowv, Leonard, 24 Penn. 14. V. Fitzgerald, 2 Mass. 511; Stanley ^Barbour v. White, S7 111. 164. V. Robinson, 14 111. App. 480. * Ingraham v. Martin, 3 Shepley ^Rhea v. Riner, 21 111. 526. , 373. * Low V. Freeman, 12 111. 467; see ' Freeman v. Morse, 20 111. 429; Updike V. Henry, 14 111. 378; Led- Hazzard v. Burton, 4 Harr. 62. 20 306 KEPLEVIN. custodian can not set up title in himself.' In Illinois, and some other states, a married woman may sue alone, in replevin, to recover her separate property,^ even against her husband.^ Who may be made defendant. — In general, any one in pos- session of goods may be made defendant. If goods are taken by one person at the request of another, the action may be maintained against either or both." "Where goods levied on under execution are replevied the officer is the proper person to be made defendant; the plaintiffs in execution are not necessary or proper parties to the suit." Demand — When necessary. — If the possession of the prop- erty claimed has been obtained by delivery, or otherwise law- fully, a demand and refusal are necessary before bringing suit.* To maintain an action of replevin by the mortgagee, for the return of property taken from the mortgagor on execution, there must be proof of demand and refusal to return the prop- erty, unless there is a waiver of the demand, or proof that it would have been unavailing.^ The demand may be made by one who stands in loco parentis to the claimant,* Where the possession of goods has been wrongfully obtained, no demand is necessary.® COMMENCEMENT OF THE ACTION. Tenue. — Section 3 of the statute provides that " the action may be brought in any county in which the goods and chat- > Farwell v. Hanchett, 120 111. 573; ^ Blatchford v. Boyden, 123 HI. 657. Oswald V. Hutchinson, 26 111. App. ^ Ingalls v. Buckley, 13 111. 315; 273. Hudson v. Maze, 3 Scam. 579: Clark ^ Dean Y. Bailey, 50 IWASl; Chap- v. Lewis, 35 111. 411; Hamilton v. man v. Allen, 15 Texas 278. Mfg. Co., 54 111. 370; Broughton v. 3 Emerson v, Clayton, 32 111. 493; Bruce, 20 Wend. 234; see Ingalls v. Deanv. Bailey, 50 111. 481; see CoZe Buckley, 15 111. 224; ii. R. Co. v. V. Biper, 44 111. 58; Wortman v. Noe, 77 111. 513; Holliday v. Barth, Price, 47 111. 22; Dyer v. Keefer, 51 11 Bradw. 206. 111. 525; Pike v. Baker, 53 111. 163. ' Keller v. Robinson, 153 111. 458. . 4 Hall V. White, 106 Mass. 600; « Neivman v. Bennett, 23 111. 427. Richardson v. Reed, 4 Gray 441; ^ Woodicard v . Woodward, 14: HI. Gilb. Rep. 162; Britt v. Arjlett, 6 466; Fo//e Boyd v. McAdams, 16 111. 146. \. DeBaun, 3 Eng. (Ark.) 510. KEPLEVIN. Sl3 No. 167. Plea of property in the defendant. (First plea non cepit or non detinuit, as ante, No. 164 or No. 165.) And for a further plea in this behalf, the defendant says that the plaintiff ought not to have his aforesaid action against him, the defendant, because he says, (*) that the said goods and chattels in the said declaration mentioned, at the said time when, etc., were the property of him, the defendant, and not of the plaintiff, as by the said declaration is above supposed : And this the defendant is ready to verify; wherefore he prays judgment, etc. The conclusion of the plea, in full, is : " And this the de- fendant is ready to verify; wherefore he prays judgment if the plaintiff ought to have his aforesaid action against him, the defendant; and he also prays a return of the said goods and chattels, together with his damages and costs in this behalf, according to the form of the statute ' in such case made and provided, to be adjudged to him," etc. If the plea is not to the whole declaration, it is of course to be limited accordingly. See the remarks, a7ite, page 57. No. 168. Replication to the plea of property in the defendant. In tfee Com't. Term, 18—. A. B. ) vs. > Replevin. C. D. ) And the plaintiff, as to the plea of the defendant by him sec- ondly above pleaded, says that he, the plaintiff, by reason of anything in that plea alleged, ought not to be barred from having his aforesaid action, because he says, that the said goods and chattels in the said declaration men- tioned at the said time when, etc., (*) were the property of him, the plaint- iff, and not of the defendant, as he has above in that plea alleged: And this the plaintiff prays may be inquired of by the country, etc. It is held that under the plea of property in the defendant, or in a stranger, in an action of replevin, the material inquiry will be as to the property of the plaintiff in the goods, which he must be prepared to prove, the onus jprohandi of this issue being on hira.^ And under such plea the defendant may show any legal title to the property, no matter how derived.^ 'Rev. Stat. (1893), 1174; Rev. Stat, (1895), 1258; 3 Starr & Curtis 2016 * Mcllvaine v. Holland, 5 Harr. 10 Spraguev. Kneeland, 12 Wend. 161 V. Sinnott, 4 Scam. 440; VanNamee v. Bradley, 69 111. 299; Reynolds v. McCormick, 62 111. 412; Constantine v. Foster, 57 111. 36; Ballon v. Hush- Rogers V. Arnold, 12 Wend. 30; ing, 46 111. App. 174. Boyntonv. Page, 13 Wend. 425; 2 ^O'Connor v. Trails. Co., 31 111. Greenl. Ev.,Sec. 563. But see J. ??ios 230; Belcher v. Van Duzea, 37 111. 314 KEPLEVIN. If the issue on such plea is found for the defendant, he will be entitled to a return of the property, and to damages.' No. 169. Plea of property in a stranger. {As in No. 167, ante, to the asterisk, and then proceed:) that the said goods and chattels in the said declaration mentioned, at the said timewlien, etc., were the property of one E. F., and not of the plaintiff, as by the said decla- ration is above supposed; And this the defendant is ready to verify; where- fore he prays judgment, etc. No, 170. Replication to plea of property in a stranger. {As in No. 16S, ante, to the as'erisk, and then proceed:) were the prop- erty of the plaintiff, and not of the saidE. F., as the defendant has above in that plea alleged: And this the plaintiff prays may be inquired of by the country, etc. If the defendant succeeds on the plea of property in a stranger on the trial, he is entitled to a return of the prop- erty, and to damages for the detention. It is not necessary that he should, by proof, connect himself with the title of the stranger. It is sufficient that the right of property is not in the plaintiif.^ In New York it was, however, held that the defendant must connect himself with the title of the stranger, and thus establish a right paramount to that of the plaintiff.^ Where the defendant pleads property in himself, or a third person, he must in the same plea traverse the plaintiff's allega- tion of right. It is held that in such case the allegation of property in the defendant, or a third person, is only to be con- sidered as inducement to the traverse of the plaintiff's right, and the plaintiff must take issue on the traverse, and not on the inducement; and on such issue the substantial matter in dispute is the right of the plaintiff to the property. The plaintiff, it is held, has the affirmative of the issue, and must 281; see Cleaves v. Herbert, 61 111. v. Stockey, 72 111. 495; Seabury v. 126. Eoss, 69 111. 533. 1 Underwood v. ]V}nte, 45 111. 437; « Anderson v. Talcott, 1 Gilm. 865; Bourk V. Riggs, 38 111. 320; Ander- Van Namee v. Bradley, 69 111. 299; sonv. Talcott, 1 Gilm. 365; see Bel- Kerns v. Potter, 71 111. 19; Trout- cherv. Van Duzen, ST III. 281; Ed- man v. Hills, 5 Bradw. 396; Mc- wardsv. McCurdy, 13111. 496; Han- Farlan v. McClellan, 3 Bradw. 295; ford V. Obrecht, 49 111. 146; 3Ic- Ator v. Rix, 21 111. App. 309. Arthur v. Howett, 72 lU. 858; Lill « Gerber v. Monie, 56 Barb. 652. REPLEVIN. 315 sustain his riglit or fail in the action; and what the plaintiff must prove, the defendant is at liberty to disprove. This he may do by showing a state of facts inconsistent with the plaintiff's claim of right.' When a defendant pleads property in a stranger, and the issue on the plea is found for him, such finding is conclusive between the plaintiff and the defendant in another suit for the same property; but such stranger is not bound by the verdict in such case, unless he is in some way directly connected in interest with the party pleading the plea.* No. 171. Plea of justification, by a sheriff, under a fi. fa. against a third person. (First plea, non cepit, No. 164, or non detinuit, No. 165, or both, may be pleaded, if necessary; next, property in defendant. No. 167; next, property in a stranger. No. 169.) And for a further plea in this behalf, tlie defend- ant says that the plaintiff ought not to have his aforesaid action against him, the defendant, because he says, (*) that one J. K. , before the said time when, etc., to wit, on, etc., sued out of the court of the county afore- said, a certain writ of fieri facias, of that date, against one L. M., directed to the sheriff of the county aforesaid, by which said writ the People of the said State of Illinois commanded such sheriff that of the goods and chat- tels, lands and tenements, in his county, of the said L. M., he should cause to be made the sum of dollars, damages, and the sum of dollars, costs of suit, which by the consideration of the said court, on, etc., the said J. K. recovered against the said L. M., together with interest thereon at the rate of six per centum per annum from the time of recovering the same as aforesaid, and also the further sum of , accruing costs on the said judgment, and that such sheriff should have the said moneys ready to render to the said J. K. according to law, and should make return of the said writ in ninety days after the said date thereof, which said writ was thereupon on the said day of the date thereof, there delivered to the defendant, who then and from thenceforth, until and at and after the said time when, etc., was sheriff of the county aforesaid, to be executed in due form of law; by virtue of which said writ the defendant, as such sheriff as aforesaid, afterwards, and before the return day of the said writ, to wit, on the same day in the said declaration mentioned, being the said time when, etc. (and the said writ being then in full force and unsatisfied), there took the said goods and chattels in the said declaration mentioned, and de- tained the same, in execution of the said writ; which are the same taking ^Anderson v. Talcott, 1 Gilm. 365; there cited, 2 Greenl. Ev., Sec. 563. Atkins V. Byrnes, 71 111. 326; Lamp- But see Amos v. Sinnott, 4 Scam. ingv. Payiie, 8'd III. A63', Reynolds V. 440; Whitesides v. Collier, 7 Dana McCormick, 62 111. 412; Prosser v. 285. Woodward, 21 Wend. 205, and cases * Edwards v. McCurdy, 13 111. 496. 316 EEPLEVIN. and detention in the said declaration above supposed, etc. : And the de- fendant further says, that the said goods and chattels in the said declara- tion mentioned, at the said time when, etc., were the property of the said L. M., and not of the plaintiflf, as by the said declaration is above supposed, and were subject to execution, to wit, in the county aforesaid. And this the defendant is ready to verify; wherefore he prays judgment, etc. The plaintiff may reply as in No. 170, ante, re-asserting his own right, and denying that of the defendant. See the remarks under the two iforms of pleas next preceding the last. The above form may be readily adapted to a justification under a writ of attachment, by setting out such writ instead of the execution; and it may also be varied to suit a justification by a constable, or other officer. See pleas of justification, etc., in trespass, post. The plea must aver the property to be in the defendant in the execution;' and traverse the plaintiff's right;' and allege that the defendant took the property by virtue of the execu- tion, and that it was subject thereto.' And the general rule is, that where an officer himself attempts to justify his acts done by virtue of his office, he must allege and prove himself an officer de jure.* An officer, when sued in trespass or replevin for taking property on execution, can justify under the writ, without setting out the judgment upon which such writ is based; but if sued by a stranger, who claims the property by virtue of a sale anterior to the levy, it seems that it would be necessary to produce the judgment in evidence, in order to defeat the sale for fraud; but it would not be necessary to plead it.' The pro- duction of the writ under which the officer acts is for him a sufficient justification. The rule is that a mere ministerial ^ Gentry X. Bargis,Q Blackt. 261; 575; Peck v. Hubbard, 4 Bradw. see Simmons v. Jenkins, IQ 111.479; 566; Bliss v. Geer, 7 Bradw. 612; Lamping v. Payne, 83 111. 463. Wheeler v. McCorrister, 24 111. 40; 2Bemus v. Beekman, 3 Wend. 667; Dayton v. Frye, 29 111. 525. Rogers v. Arnold, 12 Wend. 30; Pros- * Case v. Hall, 21 111. 632; Schlenck. ser V. Woodward. 21 Wend. 205; see er v. Risley, 3 Scam. 483. 2 Greenl. Ev., Sec. 563; Anderson v. ^Jackson v. Hobson, 4 Scam. 411; Taleott, 1 Gilm. 365. Holmes v. Huncastor, 12 Johns. 395; ' Billion V. Wright, 4 J. J. Marsh. Stej^hensv. Frazier, 2 B. Mon. (Ky.) 254; Edey v. Fath, 4 Bradw. 275; 250; see Damon v. Bryant, 2 Pick. Johnson v. Prussing, 4 Bradw. 413. REPLEVIN. 317 officer, who executes the process of a court having jurisdiction of the subject-matter, and having also jurisdiction to issue such process, in general, or in certain specified cases, is protected in the execution of such process, if it is regular on its face, and apparently within the jurisdiction of the court issuing the same.' No. 172. Plea of lien on property, etc. {As in the last precedent, to the asterisk, and then proceed :) that before the said time, when, etc., to wit, on, etc.. in, etc., the plaintiff, being pos- sessed of the said carriage in the said declaration mentioned, as of his own property, delivered the same to the defendant, he then and still being a carriage-maker, for the purpose of having the defendant put tlie said car- riage in good order and repair for the plaintiff, for reward; and thereupon the defendant, at the request of the plaintiff, before the said time when, etc., to wit, on, etc., did there put the said carriage in good order and re- pair for the plaintiff; and thereby the plaintiff then and there became and was indebted to the defendant in the sum of dollars, for the work by the defendant done, and materials by him furnished, in and about the put- ting of the said carriage in good order and repair for the plaintiff as afore- said : And the said sum of money remaining unpaid, the defendant, at the said time when, etc., was entitled to detain the said carriage as and for a security for the payment of the said sum of money so due from the plaintiff to the defendant as aforesaid; wherefore the defendant did then and there detain the said carriage, as he lawfully might for the cause aforesaid; whish is the same detention in the said declaration above supposed. And this the defendant is ready to verify; whereupon he prays judgment, etc. By a little alteration, the above form may be adapted to other cases of lien, as those of warehousemen, innkeepers, attorneys, etc. No. 173. Plea that the property was held by defendant as a pledge.^ {As in No. 171, ante, to the asterisk and then proceed:) that the plaintiff, be- fore the said time when, etc., to wit, on, etc., in etc., delivered to the defend- ant the said goods and chattels in the said declaration mentioned, as a pledge to be by him kept until the plaintiff should pay to the defendant the sum of dollars, which the plaintiff then owed to him, the defendant: And the said sum of money remaining unpaid, the defendant, at the said time when, etc., there detained the said goods and chattels, as such pledge as 'Jac&son V. iJo&son, 4 Scam. 411; '^ Amos v. Sinnott, 4 Scam. 440; Parker v. Walrod, 16 Wend. 517; Baker v, Fales, 16 Mass. 155; Com. Stephens v. Frazier, 2 B. Mon. (Ky.) Dig., Replevin, A. 250; 318 EEPLEVIN. aforesaid, as he lawfully might do, for the cause aforesaid; which is the same detention in the said declaration above supposed. And this the de- fendant is ready to verify; whei-ef ore he prays judgment, etc. Where goods or choses in action have been pledged to secure the payment of a debt, the owner, before he can have the right to resume possession thereof, must pay the debt, or at least make a sufficient tender.' No. 174- Avotcry or cognizance for rent. {First plea, non cepit, No. 164, ante; second plea, property in the defend- ant, No. 167, ante, etc.) And the defendant well avows {or, in a cognizance, " as bailiff of E. F. well acknowledges") the taking of said goods and chat- tels in the said declaration mentioned, in the said dwelling house in which, etc., and justly, etc., becavise he says, that the plaintiff (or one " G. H.") for a long time, to wit, for the space of , next before and ending on, etc.. and fi'om thence until and at the said time when, etc., held and enjoyed the said dwelling house in which, etc., with the appurte- nances, as tenant thereof to the defendant {or " the said E. F."), by virtue of a certain demise thereof to him, the plaintiff {or " the said G. H."), there- for made, at and under a certain yearly rent of dollars, payable, etc., in every year, by even and equal portions; and because the sum of dol- lars of the rent aforesaid, for the space of , ending as aforesaid, on, etc., and from thence until and at the said time when, etc., was due and in arrear from the plaintiff to the defendant {or " the said E. F.," in a cogni- zance), he, the defendant, well avows {or, in a cognizance, " as bailiff of the said E. F. acknowledges") the taking of the said goods and chattels, in the said dwelling house in which, etc., and justly, etc, as for and in the name of a distress for the said rent so due and in arrear to the defendant {or " the said E. F.") as aforesaid, and which still remains in arrear and unpaid. And this the defendant is ready to verify; wherefore he prays judgment, etc. 2 No. 175. Plea in bar to an avoivry or cognizance for rent — Traverse of the demise. {Similiter to non cepit, as ante. No. 10.) And the plaintiff, as to the said avowry {or "cognizance") of the defendant, says that the defendant, by reason of anything by him in his said avowry {or "cognizance") alleged, ought not to avow {or "as bailiff to the said E. F. to acknowledge") the taking of the said goods and chattels, in the said place in which, etc., and justly, etc., because he says, (*) that he, the plaintiff, {or "the said G. H.") did not hold or enjoy the said dwelling-house in which, etc., with the ap- purtenances, as tenant thereof to the defendant, {or " the said E. F.,") under ^Henry v. Eddy, 34 111. 508. Kranse v. Curtis, 73 111. 450; Lindley ''Morris on Replevin, 239; see v. Miller, 67 111. 344. EEPLEVIN. 319 the said supposed demise thereof in the said avowry (or " cognizance ") men- tioned, in manner and form as the defendant has above in his said avowry (o?' " cognizance '") in tiiat behalf alleged : And tliis tlie plaintiff prays may be inquired of by the country, etc.* Under the issue non demisit, or " no rent in arrear," in replevin, the plaintiff may show that at the time he executed the lease he was owner of the land himself, but was induced to sign the lease by fraud and misrepresentation of the de- fendant.' No. 176. Plea in bar — to an avowry or cognizance for rent—" no rent in ari^ear." (As in the last precedent, to the asterisk, and then proceed:) that no part of the said rent in the said avowry {or " cognizance ") mentioned, at the said time when, etc., w^as in arrear from the plaintiff to the defendant, {or "the said E.F.,") in manner and form as the defendant has in liLs said avowry {or "cognizance") in that behalf alleged: And this the plamtiff prays may be inquu-ed of by the country, etc^ The plea of " no rent in arrear " admits the demise as well as the title of the defendant as laid in the avowry or cogni- zance.* In replevin the issue is upon the right of possession at the commencement of the suit. And although, under the statute, the court will not deprive the plaintiff of actual pos- session, where he has, since the commencement of the suit, ac- quired a right to it, there is no rule by which he may have judgment for a return, upon, the strength of an after-acquired lien.* For other pleas, and for demurrers, see the forms in Defenses to an Action, and Assumpsit, ante. Judgment for plaintiff. — Section 23 of the statute provides that "if judgment is given for the plaintiff in replevin, he shall recover damages for the detention of the propert}^ while the same was wrongfully detained by the defendant.'' * ' Morris Rep. 240. ^ Ator y. Rix, 21 lU, App. 309; ^Robins v. Kichen, 8 Watts 390. see Hunter v. Whitfield, 89 III. 229; ^Morris on Eeplevin, 241. 3Iead v. Thompson, 78 111. 62; Wet- * Alexander v. Harris, 4 Cranch zelx. Mayers, 91111. 497; Prettyman 299; Hill v. Miller, 5 S. & R. 355: v. Vnland, 77 lU. 206. Williayns v. Smith, 10 S. & R. 202; ^See King v. Ramsay, 13 111. 619; Bloomer v. Juhel, 8 Wend. 448. Matson v. Hanisch, 5 Bradw. 102. 320 EEPLEVIX. Judgment for defendant — Retorno habendo. — Section 22 of the statute provides that "if the plaintiff in an action of re- plevin fails to prosecute his suit with effect, or suffers a non- suit or discontinuance, or if the right of property is adjudged against him, judgment shall be given for a return of the prop- erty and damages for the use thereof from the time it was taken until a return thereof shall be made, unless the plaintiff shall, in the meantime, have become entitled to the possession of the property, when judgment may be given against him for costs and such damage as the defendant shall have sustained; or if the property was held for the payment of any money, the judgment may be in the alternative that the plaintiff pay the amount for which the same was rightfully held, with proper, damages, within a given time, or make return of the property." ' A judgment in replevin is binding only on the parties and their privies,^ but is not binding upon a third person in whom the defendant may plead property." When, in a replevin suit, a return of the property is awarded, the plaintiff may return a part of the goods, provided they are separable from and in no way dependent upon the others for use or value, and if they are in the same condition as when taken, the defendant will be bound to receive them. Such a return will be a defense pro tanto to a suit on the bond.* » See Mc Arthur v. Howett, 72 111. ^Edwards v. McCurdy, 13 111. 496. 358; Lill v. Stookey, 72 111. 495; Sea- ^Ibid. bury V. Boss, 69 111. 538. * Edwin v. Cox, 61 lU. App. 567. CHAPTER X. TRESPASS. Trespass, in its most extensive sense, means any transgression or offense against the person or property of another; and there- fore all actions for such transgressions or offenses, though variously named, are, in fact, actions of trespass; but technic- ally trespass signifies a wrong committed with violence. At common law, where the act is willful and the injury im- mediate, trespass is the only remedy. But where the act is not willful, but the result of negligence, either trespass or case will lie, at the option of the plaintiff, even though the injury may be immediate.' A familiar example of trespass may be found in an assault and battery, or a carrying away of goods, or a forcible entry into a house, or upon lands, breaking open a door, or tearing down a fence. Such an act would be, in law, a trespass vi et ar?nis, or, in the English phrase now used in pleadings, a tres- pass with force and arms. Early in the history of the law, a very slight degree of violence was sufficient to constitute this offense; and soon afterwards the courts held that it might be committed in some cases without any actual force whatever, implying by construction the force necessary to make it a tres- pass vi et armis, if the act was unlawful. Thus, for example, a peaceable entry into a house or land, with intent to take pos- session and oust the true owner, was regarded as a trespass vi et armis. And as there grew up a large and very important class of trespasses, in which there was neither actual nor con- structive force, and to which the law of trespass with force and arms could not be made applicable by any construction, writs were devised whereby remedies might be given for such ^Moreton v. Hardern, 4 B. & C. 223; 3 Stephen's N. P. 2629. 21 (321) 322 TEESPASS. wrongs. These writs were called, in law Latin, Irevia de transgressione super casum, and the form of action which grew out of the use of these writs is now called trespass on the case. It is often a matter of importance, as well as of great diffi- culty, to determine whether the action, by which redress is sought for certain injuries, should be trespass, or trespass on the case; for if the plaintiff mistakes his form of action, he will meet with a nonsuit, and be subjected to costs. In some of the states of the Union, however, among others Illinois, the distinction between these actions has been abolished by statute, while in others the rigor of the distinction has been taken away or modified. Trespass lies when the injury complained of is itself the wrong done by the tlefendant; while trespass on the case lies when the injury was consequential upon the wrong done, and flowed from it indirectly. For example, trespass on the case lies for an injury sustained by the plaintiff from the defend- ant's sale to him of unwholesome meat, or wine, especially where it was the business of the defendant to vend these things. So, for an injury caused by the want of skill of any person in the exercise of his profession, as a physician or attorney. There are many very nice and subtle distinctions in the laAv of trespass. It is certain that a man may begin by doing a right thing in a right way, and then so change his course as to do a wrong thing, or a right thing in a wrong way. In many of these cases, such person thus subsequently trespassing is re- garded by the law as a trespasser ab iriitio, or as having been a trespasser through the whole of his conduct. Thus, if in the execution of legal process, an officer does something which is distinctly illegal, the law considers that he began to act with intent to do an illegal thing, and that all of his conduct was tainted by this intention, and was therefore illegal. Many cases have turned, and much argument has been ex- pended, upon this distinction. It is very doubtful whether any man can be made a trespasser ahinitiohyR subsequent wrong- ful act, unless he did the wrong while in the exercise of a strictly legal right, which the injured party had no right to resist. The rule seems to be confined, b}^ the best authori- ties, to the cases of an officer of the law acting under a legal TKESPASS. 323 warrant, and a guest of an inn. It is extended to the latter, because a licensed innkeeper, being bound by law to receive a guest, is then protected by the rule that if the guest, thus exercising his positive right of entry peaceably and without offense, while in the house does a wrong to the innkeeper, the offender shall be held to have entered the house for that pur- pose, and therefore to be a trespasser from his entrance. The Illinois Practice Act, in force July 1, 18T2, abolishes the distinction between the actions of trespass and trespass on the case; and provides that in all cases where trespass or tres- pass on the case was theretofore the appropriate form of action, either of those forms may be used, at the option of the plaintiff.' The subject of trespass will be further considered under the following heads : 1st, Injuries to the person; ^d^ Injuries to personal property ; 3d, Injuries to real property. I. INJURIES TO THE PERSON. Trespass is the proper remedy for an assault and battery, wounding, imprisonment and the like; and it also lies for an injury to the relative rights, wiien occasioned by force, as for beating, wounding or imprisoning a wife or servant, by which the plaintiff has sustained a loss," though the damage, the loss of service, etc., were consequential. It is the only remedy for a menace to the plaintiff, attended with consequent damage,' and for an illegal assault, battery, wounding, or imprisonment, when not under color of process.* It lies for an assault with an attempt to commit a battery; * and also when the battery, imprisonment, etc., were in the first instance lawful, but the party, by an unnecessary deo-ree of violence, became a trespasser ah initio!' 'Rev. Stat. (1893), 1074; 2 Starr & ^Schneider v. McLean, 36 Baib. Curtis 1787; Rev. Stat. (1895), 1158; (N. Y.) 495; 1 Chit. PI. 167. see Qay v. DeWerff, 17 111. App. 417; ^3 Penn. 176. Blalock V. Randall, 76 111. 224; Krug ^ 1 Chit. PI. (11 Am. Ed.), 167:Peose V. Ward, 77 lU. 603: Barker v. Koo- v. Burt, 3 Day, 485; Elliott v. Broicn, zier, 80 IlL 205; Kimball v. Miller, 2 Wend. 497; Hannen v. Edes, 15 54 111. App. 665. Mass. 347: Bennett v. Apjjleton, 25 M Chit. PI. (11 Ed.) 167. Wend. 371; Boles v. Pinkerton, 7 33 Black Com. 120; 1 Chit. PI. (11 Dana 453; Smith v. Yocum, 62 lU. Ed.), 167. 354. 324: TKESPASS In the case of an assault and battery, both parties may be guilty of a breach of the peace, and may be indicted; but a civil action can not be brought by each against the other. And although the defendant may have been the aggressor, yet if the plaintiff not only used more force than was necessary for self-defense, but unnecessarily abused the defendant, he can not recover damages, but must pay damages.* Willfulness or intention on the part of the defendant to do an injury to the person of plaintiff is essential to the establishment of liability in an action of trespass for an assault and battery.^ Trespass lies for criminal conversation;' and the right to sue is not defeated by the death of the wife before the action is brought.* It may be maintained by a father for a forcible injury to his son;* and it lies for seducing away a wife,"* or servant,' or for debauching the latter,* force being implied, and the wafe and servant being considered as having no power to consent; and a count for beating the plaintiff's servant, j9t^r q'uod servitium amisit, may be joined with other counts in trespass;' and though it has been usual to declare in case for debauching a daughter, it is now considered to be preferable to declare in trespass.'" Trespass will lie against a plaintiff suing out, or a magistrate issuing, void process, although not maliciously." If a justice of the peace officiously, and without any complaint on oath, or personal knowledge, issues his warrant to apprehend a person,'' or issues process in a cause where he has not jurisdiction, his proceedings are void, and he becomes a trespasser.'^ Where a cajnas has been issued by a justice of the peace, ^Elliott T. Broicn, 2 Wend. 497; ^Bac. Abr. Trespass C. L.; Beseler but see Dole v. Erskine, 35 N. H. 503. v. Stephani, 71 111. 400. ^ Razor v. Kiiisey, 55 111. App. 605; « 1 Chit. PI. (11 Am. Ed.), 167. In re Mtillin, 118 111. 551. ^^ Akerley v. Haines, 2 Caine 292; 3 Yundt V. Hartrunft, 41 111. 9; 2 Aiken 359; 2 M. & Sel. 436; 1 Chit. Loice V. Massey, 63 111. 47. PI. (11 Am, Ed.), 168. '^ Yundt V. Hartrunft, 41 111. 9. ^^ Hayden v. Shed, 11 Mass. 500; ^Hammer v. Pierce, 5 Harr. (Del.) Albeex. Ward, 8 Mass. 79. Yi\^ ''^ Flack V. Harrington, Breese 213. ^ Yundt V. Hartrunft. 41 III. 9; ^^ Hidl v. Blaisdell, 1 Scam. 332; see Lowex. Massey. 62 111. 47. see Moore v. Watts, Breese 43 n.; ^ Weedon v. Timbrell, 5 Term. 361; 3Iiller v. White, 80 111. 580; Wilmer- 1 Mod. 81. ton V. Sample, 42 111. App. 254. TEESPASS. 325 without a sufficient oath, the person who has sued out the writ is not answerable in trespass vi et armis, the magistrate being the proper person to pass upon the sufficiency of the oath; nor would the magistrate be liable in tresjmss, if he had jurisdiction to issue the process.' Direct and immediate force, employed by one person against another without permission, with malice, constitutes a tres- pass, however slight the injury produced; but it is otherwise if force is used with permission.* A person who directs or in- vites the commission of a trespass, is guilty as a principal, and, w^hen sued for the act, can not be permitted to show that the trespass would have been committed, without his interfer- ence,^ but one who approves of a trespass after it has been committed, is not in law a trespasser unless it was committed in his name or for his use." "Where the defendant drove his carriage against the carriage of the plaintiff, on the public highway, by means whereof the plaintiff was thrown out and injured, it was held that the ac- tion for the injury to the plaintiff's person should be in tres- pass.^ An action of trespass will lie, in Illinois, against a steamboat, for an assault and battery committed by the mate or other officer of the boat on the person of a passenger, while such boat is navigating the rivers within or bordering upon the state.^ "Where a sheriff, in order to arrest a debtor on execution, breaks open the outer door of his dwelling-house, the sheriff and those w^ho aided in so doing are trespassers, though they act by command of the sheriff.^ Persons summoned by an offi- 1 Outlaw V. Davia, 27 III. 467; v. Block, 39 111. App. 564; McVeagh Blalockv. Randall, 76 111. 224: Bas- v, Baily, 29 111. App. 614; Ciidahy sett V. Bratton, 86 111. 152; Gay v. v. Powell, 35 111. App. 31. DeWerff, 17 Brad. 417; Loicrey v. * Grundy. Van Vleck, 69 III. 478; Hately, 30 111. App. 297; Wilmerton Reed v. Rich, 49 111. App. 262. V. Sample, 42 111. App. 254. ^ Burdick v. Worrall, 4 Barb. 596; "^Cadwell v. Farrell, 28 lU. 438; 4 Barb. 596; seel Chit. PI. (UAm. Harrison v. Ely, 120 111. 83; Atcld- Ed.), 128. son V. Didlam, 16 111. App. 43. ^ Loy v. Aubrey, 28 III. 413. 3 Coats V. Darby, 2 Comst. 517; ' Hooker v. Smith, 19 Vt. 153; see BeU V. Miller, 5 Ohio 251; see Sund 1 Chit. PI. (11 Am. Ed.), 185. 323 TRESPASS. cer to assist in the execution of a legal process, are justifiable in their acts to the same extent that the officer Avoukl be/ A private individual can not arrest a person on a mere sus- picion that he has been guilty of a crime; ^ but if a crime has actually been committed, and the person accused is guilty, and there is danger of his escape, a private individual will be jus- tified in making or causing the arrest of such accused person,'* Where there is well grounded suspicion that a person has committed a crime, and there is danger of an escape, an officer may, in his own bailiwick, arrest the suspected person, with- out a warrant/ If a person enters the premises of another, and is requested to depart, but refuses so to do, the latter may eject the intruder, without incurring a liability as a trespasser, provided he uses no more force than is necessary for that pur- pose/ Where a railroad conductor forcibly expels a passenger from a train, between the usual stopping places on the road, because the passenger refuses to pay his fare, the railroad company will be liable in trespass/ At common law, actions for inju- ries to the absolute rights of the person, as for assaults, bat- teries, wounding, injuries to the health, liberty and reputa- tion, could only be brought in the name of the person immediately injured, and if he died the remedy determined; or if the person who committed the injury died the suit like- wise abated.' In Illinois it is provided by statute that actions for injuries to the person (except slander and libel) shall sur- vive." At common law, for injuries to the person or property of the wife, committed hefore marriage, where the cause of action ^ Payne v. Green, 10 S. & M. 507; Phillips v. Springfield, 39 111. 83; see Elder v. Morrison, 10 Wend. By. Co. v. Gastka, 128 III. Q\3. 128; Oystead v. Shed, 12 Mass. 506. « Ry. Co. v. Peacock, 48 111. 253; •^ Kindred V. Stitt.51 111. 401; Dodds R. R. Co. v. Latimer, 128 111. 163. V. Board, 43 111. 95; Umd v. Block, ' 1 Chit. PI. 60-68; Reed v. R. R. 39 III. App. 553. Co., 18 111. 403; Yundt v. Hart- Ud.;but see 3 Chit. PI. 1081; 2 ran/^41111. 9. Swan's Pr. 780. » j gtarr & Curtis An. Stat. 247; ■^Id.;l Chit. Crim. Law 21; see 4 Rev. Stat. (1893) 129; Rev. Stat. Bla. Com. 289; 1 Hale's P. C. 587. (1895) 129; see R. R. Co. v. aCo7i- 5 Woodman v. Howell, 45 111. 367; nor, 19 111. App. 591. TRESPASS. 327 would survive to the wife, or for injuries to the 2y^Pson of the wife darin'j coverture, by battery, slander, et3., the husband and wife must join in the action; and if slie dies before judg- ment therein it will abate.' But if, after judgment, the wife dies, the judgment survives to the husband.^ Actions for torts committed by a woman before her marriage, or for torts com- mitted by the wife during coverture, as for an assault, slander, etc., must be brought against the husband and wife jointly. In trespass against husband and wife for her tort before cover- ture, or a wrong committed by her alone during coverture, if she dies before judgment, the suit will abate; but if the hus- band dies, or becomes bankrupt, her liability will continue.* In Illinois, by virtue of the statute of 1861, a married woman may sue alone for personal injuries.* II. INJURIES TO PERSONAL PROPERTY. The action of trespass lies either for an unlawful taking of a personal chattel, or for an injury to such chattel while in the possession of the general owner, or of a person having a spe- cial property in it, as a bailee.* For most unlawful takings this action is a concurrent remedy with trover; ° and it is held that trespass for taking goods may be sustained by proof that the defendant unlawfully exercised authority over them, against the will and to the exclusion of the owner,' althouo>h there was no manual taking or removal of the goods.^ Tres- pass lies against an officer who takes the goods of the owner under an execution or attachment against a third person.' The taking of goods by an officer, as such, but without au- ' 1 Chit. PI. (11 Am. Ed.) 67, 73. ■> Dexter v. Cole, 6 Wis. 319. ^StrooiJ V. Sicarts, 12 S. & R. 76. ^Miller v. Baker, 1 Met. 27. 3 1 Chit. PI. (11 Am. Ed.) 92, 93. ^ Gauch v. Mayer, 27 111. 134; *Rev. Stat. (1895) 855; Chestnut v. Markley v. Rand, 12 Cal. 275; Nagle Chestnut, 77 111. 346; City v. Mc- v. Mullison, 34 Penn. 48; Trieber v. Graw, 75 111. 566. Blocher, 10 Md. 14; Hesing v. Mc- = 1 Chit. P. (11 Am. Ed.), 168, 171; Closkey, 37 111. 341; 1 Chit. PI. (11 Wright v. Ramscot, 1 Saund. 84; Am. Ed.) 185; Loehe v. Duncan, 53 Brou-nv.Folu'ell,dlia\st.5m;Gibbs 111. App. 373; llg v. Biirhank. 59 V. C/iase, 10 Mass. 130; see Franken- 111. App. 291; WinclmiUer v. Chap- thai v. Camp. 55 111. 169. man, 38 III. App. 276; Pike v. Col- n Chit. P. (11 Am. Ed.) 171. vin, 67 111. 227. 32S TEESPASS. thority of law, is a trespass.' And where an officer, under process of law, sells personal property before or after the time prescribed by law/ or sells the entire property in goods owned by two jointly under an execution against one of them,* or in any other manner abuses his legal authority he becomes a trespasser ab initio.* And an officer is liable in trespass if he seizes goods under an execution and advertises them for sale, but neglects to sell them,* If a distress warrant is executed in the night time it is a trespass.® The statute of Illinois,' in force July 1, 1872, provides, that " if any officer, by virtue of any execution or other process, or any other person, by any right of distress, shall take or seize any of the articles of property exempted by the stat- ute from levy and sale, such officer or person shall be liable to the party injured for double the value of the property illegally taken or seized, to be recovered by action of trespass, with costs." This provision is similar to that contained in the act of February 22, 1861.* The defendant in execution, in such case, may proceed against the officer who seizes his property exempted by the statute, either for double the value, or the sim- ple value of the property seized.' If he declares in the com- mon form of the action of trespass, without any reference to 1 Stewart v. Wells, 6 Barb. 19. v. TJwrnburgh, 10 Cal. 189; 3Iel- ^ Smith V. Gates, 21 Pick. 55; ri7Ze v. 5ro?CTi. 15 Mass. 82; see Chit. Pierce v. Benjamin, 14 Pick. 356; PI. 179, 185; Hesing v. McCloskey, Purrington v. Loving, 7 Mass. 388; 37 111. 341. Carnrick v. Myers, 14 Barb. 9; Vail ^ Bond v. Wilder, 16 Vt. 393; V, Lewis, 4 Johns. 450; Barley v. Freeman v. Smith, 80 Penn. 264. Tipton, 29 Mo. 206; Stetson v. Gold- >> Sherman v. Dutch, 16 111. 283; smith, 30 Ala. 602; Stetson v. Gold- Arch. Land. & Ten. 119. smith, 31 Ala. 649; Emory v. Hap- ' 1 Starr & Curtis 114; Rev. Stat. good, 7 Gray 55; Williamsv. Ives, 25 (1893) 727; Rev. Stat. (1895) 775; see Conn. 568; Carrier v. Esbaiigh, 10 Clinton v . Kidivell, 82 111. 427; Race Pa. St. 239. v. Oldridge, 90 111. 250. 3 Smyth V, Tankersley, 20 Ala. 212; » Gross' Stat. 584. Markley v. Rand, 12 Cal. 275. » Cornelia v. Ellis, 11 III. 584; *Jarratt v. Gwathmey, 5 Blackf. Amend v. 31urphy, G9 111. SdH; Wash- 237; Lear v. 3Iontross, 50 111. 508; burn v. Goodheart, 88 111. 229; Figiie- Brush V. Fowler, 36 111. 53; Sny- ira v. Pyatt, 88 111. 402; Heckle v. dacker v. Bross, 51 111. 357; Perkins Grewe, 125 111. 58. TRESPASS. 329 the statute, he is only entitled to recover simple damages for the trespass; if he claims the penalty, he should declare spe- cially on the statute. The statute only gives the penalty against the officer levying the execution; the plaintiff in the execution can not be made a party to the suit.' The interest of a tenant in common in personal property stands upon the same footing in respect to exemption laws as like interests in other property, where the possession as well as the title is several." Trespass lies for any immediate injury to personal property, occasioned by actual or implied force, though the wrongdoer may not take away or dispose of the property; as, for shoot- ing or beating a dog, or other live animals; or for hunting or chasing horses, cattle, etc.^ If, however, a person is injured by the dog of another, or the peace and quiet of his family are disturbed by it, and there is no other way of preventing it, he may kill the dog without becoming liable." So a person is justifiable in killing an enraged bull in the necessary defense of himself or of his family.* It is not in general necessary, in order to maintain this action, that the injurious act should have been done with a wrong- ful intent.' It is sufficient that the act was committed with- out justifiable cause, though accidentally or by mistake.' But in some cases, as in actions against public agents, the intent may be frequently material in determining the question of liability.® And when a sheriff, after a secret act of bank- ruptcy committed by A., takes his goods under an execution against him, the sheriff can not be sued by the assignees in ' Pacev. Vmighv,! Gilm. 30; see * Brill v. Flagler, 23 Wend. 354; Bingham v. Maxcy, 15 111. 290; Leonard v. Wilkins, 9 Johns. 233; Camphell v. Conover, 26 111. 64; Ki7ig v. Kline, 6 Barr. 818; Spray v. Waldo V. Gray, 14 111. 184. Amerman, 66 111. 309. •^ Heckler v. Grewe, 125 111. 58. * Russell v, Barrow, 7 Porter 106. 3 3 Bla. Com. 153; Wood v. LaRue, " 2 Hill on Torts 74; 1 (Jliit. PI. 130, 9 Mich. 158; Amick v. O'Hara, 6 166; Wat. on Tres. §14 et seq. Blackf. 258; Cantrell v. Adderholt, ' 2 Hill on Torts 74; Cafe v. Gate, 28 Geo. 239; Roby v. Reed, 39 N. H. 44 N. H. 211; Dexter v. Cole, 6 Wis. iQU Painter v. Baker, 16 111. 103; 319; see Paxtonx. Buyer, 67111.1 o2. Brent v. Kimball, 60 111. 211; Rey- « 1 Chit. PI. 130, 77; 6 Taunt. 29; nolds V. Phillips, 13 111. App. 557; Hall v. Smith, 2 Bing. 156; M. & Sel. Burt V. Blake, 14 111. App. 334. 27. 330 TRESPASS. trespass, but only in trover, because such officers ought not to be made trespassers by rehition.' "When one sues and recovers in replevin, and gets a return of the property, he can not afterwards sue the same defend- ant and another person in trespass, for the same transaction, no matter whether the damages in replevin have been paid or not.' The validity of a tax may be brought in question by an action of trespass.' The fact that the plaintijBf in an action of trespass kept a bawdy house, is no defense for entering the house and carrying away the goods therefrom." Who may maintain the action. — Possession, actual or con- structive, with property in the chattel, general or qualified, is necessary to sustain trespass.* But a person who has the ab- solute or general property may support this action although he has never had the actual possession, or although he has parted with the possession to a carrier, servant, etc., giving him only a bare authority to carry or keep, etc., not coupled with an interest in the property.^ And executors and admin- istrators may support trespass for an injury to personal prop- erty, committed after the death of tlie testator or intestate, and before the probate or administration was granted; and so may a legatee, after the executor has assented to the legacy, for an injury done before such assent.' The general property in goods and chattels, prima facie, for all civil purposes, draws to it the possession; ^ but if the 1 Chit PI. 130; Smith v. Milles, ^ 1 Chit. PI. 169; Gordon v. Har- 1 Term. 480. per, 7 Term. 13; Bertie v. Beaumont, « Karrv. Barstoiv, 24 111. 580. 16 East 33; Strong v. Adams, 30 Vt. ^ McClaughry v. Gratzenberg, S9 221; Overby v. JJ/cGee, 15 Ark. 459; 111. 117. Thorj) V. Burling, 11 Johns. 285; ■» Love V. Moynehan, 16 111. 277. Tarry v. Brown, 34 Ala. 159. ^ Brainard v. Burton, 5 Vt. 97; ' Bac. Abr., Executor, n. 1; Wil- Samjjson v. Henry, 11 Pick. 382; braham v. Snow, 2 Saund. 47, a; 1 Daniels v. Pond, 21 Pick. 367; Stuy- Chit. PL 169. vcsant \. Tompkins, 9 Johns. 61; ^ Bird x. Clark, ^'Da.y 2T2; BucJc- Hoytv. Geiston, 13 Johns. 141; Gel- ley v. Dolbear, "7 Conn. 235; Gauche \\ ston V. Schenck, 13 Johns. 561; Mayer, 211 III lU; Walcott v. Pome- Clark V. Carleton, 1 N. H. 110; Root roy, 2 Pick. 121; Ayer v. Bartlett, 9 V. Chandler, 10 Wend. 110; Hume v. Pick. 156; Howe v. Keeler, 27 Conn. Tufts, 6 Blaekf. 136; Cannon v. 538. Kinney, 3 Scam. 10; see Craig v. » Gilbreth, 47 Maine 416. TRESPASS. 331 general owner parts with his possession, and the bailee, at the time wlien the injury is committed, has the exclusive rioht to use the property, the inference of possession is rebutted, and the right of possession being in reversion, the general owner can not support trespass.' If, however, property is loaned for an indefinite time, the owner may maintain the ac- tion against a person who takes it tortiously.'' Possession of personal property is evidence of ownership, and the possessor may recover in trespass against any person who may take it fi'om him, unless such person has a para- mount right to the possession of such property.^ Where standing crops are sold, the possession is constructively in the purchaser until it is time to harvest them, for the law does not require him to take manual possession of them until that time/ And in such case the purchaser is not only entitled to a reason- able time after the crop matures, to gather it, but before the vendor can rightfully turn his cattle into the field he must give reasonable notice to the purchaser.' An officer has, by virtue of a seizure on execution or attach- ment, sufficient property in the goods seized to maintain tres- pass;" but the plaintiff in execution or attachment, or the officer's custodian or receiptor, has not.' The possession of property levied upon, in the hands of a custodian, is the pos- session of the officer so placing it, and he may maintain tres- pass against one who removes the same.* 1 Putnam v. Wytey, 8 Johns. 432; 230; Tarry v. Broicn, 84 Ala. 159; Van Bruritv. ScJienck, 11 Johns. SS5; Hendricks v. Decker, So Barb. 298. Buckley v. Dolbear, 7 Conn. 235; * Bull v. Griswold, 19 111. 631. Soper V. Sumner, 5 Vt. 274; Hart v. * Ogden v. Lucas, 48 111. 492. Hyde, 5 Vt. 328; Cannon v. Kinney, ^ Brownell v. Manchester, 1 Pick. 3 Scam. 10; Gay v. Smith, 38 N. H. 232; Bond v. Padelford, 13 Mass. 171; Walker v. Wilkerson, So Ala. 3U; Boot v. Chandler. 10 Wend. UO; 725; 1 Chit. PI. 169. Broiniing v. Skillman, 4 Zabr. (N. 2 Cannon v. Kinney, 3 Scam. 10. J.) 351; Btwt v. Blake, 14 Bradw. 3 Gilson V. Wood, 20 111. 37; Ber- 324; Hanchett v. Ives, 33 111. App. genx. Riggs, 34 111. 173; Williams v. 471. Bridge, 14 La. An. 732; Craig v. Gil- ^ Ladd v. North, 2 Mass. 514; Bond breth, 47 Me. 416; Demick v. Chaj)- v. Padelford, 13 Mass. 394. man, 11 Johns. 132; Cookv.Hoivard, "Hanchett v. Ives, 33 111. App. 471 ; 13 Johns. 275; Potter v. Washburn, Brownell v. 3Ianchester, I Fick. 252 ; 13 Vt. 558; Barker v. Chase, 24 Me. Thorp v. Burling, 11 Jolms. 285. 332 TRESPASS. Against whom it will lie, etc. — This action will lie not only against individuals, but municipal corporations.' So a railroad company is liable if its servants or lessees, or the contractors for the construction of the road, in using or building such road commit a trespass.'' Where several persons commit a trespass they are jointly and severally liable, and the acts, declarations and knowledge of any one of them may be chargeable upon all, if they are shown to have acted in concert." In this action there are no accessories. The person who commands or approves is equally guilty Avith the one who performs the act; * and if the evidence authorizes exemplary damages against one, the other, if he is shown to have acted in concert with him, is liable to the same extent.^ The jury can not discriminate between joint tres- passers and assess damages against them severally, according to the relative enormity of their offenses,* but the jury may find one defendant guilty and acquit the other.'' An attorney, acting in such capacity merely, and in good faith, is not liable in trespass for seizing goods, but if he assists in any other capacity he is equally liable with others participat- ing in an unlawful seizure.* III. INJURIES TO REAL PROPERTY. Trespass is the proper remedy for a wrong done by breaking through an inclosure, and coming into contact with any corpo- » Allen V. City, 23 111. 332; R. R. ^ Hair v. Little, 28 Ala. 236; Clark Co. V. Wright, 5 Ind. 252; 3Iain v. v. Bales, 15 Ark. 452; see Whitney \\ R. R. Co., 12 Rich. (S. C.) 82. Turner, 1 Scam. 253; Grund v. Van " R. R. Co. V. miijjple. 22 111. 105; Vleck, 69 111. 478. see Allen v. City, 23 111. 332; 3Ic Cor- " 2 Hill, Torts, 315; Carney v. Reed, mick V. Tate, 20 111. 334; R. R. Co. v. H Ind. 417; Clark v. Bales, 15 Ark. McCarthey, 20 111. 385; Halliganv. 452; Layman v. Hendrix, 1 Ala. 212; R. R.Co., 15 111.558; Tel. Co. v. but see cases cited contra, 2 Hill on Satterfield. 34 111, App. 386. Torts, 316. ^Ousley V. Hardin, 23 111. 403; ' 2 Hill on Torts, 312; ilfcCarron v. Hair v. Little, 28 Ala. 236; Sartin Q' Connell, 7 Cal. 152; Brady v. Ball, V. Saling, 21 Mo. 387; Sviithwick v, 14 Ind. 317; Terpenyiing v. Gallup, Lord, 7 Jones (N. C.) 64. 8 Clarke (Iowa) 74; Gillerson v. * Whitney v. Turner, 1 Scam. 253; Small, 45 Me. 17. Gilson V. Wood, 20 111. 37; Oleson v. s Arnold v. Phillips, 59 III. App. Vpsahl, 69 111. 273; Beveling v. 213; Hardy v. Keeler, 56 lU. 152. Sheldon, 83 111. 390; Cudahy v. Powell, 35 lU. App. 29. TRESPASS. 333 real hereditament of which another is the owner and in posses- sion, whereby a damage has ensued. There is an ideal fence, extending upwards and downwards indefinitely, which encircles every man's land; the entry, therefore, is breaking through this inclosure, and this generally constitutes by itself a right of action. There must have been some injury, however, to entitle the plaintiff to recover, for a man in a balloon may legally be said to break the close of the plaintiff, when he passes over it as he is wafted by the wind, but as the owner's possession is not by that act incommoded, trespass could not probably be maintained; yet if any part of the machinery should fall upon the land, the aeronaut could not justify an entry to remove it, which proves that the act is not justifiable.' But the slightest injury, as treading down the grass, is sufficient.'' It is not requisite, to maintain the action, that there should have been a wrongful intent in committing the injurious act.^ The action will not lie against firemen who, in an effort to ex- tinguish a tire and save property, forcibly enter a building in the absence of the owner." Where an injury is occasioned by the digging of a ditch on one's own land, whereby water is thrown upon the land of another, the remedy of the latter is case, and not trespass.^ An action for entering upon the close of the plaintiff is sus- tained by proof of a trespass upon any part of the close de- scribed." A person who enters upon land without any claim or color of right or title, and keeps possession, is a trespasser,' Any person may remove a fence erected across a highway, without 'Bouv. Law D. 601; Guille v. v. Tanner, 29 HI. 135; see Pfeiffer Swan, 19 Jolms. 381. v. Grossman, 15 III. 53. '^ Cortelyon v. Van Brunt, 2 Johns. ^ Gibson v. Leonard, 143 111. 182; 357; Steivart v. Doughty, 9 Johns. Cooley on Torts, 313; Proctor v. 113; Clap V. Draper, 4 Mass. 266; Adams, 113 Mass. 376. see 1 Chit. PI. 159; Pfeiffer v. Gross- ^ Winkler v. Meister, 40 III. 349. man, 15 111. 53. ^Procter v. Sullivan, 7 Gray 441; n Chit. PI. 150; Roche y. Light Knou-lesv. Doiv, 20 N. H. 135; see 2 Co., 5 Wis. 55; 2 Greenl. Ev., Sec. Greenl. Ev., Sec. 618, a. 622; Higginson v. York, 5 Mass. 341; ''Noble v. Smith, 2 Jolms. 52. Hayden v. Shed, 11 Mass. 500; Beyer 33J: TRESPASS. being guilty of a trespass.' Where a road, after its survey and location, has not been opened for the use of the public, nor the proper notice given to the owner of the land to re- move his fence, neither the commissioners nor any other per- son can remove the fence without becoming trespassers.'' Where a party, without any search. warrant, or other au- thority of law, enters the rooms of another, searches the same and seizes therein evidences of the commission of crime, the act will be in violation of the civil rights of the latter, and a trespass, for which the former may be held liable in a civil action.'' A railway company has no right to the possession of land for its right of way until the damages for the taking have been assessed and paid, and if it takes possession before such assess- ment and payment, without the owner's consent, it is a tres- passer, and the owner may bring ejectment or trespass, or both, and recover his property, and such damages as he may have sustained by the unlawful act,* The nature of the real property affected must in general be something tangible and fixed, such as a house, a room, an out- house or other building, or land; but the term close is technical, and signifies the interest in the soil, and not merely a close or inclosure in the common acceptation of that word." To maintain an action of trespass to real estate, the plaint- iff must have the actual or constructive possession,® and though the title may come in question, it is not essential that it should.' Any person in the actual possession of land, though without any other title, may maintain the action against a ^Bac. Abr., Highways, E; Marcy Caldwell, 17 III. App. 409; Lodge v. V. Taylor, 19 111. 634. Klein, 115 111. 177; Lee v. Toum, 118 2 Taylor v. Marcy, 25 111. 518; see 111. 304; Wehhy. Sturtevant, 1 Scam. Proctor V. Town, 25 111. 153; Pool v. 181; R. B. Co. v. Woosley. 85 111. Breese, 114 111. 594. 370; 3Iiller v. Kirby. 74 111. 242; By. 3 Gindrat v. People, 138 111. 103. Co. v. Beach, 29 lU. App. 157; Faith *R. R. Co. V. Gates, 120 111. 86. v. Yocum, 51 111. App. 620. ^Stammers v. Dixon, 7 East 207; ' See Dean v. Comstock. 32 111. 173; Harrison v. Parker, 6 East 154. Alderman v. Directors, 91 111. 179; ^Dean v. Comstock, 32 111. 173; Shoup v. Shields, IIQ III 488. 2 Greenl. Sec. 614; see Coal Co, v. TEESPASS. 335 stranger/ but not against a person having concurrent posses- sion." In Illinois, it is held that he may maintain it against the owner of the legal title/ as the owner has no right to make a forcible entry, even against a tenant holding over, or upon any other person wrongfully in possession. The law in such cases (the statute of forcible entry and detainer) has given him a remedy, and he must resort to it.* A trespasser or person in possession as a Avrongdoer can not recover against the owner of the fee, with right of possession.^ The possession, where that is alone relied on, must be an actual and not a constructive possession. ° While it is true that the action can only be maintained for an injury to the possession, yet it is not necessar}^ that such possession should be visible and actual, for unless there is an adverse occupancy, the ownership in fee draws to it the legal possession.^ If the premises are actually occupied, the action must be brought by the person in possession; if they are vacant and unoccupied, the person having the legal title has the right to possession, and must bring the action.* In the latter case, the real owner has the constructive possession.' But if the plaint- ^Inhab.y.Thac7ier,SUetc. (Mass.) ^ Hoofs v. Graham, 23 111. 81; 239; Parish v. Smith, 14 Pick. 297; Frazier v. Carruthers. 44 111. App. Kempton v. Cooh, 4 Pick. 305 61; Harding v. Sandy, 43 111. App. Weimer v. Loicery, 11 Cal. 104; 442; White v. Naerup, 57 111. App. Alhin V. Lord, 39 N. H. 196: Oglesby 114. V. Stodghill, 23 Geo. 590; Dean v. ^Vebb ^r. Sturtevant. 1 Scam. ISl; Comstock, 32 111. 173; Allen v. Taft, Zell v. Beam, 31 Penn. St. 304; 6 Gray 552; Carney v. Reed, 11 Ind. Lame v. Gaskins, 5 Cal. 164; see 417; Wiggitis v. Chance, 54 111. 175. Winkler v. Meister, 40 111. 349. 2/n7ia&. V. 27iac7i€r, 3Metc.(Mass.) "'Barber v. Trustees, 51 111.396; 239. see Wells v. Howell, 19 Johns. 385; ^ Smith V. Price, 42 111. 399; B. B. Hunnewell v. Hobart, 42 Me. 565. Co. V. Cobb, 68 111. 53. ^ Dean v. Comstock, 32 111. 173 *Faru'ell v. Warren, 51 111. 467; Halligan v. By. Co., 15 111. 560 Beeder x. Purdy, 41 111. 279; Page v. Wickham v. Freeman, 12 Jones 183 DePuy, 40 111. 506; Beeder v. Purdy, Austin v. Saivyer, 9 Cow. 39; Chat- 48 111. 261. But see Hoots v. Gra- ham v. Brainerd, 11 Conn. 60; Kemj)- ham, 23 111. 81; Okeson v. Patterson, ton v. Cook, 4 Pick. 305; Shepard v. 29 Penn. St. 22; Haskins v. Haskins, Pratt, 15 Pick. 32; Shipmanw Bax- 67 111. 446; Hubner v. Feige, 90 111. ter, 21 Ala. 456. 208. ^Cook V. Foster, 2 Gilm. 652; 336 TRESPASS. iff fails to show paramount title, or possession, at the time the injuries were committed, he can not recover.' A tenant at sufferance can not, by the common law, have trespass quare clausumf regit against his landlord,' and a lessor can not maintain trespass against a stranger while there is a tenant in possession.* Trespass being a possessory action, it is not necessary that the title should come in question. But if it does come in question, as under a plea of Uherum tenementum, and the plaint- iff has neither a right to the property nor to the possession, the owner of the fee has the right of entry, and will not be liable in trespass for exercising the right in a peaceable manner.* Where a person who has entered upon land, under a parol agreement for the purchase of the same, cuts trees, and after- wards rescinds the agreement, he is a trespasser.^ Where the owner of land agrees with another that he may sow the land on shares, they may maintain a joint action of trespass against a third person, who cuts and carries aw^ay the crop.** The ow^ner of real estate in the possession of a lessee, other than at will, can not maintain trespass for an injury to his reversionary interest; ' but he can where the lease is at will only.* Trespass will lie, by the owner of real estate, against a person committing waste by permission of the tenant at will." But it will not lie for the reversioner against a person Gauche V. Mayor, 21 1\\.\M\ Olea- * Dean v. Comstoek, 32 111. 173; son V. Edmunds, 2 Sca.m. A'iS; Tur- Wilcox v, Kinzie,'S Scam. 218; Cook penning v. Gallup, 8 Clarke 74; v. Foster, 2 Gilm. 652; Gait v. By. Safford v. Basto, 4 Mich. 406; Hub- Co., 157 111. 132. bell V. Rochester, 8 Cow. 115; Van ^Suffern v. Toivnsend, 9 Johns. Deusen v. Young, 29 Barb. 9; War- 35; Lyford v. Putnam, 35 N. H. 563. ren v. Cochran, 10 Foster 379. ^ Foot v. Colvin, 3 Johns. 216. 1 Rockwell V. Jones, 21 111. 279. "< Lieno v. Ritchie, 8 Pick. 235; Tay- ^ Sampson V.Henry, 13 Pick. 36; lorx. Toirjzsejid, 8 Mass. 411: Wick- Hyatt v . Wood, A Johns. 150; Far- ham \. Freeman, 12 3 o\vas.\SZ; Todd well V. Warren, 51 111. 467. v. Jackson, 2 Dutch. (N. J.) 525. ^Camjibellv. Arnold, IJohns. oil; ^ Starr v. Jackson, 11 Mass. 519; Lienowv. Ritchie, 8 Fick. 235; Sut- Inhab. v. Sprague, 15 Pick. 103; ton V. Westcott, 3 Jones (N. C.) 283; George v. Fisk, 33 N. H. 32. Lyford v. Toothaker, 39 Me. 28. » Daniels v. Pond, 31 Pick. 367. TKESPASS. 337 committing waste under the authority of a tenant in dower/ or for life/ After an entry on a tenant at sufferance, the owner may have trespass quare clausiLtn f regit against him/ but not be- fore.* A person disseized can not, until entry, maintain tres- pass.* An overseer of highways, in an action of trespass against him, can not justify his trespass by showing an order from the commissioners to open a road, where a road or high- way has not been legally laid out.* Since the enactment of the statute of 1874 the rule of the common law, which requires the owner of cattle to keep them on his own land, is in force in Illinois, and he is answerable for their trespasses.^ "Where a township, under the township organ- ization laws, has adopted rules prohibiting cattle from running at large, and there are no regulations requiring fences, the owner of such cattle is liable for injuries occasioned by them in uninclosed fields; * and trespass may be brought to recover .or such injuries, although prohibiting ordinance of the town provides a special remedy.' "Where the owner of domestic animals is guilty of trespass in permitting or allowing such animals to enter his neighbor's close and do damage, he is chargeable with the consequential damages sustained by the plaintiff growing out of such tres- pass to his premises, whether the owner had or had not notice that the animals had a vicious propensity to do the particular act.'° ^Shjattuck^. Gragg, 23 Pick. 88; Beyer v. Tanner, 29 111. 135; Cald- Taylor v. Toumsend, 8 Mass. 411. well v. Evans, 85 111. 170. ^R. R. Co.v. Goodwin, 111 111. "^ Bui pit x. Matthews, U^ 111.345; 273. Selover v. Osgood, 52 III. App. 260; 3 Dorrell v. Johnson, 17 Pick. 263; McKowan v. Harmon, 56 111. App. King v. Baker, 25 Penn. St. 186. 368; Misner v. Lighthall, 13 111. 609; * Rising Y. Stannard, 11 Mass. 2S2; Seelcy v. Peters, 5 Gilm. 130; see 3Iayo V. Fletcher, 14 Pick. 525; Dan- Durham v. Goodwin, 54 111. 469; forth V. Sargcant, 14 Mass. 491. Westgate v. Carr, 43 111. 450; Scott ' Bigelow V. Jones, 10 Pick. 161; v. Buck, 85 111. 334; Ozhurn v. Allen V. Tlmyer, 17 Mass. 299; Blood Adams, 70 111. 291. V. Wood, 1 Met. 528. * Westgate v. Carr, 43 111. 450; ^Dunning v. Mattheios, 16 111. Bedden v . Clark, 16 III 338. 308; Guptail v. Teft, 16 111. 365; ^ Ames v. Carleton, AllW. 2Q\. 22 ' Lee V. Burk, 15 lU. App. 651. 338 TRESPASS. COMMENCEMENT OF THE ACTION. An action of trespass, like most other personal actions at law, is commenced by suing out a summons, or a cajnas ad resjyondendum; and in some cases, security for costs is re- quired. The declaration. — The declaration should state, first, the matter or tkhuj affected; second, the plaintiff's right thereto; third, the injury; and fourth, the damage sustained by the plaintiff.' 1st. The matter or thing affected. — In actions brought for injuries to real property, the quality of the realty, as whether it consists of houses, lands or other corporeal here- ditaments, should be shown.'' In trespass to lands, the term close is proper, although the ground is not inclosed, as it im- ports the exclusive right of possession and interest in the soil.' In actions for injuring or taking away goods and chattels, it is generally necessary to state their quality, quantity or number, and value; * the assigned reason being that a former recovery could not otherwise be pleaded in bar of a second action for the same goods, neither could the defendant prop- erl}^ defend himself." Therefore it is in general insufficient, even after judgment by default or verdict, to allege that the defendant injured or took, etc., " divers goods and chattels " of the plaintiff, without giving any description of them." In trespass, trover and case, less particularity is required than in detinue and replevin, because it is only, in the two latter forms of action that the plaintiff can claim or recover the goods themselves.' In the three former actions, damages only are recoverable, and the specification of quality and quantity in a general way is allowed; as " four horses," " two packs of flax," " two ricks of hay," a " library of books," etc.* > 1 Chit. PI. (11 Am. Ed.) 376. 'M'Cl. 278; Keeher v. Hicker, 11 2 Id.; And. Steph. PL 338. East 576. 3 1 Chit. PI. (11 Am. Ed.) 376; « Pope v. Tilman, 7 Taunt. 643. Stammers v. Dixon, 1 East 204; '' Taylor v. Wells, 2 Saund. 74; 1 Vin. Abr., Fences. Chit. PI. (11 Am. Ed.) 377. ''I Chit. PI. (11 Am. Ed.) 377; ^Beaumont v. Yantz, Breese 26: And. Steph. PI. 337; Taylor w. Wells, Donaghe v. Eondeboush, 4 Munf. 2 Saund. 74. 251; Taylor v. Wells, 2 Saund. 74. TRESPASS. 339 Perhaps less particularity may be required where the grava- men or gist of the action is the breaking and injuring of a house, etc., and the injury to goods is laid chiefly as aggrava- tion; as trespass for breaking, etc., a house, and taking " several keys" belonging to the doors thereof,' or damaging "the goods and chattels therein," and wrenching open and injuring " the doors thereof." * With respect to the quality or species of the goods, the plaintiff is perhaps bound to prove the fact as laid;^ but with regard to the quantity or number and value of the goods, he may prove less than he charges in his declaration, but he can not prove more, although the statement is under a videlicet; as, if the declaration is for " divers, to wit, ten horses," he may show an injury to one horse, but not to eleven horses.* It is therefore prudent to lay the quantity to an extent clearly ade- quate to cover the largest possible amount, but at the same time according to the facts.* 2d. The jplaintiff^s right or interest. — It is laid down as a fundamental rule, in showing title in actions ex delicto^ that against a mere wrong-doer, or person apparently having no color or right, mere possession suffices, and a special state- ment of title is unnecessary.' In trespass, trover, detinue, case or replevin, for injuring or taking away goods, etc., the plaint- iff's right to or interest in the goods, either as absolute owner or as having a limited right therein, is not otherwise described in the declaration than by the averment that they were the goods " of the plainiiff," or that he was " lawfully possessed of them, as of his own property." When the plaintiff has not a possessory right, and his interest in the chattel is reversionary, it must be expressly so described in the declaration, which must then be framed in case.^ ^ Layton v. Grindall, Salk. 643; Breese, 26; DonagJie v. Rondehoush, Taylor v. Wells, 2 Saund. 74. 4 Munf. 251. ^'l Chit. PI. (11 Am. Ed.) 378; *1 Chit. PI. (11 Am. Ed.), 378. Clmviherlain ^r. Greenfield, 3 Wils. « 1 Chit. PI. (11 Am. Ed.) 379; And. 292; And. Steph. PI. 339. Steph. PI. 343; Com. Dig. Plead, c. 'Stephen (2 Ed.), 352; 1 Chit. PI. 39, 41; Tidd (9 Ed.), 443; Taylor v. (11 Am. Ed.) 378. Eastwood, 1 East 212. *See Crispin v. Williamson, 8 M Chit. PL (11 Am. Ed.) 380; Taunt, 107; Beaumont v. Yantz, Pinkney v. Jnhab., 2 Saund. 379, 340 TRESPASS. Upon the same principle, in trespass for a wrong relating to land, or other real property, a special or particular title in the plaintiff need not be shown in the declaration. The averment in describing the trespass, that the close or house, etc., in ref- erence to which it was committed, was the close, etc., " of the plaintiff," or other equivalent allegation, is sufficient; and under it may be given in evidence any title or interest in possession which is adequate to the support of the form of action, under the circumstances of the case.* If no property or interest in the subject-matter of the suit is alleged to have existed or been vested in the plaintiff at the time the injury was committed, the declaration is substantially defective; the objection being the total omission, not the de- fective statement, of a title.'' But the error in the declaration may be cured if the plea admits the plaintiff's property.^ 3d. Statement of the injury. — In the declaration in tres- pass, which lies only for wrongs immediate, and committed with force, the injury is stated without any inducement of the defendant's motive or intent, or of the circumstances under which the injury was committed. The injury should be stated directly and positively, and not by way of recital; and there- fore a declaration charging " for that Avhereas," or " where- fore," the defendant committed the trespass, is bad on special demurrer.* In the statement of the trespasses, the words " with force and arms *' {vi et arinis) should be adopted; and the conclusion of the declaration should be " against the peace," etc. {contra pacem, etc.); " but an omission in either respect is only cause of special demurrer, and is aided by verdict." n. 13; see Kerry. Sharp, 14 Serg. Collier v. Moulton, 7 Johns. Ill; & Rawle 99; Carlisle v. Weston, 1 Cofflnv. Coffln, 2Miiss. SQi; Syme v. Met. (Mass.), 26. * Griffin, 4 Hen. & Munf. 277; see > 1 Chit. PI. (11 Am. Ed.) 380; Cory- Marsteller v. McLean, 7 Cranch 158. ton V. Lithe, 2 Saund. 113, a, n. 1; ^2 Chit. PI. (11 Am. Ed.) 387, 388. Com. Dig. Plead. 3, M. 9; Hite\. "Id.; Stat. 4 & 5 Anne, c. 16, s. 1; Long, 6 Rand. 457. Gross' Stat. 12,13; see Kerr v. Sharp, '^ Pinkney v. Inhab., 2 Saund. 379, 14 Serg. & Rawle, 403; Higgins v. n. 13; Com. Dig. Plead. 3, M. 9. Hayward, 5 Vt. 73; Gardner v. 3 1 Chit. PI. (11 Am. Ed.) 379; 1 Sid. Thomas, 14 Johns. 134; William v. 184. Bogan, 2 McC. (S. C.) 386; Buntin * Horr V. Chapman, 3 Salk. 637; v. Duchane, 1 Blackf. 56. TKESPASS. 841 It is usually sufficient to describe the tortious act or injury generally,' without setting out the particulars of the defend- ant's misconduct. And it will in general suffice that the tort is correctly laid in substance, though the statement is not lit- erally true, provided there is no material misstatement. Thus, when the declaration charged that the defendant struck the plaintiff's cow, etc., whereof she died, it was held, after ver- dict, that there was no fatal variance, although the proof was that the plaintiff was obliged to kill the cow to shorten her misery, in consequence of the defendant's violence.' In an action ex delicto, upon proof of part only of the injury charged, or of one of several injuries laid in the same count, the plaintiff Avill be entitled to recover j?;'6> tanto, provided the part of which is proved affords jper se a sufficient cause of action; for torts are, generally speaking, divisible.^ The statement of the time of committing the injury is sel- dom material; '' and though a time ought to be alleged,^ the injury may be proved to have been committed either on a day anterior or subsequent to that laid in the declaration.^ And it seems an omission to allege a time would be aided even after a judgment by default.^ Where the injury was capable of being committed on sev- eral days, as in trespass to land, etc., it may be described as having been committed on such a day, " and on divers other days and times between that day and the commencement of this suit;" and in such case the first day should be laid ante- rior to the first injurious act, because the plaintiff would not be permitted to give in evidence repeated acts of trespass, un- less committed during the space of time laid in his declaration; though he might recover as to a single trespass committed be- fore the first day.* 1 1 Qiit. PI. (11 Am. Ed.) 391; see « Co. Lit. 283 a; Earle v. Vale, 1 Id. 232. Saund. 24, n. 1 ; White v. Stubhs, 2 2 1 Chit. PL (11 Am. Ed.) 391; Saund. 295, n. 2. Hancock v. Southall, 4 D. & R. 202, ' Higgins v. Higlifield, 13 East 407. 3 1 Chit. PI. (11 Am. Ed.) 292; Pen- » 1 Chit. PI. (Am. Ed.), 393; 1 McC. ton V. Robart, 2 East 438; Hite v. 165; Stra. 1095; Salk. 639; 1 Stark. Blendford, 45 III. 6. 351; Co. Lit. 283; see McConnel v. •» 1 Chit. Pi. (11 Am Ed.) 393. Kihhe, 33 111. 176; Burnham v. Web- « 2 Harr. 1; 5 Taimt. 2; 5 Taunt. 15. ster, 5 Mass. 266. 342 TEESPASS. "Where a particular space of time is assigned by a contin- uando for the torts, it seems to become matter of description, and not a mere formal allegation of time; but the continuando may be waived, and one trespass even before the first da}^ laid may be proved, for a contintiando ought not to place the plaintiff in a worse situation than if one trespass only was laid.' But where the act complained of was single in its nature, as an assault, it would be demurrable to state that it was committed " on divers days and times." ' "YliQ ;place is only material in local actions, as for injuries to real property, etc.; * and as a general rule, it is injudicious to give, when not necessary to do so, a particular local descrip- tion, lest there should be a variance between the declaration and the proof.* 4th. The damages. — The general rale is well settled that the plaintiff can recover no greater damages than are laid in his declaration; nhey should therefore be laid sufficiently high to cover the largest amount that may be shown by the proof. Damages are either general or special. Those which nec- essarily result from the injury are termed general damages, being shown under the ad damnum, or general allegation of damages, at the end of the declaration; for the defendant must be presumed to be aware of the necessary consequences of his conduct, and therefore can not be taken by surprise in the proof of them. Some damages are always presumed to follow from the violation of any right or duty implied by law; and therefore the law will in such cases award nominal dam- ages, if none greater are proved. But where the damages, though the natural consequences of the act complained of, are not the necessary result of it, they are termed sjjecial damages^ ' Chit PI. (11 Am. Ed.), 394; see Wieczosek, 151 111. 579; Sumner v. 2 Id. 847, n.; Gould's PI. cap. 3, Finegan, 15 Mass. 284; Roach v. Sec. 83 et seq. Damron, 2 Humph. 425; Graves v. 2 Id.; English v. Purser, 6 East McKoen, 2 Denio t 39. 395. But see Burgess v. Freelove, 2 * 1 Chit. PI. (11 Am. Ed.), 395; see B. & P. 425: Phillips' Ev. 134; also R. R. Co. v. Wieczosek, 151 111. 579; Benson v. Swift, 2 Mass. 50. Meixsell v. Feezor, 43 111. App. 180. n Chit. PI. (Am. Ed.), 394, 268; '^ Stejjhens x . Sweeney, 2 Gilm. 375; And. Steph. PI. 330; see Reed v. R. Foamier v. Faggott, 3 Scam. 347. R. Co., 18 111. 403; see R. R. Co. v. TRESPASS. S43 which the law does not imply; and therefore, in order to pre- vent a surprise upon the defendant, they must be particularly specified in the declaration, or the plaintiff will not be per- mitted to give evidence of them on the trial.' Measure of damages.— Damages are given as a compensa- tion, recompense, or satisfaction to the plaintiff, for an injury actually received by him from the defendant. They should be precisely commensurate with the injury; neither more nor less; ' and this whether for an injury to his person or estate.'* In actions of trespass for taking personal property, the measure of damages is in general the value of the p.ropertv when taken; * and interest may be allowed from the time of the taking until the trial.^ Tindictive damages. — But wherever the elements of fraud, malice, gross negligence, or oppression mingle in the contro- versy, the law, instead of adhering to the rule of exact com- pensation, adopts a wholly different rule. It permits the jury to give what it terms punitory, vindictive or exemplary dam- ages; in other words, blends together the interest of society and of the aggrieved individual, and gives damages not only to recompense the sufferer, but to punish the offender." In actions for assaults, etc., evidence may be given of the pecuniary condition of the plaintiff and the defendant.^ >2 Greenl, Ev., sec. 254; 1 Chit. *Gilson v. Wood, 20 111. 37; Miller PI. (11 Am. Ed.), 395, 396; 4 Bing. v. Kirby, 74 111. 242. 317; Rindar v. Wadsivorth, 2 East * Bradley v. Geiselman, 23 lU. 494; 114; Armstrong v. Percy, 5 Wend. Hessing v. McCloskey, 37 111. 341. 538; DiekensoHY. Boyle, 17 Pick. 78; « Sedgwick on Damages 39; Grable Baldwin v. R. R. Co., 4 Gray 333; v. Margrave, 3 Scam. 373; McNa- Olmstead v. Burke, 25 111. 86; Sher- mara v. King, 2 Gilm. 432; Sherman man v. Dutch, 16 111. 283. v. Dutch, 16 111. 283; Bull v. Gris- 2 Greenl. Ev,, sec, 253; Co. Lit. wold, 19 111, 631; Bridge Ass'n v. 257, a; 2 Bla. Com. 438; Rocku'ood v. Loomis, 20 111. 237; Footev. Nichols, Allen, 7 Mass. 256; Bussyv. Donald- 28 111. 486; Best v. Allen, 30 111. 30: son, 4 DalL 207; 3 Am. Jur. 257; see Stalling v. Owens, 51 111, 92; Drohn Hessing v. McCloskey, 37 111. 341; v. Brezrer, 77 111. 280. Bridge Ass'n V. Loomis, 20 111. 237. '^ Cochran v. Amnion, 16 111. 316; ^Bridge Ass'n v. Loomis, 20 111. McNamara v. King, 2 Gilm. 432: 237; see Sedgwick on Damages 39; Grable v. Margrave, 3 Scam. 372; R. R. Co. V. Payzant, 87 111. 125; Mullen v. Sjmngetiberg, 112 111. 140. Dearlove v. Herrington, 70 111, 251, 8i4: TRESPASS; Joinder of counts. — In an action of trespass, the plain tiff may join counts for trespass to land, to the person, and to personal property; and each cause showing an independent cause of action, he may recover upon such counts as are sus- tained by proof, although he fails as to the others.' No. 177. For an assault, etc. — Alleging special damage. In the Court. Term, 18—. State of Illinois, ) County of . ^ set. A. B., plaintiff, by E. F., his attorney, complains of C. D., defendant, of a plea of trespass : For that the defendant, on, etc., with force and arms, etc., in the county aforesaid, assaulted the plaintiff, and then and there violently seized and laid hold of him, and pulled and tore large quantities of hair from and off the head of the plaintiff, and then and there, with a certain stick and with his fists, gave and struck the plaintiff a great many violent blows and strokes on divers parts of his body; and also then and there, with great force and violence, shook and pulled about the plaintiff, and threw him down to and upon the ground, and vio^ lently kicked the plaintiff, and gave and struck him a great many other blows and strokes; and also then and there, with great force and violence, tore and damaged the clothes, to wit, one coat, one waistcoat, one pair of trousers, one shirt and one hat, of the plaintiff, of the value of dollars, which he then and there wore : By means of which several premises the plaintiff was then and there greatly hurt, bruised and wounded, and be- came and was sick, sore, lame and disordered, and so remained for a long space of time, to wit, hitherto; during all which time the plaintiff thereby suffered great pain, and was hindered and prevented from performing and transacting his affairs and business by him during that time to be per- formed and transacted; and also thereby the plaintiff was obliged to and did necessarily lay out divers sums of money, amounting to dollars, in and about endeavoring to be healed of the said bruises, wounds, sickness, soreness, lameness and disorder so by the defendant occasioned as afore- said. {Second count, for another assault, etc.) And also for that the defendant on, etc., with force and arms, etc., in the county aforesaid, again assaulted the plaintiff, and then and there again (here set forth the injuries, and the consequent damage, according to the facts, in like manner as in the first count). (Conclusion.) And other wrongs the defendant to the plaintiff then and there did, to the great damage of the plaintiff, and against the peace of the people of this state. Wherefore the plaintiff says that he is injured, and has sustained damage to the amount of dollars, and therefore he brings his suit, etc. >Chit. PI. (11 Am. Ed.) 301; JReed Baker, 19 Pick. 517; Arnold v. v. B. E. Co., 18 111. 403; Bishop v. Maudlin, 6 Blackf. 187. , TEE8PASS« 345 It is best to allege only such acts of trespass as can be proved; an over-statement, unsupported by evidence, is detrimental, and affords ground for ridicule on the part of the defendant's counsel. The allegations should conform as nearly as may be to the facts of each particular case. If there have been several assaults, at different times, for which the plaintiff intends to proceed, there should be a dis- tinct count for each assault; but otherwise it is not necessary, though usual, to insert a count (like the next form) for a com- mon assault, for if the plaintiff proves any part of a special count he will be entitled to a verdict ])ro tanto^ though he fails to prove the residue.' Under the allegation of " other wrongs " {alia enormia), damages and matters which naturally arise from the act com- plained of, or can not with decency be stated, may be given in evidence in aggravation of damages, though not specified in any other part of the declaration. Thus in trespass for breaking and entering a house, the plaintiff may, in aggrava- tion of damages, give in evidence the debauching of his daugh- ter or the battery of his servants, under the general allegation of. alia enormia,^ and yet this matter may be alleged specially; but he can not under that general allegation give in evidence the loss of service, or any other matter which would of itself bear an action. Therefore in trespass quare clausum f regit, the plaintiff would not, under the allegation of alia enormia, be permitted to give evidence of the defendant's taking away a horse, etc.; and in the other cases, the evidence is allowed to be given, not as a substantive ground of action, but merely to show the violence of the defendant's conduct, and give a character to the case.' No. 178. For a eovimon assault. (Commence as in last precedent.) For that the defendant, on, etc., with force and arms, etc., in the county aforesaid, made an assault on the plaintiff, and then and there beat, bruised, wounded and ill-treated him; and other wrongs to the plaintiff then and there did; against the peace of '2 Chit. PI. 851, n. »1 Chit. PI. (11 Am. Ed.), 397; « 1 Chit. PI. (11 Am. Ed.), 897; but see Tiiisley v. Roice, 17 Bradw. 326. see Peake Ev. 87(3 Ed.); 2 Phil. Ev- 1^4. 34:6 TRESPASS. the people of this state, and to the damage of the plaintiff of dollars, and therefore he brings his suit, etc. No. 179." For an assault with a pistol, and wounding, etc. {Commence as in No. 177, ante.) For that the defendant, on, etc., with force and arms, etc., in the county aforesaid, made an assault upon the plaintiff, and shot off a certain pistol, then and there loaded with gunpow- der and leaden bullets, at and against the plaintiff, and thereby then and there shot and wounded the plaintiff in so grievous a manner that his life was despaired of; and by reason of such shooting and wounding the plaintiff then and there became lame, sick and disordered, and so continued for a long time, to wit, from thence hitherto, and was during all that time thereby rendered incapable of following and transacting his affairs and business by him during that time to be done; and also thereby the plaintiff was obliged to and did necessarily lay out divers sums of money, amount- ing to dollars, in and about endeavoring to be cured of the wounds, sickness, lameness and disorder aforesaid, occasioned as aforesaid; and other wrongs the defendant to the plaintiff then and there did, against the peace of the people of this state and to the damage of the plaintiff of dollars, and therefore he brings his suit, etc. A count for a common assault may be inserted, if deemed expedient, concluding the declaration as in No. 177, ante. No. ISO. For riding or driving against the plaintiff . {Commence as in No. 177, ante.) For that the defendant, on, etc., with force and arms, etc., in the county aforesaid, assaulted the plaintiff, and with great force and violence rode (drove) a certain horse {draiving a cer- tain carriage) against, upon and over the plaintiff, and then and there, with the said horse {atid carriage), violently knocked and threw the plaintiff down to and upon the ground there, and grievously hurt, bruised and wounded him {any particular serious injury may be here alleged), and tore and damaged the clothes, to wit, one coat, one waistcoat, one pair of trou- sers, one shirt and one hat of the plaintiff, of the value of dollars, which he then and there wore, and by reason of such hurting, wounding and bruising, the plaintiff then and there became {proceed in like manner as in tlie last precedent to the end. See No. 177, ante). No. 181. By husband and wife against husband arid wife, for a battery of one wife by the other. \2 Chit. PI. 854-] {Title of court, etc.) A. B. and C. D., his wife, complain of E. F. and G. H., his wife, of a plea of trespass; for that the said G. H., on, etc., with force and arms, etc., assaulted the said C. D., then and still being the wife of the said A. B., to wit, at, etc., and then and there beat, bruised, icounded and ill-treated her, so that her life teas then and there greatly despaired of; and other wrongs to the said C. D. then and there did; against the peace, etc., and to the damage of the said A. B. and C. D., his wife, of dol- lars, and therefore they bring their suit, etc. TKESPASS. Sit The acts of trespass are to be described according to the facts. Care must be taken to declare only for the personal injury and suffering of the wife, and not to include any alle- gation of an injury which, in point of law, only affected the husband, and not the wife. In Illinois, the husband need not join as plaintiff in an action for a personal injury to the wife.' No. 182. Common count for a false imprisonment. {Commence as in No. 177, ante.) For that the defendant, on, et(^, with force and arms, etc., in the county aforesaid, made an assault upon the plaintiff, and beat, bruised and ill-treated him, and then and there impris- oned him, and detained him in prison there, without any reasonable or probable cause whatsoever, for the space of hours then next following, contrary to the laws of this state, and against the will of the plaintiff; and other wrongs to the plaintiff then and there did; against the peace of the people of this state, and to the damage of the plaintiff of dollai's, and therefore he brings his suit, etc. No. 183. For an assault etc. , and false imprisonment. {Commence as in No. 177, ante.) For that the defendant, on etc., with force and arms, etc., in the county aforesaid, assaulted the plaintiff, and seized and laid hold of him, and with great violence pulled and dragged him about, and gave and struck the plaintiff a great many violent blows and strokes: and also then and there forced the plaintiff to go from out of a certain dwelling-house, in the city of , in the county aforesaid, into the public street there and compelled him to go in and along divei-s public streets, to a certain police office in the said city; and also then and there imprisoned the plaintiff, and detained him in prison there, without any rea- sonable or probable cause whatsoever, for the space of then next following, contrary to the laws of this state, and against the will of the plaintiff; whereby the plaintiff was then and there not only greatly hurt, bruised and wounded, but was exposed to public disgrace, and injured in his credit and circumstances; and other wi-ongs the defendant to him, the plaintiff, then and there did; against the peace of the people of this state, and to the damage of the plaintiff of dollars, and therefore he brings his suit.^ If deemed expedient, the common count for a false impris- onment, and a count for a common assault, may be inserted, concluding the declaration as in IS^o. 177, ante. iRev. Stat. (1893), 806; Rev. Stat. 2 gg^ Slomer v. People, 25 111. 70; (1895), 855; 1 Starr & Curtis 1269 R. R. Co. V. Dunn, 52 111. 260 Chestnut v. Chestnut, 11 111. 346 Chicago v. McGraw, 75 111. 566. Outlaw V. Davis, 27 111. 467; Don- nelhj V. Harris, 41 lU. 126; Roth v. Smith, 54 111. 431. 34S TKESPASS. ■ In order to sustain an action for a false imprisonment, it is not necessary for the plaintiff to show that the defendant used violence, or laid hands on him, or shut him up in any jail or prison, but it is sufficient to show that the defendant in any manner unlawfully restrained the plaintiff of his liberty, or detained him from going where he wished.' One who has counseled, advised or procured the false im- prisonment of another, is liable as a principal, although he did not participate actively in the commission of the act.* No. IS4. For debauching the plaintiff's daughter and servant. {Commence as in No. 177, ante.) For that the defendant, on, etc., with force and arms, etc., in the county aforesaid, assaulted, debauched and carnally knew one E. B. , then and from thence hitherto being the daughter and servant of the plaintiff; whereby the said E. B. became pregnant and sick with child {proceed as in the form in case No. 34I, post, and conclude). And other wrongs the defendant to the plaintiff then and there did; against the peace of the people of this state, and to the damage of the plamtrff of — — dollars, and therefore he brings his suit, etc. See the form Ko. S4:l, post, and the observations thereunder. The first count may be for trespass in entering the plaint- iff's dwelling-house, and there debauching his daughter, with a second count as above.' No. 185. For criminal conversation. {Commence as in No. 177, ante.) For that the defendant, on, etc., and on divers other days between that day and the day of commencing this suit, with force and arms, etc., in the county aforesaid, assaulted and ill-treated E. B., then and still being the wife of the plaintiff, and then and there debauched and carnally knew her; whereby the plaintiff, from the day first aforesaid hitherto, has lost and been deprived of the comfort, fellowship and aid of his said wife, which he ought to have had, and otherwise might and would have had, in his domestic affairs; and other wrongs the defendant to the plaintiff then and there did; against the peace of the people of this state, and to the damage of the plaintiff of dollars, and therefore he brings tliis suit, etc. See the form No. 34:0, post, and the observations thereunder. ^Hawk V. Ridgway, 33 111. 473; ^ Roth \. Smith, Aim. ZU. see Newton v. LocMin, 77 111. 103; «2 Chit. PI. 856, n. seeBac. Abr.,Tres., D, 3; 2 Bouv Inst. 589; 1 Chit. Prac. 47, 48, TRESPASS. 349 No. 1S6. For taking goods— Common count de bonis asportatis. {Commence as in No. 177, ante.) For that the defendant, on, etc., with force and arms, etc., in the county aforesaid, seized, took and carried {or "drove," or " led " ) away the goods and chattels, to wit, {here describe the property.) of the plaintiff, of the value of dollars, and converted and disposed of the same to his own use; and other wrongs to the plaintiff then and there did; against the peace of the people of this state, and to the damage of the plaintiff of dollars, and therefore he brings his suit, etc. As to the description of the property, and the allegation of the value, and of the plaintiff's right of interest, see the obser- vations under the head of " The Declaration," ante. Where the declaration states a case of trespass de honis aspor- tatis, the wrongful seizure of goods and chattels described, is the gist of the action, the conversion of the goods alleged being mere matter of aggravation/ No. 1S7. For chasing cattle— Alleging special damage. {Commence as in No. 177, ante.) For that the defendant, on, etc., and on divers other days between that day and the commencement of this suit, with force and arms, etc., drove, chased and hurried the cows, oxen and calves, to wit, cows, oxen, and calves, of the plaintiff, of the value of dollars, then depasturing and being in and upon a certain waste or common in the county aforesaid, and then and there chased and drove the said cows, oxen and calves from and off the said common, to divers places to the plaintiff unknown; whereby the plaintiff was not only put to great trouble, and to great expense, amounting in the whole to the sum of dollars, in and about endeavoring to find his said cows, oxen and calves, but also divers thereof, to wit, cows, oxen and calves, of the value of dollars, then and there died; and others thereof to wit, cows, oxen and calves, of the value of dollars, then and there became and were wholly lost to the plaintiff; and the residue of the said cows, oxen and calves then and there became and were greatly damaged and lessened in value; and other wrongs the defendant to the plaintiff then and there did, against the peace of the people of this state, and to the damage of the plaintiff of dollars, and therefore he brings his suit, etc. 2 No. 18S. For chasing a mare, whereby she dropped a dead foal. {Commence as in No. 177, ante.) For that the defendant, on, etc., with force and arms, etc. , in the county aforesaid, drove and chased a certain mare of the plaintiff, of the value of dollars, whereby the said mare , > McGillis V. Bishop, 27 111. App. »2 Chit. PL 858. 53; Taylor V. Co?e, 3 Term 155; Gel- ston V. Hoyt, 3 Wheat. 326. 350 TKESPASS. then and there slipped and dropped a dead foal; by means whereof the said mare was then and there greatly hurt and damaged, and the plaintitf was deprived of the use of the said mare for the space of weeks then next following; and the defendant other wrongs to the plaintiff then and there did; against the peace of the people of this state, and to the damage of tlie plaintiff of dollars, and therefore he brings his suit, etc, No. 1S9. For driving a carriage against the plaintiff's, whereby he ims thrown out and his carriage damaged. {Commence as in No. 177, ante.) For that the defendant, on, etc., with force and arms, etc., in the county aforesaid, drove a certain carriage with great force and violence against a certain carriage of the plaintiff, of the value of dollars, in which last mentioned carriage the plaintiff was then and there riding in and along the highway there, and thereby then and there greatly broke, damaged ahd spoiled the said carriage of the plaintiff; and by means of the premises the plaintiff was then and there thrown with great violence out of his said carriage to and upon the ground; and also by means of the premises the plaintiff was thereupon obhged to expend, and did expend, the sum of dollars, in repairing his said carriage; and also by means of the premises the plaintiff was then and there greatly bruised, hurt, wounded and disordered, and so continued for the space of days then next following, and during all that time was prevented from transacting his, business by him during the said time to be transacted, and was also thereby obliged to expend, and did expend, divers sums of money, amounting to dollars, in tSie cure of his said bruises, hurts, wounds and disorder, occasioned as aforesaid; and the de- fendant other wrongs to the plaintiff then and there did; against the peace of the people of this state, and to the damage of the plaintiff of dollars, and therefor he brings his suit, etc. By statute in Illinois, the owner " of any carriage running upon any turnpike road or public highway, for the convey- ance of passengers," is liable, in an action of trespass, for any injury or damage occasioned by the willful act of the driver/ No. 190. For killing plaintiff's horse. {Commence as in No. 177, ante.) For that the defendant on, etc. , with force and arms, etc., in the county aforesaid, beat, bruised, wounded and ill treated a certain gelding of the plaintiff, of the value of dollars, so that the said gelding languished of the said bruises and wounds then and there given, for the space of days then next following, during which time the plaintiff was thereby obliged to and did lay out divers sums of money, amounting to dollars, in endeavoring to cure the said gelding; ' Rev. Stat. (1893) 1255; Rev. Stat. 277; see Johnson v. Barber, 5 Gilm. (1895) 1345; 2 Starr & Curtis' An 425. Stat. 2175; Tuller v. Voght, 13 111. TRESPASS. 351 and afterward, to wit, on, etc., by reason of the said bruises and wounds, the said gelding there died; and otlier wrongs the defendant to the plaintiff then and there did; against the peace of the people of this state, and to the damage of the plaintiff of dollars, and therefore he brings his suit, etc. No. 191. Declaration for shooting plaintiff's dog. In the Court. State op Illinois, ) ^^ Term, A. D. 18—, County of A. B., the plaintiff, by E. F., his attorney, complains of C. D. . defendant, of a plea of trespass; for that the defendant on, etc., at, etc., with force and arms, etc. , shot off and discharged a certain gun, then and there loaded with gunpowder, and shot at and against a certain dog of the plaintiff, of great value, to wit, of the value of dollars, and thereby and therewith then and there so greatly shot, hurt and wounded the said dog, that by reason thereof the said dog being of the value aforesaid, afterwards, to wit, on the day and year aforesaid, died, to wit, at. etc., aforesaid; and other wrongs to the plaintiff then and there did, against the peace of the people of this state, and to the damage of the plaintiff of dollars ; and therefore he brings suit, etc, ByE. F., Att'y forPrff. No. 192. Against a constable, on the statute,^ for double value, for taking exempted property in execution. {Commence as in No. 177, ante.) For that before and at the time of the issuing of the ^Tit hereinafter mentioned, and from thence imtil and at the time of the committing of the grievances by the defendant as hereinafter mentioned, the plaintiff was the head of a family, and residing with the same, and at the time last mentioned was the owner of two horses, worth not exceeding two hundred and fifty dollars, that is to say, of the value of dollars, and was not the owner of any other horses, or of any oxen, to wit, in the county aforesaid; by reason whereof, and by force of the statute in such case made and provided, the said horses of the plaintiff were then and there exempt from execution; and on, etc., the defendant, then being one of the constables in and for the county aforesaid, not regarding the said statute, with force and arms, etc., there took and seized tlfe said horses of the plaintiff, by virtue of a certain writ of execution before that time, to wit, on, etc., sued forth against the goods and chattels of the plaintiff by one J. K. before one L. M., then one of the justices of the peace in and for the county aforesaid: which said writ was not issued in any action to re- cover the purchase-money for the said horses: Against the peace of the people of this state, and to the great damage of the plaintiff, and against the form of the statute aforesaid.' J Rev. Stat. (1893), 727; Rev. Stat. ^See Cook v. Scoff, 1 Gilm. 33.3; (1895), 775; 1 Starr & Curtis 1114; Pace v. Vaughn, 1 Gilm. CU; Ilccker see Figuera v. Pyatt, 88 111. 403. v. Grewe, 125 111. 58. 352 TKESPASS. (Second count at common law, for taking chattels.) And also for that the defendant, on, etc., with force and arms, etc., in the county aforesaid, seized, took, drove and led away other the goods and chattels, to wit, two other horses, of the plaintiff, of the value of dollars, and converted and disposed of the same to his own use; and other wrongs to the plaintiff then and there did; to the great damage of the plaintiff, and against the peace of the people of this state. {Conchtf>ion.) Wherefore the plaintiff says that he is injured, and has sustained damage to the amovmt of dollars, aud therefore he brings his suit, etc. If the plaintiff declares in the common form of a declaration in trespass, without any reference to the statute, he can only recover simple damages for the trespass. If he desires to claim the penalty, he should declare specially on the statute.^ No. 193. For trespass in dwelling-house, breaking open doors, and seizing goods therein. [Commence as in No. 177, ante.) For that the defendant, on, etc., with force and arms, etc., broke and entered a certain dwelling-house of the plaintiff, situate in the county aforesaid, and made a great noise and dis- tiu^bance in the said dwelling-house, and stayed and continued therein. making such noise and disturbance, for the space of days then next following, and then and there forced and broke open, broke to pieces and damaged doors of the plaintiff, belonging to the said dwelling-house, with the appurtenances, and broke to pieces, damaged and spoiled locks, staples and hinges, of and belonging to the said doors respectively, and wherewith the same were then fastened, of the value of dollars; and also, during the time aforesaid, to wit, on, etc., with force and arms, etc., seized and took divers goods and chattels, to wit (de- scribe the goods), of the plaintiff, then found and being in the said dwelling- house, and being of the value of dollars, and carried away the same, and converted and disposed thereof to his own use, to wit, in the county aforesaid; by means of which several premises the plaintiff and his family were, during all the time aforesaid, not only gi-eatly annoyed and disturbed in the peaceable possession of his said dwelling-house, but also the plaintiff was during all that time hindered and prevented from carrying on and transacting therein his necessary affairs and business. (A cotint may be added for an expulsion, as below, if applicable to tlie facts, and also a count de bonis asportatis, for ichich see No. 186, ante — concluding the declaration as in No. 177, ante.) The above declaration in substance charges the defendant ^ Pace V. Vaughn, 1 Gilm. 30; see Chipman v. Emeric, 5 Cal. 239. TRESPASS. 353 with breaking open an outer door, and if he pleads a justifica- tion, it must be framed accordingly.' No. 194. Count for a common expulsion. And also for that the defendant, on, etc., with force and arms, etc., broke and entered a certain other dweUing house of tlie plaintiff, situate in the county aforesaid, and then and there expelled and amoved the plaintiff and his family from the possession, use, occupation and enjoyment of the last mentioned dwelling-house, and kept and continued them so expelled and amoved for a long space of time, to wit, from thence hitherto; whereby the plaintiff, during all that time, lost and was deprived of the use and benefit of his last mentioned dwelling-house. No. 195. For trespass to land — Entering close, breaking open gates, de- stroying crops, etc. {Commence as in No. 177, ante.) For that the defendant on, etc., and on divers other days between that day and the commencement of this suit, with force and arms, etc., broke and entered a certain close of the plaintiff, situate in the county aforesaid, and then and there forced and broke open, broke to pieces, damaged and spoiled gates of the plaintiff, of the value of dollars, then standing and being in the said close, and locks,' staples and hinges of the plaintiff, of the value of dollars, respectively affixed to the said gates, and with which the same were then respectively locked and fastened; and with feet in walking trod down and spoiled the grass and corn of the plaintiff, of the value of dollars, then and there growing and being; and with horses, cows, oxen and sheep, de- pastured and consumed the grass and corn of the plaintiff, of the value of dollars, then growing and being in the said close; and with divers other horses, cows, oxen and sheep, and also with the wheels of divers carts, wagons and other carriages, crushed, damaged and spoiled other the grass and corn of the plaintiff, of the value of dollars, then and there also growing and being; and with the feet of the said horses, and with the wheels of the said carts, wagons and other carriages, tore up, damaged and spoiled the earth and soil of the said close; and also then and there mowed and cut down the grass and corn of the plaintiff, then growing in the said close, and seized, took and carried away wagon-loads of hay and wagon-loads of corn of the plaintiff, of the value of dol- lars off and from the said close, and converted and disposed of the same to his own use, and also then and there cut down and destroyed oaks, ash trees, elms, etc., (according to the fact,) and other ti-ees, and acres of underwood, of the plaintiff, of the value of dollars; and the timber, wood, branches and bushes thereof coming and arising, to- wit, wagon-loads of timber, wagon-loads of wood, — wagon- loads of branches and wagon-loads of bushes, of the plaintiff, of the value of dollars, took and carried away, and converted and disposed of the '2 Chit. PI. 864, n.; Buckenham v. Francis, 11 Moore, 40. 23 354 TRESPASS. same to his own use; and also then and there placed and erected, and caused to be placed and erected, divers sheds and stables in and upon the said close, and kept and continued the said sheds and stables, so there placed and erected, without the leave or license, and against the will of the plaintiff, from, etc. , hitherto; and thereby and therewith, during all the time aforesaid, greatly incumbered tlie said close, and hindered and prevented the plaintiff from having the use, benefit and enjoyment thereof in so large and ample a manner as he might and otherwise would have done. {See note at end of No. 193, ante.) A declaration in trespass qimre dausumf regit vcciX'&i set forth a trespass committed to real property in the count}^ where the action is brought. It is sufficient to describe the close or house generally, as in the above precedents; ' but if the descri]> tion is general, and the defendant pleads liberiun tenement wtn., the plaintiff must make a new assignment; and to avoid this necessity it may sometimes be advisable to give a precise de- scription of the property in the declaration, "When this is done, care should be taken to avoid any mistake in the descrip- tion.^ While the action of trespass quare clausum /regit does not necessarily involve the title or seizin, yet the gist of the action is the injury to the possession. Hence, the judgment in such action will ordinarily be conclusive upon the right of pos- session.^ No. 196. For cutting down and carrying away trees, etc. (Commence as in No. 177, ante.) For that the defendant, on, etc., and on divers other days and times between that day and the commencement of this suit, with force and arms, etc., in the county aforesaid, felled, cut and destroyed the trees and saplings, to wit, oaks, ash trees, elms, other trees, and saplings, of the plaintiff, of the value of dollars, then growing and being in and upon certain lands there situate, and took and carried away the said trees and saplings, and converted and disposed of the same to his own use; and other wrongs to the plaintiff then and there did, against the peace of the people of this state, and to the dam- age of the plaintiff of dollars, and therefore he brings his suit, etc. A count may be inserted for carrying away trees generally. The above count — not alleging any trespass on the close — is 1 2 Chit. PI. 863, n. ' Ibid.; Elsonw. Comstock, 150111. 2 01. Prec. 564; 2 Chit. PL 868; see 303. Meixsell v. Feezor, 43 111. App. 180. TKESPASS. 355 proper where the land has been demised, and the trees were excepted in the lease. Possession of a farm draws with it possession of the adjoin- ing woodland, though uninclosed.' No. 197. For digging in a coal mine, and carrying aicay coal therefrom. {Commence as in No. 177, ante.) For that the defendant, on, etc., with force and arms, etc., broke and entered a certain coal mine or vein of coal of the plaintiff, situate, etc, and dug out of the said coal mine or vein of coal divers large quantities of coal, to wit, tons of coal, of the plaintiff, of the value of dollars, and took and carried away the same, and eon- verted and disposed of the same to his own use. (Conclude as in the last jjrecedent; or a count de bonis asportatis may be added, with conclusion as in No. 177, ante.) No. 198. For digging mines, raising ore, and taking and converting it. (Commence as in No. 177, ante.) For that the defendant, on, etc., with force and arms, etc., broke and entered the close of the plaintiff, in the county aforesaid, and then and there, with shovels, pick-axes and other instruments, dug up, turned and subverted the earth and soil, to wit, acres of earth and soil, of the said close of the plaintiff; and then and there dug, made and sank divers mines, pits, shafts and holes, to wit, mines, pits, shafts and holes, of great breadth and depth, to wit, each of the breadth of feet, and of the depth of feet in the said close of the plaintiff there; and from and out of the said mines, pits, shafts and holes, then and there raised, dug and got divers large quantities of earth, soil, stones, lead ore, copper ore, and other ore of the plaintiff, to wit, etc., of the value of dollars; and the same so raised, dug and got, did then and there seize, take, carry away and convert to his own use. (See note at end of last precedent.) DEFENSES TO THE ACTION. For pleas in abatement, and observations thereon, etc., see Defenses to an Action, ante. Pleas in bar. — In trespass, the general issue is "not guilty." On this issue the plaintiff must prove, 1st, that the property was actuallj^ or constructively in his possession at the time of the injury, and this rightfully, as against the defendant; and 2d, that the injury was committed by the defendant with force; " and the defendant may give in evidence any matter tending ^ Penn v. Preston, 2 Rawle 14; 22Greenl. Ev., Sec. 613. Buck V. Aiken, 1 Wend. 466. 356 TRESPASS. to disprove either of these propositions/ Every defense which admits the defendant to have been 7>/'/w?fl^ facie a trespasser, must be specially ])leaded; but any matters which go to show that he never did the acts comphiined of, may be given in evi- dence under the general issue. Thus, for example, under this issue it may be proved that the plaintiff has no property in the goods; or that the defendant did not take them; or that he did not enter the plaintiff's close.'"' But if he acted by license, even from the plaintiff, without claiming title in him- self; ^ or if he would justify under a custom to enter; " or under a right of wa}^;* or if the injury was occasioned by. the plaint- iff's own negligence, or was done by the defendant from any other cause, short of such extraneous force as deprived him of all agency in the act, it can not be shown under this issue, but must be specially pleaded.' All matters in discharge or justification must be specially pleaded.^ Thus a former recovery," accord and satisfaction,' the statute of limitations,'" or a license," must be specially pleaded. So an officer wishing to justify under legal process must plead it specially.'" But where, in trespass for taking goods, the defense is that the goods were seized by the defend- i2Greenl. Ev., Sec. 625; 1 Chit. Olson v. L>sa/i7, 69 111. 273; B/anc/i- Pl. (11 Am. Ed.), 500. ardv. Burbank, 16 Bradw. 375. 2 2 Greenl. Ev., Sec. 625; 1 Chit. « 1 Chit. PI. (11 Am. Ed.) 506, 507; PI. (11 Am. Ed.), 500, 501; 2 Hill on Hahn v. Ritter, 12 111. 80; Davis v. Torts, 81. Scott, 1 Blackf. 169; Coles v. Carter, 3 2 Camp. 378; 1 Peake 67; Rug- 6 Cow. 691. glesv. Lesure, 24 Pick. 187; Hill v. " 1 Chit. PI. (11 Am, Ed.), 506; see 3Iorey, 26 Vt. 178; 2 Hill on Torts Hoss v. Nesbitt, 2 Gilni. 252. gl_83, . '» 1 Chit. PI. (11 Am. Ed.), 506; see * Waters v. Lilly, 4 Pick. 145. Gebhart v. Adams, 23 111. 397. 5 But see Strout v. Berry, 7 Mass. " 1 Chit. PI. (11 Am. Ed.), 491, 502, 505; 7 Blackf. 373; 2 Taunt. 156; ii). 6 2Greenl. Ev., Sec. 625; 1 Chit. RngglesY. Lesure, 24 Pick. 187; see PI. (11 Am. Ed.), 501; 2 Camp. 500; i^lake v. Dow, 18 111. 261. Pettengill v. Lairrence, 20 111. App. " 1 Chit. PI. (11 Am. Ed.), 501, 506, 553 534; see Barnes v. Barber, 1 Gilm. ■"And. Steph. PI. 235; Hahn v. Rit- 401; Cook v. Miller, 11 111. 610; Me- ter, 12 111. 80; Briggs v. Mason, 31 Vt. Donald v. Wilkie, 13 111. 22; Tefft v. 433; Jeweffv. GoodoZe, 19 N.H. 562; Ashbaugh, 13 111. 602; Clark v. Beaty v. Swarthout, 32 Barb. 293; Leu-is, 35 111. 417; Boumian v. St. Comstock V. Oberman, 18 Bradw. 326; John, 43 111. 337. TRESPASS. 357 ant as an officer, by virtue of legal process against a third person, and that the goods belonged to such third person, it seems to be unnecessary to plead such defense specially,' as it amounts only to a denial of the plaintiff's right. Matters in mitigation of the wrong and damages may be given in evidence under the general issue.^ And it seems that a variance in the description of the locus in quo is avail- able to the defendant under this issue, as the allegation of place, in trespass quare clausum f regit, is essentially descriptive of the particular trespass complained of.^ But the variance, to be available, must be in some essential part of the descrip- tion.* The plea of " not guilty," in an action of trespass for tak- ing goods, operates only as a denial of the taking; and the trial of an issue on such plea determines nothing as to the right of property.* The general issue, in actions for torts, is regarded as several, though it may be in form joint; ° and one defend- ant, against whom there is no evidence, may be acquitted, and a verdict taken against the others; but it is otherwise as to a joint plea of justification, under which, if it is not supported as to all the defendants, none of them can be protected.' No. 109. Plea — Not guilty. In the Court. Term, 18—. CD.) ats. y Trespass. A. B. ) And the defendant, by E. F., his attorney, comes and defends the force and injury, when, etc., and says that he is not guiltj' of the said supposed trespasses above laid to his charge, or any or either of them, in manner and form as the plaintiff has above thereof complained against him: And of this the defendant puts liimself upon the country, etc. ■ Jackson V. Hobson, 4 Scam. 411. 13 East 9; Watford v. Antliony, 8 2 2Greenl.Ev., §6:35: 3 Hurl, and Bing. 75; Lethbridge v. Winter, 2 Nor. 276; Briggs v. Mason, 31 Vt. Bing. 49. 433; Collins v. Perkins, 31 Vt. 624; '- Harris v. Mijier, 28 111. 135. see 6 Adol. & El. 174, N. S. <* Dormer v. Flint, 28 Vt. (2 Wras.) 3 2 Greenl. Ev., § 625; 3 Stephen's 527; 2 Hill on Torts, 317. N. P. 2642; lOLaw Jour. 203; 1 Salk. ''2 Hill on Torts, 317; Drake v. 452; 1 Moore, 161; 8 Taunt. 539. Barryman, 14 Johns. 166; Gleason * Id.; 1 Taunt. 495; see Doe v. Salter v. Edmunds, 2 Scam. 448. 358 TRESPASS. No. 200. Plea of son assault demesne. {Firat plea, not guilty, as ante, last precedent.) And for a further plea in this behalf, the defendant says that the plaintiff ought not to have his afore- said action against him, the defendant, because he says, (*) that the plaintiff just before the said time when, etc., to wit, on the same day in the said dec- laration mentioned, with force and arms, etc. , in the county aforesaid, made an assault uj)on the defendant, and would then and there have beaten, bruised and ill-treated him, if he had not immediately defended himself against the plaintiff; wherefore the defendant did then and there defend himself against the plaintiff, as he lawfully might for the cause aforesaid, and in so doing did commit the supposed trespasses in the said declaration mentioned: And so the defendant says, that if any hurt or damage then and there happened to the plaintiff, the same was occasioned by the said assault so made by the plaintiff upon him, the defendant, and in his neces- sary defense of himself against the plaintiff. And this the defendant is ready to verify; wherefore he prays judgment if the plaintiff ought to have his aforesaid action against him, etc. If some particular trespasses only, of several charf^ed in a declaration or count, are intended to be justified, such partic- ular trespasses should be enumerated, in the manner indicated in the plea next following.^ In a plea of so7i assault dem^esne, a wounding may be justified in self-defense, in the above form; but where the law prima facie only authorizes an arrest, or touching a person, if a wounding also is attempted to be justified, the occasion thereof must be specially alleged — as in the case of an arrest under process, a resistance, or attempt to rescue must be averred.^ In defense of the person, an assault and battery, etc., may be justified;^ but in defense of the possession of personal or real property, the defendant must plead molliter maiius imposuit.^ It seems clear that the defendant can not in any case justify an actual heating and wounding.^ unless he shows in his plea that force was used or attempted on the part of the plaintiff; but still he may justify what in law amounts to a hattery, by way of molliter Qnanus itnposuit} ' See remarks, ante, 57. - Bui. N. P. (7 Ed.) 18; Dalex. Wood, * Greene v. Jones, 1 Saund. 296. 7 Moore 33. 297; Id., n. 1; Weaver v. Bush, 8 T. ■» 1 Salk. 407; Weaver v. Bush, 8 E. 78; Gregory v. Hill, 8 T. R. 299. T. R. 78; Cbm. Dig. Plead., 3 M. 15; ^Cockcraft v. Smith, 2 Salk. 649; Ilellen v. Thompson, 32 Vt. 407, Cockcraftv. Smith, 1 Ld. Raym. 177; * Smith v. Edge, 6 T. R. 562; John- TRESPASS. 359 The following is a somewhat different form of the plea of son assault demesne.^ No. 201. Plea of son assault demesne^De/e/isc of child, etc {First plea, not guilty, as ante. No. 199.) And for a further plea in this behalf, as to the assaulting, beating, bruising, wounding and ill-treating of the plaintiff, and as to the tearing, spoiling and damaging of the clothes of the plaintiff, {etc., enumerating the trespasses charged, or, if it is ordy in- tended to justify a part, then such part), as in the said declaration {or *' first count") mentioned, the defendant says that the plaintiff ought not to have his aforesaid action against him, the defendant, because he says that the plaintiff, just before the said time when, etc., to wit, on the same day in the said declaration (or " first count") mentioned, with force and arms, etc., in the county aforesaid, made an assault upon L. B., then and there being the daughter of the defendant, and would then and there have beaten, bruised and ill-treated her, the said L. B., if the defendant liad not immedi- ately defended her, wherefore the defendant did then and there defend the said L. B. , so being his daughter as aforesaid, against the plaintiff, as he lawfully might for the cause aforesaid, and in so doing did necessarily and unavoidably & little beat, bruise, {etc., as in the introductory part of tlie plea.) doing no unnecessary damage to the p>laintiff on that occasion; and so the defendant says, that if any hurt or damage then and there happened to the plaintiff, the same was occasioned by the said assault so made by the plaintiff upon the said L. B. , and in the necessary defense of her, the said L. B., against the plaintiff; which are the same supposed trespasses in the in- troductory part of this plea mentioned, etc. And tliis the defendant is ready to verify; wherefore he prays judgment, etc. See the form next preceding this, and the remarks there- under. This form may be readily adapted to the case of an assault in defense of a father, mother, son, servant, or master. No. 202. General replication, de injuria, etc. (Similiter to general issue, if pleaded as ante, No. 10; if not, entitle first replication as in that form.) And the plaintiff, as to the plea of the de- fendant by him secondly above pleaded, says that he, the plaintiff, by rea- son of anything in that plea alleged, ought not to be barred from having his aforesaid action, (*) because he says, that the defendant, at tlie said time when, etc., of his own wrong, and without the cause by him in his said second plea alleged, committed the said several trespasses in that plea mentioned, in manner and form as the plamtiff has above complained son V. Northu'ood, 7 Taunt. 689; 3 » See 3 Chit. PI. 1068-1070, and Chit. PL 1068, n. notes. 360 TRESPASS. against t!ie defendant; And this the plaintiff prays may be inquired of by the country, etc.^ The above fomi will suffice in all cases in tres]jass where this replication is proper, though where replied to the plea of son- assault demesne^ a form slightly different is used."* The general replication, de injuria sua, absque tali causa, is adapted to the de- nial of matter of excuse or justification; and where the excuse or justification consists exclusively of mere matter of fact, as distinguished from matter oi record, title, authority, etc., (which involves matter of laio,) this replication is the most appropriate mode of traversing it. When the justification involves matter of law, (as where, in an action for assault, battery and false imprisonment, the defendant justifies under a vajrias directed to him as sheriff,) this general traverse would be ill;^ but the plaintiff, in a case like this, may traverse separately any one material point in the plea, which point may consist either of the record, etc., or of the matter of mere fact pleaded in con- nection with it. For example, he may traverse the capias, by replying nul tiel record; or he may admit the capias, and trav- erse the matter of mere fact, by alleging that the defendant " of his own wrong, and without the residue of the cause in the said plea alleged," made the assault, etc. And when mat- ter of record, title, etc., is alleged, not as the ground of the justification, but only as inducement, the general replication, de injuria, etc., is good.* When in fact the plaintiff made the first assault, in defense of his possession, etc., or whenever, in answer to the defend- ant's plea of son assault demesne, he relies upon new matter, he should not apply generally, de injuria, etc., but should al- lege such new matter,* otherwise he can not justify the prior assault.* But it is now held, that if son assault demesne is pleaded, the plaintiff may under this general replication, show that the defendant's battery of him was excessive, without ' See 1 Chit. PI. (11 Am. Ed.), 604^ " 1 Chit. PI. (11 Am. Ed.), 592; 3 611; 8 Id, 1203; 8 Swan's Pr. 770, n. Id. 1203, n.; Ayres v. Kelley, 11 111. Gould's PI,, cap, 7, §§26-50. 17; Fortune v. Jones, 30 111. App. ? 3 Chit. PI. 1202. 116. 3And. Steph. PI. 242, ^Fortune v. Jo7ies, SO III. App. 4 Gould's PL, cap, 7, §§ 36-30. 116; Ayers v. Kelley, 11 111. 17. TEESPASS. 361 a special replication, or new assignment; ' though formerly it was held otherwise.^ New assignments. — It is a general rule, that where the defendant has committed several trespasses, some of which were justifiable, and others not, and the action is brought for those trespasses which were not justifiable, but the defendant by his plea answers only those which were so, (he being by the rules of pleading allowed to suppose that the action was brought for the latter,) the plaintiff should new assigii. Thus in an action of trespass for an assault, if there have been two assaults, one justifiable, on the ground of self-defense, and the other not, and the declaration contains only one count, for an assault, and the defendant pleads so7i assault demesne^ the plaintiff should new assign the illegal assault. In a new assignment, the plaintiff avers that he brought his action, not for the trespass in the plea mentioned, but for another and different trespass, committed on another and different occa- sion — or in trespass to real property, in another and different place, etc. In general, however, a new assignment is unnecessary, and the replication de injuria, etc., will suffice, when the defend- ant can not prove all the matters which constitute the sub- stance of his plea.^ For the law in respect to new assignments, see 1 Chit. PI. (11 Am. Ed.), 624 to 640; Andrews' Steph. PI. 281; and for forms, see 3 Chit. PI. 1213 to 1218; And. Steph. PI. 283; and see also a form of new assignment to a plea in abatement, ante, No. 9a, and a form of new assignment to a plea of liherum teneraentum, No. ^Vl,post. No. 203. Plea — Molliter manus imposuit, to preserve the peace — Plaintiff and a third person fighting together. (First plea, not guilty, as ante, No. 199; second plea as in No. 200, ante, to the asterisk, and thence as follows:) that the plaintiff and one O. P., at » IChit. PI. (11 Am. Ed.), 627; 1 nett v. Appleton, 25 Wend. 371: see Stephen N. P. 216; Ayers v. Kelley, Fortune v. Jones, 30 111. App. 116. 11 111. 17; Dale v. Erskine, 35 N. H. « 1 Chit. PI. (11 Am. Ed.), 593, and 503; Philbrook v. Foster, 4 Ind. 442; cases cited. Fisher v. Bridges, 4 Blackf. 518; ^ Reece v. Taylor. 4: N. & M. 470; Gaitlier v. Bloioers, 11 Md. 536; Likes v. Van Dike, 11 Ohio 444; 2 Hanneww. Edes, 15 Mass. 347; Ben- Swan's Pr. 772, 774, notes. 362 TRESPASS. the said time when, etc., in the county aforesaid, were fighting together, and striving with force and arms to beat and wound each other, against the peace of the people of this state; whereupon the defendant, being tlien and there present, for the preservation of the peace of the said people, and that the plaintiff and the said O. P. might do no hurt to each other, and in order to separate them, then and there gently laid his hands upon the plaintiff, as he lawfully might for the cause aforesaid; which are the same sup- posed trespasses in the said declaration mentioned, and whereof the plaintiff has above thereof complained against the defendant. And this the defend- ant is ready to verify, wherefore he prays judgment, etc. In trespass for a simple assault, a plea of mollUer manus imj)osuit, in reasonable efforts to prevent a breach of the peace by the plaintiff's assault on a third person, is good, but aliter when the declaration alleges aggravated force on the part of the defendant.^ • This plea is not a full answer to a declaration charging an assault and wounding; and if, Avhen pleaded to such a decla- ration, issue is taken on a plea, and found for the defendant, judgment must be rendered for the plaintiff, 7io;i obstante vere- dicto, for the plea leaves a part of the declaration unanswered.'' The plea in such case should either deny the beating, wound- ing, etc., or state facts and circumstances of resistance, etc., to justify it." No. 204. Plea — moUiter manus imposuit, to put plaintiff out of defend- ant's divelling house. (First plea, not guilty, as ante. No. 199; second plea as in No. 200, ante, to the asterisk, and tJience as follotvs:) that the defendant, before and at the said time when, etc. , was lawfully possessed of a certain dwelling house, with the appurtenances, situate in, etc. : and being so possessed thereof, the plaintiff, just before the said time when, etc., to wit, on the same day in the said declaration mentioned, was unlawfully in the said dwelling house, and with force and arms making a great noise and disturbance therein, and at the said time when, etc. , staid and continued therein, making such noise and disturbance, without the leave or license, and against the will, of the defendant, and during all that time there greatly disturbed and dis- quieted the defendant and his family in the peaceable and quiet possession and enjoyment of his said dwelling house; and thereupon the defendant then and there requested the plaintiff to cease making his said noise and disturbance, and to depart from and out of the said dwelling hovise; which 1 Mellen v. Thompson, 32 Vt. (3 « ^j^-es v. Van Dike, 17 Ohio 456; Shaw) 407; see 8 Chit PI. 1068, n. see 3 Chit. PI. 1068, n. » 2 Swan's Pr. 773, n. a. TRESPASS. 363 the plaintiff then and there wholly refused to do; whereupon the defend- ant, in defense of the possession of his said dwelling house, at the said time when, etc., gently laid his hands upon the plaintiff, in order to remove, and did then and there remove the plaintiff from and out of the said dwelling house, as he lawfully might for the cause aforesaid; (*) which are the same supposed trespasses in the said declaration mentioned, and whereof the plaintiff has complained against the defendant. And this the defendant is ready to verify; wherefore he prays judgment, etc. If there "was an actual resistance on the part of the plaintiff, and in consequence thereof any wounding, or a greater degree of violence on the defendant's part than would otherwise have been justifiable, the facts should be alleged accordingly, which may be done by Inserting, at the asterisk in the above form, the following or a similar averment : " And because the plaintiff then and there resisted the defendant in that behalf, and assaulted him, and used violent and menacing language and gestures towards him, and would then and there have beaten, bruised and ill-treated the defendant if he had not immediately defended himself against the plaintiff, he, the defendant, did then and there defend himself against the plaintiff, and in so doing did necessarily and unavoidably a little beat, bruise, wound {etc., according to the facts and the allegations of the declaration,) doing no unnecessary damage to the plaintiff on that occa- sion; which are the same," etc. The plaintiff may reply de injuria, etc., as ante, No. 202. See the observations under that form and No. 201. No. 205. Plea by a school-master, justifying a battery, etc. [12 Ohio, 191.] {First plea, not guilty, as ante, No. 199; second -plea as in No. 200, ante, to the asterisk, and thence as follows:) that the defendant, at the said time when, etc. , was a school-master, teaching a certain school in the county aforesaid; and the plaintiff was then a scholar in and attending the said school, and then behaved and conducted himself in an improper and disor- derly manner in the said school, and then and there refused to obey the reasonable and necessary rules prescribed for the government of the said school; wherefore the defendant then and there moderately chastised the plaintiff for his said misbehavior, as he lawfully might for the cause afore- said; which is the same supposed assaulting, etc., in the said declaration mentioned: And this the defendant is ready to verify; wherefore he prajs judgment, etc. The plaintiff may reply de injuria, etc. See the observa- tions under Nos. 200 and 201, ante. 364 TRESPASS. No. 206. Plea by a justice of the peace — in an action against him and another — justifying the issuing of a capias, under which plaintiff was arrested and imprisoned.^ (First plea, general issue, as ante, No. 199.) And for a further plea in this behalf, the defendant C. D. says that the plaintiff ought not to have his aforesaid action against him, the said C. D., because he says that he, the said C. D., before and at the said time when, etc., was a justice of the peace in and for the county aforesaid; and so being such justice, and hav- ing jurisdiction of the matters hereinafter mentioned, the defendant E. F., on, etc., there made oath before him, the said C. D., as such justice of the peace, that the plaintiff was indebted to the said E. F. in the sum of dollars, on a promissory note bearing date, etc., and due on, etc., for the sum aforesaid, and that there was danger that such demand would be lost unless the plaintiff should be held to bail, and stated the cause of such danger, so as to satisfy the said C. D. that the plaintiff had been guilty of fraud, and that there was good reason on the part of the said E. F. to appre- hend such danger; and thereupon the said C. D. , as such justice as aforesaid, did then and there issue a certain writ of capias ad respondendum, in the name of the people of the State of Illinois, directed to any constable of the said county to execute, commanding such constable to take the body of the plaintiff, and to bring him forthwith before the said C. D., as such justice as aforesaid, unless special bail should be entered, and if such special bail should be entered, then to summon the plaintiff to appear before the said C. D., as such justice as aforesaid, at, etc., on, etc., at — o'clock, — M., to answer the complaint of the said E. F. for a failure to pay him a certain demand, not exceeding two hundred dollars, and to make due return of the said writ as the law directs, which said writ the said C. D. , as such justice as aforesaid, thereupon, to wit, on the day first aforesaid, there delivered to one G. H., who was then and there a constable of the county aforesaid, to be by him executed according to law; as he, the said C. D. , lawfully might for the cause aforesaid ; and the said G.H., as such constable as aforesaid, in obedience to the said writ, after- wards, to wit, on the day aforesaid, there gently laid his hands upon the plaintiff, and ai-rested him, using only necessary force in so doing, and then and there brought the plaintiff (he failing to enter special bail), before the said C. D., as such justice as aforesaid, at, etc., aforesaid, for trial; where- upon the plaintiff then and there confessed a judgment for the sum of dollars, in favor of the said E. F., and thereupon was then and there re- leased from such arrest; which are the same supposed trespasses in the said declaration mentioned, and whereof the plaintiff has complained, etc. And this the said C. D. is ready to verify ; wherefore he prays judgment, etc. No. 207. Plea justifying an arrest, as a constable, without process, on suspicion of felony. (First plea, not guilty, as ante. No. 109; second plea as in No. 200, ante, to the asterisk, and thence as follows :) that before the said time when, etc., ' Outlaw V. Davis, 37 lU. 469. TRESPASS. 365 to wit, on, etc., in the county aforesaid, five icafches, of the value of dollars, the property of one J. K. , were feloniously stolen, taken and carried away from and out of the possession of the said J. K. ; and shortly afterwards, to wit, at the said time when, etc., the defendant had reason- able and probable cause to suspect, and did suspect, that the plaintiff had feloniously stolen and carried away the said icatches, in this, to wit, that the plaintiff was then and there found lurking about, in a suspicious man- ner, near the shop whence the said watches were so stolen and carried away, shortly after the same were so stolen and carried away as aforesaid; and also in this, to wit, that upon the plaintiffs being then and there searched, one loatch, resembling one of the said u-atches so stolen and car- ried away from the said J. K. as aforesaid, was then and there found in the possession and on the person of the plaintiff, which said loatch, so found in the possession and on the person of the plaintiff, the defendant then and there had reasonable and probable cause to suspect and believe, and did suspect and believe, to be one of the said ivatches so stolen and carried away from the said J. K. as aforesaid ; whereupon, it being then necessary that the plaintiff should be arrested, in order to prevent his escape, the de- fendant, who was then one of the constables in and for tlie county aforesaid, for the causes aforesaid then and there gently laid his hands on the plaintiff, and took and arrested him, and conveyed him (*) before one L. M., then one of the justices of the peace in and for the county aforesaid, to be ex- amined by and before the said justice touching the said larceny, and to be further dealt with according to law ; and thereupon the plaintiff was then and there detained by order of the said justice, until the day of , in the year aforesaid; on which day the plaintiff was there examined by and before the said L. M., then still being such justice as aforesaid, touching the said larceny, and was thereupon by the said justice then and there discharged out of custody ; and by means of the several premises the plaintiff was kept and detained in prison for the space of time in the said declaration mentioned, the same being a reasonable imprisonment, and lawful and just, for the cause aforesaid: which are the same supposed tres- passes in the said declaration mentioned, etc. And this the defendant is readj^ to verify; wherefore he prays judgment, etc. No. 208. Another form of plea hy an officer, justifying an arrest without process, on suspicion of felony.^ {First plea, not guilty, as ante. No. 199; second jilea, as in No. 200, ante, to the asterisk, and thence as foHoivs :) that shortly before the said time when, etc., to wit, on, etc., in the county aforesaid, one horse, of the value of dollars, the property of one O. P.. was feloniously stolen, taken and carried away; and before and at the said time of the committing of the said larceny, the plaintiff was an idle person, dwelling and staying in the neighborhood where the said larceny was committed, and consort- ing with divers persons of known bad character and repute; and after the committing of the said larceny, and before the said time when, etc., the 1 Dodds V. Board, 43 111. 95; Kindred v. Stitt, 51 111. 401. 366 TKESPASS. defendant was informed that the plaintiff feloniously aided and abetted in the committing of the said larceny; by reason of which premises the de- fendant, at the said time, when, etc., had good and probable cause to sus- pect, and did strongly suspect, the plaintiff to have been guilty of, or con- cerned in, the committing of the said larceny; wherefore the defendant, who was then a constable of the county aforesaid, then and there gently laid his hands on the plaintiff, and arrested him, there then being danger that he would otherwise escape, and conveyed him, etc., (proceeding in like manner as in the last precedent, from the asterisk to the end.) See the remarks under the replication de injuria, etc., No. 202, ante. A peace officer will be justified in making an arrest, in his own county,' without warrant, when all the facts show that there was strong probable cause to believe that the accused was guilty, and there was danger of his escape." In case of felony actually committed, a constable may, upon probable suspicion, arrest the person suspected; but if the suspicion does not arise in the officer's own mind, he should inquire scrupu- lously into the causes of the suspicion; and he will be justified in making the arrest, should it afterwards appear that no fel- ony had been committed, provided he had reasonable grounds to suspect the person arrested — such grounds as should influ- ence a prudent and cautious man under the circumstances. A constable, having reasonable ground to suspect that a felony has been committed, is authorized to detain the suspected per- son until inquiry can be made by the proper authorities; and whether or not there was such reasonable ground for suspicion, is a mixed question of law and fact — the circumstances to show it reasonable being the fact, but whether, admitting them to be truly alleged, the circumstances amount to a justifica- tion, being a question of law.' In a plea justifying the appre- hension of the plaintiff on suspicion of felony, the cause of suspicion must be shown.* ' Kindred y. Stitt, 51 111, 401; see 1 Hill on Torts, 195, a; Rohan v. Bessler v. Peats, 86 111. 275; Blaloek Sau in, 5 Cush. 281; Davis v. Russell V. Randall, 76 111. 224. 5 Bing. 354. 2 Dodds V. Board, 43 111. 95. •" 4 Taunt. 34; Holt C. N. P. 478; 3, ^ Kindred Y. Stitt, 51 111. 401; see Chit. PI. 1081, n. TRESPASS. 367 No. 209. Plea justifying an arrest, etc., by a private person, on a charge of felony. (First plea, not guilty, as ante, No. 199; second plea as in No. 200, ante, to the asterisk, and thence as follows :) that the plaintiff, before the said time when, etc. , to wit, on, etc. , in the county aforesaid, fen bank bills, each of the denomination and value of dollars, the propei'ty of the de- fendant, feloniously did steal, take and carry away; and thereupon the de- fendant, immediately after the committing of the said larceny, to wit, at the said time when, etc., for the cause aforesaid, and to prevent the escape of the plaintiff, who was then and there endeavoring to escape, there gently laid hands on the plaintiff, and gave him in charge to one J. K., then being one of the constables in and for the county aforesaid; and on that occasion the said J. K. (so being such constable), at the request of the defendant, then and there took the plaintiff into custody, and conveyed him before one L. M., then being one of the justices of the peace in and for the county aforesaid, to be examined before the said justice touching the said larceny, and to be further dealt with according to law; and by means of the prem- ises the plaintiff was imprisoned, and detained in prison, for the space of time in the said declaration mentioned, the same being a reasonable im- prisonment, and lawful and just for the cause aforesaid, which are the same supposed trespasses in the said declaration mentioned, etc. And this the defendant is ready to verify; wherefore he prays judgment, etc. See the observations under the replication de i7}jiiria, etc., No. 202, ante. When the magistrate has full possession of the charge, the party laying it, in general, ceases to be an actor in the matter, and need not justify acts done subsequently.' A private indi- vidual may arrest a person guilty of crime, when it is necessary to prevent the escape of the accused, and have him taken be- fore a proper officer for examination. But such private indi- vidual can not justify such arrest on the ground of a suspicion of guilt only; guilt in such case must be shovvn.^ There is, however, some conflict of authorities on this point. See prece- dents of pleas by private individuals, justifying arrests on suspicion of felony.^ No. 210. Plea by a sheriff, justifying the taking of goods, etc., under a fieri facias. (First plea, not guilty, as ante. No. 199; second plea as in No. 200, ante, to the asterisk, and thence as follows : ) that one J. K., before the said time 1 3 Chit PI. 1080, n. » 3 Chit. PI. 1081; 2 Swan's Pr. 780. 2 Dodds V. Board, 43 HI. 95; Kin- dred V. Stitt, 51 lU. 401. 368 TRESPASS. when, etc., to wit, on, etc., sued out of the court of tlie said county of a certain writ of fieri facias, of that date, directed to the sheriff of the county aforesaid, by which said writ the people of the State of Illinois com- manded such sheriff that of the goods and chattels, lands and tenements, in his county, of the plaintiff, such sheriff should cause to be made the sum of dollars, damages, and the sum of dollars, costs of suit, which by the consideration of the same court, on, etc., in the term, etc., the said J. K. recovered against the plaintiff, together with interest thereon at the rate of five per centum per annum from the time of the recovery of the same as aforesaid, and also the further sum of accruing costs on the said judgment, and that such sheriff should have those moneys ready to render to the said J. K., according to law, and sliould make return of the said writ in ninety days after the said date thereof; which said writ after- wards, and before the said time when, etc., to wit, on the said day of the date thereof, was there delivered to the defendant, who then and from thence- forth until and at and after the said time when, etc., was sheriff of the county aforesaid, to be executed in due form of law; (*) by virtue of which said writ the defendant, as such sheriff as aforesaid, afterwards, and before the return day of the said writ, to wit, at the said time when, etc. , [peaceably and quietly entered into the said dwelling house in which, etc., (the outer door thereof being then open), in order to seize and take, and then and there] seized and took in execution the said goods and cliattels of the plaint- iff, in the said declaration mentioned, the same then and there being [in the said dwelling house, and] liable to be seized and taken by virtue of the said writ, (which was then in full force and unsatisfied) for the purpose of levying the moneys in the said writ mentioned; [and in so doing the de- fendant then and there necessarily and unavoidably made a little noise and disturbance in the said dwelling house, and continued therein, making such noise and disturbance, for the space of time in the said declaration mentioned, as he lawfully might for the cause aforesaid, doing no unneces- sary damage to the plaintiff on that occasion;] and afterwards, and before the return day of the said writ, to wit, on, etc., in the county aforesaid, the defendant, upon due notice given according to law, sold the said goods and chattels, and by such sale thereof caused to be made the sum of dollars [parcel of] the damages and costs aforesaid; which are the same supposed trespasses in the said declaration mentioned, etc. And this the defendant is ready to verify; wherefore he prays judgment, etc. The allegation of the sale of the goods is perhaps unneces- sary, and should of course be omitted if there has been no sale. A plea of jurisdiction under any other form of process can read- ily be framed from the above precedent. It is said that an officer justifying under mesne {not final) process, must show a return.^ • Tidd (9 Ed.), 1023, a; 3 Chit. PL 1135, n; aieasley v. Barnes, 10 East 83; Edwards v. Lucas, 5 B. & C. 339. TRESPASS. 369 Where the plaintiff in the original action justifies under a fieri facias he must allege a judgment, but an officer need not; and in trespass against both, if there is any doubt as to the regularity of the judgment, the latter should plead separately.' It sometimes happens, where there is an execution against a debtor, that a fraudulent conveyance of his goods to a third "person, in whose house they are taken, is set up, and the lat- ter brings an action of trespass; in which case the jurisdiction must be confined to the entry into the house, and the plaint- iff's property in the goods disputed under the general issue. The plea in such case is similar to the above form, but alleg- ing an execution against '* one L. M.," and at the asterisk in- serting this averment: "And the defendant further says, that before and at the said time when, etc., divers goods and chattels of said L. M., liable to be taken in execution by vir- tue of the said writ, were in the said d welling house in which, etc.; and that thereupon, by virtue of the said writ, the de- fendant," etc. — alleging the entry into the plaintiff's dwelling- house, and the seizure of the goods of L. M. therein, and omitting what relates to the sale of the goods.^ See the ob- servations under forms No. 200 and 202, ante. No. 211. Replication — to a plea of justification tinder process— protesting or admitting the process, and de injuria, etc., as to the residue. (As in No. 202, ante, to the asterisk, and thence as folloivs:) because pro- testing that the said writ of was not issued, or delivered (or, ' ' altliough true it is that the said writ of was issued, and delivered ") to the de- fendant as such sheriff, in manner and form as the defendant has above in his second plea alleged, nevertheless, for replication in this behalf, the plaintiif says, that the defendant, at the said time when, etc., of his own wTong, and without the residue of the cause in that plea alleged, commit- ted the trespasses in the said declaration mentioned, in manner and form as the plaintiff has therein above complained against the defendant. And this the plaintiff prays may be inquired of by the country, etc. See the remarks under the replication de iiijuria, etc., No. 202, ante. ' Com. Dig. Plead. 3, M. 24; 3 « 3 Chit. PI. 1135. Chit. PI. 1133, n; see Jackson v. Hobson, 4 Scam. 411. 24 370 TKESPASS. No. 213. Plea (in trespass for driving a carriage against the plaintiff's) that the injury was caused by the 2^laintiff's negligence. {Fi7'st plea, not guilty, as ante, No. 190; second plea as in A'b. 200, ante, to the asterisk, and thence as follows:) that before and at the said time when, etc., he, the defendant, was driving his said carriage in and along the said highway, the said carriage of the plaintiff then also being and go- ing in and along the said highway; nevertheless the defendant in fact says that the said carriage of the plaintiff, at the said time when, etc., was so carelessly, negligently and improperly managed in the said highway, near to the said carriage of the defendant, that by reason thereof the said carriage of the defendant, by accident, and without any default on the part of the defendant, but by and through the want of due care in the man- agement of the said carriage of the plaintiff, then and there wa.s driven upon and against the said carriage of plaintiff, and thereby the plaintiff sus- tained the injury in the said declaration mentioned; and so the defendant in fact says, that if any hurt or damage happened to the plaintiff or his said carriage, it was caused by such accident, and not by the default of the defendant; which are the same supposed trespasses in the said declaration mentioned. And this the defendant is ready to verify; wherefore he prays judgment, etc. The general replication de injuria etc., No. 202, a7iie, may be replied to the above plea. No. 213. Plea of license. (First plea, not guilty, as ante. No. 199; second plea as in No. 200, ante, to the asterisk, and thence as foUoios: (that he, the defendant, at the said time (or "several times") when, etc., by the leave and license of the plaint- iff to him for that purpose given and granted, committed the several sup- posed trespasses in the said declaration mentioned, as he lawfully might for the cause aforesaid: And this the defendant is ready to verify; where- fore he prays judgment, etc. No. 214. Replication to plea of license. (As in No. 202, ante, to the asterisk, and thence as folloics:) because he says, that the defendant, at the said time (or "several times") when, etc., of his own wrong, and without the leave and license of the plaintiff to him, the defendant, fii'st given and gi-anted, committed the said trespasses, in manner and form as the plaintiff has above thereof complained against him: And this the plaintiff prays may be inquired of by the country, etc. Where there has been a revocation of the license before the trespass, it should be set up in a replication.' In trespass, a license must be specially pleaded, and can not be given in evi- ^Oreenev. Jones, 1 Saund. 300, a; But see Barnes v. Hunt, 11 East Mellor V. Walker, 2 Saund. 5, n. 3- 421; 3 Chit. PI. 1210, n. TRESPASS. 371 dence under the plea of not guilty.* The plea of license may be supported by proof of a license in law, as Avell as in fact, and it is immaterial whether it be expressed or implied from circumstances.^ Evidence of a familiar intimacy in the family may be given in support of this plea.^ An entry to execute legal process, or to distrain for rent, or for damage; or an en- try by a remainderman or a reversioner, to see whether waste has been done, or repairs made; or by a commoner, to view his cattle; or by a traveler, into an inn; or by a landlord, to take possession after the expiration of the tenant's lease; or an en- try into another's house at usual and reasonable hours, and in the customar}'- manner, for any of the ordinary purposes of life; may be given in evidence under this plea.* The evidence must cover all the trespasses proved, or it will not sustain the justification.' Evidence of a verbal agreement for the sale of the land by the plaintiff to the defendant, is admissible under a plea of license to enter., and may suffice to support the plea as to the entry only; but it is not sufficient to maintain the plea in respect to any act which a tenant at will may not lawfully do.* Nor will such license avail to justify acts done after it has been revoked.' Where a license in law is pleaded, the plaintiff can not give in evidence a subsequent act of the defendant, which renders him a trespasser ah initio: but it must be specially replied.* So if the defendant justifies as preventing a tortious act of the plaintiff, and the plaintiff relies on a license to do the act, he can not give the license in evidence under the general replication de injuria, etc., but must allege it in a special replication.* ^ Bahcock v. Lamb, 1 Cow. 238; ^Barnes v. Hunt 11 East. 451; 12 Hetfield v. R. R. Co., 5 Dutch. 571; Price 369; 12 Price 390. Crabs v. Fetick, 7 Blackf. 873; 1 ^ Carr v. Roots, 2 M. & W. 248; Chit. PI. (11 Am. Ed.) 505. Suffern v. Townsend, 9 Johns. 35; 2 2 Greenl. Ev., § 627. Cooper \. Stower, 9 Johns. 331. ^ Adams V. Truman, 12 Johns. 408. '' Cheever v. Pearson, IG Pick. 266. *2 Greenl. Ev., §627; 3 Camp. » Aitken v. Blades, 5 Taunt. 198; 524; Revett v. Broion, 5 Bing. N. C. Taylor v. Cole, 3 Term. 292. 7; 5 Com. Dig. PI. 895; see Reedcr ^ Taylor v. Smith, 7 Taunt. 156; 2 V. Purdy, 41 111. 279. Greenl. Ev., § 628. 372 TRESPASS. Ko. S15. Plea of liberum tenementum. {First plea, not guilty, as ante, No. 199; second plea as in No. 200. ante, to the asterisk, and thence as follows:) that the close in the said declaration mentioned, and in which, etc., noic is, and at the said time {or "several times ") when, etc., was the close, soil and freehold of tlie defendant; where- fore the defendant at the said time {or "several times,") when, etc., com- mitted the several supposed trespasses in the said declaration mentioned, in the said close in which, etc., as he lawfully might for the cause aforesaid: And this the defendant is ready to verify ; wherefore he prays judgment, etc. "Where one of t^ro defendants justifies as the servant of the other, the freeholder, the plea should allege that the close was "• the close, soil and freehold of the said C. D.; wherefore the said C. D. in his own right, and the said E. F. as his servant, and at his command," etc., committed the supposed trespasses, etc. If the action is for injuries to real property only, there is no occasion for any recital in the commencement of the plea; but otherwise it is necessary to qualify the plea in its commence- ment, by reciting the trespasses to the realty, to which tres- passes alone the plea relates. (See the remarks, ante, under form No. 200.) In this case, after the averment of freehold, the language of the plea should be, " wherefore the defendant, at the said time when, etc., committed the several supposed trespasses in the introdactory jpay't of this plea mentioned," etc. The plea of liberum tenementum, (or, as it is frequently called, the " common bar," ) admits that the plaintiff was in possession of the close described in the declaration, and that the defendant did the acts complained of, raising only the question whether the close described is the defendant's free- hold or not; ' and his title must be proved, either by deed or other documentary evidence, or by an actual, adverse and exclu- sive possession for twenty years, inasmuch as under this issue he undertakes to show a title in himself, which shall do away with the presumption arising from the plaintiff's possession.' Proof of atenamjy in common with the plaintiff is not admissible » Cocker v. Crompton, 1 B. & C. 111. 173; Ry. Co. v. Morrison, 160 489; Lemprier v. Humiihrey, 3 Ad. 111. 288. & El. 181; Doe v. Wright, 10 Ad. & = Brest v. Lever, 7 M. & W. 593; El. 763; see Dean v, Comstock, 33 see Beach v. Livergood, 15 Ind. 496. TRESPASS. 3 I 3 under this plea.' If the defendant succeeds in establishing a title to that part of the close on which the trespass was com- mitted, he is entitled to recover, though he does not prove a title to the whole close; the words, " the close in which," etc., constituting a divisible allegation.* Under this plea an}^ estate of freehold, as in fee, in tail, or for life, but not a freehold in remainder or reversion, may be given in evidence.^ It is held in Illinois that, although the owner in fee of the land is kept out of the possession, he can not be permitted to enter against the will of the occupant; and that the common- law right to enter, and use all necessary force to obtain the possession from him who may wrongfully withhold it, has been taken away by the statute of forcible entry and detainer.* It has been held that if, in an action of trespass qnare clausum f regit, the defense pleaded is liberum tenementum, judgment for the plaintiff is conclusive upon the defendant when he afterwards attempts to set up title, subject to the qualification that the close described in the second action is the same as that described in the first." The common bar is rarely of any other utility than to com- pel a new assignment, describing the close, when it has not been particularly described in the declaration; ^ though the plea may sometimes be useful and proper for other purposes.' In regard to this plea, see 3 Chitty on Pleading, index, title liberum tenementum, Gould's Pleading, cap. 6, §§ 91, 92, 93, and Andrews' Steph. PL § 178. No. 216, Replication to a plea of liberum tenementum, denying it, {As in No. 202, ante, to the asterisk, and thence as follows ;) because he says, that the said close in which, etc., is 7iot now, and at the said time {or "several times") when, etc., was not the close, soil and freehold of the defendant, in manner and form as he has above in his said second plea alleged. And this the plaintiff prays may be inquired of bj' the countrj', etc. » Gow. 201; Roberts v. Dame, 11 Reederv. Purdij, 48 111. 261; Page N. H. 226; see Jewett v. Foster, 14 v. De Piiy, 40 111. 506. Gray 495. « Elson v. Comstock, 150 111. 303. ^ Smith V. Roy, 8 M. & W. 381; «1 Chit. PI. (11 Am. Ed.), 503; Richards v. Peake, 2 B. & C. 918; 2 Gould's PI., c. 6, gg 91-93. Greenl. Ev., §§618, 626. '1 Chit. PI. (11 Am. Ed.), 505; ^ 1 Chit. PI. (11 Am. Ed.), .503. 3 Id., 1098, n. *Reeder v. Purdy, 41 Ul. 279; 374 TRESPASS. No. S17. New assignment. {As in No. 202, ante, to the asterisk, and thence as folloics:) because he says, that the said close in which, etc., now is, and at the said time {or " several times ") when, etc., was a certain close in the county aforesaid, known and described as {here describe the land); which said close now is, and at the said time (or "several times") when, etc., was another and dif- ferent close from the close in the said second plea of the defendant men- tioned, and therein alleged to be the close, soil and freehold of the defend- ant. And this the plaintiff is ready to verify; wherefore, inasmuch as the defendant has not answered the said trespasses by him committed in the said close in which, etc., above newly assigned, the plaintiff prays judg- ment, and his damages on occasion of the ccmimitting of the said trespasses, above newly assigned, to be adjudged to him, etc. To the plea of liberum tenementwm, the plaintiff may reply, according to the facts, in either of four ways : First, if the close has been so minutely described in the declaration that there can be no question what close is meant, and the plaint- iff's title is inconsistent with that of the defendant, then the replication should deny that the close is the defendant's freehold, and should conclude to the country; second, if the plaintiff derives title under the defendant, then the plaintiff, confessing the defendant's title, must reply the lease, or some other title, under him, concluding with a verification; third, if the plaintiff neither derives title under the defendant, nor has a title inconsistent with the defendant's, he may reply that before the defendant had anything in the premises, an- other person was seized, and made a lease to another person under whom the plaintiff claims, stating his derivative title, ■without either expressly confessing or denying the defendant's plea, and concluding with a verification; or, fourth, if the declaration does not specify the locus in quo, and there is any reason to apprehend that the defendant has any land in the same county, the plaintiff' must new assign, setting out the locus in quo with more particularity/ The plea of liberum tenementum is a good plea to an action of trespass quare clausum f.regit in Illinois/ 1 1 Chit. PI. (11 Am. Ed.) 595; see '^ Lodge v. Klein, 115 111. 177; Piper 3 Chit. PI. 1209, n., 1216; Gould's PI. v. Connelly, 108 111. 646; Farwell v. Cap. 6, Sec. 93; Hyatt v. Wood, 4 IFarreu, 51 III. 467; Haskinsv. Has- Johns.loO; Austin V. Morse, 8 Wend. kins, 67 111. 446; R. R. Co. v. Cobb, 477; Collum v.Andrews,Q Watts,516. 68 111. 53; R. R. Co. v. Cobb, 94 111. 55. CHAPTER XL ATTACHMENT. The writ of attachment, in civil actions at law, is a species of process upon which the property of a defendant may be seized and held to satisfy the judgment which the plaintiff may obtain. The proceeding is wholly statutory, and the en- actments on the subject, in the various states, differ materially in their provisions. It is only proposed, in this chapter, to consider this remedy as it exists under the laws of Illinois. Nature of the proceeding, etc. — The proceeding by at- tachment is in rem; and unless there has been a seizure of property of the defendant, or a garnishee has been summoned, or there has been actual service on the defendant, or an ap- pearance entered by him, the court has no jurisdiction to pro- ceed to judgment.' In an action commenced by attachment where there has been constructive notice only, by publication, if the defendant appears and pleads to the action, the suit thereby becomes a proceeding in personam, and a judgment in personam may be rendered against the defendant.* When the defendant has been served with the writ, or appears to the action, the judgment has the same force and effect as in suits commenced by summons; and execution may issue thereon not only against the property attached, but the other property of the defendant.' ^3Iartin v. Dryden, 1 Gilm. 187; ^Kerr v. Simllow, ZSIU. 319; Conn Haywood V. Collins, 60 III. 328; West v. Caldwell, 1 Gilm. 531; Martin v. V. Schnebly. 54 111. 523; Peojjle v. Dryden, 1 Gilm. 187; Swift y. Lee, Cameron, 2 Gilm. 468; Clymore'v. 65 111. 336. Williams, 77 111. 618; Borders v. » 1 Starr & Curtis 324; Rev. Stat. Murphy, HSm. SI; Schrorerv. Petti- (1893) 174; Rev. Stat. (1895)178; hone, 58 111. App. 436. Connv. Caldwell, 1 Gilm. 531; Youna (375) 376 ATTACHMENT. The benefit of the remedy is not confined to any particular form of action. Any creditor is authorized, under certain cir- cumstances, to sue out an attachment; and an action of account may be commenced in this manner.' A creditor may proceed by attachment and by petition for a mechanic's lien, as con- current remedies." Proceedings by attachment, being in derogation of the com- mon law, and deriving all their validity from statutes, must in all essential particulars conform to the requirements of such statutes.^ Ill what cases attaclinient lies, etc. — Section 1 of the At- tachment act provides that a creditor may have an attachment against the property of his debtor, or that of any one or more of several debtors, when the debt exceeds twenty dollars, in any of the following cases : 1st. Where the debtor is not a resident of the state. 2d. "When the debtor conceals himself, or stands in defi- ance of an officer, so that process can not be served upon him. 3d. Where the debtor has departed from the state, with the intention of having his effects removed therefrom. 4th. Where the debtor is about to depart from the state, with the intention of having his effects removed therefrom. 5th. Where the debtor is about to remove his property from the state, to the injury of such creditor. 6th. Where the debtor has, within two years preceding the filing of the affidavit required, fraudulently conveyed or as- signed his effects, or a part thereof, so as to hinder or delay his creditors. 7th. Where the debtor has, within two years prior to the filing of such affidavit, fraudulently concealed or disposed of his property, so as to hinder or delay his creditors. 8th. Where the debtor is about fraudulently to conceal, as- sign or otherwise dispose of his property or effects, so as to hinder or delay his creditors. 9th. Where the debt sued for was fraudulently contracted on the part of the debtor; provided, the statement of the debtor, his agent or attorney, which constitute the fraud, shall V. Campbell, 5 Gilm. 80; Kerr v. ^ Moore v. Hamilton, 2 Gilm. 429; Swallow, 33 111. 879. Cariker v. Anderson, 27 III. 358; ' Humjihi'eys v. MaWieios, 11 111. Thommeyer v. Sisson, 83 111. 188; 471. Reitz v. People, 77 111. 518; Haywood 2 West V. Fleming, 18 111. 248; De- v. Collins, 60 III. 328; see R. R. Co. lehayv. Clement, 3 Scam. 201; Cul- v. Crane, 102 III. 249; Dennison v. ver V. Ehcell, 73 111. 537. Blumenthal, 37 111. App. 385. ATTACHMENT. 377 have been reduced to writing, and his signature attached thereto by himself or his agent or attorney.' It is further provided that the act shall be construed in all courts in the most liberal manner for the detection of fraud."* Commencement of proceeding — Affidavit, etc. — Section 2 provides, that to entitle a creditor to a writ of attachment, "he or his agent or attorney shall make and file with the clerk of such court, an affidavit, setting forth the nature and amount of the indebtedness, after allowing all just credits and set-offs, and any one or more of the causes mentioned in the preced- ing section, and also stating the place of residence of the de- fendant, if known, and if not known, that upon diligent inquiry the affiant has not been able to ascertain the same." ' The statute further provides that " it shall be sufficient, in all cases of attachment, to designate defendants by their re- puted names, by surnames, and joint defendants b}^ their sep- arate or partnership names, or by such names, styles or titles as they are usually known ; and heirs, executors and admin- istrators of deceased defendants are subject to the provisions in all cases in which it may be applicable to them." * No. 218. Affidavit for attachment. State of Illinois, ) County of [set. A. B., of, etc., makes oath and says, that C. D. is indebted to him, the said A. B., in the sum of dollars, (after allow- ing all just credits, deductions and set-offs,) for {here set forth the nature of the debt); and that the said C. D. {here set forth one or more of the causes mentioned in the statute.) And this affiant further says, that the place of residence of the said C. D. is {or, " is unknown to this affiant, and upon diligent inquiry he has not been able to ascertain the same.") A. B. Subscribed and sworn, etc. > 1 Starr & Curtis, 310; Rev. Stat. « 1 Starr & Curtis, 327; Rev. Stat. (1893) 169; Rev. Stat. (1895) 173; see (1893) 174; Rev. Stat. (1895) 178; Spear v. Joyce, 27 111. App. 456; Dodge v, Yates, 21 111. App. 547: Boggs v. Bindskoff, 23111. 66; Young Everingham v. Bank, 124 111. 527. V. Nelson, 25 111. 565; Laflinx. Pub. ^ Rev. Stat. (1893) 169; Rev. Stat. House, 52 111. 432: Bryant v. Simon- (1895) 173; 1 Starr & Curtis, 310; eau, 51 111. 324; Shove v. Farwell, 9 Hogue v. Corbit, 156 111. 540. Bradw. 256; Wiyikler v. Barthel, 6 * Reitz v. People, 77 111. 518; Prins Bradw. Ill; Yates v. Dodge, 123 111. v.Hinchcliff, 17 Brad. 153; Buchman 50; Weare v. Dridey, 156 111. 24; v. Dodds, 6 Brad. 25; Hill v. Har- Standard v. Morrison, 54 111. App. ding, 93 111. 77; Ry. Co. v. Packet 531. Co., 108 111. 317. 378 ATTACHMENT. Wh?n matle by an agent or attorney, the afTidavit should commence thus : " E. F., of, etc., makes oath and says that he is the agent (or ' attorney ') in this behalf of A. B., of, etc.; and that C. I), is indebted to the said A. B.," etc. The statute concerning oaths and affirmations provides that "All oaths and affirmations, required or authorized to be taken by any law of the state, when the person required to make or take the same shall reside out of or be absent from this state, may be administered by any notary public, or clerk of a court having a seal, to be certified to by such officer under his official seal, or of the court of which he is clerk." ' Within the state, an affidavit may be made before any court, or any judge, justice or clerk thereof, or any notary public, justice of the peace,^ or master in chancery,^ in their respect- ive districts, circuits or counties. The affidavit must be positive and unequivocal in its terms; statements upon information and belief are insufficient; ' but if it is defective it may be amended." The affidavit should state the full amount due, as a judg- ment can not be rendered, where there is no personal service, or appearance, for a greater sum than thut claimed in the affidavit, with the accrued interest.^ JSTor should the judg- ment exceed the amount laid in the ad damnum clause of the declaration.' Attachment will not lie if no part of the debt is due." Traversing affidavits. — Section 27 provides that " The defendant may plead traversing the facts stated in the affidavit upon which the attachment issued, which plea shall be verified by affidavit; and if, upon the trial thereon, the issue shall be found for the plaintiff, the defendant may ' 2 Starr & Curtis, 1677; Rev. Stat. Moore v. Maiick, 79 111. 391; Page (1893) 999; Rev. Stat. (1895) 1067. v. DilJon, 61 111. App. 282. s j5_ ^ Roivley v. Berrian, 12 111. 198; 3 1b. Tunnison v. Field, 21 111. 108; Hick- * Dyer v. Flint, 21 111. 80; Booth ins v. Lyon, 35 111. 150; Hobson v. V. Rees, 26 111. 48; Archer v. Claflin, Emporium, 42 111. 306. 31 111. 306; Prins v. Hinclicliff, 17 "> Hichins v. Lyoji, 35 111. 150; see Bradw. 153. Adams v. Merritt, 10 Bradw. 275. ^Miere v. Brush, 3 Scam. 21; « Drake on Att, 5 Ed., 273,274; Campbell v. Whetstone, 3 Scam. Sdiilling v. Deane, 36 111. App. 513. 361; Arclier v. Claflin, 31 111. 306; ATTACHMENT. 379 plead or demur to the action as in other cases; but if found for the defendant, the attachment shall be quashed and the costs of the attachment shall be adjudged against the plaintiff, but the suit shall proceed to final judgment as though commenced by summons." This section warrants the trial of an attachment issued be- fore the hearing upon the case to which it is an adjunct. It is not compulsory to submit both issues at the same time to one jury, and the parties may consent to separate trials, or the court in its discretion may so order.' Where an affidavit for an attachment in aid is traversed b}'' a plea in denial, the defendant is entitled to a trial upon the issues so formed, and a judgment taken against persons sum- moned as garnishees before the issue is disposed of, is irregular."^ Amendments. — The statute (section 28) also provides that "No writ of attachment shall be quashed nor the property taken thereon restored, nor any garnishee discharged, nor any bond by him given canceled, nor any rule entered against the sheriff discharged, on account of any insufficiency of the origi- nal affidavit, writ of attachment or attachment bond, if the plaintiff, or some credible person for him, shall cause a legal and sufficient affidavit or attachment bond to be filed, or th3 writ to be amended, in such time and manner as the court shall direct; and in that event the cause shall proceed as if such proceedings had originally been sufficient." ^ Where the suit is to be brought. — Proceedings in attach- ment are required to be commenced in the county where the de- fendant may be found, or where he has property or funds liable to garnishment; and service must be had upon him or his prop- erty, etc., in order to give the court jurisdiction.* But " the creditor may, at the same time, or at any time before judg- ment, cause an attachment writ to be issued to any other county in the state, where the debtormay have property liable to be attached, which shall be levied as other attachment writs; provided, that if no property, rights or credits of the debtor are found in the county in which the suit is brought, and no »Pagre v. Dillon, 61 III. App. 283. v. Banh, 127 III. 332; Page\. Dillon, 2 Crandall v.Birge,Gl 111. App. 234. 61 111. App. 282. U Starr & Curtis, 322; Rev. Stat. * Hinman v. Rushmore, 27111. 509; (1893), 173; Rev. Stat. (1895), 177; see Fuller v. Longford, 31 111. 248; Roberts v. Dunn, 71 111. 46; Smith House v. Hamilton, 4S III. 185; West V. Clinton, 13 111. App. 572; Bailey v. Schnebly, 54 111. 523. 330 ATTACHMENT. defendant is served witli summons or makes appearance, the creditor sliall not be entitled to judgment." ' Plaintiff required to give bond. — Section 4 provides that " Before grantiuo; an attachraant, as aforesaid, the clerk shall take bond and sufficient security, payable to the defendant against whom the writ is to be issued, in double the sum sworn to be due, conditioned for satisfying all costs which may be awarded to such defendant, or to any others interested in said proceedings, and all damages and costs which shall be recov- ered against the plaintiff, for wrongfully suing out such attachment — which bond, with affidavit of the party com- plaining, or his agent or attorney, shall be filed in the office of the clerk granting the attachment. Every attachment issued without a bond and affidavit taken, is hereby declared illegal and void, and shall be dismissed." " If the bond is found to be defective, it may be amended.' Objections to a defective bond must be made in apt time. It is too late to object to such bond after the cause is removed to the supreme court.* The statute gives the form of the plaintiff's bond as well as of the writ of attachment.^ Attachment against joint debtors. — Section 7 provides that " In all cases where two or more persons are jointly in- debted, either as partners or otherwise, and an affidavit shall be filed as provided in the first section of this act, so as to bring one or more of such joint debtors within its provisions, and amenable to the process of attachment, then the writ of attachment shall issue against the property and effects of such as are so brought Avithin the provisions of this act; and the officer shall be also directed in said writ to summon all joint debtors named in the affidavit filed in the case, whether the attachment is against them or not, to answer to the said action, as in other cases of joint defendants."® Under the Illinois statute an attachment against a partner- ship by the firm name, as an entity, can only be sustained when the affidavit discloses grounds of attachment against ' Starr & Curtis 316; Rev. Stat. 577; Turner v. Armstrong, 9 Bradw. (1893) 170; Rev. Stat. (1895) 174; see 24. Haywood v, McCrary, 33 111. 460; * Morris v. Trustees, 15 111. 266; Laiover v. Langhans, 85 111. 138; Lawver v. Langhans, 85 111. 138; Buchman v. Dodds, 6 Brad. 25; Field Miere v. Brush, 3 Scam. 21. Y.Shoojy, 6 Bradw. 445; Kellogg v. ^1 Starr & Curtis 312; Rev. Stat. Shooji, 6 Bradw. 454. (1893) 169; Rev. Stat. (1895) 173. 2 1 Starr & Curtis 311; Rev. Stat. «1 Starr & Curtis 312; Rev. Stat. (1893) 169; Rev. Stat. (1895) 173. (1893) 170; Rev. Stat. (1895) 174. 2 See Singleton v. Waffoi-d, 3 Scam. ATTACHMENT 3S1 each of the partners, and when such grounds exist. All the partners must be brought within the jurisdiction of the court.* Execution of the writ — Service on the defendant, etc. — Section 8 provides that " The officer shall without delay execute such writ of attach- ment upon the lands, tenements, goods, chattels, rights, credits, moneys and effects of the debtor, or upon any lands or tene- ments in and to which such debtor has or may claim any equi- table interest or title, of sufficient value to satisfy the*^ claim sworn to, with costs of suit as commanded in such writ." ^ It has been held that this statute should be liberally con- strued and that whatever is the proper subject of seizure and sale on execution, may be taken in a proceeding by attach- ment, and held subject to sale under the judgment that may be recovered. Shares of stock in an incorporated company are subject to attachment under the laws of this state. In case the shares have been attached, the purchaser at the sher- iff's sale on execution will be entitled to all the dividends ac- cruing after the attachment.' Alias attachment writs are not authorized by the statute." Certificate of levy. — Section 9 provides that " When a writ of attachment is levied upon any real estate, in any case, it shall be the duty of the officer making the levy to tile a certiticate of such fact with the recorder of the county where such land is situated; and from and after the filing of the same such levy shall take effect, as to creditors and hona fide purchasers, without notice, and not before." ^ Serving defendant — Return, etc. — Sections 10, 11 and 12 provide that " The officer shall also serve said writ upon the defendant therein, if he can be found, by reading the same to him or delivering a copy thereof. The return to such writ shall state the particular manner in which the same was served." ^ Bates on Partnership, Sec. 1117; Culver v. Rumsey, 7 Bradw. 442; Lawrence v, Steadman, 49 111. 270; Wallace v. Monroe, 22 111. App. 602. Hinman v. Opera Co., 49 111. App. * Bank v. Byram, 131 111. 92. 135. '' Dennison v. Blumenthal, 87 111. « 1 Starr & Curtis, 313; Rev. Stat. App. 385. (1893) 170; Rev. Stat. (1885), 174; see ^See Martin v. Dryden, 1 Gilm. May V, Baker, 15 111. 89; Loivery v. 187; Pearl v. Wellman, 3 Gilm. 311; Wright, 15 111. 95; West v. Schnebly, Jones v. Jones, 16 111. 117. 54 111. 523: Chjmore v. Williams, 77 « 1 Starr & Curtis 315; Rev. Stat. m. Q18; Bank V. Keeler, 103 m. 425; (1893), 170; Rev. Stat. (1895), 174; Culver V. Rumsey, 6 Bradw. 598; Bee Reitz v. People, 77 111. 518. 3S2 ATTACHMENT. If it shall appear, b}^ the affidavit, that a debtor is actually absconding, or concealed, or stands in defiance of an officer duly authorized to arrest him on civil ])rocess, as aforesaid, or has departed this state with the intention of having his effects and personal estate removed out of the state, or intends to de- part with such intention, it shall be lawful for the clerk to issue, and the sheriff or other officer to serve, an attachment against such debtor, on a Sunday as on any other day.' If the defendant, or any person for him, shall be in the act of removing any personal property, the officer may pursue and take the same in any county in this state, and return the same to the county from which such attachment issued." ' The declaration, etc. — The declaration is to be in form to correspond with the nature of the action in which the attach- ment has issued. It must be filed on the return of the attach- ment, or at the term of the court when the same is made returnable. If the declaration is not so filed, the defendant may, in the discretion of the court, have the suit dismissed;^ but the plaintiff has the whole term in which to file a declara- tion. The defendant may, however, obtain a rule on the plaint- iff to file a declaration withii;! a reasonable time during the return term; and upon a failure to comply with the rule, the suit may be dismissed. The statute applies as well to cases where there is as where there is not personal service.* The declaration must be limited to the cause of action speci- fied in the affidavit. If the plaintiff might recover under the common counts, on the cause of action set forth in the affidavit, commencing by attachment does not deprive him of the right to declare in that way.' Garnishees. — Section 21 of the statute provides that " When the sheriff or other officer is unable to find property of any defendant, sufficient to satisfy any attachment issued under the provisions of this act, he shall summon the persons 1 1 Starr & Curtis 316; Rev. Stat. * Stoddard v. Miller, 29 1\\. 291; (1893) 170; Rev. Stat. (1895), 174; White v. Hogiie, 18 111. 150: Plato see Thomas y. Hinsdale, 78 III. 259. v. Turrill, 18 111. 273; see Craft v. "' See Home v. Hamilton, 43 111. Turney, 25 111. 324; Lawver v. Lan- 185. ghans, 85 111. 138; Bartlett v. Sulli- »1 Starr & Curtis 320; Rev. Stat. van, 87 lU. 219. (1893), 172; Rev. Stat. (1895), 176; ^ Tunnison v. Field, 21 111. 108; Thompson v. Conover, 12 Bradw. see Plato v. Turrill, 18 111. 273. 302. ATTACHMENT. 383 mentioned in such writ as garnishees, and all other persons within his county whom the creditor shall designate as having an}"^ property, effects, choses in action or credits, in their posses- sion or power belonging to the defendant, or who are in any- wise indebted to such defendant, tlie same as if their names had been inserted in such writ; the persons so summoned shall be considered as garnishees, and the sheriff shall state, in his return, the names of all persons so summoned, and the date of such service on each." ' Notice to the defendant by pnblication. — Section 22 pro- vides that " "When it shall appear by the affidavit filed, or by the return of the officer, that a defendant in any attachment suit is not a resident of this state, or the defendant has departed from this state, or on due inquiry can not be found, or is concealed within this state, so that process can not be served upon him, it shall be the duty of the clerk of the court in which the suit is pending to give notice, by publication at least once in each week for three weeks successively, in some newspaper published in this state, most convenient to the place where the court is held, of such attachment, and at whose suit, against whose estate, for what sum, and before what court the same is pending; and that unless the defendant shall ap- pear, give bail, and plead within the time limited for his appearance in such case, judgment will be entered, and the estate so attached will be sold. And such clerk shall, within ten days after the first publication of such notice, send a copy thereof by mail, addressed to such defendant, if the place of residence is stated in such affidavit; and the certificate of the clerk that he has sent such notice in pursuance of this section, shall be evidence of that fact." ^ Where there is no personal service upon the defendant, the record must show affirmatively that the requirements of the statute, in regard to notice by publication, have been fulfilled.' Default — Continuance for service, etc. — Sections 23 and 24 provide that No default or proceeding shall be taken against any defend- ant not served with summons, unless he shall appear, until the expiration of ten days after the last publication as aforesaid. ' 1 Starr & Curtis 319; Rev. Stat. Dennison v. Taylor, 142 111. 45; (1893), 172; Rev. Stat. (1895.), 176. Baldwin v. Ferguson, 35 111. App. 2See Pierce V. CaWefo?i. 12 111. 358; 393; Smith v. H\iniooii, 1R4 111. 24, Thormeyer v. Sisson, 83 111. 188; ^ Haywood v. McCrory.Sii III 4r}d; Lau-ver v. Langhans, 85 111. 138; Lander v. Langhans. 85 111. 1C8; Smith V. Clinton, 13 Bradw. 572; Haywood v, Collins, CO 111. 328. Haywood \. Colliiis, 60 111. 328; 384: ATTACHMENT. " If for want of due publication or service, the cause is con- tinued, the same proceedings shall be had, at a subsequent term of the court, as might have been had at the term at which the writ is returnable." * DEFENSES TO THE PROCEEDING. The statute provides that "defendant may plead, traversing the facts stated in the affidavit upon which the attachment issued, which plea shall be verified by affidavit; and if, upon the trial thereof, the issue shall be found for the plaintiff, the defendant may plead or demur to the action as in other cases, but if found for the defendant, the attachment shall be quashed, and the costs of the attachment shall be adjudged against the plaintiff, but the suit shall proceed to final judg- ment as though commenced by summons." ^ No. 219. Plea in abatement of the writ. In the Court. Term, 18—. C. D. ) ats. > Attachment. A. B. ) And the defendant, by G. H. , his attorney, comes and defends, etc, and prays judgment of the said writ, and that the same may be quashed, because he says that [here traverse the allegations of the affidavit). And of this the defendant puts himself upon the country, etc.^ At common law, the filing of a plea in bar, before a plea in abatement w^as disposed of, was a waiver of a plea in abate- ment. But while this plea is called a plea in abatement, and for most purposes is governed by the rules applicable to such pleas, yet under such practice the issue presented b}^ a plea to a "writ of attachment is not waived by filing pleas in bar to the cause of action set forth in the declaration. They should all be submitted to the same jury.* A plea in abatement of an attachment writ should conclude 1 Starr & Curtis, 320; Rev. Stat. * See Bates v. Jenfcins, Breese, 411; (1883), 172; Rev. Stat. (1895), 176; White \.\ViUon,bGi\m. 21; Walker Firebaugh v. Hall, 63 111. 81. v. Welsh, 13 111. 674; Eddy v. Brady, ^S>ee Bates y. Jenkins, Breese, 4:11; 16 111. 306; Pulliam v. Nelson, 28 Boggs v. Bindskoff, 23 111. 67; Law- 111. 113; Hawkins v. Albright, 70 rence v. Steadman, 49 111. 270; see 111. 88. Hawkins v. Albright, 70 111. 88; * Hawkins v. Albright, 10111.88. Schwabacher v. Rush, 81 III. 310. ATTACEMENT. 385 to tbe country, cancl issue is joined thereon by adding the com- mon similiter. The burden of proof is on the plaintiff' to maintain the alleo-a- tions of his aflidavit; and if the finding on such issue is for the defendant, the writ is to be quashed.' It was formerly the practice, in such event, to abate the suit," but the statute (the section last above quoted), now provides that the suit shall proceed to final judgment as though commenced by summons. A plea which avers that the defendant was not a non-resi- dent at the time the writ issued, is sufficiently certain, when it appears that the affidavit was made the same day the writ issued.^ Where an affidavit for attachment set out as ground there- for, that the defendant " has, within two years last past, fraudulently conveyed or assigned his property or effects, so as to hinder and delay his creditors," and the defendant pleaded in abatement that he " has not within two years last ]iast fraudulently conveyed or assigned his property with intent to hinder and delay his creditors," the plea was, on demurrer, held to be bad because it failed to deny that the de- fendant had, within two years before the commencement of the suit, fraudulently disposed of his property.* Practice and pleadings. — Section 26 provides that the practice and pleadings in attachment suits, except as other- wise provided by the statute in relation to attachments, are to conform, as nearly as may be, to the practice and pleadings in other suits at law.* An attachment suit will not abate b}" the death of the sole defendant, but survives against his administrator." ^Ridgwmj v. Smith, 17 111. 33; ^ Parson v. Case, 45 1]]. 2%. Lawrence X. Steadman, A% IW . 210; * McFarland v. Claypool, 128 III. See White v. Wilson, 5 Gilm. 21; 397. Walker Y.Welsh, mill 61-i\ Eddy V. ^ gtarr & Curtis 320; Rev. Stat. Brady, 16 111. 306; PulUamv. Xelson, (1893) 172; Rev. Stat. (1895) 176; see 28 111. 113; Han-kins v. Albright, 70 Edwards v. Haring, 59111. App. 147; 111. 88. Ilecht V. Feldman, 153 111. 390; Bank ^Lawrerice v. Steadman, 49 111. v. Byram, 131 111. 92. 270; see Boggs v. Bindskoff, 23 111. ^ Doiv v. Blake, 148 111. 76; Sharpe 67; Bates v. Jenkins, Breese, 411 v. Morgan, 144 111. 382. 25 380 ATTACHMENT. A defendant may avail himself of any set-off properly plead- able by the laws of the state.' By simply appearing and pleading", a defendant can not have an attachment dissolved. This can only be effected by giving bond and security, as required by the statute.' A defendant is not required to plead to the affidavit for an attachment in aid, until a term of the court commencing not less than ten days after the attachment is sued out;' and the issue made by traversing the affidavit can not, without the plaintiff's consent, be tried before the first term of court at which the writ could properly be made returnable." Fortliconiing bond, etc. — The statute provides (section 14) that " the officer serving the writ shall take and retain the custody and possession of the property attached, to answer and abide by the judgment of the court, unless the person in whose possession the same is found, shall enter into bond and secu- rity to the officer, to be approved by him, in double the value of the property so attached, with condition that the said estate and property shall be forthcoming to answer the judgment of the court in said suit. The sheriff, or other officer, shall re- turn such bond to the court in which the suit is brought, on the first day of the term to which the attachment is return- able." ' Bond or recognizance to cover the judgment, etc. — The statute further provides (section 15> that " any defendant in at- tachment, desiring the return of property attached, may, at any time except in term time, at his option, instead of or in substitution for the bond required in the preceding section, give like bond and security, in a sura sufficient to cover the debt and damages sworn to in behalf of the plaintiff, with all interest, damages and costs of suit, conditioned that the defend- ant will pay the plaintiff the amount of the judgment and costs which may be rendered against him in that suit, on a final trial, within ninety days after such judgment shall be ren- dered. In term time, a recognizance, in substance as afore- said, may be taken in open court, and entered of record, in which case the court shall approve of the security and the re- '1 Starr & Curtis 323; Rev. Stat. ♦ Hecht v. Feldman, 153 111. 390. (1893) 173; Rev. Stat. (1895) 177. * 1 Starr & Curtis 316; Rev. Stat. "^Martin v. Dryden, 1 Gilm. 187; (1893) 171; Rev. Stat. (1895) 175; see Conn V. Caldwell, 1 Gilm. 531. Williamson v. Hogan, 46 111. 504; « Crandall v. Birge, 61 111. App. Roberts v. Dunn, 71 111. 46; Turner 234. V. Armstrong, 9 Bradw. 24. ATTACHMENT. 3S7 cognizance made to the plaintiff, and upon a forfeiture of such recognizance, judgment ma}^ be rendered and execution issued' as in other cases of recognizance. In either case the attach- ment shall be dissolved, and the property taken restored, and all previous proceedings, either against the sheriff or against the garnishees, set aside, and the cause shall proceed as if the defendant had been seasonably served with a writ of sum- mons." ' The purpose and effect of giving a recognizance by the de- fendant in attachment, as provided in section 15 of the at- tachment act, is to enable the defendant to obtain control of the property attached or in the hands of garnishees, upon giv- ing security for the payment of the judgment to be recovered in the attachment suit. Upon giving the bond or recognizance, the case proceeds in personam, and the judgment entered is a personal judgment, the recognizance standing as security for its payment." Interpleader by a third party, claiming the property at- tached. — Section 29 provides that " In all cases of attachment, any person, otli.er than the defendant, claiming the property attached, may interplead, verifying his jilea by affidavit, with- out giving bail, but the property attached shall not thereby be replevied; and the court shall immediately (unless good cause be shown by either party for a continuance) direct a jury to be impaneled to inquire into the right of property; in all cases where the jury find for a claimant, such claimant shall be entitled to his costs; and where the jury find for the plaint- iff in the attachment, such ])laintiff shall recover his costs against such claimant. If such claimant is a non-resident of the state he shall file security for costs as in case of non-resi- dent plaintiff." ' The right of interpleader extends to real as well as per- sonal property attached." The interpleader should be inter- posed while the attachment suit is still in Ji3ri, which is before ' 1 Starr & Curtis 317; Rev. Stat. Ins. Co. v. Banh, 68 111. 348; (1893) 171; Rev. Stat (1895) 175; see Meadowcraft v. Agneic, 89 111. 469; People V. Cameron, 2 Gilm. 468; James v. Dexter, 113 111. 654: Ripley Eimer v. Richards, 35 111. 289; Hill v. Bank, 18 Bradw. 430; Fancell v. V. Harding, 93 111. 77. Jenkins, 18 Bradw. 491; Juilliard v. ' Sharpe v. Morgan, 144 111. 383. May, 130 111. 87. 3 Starr & Curtis, 332; Rev. Stat. *Bostwick v. Blake, 145 111. 85; (1893), 173; Rev. Stat. (1895), 177; Ducker v. Wear, 145 111. 653. see Purcell v. Steele, 13 111. 93; 3SS ATTACHMENT. or (luring tlie term at which final judgment is entered against the defendant in attachment.' If it is not filed in apt time the ])laintiff should move to strike it from the fdes.' The only question under the interpleader is the title to the pro])erty in dispute, and upon this the burden of proof is on the inter- pleader.* No. 220. Plea hy a third person, claiming the property. In the Court. Term, 18—. A. B. ) vs. y Attachment. C. D. ) And J. K., by L. M., his attorney, comes and interpleads, according to the form of the statute in such case made and provided, and says, that the goods and chattels {or " parcel of the goods and chattels, to wit." describing them,) attached and seized by virtue of the said vprit of at- tachment, in this behalf, were at the time the same were so attached and seized, and still are. the property of him, the said J. K., and not of the said C. D.: And this the said J. K. is ready to verify: wherefore he prays judg- ment if his said goods and chattels ought to be detained by virtue of the said writ, etc. {Add affidavit, as under last precedent.) ATTACHMENT IN AID OF SUIT. Sections 31, 32 and 33 of the statute provide that " the plaintiff in any action of debt, covenantor trespass, or on the case uyion promises, having commenced an action by summons or capias, may at any time pending such suit, and before judg- ment therein, on filing in the ofhce of the clerk where such action is pending a sufficient bond and affidavit showing his rio-ht to an attachment under the first section of this act, sue out an attachment against the lands, goods, chattels, rights, moneys, credits and effects of the defendant, which said at- tachment shall be entitled in the suit pending, and be in aid thereof; and such proceedings shall be thereupon had as are required or permitted in original attachments, as near as may be : * Provided, this section shall not apply to actions in which the defendant has been arrested and has given special bail. And provided further., that In all actions of trespass, and tres- pass on the case, before a writ of attachment shall be issued, ^Jidliardv. May, 130 111. 87. Bank v. Nevman, 55 111. App. 534; ^Jiaiiardv. May, 130 111. 87. Bosticick v. Blake, 145 111. 85. « Marshall V.Cunningham, 13 111. * Schnlenherg v. Faricell, 84 111. 20; Dexter v. Perkins, 23 111. 143; 400; Leopold v. Steele, 41 111. App. Merrick v. Davis^ 65 111. 319; Comvi. 17. ATTACHMENT. 389 the plaintiflP, his agent or attorney, shall apply to a judo^e of a court of record or a master in chancery of the county in which the suit is pending, and be examined, under oath, by such judge or master concerning the cause of the action; and there- upon such judge or master shall indorse upon the affidavit the amount of damages for which the writ shall issue, and no greater amount shall be claimed. " In all cases when a scire facias shall be sued out of any court of this state, to make any person party to any judgment that has been or hereafter may be rendered therein, writs of attachment may be issued in aid thereof, against any one or all persons named in such scire facias^ to any county of this state, upon the terms provided in this act; and the parties in such writs of attachment may be brought in by notice, as in other cases of attachment, when personal service can not be had. " Upon the return of attachments issued in aid of actions pending, unless it shall appear that the defendant or defend- ants have been served with process in the original cause, notice of the pendency of the suit, and of the issue and levy of the attachment, shall be given as is required in cases of original attachment; and such notification shall be sufficient to entitle the plaintiff to judgment, and the right to proceed thereon against the property and estate attached, and against gar- nishees, in the same manner and with like effect as if the suit had been commenced by attachment." ' No. 221. Affidavit for attachment in aid of action of assumpsit, debt or covenant. In the Court. A. B. ) vs. V Assumpsit. C. D. ) The said A. B. , plaintiff, makes oath and says, that the said C. D., defendant, is indebted to liim, tlie said A. B., in the sum of dollars, (after allowing all just credits, deductions and set-offs.) for {here set forth the natiire of the debt); and that the said C. D. {here set forth one or more of the causes mentioned in the statute.) And this affiant further says, that the place of residence of the said C. D. is {or " is unknown to this affiant, and upon diligent inquuy he has not been able to ascertain the same "). Subscribed and sworn, etc. A. B. '1 Starr & Curtis 323-324; Rev. Butcher v. Crou-etl, 5 Gilm. 445; Stat. (189.3) 173; Rev. Stat. (1895) 177; Schulcnberg v. Furu-ell, 84 III. 400; see -Beec/ier V. James, 2 Scam. 4G2; Roberts v. Dunn, 11 III. iQ; Wassou Ryder v. Glover, 3 Scam. 548; v. Cone, 86 ill. 46. 890 ATTACHMENT. When made by an agent or attorney, the affidavit should commence in this manner : " E. F., of, etc., makes oath and says that he is the agent {or 'attorney') in this behalf of the said A. B., plaintiff; and that the said C. I), is indebted to the said A. B.," etc. No. 222. Affidavit for aftachment in aid of action of tresjyass or case. In the Court. A. B. ) vs. >■ Trespass. C. D. ) The said A. B., plaintiff, makes oath and says, that (here set forth the nature and cause of the action, with the substantial facts in rela- tion thereto). And this affiant further says that the amount of his damages can not be definitely stated, but he believes he has sustained damages in this behalf to the amount of dollars. And this affiant further says that the said C. D. {here set forth the cause for the attachment.) And this affiant fuither says that the place of residence of the said C. D. is {or " is unknown to this affiant, and upon diligent inquiry he has not been able to ascertain the same "). A. B. Subscribed and sworn, etc. See the remark under the last precedent. The facts constituting the cause of action should be set forth substantially as in a declaration. No. 223. Judge's or master's order, to be indorsed on the affidavit. The affiant having been examined on oath, before me, concerning the cause of action within set forth, let the attachment issue for the sum of dollars. {Date.) R. S., Judge. To L. M., Clerk, etc. Service. — "Where the defendant is properly served in the original suit, no service is required in an attachment in aid.' Judgment when the defendant is not personally served, etc. — Section 35 jirovides that " when the defendant shall be notified as aforesaid," (by advertisement,) " but not served with process, and shall not appear and answer the action, judg- ment by default may be entered, which may be proceeded upon to final judgment as in other cases of default, but in no case shall judgment be rendered against the defendant for a greater ^Bailey v. Valley Bank, 137 111. 333; Rutledge v. Stribling, 36111. App. 353. ATTACHMENT. 391 sum than appears, by the affidavit of the plaintiff, to have been due at the time of obtaining the attachment, with inter- est, damages and costs; and such judgment shall bind, and a special execution shall issue against the property, credits and effects attached, and no execution shall issue against any other property of the defendant; nor shall such judgment be any evidence of debt against the defendant in any subsequent suit," ' To give the court jurisdiction where there is no personal service, it is indispensable that the writ be either levied upon property or served upon garnishees having effects or credits in their possession belonging to the defendant.* Sale of property on execution. — Section 36 provides that the property attached maybe levied upon by execution issued in the attachment suit, whether in the hands of the officer or secured by bond as provided in this act, and shall be sold as other property levied upon by execution.^ Division of proceeds, etc. — Section 37 provides that "all judgments in attachments against the same defendant, return- able at the same term, and all judgments insults by summons, capias or attachment against such defendant, recovered at that term or at the term when the judgment in the first attach- ment upon which judgment shall be recovered is rendered, shall share 2?ro rata^ according to the amount of the several judgments, in the proceeds of the property attached, either in the hands of a garnishee or otherwise : Provided, when the property is attached while the defendant is removing the same, or after the same has been removed, from the county, and the same is overtaken and returned, or while the same is secreted by the defendant, or put out of his hands, for the purpose of defrauding his creditors, the court may allow the creditor or creditors through whose diligence the same shall have been secured a priority over other attachments or judgment cred- itors." * » 1 Starr & Curtis 324; Rev. Stat (1893), 174; Rev. Stat. (1895), 178; (1893), 174; Rev. Stat. (1895), 178. see Sav. Inst. v. Givens, 82 111. 157. 2 Clymore v. Williams, ll 111. 618; Gregory v. Gover, 19 111. 608; Smith Borders v. Murphy, 78 IlL 81; Mar- v. Bridge Co., 13 Bradw. 572; hank tin v. Dt-yden, 1 Gilm. 187; Schorer v. Bank Co., 114 111. 483; Smith v. v.Pettibone, 58m. App.iSQ; Tennent Reeve, 113 III 41; Kennedy v. Wikoff, v. Hargardin, 58 111. App. 368. 21 111. App. 277; Donk v. Alexander, 3 See Clymore v, Williams, 77 111. 117 111. 330; Locke v. Duncan, 53 618. 111. App. 373; Everingham v. Bank, 4 1 Starr & Curtis, 325; Rev. Stat. 124 111. 527. 392 ATTACHMENT. This section (37) does not apjiy to garnishee proceedings.' Division by the sheriff, etc. — Section 38 provides that "upon issuing executions against any property attached, the proceeds of which shall be required to be divided, the clerk shall, at the same time, make out and deliver to the sheriff, or other officer to whom the execution is issued, a statement of all judgments, with the costs thereon, which shall be entitled to share in such proceeds, and when any judgment creditor shall have been allowed a priority over the other judgment creditors, the same shall be stated. "Upon the receipt of such proceeds by the sheriff or other officer, he shall divide and pay over the same to the several judgment creditors entitled to share in the same in the proportion they shall be entitled thereto." ' Proceeds brouglit into' court. — Section 39 provides that " the court may, at any time before the proceeds of any at- tached property has been paid over to the judgment credit- ors, order the whole or any part thereof to be paid into court, and may make any and all such orders concerning the same as it shall deem just." " GARNISHMENT. The statute upon "Garnishment" (Sec. 1) provides that "whenever a judgment shall be rendered by any court of rec- ord, or any justice of the peace in this state, and an execution against the defendant in such judgment shall be returned by the proper officer, ' JSTo property found,' on the affidavit of the plaintiff, or other credible person, being filed with the clerk of such court, or justice of the peace, that said defendant has no property within the knowledge of such affiant, in his possession, liable to execution, and that such affiant hath just reason to believe that any other person is indebted to such defendant, or hath any effects or estate of such defendant in his possession, custody or charge, it shall be lawful for such clerk or justice of the peace to issue a summons against the person supposed to be indebted to, or supposed to have any of the effects or estate of the said defendant, commanding him to ap- pear before said court or justice, as a garnishee; and said court or justice of the peace shall examine and proceed against such ^ Kennedy V. Wikoff, 21 111. App. ^ 1 Starr & Curtis 327; Rev. Stat. 277. (1893), 174; Rev. Stat. (1895), 178; 21 Starr & Curtis 327; Rev. Stat. see Breicster v. jRi7e?/, 19 Bradw. (1893), 174; Rev. Stat. (1895), 178; 581; Pollack v. Slack, 92 111. 221; see Chandler v. Mulkmphy, 2 Gilni. Donk v. Alexander, 117 111. 330. 464; Heyer v. Alexander, 108 111. 385; Roofing Co. v, Macey, 115 111. 390. ATTACHMENT. £93 garnishee or frarnisliees, ia the same manner as is required by law against garnishees in original attachments." ^ Only debts which the judgment debtor could recover by action at law can be reached by process of garnishment.^ No. 224. Affidavit for jjrocess of garnishment. {Venue and title of cause as in No. 220, ante, page 388.) A. B., the plaintiff in the above entitled cause, makes oath and says, that on, etc. , he recovered a judgment in this court against the said C. D. for the sum of dollare and costs of suit; that on, etc., an execution was issued on said judgment, and delivered to the sheriff of said county, it be- ing the county in which the defendant then and still resides, to execute; that on, etc., said sheriff returned said execution •' no property found; " affiant further states that the said C. D. has no property within the af- fiant's knowledge, liable to execution; and affiant has just reason to be- lieve that G. H. and J. K. are indebted to the said C. D., or have effects or estate of the said C. D. in their possession, custody or charge. A. B. Subscribed and sworn to, etc. Service and return of summons. — Sections 2, 3 and 4, pro- vide that " such garnishee summons, when issued by the clerk of a court of record, shall be made returnable, and be served as other summonses. "No judgment by default shall be rendered unless such process shall have been served ten days before the return day; but if such process shall have been served within less than ten days, it shall be deemed returnable on the first day of the next term of the court. If garnishee process shall be issued in term time, it shall be made returnable on the first day of the next term of the court. " If such process is issued by a justice of the peace, it shall be made returnable within the same time, and be served in the same manner as other summonses issued by justices of the peace." ^ Interrogatories and answers. — Section 5 provides that ' 1 Starr & Curtis 1217; Rev. Stat. Chatroop v. Borgard, 40 111. App. (1893), 780; Rev. Stat. (1895), 829; 279; Joseph v. Krone, 120 Ind. 495- see R. R. Co. v. Retjnolds, 72 111. 487; =* 1 Starr & Curtis 1220; Rev. Stat. Pierce Y. Wade, 19 Bradw. 185; Ins. (1893)781; Rev. Stat. (1895) 830; see Co. V. Connor, 20 Bradw. 297. Trans. Co. v. Schirmer, 64 III. 106 ^3Iining Co. V.Richardson, SSIU. Ry. Co. v. Reynolds, 72 111. 487 App. 280; Richardson v. Lester, 83 Roofing Co. v. Macey, 115 111. 390 111. 55; Netter v. Board, 12 111. App. Ripley y. Bank, 18 Bradw. 430. 607; Webster v. Steele, 75 111. 544; 394 ATTACHMENT. " when any person is summoned as a garnishee upon any proc- ess of attachment or garnishee summons issued out of a court of record, the plaintiff shall, at or before tlie term at Avhich the garnishee is bound to appear, or within such further time as the court shall allow, exhibit and file all and singular such al- legations and interrogatories, in writing, upon which he shall be desirous to obtain and compel the answer of any and every garnishee, touching the lands, tenements, goods, chattels, moneys, choses in action, credits and effects of such defendant, and the value thereof, in his possession, custod}'^ or charge, or from him due and owing to the said defendant at the time of the service of the said writ, or at any time after, or which shall or may thereafter become due; and it shall be the duty of every garnishee to exhibit and file, under his oath or affirma- tion, within ten days after he shall be notified of the filing of such interrogatories, or if no notice of the filing of the same shall have been served upon him, then on or before the third day of the next succeeding term after the term at which such interrogatories are filed, full, direct and true answers to all and singular the allegations and interrogatories by the plaintiff so exhibited and filed; but in no case shall the garnishee be com- pelled to answer before the third day of the return term of the garnishee process." * Until interrogatories are filed, and an opportunity is afforded to the garnishee to answer them, and a conditional judgment taken, and a scire facias issued and served (or notice given), a final judgment can not be rendered.^ No. 225. Interrogatories to garnishees. In the Court. Term, 18—. A. B. ) vs. > Assumpsit. CD.) luteiTogatories to be answered by G. H., J. K and N. O., re- spectively, as garnishees in this behalf : 1. Are you acquainted with the parties plaintiff and defendant in this cause? 2. Had you at or after the time of the service of process on you in this cause, or have you now, in your possession, custody or charge, any lands, n Starr & Curtis 1221; Rev. Stat. 70 111. 168; Wilms v. Kling, 87 111. (1893) 781; Rev. Stat. (1895) 830; see 107. Warnev. Kendall, 78 111. 598; Web- * Williams v. Van Meter, 19 111. ster V. Steele, 75 111. 544; Laidlou v. 293; R. R. Co. v. Keohane, 31 111. Hatch, 75 111. 11; Dieter v. Smith, 144; Cornell v. Payne, 115 111. 63; Bank v. M. S. Ass'n, 20 Bradw. 133. ATTACHMENT. 395 tenements, goods, chattels, moneys, choses in action, credits or effects of the said C. D.? If yea, set forth fully and particularly the kind, number, quantity and value thereof respectively. 3. Were you at or after the time of the service of such process on you, or are you now, in any manner indebted to the said C. D.? K yea, set forth fully and particularly for what, how, and to what amount you were or are so indebted to him. {Add such interrogatories as the circumstances may require.) E. F., Attorney for Plamtiff. No. 226. Ansioer of garnishee. In the Court. Term 18—. A. B. ) vs. V Assumpsiit. C. D. \ The anssvers of G. H. to the interrogatories propounded to him, as garnishee in this behalf, by the said A. B., plaintiff : 1. To the first inteiTogatory, the said G. H. answering says, that {here insert the matter of the ansicer). 2. To the second interrogatory, the said G. H., answering says, that, etc. {Answer all the interrogatories in succession and add affidavit as fol- lows :) In the Court. A. B. ) vs. |- Assujnpsit. C. D. ) G. H. makes oath and says, that the foregoing answers, by him made, are true in substance and in fact. G. H. Subscribed and sworn, etc. If a private corporation is made a garnishee, it may answer by its proper officer or agent, but the answer must be under oath.' Plaintiif may contest the answer. — Section 7 provides that " when the plaintiff in any garnishee proceeding shall allege that any garnishee served with process, or appearing before any court, hath not truly discovered the lands, tenements, goods, chattels, moneys, choses in action, credits and effects, or if before a justice of the peace such personal effects of the defendant in the attachment suit or judgment, and the value thereof, in his possession, custody or charge, or from him due and owing to the defendant at the time of the service of the writ, or at any time after, or which shall or may thereafter become Wliver v. R. R. Co., 17 111. 587; Co. v. 3Jacey, 115 111. 390; R. R. Co. Cornellv. Payne, 115 111. 63; Rooting v. Mason, 11 Bradw. 525. 396 ATTACHMENT. due, the court or justice of the peace shall immediately (unless the case shall for good cause be continued) proceed to try such cause, as against sucii garnishee, without the forinality of pleading. The trial shall be conducted as other trials at law, and if the finding or verdict shall be against the garnishee, judgment shall be given against him in the same manner as it" the facts had been admitted by him, with all costs of such trial. If the finding shall be in favor of the garnishee, he shall recover his costs against the plaintiff. And in case the gar- nishee admits indebtedness to the judgment debtor, he shall not be liable for costs." ^ The answer of a garnishee will be consid-ered as true until it is contradicted or disproved.^ It however only makes a case jprhna facie for the garnishee, and may be overcome by preponderating testimony.^ If it is vague and evasive it will be construed most strongly against the garnishee;* but although it may not be strictly sufficient, it will prevail, unless exceptions are taken to it by demurrer or otherwise.^ A ground of defense proved by a garnishee will not avail, however just in itself, unless it is consistent with the allega- tions of his answer.* Garnisliee may deduct demands, etc.^ — Section 13 of the statute provides, that " every garnishee shall be allowed to retain or deduct out of the property, effects or credits in his hands all demands against the plaintiff, and all demands against the defendant, of which he could have availed himself if he had not been summoned as garnishee (whether the same are at,tbe time due or not), and whether by way of set-off on a trial, or by the set-off" of judgments or executions between himself and the plaintiff and defendant severally; and he shall be liable for the balance only after all mutual demands between himself and the plaintiff and defendant are adjusted, not including unliqui- dated damages for wrongs and injuries : Provided, that the » 1 Starr & Curtis, 1223; Rev. Stat. Mliite, 88 111. 43; Ri]ppen v. Sehoen, (1893) 781; Rev. Stat. (1895) 830; see 92 111. 229. Ry. Co. V. Mason, 11 Bradw. 525. ^ Kergin v. Dawson, 1 Gilm. 86; ^Pierce v. Carleton, 12 111. 358; ScJnoab v, Gingenck, 13 111. 697; McCoy V. Williams, 1 Gilm. 584; Pierce v, Carleton, 12 111. 358; Eoof- People V. Johnson, 14 111. 342; see ing Co. v. Macey, 115 111. 390. Dieter v. Smith, 70 111. 168; Truitt * Grain v. Gould, 46 111. 293; Ins. V. Griffin, 61 111. 26; E. R. Co. v. Co. v. Shimer, 96 111. 580. Hindman, 85 111. 521; R. R. Co. v. ^ J. C. R. R. Co. v. Cobb. 48111. 402. Killenberg, 82 111. 295; Laschear v. « Church v. Hyde, 40 111. 150. ATTACHMENT. 397 verdict or finding, as well as the record of the judgmont, shall show in all cases, against which party, and the amount thereof, any set-off shall be allowed, if any such shall be allowed." ' Where a garnishee charges himself with a sum of money, against which he claims a set-off, he must show the extent of his claim, or state facts from which the court can determine the amount. It would be a fraud upon creditors to permit a debtor to place his propert}^ beyond their reach, by depositing it wdth another person, to be held nominally for future serv- ices or advances.^ Other claimants of effects in the hands of c:arnishees. — Sections 11 and 12 provide that " If it appears that any goods, chattels, choses in action, credits or effects in the hands of a garnishee are claimed by any other person, by force of an as- signment from the defendant, or otherwise, the court or justice of th3 peace shall permit such claimant to appear and main- tain his right. If he does not voluntarily appear, notice for that purpose shall be issued and served on him in such man- ner as the court or justice shall direct. " If such claimant a])pears, he may be admitted as a party to the suit, so far as respects his title to the property in ques- tion, and may allege and prove any facts not stated or denied bv the garnishee, and such allegations shall be tried and determined in the manner hereinbefore provided. If sucli ])erson shall fail to appear after having been served with no- tice in the manner directed, he shall nevertheless be concluded by the judgment in regard to his claim.'' ^ Where property has been placed in the hands of a person to secure him against loss by reason of his becoming surety for anotlier, such property is a pledge, and the person to whom it is pledged may retain it until his liability as a surety is extin- guished." As between the parties, an assignment without notice by the assignee to the holder of the fund takes effect, and has precedence of a subsequent garnishment against the assignor." ' 1 Starr & Curtis 1225; Rev. Stat. Stevens v. Dillman, 86 111. 233; Shel- (1893) 782; Rev. Stat. (1895) 831; do?i v.iy/»/o?i,6 Brad\v.216; Ins. Co. Rankinv. Simonds, 21 III. S52: R. R. v. Kennedy, 57 111. App. 136; Bank Co. V. R. R. Co., 1 Bradw. 399. v. Ncirman, 55111. App. 534. - Craig v. Gould, 46 111. 293. " Kergin v. Datcson, 1 Gilm. 86; n Starr & Curtis, 1225; Rev. Stat. see Dressor v. McCord, 96 111. 389. (1893), 782; Rev. Stat. (1895), 831; see ^ Gregg v. Savage, 51 111. App. 281; 398 ATTACHMENT. A garnishee can not protect himself by merely answering that whatever debt he owes, or ma}^ owe, was assigned before the service of process on him. The good faith of the assign- ment must be made to appear. It seems that the alleged assignee may be required to appear, on notice given by the garnishee, and show that the transaction was genuine; and that if he should fail to do so, a judgment against the gar- nishee would be a defense to any suit brought against him by such assignee.' Grariiisliee may contest legality of proceeding. — A gar- nishee may inquire into the legality and regularity of the previous proceedings against the defendant in attachment, in order to show that they were unauthorized and void.^ In respect to irregularities in the proceedings which amount to mere error in the controversy between the plaintiff and de- fendant in attachment, the garnishee has no right to complain for he will be protected in the pa^'^ment of the judgment. But where the defect goes to the jurisdiction of the court to act in the premises, and the question is, whether or not the tribunal assuming to act has jurisdiction of the subject-matter or of the person of the defendant in attachment, the rule is otherwise. If the prior proceedings are void there is no suf- ficient basis to support a judgment against the garnishee, and he will not be protected in paying the same.' What is subject to garnishment. — A debt which is uncer- tain and contingent and ma}^ never become due and payable is not subject to garnishment.^ It must be such as to be re- coverable in an action of debt or indebitatus assumpsit.^ Equi- table interests in choses in action can not be reached by process of garnishment;' nor can there properly be such process same case, 150 111. 161 ; Horn v. Booth, ^ Dennison v. Taylor, 142 111. 45. 22 111. App. 385. ■•Drake on Att., Sec. 551; Ins. Co. • Born V. Staaden, 24 111. 320; see v. Connor, 20 111. App. 297. Crownover V. Bamberg, 2 Brachv. ^ Capes v. Burgess, 135 111. 61. W2; Stevens V. Dillman, SQ III. 23d; ^Mayy. Baker, 15 111.89; see Ray y. Faulkner, 73 III. 460. Hodson v. McConneU, 12 111, 170; ^Pierce v. Carleton, 12 111. 358; Snidery. Ridgway,i9 m. 522. see Chanute v. Martin, 25 111. 63; Pierce v. Wade, 19 Bradw. 185. ATTACHMENT. 399 against a debtor of a garnishee against whom an execution has been returned " no property." ' As a general rule, money in the custody of the law, or in the hands of an officer of the law, is not subject to process of garnishment.- Thus, money in the hands of a sheriff, which has been made on execution, or received in redemption of land sold on execution;^ or money in the hands of a school- treasurer, and due to a school-teacher;* or money in the hands of the clerk of a court,' or an administrator," can not be reached by process of garnishment. But Avhenever the liability of an officer becomes changed, from an official to a personal one, he is amenable to this process; ' as where there is a surplus in a sheriif's hands, after satisfying an execution;* or where a special master holds funds which have been or- dered by the court to be paid to the debtor.* A municipal corporation is not liable to the process of gar- nishment, no matter what may be the character of the debt, and where such a corporation is summoned as a garnishee, it may be discharged on mere motion, and without answer, at any time after process served.'" But a private corporation, unlike a munitipil corporation, being created for private pur- pose, assumes the same duties and liabilities as a private in- dividual." The wages of a defendant, being the head of a '/. C. Co. V. Weaver, 54 111. 319; 374; Croumover v. Bamberg, 2 Harrell v. Wliitman, 19 Ala. 135; Bradw. 162; Brooks v. Cook, 8 Mas?, see Wilcus v. Kling, 87 111. 107. 246; see Bartell v. Bauman, 12 « MiUison v. Fisk, 43 111. 112; Biv- Bradw. 450. ensY.Har2)er,5d 111. 21; THebel v. ^Weaver v. Davis, 47 111. 235; Colburn, 64 111. 376; Smithy. Wool- Lightner v. Steinagel, 33 111. 510; sey, 22 111. App. 185. MiUison v. Fisk, 43 111. 112; Pierce ^Pierce v. CarZe^on, 12 III. 358; v. CaHetoi, 12 111. 358. Lightner v. Steinagel, d'S 111. 510; ^Pierce v. Carleton, 12 111. 358; Weaver Y. Davis, 47 111. 235; Bed- Bartell y. Ban man, 12 Bradw. 450. dick y. Smith, 3 Scam. 451 ; Meadow- ^ Weaver v. Davis, 47 111. 235. craft V. Agnew, 89 111. 469. '« Merwin v. Chicago, 45 111. 133; * MiUison v. Fisk, 43 111. 112; Chicago v. Hasley, 25 III 5do; Trie- Ross V. Allen, 10 N. H. 96; Bivens bel v. Colburn, 64 111. 376; BarteU y. Harper, 59 111. 21. v. Bauman, 12 Bradw. 450; R. R. ^Drane v. McGavock, 7 Humph. Co. v. R. R. Co., 1 Bradw. 399. 132; Smith v. Finlen, 23 111. App. 156. Fast v. Wolf, 38 111. App. 27. ^Curling v. Hyde, 10 Missouri, ^Merwin v. Chicago, 4.0 lU. 133; 400 ATTACHMENT. faraih", to an amount not exceeding fifty dollars, is exempt from garnishment/ Paragraph 34 of the garnishment act provides that when- ever, in any proceedings in any court of this state to subject the wages due to any person to garnishrasnt, it shall appear that such person is a non-resident of the State of Illinois, that the wages earned by him were earned and ])ayable outside of the state of Illinois, the said person, whose wages were so sought to be subjected to garnishment, shall be allowed the same exemption as is at the time allowed to him by the laws of the State in which he so resides.^ Section 15 of the statute provides that no person shall beliable as a garnishee by reason of having drawn, accepted, made or in- dorsed any negotiable instrument, when the same is not due, in the hands of the defendant at the time of service of the garnishee summons or the rendition of the judgment.^ A stockholder in an incorporated compan}^ who owes the company unpaid stock, upon which a call has baen made and notice given, is liable to be garnisheed on a judgment re- covered against the company.* A non-resident creditor may proceed by attachment against a non-resident debtor, and garnishee a resident debtor or for- eign corporation doing business in this state." A debt due in another state may be attached in Illinois, where the garnishee is a resident of the state, under the statute providing that a creditor may have an attachment against a non-resident debtor." A corporation, by establishing an^ agency and doing busi- Roche V. Ass'n, 2 Bradw. 360; Rij. Stat. (1S95), 832; Rev. Stat. (1893), Co. V. B. R. Co., 81 111. 584. VSS; Warne v. Kendall, 78 III. 598, ' Rev. Stat. (1895), 832; Rev. Stat. * Meints v. 3Till Co., 89 111.48; see (1893), 783; Starr & Curtis 1225; see Oaschv. Boat Co., 59 111. App. 391 Bliss V. Smith, 78 111. 359; Hoffman Robertson v. Moeninger, 20 111. App. V. Fitzunlliam, 81111. 521; Fanning 227. V. Bank, 76 111. 53; R. R. Co. v. '" R. R. Co. v. Dougan, 41 111. App. Mason, 11 Bradw. 525. 543; R. R. Co. v. Flannigan, 47 111. 2 Rev. Stat. (1895) 834; see Rail- App. 322; Line Co. v. Collier, 148 road V. Dougan, 142 111. 248; R. R. 111. 259. Co. V. Barron, 83 111. 365. « Pomeroy v. Rand, 157 111. 176. n Starr & Curtis 1226; Rev. ATTACHMENT. 401 ness in this state, becomes a resident and is liable as a gar- nishee of its non-resident creditors/ Unliquidated damages are not liable to garnishment.^ A party can not be charged as garnishee in respect to prom- issory notes or other evidences of indebtedness, which at the time of the service of garnishee process and during the pend- ency of the suit, are in another state." Non-resident garnishee. — Section 9 provides that " If any garnishee shall become a non-resident, or shall have gone out of this state, or is concealed within this state so that tlie scire facias can not be served upon him, upon the plaintiff or his agent filing affidavit, as in cases of non-resident defendants in attachment, such garnishee may be notified in the same man- ner as such non-resident defendants, and upon such notice be- ing given, he may be proceeded against in the same manner as if he had been personally served with such scire facias.'''' *' Conditional jndgnient. — Section 8 provides that " When any person shall have been summoned as a garnishee upon any attachment or other writ issued out of any court of record, or by any justice of the peace, and shall fail to appear or make discovery, as by this act required, the court or justice of the peace may enter a conditional judgment against such garnishee for the amount of the plaintiff's demand, or judgment against the original defendant, and thereupon a scire facias shall issue against such garnishee, returnable, if the proceedings be in a court of record, at the next term of court, or if it be before a justice of the peace, within the same time as other summonses from justices of the peace, commanding such garnishee to show cause why such judgment should not be made final. If such garnishee, being served with process or notified as required by law, shall fail to appear and make discovery in the manner aforesaid, the court, or justice of the peace, shall confirm such judgment, to the amount of the judgment against the original defendant, and award execution for the same and costs. If such garnishee shall appear and answer, the same proceedings may be had as in other cases." * Final judgment. — Section 10 provides that " No final judg- » Roclie V. Ins. Co., 2 Bradw. 270; 4 Rgy^ g^at. (1893) 782; Rev. Stat. Groverv. Wells, 40 111. App. 350; (1895) 831; Starr & Curtis 1224. Henderson V, Schaas, 35 111. App. 'See Webster ^r. Steele, lb 111.544; 155. Ry. Co. V. Reynolds, 72 lU. 487; ■' Copes V. Burgess, 135 111. 61. Horatv. Jacket, 59 111. 189; R. R. Co. 2 Bowen v. Pope, 125 111. 28. v. Hindinan, 85 IlL 521. 26 402 ATTACHMENT. ment sh Tug Boat Dorr v. Waldron, 62 ^ Hilton v. Miller, 62 111. 230; Tug 111. 221; Montaukv. Walker, 4:1 III. Boat Dorr v. Waldron, 62 III. 221; 335; Williamson v. Hogan, 46 111. Gr. West v. Obemdorf, 57 111. 168; 504: Tlie Belfast, 7 Wall. 624; Or. see Gindele v. Corrigan, 129 111. West V. Obemdorf, 57 111. 168; John- 582; same case, 28 111. App. 476. son V. Elevator, 119 U. S. 388. CHAPTEE XII. EJECTMENT. The action of ejectment is the one commonly used to try the title to real property. Originally an action of trespass, and personal, it has been greatly modified, partly by judicial con- trivance, and partly, in later times, by statutes; and it is now a mixed action, for the recovery of land and damages, the lat- ter, however, being usually merely nominal. Its history is curious, and well worthy of study, as affording perhaps the most remarkable instance of the adaptation of form to new ex- igencies to be found in the English law. A lucid exposition of the origin of the action, and of the modifications it had undergone up to his time, is given in Blackstone's Commen- taries.' In Illinois, ejectment is said to be, under the statute regu- lating it, a real action, and not, even technically, an action for a tort; and it is held that the death of a sole defendant does not abate the suit.* It is also held, however, that where the statute is silent, the practice and rules of the common law are to govern.^ When the action lies, etc. — The general rule is, that eject- ment will lie only for real property, as land, or something annexed to land, upon which an entry might in fact be made, and of which the sheriff could deliver actual possession." It is therefore not in general sustainable for property which in legal contemplation is not tangible, as for common in gross, or other incorporeal hereditament, or for a water-course — though it > 2 Bla. Com. 198, 205; see 1 Chit. < Adams Eject. 16; JacksoJi v. PI. 187, 196; 2 Greenl. Ev., Sec. 303, 3fay, 16 Johns. 184; Black v. Hep 337. hunie, 2 Yeates 331; Deux. Craig, 2 Guyer v. Wookey, 18 111. 536. 3 Green. 192, 3 Williams v. Brunton, 3 Gilm. 600. (409) 410 EJECTMENT. will lie for the ground over which the water pusses.' Is'or can the action be sustained for a movable chattel, such as a stall.^ With respect to the title, a person having the right of entry, whether his title is in fee, for life, or for years, may support an action of ejectment, but the right of possession must be of some duration, and exclusive, and therefore ejectment can not be supported where one has merely a license to use land, etc/ If one tenant in common evicts his co-tenant, ejectment may be sustained by the latter,^ but in such case it must be shown that the defendant actually ousted the plaintiff, or did some other act amounting to a total denial of his right.' After breach of the condition of a mortgage the mortgagee may maintain ejectment.^ And he may do so before breach, as it is held by the English courts, and in Illinois, and some other states of the Union; ' though the contrary doctrine is held by some courts.' The mortgagee may maintain ejectment to recover the mort- gaged property, proceed in chancery to foreclose the equity of redemption, and sue at law to recover the amount of the debt, and he may have all these actions at the same time.' Where a person enters into possession of premises under a purchase, and fails to comply with the terms of the contract of » Chancellor v. Thomas, Yelv. 143; v. Fischer, 30 111. 234; Pollock v. Adams Eject. 18, 20. Miason, 41 111. 516; Speer v. Had- ^ See 1 Chit. PL 187, et seq. duck, 31 111. 439; Oldham v. Pfleger, 3 1 Chit. PL 189; Goodtitle v. Wil- 84 111. 102; Fisher v. Mllmine, 94 IlL son, 11 East 345; King v. Mellor, 2 328; Finlon v. Clark, 118 111. 32; East 190. Taylor v. Adams, 115 111. 570; Esker ■» Johnson v. Sicain, Bush. 835; v. Heffervian, 159 111. 38; see 3Ic- Lessee v. Sayi^e, 2 Ohio 110; Valen- Gianis v. Fernandes, 126 111. 228. tine V. Northrop, 12 Wend. 494; ' Carroll v. Ballance, 26 III. 9, and Shaver v. McGraw, 12 Wend. 562; cases there cited; see Kilgour v. Barnitz v. Casey, 7 Cranch 456; see Gockley, 83 111. 109; Barrett v. Lundy v. Lundy, 131 IlL 138. Hinckley, 124 111. 32. sEev. Stat. (1893) 618; Rev. Stat. » Jackson v. Myers, 11 Wend. 533; (1895) 666; Starr & Curtis 987; 1 Jackson v. Bronson, 19 Jolins. 325; Chit. PL 191; Lundy v. Lundy, 131 Wilson v. Troup, 2 Cow. 145. 111. 138. 8 Delehayy. Clement, 3 Scam. 201; « Lessee t. McGuire, 2 Ohio 223; Van Sant v. Allmon, 23 111. 30; Car- Carroll V. Ballance, 26 111. 9; Dele- roll v. Ballance, 26 III. 9; Holstonv. hay V. Clement, 3 Scam. 201; Van iVeedZes, 115 IlL 461. Sant V. Allmon, 23 111. 30; Rolland EJECTMENT 411 purchase, the vendor may treat the contract as rescinded and regain tlie possession by this action,' but not until after notice to quit, or a demand of possession,^ unless there has been some act or omission on the part of the purchaser which amounts to a repudiation of the contract/ Title necessary to sustain. — An equitable title will not sustain ejectment,^ nor will it avail as a defense against the legal title." In ejectment legal title only can be tried, and the plaintiff can not recover unless he shows a legal right to the property as contradistinguished from an equitable right/ While as a general rule, the legal title must prevail in ac- tions at law, ejectment can not be maintained against one in the lawful and rightful possession of land.' The action of ejectment proceeds for the possession of the premises, claim- ing that they have been unlawfully entered upon and unjustly withheld. When the defendant's possession is rightful, and the plaintiff is not wrongfully kept out of possession, the action can not be maintained.* If ejectment be brought by one claim- ing under a mortgagor of the premises against the mortgagee in possession, or one holding under him as tenant, the mortgage will constitute a complete defense to the action, for the reason that ejectment can not be maintained against one lawfully in possession,^ In this action, the plaintiff must show himself entitled to the possession on the day laid in the declaration; a deed made > Dean v. Comstock, 32 111. 173; 446; Barrett v. Hinckley, 124 111. Kibhen v. Neicell, 41 111. 461; see R. 32; Sontag v. Bigelow, 142 111. 143. R. Co. V. Hay, 119 111. 493. * Chiniquy v. Cath. Bisli., 41 III. ^ Prentiss V. Wilson, 14 111. 91; 148; Wales v . Bouge, 81111. iG8: see Higgins v. Highjield, 13 East 407; Johnson v. Watson, 87 111. 535; see Stow v. Russell, 36 111. 18. Kirkpatrick v. Clark, 132 111. 342. 3 Prenfiss V. W^tZsoji, 14 111.91; see ^Walton v. Follansbee, 131111, Wood V. Morton, 11 111. 547. 147; Barrett v. Hinckley, 124 111. * Finlon v. Clark, 118 111. 32; 33; see Sands v. Wacaser, 149 111. Fleming V. Carter, 70 111. 286; Joy 530; Church v. Church, 138 111. 608. V. Berdell, 25 111. 537; Franklin v. "^ Sands x. Wacaser, 149111. 530. Palmer, 50 111. 202; Roundtree v, » gands v. Wacaser, 149 111. 530. Little, 54 111. 323; Aholz v. Zellar, ^Fountain v. Bookstover, 141 III. 88 111. 24: Peojile v. Force, 100 111. 461. 549; DeWitt v, Bradbury, 94 111. 4 1 2 EJECTMENT. after that time can not aid him/ And he must rely on the strength of his own title, and not on the weakness of that of the defendant.^ Proof of prior possession under claim of ownership is prima facie evidence of ownership and seizin, and is sufficient to authorize a recovery, unless the defendant shall show a better title.' A legal subsisting title outstanding in a third person, will defeat a recovery; * but a mortgage, even after condition broken, does not constitute an absolute outstanding title, of which a stranger can take advantage/ A mere trespasser who takes forcible possession of land without title will not be allowed to set up an outstanding title/ It is held that, under the statute of Illinois, a conveyance made b}^ the plaintiff during the pendency of the suit does not aifect his right of recovery; and that in such case the benefit of the recovery inures to his grantee/ And a person entering under the defendant, pending the suit, takes the land subject to whatever judgment may be rendered; but where a landlord has resumed possession, pending a suit in ejectment against his tenant, and the landlord has received no notice of the suit, 'TFoodv. iJIorf on, 11 111. 547; PiY- Benefield v. Albert, \Z2 111. 665; kinv. Yaw, 13 111. 251; Kilgour v. Andersonv. McCormick, 129111.308; Gocklaj, 83 111. 109; see Joy v. Ber- Harland v. Eastman, 119 111. 22. dell, 25 111. 537; Mills v. Graves, 44 * Masterson v. Cheek, 23 111. 72; 111. 50; Sands v. Kngay, 150 111. 109. Hidickv. Sclwvill, 4Gilm. 159; Ru- ^BoijerY. Thornherg, 115 111. 540; pert v. Mark, 15 111. 540; Stuart v. 3Iarsliallv. Barr, 35 111. 106; Stuart Button, 39 111. 91; Oetgen v. Ross, V. Button, 39 111. 91; Hague v. Poi^- 54 111. 79; Cobb v. Lavalle, 89 111. 331; ter, 45 111. 318; Cobb v. Lavalle, 89 Clark v. Bay, 93 111. 480; Kirklandv. 111. 331; Vallette v. Bennett, 69 111. Cox, 94 111.400; Whitford \ . Brexel, 632; 67i(??ip/v. Osfer/mgre, 94111. 115; 118 111.600; Walton v. Follansbee, Mester v. Houser, 94 111. 433; Kirby 13] 111. 147. V. Ry. Co., 109 111. 412; Sidu-ell y. ^ Hall v . Lanee, 25 111. 277; Fisher Schumacher, 99 111. 426; Agnew v. v. Milmine, 94 111. 328; Holbrook v. Perry, 120 III. 656; Whitford v. Bebo,99 111312; Barrett v. Hinckley, Brexel, 118 111. 602; Village v. Good- 124111. 32. u-iin, 128 111. 57; see Pai-k v. « ^Jirferson v. (?ra?/, 134 111. 550. Gavin, 139 111. 280; Kirkpatrick v. ■» Mills v. Graves, 44 111. 50; John- Clark, 132 111. 345; Walton v. Fol- son v. Shinkle, 50 111. 137; Holbrook lansbee. 131 111. 156. v. Debo, 99 111. 372. ^Burger v. Hobbs, 67 lU. 592; EJECTMENT. 413 and is chargeable with no fault or laolies^ he will not be evicted by a writ of possession issued on a judgment against the tenant, but the writ Avill, on motion, be stayed, and the land- lord let in to defend the existing suit on the merits.' The statute of Illinois in force July 1, 1872, provides that the action of ejectment may be brought in the cases thereto- fore accustomed, subject to the provisions of the act; and that it may also be brought in the same cases in which a writ of right may be brought by law, to recover lands, tenements or hereditaments, and by any person claiming an estate therein, in fee, for life or for years, either as heir, devisee or purchaser." By landlord against tenant. — In regard to the action of ejectment by a landlord against his tenant for non-payment of rent, the statute of Illinois concerning landlord and tenant provides as follows : " In all cases between landlord and tenant, where one-half year's rent shall be in arrear and un- paid, and the landlord or lessor to whom such rent is due has right by law to re-enter for non-payment thereof, such land- lord or lessor may, without any formal demand or re-entry, commence an action of ejectment for the recovery of the de- mised premises. And in case judgment be given for the plaintiff in such action of ejectment, and the writ of posses- sion be executed thereon before the rent in arrear and costs of suit be paid, then the lease of such lands shall cease and be determined, unless such lessee shall, by writ of error, reverse the said judgment, or shall, by bill filed in chancery within six months after the rendition of such judgment, obtain relief from the same : Provided, that any such tenant may, at any time before final judgment on said ejectment, pay or tender to the landlord or lessor of the premises the amount of the rent in arrear, and costs of suit, and the proceedings on such ejectment shall thereupon be discontinued."^ Who may maintain the action. — The statute of Illinois ^ Oetgen V. Ross, 54 111. 79; Lowe ^2 Starr & Curtis, 1492; Rev. V. Emerson, 48 III. 160; see Hanson Stat. (1893) 920; Rev. Stat. (1895) V. Armstrong, 23 111. 442; Williams 976: Ebeiiienv. Abel, lOBradw. 626: V. Brunton, S Gilm. QOO. Whitford v. Drexel, 118 111. 600; 2 1 StaiT & Curtis, 980; Rev. Stat. Harland v. Eastman, 119 111. 22. (1893) 616; Rev. Stat. (1895) 664. 414 EJECTMENT. concerning ejectment, provides that no person shall recover in this action unless he has, at the time of the commencement of the suit, a valid subsisting interest in the premises claimed, and a right to recover the same, or to recover the possession thereof, or of some share, interest or portion thereof, to be proved and established at the trial.' This statute further provides that any two or more per- sons claiming the same premises as joint tenants, tenants in common or co-parceners, may join in a suit for the recovery thereof, or any one may sue alone for his share." A party can not maintain ejectment based upon a parol partition, as the plaintiff must recover on a legal title, and can not upon an equitable title.* The corporate authorities of a city may maintain ejectment against an intruder upon the public streets.' Against whom to be brought, etc. — The statute of Illinois, above mentioned, further provides, that if the premises for which the action is brought are actually occupied by any per- son, such actual occupant shall be named defendant in the suit, and all other persons claiming title or interest to or in the same, may also be joined as defendants. If the premises are not occupied, the action is to be brought against some per- son exercising acts of ownership on the premises claimed, or claiming title thereto, or some interest therein, at the com- mencement of the suit.^ The statute also provides that "if the action is against several, and the plaintiff is entitled to recover, he shall recover ao-ainst all who are in joint possession or claim the title, w4iether they shall have pleaded separately or jointly." And further, that " when the action is against several defendants, if it appear on the trial that any of them occupy distinct parcels in severalty or jointly, the plaintiff shall elect, at the 11 Starr & Curtis 980; Rev. Stat. 1 Chit. PI. 62-65; Cone v. Coleman, (1893) 616; Rev. Stat. (1895) 664; 108 111. 591. Mills V. Graves, 44 111. 50; see ^ Sontag v. Bigeloiii, 142111. lid. Wood V. Morton, 11 111. 547; * Chicago v. Wright, 69 111. 818. Pitkin V. Yaw, IS 111. 251; Joy v. M Starr & Curtis 981,982; Rev. Berdell, 25 111. 537. Stat. (1893) 617; Rev. Stat. (1895) 2 1 Starr & Curtis 981; Rev. Stat. 665; Dickerson v. Hendrix, 88 111. (1893)617; Rev. Stat. (1895) 665; see 66; Park v. Gavin, 139 111. 280. EJECTMENT. 415 trial, against which he will proceed; which election shall be made before the testimony in the cause shall be deemed to be closed; and the suit shall be dismissed as to the defendants not so proceeded against/ It is not necessary, in ejectment, to make any other person than the occupant a defendant. A recovery against him binds all persons in privity.^ But a person in possession merely as a servant or employe of the person claiming an adverse title, is not an occupant within the meaning of the statute/ Suit against tenant by other than landlord. — The same statute, sections 17 and 18, further provides that every tenant who shall at any time be sued in ejectment, by any person other than his landlord, shall forthwith give notice thereof to his landlord, or to his agent or attorney, under the penalty of for- feiting two years' rent of the premises in question, or the value thereof, to be recovered by such landlord by action of debt, in f.ny court having cognizance thereof. The landlord whose tenant is sued in ejectment, may, upon his own motion or that of the plaintiff, be made defendant in such action, upon such terms as may be ordered by the court.* The landlord may appear and defend in the name of the tenant, if he will indemnify him against costs; and the name of the landlord may be entered on the record as defendant instead of the tenant; ^ but it has been held that the land- lord could not be allowed to substitute his own name as de- fendant, in place of that of the tenant, without the plaintiff's consent.® A judgment in ejectment against a tenant in possession is conclusive upon the landlord, if the latter interposed in aid of tKe tenant in the defense, or if the landlord had notice of the ' 1 Starr & Curtis 987; Rev. Stat. Thomsen v. McCormick, 136 111. 135. (1893) 618; Rev. Stat. (1895) 666. ^ Thomjyson v. Schuyler, 2 Gilm. ^ Hanson V. Armstrong, 22 111.442. 271; Williams v. Brunton, 3 Gilm. ^ Chiniquy v. BisJwp, 41 111. 148; 600; see Starr & Curtis 984; Rev. Hazrkins v. Reichert, 28 Cal. 535. Stat. (1893), 618; Rev. Stat. (1895), But see 1 Chit. PI. 191. 666. n Starr & Curtis 984; Rev. Stat. ^ Merritt v. Thompson, 13 111. 716; (1893), 618; Rev. Stat. (1895), 666; Jackson v. Stager, 1 Cowan 134. Stribling v. Prettyman, 57 111. 371; 416 EJECTMENT. pendency of the suit, and full opportunity of making a defense thereto.' COMMENCEMENT OF THE ACTION. In Illinois, the action of ejectment is commenced by the issu- ino- of a summons, which is of like form with, and tested, served and returned in the same manner as summonses in other actions at law/ The declaration.— The time for filing the declaration in ejectment, under the present statute of Illinois, is the same as in other actions at law, that is to say, ten days before the term to which the summons is made returnable, etc.* The statute further provides, in regard to the declaration, as follows : " It shall be sufficient for the plaintiff to aver in his declaration, that (on some day therein to be specified, and which shall be after his title accrued) he was possessed of the premises in question (describing them as hereinafter provided^ and being so possessed thereof, that the defendant afterwards (on some day to be stated) entered into such premises, and that he unlawfully withholds from the plaintiff the posses- sion thereof, to his damage any nominal sum the plaintiff shall think proper to state.* " The premises so claimed shall be described in such declara- tion with convenient certainty, so that, from such description, possession of the premises claimed may be delivered. If such plaintiff claims any undivided share or interest in any prem- ises, he shall state the same particularly in such declaration. But the plaintiff, in any case, may recover such part, share or interest in the premises as he shall appear on the trial to be entitled to.* " In every case, the plaintiff shall state whether he claims in fee or whether he claims for his own life, or the life of an- other, or for a term of years, specifying such life or the dura- tion of such term. The declaration may contain several •> Thomsen v. McCormicTc, 136 111. *See Park v. Gavin, 139 111. 280. 135; see Park v. Gavin, 139 111.280. ^See Wat. Ad. Eject., 233; Al- 2 Rev. Stat. (1893), 617; Rev. Stat. mond v. Bonnell, 76 111. 536; Com. (1895), 665; 1 Starr & Curtis 982. v. Coleman, 108 111. 591. 3 lb. EJECTMENT. 417 counts, and several parties may be named as plaintiffs, jointl}^ in one count and separately in others." ' The demise of the plaintiff should not be alleged as of a date prior to his having acquired the title.^ As the action of ejectment is local, it must appear from the declaration that the land is situate in the county where the suit is brought, or there will be a want of jurisdiction in the court.^ No. 229. Declaration in ejectment. In the Circuit Court. Term, 18—. State of Illinois, ) County of . f set. A. B., plaintiff, by E. F., his attorney, complains of C. D., defendant, of a plea of ejectment: For that the plaintiff, on the day of , in the year 18 — , was possessed of a certain parcel of land, with the appurtenances, lying in the county aforesaid, to wit, {here describe the land;) which said tenements the plaintiff claims in fee: And the plaintiff being so thereof possessed, the defendant afterwards, to wit, on etc., entered into the said tenements, and now unlawfully withholds from the plaintiff the possession thereof; to the damage of the plaintiff of dollars, and therefore he brings his suit, etc. If the declaration or count is for an undivided interest, say, " was possessed of the one undivided half part of a certain parcel of land," etc. And if a less estate than the fee is claimed, sa}' " which said tenements the plaintiff claims for the term of his life," or " for the term of the life of one J. K., Avho is still living," or " for the term of years from the day of ," etc. No. 230. Declaration by several persons, naming them as plaintiffs Jointly in one count and separately in others. {Title of court, etc.) A. B., G. H. and J. K., plaintiffs, by E. F. their at- torney, complain of C. D. defendant, of a plea of ejectment: For that the plaintiffs, on, etc. , were possessed of a certain parcel of land, with the ap- ' 1 Starr & Curtis 983; Rev. Stat. son, 47 111. 25; Hardin v. Kirk, 49 (1893), 617; Rev. Stat. (1895), 665; 111. 153. Rawlins V. Bailey, 15 III. nS; Ru- ^ Schoonmaker v. Doolittle, 118 pert V. Mark, 15 111. 540; Ballance 111. 605. V. Raickin, 12 m. 420; Murjihy v. ^ Minkhart v. Hankler, 19 111. Orr, 32 111. 489; Deininger v, Mc- 47; Stark v. Ratcliff, 111 111. 81. Connell, 41 111. 228; Clark v. Thomp- 27 418 EJECTMENT. purtenances, lying in the county aforesaid, to wit, (here describe the land;) which said tenements tlie plaintiffs claim in fee: And the plaintiffs being so thereof possessed, the defendant afterwards, to wit, on, etc., entered into the said tenements, and now unlawfully withholds from the plaintiffs the possession of the same. {Second count.) And also for that the said A. B., on, etc., was possessed of the one undivided third x>art of a certain other parcel of land, with the appurtenances, lying in the county aforesaid, to wit, (heie describe the land); which last mentioned tenements the said A. B. claims in fee: And he be- ing so thereof possessed, the defendant afterwards, to wit, on, etc., entered into the last mentioned tenements, and now unlawfully withholds from the said A. B. the possession of the same. {Third count.) And also for that the said G. H., on, etc., was possessed (and so on as in the second count, substituting O. H. for A. B. through- out.) {Fourth count.) And also for that the said J. K., on, etc., was possessed {and so on as intlie second count, substituting J. K. for A. B. throughout.) {Conclusion.) Wherefore the plaintiffs say that they are injured, and have sustained damage to the amount of dollars, and therefore they bring suit, etc. See the section of the statute above quoted, allowing sev- eral counts, by different plaintiffs. Before the fiction of a nominal plaintiff was abolished, the declaration might include several counts, on the demises of different persons.' The 27th section of the Illinois ejectment act provides that " it shall not be" an objection to a recover}^ in any action of ejectment, that any one of several plaintiffs do not prove any interest in the premises claimed, but those entitled shall have judgment, according to their rights, for the whole or such part or portion as he or they might have recovered if he or they had sued in his or their name or names only." * DEFENSES TO THE ACTION. The statute of Illinois, sections 19 and 21, provides as fol- lows: "The defendant may demur to the declaration, as in personal actions, or he shall plead the general issue, which shall be that the defendant is not guilty of unlawfully withholding the premises claimed by the plaintiff, as alleged in the decla- ration, and the filing of such plea or demurrer shall be deemed '1 Chit. PI. (11 Am. Ed.), 187. (1893) 618; Rev. Stat. (1895), 666; see 2 1 Starr & Curtis 987; Rev. Stat. Walton v. Follansbee, 131 111. 147. EJECTMENT. 419 an appearance in the cause, and upon such plea the defendant may give in evidence any matter that may tend to defeat the plaintiff's action, except as hereinafter provided. The plea of not guilty shall not put in issue the possession of the premises by the defendant, or that he claims title or interest in the prem- ises." ^ The plea for which the statute provides only purports to deny the unlawful withholding of the premises. The action of ejectment proceeds upon the theory of an unlawful entry and unjust detention." In the absence of any statute on the subject the real plaintiff must prove, on the general issue, first, that he had the legal estate in the premises at the time of the demise laid in the dec- laration; second, that he also had the right of entry; and third, that the defendant, or some one claiming under him, was in possessioyi of the premises at the time when the suit was com- menced.^ A judgment in an action of forcible entry and detainer can not be pleaded as a bar to an action of ejectment, for the reason that the questions involved in the two proceedings are differ- ent. The question of title can not be inquired into in forcible entry and detainer, and if it could, a judgment therein would be no bar, without proof that the question of title was raised and decided.* No. 231. Plea — not guilty. In the Ck)urt. Term, 18—. CD.) ats. > Ejectment. A. B. ) And the defendant, by G. H., his attorney, comes and defends the wrong and injury, when, etc., and says that he is not guilty of unlawfully withholding the tenements in the said declaration mentioned, or any part thereof, in manner and form as the plaintiff has above thereof complained against him: And of tliis the defendant puts himself upon the country, etc. • Sheldon v. Van \leck, 106 111. 45; Sands v, Kagey, 150 111. 109; Sands Wielandv. Kobick, 110 111. 16: Roose- v. Wacaser, 149 111, 530. velt V. Hungate, 110 111. 595; Stub- ^2 Greenl. Ev., Sec. 304; Tilhng. blefield v. Borders, 92 111. 279; JR. R. Ad. Eject., 247. Co. V. Saunfer, 92 III. 377; R. R. Co. * Riverside Co. v. Toumshend, 120 V. Hardt, 138 111. 120. 111. 9. ^ R. R. Co. V. Karnes, 101 111. 402; 420 EJECTMENT. The plea of not guilty admits the possession of the entire premises claimed in the declaration.' The statute of Illinois (section 22) further provides that "it shall not be necessar}'' for the plaintiff to prove that the defendant was in possession of the premises, or claims title or interest therein, at the time of bringing the suit, or that the plaintiff demanded the possession of the premises, unless the defendant shall deny that he was in such posses- sion, or claims title or interest therein, or that demand of pos- session was made, by special plea, verified by affidavit."'' Section 22 of the ejectment act is intended to apply to the different cases as they may arise. If the suit is brought to recover possession under the first clause, the defendant may deny possession, and thereby defeat the action, unless posses- sion is shown. If persons are made parties defendant who are not in possession, upon the basis that they are claiming title or interest in the premises, they may put in issue that fact, the same as if the suit was brought to recover vacant land under section 7 of the statute. In the latter case, a plea denying possession presents an immaterial issue.* In ejectment, to recover the possession of a lot, the defend- ant may defeat a recovery by showing that the plaintiff's deed was made to him for the purpose of hindering, delaying and defrauding the creditors of the defendant, or for any other illegal purpose.* Claim for mesne profits. — On this subject, the statute of Illinois provides as follows : " Instead of the action of tres- pass for mesne profits, the plaintiff seeking to recover such damages, shall, within one year after the entering of the judg- ment, make and file a suggestion of such claim, which shall be entered, with the proceedings thereon, upon the record of such judgment, or be attached thereto, as a continuation of the same. ' Ry. Co. V. Hardt, 138 111. 120. BrandisJiv. Grant, 119 111. 606; see 2 1 Starr & Curtis, 986; Rev. Stat. Park v. Gavin, 139 111. 280; Ry. Co. (1893), 618; Rev. Stat. (1895), 666 JShirphy v. Williamson, 85 111. 149 Dickerson v. Hendryx, 88 111. 66 Wieland v. Kohick, 110 111. 16 V. Hardt, 138 111. 120; Timmons v. Kidwell, 138 111. 13. 2 Parkv. Gavin, 139 111. 280. *KirkpatHck v. Clark, 132111. 342. EJECTMENT. 421 " Such sugjTestion shall be substantially in the same form as is now in use for a declaration in an action of assumpsit for use and occupation, and the same rules of pleadino: thereto shall be observed as upon declarations in personal actions." ^ No. 232. Suggestion of claim for mesne profits. In the Court. Term, 18~, A. B. ) . t7,§. I Ejectvient. Claim for mesne profits . C. D. ) And now on this day of, etc., comes the plaintiff , by E. F., his attorney: and. according to the form of the statute in sucli case made and provided, suggests to the court here, that the defendant, on, etc., in etc., was indebted to the plaintiff in the sum of dollars, for the use and occupation of the tenements above in the said declaration and judg- ment mentioned, by the defendant held, used and occupied, at his request, for a long space of time before then elapsed; and being so indebted, the de- fendant, in consideration thereof, on the day last aforesaid there promised the plaintiff to pay him the said sum of money, on request : Yet the de- fendant, though requested, has not paid to the plaintiff the said sum of money, or any part thereof, but refuses so to do; to the damage of the plaintiff of dollars, etc. Upon the filing of such suggestion, the defendant is to be summoned in the same manner as in an original action.'^ As between the successful plaintiff in an action of eject- ment and the evicted defendant or his tenant, growing crops are a part of the realty, and belong to the plaintiff, and the fact that he may have his action for mesne profits will not impair his right of ownership therein.' Defenses to the claim for mesne profits, etc. — The statute above mentioned further provides as follows : " The defendant may plead the general issue of non assumpsit, and, under such plea, may give notice of, or may plead specially, any matter in bar of such claim, except such as were or might have been controverted in such action of ejectment; but he may plead or give notice of a recovery by such defendant, or any other per- son, of the same premises, or of part thereof, subsequent to ' 1 Starr & Curtis 992; Rev. Stat. (1893) 620; Rev. Stat. (1895) 668; (1893) 620; Rev. Stat. (1895) 668; Tucker v. Hamilton, 108 III. iGA. Ringhouse v. Keener, 63 111. 230. ^ McGinnis v. Fernandes, 135 111. « 1 Starr & Curtis 992; Rev. Stat. 69. 422 EJECTMENT. the verdict in such action of ejectment, in bar or in mitigation of the damages claimed by the plaintiff. " If any issue of fact be joined on such suggestion, it shall be tried as in other cases; and if such issue be found for the plaintiff, the same jury shall assess his damages to the amount of the mesne profits received by the defendant since he en- tered into possession of the premises, subject to the restrictions hereinafter contained. " On the trial of such issue, the plaintiff shall bo required to establish, and the defendant may controvert, the time when such defendant entered into the possession of the premises, the time during which he enjoyed the mesne profits thereof, and the value of such profits; and the record of the recovery in the action of ejectment shall not be evidence of such time. On such trial, the defendant shall have the same right to set off any improvements made on the premises, to the amount of the plaintiff's claim, as is now or shall hereafter be allowed by law; and in estimating the plaintiff's damages, the value of the use by the defendant of any improvements made by him shall not be allowed to the plaintiff." ' No. 233. Plea of non assumpsit, to suggestion of daim for mesne profits. In the Court. Term, 18—. C. D. ) ats. [.Ejectment. Claim for mesne profits. A. B. ) And the defendant, by G. H.. his attorney, comes and defends the wrong and injury, when, etc., and says that he did not promise in man- ner and form as tlie plaintiff has above in his said suggestion in that behalf alleged against him: And of this the defendant puts himself upon the country, etc. For a form of notice of special matter, and forms of special pleas, see the precedents in assumpsit, aiite, chapter lY. New trial — Under tlie statute. — The statute allows a new trial at any time within one year after judgment, either upon default, or verdict in the action of ejectment, upon payment of costs; and the party against whom it is rendered shall be entitled to have the judgment vacated and a new trial granted 1 1 Starr & Curtis 992; Rev. Stat. (1893) 621; Rev. Stat. (1895) 669. EJECTMENT. 423 in the cause.' The statute only applies to judgments in the circuit court, and does not authorize the vacation of a final judgment of an appellate court.^ A first new trial under the statute is the right of an unsuc- cessful party on a compliance with the statute, without show- ing cause. The court has no discretion to refuse or allow it.^ Where a plaintiff in ejectment, after a judgment against him, obtains a new trial under the statute, and by amendment makes a new party defendant, and before his second trial dis misses his suit, the former judgment is no bar to a second action brought by him against such new defendant. The effect of the new trial is to vacate and render wholly inopera- tive the prior judgment, and leaves the parties as they stood before the trial, except that the plaintiff can not claim a sec- ond new trial under the statute, in the same suit.* The right of a party to a new trial in ejectment, under the statute, depends upon his payment of all the costs. An order granting a new trial in ejectment, under the stat- ute, upon the payment of the costs, is interlocutorj'', and not final; and when the costs are not paid within the year, the court may, at a succeeding term, vacate such order and strike the case from the docket. On a motion to vacate an order for a new trial in ejectment, granted under the statute, for the failure of the party to pay the costs, no other evidence on the question is necessary than the records of the court." After the expiration of the term at which a new trial in ejectment has been awarded under the statute, the order for the new trial will become conclusive, and the court will have no power to set such order aside, even though all the costs have not been paid.* ' 1 Starr & Curtis 989; Rev. Stat. Riggs v. Savage, 4 Gilm. 129; Ejn- (1893) 619; Rev. Stat. (1895) 667; see mons v. Bishop, 14 111. 152; Shackel- Chamberlinv. McCarty, 63 111. 262; ford v. Bailey, 35 111. 387; Chamber- Pugh V. Reat, 107 111. 440; Murphy lin v. McCarty, 63 111. 262; Lowe V. Riemenschneider, 104 111. 520; v. Foidke, 103 111. 58. County V. Dock Co., 131 111. 505; * Sheldon v. Van Vleck,-[0(MU. 45; Aholz V. Durfee, 21 111. App. 144. Edwards v. Edwards, 22 111. 121. 2 Lowe V. Foidke, 103 111. 58. « Setzke v. Setzke, 121 111. 30. » Vance v. Schuyler, 1 Gilm. 160; « County v. Dock Co., 131 111. 505. 424 EJECTMENT. Revival of judgment. — A judgment in ejectment, by analogy to other judgments, becomes dormant after the lapse of seven years, and can only be executed after that time by being revived by scire facias. After the lapse of seven years the court has no power to issue a writ of possession without a revival of the judgment.' Common source of title. — Section 25 of the ejectment act provides : " If the plaintiff, or his agent or attorne}^, will state, on oath, upon the trial, that he claims title through a common source with the defendant, it shall be sufficient for him to show title from such common source, unless the defend- ant, or his agent or attorney, will deny, on oath, that he claims title through such source, or will swear that he claims title through some other source." " Where the plaintiff in ejectment shows that both parties claim title through a common source, and the defendant denies, under oath, that he claims title under such source, or swears " that he claims title through some other source," this Avill impose on the plaintiff the burden of going back of the com- mon source and tracing his title from the United States.' The defendant's response to the plaintiff's oath that both parties claim under a common source, must be under oath, and, whether made by written affidavit or in the form of an oral statement at the trial, is in the nature of a pleading and is to be taken and construed most strongly against him.* The proceedings in the action of ejectment, in Illinois and in most of the other states, are in a great measure regulated by statute, and it is not deemed necessary to occupy much space with the subject in this work. For a full understanding of the nature of the action, and the general principles of law governing it, the text books, where the subject is specially treated, as well as the statute, should be consulted.' 1 Wilson V. Trustees, 138 111. 285; » R. R. Co. v. Hardt, 138 111. 120; Bowar v. Ry. Co., 136 111. 108. For Smith v. Loatsch, 114 111. 273. form of scire facias to revive judg- * Ibid. ment in ejectment see No. 298 jwst. ^ See Adams on Eject. ; 2 Cooley's 2 1 Starr & Curtis 987; Rev. Stat. Blackstone, 198-206; 2 Greenl. Ev., (1893), 618; Rev. Stat. (1895). 666; see Sees. 303-337. Smith V. Loatsch, 114 111. 273. CHAPTER XIII. DEBT. When the action lies, etc. — The action of debt lies to re- cover money due upon simple contracts, express or implied, whether verbal or written; upon contracts under seal, or of record; and upon legal liabilities." A joint action of debt lies against two persons who have bound themselves by the same writing to pay a sum of money, the one with and the other without seal.* It lies on statutes, by a party aggrieved,'' or by a common informer; and whenever the demand is for a sum certain, or is capable of being readily reduced to a certainty.^ On simple contracts and legal liabilities, debt lies for money lent, paid, had and received, and due on an account stated; for interest due, for work and labor, for fees, for goods sold, and for use and occupation;^ and it is laid down as a general rule, that debt lies upon every contract in deed or in law." Debt lies upon simple contracts wherever indebitatus as- sumpsit will lie, and is a concurrent remedy therewith;' audit may be supported on a quantum meruit^ ' 1 Chit. PI. 97; Repiiblica v. La- ^ 1 Chit. PI. 98; Davifi v. Shoe- coze, 2 Dall. 123; Kelly v. Davis, 1 maker, 1 Rawl. 135; McKean v. Hend. (Tenn.) 71; Crocket v. Moore, Whitney, 3 Denio 453; Collins v. 3 Sneed (Tenn.) 145. Johnson, 1 Hemp. 279. 2 Oldham v. Hunt, 4 Humph. 332; « 1 Chit. PL 110; Elder v. Rouse, Butcher v, Carile, 12 Gratt. (Va.) 15 Wend. 220. 520. ' Bedell v. Janney, 4 Gilm. 193; ^ See Gushing Y. Dill, 2 Scam. 4m. U. S. v. Colt, 1 Peters (C. C.) 145; * 1 Chit. PI. 98; U. S. v. Colt, 1 Smith v. Lotcell, 8 Pick. 178; Lar- Peters (C. C.) 147; Thomas v. Allen, mon v. Carpenter, 70 111. 549. 1 Hill 145; Sims v. Anderson, 8 Leigh * Smith v. Lowell, 8 Pick. 178; Van 479; Home v. Semple, 3 McLean Deusen v. Bloom, 18 Pick. 229; 150; Mayor v. Butler, 1 Barb. 335; Thompson v. French, 10 Yerg. 452; Hoy V. Hoy, 44 III. 469. 1 Chit. PI. 97. (425) 426 DEBT. The action also lies to recover money due on any specialty,. or contract under seal to pay money, as on single bonds, on charter parties, on policies of insurance under seal; and on bonds conditioned for the payment of money, or the perform- ance of any other act; ' on leases, for rent or penalties; on mortgage deeds, and on annuity deeds.'' AVhere, however, a gross sum is payable by installments, debt will not lie until the last installment falls due; ' though for rent payable quarterly, or otherwise, or for an annuity, or on a stipulation to pay a certain sum on one day and the like sum on another, debt lies on each default; and even where one sum is payable by install- ments, if the payment is secured by a penalty, debt is sustain- able for such penalty on such default." The statute on adminstration, in Illinois, authorizes several successive suits on an executor's or administrator's bond, for the use of any person or persons injured, until the whole pen- alty shall be recovered.* Debt is the proper form of action for a violation of an ordinance of an incorporated town.* It lies upon a bond made to a coroner in an action of re- plevin.'' It always lies on a judgment of a court of record, and may be brought although the plaintiff, at the time of bringing the suit, may be entitled to an execution on his judg- ment. * An action of debt may be brought on an appeal bond by the appellee, the moment judgment is rendered in the cause ap- pealed, unless the money is paid immediately.' Where the property of another has been taken and converted, the tort may be waived, and assumpsit or debt brought for its value.'" '1 Chit. PI. 99; see Adam v. Ar- ''Manning v. Pierce^2 Scam. 6; nold, 86 111. 185. see SjJeer v. Skinner, 35 111. 282. n Chit. Fl. 99; Hoy V. Hoy, Um. ^ Greathouse v. Smith, 3 Scam. 469. 541; Ry. Co. v. Miller, 43 111. 199; n Chit. PI. 102; Hoyx. Hoy, 44 Ames\. Hoy, 13 Cal. 11; Smith v. 111. 469. Stevens, 133 111. 183. n Chit. PI. 102; Spark x. Gari- ^ Gregory x. Stark, 3 Scam. 611. gitis. 1 Binn. 152. ^^ Alsbrookx. Hathaway, 3 Sneed sRev. Stat. (1895), 113; 1 Starr & (Tenn.) 454; see Bull v. Pratt, 1 Curtis 203; People x. Randolph, 24 Conn. 347; iJeed v. itenseZaer, 3 Cow. 111. 324; Rev. Stat. (1893), 113. 893. « Town V. Block, 36 111. 507. DEBT. • 427 Where one party takes undue advantage of another, and compels hhn to pay money contrary to equity and good con- science, he may recover it again in an action of debt.' It lies on a decree in chancery which has the effect of a judgment at law,'' such as a decree for a sum of money as ali- mony,^ or a decree fixing the balance of an account between the parties; * though there is some conflict of authorities on this question." It may be maintained on a decree of a foreign court which finds a sum of money to be due, and directs its payment; but not on a decree for the performance of acts other than the payment of money.* Debt lies on the judgment of a justice of the peace of an- other state.' It has been held that this action may be maintained by the assignee against the maker of a promissory note;" but in H'd- horn V. Artus, 3 Scam. 344, a doubt was expressed whether this can be done. An action of debt lies upon an instrument under seal for the payment of a sum certain, to a specified person, and at a cer- tain time, without alleging or proving the consideration for which, or the transaction in which, the instrument Avas made, although it contains a statement or explanation of such con- sideration or transaction. Such statement does not change the character of the instrument." Debt lies also on an award for the payment of money,'" and that without regard to the penalty of the bond;" and on by- laws, for fines and amercements.'^ Debt can not be sustained in ^County V. Simmons,^ GWm.hlZ. ''Cole v. Driskell, 1 Blackf. 16; ^ Williams V. Preston, 3. 3. Max^\\. Sheldon v. Hojikins, 7 Wend. 435: 600; Elliott \. Ray, 2 Blackf. 31. Cleveland v. Rogers, 6 Wend. 438; ^ifou-orriv. ifozrard, 15 Mass. 196; see Trader v. 3JeKee, 1 Scam. 558; see Elliott v. Ray, 2 Blackf. 31; Thomas v. Robinson, 3 Wend. 267. Trimble v. State, 4 Blackf. 42; Dow » Taylor v. Walpole, 1 Blackf. V. Blake, 148 111. 76. 378; Loose v. Loose, 36 Penn. 538; * Thrall v. Waller, 13 Vt. 231. 1 Swan's Pr. 378; 2 Chit. PI. 388, n. « Warren v. McCarthy, 25 111. 95; ^ Nash v. Nash, 16 111. 79. see Hugh v. Higgs, 8 Wheat. 697. '» Stanley v. Chappell, 8 Cow. 235; « Warren v. McCarthy, 25 111. 95; 1 Chit. PL 99. Post V. Neafie, 3 Caine 22; Evans v. " Ex parte Wallis, 7 Cow. 522. Tatem, 9 S. & R. 252. '" 1 Chit. PI. 99. 428 * DEBT. any case, unless the- demand is for a sum certain, or for a pe- cuniary demand which can readily be reduced to a certainty.' An action of debt will not lie upon an obligation which sa3's " due one thousand and fifty dollars, payable in county orders, of such size and dimensions as the promisor may be able to furnish;" such an obligation not being for the money named, but for the thing to be furnished.'' A joint action of debt will not lie against a lessee, in a lease under seal, and a surety who, by a writmg not sealed on the back of the lease, becomes surety for the payment of the rent.' Where a vendee sued a vendor of land, in debt, for a part of the purchase money paid, declaring specially on the con- tract of sale, which was under seal, and alleging that the vendor could not convey, by reason of incumbrances, it was held that the action would not lie, but that the remedy was in covenant.* Where a constable has collected money otherwise than by virtue of process, an action will not lie on his bond for a fail- ure to pay over the money.* Where a person executes a bond as surety with another, whose name at the time appears signed to the bond, but whose signature has been forged, the person so executing such bond wnll be liable thereon." Debt lies by the beneficiary against a mutual benevolent association to re- cover the debt benefit secured by a certificate of membership therein.' Actions of debt on statutes, in Illinois. — The statute of Illinois provides that any person who shall cut, fell, box, bore or destroy, or carry away any of the trees or saplings therein enumerated without permission of the owner of the land, shall forfeit and pay for each tree or sapling so cut, etc., the sum of ei^ht dollars; to be recovered either by an action of debt, in the name and for the use of the owner of the land, or by > Little V. Mercei', 9 IMo. 218; 1 « Davis v. Buckles, 89 III. 237; Chit. PI. 102; Mix v. Nettleton, 29 Stoner v. Milliken, 85 III. 218; Itis. 111. 245; Haynesv. Lucas, 50 111. 436. Co. v. Brooks, 51 Mo. 506. 2 3Iix V. Nettleton, 29 III. 245. ' Sicift v. Ben. Ass'n, 96 111. 311 3 Turney v. Penn, 16 111. 485. Laivrence v. Lis. Co., 5111. App. 280 i Haynes V. Lucas, 50111.436. Ben. Ass'n v. Hall, 118 111. 169 6 Henckler v. Schulze, 27 111. 39. Society v. Miller, 23 111. App. 341. DEBT. 429 action qui tam^ in the name of any person who will first sue for and recover the same; the one-half lor the use of the person so suing, and the other half for the use of the owner of the land/ If any drover drives off, or knowingly and willingly permits to be driven off, from the premises of any citizen, or from the range in which the stock of any such citizen may run, to any distance exceeding five miles from such premises or range, any horses, mules, neat cattle, hogs or sheep belonging to such citizen, or permits any such stock to remain with his drove for a longer period than two days and nights at any one time, the owner may bring an action of debt, and recover double the value of such stock so driven away or detained." If any engineer on any railroad shall start his train, at any station, etc., without ringing the bell or sounding the whistle a reasonable time before starting, he shall forfeit the sum of not less than $10, nor more than $100, to be recovered in an action of debt in the name of the people of the State of Illi- nois, and such corporation shall also forfeit a like sum, to be recovered in the same manner.* Every engineer and the railroad corporation failing to come to a full stop at a distance of not less than 200 feet, nor more than 800 feet from the draw in every bridge which crosses any stream or harbor by swing or draw bridge, or from the point of intersection or crossing of another railroad, and in plain sight of the same, before such draw, intersection or crossing is passed b}^ any such train, shall, for each offense, forfeit $100, to be recovered in an action of debt, in the name of the people of the State of Illinois, or by any person who may sue for the same.* If any public officer, having in custody any person restrained of his liberty, etc., refuses (except in case of imminent dnnger of escape,) to admit any practicing attorney, whom such per- > Rev. Stat. (1893) 1436; Rev. Stat. '^ Rev. Stat. (1893) 615; Rev. Stat. (1895) 1524; 2 Starr & Curtis 2388; (1895) 663; 1 Starr & Curtis, 997; see Gehlmrt v. Adams, 23 111. 397; Elder Form No. 256, post. v. Hilzheim, 35 Miss. 231; Behmeyer ^ Rev. Stat. (1893) 1116; Rev. Stat. V. Odell, 31 111. App. 353; see Form (1895) 1200; 2 Starr & Curtis, 1937. No. 255, posf. *Id. 430 DEBT. son may desire to see or consult, to see and consult such per- son alone and in private, at the jail or other place of confine- ment, such officer is liable to forfeit and pay to the person aggrieved one hundred dollars, to be recovered bv an action of debt.' The statutes provide for numerous qui tarn actions, not par- ticularly referred to here, most of which are usually prosecuted before a justice of the peace, as the penalties come within his jurisdiction. If a statute prohibits the doing of an act under a penalty, and does not prescribe any mode of recovery, an action of debt lies.^ Commencement of tlie action. — It has already been shown in what cases security for costs is required to be filed before the commencement of an action {ante, page 13). The prcB- cipe for a summons, or capias ad respondendum, may be in the following form : Praecipe /or summons, or capias, in debt. In the Court of the County of , in the State of Illinois. A. B. ) vs. [ Debt. C. D. \ Debt $ . Damages $ . Tlie clerk of the said court will issue a summons, (or, capias ad respon- dmdinn,) as above, directed to the sheriff of the county of , and return- able to the term, 18 — . (Date.) E. F., Attorney for Plaintiff. To J. K., Clerk, etc. In debt gui tarn, omit the damages. The sum demanded as the debt should be specified in the prcecipe, as a summons in debt is defective if it does not demand a particular sum as the debt.^ The declaration. — As in other actions, the declaration ought to pursue the writ, as to the character of the action, the parties, and the extent of the demand.* 'Rev. Stat. (1893) 510; Rev. Stat right, 27 111. App. 559; Durbin v. (1895) 553; 1 Starr & Curtis 818; see People, 54 111. App. 101. Form No. 257, post. * Weld Y.Hubbard, 11 111. 573. 2 1 Head (Tenn.) 71; Vaughan v. ^Weld v. Hubbard, 11 111. 573; Thompson, 15 111. 39; City v. Eii- Thorj^ev. Starr, 11 III 199; Carpen- ter V. Hoyt, 17 111. 529. DEBT. 431 Debt lies on a special contract to pay money; and if such contract is specially declared upon, and is not under seal, so that a considaration is necessary, the declaration should show such consideration, and may in general be framed like a dec- laration in assumpsit, with this exception, that it should be alleged that the defendant " agreed," not that he " promised '' to pay,' A count commencing and concluding in debt, is not, however, to be regarded as a count in assumpsit merely because the word " promised " is used instead of " agreed." ^ In declaring upon a writing not under seal, no profert is made; ^ and in Illinois, by statute, it is not necessary, in any pleading, to make profert of the instrument alleged.* Oyer can not be claimed of a deed which appears from the pleadino- to be lost, or in the possession of the adverse party.* A count on a specialty and one on simple contract may be joined in the same declaration.' But counts in debt and in assumpsit can not be joined.' In a declaration on a judo-ment of a justice of the peace in another state, the jurisdiction of the justice must be shown.* In a suit on a bond given by a deputy sheriff for the faithful performance of the duties of his office, the plaintiff must assign breaches, and can not, without such assignment, take a verdict for even nominal damages.' A general assignment of a breach, which is sufficient to show on what account the suit is brouo-ht is sufficient.'" In an action upon a penal bond, in Illinois, the breaches are to be assigned in the declaration, and as many breaches may be assigned in one count as may be deemed necessary, or the declaration may contain as many counts as there are breaches ' Emery v. Fdl, 2 Term S8; 1 Chit. gins, 2 Root 482; Republic v. Coates, PI. 362. 1 Yeates 2. ^Crnikshank v. Brown, 5 Gilm. ^l Chit. PI. 181; Man v. LobdeU, 75; McGinnity v. Laguerenne, 5 13 Johns. 462; Farnham v. Hay, 3 Gilm. 101; Smith v. Webb, 16 111. Blackf. 167. 105. "I Adams v. Hardin, 19 III. 273. 8 1 Chit. PI. 313. « Sheldon v. Hopkins, 7 Wend. 435 : 'Rev. Stat. (1893) 1073; Rev. Stat. Trader v. McKee, 1 Scam. 5>8. (1895) 1157; 2 Starr & Curtis 1786. » Barnard v. Darling. 11 Wend. 30. *1 Chit. PI. 314; Paddock v. Hig- ^'> Governor v. Ridgway. 12 111. 15; Huglies v. Smith, 5 Johns. 1C3. 432 . DEBT. of the bond. In the former case, each breach answers the place of a count, and is subject to a demurrer, which may be sustained as to some and overruled as to others, the same as if the breaches were set forth in separate counts/ Assignments of breaches of the condition of a bond must be specific enough to inform the defendants of what particular acts they have been guilty." In a declaration on a bond conditioned that the defendant would not suffer any unlawful assemblies about his house, an assiernment of a breach that he did suffer unlawful assemblies in and about his house during the continuance of his license is not sufficient/ So, in a suit on a constable's bond, the declara- tion should set out the particular breach of duty in the officer.* It is not necessary for the plaintiff, in declaring in debt on a recognizance of bail, to allege that a fi. fa. had been issued against the principal before the return of the ca. saJ" A breach of the condition of a bond " to free the land from all legal incumbrances, either by deed or mortgage now in ex- istence and binding on the premises, by the 20th of February," is not well assigned by following and negativing the words of the condition, and such assignment does not necessarily amount to a breach. The plaintiff ought to show some incum- brance existing at the date of the bond and on the 20th of February, or at the commencement of the suit.' In an action on a bond which was conditioned for the pay- ment of a certain sum whenever the obligor should be released from another penal bond previously executed, it was not averred that the obligor had been released or discharged. The declaration was held bad.' In a suit on an official bond, an assignment of breaches in the declaration is held necessary.' Where the condition of a 1 Hibhard v. 3TcKindley, 28 111. 240 see Brady v. Sjnwck, 27 111. 478 People V. Gregory, 11 Bradw. 370 Robinson v. People, 8 Bradw. 279 Sugden v. Beasley, 9 Bradw. 71 •> Graham v. State, 6 Blackf. 32; Major V. State, 8 Blackf. 71. * Gillespie v. White, 16 Johns. 117. * Julliand v. Burgott, 11 Johns. 6. "* Hart V. Tolman, 1 Gilm. l;Beebe People V. Harmon, 15 Bradw. 189. v. Bank, 1 Johns. 554. "^ State V. Coffee, 6 Ohio 150. ^ State v. Coffee, 6 Ohio 150; Boles « Boles V. McCarty, 6 Blackf. 428. v. McCarty, 6 Blackf. 428. DEBT. 433 bond may be broken by the omission or commission of a single act, the breach may be assigned in the words of the condition; but if it may be broken in various ways, the assignment should state the particular mode of the breach.' In debt on a bond, given on appeal of an action of forcible entry and detainer to the supreme court, and conditioned to pay the value of the use and occupation of the premises, it is not necessary to aver in the declaration that the defendant had enjoyed the use and occupation of the premises. In such case, it is only necessary to allege, in assigning breaches of the bond, that the plaintiff had been deprived of the possession during the pendency of the appeal.* Where a penal bond is executed by two parties, in which they mutually bind themselves to desist from all interference w^ith a certain tract of land, to which each has previously set up a claim, until the merits of their respective claims shall be settled or adjusted, it seems an action is maintainable for a breach of the condition.* Where a declaration describes an appeal bond to be payable on demand, and then proceeds to set out the condition at large, so that the true character of the bond appears, the bond may be offered in evidence, although it is not payable on demand, but on the affirmance of the judgment.* A declaration upon an appeal bond is sufficient, which avers that the appeal was not prosecuted, and that the judgment ap- pealed from was not paid, and that such judgment was affirmed. It need not aver that the order dismissing the appeal was filed in the court from which the appeal was taken. An averment that the judgment appealed from was final, or that th(i judge of the court from which the appeal was taken approved the bond, is unnecessary.* It is well settled that in actions to recover a penalty under a highly penal statute, the averments of the declaration must bring the case clearly within the prohibition, and that the pro- visions of the statute must be strictly construed. The declara- ' County V. Bledsoe, 12 111. 267; « Wilcoxen v. Roby, 3 Gilm. 475. Major V. State, 8 Blackf. 71. * Walker v. Welch, 14 111. 277. '^Higgins v. Parker, 48 111. 445. ' Sutlierland v. Phelps, 22 III. 92. 28 434 DEBT. tion in such a case is to be construed most strongly against the pleader, and every fact necessary to constitute the offense for which the penalty is sought to be recovered must be distinctly averred, and no intendments will be allowed in favor of the prosecution.' PRECEDENTS OF DECLARATIONS IN DEBT. No. S34. Common indebitatus count. In the Court. Term. 18—. State of Illinois, ) . County of . J * A. B., plaintiff, by E. F., his attorney, com- plains of C. D. , defendant, of a plea of debt: For that whereas the defendant, on the day of , in the year 18 — , in the county aforesaid, was indebted to the plaintiff in the sum of dol- lars, for {here state tJie subject-matter of the debt, precisely as in assumpsit, ante, pages 76-77, and then proceed:) which said sum of money was to be paid to the plaintiff by the defendant, when he should be thereto requested : Yet the defendant, though requested, has not paid to the plaintiff the said sum of money, or any part thereof, but refuses so to do; to the damage of the plaintiff of dollars, and therefore he brings liis suit, etc. If there are several counts, the breach should be as fol- lows: Yet the defendant, though requested, has not paid to the plaintiff the several sums of money in the several counts above specified, together amounting to the sum of dollars, or any part thereof, but refuses so to do; to the damage, etc. It has been usual, in the commencement of the declaration, to say that the plaintiff complains of the defendant " of a plea that he render to the plaintiff the sum of dollars, which he owes to and unjustly detains from him;" and this was to be the aggregate of all the sums demanded in the different counts.'' Whether strictly necessary or not,^ it would seem to be well to state the aggregate of the sums claimed in the sev- eral counts; and this should be the debt demanded by the ' People V. Fesler, 145 111. 150. ° 1 Qiit. PI. 309; 1 Swan's Pr. 185, i, 2 1 Chitty's PI. 309, 325, a; 2 Chit. 349, a, b; Lord v. Houston, 11 East PL 385, 387; People v. Van Eps, 4 62; Duppa v. Mayo, 1 Saund. 288, Wend. 387. n. 1. DEBT. 435 summons, which must demand a particular sum as the debt; ' but this statement of the debt may be made in the breach, as in the forms here given. " The debt demanded should regularly be the aggregate of all the sums alleged to be due in the different counts; but a mistake in this respect, Avhether more or less, will not be a cause of demurrer, nor is it necessary to prove that the debt amounted to precisely the sum stated to be due." " Where the form used in the commencement is, "of a plea that he render," etc., the words oives to and (the d(3bet) should regularly be omitted in actions by or against executors or ad- ministrators, who in general are to be sued in the detiiiet only .^ But it seems this distinction is no longer strictly observed:* and where the action is simply described in the commence- ment as " a plea of debt," which is sufficient,* the distinction is of course not made. It has also been usual, in each count, after setting forth the subject-matter of the debt, etc., to say, " whereby, and by reason of the last mentioned sum of money being and remain- ing unpaid, an action hath accrued to the plaintiff to demand and have of the defendant the said sum of money last men- tioned, parcel {or ' other parcel,' or ' residue ') of the said sum of dollars above demanded ; " but this allegation is unnecessary, and the usual breach at the end of the declara- tion will suffice. " The distinction is said to be, that when- ever the debt arises merely by the judgment or obligation, etc., and not from anything dehors^ a non-performance of the obliga- tion is to be laid, and the conclusion is to be with the breach ad damnum', but that where the debt arises, not by the obliga- tion alone, but also by some matters dehors stated in the declaration, there the count should conclude per quod actio accrevit, etc., as in debt on a lease for rent." " The clause " whereby," etc., is not, it seems, in the old entries, except in ' Weldv. Hubbard, 11 111. 573. ■• 1 Swan's Pr. 185, i; 2 Chit. PI. 2 1 Chit. PI. 309; Lord v. Houston, 383, p. 11 East 62; Duppa v, 31ayo, 1 ' 1 Swan's Pi-. 185, i; Wil. Pr. 82, Saund. 288, n. 1. 83, n; see 1 Chit. PI. 361. n Chit. PI. 310; 2 Chit. PL 385. «1 Chit. PI. 310; Gilb., tit. Debt, 414, 415; see 1 Swan's Pr, 385, a. 436 DEBT. cases where the debt arises from some misfeasance, as on a penal statute, or against a sheriff for an escape, oi" on leases, awards, etc/ No. 235. Payee against maker of promissory note. Special count on note, atid consolidated common counts. In the Court. Term, 18 — . State of Illinois, ) County of , f set. A. B., plaintifT. by E. F., his attorney, complains of C. D., defendant, of a plea of debt: For that whereas the defendant, on the day of , in the year 18—, in the county aforesaid, made his promissory note, and delivered the same to the plaintiff, and thereby then and there promised to pay, after the date thereof, to the plaintiff or his order, the sum of dollars, for value received, with interest thereon, etc.: by means whereof the defendant, on the day first aforesaid, there became liable to pay to the plaintiff the sum of money in the said note specified, according to the tenor and effect thereof. And whereas also the defendant, on the day of , in the year 18_, in the county aforesaid, was indebted to the plaintiff in the sum of dollars, for goods, chattels and effects before that time sold and deliv- ered by the plamtiff to the defendant, at his request; and in the like sum for goods, chattels and effects before that time bargained and sold by the plaintiff to the defendant, at his request; and in the like sum for work and services before that time done and bestowed, and materials for the same work furnished, by the plaintiff for the defendant, at his request; and in the like sum for money before that time lent by the plaintiff to the defend- ant, at his request; and in the like sum for money before that time paid and expended by the plaintiff for the use of the defendant, at his request; and in the like sum for money before that time received by the defendant, for the use of the plaintiff; and in the like sum for interest on divers sums of money before that time forborne by the plaintiff to the defendant, at his request, for divers spaces of time before then elapsed; and in the like sum for money found to be due from the defendant to the plaintiff, on an ac- count then and there stated between them; which said several sums of money, so due to the plaintiff as aforesaid, were respectively to be paid to him by the defendant, on request. Yet the defendant, though often requested, and though the day of pay- ment in the said note mentioned has elapsed, has not paid to the plaintiff the several sums of money in the several counts above specified, together amounting to the sum of dollars (the sum mentioned as the debt in the summons, being the aggregate of all the suiti§ demanded in the several counts), or any part thereof, but refuses so to do; to the damage of the plauitiff of dollars, and therefore he brings his suit, etc. » 2 Chit. PI. 385, i; Gilb., tit. Debt, 413; 1 Swan's Pr. 385, a. DEBT. 437 The damages, in this action, are in general merely nominal; but if there is a demand for interest, the damages laid should be suificient to cover it. Interest, whether expressly reserved in the contract, or given by law, is an incident to the debt, and is reco veered in the form of damages, without being spe- cially claimed in the declaration; ' though where given by a statute, it must be specially claimed." It is unusual to bring debt on notes not under seal, except where counts on such notes are joined with counts on specialties or records, for the purpose of saving multiplicity of actions. Where an instrument provides for the payment of interest — as where a note, bill or bond is for the payment of a certain sum, at a certain time after the date thereof, with interest from such date — it would seem that the interest up to the ma- turity of the instrument ought to be considered a part of the deht, and that only the interest which has accrued after the maturity of the instrument should be considered as damages. In Marsh v. Wright, 14 111. 248, where the plaintiff declared in debt, for work and labor done, the court said : " As inter- est was not specifically claimed in the declaration, it could not be considered as part of the debt. If recoverable at all, it was only as damages for the detention of the debt. Judg- ment should have been entered for the amount of the indebt- edness established by the evidence, as the debt, and for the amount of the interest due thereon, as the damages." In an action of debt on a promissory note, it was alleged in one count of the declaration that the defendant, on, etc., " by his promissory note of that date, by him made, for value receiv^ed, four months after the date of the said note, promised the plaintiffs to pay them, or their order, without defalcation, the sum of four hundred dollars," etc.; and the count con- cluded with a request and refusal to pay. The court held this to be a sufficient count in debt, the wovd promised not being used by way of averment to show the liability of the defendant, but as descriptive of the instrument.^ ^ McConnell v. Thomas, 2 Scam. ^ McGinnity x. Laguerenne, 5 313. Gilm. 101; Cruikshnnk v. Brnicn, ' Pearsons v. Hamilton, 1 Scam. 5 Gilm. 75; Smith v. Webb, 16 III. 415. 105. 438 DEBT. No. 236. On a bill of exchange— Payee against drawer, on default of payment. {Commence as in last precedent.) For that whereas the defendant, on, etc., m, etc., made his bill of exchange, and delivered the same to the plaintiff, and thereby then and there requested one G. H. to pay, after the date thereof, to the plaintiff, or his order, the sum of dollars, for value received, with interest thereon, etc.; which said bill the said G. H., on the day fii^st aforesaid, upon sight thereof, there accepted : And the plaintiff avers that v^rhen the said bill became due, to wit, on, etc., the same was there presented to the said G. H. for payment thereof, and he was then and there requested to pay the amount of the said bill, ac- cording to the tenor and effect thereof; but that the said G. H. did not nor would then, or at any time before or afterwards, pay the said amount, or any part thereof, but refused so to do; of which premises the defendant then and there had notice : By means whereof the defendant then and there be- came liable to pay to the plaintiff, on request, the said amount of the said bill; and being so liable, the defendant, in consideration thei-eof, then and there agi-eed to pay the said amount to the plaintiff, on request. {Add counts on the consideration of the hill hetiveen the plaintiff and tJie defendant, the money counts, interest, and account stated — the con- solidated common counts, as in the last precedent, may be used — and the following breach:) Yet the defendant, though requested, has not paid to tlip plaintiff the said amount of the said bill and the several other sums of money above speci- fied, together amounting to the sum of dollars, or any part thereof, but refuses so to do; to the damage to the plaintiff of dollars, and therefore he brings his suit, etc. See forms No. 58, and No. 60 {ante, page 116), and the ob- servations thereunder. No. 237. On an award, where the submission was by arbitration bonds. {Coynmence as in No. 234, ante.) For that whereas, certain differences hav- ing arisen and bemg depending between the plaintiff and the defendant, the plaintiff, on, etc., in, etc., by a certain bond of arbitration bearing date of that day, became bound to the defendant in a certain penal sum in the said bond mentioned; and the defendant then and there, by a certain other bond of arbitration, bearing date of the same day, became and was bound to the plaintiff in a certain penal sum in the same bond mentioned; which said bonds were respectively conditioned to {here set out the substance of the condition, which may be thus—) abide the award and determination of E. F., an arbitrator indifferently electei and named, as well by and on the behalf of the defendant as by and on the behalf of the plaintiff, to arbi- trate and award concerning all actions, causes of action, controversies and demands whatsoever, theretofore had, brought, or depending by and be- tween the said parties, so as the said award should be made in writing, under the hand of the said E. F. , and ready to be delivered to the said par- DEBT. 439 ties in difference, or whichever of them should desire the same, on or before, etc And the plaintiff further says, that the said E. F., having taken upon himself the burden of the said arbitration, did in due manner, and within the time for that purpose appointed, to wit, on, etc., there duly make and publish his award in writing, by him subscribed, concerning the said mat- ters in difference between the said parties, ready to be delivered to the said parties in difference, or whichever of tliem should desire the same, and did thereby award that the defendant should pay to the plaintiff the sum of dollars, {set out tlie award so far as relates to the payment of the money,) which, when paid, should be in full satisfaction of all claims and demands of the jilaintiff upon or against the defendant, for or in respect of the said matters indifference; and the said K F. did thereby further award that the plaintiff should pay dollars as and for the costs of that, his award, and that the defendant should, upon demand, repay to the plaintiff one moiety of such sum of dollars, and that in all other respects the said pai'ties respectively should bear their own costs of that reference; as by the said award, reference being thereunto had, will more fully appear; of which said award the defendant, on the day last aforesaid, there had notice. And although the defendant did afterwards, to wit, on, etc., pay to the plaintiff the said sum of dollars in tlie said award mentioned, yet the defendant has not paid to the plaintiff the said sum of dollars in the said award mentioned, or any part thereof, although to pay the last-mentioned sum of money the defendant was there requested by the plaintiff, to wit, on, etc., aforesaid. Whereby an action has accrued to the plaintiff to demand of the defendant the said sum of dollars. {Add counts for vioney jiaid, interest, and on an account stated, in debt, as in No. 235, ante, and common condusion, as under No. 234.) Where the submission is by bond, the plaintiff has an elec- tion to sue on the bond or on the award, if it is merely for the payment of money. But if a collateral thing is awarded, the suit must be on the bond, as debt will lie for money only-' Where a sum of money is awarded, it is sufficient to set forth so much only of the award as to show a good cause of action.* But if there is any condition precedent, etc., to be performed by the plaintiff, it should be stated, and perform- ance, or a tender and refusal averred. A verbal award may be set forth substantially.* In setting forth an award, it seems hardly safe to say that '' among other things " it was awarded; but there are authorities which hold this good.* 1 2 Saund. 62, n. 5. «2 Vent. 242. 2 1 Ld. Raym. 115; Bur. 278. «1 Mod. 36; 01. Free. 506. 440 DEBT. In an action of debt on an arbitration bond, it is only neces- sary that the declaration should show that the award was made in pursuance of the bond, and that the defendant has not complied with the award. The rule is, however, different where the action is directly on the award itself, in which case a mutual submission must be alleged.' No. 238. Chi a judgment of the same court. {Commence as in No. 234, aute.) For that whereas the plaintiff, in the term of the said court, in tlie year 18 — , to wit, on, etc., in the same year, by the consideration and judgment of tlie said court recov- ered against the defendant, in a certain action of , the sum of dol- lars, damages (or, " the sum of dollars, debt, and the further sum of dollars, damages for the detention thereof," according to the record), and also the costs of the plaintiff in that behalf, taxed at the sum of dollars, whereof the defendant was convicted, as by tlie record tliereof, re- maining in the said court, more fully appears; which said judgment still remains in full force. Yet the defendant has not paid to the plaintiff the said sums of money so by him recovered as aforesaid, together amounting to the sum of dollars, or any part thereof, but refuses so to do; to the damage of the plaintiff of dollars, and therefore he brings his suit, etc. {Let the damages be enough to cover tlie interest.) In an action on a judgment for the defendant, for costs, the re- covery may be described as being for " the costs of the plaint- iff, taxed at the sum of dollars, by him expended in and about his defense of a certain action of, etc., then lately pros- ecuted against him in the same court, by the defendant, whereof," etc. Care should be taken to set forth the particulars of the judgment correctly — the amount, and the court and term in which rendered, etc.* The allegation that the judgment remains in full force, though usually inserted, is not necessary.'* No. 239. On a judgment of a court of another state. {Commence as in No. 234, ante.) For that whereas the plaintiff, in the term, in tlie year 18 — , of the court of the county of , in the state of , to wit, on, etc. , in the same year, by the consideration and judgment of the same court recovered against the defendant, in a certain ' Cote V. Chapman, 2 Scam. 35. Ohio 397; see Spangler v. Pngh, 21 « 2 Chit. PI. 483, notes; Com. Dig. 111. 85. PI. 2 W. 12; Bibbins v. Noxon, 4 » 2 Chit. PI. 484, n.-, Hancock v. Wend. 207; Wolf v. Pounsford, 4 Proicd, 1 Saund. 330, «. 4. DEBT. 441 action of , the sum of dollars, damages, (or " the sum of dol- lars, debt, and the further sum of dollars, damages for the detention thereof," according to the record,) and also the costs of the plaintiff in that behalf, taxed at the sum of dollars, whereof the defendant was con- victed; as by the record thereof, remaining in the same court, more fully appeai-s; which said judgment still remains in full force: Yet, etc., {con- cluding as in last precedent.) By the constitution of the United States, and the acts of congress, judgments in personam in the various states are placed on the same footings as domestic judgments, and are to have the same force and credit, when sought to be enforced in other states, as they have by law or usage in the particular states where rendered/ The settled construction of the constitution and laws of the United States upon this subject is, that the judgment of a state court shall have the same credit, validity and effect, in every other court in the United States which it had in the state where pronounced; and that whatever pleas would be good to a suit thereon in such state, and none other, can be pleaded in any other court in the United States.^ The legal presumption, in the absence of evidence to the con- trary, is in favor of the jurisdiction of a court of record of an- other state, which has assumed to exercise jurisdiction over a subject-matter in controversy between parties residing there/ A foreign judgment can not be sued unless it is final and con- clusive in the countrv or state where it was rendered, according; to the law of that place. It should be complete and definite in its nature, and a valid and subsisting obligation, and it must be certain or capable of being made so.* A judgment which by the laws of the state where rendered is conclusive on the parties, is equally so when suit is brought ^ Welch V. Sykes, 3 Gilm. 198; Shumicay v. St illman, Q\V end. U7; Bimeler Y. Dawson, 4: Scam. 536; 3Iills v. Martin, 19 Johns. dS; Adams Kimmel v. Shultz, Breese 169; Du- v. Jeffries, 12 Ohio 253; Smith v. cxtmmun v, Hysinger, 14 111. 249; i2/ioad«s, 1 Day 168; i?a /rod v. Sar- Dow V. Blake, 148 111. 76. retto, IHall (N. Y.) 155; McElmoyle ''Hamjjtonv. McConnell,SWhesit. v. Cohen, 13 Pet. 312; Rosenthal y. 234; Mills v. Diiryee, 7 Cranch 481; Eennick, 44 111. 202. Laiorence v. Jarvis, 32 111. 304. ■» Dow v. Blake, 148 111. 76. ^Shuviway v. Stillman, 4 Cow. 293; 442 DEBT. thereon in another state.' An action of debt lies upon a final decree for alimony rendered in another state.^ No. S40. On a judgment of a justice of tlie peace of another state. {Commence as in No. S34, ante.) For that whereas the plaintiff, on, etc., before one F. G., Esquire, one of the justices of the peace, within and for the county of , in the state of , by the consideration and judgment of the said justice recovered against the defendant the sum of dollars, damages, and the costs of the plaintff in that behalf, taxed at the sum of dollars; which said judgment still remains in force : And the plaintiff in fact says, that the said justice then and there had jurisdiction of the person of the defendant, and by the statute of that state, then in force, then and there had jurisdiction of the subject-matter adjudicated in that behalf which said statute is as follows, that is to say : {Here set out so much of tJie law of the state as gives jurisdiction.) Yet the defendant has not paid to the plaintiff the said sums of money so by him recovered as aforesaid, to- gether amomiting to the sum of dollars, or any part thereof, but re- fuses so to do; to the damage of the plaintiff of dollars, and therefore he brings his suit, etc. {Counts on the original debt, and on an account stated, may be inserted.) In declaring upon a justice's judgment of another state, the statute giving jurisdiction to the justice must be pleaded. The general averment of jurisdiction of a justice of the peace, in such case, is not enough.* In order to entitle a transcript of a judgment of a justice of the peace of another state to be received in evidence, it must be shown, by the laws of the state where the judgment was rendered, that the justice had jurisdiction of the subject-mat- ter upon which he attempted to adjudicate.* No. 2^1. Declaration in action for rent, on a demise. {Commence as in No. S34, ante.) For that whereas the plaintiff, on etc., in etc., demised to the defendant a certain parcel of land, with the appur- tenances, situate, etc., to have and to hold the same to the defendant for and during the term of years then next ensuing, yielding and paying ^Beltony. Fisher, 44 111. 32; Am- Thomas v. Robinson, 3 Wend. 267; bler\. Whipple, 139 111. 311; Stark see Cleveland v. Rogers, 6 Wend. V. Ratcliff, 111 111. 81; Kopperl v. 438; 2 Cow. & Hill's Notes to Phil. Nagy, 37 111. App. 24; Dow v. Blake, Ev. part 2. 148 111. 76. * Trader v. McKee, 1 Scam. 558; ^ Dow V. Blake, 148 111. 76. see elaborate note by reporter to this ^ Sheldon V. Hopkins,! Wend, 4iZ5; case. DEBT. 443 therefor, during the said term, to the plaintiff, the yearly rent of dol- lars, payable quarterly, that is to say, on, etc., etc., by equal portions; by virtue of which said demise, the defendant, on the day first afore- said, entered into the said demised property, and was possessed thereof from thenceforth until the day of, etc., when a large sum, to-wit, dollars of the rent aforesaid, for the space of , ending on the day last aforesaid, became due from the defendant to the plaintiff. {Second count, for use and occupation.) And whereas also tbi^ defendant on., etc., in, etc., was indebted to the plaintiff in the further sum of dollars, for the use and occupation of a certain other parcel of land of the plaintiff, with the appurtenances, by the defendant held, used and occupied, at his request, and by the sufferance and permission of the plaintiff, for a long space of time before then elapsed; which last mentioned sum of money was to be paid by the defendant to the plaintiff, on request. [Breach.) Yet the defendant, though requested, has not paid to the plaintiff the said sums of money so due to him as aforesaid, together amount- ing to the sum of dollars, or any part thereof, but refuses so to do to the damage of the plaintiff of doUai's, and therefore lie brings his suit, etc. The first count of the above form may be used, whether the demise was by deed or by parol. It is settled that in debt for rent reserved by deed (except of incorporeal hereditaments), the plaintiff may declare without stating the deed. This is the only case in which the plaintiff is allowed to declare gen- erally, and to produce a deed in evidence in support of such declaration.' When the declaration sets out the lease, it is similar to the declaration in covenant for rent {ante, No. 152), except in the commencement and conclusion.^ It is not neces- sary to show the local situation of the demised property.^ The count in debt for use and occupation is sustainable, when the demise is not by deed, or there was no covenant sealed by the defendant/ No. S42. On a single bill, or sealed note. (Commence as in No. £34-, ante.) For that whereas the defendant, on, etc., in, etc., by his writing obligatory, bearing date of that day, and now to the court here shown, bound himself to pay to the plaintiff, 1 2 Chit. PI. 430, n; Duppa v. ^ Ibid., 3 M. & L. 380; 4 Taunt. 25; Mayor, 1 Saund. 276, n. 1,4; Salmon King v. Frazer, 6 East 348. V.Smith, Ibid. 202; Vealev. Warner, * 2 Chit. PI, 430, n; Wiltins v. Ibid. 225, n. 4. Wingate, 6 T. R. 62; Elger v. Mars- * 2 Chit. PI., 430, n. den, 5 Taunt. 25. 44i DEBT. after the said date thereof, the sum of dollars; yet the defendant has not paid to the plaintiff the said sum of money, or any part thereof, but refuses so to do; to the damage of the plaintiff of dollars, and there- fore he brings his suit, etc. The common counts may be inserted, with the general breach, as in No. 235. Where a sealed instrument is declared upon, and described as such, or a word of art used which imports that it is sealed, such as " writing obligatory," " deed," or " indenture," a de- livery is never averred; and the sealing and delivery, without an averment thereof, will be implied.' An instrument under seal is not a promissory note, though like one in form," and should not be described as such in a pleading, but as a writing obligatory. A bill obligatory, it is said, " is a bond without condition, sometimes called a single bill, and differs in nothing from a promissory note but in the seal which is affixed to it." ' Profert. — The omission of a profert, when necessary, can be taken advantage of only by special demurrer." If, how- ever, a bond or other deed is pleaded with a profert (where necessary), and the defendant pleads 7ion est factum, and the plaintiff can not produce the deed at the trial, he will be non- suited. It is, therefore, sometimes necessary or advisable to insert in the declaration, or in one count, an excuse of the profert^ as, "and which said writing obligatory having been lost {or ' destroyed by accident,' or ' by the defendant,' or ' be- ing in the possession of the defendant ' ), the plaintiff can not produce the same to the court here." * But in Illinois, by statute, it is not necessary, in any pleading, to make profert of any instrument.® Actions on penal bonds for the performance of covenants — Statute. — Section 20 of the Illinois Practice Act provides 1 Cahdl V. Vaughan, 1 Saund. 291, * 1 Chit PI. 315; Com. Dig., tit. PI. n. 1. S. 17. 2 2 Bouv. Die. 392; see Smith v. « 2 Chit. PI. 439; Smith v. Wood- Webb. 1& U\. 105. tvard, 4 East 585; 2 Campb. 557; 3 2 Bouv. Die. 179; Bank v. Grei- Eev. Stat. (1893) 1073. ner, 2 Serg. & Rawle, 115. * Starr & Curtis 1786; Rev. Stat. (1895) 1157. DEBT. 445 that " in actions brought on penal bonds, conditioned for the performance of covenants, the plaintiff shall set out the conditions thereof, and may assign in his declaration as many breaches as he may think tit; and the jury, whether on trial of the issue or of inquiry, shall assess the damages for so many breaches as the plaintiff shall prove, and the judgment for the penalty shall stand as a security for such other breaches as may afterwards happen, and the plaintiff may at any time after- wards sue out a writ of inquiry, to assess damages for the breach of any covenant or covenants contained in such bond, subsequent to the former trial or inquiry; and whenever execution shall be issued on such judgment, the clerk shall indorse thereon the amount of damages assessed by the jury, with the costs of suit, and the sheriff or coroner shall onl}'- collect the amount so indorsed; iwomded, that in all cases where a writ of inquiry of damages shall be issued for any such breaches subsequent to the first trial or inquiry, the defendant, or his agent or his attorney, shall have at least ten days' notice, in writing, of the time of executing the same." ' Judgment, etc., in actions on penal bonds. — In actions of debt on penal bonds the judgment for the plaintiff is for the penalty, the debt in numero to be discharged by the payment of the damages assessed, which are to be found separately. The execution issues for the debt, with an indorsement by the clerk of the amount of the damages, which amount only the officer is to collect.* No. 24s. On a bond given on an appeal to the supreme court. (Title of court, etc.) A. B., plaintiff, by E. F., his attorney, complains of C. D. and G. H., defendants, of a plea that they render to the plaintiff the sum of dollars {the penalty), which tiiey owe to and unjustly detain from him : For that whereas the defendants, on, etc., in, etc., by tlieir writing obligatory, bearing date of that day, jointly and severally acknowledged themselves to be held and firmly bound unto the plaintiff in the said sum of doUai's, to be paid to the plaintiff; which said writing • Rev. Stat. (1895) 1158. v. Cole, 11 111. 563; Erlinger v. ^ Austin ^. People, \\l\\.^o2; Mc- People, 36 111. 458; Freeman v. Connell v. Swailes, 2 Scam. 571; Peoj)le, Mill. 15'd: R. R. Co. v. Steele, Frazier v. Laughlin, 1 Gihn. 347; 69 111. 253; Parisher v. Waldo, 73 Hinckley v. West, 4 Gilm. 136; Tales 111. 71. 416 DEBT. obligatory was and is subject to a certain condition thereunder written, whereby, after reciting to the effect that in the term, in tlie year 18 — , of the said circuit court of the county of aforesaid, on the day of , in the same year, by the consideration and judgment of that court the plaintiff recovered against the said C. D., in a certain action of , the sum of dollars, damages {or " the sum of dollars, debt, and the further sum of — — dollars damages for the detention thereof," according to the bond), and the costs of the plaintiff in that behalf, taxed at the sum of dollars, from which said judgment the said C. D. had taken an appeal to the supreme court of the said state, it was provided that if he, the said C. D. , should duly prosecute his said appeal, and should pay to the plaintiff the amount of tlie said judgment, and all interest thereon, and all such costs and damages as should by the said supreme court be awarded to the plaintiff in case the said judgment should be affirmed, or the said appeal dismissed, then the said writing obligatory was to be void, otherwise to re- main in full force; as by the said writing obligatory, and the said condition thereof, remaining affiled in the said circuit court, will appear. And although afterwards, in the term, in the year 18 — , of the said supreme court, to wit, on the day of , in the same year, at , by the con- sideration of the same court (*) the said judgment in the said writing oblig- atory mentioned was affirmed, and the plaintiff recovered against the said C. D. the costs of the plaintiff by him about his defense of the said appeal expended, taxed at the sum of dollars, whereof the said C. D. was con- victed; nevertheless the said C. D. has not paid to the plaintiff the amoimt of the said judgment in the said writing obligatory mentioned, and the in- terest thereon, and the costs last aforesaid, or any part of the same : (*) whereby an action has accrued to the plaintiff to demand of the defendants the said sum of dollars {the penalty) above demanded. Yet the de- fendants, though requested, have not paid that sum of money, or any part thereof, to the plaintiff, but refuse so to do; to the damage of the plaintiff of dollars, and therefore he brings his suit, etc. {Lay the damages at a sum s^ifficient to cover the judgment, interest and costs.) If the appeal was dismissed, then, in lieu of the words be- tween the two asterisks, say : "The said appeal was dismissed for want of prosecution, {or ' for a fail- ure to file in the office of the clerk of that court, as required by law, an authenticated copy of the record of the said judgment in the said writing obligatory mentioned'), and the plaintiff recovered against the said C. D., as well the sum of dollars, for the damages of the plaintiff in that be- half, as his costs about his defense of that appeal expended, taxed at the sum of dollars, whereof the said C. D. was convicted; nevertheless the said C. D. has not paid to the plaintiff the amount of the said judgment in the said writing obligatory mentioned, and the interest thereon, and the damages and costs last aforesaid, or any part of the same." The dismissal of an appeal or certiorari is held to be DEBT. 447 equivalent to an affirmance of the judgment of the court be- low, so as to entitle the obligee to claim a forfeiture of the bond, and to have his action thereon.' But as the statute of Illinois only gives damages on the dismissal of an appeal for want of prosecution, or for a failure to file in the supreme court a transcript of the record,' it would seem that the declaration ought to allege a dismissal, and an award of damages, where such is the fact.' A declaration on an appeal bond is sufficient which avers that the appeal was not prosecuted, that the amount of the judgment was not paid, and that the judgment was affirmed. Such declaration need not aver that the order dismissing the appeal was filed in the court below, or that the judgment ap- pealed from was final, or that the appeal bond was approved by the court.* An appeal bond is binding on the obligors (to the extent of the obligation), though the condition thereof may not be as broad as the language of the statute.' But where an appeal bond contains conditions which are not required b}'' the stat- ute such conditions are not obligatory on the makers." The obligors on an appeal bond are estopped by their bond to deny the existence of a valid, unsatisfied judgment at the time the bond Avas executed.^ At common law, the conditions of a bond may be in part valid and in part void, if they are severable; and the same rule applies to statutory bonds, where the statute is silent as to the effect of a departure from the statutory form. If the good and bad conditions are incapable of severance, the bond is wholly bad.' • McConnell v. Sioailes, 2 Scam. ' Fournier v. Faggotf, 3 Scam. 571; Sutherland V, Phelps, 22111.92; 347; Young v. Mason, 8 Gilm. 55. see ONeil v. Nelson, 22 111. App. 531; « Tomlin v. Green, 39 111. 225. Daggett v. Mensch, 141 111. 395. '' Smith v, Lozano, 1 Bradw. 171. ^ Rev. Stat. (1893) 1081; Rev. Stat. « Erlinger v. People, 36111. 458; U. (1895) 1165; 1 Starr & Curtis, 1836. S. v. Broum, Gilpin's R. 178; Vroom « Daggett v. Mensch, 141 111. 395, v. Executors, 2 Green (N. J.) 480; Sutherland V. Phelps, 22 111. 91; Commonw'. v. Pearce, 7 Mon. 317; see Courson v. Browning, 78 lU. 208. Uiggins v. Parker, 48 111. 445. 4i8 DEBT. The penalty of a bond can only be claimed by the obligor in the bond or his legal representatives.' No. S44, On a rejilevin bend {given in a suit in the same court). (Title of court, etc.) A. B., plaintiff, who sues in this behalf for the use of C. D., complains of E. F. and G. H., defendants, of a plea that they ren- der to the plaintiff, for the use aforesaid, the sum of dollars, which they owe to and unjustly detain from him: For that whereas the said E. F., on, etc., in, etc., made his plaint to the said court of the county aforesaid, of the taking and unjustly detaining of his goods and chattels by the said C. D., and thereby prayed that the said goods and chattels, therein de- scribed, might be forthwith replevied and delivered to him, the said E. F., by the sheriff of the county aforesaid; and the said E. F. then and there made oath, before the clerk of the said court, that he, the said E. F., was then the owner and lawfully entitled to the possession of the said goods and chattels, and that the same had not been taken for any tax, assessment or fine levied by virtue of any law of this state, nor seized under any execution or attachment against the goods and chattels of him, the said E. F. , liable to execution or attachment: And thereupon there issued then and there, from the said court, a certain writ of replevin, directed to the sheriff of the said county, whereby the people of the said State of Illinois commanded such sheriff that if the said E. F. should give bond to such sheriff, with good and sufficient security, to prosecute the suit of the said E. F. in that behalf to effect, and without delay, and to make return of the said goods and chat- tels, if return tliereof should be awarded, and to save and keep harmless such sheriff in replevying the said goods and chattels, then such sheriff should without delay replevy and deliver to the said E. F. the said goods and chattels which the said C. D. took and unjustly detained, as it was said, and that such sheriff should have that writ, together with such bond, before the said court, on the first day of the next term thereof; which said writ, on the day first aforesaid, was there delivered, for execution thereof, to the plaintiff, who then and fi-om thence until and at and after the time of the making of the writing obligatory hereinafter mentioned, and the replevying of the said goods and chattels as hereinafter mentioned, was sheriff of the county aforesaid; And thereupon the plaintiff, so being such sheriff as aforesaid, took from the said E. F., and from the said G. H. as a good and sufficient surety, bond in double the value of the said goods and chattels so about to be re- plevied: and on that occasion they, the said E. F. and G. H. , then and there, by their writing obligatory, commonly called a replevin bond, bearing date of the day first aforesaid, did jointly and severally acknowledge themselves to be held and firmly bound unto the plaintiff, so being such sheriff as afore- said, in the simi of dollars above demanded, to be paid to the plaintiff; which said writing obligatory was and is subject to a certain condition thereunder written, to the effect that if the said E. F. should prosecute his 1 Sanders v. Filley, 12 Pick. 544; Lovejoy v. Stelle, 18 111, App. 281. DEBT. 449 said suit to effect, and without delay, and should make return of the said goods and chattels, if return thereof should be awarded, and should save and keep harmless the plaintiff, so being such sheriff as aforesaid, in re- plevying the said goods and chattels, then the said writing obligatory was to be void, otherwise to remain in full force; as by the said writing oblig- atory and the said condition thereof, remaining affiled in the said court, will appear: And thereupon the plaintiff, so being such sheriff as aforesaid, by virtue of the said writ then and there replevied and made deliverance of the said goods and chattels to the said E. F. , as by the said writ the plaint- iff was commanded: (*) And thereupon afterwards, in the said court, as of the said term thereof, in the year 18—, the said E. F. declared against tlie said C. D. in the said plea of taking and detaining the said goods and chattels, and by the said declaration complained that the said CD., on, etc., aforesaid, in, etc., aforesaid, took the goods and chattels of him, the said E. F., in the said declaration more particularly described, and them unjustly detained, until, etc., to the damage of him, the said E. F., of dollars, etc. : And such proceedings were thereupon had in that plea, in the said court, that afterwards, in the same term, it was considered and ad- judged by the said court that the said E. F, should take nothing by his said writ; and that the said C. D. should go thereof without day, and should have a return of the said goods and chattels. And the plaintiff in fact says, that the said E. F. did not make a return of the said goods and chattels, but has hitherto refused, and still refuses, so to do; whereby an action has accrued to the plaintiff to demand of the defendants, for the use afore- said, the said sum of dollars above demanded. Yet the defendants, though requested, have not paid to the plaintiff tlie said sum of money above demanded, or any part thereof, but refuse so to do; to the damage of the plaintiff, for the use aforesaid, of dollars, and therefore, for the use aforesaid, he brings his suit, etc. If there was judgment of non pros, in the action of replevin, then proceed, from the asterisk in the above form, as follows : And the plaintiff in fact says, that the said E. F. did not prosecute his said suit to effect, but therein wholly failed; and thereupon afterwards, in the said term of the said court, it was considered by the said court that the said E. F. should take nothing by his said writ, and that the said C. D. should go thereof without day, and should have a return of the said goods and chattels : And the plaintiff further in fact says, that the said E. F. did not make a return of the said goods and chattels, but has hitherto refused and still refuses, so to do; whereby, etc. (as in tlie above precedent, to the end). The following is suggested as a shorter and probably suffi- cient form of declaration on a replevin bond.' ' See 1 Swan's Pr. 364, b; Morse v, Parker, 1 Met. (Mass.) 508; Wil. Dig. Hodsdon, 5 Mass. 314; Simonds v. tit. Bond. 29 450 DEBT. No. 245. Another form of declaration on a replevin bond. (Commence as in last precedent.) For that whereas the defendants, on, etc., in, etc., by their writing obligatory, bearing date of that day, did jointly and severally acknowledge themselves to be held and firmly bound unto the plaintiff, then being sheriff of the county aforesaid, in the sum of dollars above demanded, to be paid to the plaintiff; which said writ- ing obligatory was and is subject to a certain condition thereunder written whereby, after reciting to the effect that the said E. F., on the day first aforesaid, sued out of the said court of the county aforesaid a certain writ of replevin against the said CD., for the recovery of certain goods and chattels in the said condition described, and that the plaintiff, so be- ing such sheriff, was about to execute the said writ, it was provided that if the said E. F. should prosecute his suit in that behalf to effect, and with- out delay, and should make return of the said goods and chattels, if return thereof should be awarded, and should save and keep liarmless the plaintiff, so being such sheriff as aforesaid, in replevying the said goods and chattels, then the said writing obligatory was to be void, otherwise to remain in full force; as by the said writing obligatory and the said condition thereof, re- maining affiled in the said court, will appear. And although afterwards, to wit, on the day first aforesaid, the plaintiff, so being such sheriff as aforesaid, by virtue of the said writ there replevied and made deliverance of the said goods and chattels to the said E. F. ; and although afterwards, in the term of the said court, in the year 18 — , it was considered and adjudged by the said court that the said E. F. should take nothing by his said writ and that the said C. D. should go thereof without day, and should have a return of the said goods and chattels, nevertheless the said E. F. did not make a return of the said goods and chattels, or any pai-t thereof, but has hitherto refused, and still refuses, so to do; whereby an action has ac- crued to the plaintiff to demand of the defendants, for the use aforesaid, the said sum of dollars above demanded. Yet, etc. {concluding as in last precedent). In an action on a replevin bond, the breach need not be formally assigned; but the plaintiff is entitled to recover, if a sufficient breach otherwise appears.' An averment of the issuing of a writ of retorno habendo is unnecessary in an action on a replevin bond.'' Such writ need not be issued and returned before an action can be brought on the replevin bond. It will be sufficient if a return was awarded and the property has not been returned.' ^Perreau v. Betxin, 5 B. & C. 284; ^ Peck v. Wilson, 22 111. 205; Smith 2 Chit. PI. 462, n.; Hunter v. Sher- v. Pries, 21 111. 656; Rankin v. Kin- man, 2 Scam. 539. sey, 7 Bradw. 215; Moorehead v. * Hunter v. Sherman, 2 Scam. Yeazel, 10 Bradw. 263. 539; 2 Chit. PI. 462, n. DEBT. 451 It is sufRcient to allege the execution and delivery of the bond, and a breach of its condition, by a judgment in the plaintiff's favor in the replevin suit, and a failure to return the property.' The breach need- not be set out in broader terms than those used in the condition, nor need the proof be more extensive than the breach." The declaration concisely states the proceedings in replevin, and the failure to fulfill the con- dition of the bond, and need not set out the goods replevied.* The condition of the bond should be correctly stated.* When the declaration states the bond in legal effect it is unnecessary to prove its execution unless the same is denied by a plea veri- fied by affidavit.* The declaration is not double, although both parts of the condition are negatived; and if a sufficient breach appears, the plaintiff will be entitled to recover, although the breach is not formally assigned.® A breach following the language of the condition, that the defendant did not prosecute his suit with effect, and without delay, is sufRcient; and proof of two years' delay would suffice, without proving a judgment of non pros J Where a replevin bond was taken b}^ a sheriff, and, his term of office expiring, the Avrit was returned unexecuted, and a new writ was afterward issued, which was executed by the successor without taking a new bond, it was held that an action could be maintained on the bond taken by the former sheriff.* It is essential to the validity of a replevin bond that the name of the defendant in the suit appear therein. Without this, such bond is a nullity; and the omission can not be sup- plied by averment and proof.' In an action on a replevin bond, the plaintiff is at liberty to go into the question of damages for the detention of the prop- erty, but he is not obliged to do so. He may abide by the ^ Scliott V. Yoiiree, 142 111. 233. ^Manning v. Pierce, 2 Scam. 6; « Peck V. Wilson, 23 111. 205; Hun- Hunter v. Sherman, 2 Scam. 539; terv. Sherman, 2 Scam. 539; Kel- 2 Chit. PI. 469. 7i.; but see Vinyard logg V. Boyden, 126 111. 379. v. Barnes, 124 111. 346. » 3 M. & S. 180; 3 Chit. PI. 459, n. "> Axford v. Perrett, 4 Bing. 287; *2 Chit. PI. 458, n. 2 Chit. PI. 461, n. ° Horner v. Boyden, 27 111. App. * Petrie v. Fisher, 43 III. 442. 573. » Arter v. People, 54 111. 228. 452 DEBT. assessment in the replevin suit, and take a verdict in the pend- ing suit merely for the value of the property. But if the plaintiff, in the action on the bond, in fact introduces evidence as to the damages for the detention of the property, the judg- ment in that case, when satisfied, will be a bar to a scire facias to revive a judgment rendered for damages in the action of replevin.' It is said that in an action on a replevin bond, evidence is admissible of damages sustained by reason of the detention of the property before the awarding of a return.^ The accidental destruction of goods wrongfully replevied will not discharge the liability of the plaintiff in the replevin suit to make return of the property when so ordered, and can not be set up in defense to an action on the replevin bond.^ Attorney's fees are within the condition of a replevin bond providing for the payment of all costs and damages occasioned by the wrongful suing out of the writ." It has been held that in an action on a replevin bond given in replevin of property levied on under execution, the plaintiff may recover the costs incurred by the judgment debtor in the action in which the judgment was recovered." An instrument in the form of, and intended as a replevin bond, containing the recitals of such bond, with the statement that it was under the hands and seals of the obligors, but not in fact under seal, yet, which filled the office of a replevin bond and secured the execution of the writ, must be held as a contract of indemnity and receive the same construction as a statutory replevin bond for which it was intended." See observations following precedent No. 2S0, page 502, post. ^ Shepard V. Butterfielcl, 4:1 111.76. * Siegel v. Hanchett. 33 111. App. ^ Shepard v. Butterfield, 41 111. 634; Harts v. Wendell, 26 111. App. 76; see Stevison v. Earnest, 80 111. 274; Dalby v. Campbell, Id. 502. 513; Atkins v. 3Ioore, 82 111. 240; "J^arsow v. Loird, 36 111. App. 402. Savage v. French, 13 Bradw. 17. ^ Edwin v. Cox, 61 111. App. 567. ^Suppiger v. Gi^uaz, 137 111. 216. DEBT. 453 No. 246. On a sheriff's hond — For a failure by the sheriff to make the amount of an execution. In the Circuit Court. Term, 18—. State of Illinois, ) County of . ) set. The People of the State of Illinois, plaintiff, which sues in this behalf for the use of A. B., complains of C. D., E. F., and G. H., defendants, of a plea that they render to the plaintiff, for the use aforesaid, the sum of ten thousand dollars, which they owe to and un- justly detain from the plaintiff : For that whereas the defendants, on, etc., in, etc. , by their writing obligatory, bearing date of that day, jointly and severally acknowledged themselves to be held and firmly bound unto the plaintiff in the sum of ten thousand dollars above demanded, to be paid to the plaintiff; which said writing obligatory was and is subject to a certain condition thereunder written, whereby, after reciting to the effect that the said C. D. had been duly elected sheriff of the county of aforesaid, it was provided that if he, the said C. D. , should faithfully discharge all the du- ties required or to be required of him by law, as such sheriff, then the said writing obligatory was to be void, otherwise to remain in full force; as by the said writing obligatory and the said condition thereof, remaining affiled in the office of the county clerk of the county aforesaid, will appear : And the said writing obligatory afterwards, and within twenty days after notice to the said C. D. of his commission as such sheriff, to wit. on, etc. , in the term of the said court in the same year, was approved by the judge of the county court of said county, and became the official bond of the said C. D. , as such sheriff as aforesaid; and thereupon he, the said C. D., then and there took and subscribed, before the clerk of the said court, the several oaths re- quired by law, and an oath for the faithful performance of the duties of his said office of sheriff, and took upon himself the performance of those duties and thenceforth has been, and still is, sheriff of the county aforesaid. Yet, the plaintiff in fact says, that the said C. D. has not faithfully discharged all the duties required of him by law as such sheriff, but has neglected and refused so to do, to the injury of the said A. B. And for assigning a breach of the said condition of the said writing ob- ligatoiy, the plaintiff says, that the said A. B., on, etc., in the term of the said court, in that year, by the consideration and judgment of the said court recovered against one J. K. the sum of dollars damages, and the costs of the said A. B. in that behalf, whereof the said J. K. was convicted; and for obtaining satisfaction of the said damages and costs, the said A. B. afterwards, to wit, on, etc., sued out of the said court a certain writ of fieri facias, directed to the sheriff of the county aforesaid, whei-eby the said peo- ple commanded such sheriff that of the goods and chattels, lands and ten- ements, in his county, of the said J. K., such sheriff should cause to be made the damages aforesaid, and the sum of dollars, the costs afore- said, together with interest thereon, at the rate of five per centum per annum, from the time of recovering the same as aforesaid, and also the fur- ther sum of , accruing costs on the said judgment, and that said sher- iff should have those moneys ready to render to the said A. B. , according 454 DEBT. to law, and should make return of the said writ in ninety days after the date thereof; which said writ, on the day last aforesaid, was there delivered to the said C. D., so being such sheriff as aforesaid, to be executed. And al- though there were then and afterwards, before and on the return day of the said writ, divers goods and chattels, lands and tenements, of the said J. K., within the county aforesaid, subject to execution, out of which the said C. D. might and ought to have caused to be made the said moneys, as by the said writ he was commanded, whereof he then and there had notice; yet the said C. D., not regarding the duties of liis said office, did not nor would, before or on the return day of the said writ, cause to be made those mon- eys, or any part thereof, but wholly neglected so to do, nor did nor would he make return of the said writ, as he was therein commanded (although the return day thereof has long since elapsed), but has hitherto neglected, and still neglects, so to do. By means of which premises the said A. B. has been and is deprived of the means of obtaining the said moneys so com- manded to be levied as aforesaid, and which are still wholly unpaid; and thereby an action has accrued to the plaintiff to demand of the defendants, for the use aforesaid, the said sum of ten thousand dollars above demanded. Yet the defendants, though requested, have not paid that sum, or any part thereof, to the plaintiff, but refuse so to do; to the damage of the plaintiff, for the use aforesaid, of dollars, and therefore the plaintiff, for the use aforesaid, brings suit, etc. If the execution has been returned " no property," then, in lieu of the allegation that the sheriff did not return the writ, the pleader may insert : "And on, etc., falsely and deceitfully returned to the said court, upon the said writ, to the effect that in his county the said J. K. had no goods or chattels, lands or tenements, whereof he, the said C. D., could cause to be made those moneys, or any part of the same." If the sheriff has made the amount of the execution, but neglected to pay it over, and has falsely returned " no prop- erty," then after alleging the delivery of the writ, the pleader may aver as follows : " By virtue of which said writ the said C. D., as such sheriff as aforesaid, afterwards, to wit, on, etc., thei-e caused to be made the said moneys so by the said writ commanded to be levied as aforesaid; yet the said C. D., not regarding his duty as such sheriff, had not those moneys, or any part thereof, ready to render to the said A. B., at the return of the said writ, according to the exigency thereof, but therein wholly failed, nor has the said C. D. paid those moneys, or any part thereof, to the said A. B.; and on, etc., the said C. D. falsely and deceitfully returned," etc. DEBT. 455 In an action (on the case) against a slieriff, for failing to make the amount of an execution, the declaration contained two counts, the first averring in substance that the sheriff took certain personal property in execution, but did not make the money out of the same, and " wrongfully, falsely and deceit- fully " returned upon the writ that the suit having been ap- pealed, as per bond and the order of the court thereto annexed, the writ was returned in no part satisfied; and the second count averring in substance that the defendant in execution had personal property which the sheriff might have taken, whereof he had notice, but that he neglected and refused so to do, and " wrongf ull}'-, falsely and deceitfully " returned the writ as alleged in the first count. The court said, that the gist of this action was that the sheriff neglected his duty in failing to seize property, or, having seized property, in failing to sell it and make the money; and that the matter of the re- turn was not essential/ It is perhaps unnecessary to allege the taking of the oath by the sheriff.^ In an action on an appeal bond, it is held, the approval of the bond need not be averred.^ The fact that the official bond of a constable was not given until some nineteen months after his election will not affect the validity of the bond. It will be presumed, from the mere fact of its execution, that such bond was given, under the statute, because the sureties in a former bond were insufficient; and in declaring on a bond so given, it is not necessary to set out the order of the proper authority requiring the same.* If an officer, in whose hands an execution is placed, so delays making a proper seizure of property, without the consent of the creditor, that the rights of other parties intervene, the creditor has his remedy against the officer.^ In an action against a sheriff for failing to make the money on an execu- tion, the damages are not necessarily the amount of the execu- tion, but only such damages as the plaintiff actually suffers by the sheriff's neglect.' ^BeveridgcY. Wagner, 48 I\l. 525. *McElhanon v. Co. Court, 54 111. 5 1 Swan's Prac. 368, h. 163. ^ Sutlierland v. Phelps, 23 111. 92. 'Davidson v. Waldro7i, 31 111. 120. 'Freiich v. Snyder, 30 111. 339. 456 DEBT. Where a sheriff accepts an assignment of a chattel mortgage as collateral security for the payment of a judgment, upon which he has an execution in his hands, the plaintiff in execu- tion, being ignorant of the assignment, is not bound by the action of the sheriff. The latter can only accept money in satisfaction of an execution.' An officer having an execution must use due diligence to make the amount thereof out of the property of the defendant in his county." In determining the amount of property neces- sary to be taken to satisfy an execution, the officer should make an allowance for the sacrifice usually incident to forced sales. And in an action against a sheriff for failing to collect the amount of an execution, it is no defense that the sheriff had reasonable grounds to believe, and did believe, that he had seized sufficient property. He must be able to show that he used such diligence as prudent men use in the management of their own business. And while he ought to take property enough, at the same time he should not make a seizure so ex- cessive as to bear on its face the appearance of oppression and unnecessary rigor.' An officer who should refuse to proceed upon a second execu- tion, where the first had been stayed by an agreement between the parties to it, would be liable for a false return.* A failure by a sheriff to return an execution within the time prescribed by law is a breach of his bond." A fee-bill is " process," and has the effect of an execution; ® and if an officer neglects to return such process within ninety days from its date, he becomes liable to pay the amount of the same.' The right of action of a judgment creditor against a J Dibble v. Briggs, 28 111. 48. * Hargrave v. Penrod, Breese 401; "^Dunlap V. Berry, 4 Scam. 831; Rossx. W^e&er, 26 111. 221 : Moore v. Hargrave y. Penrod, Breese 401; Da- Fitz, 15 Ind. 43; see Davidson v. vidson V. Waldron, 31 111. 120; Bev- Waldron, 31 111. 120. eridge v. Wagner, 48 111. 525. ^People v. Johnson, 15 111. App. ^French v. Snyder. 80 111. 339; 153. 3Iitchell V. Commonw., 37 Penn. ^ Reddick v. Cloud, 2 Gilm. 670; State R. 187; Sheldon v. Paine, 10 Ferris v. Crow, 5 Gilm. 96; Newkirk N. Y. (6 Seklen) 398: Taylor v. Com- v. Chapron, 17 111. 344. mouMJ. 3 Bibb 359; Wickliffe \ . Sand- ''People v. Nichols, 4 Scam. 560; era, 7 B. Mon. 298; Lawson v. State, Shij^pen v. Curry, 3 Met. (Ky.) 184; 5 Eng. (Ark.) 28. Crow v. State, 24 Texas, 12. DEBT. 457 sheriff for not levying a fi. fa. is not taken away by a dis- charge of the debtor by the creditor from a ca. sa. issued at his instance (although such a discharge might be a satis- faction of the judgment), where the creditor's right of action against the sheriff was perfect before such discharge.' It has been held that the levy of an execution against one upon the property of another, is a breach of a sheriff's bond.' On the subject of the liability of sheriffs, see the additional Illinois cases noted below.* No. SJi.7. On a guardian's bond — For the use of the ward, after coming of age. (Commence as in last precedent.) For that whereas in the term, in the year 18 — , of the county court of the county aforesaid, to wit, on, etc., in that year, the said A. B., then a minor above the age of fourteen years, personally appeared before that court, and made choice of the said C. D. as his guardian; and thereupon the said C. D. was by the same court tlien and there approved and appointed as guardian of the person and estate of the said A. B. ; and the same court then and there took and approved a bond of the said C. D., with the said E. F. and G. H. as two sufficient sureties, in double the amount of the personal estate of the said A. B. , and six timesi the amount of the gross annual income of his real estate, according to the form of the statute, etc.: And on that occasion they, the said C. D., E. F. and G. H., defendants, then ami there, by their writing oblig- atory, bearing date of that day, jointly and severally acknowledged them-. selves to be held and firmly bound unto the plaintiff in the sum of dollars above demanded, to be paid to the plaintiff; which said writing obligatoiy was and is subject to a certain condition thereunder written, to the effect that if the said C. D. should faithfully discharge the office and tiTist of such guardian of the said A. B., according to law, and should make a true inventory of all the real and personal estate of the said A. B. that should come to the possession or knowledge of the said C. D., and return the same unto the said county court, at the time required by law, and should manage and dispose of all such estate according to law and for the best in- terest of the said A. B., and should faithfully discharge his, tliesaid C. D.'s ' Hargrave v. Penrod, Breese 401. 50 111. 195; People v. Foster, 133 III. "^ Jones V. People, 19 111. App. 301; 521: Klemm v. Bishop, 56 111. App. Hilly. Reitz, 24 111. App. 391. 613; Bressler v. Beach, 21 III. App. » People V. Nichols, 4 Scam. 560; 422; Bank v. Hanchett, 126 111. People V. McKatton, 2 Gilm. 731; Am-, People v. Hanchett, 111 111.93; Buckmaster v. Drake, 5 Gilm. 321; Boyden v. Frank, 20 111. App. 169; Day V. Hackney, 20 111. 133; People McGillis v. Bishop. 27 111. App. 53; V. Wardlaw, 24 111. 570; People v. Comer v. Huston. 55 111. App. 153; Palmer, 46 111. 398; Smart v. Carson, Green v. People, 14 Bradw. 304. 458 DEBT. trust in relation thereto and to the custody, nurture and education of the said A. B. , and should render an account on oath of the property in the hands of him, the saidC. D., including the proceeds of all real estate that might be sold by him, if any, and of the management and disposition of all such estate, within one year after his said appointment, and at such other time as should be required by law or directed by the court, and upon his removal from office, or at the expiration of his said trust, should settle his accounts in that court, or with the said A. B. or his legal representatives, and pay over and deliver all the estate, title papers and effects remaining in his, the said C. D.'s, hands, or due from him on such settlement, to the person or persons lawfully entitled thereto, then the said writing obligatory should be void, and otherwise should remain in full force and virtue; as by the said writing obligatory and the said condition thereof, I'emaining affiled in the said county court, will appear: (*) And thereupon the said C. D. then and there took upon himself the said office and trust of guardian of the said A. B. , and thenceforth was such guardian until the day of, etc., when the said A. B. attained his age of twenty-one years. Yet the plaintiff in fact says that the said C. D. did not faithfully discharge the said office and trust of guardian of the said A. B. according to law, but neglected and refused so to do, to the injury of the said A. B. And for assigning a breach of the said condition of the said writing obligatory, the plaintiff says, that after the said appointment of the said C. D. as such guard- ian and the making of the said writing obligatory, as aforesaid, and before the day last mentioned, divers rents accruing from the real estate of the said A. B., amounting to a large sum of money, to wit, dollars, came to the hands of the said C. D. as such guardian; yet the said C. D., not regarding his duty as sucli guardian, during that time there converted and disposed of the said rents to his own use, and has neglected and refused, and still neglects and refuses to pay over to the said A. B. the amount of the said rents, or any part thereof, although he, the said A. B., on tlie day last afore- said, was there lawfully entitled thereto, and the said C. D. was then and there requested to pay over the same to him, the said A. B. And for assign- ing a further breach of the said condition of the said writing obligatory, the plaintiff says, that (here set out any other act or omission constituting a breach of the condition of the bond.) By means of which premises an action has accrued to the plaintiff to demand of the defendants, for tlie use afore- said, the said sum of dollars above demanded : Yet the defendants, tliough requested, have not paid to the plaintiff that sum of money, or any part thereof, but refuse so to do; to the damage of the plaintiff, for the use aforesaid, of dollars, and therefore, for the use aforesaid, the plaintiff brings suit, etc. It is sugfjested that the declaration might be somewhat more concisely framed, as follows : For that whereas the defendants, on, etc., in, etc.. by their writing ob- ligatory, bearing date of that day, jointly and severally acknowledged themselves to be held and firmly bound unto the plaintiff in the sum of DEBT. 459 dollars above demanded, to be paid to the plaintiff; which said writing obligatory was and is subject to a certain condition thereunder written, to the effect that if the said C. D., who had been appointed guardian of the said A. B., should faithfully discharge the office and trust, etc. {setting Old the condition, as in tlie above precedent); as by the said writing obliga- tory and the said condition thereof, remaining affiled in the same court, will appear. And although the said C. D. then and there took ujion himself the said office and trust of guardian of the said A. B., as in the said condi- tion mentioned, and thenceforth was such guardian until the day of, etc. , when the said A. B. became of full age, nevertheless the plaintiff in fact says, that the said C. D. did not faithfully discharge his said office and trust, etc. {Proceeding as in the above precedent.) An allegation in a declaration on a guardian's bond of a set- tlement of the guardian's accounts in the probate court, and a failure, neglect and refusal to pay over to the ward the amount found to be due b}'- that court, is a sufficient assignment of a breach of the condition that the guardian shall faithfully dis- charge the office and trust imposed upon him according to laiv; and the breach of that condition furnishes as ample a basis for a recovery as would a breach of any of the other conditions of the bond.' No. 2JtS. On a guardian's bond— For tJie'use of the successor of a guardian who has been removed. {Title of court, etc., as in No. S34, ante.) The People of the State of Illi- nois, plaintiff, which sues in this behalf for the use of J. K. , complains of C. D., E. F. and G. H., defendants, of a plea that they render to the plaint- iff, for the use aforesaid, the sum of dollars, which they owe to and unjustly detain from the plaintiff. For that whereas in the term, in the year 18 — , of the county court of the county aforesaid, to wit, on, etc., in that year, one A. B. {proceed as in No. 2JfI, to the asteHsk) : And there- upon the said C. D. then and there took upon himself the said office and trust of guardian of the said A. B., and thenceforth was such guardian until the day of, etc., when he, the said C. D., was by the same court removed from his said office and trust, and the said J. K. was duly appointed and qualified, and thenceforth has been, and still is, guardian of the person and estate of the said A. B. And the plaintiff in fact says, that the said C. D, did not faithfully discharge the said office and trust of guardian of tlie said A. B. , according to law, but neglected and refused so to do, to the injury of the said J. K. And for assigning a breach of the said condition of the said writing obligatory, the plaintiff says, that {here set out any jmrticular actor omission constituting a breach). And for assigning a further breach of the said condition of the said writing obligatory, the plaintiff says, that * People V. Seelye, 146 111. 189. 4G0 DEBT. {here set out any other breach). By reason of which said breaches the said writinej obligatory became forfeited, and thereby an action has accrued, etc. {concluding as in No. 247). In the case of Bond v. Lookivood, 33 111. 212 (1864), the court says that the statute in relation to guardians does not constitute a complete code, but confers upon the county court power to appoint guardians, and to regulate their conduct in accordance with their duties at common law. Many of the powers and duties, rights and liabilities of guardians are not specifically defined by the statute. It contains such provisions as were necessary to define the nature of the jurisdiction con- ferred, prescribe the manner of its exercise, and correct some of the defects of the law as it then existed. In other respects the common law is left in force. See the same case for a discussion of the powers, rights, du- ties and liabilities of guardians. If a guardian buys land with the ward's money, the ward may elect to take the land, or consider it as a security for the money.* Where a guardian converts the money of his ward to his own use, suit may be at once instituted on the bond. It is not necessary to a recovery that a devastavit shall have previously been established against him.^ It is held that if a guardian converts money of his ward to his own use, he is chargeable with compound interest.* In Illinois, by statute, a guardian is chargeable with interest upon any money which he Avrongfully or negligently allows to re- main in his hands uninvested after the same might have been invested,* Guardianship of a female ward determines on her marriage; 1 Edmonds v. Morrison, 5 Dana Am. Lead. Cas., 362; Bond v. Lock- 223; Davies v. Loiorey, 15 Ohio 655. imod, 33 111. 212; In re Steele, 65 111. 2 Rev. Stat. (1893) 1005; Rev. Stat. 322. (1895) 1073; 2 Starr & Curtis 1687; * Rev. Stat. (1895), 841; Rev. Stat, ' Bonhamv. People, 102 111. 434; Gil- (1893), 792; 1 Starr & Curtis 1243; lett V, Wiley, 126 111. 319; Mclntire see Bennett v, Hanifan, 87 111, 31; V. People, 103 111. 142. Winsloio v. PeojJle, 117 111. 152; ^ Roimnv; Kirkpatrich, 14 111. 1; Kaftelman v, Guthrie, 142 III. 857; Jennison v. Hapgood, 10 Pick. 78; Rawson v. Corbett, 150 111, 466, Moore v, Beauchup, 5 Dana 77; 1 DEBT. 461 otherwise of males.' By the statute of Illinois, the marriage of a female ward discharges her guardian from all right to her custody and education, but not to her property,- See the statute of Illinois concerning guardians and wards and the additional cases noted below/ No. 249. On an administrator's bond, {Commence as in No. 246, ante.) For that whereas in the term, in the year 18—, of the county court of the county aforesaid, to wit, on, etc., in that year, the said C. D. was by the same coiu-t appointed administrator of the estate of one J. K.. deceased, and was then and there duly quahfied as such administrator; and the said C. D. then and there entered into bond, with the said E. F. and G. H. as two sufficient sureties, in dout)le the value of the said estate, according to the form of the statute, etc. : And on that occasion the defendants then and there, by their writing obligatory, bear- ing date of that day, jointly and severally acknowledged themselves to be held and firmly bound unto the plaintiff in the penal sum of , current ' 1 Vea. Sen. 159, n. 2 Rev. Stat. (1895), 843; Rev. Stat, (1893), 794; 1 Starr & Curtis 1248. 3 Starr & Curtis 1336; Rev. Stat, (1895). 839; Mason v. Wait, 4 Scam, 127; Davis v, Harkness, 1 Gilm. 173; Cowls V. Cowls, 3 Gilm. 435; Mason v. Caldwell, 5 Gilm. 196; Young v. Lorain, 11 111. 625; Young v. Keough, 11 111. 642; Holmes v. Field, 12 111, 424; Cochran v, McDowell, 15 111, 10; Clark V. Burnside, 15 111, 62; King V. King, 15 111, 187; Ayers v. Baum- garten, 15 111. 444; Yoking v, Dowl- ing, 15 111. 481; Penn v. Heisey, 19 111, 295; In re Guernsey, 21 111. 443; Lloyd Y. Malone, 2Sm. 43; Smith v. Race, 27 111. 387; Fitzqibhonv. Lake, 29111. 165; Cummins \. Cummins, 2^ 111, 452; Gilbert V. Guptill, 34 lU, 112 Merritt v. Simpson, 41 111, 391 Campbell v, Harmon, 43 111, 18 Midford v. Stalzenback, 46 111, 303 Clark V. Thomj)son, 47 111. 25; Mor- timer V. People, 49 111. 473; Attridge V. Billings, 57 111, 489; McElheny v. Musick, 63 111. 328; Morgan v. John- son, 68 111. 190; Meyers v, Temme, 72 111. 574; Mulford v. Beveridge, 78 111. 455; Sperry v. Fanning, 80 111. 371; Bruce v. Doolittle, 81 111, 103; Peojile V, Harrison. 82 111. 84; Har- vey V. Harvey, 87 111. 54; Railsback V. Williamson, 88 111. 494; Bell^^. Peo2)le. 94 111, 230; Fogarty v. Ream, 100 111, 366; Hughes v. People, 111 111. 460; Lloyd v, Kirkivood, 112 111, 338; Bailey v. Bailey, 115 111. 553; Millard v, Harris. 119 111. 190; Car- ter V. Tice. 120 111, 281: Yates v. Dodge, 123 111, 52; Inre Corrington, 124 111, 363; Nichels v, Sargent, 125 111. 311; Hayes v, 7ns, Co., 125 111, 262; Roodhouse v, Roodhouse, 132 111. 363; Kingsberry v. Powers, 131 111,191; Kingsberry y. Hutton, 140 111. 603; Ames v, Ames, 148 111, 321 Hughes v. People, 10 Bradw, 148 Henning v, Eldridge, 14 III, 191 Wright v, Comley, 14 Bradw, 551 Means v. Earles, 15 Bradw. 273 Seago v. People, 21 111, App. 283 People v. Borders, 31 111. App, 431 Cond. V. Churchman, 32 111, App 318; Steyer v, Morris, 39 111. App 387; Zander v. Feeley, 47 111. App 659. 462 DEBT. money of the United States, to be paid to the plaintiff; which said writing obhgatory was and is subject to a certain condition thereunder written, to the effect that if the said C. D., administrator of all and singular the goods and chattels, rights and credits of the said J. K., deceased, should make or cause to be made a true and perfect inventory of all and singular the goods and chattels, rights and credits of the said deceased which should come to the hands, possession or knowledge of him, the said C. D., as such adminis- trator, or to the hands of any person or persons for him, and the same so made should exhibit or cause to be exhibited in the said county court, agree- ably to law, and such goods and chattels, rights and credits should well and truly administer according to law. and all the rest of the said goods and chattels, rights and credits which should be found remaining upon the account of the said administrator, the same being first examined and allowed by the court, should deliver and pay unto such person or persons respectively as might be legally entitled thereto, and further should make a just and true account of all his actings and doings therein when there- unto required by the same court, and if it should appear that anj' last will and testament was made by the said deceased, and the same should be proved in court, and letters testamentary or of administration be obtained thereon, the said C. D. in such case, on being required thereto, should ren- der and deliver up the letters of administration granted to him as aforesaid, and should, in general, do and perform all other acts which might at any time be required of him by law, then the said obligation was to be void, and otherwise to remain in full force and virtue; as by the said writing obligatory and the said condition thereof, remainmg affiled in the same court, will appear. And thereupon the said C. D, then and there took upon himself the ad- ministration of the said estate, and thenceforth has been, and still is, such administrator as aforesaid. Yet the plaintiff in fact says, that the said C. D. has not faithfully discharged the duties of his said office of adminis- trator, according to the said condition of the said writing obligatory, but has neglected and refused so to do, to the injury of the said A. B. And for assigning a breach of the said condition, the plaintiff says that heretofore, in the term, in the year 18 — , of the said county court, to wit, on, etc., in that year, by the consideration of the same court the said A. B. recov- ered agamst the said estate of the said J. K., deceased, the sum of dol- lars, to be paid in due course of administration, as a debt of the class; (*) and although at and since that time divers moneys and effects belonging to the said estate were and have been in the hands of the said C. D. as such administrator, out of which moneys and effects the amount of the said judgment might and ought to have been paid to the said A. B., yet the said C. D. has not paid the same, or any part thereof, to the said A. B., but has wasted the said moneys and effects, and converted and disposed of the same to his, the said C. D.'s, own use. And for assigning a further breach of the said condition of the said writing obligatory, the plaintiff says, that {here set out any other matter constituting a breach, as that the administrator did not make and exhibit an inventory, etc.) By means of which premises the said writing obligatory has become forfeited, and thereby an action has accrued, etc. (concluding as in No. S47, ante). DEBT. 463 The matters of inducement might perhaps be omitted, and the declaration proceed directly to a statement of the bond and condition, as suggested under form Ko. 247, ante; after which the declaration might proceed : "And, although the said C. D. thereupon then and there took upon him- self the administration of the said estate, as in the said condition men- tioned, and thenceforth has been, and still is, such administrator as afore- said, nevertheless the plaintiff in fact says, that the said C. D. has not faithfully discharged his duties as such administrator, according to the said condition, but has neglected and refused so to do, to the injury," etc. Section 115 of the statute provides that "if any executor or administrator shall fail or refuse to pay over any moneys or dividend to any person entitled thereto, in pursuance of the order of the county court, lawfully made, within thirty days after demand made for such moneys or dividend, the court, upon application, may attach such delinquent executor or ad- ministrator; * * * and moreover, such failure or refusal on the part of such executor or administrator shall be deemed and taken in law to amount to a^1 Starr & Curtis, 969; see Cobb ^Ilev. Stat. (1893), 613; Rev. Stat. V. People, 8'i 111.511; Peo2^le\.Crot- ^895), 661; 1 Starr & Curtis 971; ty, 93 111. 180; Wright v. People, Confrey v. Stark, 73 111. 187; Fer- 101 111. 126; 3Ioore v. People, 109 111. guson v. People, 73 111. 559; Carroll 499; Holmes v. A^ooe, 15 Bradw. 164; v. People, 13 Bradw. 206; Brannan Johnson v. Dnimmond, 16 Bradw. v. Adams, 76 III. 331. 641; OHalloran v. Kingston, 16 Brad. 659. DEBT. 477 money above demanded, and also the sum of two dollars for each day the said G. H, was so kept by the plaintiff as aforesaid, amounting to the fur- ther sum of dollars, residue of the said sum of money above demanded. Yet the defendant, though requested, has not paid to the plaintiff the said sum of dollars above demanded, or any part thereof, but refuses so to do; to the damage of the plaintiff of dollars, and therefore he brings his suit, etc. The 8th section of the statute above referred to provides that " every person who shall, by the sale of intoxicating liquors, with or without a license, cause the intoxication of any other person, shall be liable for and compelled to pay a reasonable compensation to any person who may take charge of and provide for such intoxicated person, and two dollars per day in addition thereto for every day such intoxicated person shall be kept in consequence of such intoxication, which sums may be recovered in an action of debt before any court having jurisdiction.' No. 255. On the statute,"^ for cutting trees, etc. {Title of court, etc., as in No. 234, ante.) A. B., plaintiff, by E. F., his attorney, complains of C. D., defendant, of a plea of debt: For that whereas the defendant, on the day of , in the year 18—, in the county aforesaid, ten black walnut trees, ten black walnut saplings, ten black oak. trees, ten black oak saplings, ten elm ti-ees, ten elm sapliags, ten cottonwood trees and ten cottonwood saplings, then standing and growing upon certain land, there situate, then belonging to the plaintiff, did cut, fell, box, bore, destroy and carry away, without having first obtained permission so to do from the plaintiff, then the owner of the said land as aforesaid; contrary to the form of the statute in such case made and provided: Whereby, and by force of the said statute, an action has accrued to the plaintiff to demand of the defendant the sum of eight dollars for each of the said black walnut trees, black walnut saplings, black oak trees and black oak saplings, and the sum of three dollars for each of the said elm trees, elm saplings, cotton- wood trees and cottonwood saplings, together amounting to the sum four hundred and forty dollars. Yet the defendant, though requested, has not paid to the plaintiff the last mentioned sum of money, or any part thereof, but refuses so to do; to the damage of the plaintiff of dollars, and therefore he brings his suit, etc. In an action on a statute, to recover a penalt}'-, the damages •1 Starr & Curtis, 971; Rev. Stat. (1895) 1524; Rev. Stat. (1893)1426; (1893), 613; Rev. Stat. (1895), 661. see Cushinan v. Oliver, 81 III. 444. « 2 Starr & Curtis 2388; Rev. Stat. 478 DEBT. to be inserted in the declaration are merely nominal. The statute of Illinois, giving this action to the owner of the land, also gives an action of debt qui tarn to any person who will first sue for the penalty — one half thereof to go to the person so suing, and the other half to the owner. If deemed expe- dient, the land may be described in the declaration, but this does'not seem to be necessary. The term owner, in the statute, is held to mean the person having an estate in fee simple in the land.' A less estate will not authorize a recovery under the statute.^ The plaintiff must aver that he was the owner of the land;'' consequently it is not sufficient to merely allege in the decla- ration that the defendant broke and entered the close of the plaintiff, and cut and carried away certain trees growing thereon.* And the plaintiff is bound to show a title in the land, in fee simple.^ Actual possession of the land by the plaintiff, claiming the fee, would be presumptive evidence of title in him to that extent; ® but in the absence of evidence of this character, he must produce documentary proof of his title. An admission made by the defendant, before the trial, and not for the purposes thereof, that the trees were cut on the plaintiff's land, is not sufficient evidence on this subject.^ In an action on this statute, all the owners of the land must join. The omission of one who should have joined as plaint- iff is fatal, and does not merely go in mitigation of the recov- ery, as the penalty is not divisible.^ The declaration should allege that the defendant felled the trees without having first obtained permission so to do from the owner of the land.' 1 Wright v. Bennett, 3 Scam. 258; » Wright v. Bennett, 3 Scam. 258. Jarrett v. Vaughn, 2 Gilm. 138; Mason v. Park, 3 Scam. 532; White- Mason V. Park, 3 Scam. 532; White- side v. Divers, 4 Scam. 336; Edwards side V. Divers, 4 Scam. 336; Ed- v. Hill, 11 111. 22. wards v. Hill, 11 111. 22; Behymer v. « Mason v. Park, 3 Scam. 532; Odell, 31 111. App. 350. Clay v. Boyer, 5 Gilm. 506; but see 2 Jarrett v. Vaughn, 2 Gilm. 132. Whiteside v. Divers, 4 Scam. 336. * Wright v. Bennett, 3 Scam. 258; ' Mason v. Park, 3 Scam. 532. 3Iason v. Park, 3 Scam. 532; White- » Edwards v. Hill, 11 111. 22. side V. Divers, 4 Scam. 336; Edwards ® Whitecraft v. Vandever, 12 lU. V. Hill, 11 111. 22. 235. * Wright v. Bennett, 3 Scam. 258. DEBT. 479 In order to recover, it is necessary to show that the stat- ute has been willfully violated, by proof that the defendant in person cut the trees, or by his command or authority induced another person to do so. It is not sufficient to show that the trees were cut by persons employed by the defendant to cut trees on his own land, and were by them appropriated to his use.* "Where the defendant has cut trees, knowing them not to be on land whereon he had any right so to do, the act is pre- sumed to have been willful; and it is not necessary that the defendant should have known that the land belonged to the plaintiff.'' Although the defendant, to be liable under this statute, must have committed the act knowingly and willfullv,^ it is not necessary to allege in the declaration that the act was "knowingly and willfully" committed, the statute not contain- ing those words. In declaring upon a statute, it is a correct rule to describe the cause of action, whatever it may be, in the words of the statute, which words are to be construed to mean the same thing in a declaration as in the statute.* The allegation of the precise time of the commission of the act is not essential; and where a declaration charged the cut- ting of trees on a certain day " and on divers other days be- tween that day," etc., it was held sufficient, on demurrer, though it was urged that the day first mentioned was not within the period fixed by the statute of limitations." Instead of claiming a gross sum for the cutting of the whole number of trees, the declaration ought, in strictness, to show that the defendant has become liable to pay the amount fixed by the statute for each tree and sapling of the different kinds, nam- ing them.* A remedy on a penal statute must be strictly pur- sued, and a plaintiff can not recover unless he brings himself clearly within its provisions.' • Cushing v. Dill, 2 Scam. 460. 235; see Behymer v. Odell, 31 111. « Watkins v. Gale, 13 111. 152. App. 350. » Whitecraft v. Vandever, 12 111. ' Chicago v. Rumpff, 45 III. 90; 235; Cushing v. Dill, 2 Scam, 460. Bullock v. Goemhle, 45 111. 218; * Gebhart v. Adams, 23 111. 397. Figueria v. Pyatt, 88 111. 402; People * Gehhart v. Adams, 23 111. 397. v. Fesler, 115 111. 150. • Whitecraft v. Vandever, 12 III. 480 DEBT. No. 256. On the statute^ against a drover, foi- driving off horses and cattle, etc. {Title of conrt, etc., as in No. S34, ante.) A. B., plaintiff, by E. F., his attorney, complains of C. D., defendant, of a plea that he render to the plaintiff the sum of tico thousand eight hundred dollars, which he owes to and unjustly detains from him: For that whereas on, etc., in, etc., the plaintiff was a citizen of this state, and was the owner of five horses, each of the value of one hundred dollars, and five head of neat cattle, each of the value of forty dollars, and the defendant, then beinj; a drover and person engaged in driving horses and cattle through a certain part of this state, to wit, through the county aforesaid, did then and there drive off, and know- ingly and willingly suffer and permit to be driven off, the said horses and neat cattle of the plaintiff, from the premises of the plaintiff {or " from the range in which his stock then usually ran,") to a distance exceeding five miles from the said premises {or " range "), contrary to the form of the stat- ute in such case made and provided: Whereby, and by force of the said statute, an action has accrued to the plaintiff to demand of the defendant the sum of two hundred dollars for each of the said horses so driven away as aforesaid, and the sum of eighty dollars for each head of the said neat cattle so driven away as aforesaid, together amounting to the sum of fourteen hundred dollars, parcel of the said sum of two thousand eight hundred dollars above demanded. {Second count.) And whereas also on the day aforesaid, in the county aforesaid, the plaintiff was a citizen of tins state, and was the owner oi five other horses, each of the value of one hundred dollars, and five other head of neat cattle, each of the value of forty dollars; and the defendant, then being a drover and person engaged in herding and driving certain horses and cattle in a certain part of this state, to wit, in the county aforesaid, did then and there permit the last mentioned horses and neat cattle of the plaintiff to remain with the defendant's drove for a longer period than two days and nights at one time; contrary to the form of the statute in such case made and provided : Whereby, and by force of the said statute, an action has accrued to the plaintiff to demand of the defendant the sum of tivo hundred dollars for each of the last mentioned horses so permitted to remain with the defendant's drove as aforesaid, and the sum of eighty dol- lars for each head of the last mentioned neat cattle so permitted to remain with the defendant's drove as aforesaid, together amounting to the sum of fourteen hundred dollars, residue of the said sum of two thousand eight hundred dollars above demanded. Yet the defendant, though requested, has not paid to the plaintiff the last mentioned sum of money, or any part thereof, but refuses so to do; to the damage of the plaintiff of dollars, and therefore he brings his suit, etc. The second section of the Illinois statute concerning " Drovers,'' provides that " in any action commenced under the » 1 Starr & Curtis, 977; Rev. Stat. (1893) 615; Rev. Stat (1895) 663. DEBT. 481 preceding section, a capias may issue against the defendant or defendants, upon the plaintiff stating on oath that he believes some one or more of his cattle or other stock has been driven off by a drover, and that he believes the same to be of a cer- tain value, to be indorsed on the writ; and the proceedings thereon shall be the same as in other actions commenced by capias: Provided, however, that no exception shall be taken to the form of the oath aforesaid." The third section pro- vides that upon judgment rendered against the defendant, a fieri facias against his goods and chattels may immediately issue, without affidavit, unless an appeal shall at once be per- fected.* Proof that the defendant was driving cattle through a part of this state, when some cattle of a citizen got into the drove; that the defendant knew they were in his drove, and he him- self aided in branding them with the initial letter of his name, and castrated a bull which was among the number; and that he drove them twenty-five miles from their usual range, through a thickly settled country — there being a habitation on every mile of the route — is sufficient to support an action for the penalty, under the statute." Exceptions and provisos in statutes. — In an action founded on a penal statute, the subject of any exception, in the enacting ov prohihitory clause of the act, must, in the declara- tion, be excluded by averment: But of any proviso or qual- ification, in a separate substantive clause, the declaration need not take notice.^ In the first case, the exception is an essential part of the description of the offense or thing prohibited; in the latter, the proviso, etc., is only distinct matter of defense. Thus, if a statute enacts that if any person, not having a certain qualification (as a freehold estate), shall kill certain game, he shall incur a certain penalty; the declaration, in an action on the statute, must aver that the defendant had not such a freehold. But if the act contains a separate proviso, that if he shall have obtained a license for the killing from a magistrate, he shall » Starr & Curtis 978; Rev. Stat. v. Stone, 1 East 646; Spiers v. Bar- (1893), 615; Rev. Stat. (1895), 663. ker, 1 T. R. 141; King v. Pratten, 6 5 Arnold v. Ludlam, 38 111. 190. T. R. 559. 2 Rex v. Jarvis, 1 Burr. 153; King 31 482 DEBT. not be liable to a conviction, it need not be stated that he had no such lieeiise.^ No. 257. On the statute, against a sheriff, for not admitting attorney to see prisoner. (Title of court, etc., as in No. 234, ante.) A. B., plaintiflF, by E. F., his attorney, complains of C. D., defendant, of a plea of debt: For that whereas the defendant, on, etc., was sheriff of the county aforesaid, and as such sheriff there had the custody of the plaintiff, who was then imprisoned and restrained of his liberty, in the comtnon jail of the county aforesaid, on a certain charge of theretofore and then alleged against him; and the plaintiff then and there desiring to see and consult one L. M. , then a practicing attorney at law of this state, then and there requested the de- fendant to admit the said L. M. to see and consult the plaintiff, alone and in private, at the jail aforesaid; and although the said L. M, was then and there ready and willing, and offered, to see and consult the plaintiff tis aforesaid, and although there was then and there no imminent danger of the escape of the plaintiff, yet the defendant did not nor would then, or at any other time, admit the said L. M. so to see and consult the plaintiff, alone and in private, at the said jail, as aforesaid, but refused so to do; con- trary to the form of the statute in such case made and provided: Whereby, and by force of the said statute, an action has accrued to the plaintiff to demand of the defendant the sum of one hundred dollars. Yet the defend- ant, though requested, has not paid to the plaintiff the said sum of money, or any part thereof, but refuses so to do; to the damage of the plaintiff of dollars, and therefore he brings his suit, etc. The statute of Illinois provides that " all public officers, sheriffs, coroners, jailers, constables or other officers or per- sons having the custody of any person committed, imprisoned or restrained of his liberty for any alleged cause whatever, shall, except in cases of imminent danger of escape, admit any practicing attorney at law of this state, w^hom such person so restrained of his liberty may desire to see or consult, to see and consult such person so imprisoned, alone and in private, at the jail or other place of custody; and when any such prisoner is about to be removed beyond the limits of this state, by any person or public officer, under any pretense whatever, he or she shall at all times be entitled to reasonable delay for the purpose of obtaining counsel, and of availing himself or her- self of the laws of this state for the security of personal lib- ertv." Any violation of this act subjects the person offending 'Gould's PI. 166. DEBT. 483 to a forfeiture of one hundred dollars, to be recovered bv action of debt, in any court of competent jurisdiction.' No. 258. On the statute,"^ by landlord against tenant, for double rent, for not quitting in pursuance of notice, etc. {Commence as in last precedent.) For that whereas the defendant, at and before the time of the making of the demand and giving of the notice herein- after mentioned, and from thence until and upon the day of, etc. (the day when the tenancy determined), held and enjoyed a certain parcel of land, with the appurtenances, situate, etc., as tenant thereof to the plaintiff {here state the tenancy, lohich may be asfolloics — ) from year to year, for so long a time as the plaintiff and the defendant should respectively please, the rever- sion of the said parcel of land, with the appurtenances, during the said tenancy, belonging to the plaintiff, to wit, in the county aforesaid; and thereupon, while the defendant so held and enjoyed the said tenements, and while the said reversion so belonged to the plaintiff, as aforesaid, to wit, on, etc. (the date of the notice), he, the plaintiff, there demanded and required of the defendant, and gave him a notice in writing, to deliver the possession of the said tenements to the plaintiff on the said day of, etc., on which day the term of the defendant in the said tenements expired: Nevertheless the defendant, not regarding the statute in such case made and provided, did not nor would at that time deliver the possession of the said tenements to the plaintiff, but refused so to do, and there willfully held over the said tenements, after the said demand and notice so made and given, and after the expiration of the said term as aforesaid, for the space of then next following, during all which time the defendant there kept the plaintiff out of the possession of the said tenements (he, the plaintiff, during all that time, being there entitled to the possession thereof), contrary to the form of the said statute. And the plaintiff avers that the said tenements, during the time last mentioned, were of the yearly value of dollars. By means of which premises, and by force of the said statute, an action has accrued to the plaintiff to demand of the defendant the sum of dollars, being at the rate of double the yearly value of the said tenements for the time the plaintiff was so kept out of the possession thereof as aforesaid. {Add tivo counts for use and occujjation — see No. 241, ante — and the ac- count stated, and conclude as follows:) Yet the defendant, though requested, has not paid to the plaintiff the several sums of money above demanded, together amounting to the sum of dollars, or any part thereof, but refuses so to do; to the damage of the plaintiff of dollars, and therefore he brings his suit, etc.^ Where the tenant gives notice to quit, and does not deliver possession accordingly, he forfeits " double the rent or sum 'Rev. Stat. (1895), 553; Starr & ' Starr & Curtis 1491; Rev. Stat. Curtis, 818; Rev. Stat. (1893) 510. (1893) 919; Rev. Stat. (1895) 975. « See Chit PI. 493. 484 DEBT. which would otherwise have been due, to be collected in the same manner as the rent otherwise due should have been col- lected." ' No. 259. Declaration to recover delinquent taxes on forfeited property. In the Circuit Court. Term, A. D. 18—. State of Illinois, | County of S The people of the State of Illinois, plaintiff, by G. H., attorney general, {or E. F., state's attoi-ney, etc.,) complains of C. D., defendant, of a plea that he render to the plaintiff the sum of dollars, which he owes to and unjustly detains from the plaintiff; for that the defendant, heretofore, to wit, on, etc., was and still is indebted to the plaintiff in the sum of dollars, for and on account of divers amounts of taxes, interest, penalties and costs due and unpaid against divers tracts, pieces, parcels and lots of land of the defendant, situated in said county, and before said day forfeited to the State of Illinois, for the non-payment of the said taxes, interest, penalties and costs, which said real estate, together with the amount for which the same was forfeited, as aforesaid, is as follows, to wit : {Here in- sert description.) And the plaintiff avers that the defendant on, to wit, the first day of May, A. D. 18 — , was and still is the owner and possessed of the said real estate against which the said delinquent taxes are chai'ged. Wherefore, and by force of the statute in such case made and provided, an action hath accrued to the plaintiff to have and demand of and from the defendant the said several amounts of money, the same being in the aggre- gate, the said sum of dollars, first above mentioned; yet the defend- ant, though requested, hath not paid the several sums of money, nor any or either of them, nor any part thereof, but fails and refuses so to do; to the damage of the plaintiff of dollars, wherefore the plaintiff brings this suit. etc. E. F., Att'y for Pl'ff. Section 230 of the revenue law provides that the county- board may at any time institute suit, in an action of debt, in the name of the people, in any court of competent jurisdiction, for the amount of taxes due on forfeited property," or for the recovery of any personal property tax due from any person, firm or corporation.^ ' Rev. Stat. (1893) 920; Starr & see People v. Biggins, 96 111, 383; Curtis 'l492; 1 Chit. PL 112; Rev. Peojile v. Davis, 112 111. 272; Bow- Stat. (1895) 976. man v. People, 114 111. 474. ■' Rev. Stat. (1893), 1217; Rev. Stat. * Ibid. (1895), 1302; 2 Starr & Curtis, 2105; DEBT. 485 A recovery may be had of the entire personal tax, and the county, on collection of the same, will be required to pay over to the several municipal corporations their respective shares.' The liability for taxes is statutory and arises upon the fail- ure of the citizen to pay taxes on property owned by him on the first day of May in any year. Such facts must therefore be averred in the declaration, not only that show the statutory liability, but the right of the plaintiff to recover.* A declaration against a corporation is insufficient where it fails to state that it had its principal place of business at the place where such taxes were assessed.^ Against railroad companies. — The action lies against a railroad company for extortion, or for making any unjust dis- crimination as to passenger or freight rates, or the rates for the use and transportation of railroad cars, or in receiving, handling or delivering freights.* And against railroad com- panies, their officers, agents and employes, and every owner, lessee, manager or employe of any warehouse, who shall will- fully neglect to make and furnish any report to the railroad and warehouse commissioners, as required by the statute; or who shall willfully and unlawfully hinder, delay or obstruct said commissioners in the discharge of the duties imposed upon them. All such prosecutions shall be in the name of the people of the State of Illinois. The act, however, is not to be construed so as to prevent any person from prosecuting any qui tain action, as authorized by law, and of receiving such part of the amount recovered in such action as is or may be pro- vided under any law of this state.'* Section 36 of the act on railroads and warehouses provides that if any railroad corporation, or any of its agents, servants or emplo3''es, shall violate any of the provisions of the statute in relation to fencing and operating railroads, such cor])ora- tion, agent, servant or employe shall severally be liable to a fine of not less than $10, nor more than $200, to be recovered » Dolby V. People, 124 111. 66. * 2 Starr & Curtis 1963; Rev. Stat. * Gas Co. V. People, 138 111. 336. (1893) 1127: Rev. Stat. (1895) 1211. 3 Gas Works v.People, 156 111. 387. * Rev. Stat. (1893): Rev. Stat. (1895), 1225; 2 Starr & Curtis. 486 DEBT. in an action of debt, in the name of the people of the State of Illinois, for the use of any person aggrieved, before any court of competent jurisdiction.' Against county clerk. — Sections 13 and 14 of the statute on marriages provide that " if any county clerk shall issue a license for the marriage of a man under the age of twenty-one years, or of a woman under the age of eighteen years, without the consent of his or her father, (or if he is dead or incapable, or not residing with his family, of his or her mother or guard- ian, if he or she have one,) first had thereto, he shall forfeit and pay the sum of $300 for each offense, to be recovered by such father, mother or guardian, in an action of debt, in any court of competent jurisdiction." * " If any county clerk shall refuse or neglect to register and file any marriage certificate according to law, for more than thirty days after the same is returned to him for that purpose (his fees therefor being paid), he shall forfeit and pay $100, to be recovered by the party injured, in an action of debt, in any court of competent jurisdictioi>" Sections 15 and 16 of said statute provide that if an}'- minis- ter, judge or justice of the peace, or any other officer or person or persons, shall celebrate a marriage without a license having been first obtained therefor as provided by law, and if any minister, judge or justice of the peace, having celebrated a marriage, or any clerk or secretary of any society, church or denomination among whom a marriage is celebrated, and whose duty it shall be to make and return a certificate of such marriage, shall fail to make and return to the county clerk, such certificate in the time and manner provided by law, he shall forfeit and pay ^JSIOO, to be recovered in the name of the people of the State of Illinois, in action of debt, in any court of com- petent jurisdiction.' DEFENSES TO THE ACTION OF DEBT. The rules which have been laid down respecting defenses in the action of assumpsit are generally applicable in debt. The •Starr & Curtis 1948; Rev. Stat. 111.171; Lyndon v. Lipidon, 69 111. (1893), 1121; Rev. Stat. (1895), 1305. 43; Gilbert v. Bone, 79 111. 341; Hil- 2 Rev. Stat. (1895), 1023; Rev. Stat. holdt v. Caraker, 41 111. App. 596. (1893), 960; see Campbell v. Beck, 50 ^ Rev. Stat. (1895), 1023. DEBT. 487 pleas in abatement, and many of those in bar, in assumpsit, with a slight alteration, can be used in this action; and it is not deemed necessary or expedient to again insert them in this placej but a few forms of pleas in bar, adapted to this form of action, will be here presented. Pleas in abatement. — For pleas in abatement and proceed- ings thereon, and general observations on the subject, see pleas in abatement, page 35, ante. Pleas in bar. — The general rules and observations concern- ing pleas in bar in assumpsit are for the most part applicable to pleas of the same nature in debt. Term, 18—. No. 260. Plea of nil debet. In the Court. CD.) ats. ^Deht. A. B. ) And the defendant by G. H., his attorney, comes and defends the wrong and injury, when, etc. , and says that he does not owe the said sum of money above demanded, or any part thereof, in manner and form as the plaintiff has above complained against him; and of this the de- fendant puts himself upon the country, etc. The plea of nil debet is the general issue in those actions where it is properly pleadable. It is a proper plea in debt on simple contracts or legal liabilities, or for an escape, or on a penal statute, or when a deed is mere inducement to the action; but not when the action is founded on a specialty, (as on a bail bond, etc.,) or on a record.' It is a good plea to an action on a justice's judgment of another state." As a judgment of a court of record of another state is con- clusive as to the amount of the debt, the plea of nil debet is not proper in an action on such judgment,"" but it seems that this plea is admissible in debt on a judgment of a court of another state, when the court had no jurisdiction.* To an action of debt on ' Chit. PI. 422, 423; Jones v. Pope, Warren v. Flagg, 2 Pick. 248; Cole 1 Saund, 38; Bullis v. GMdens, 8 v. Driskell, 1 Blackf. 16. Johns. 83; Chipps v. Yancey, Breese ^ Laicrence v. Jan-is. 32 111. 305; 19; Davis v. Burton, 3 Scam. 42; Ins. Co. v. Barker, 55 III. 241. King v. Ramsay, 13 111. 619; Shu- * Hall v. Williams, 6 Pick. 232; nickv. Thompson, 25 111. App. 619. McRaex. Mattoon, 13 Pick. 53: Bis- * Bank v. Harding, 5 Ohio 546; sell v. Briggs, 9 Mass. 462; Wright 488 DEBT. a statute for a penalty, nil dehet is the best general issue, but not guilty is admissible.' In debt for rent by the lessor against the assignee of the lessee, a plea of nil dehet puts in issue the whole declaration.'' Where a deed is only inducement to the action and matter of fact the foundation of it, this plea may properly be pleaded, as in debt for rent due on an indenture of lease, though the plaintiff has declared setting out the indenture; j'^et as the fact of the subsequent occupation gives the right to the sum demanded, and is the foundation of the action, and the lease is mere inducement, the defendant may plead oiil dehet, and for the same reason this plea is proper in debt for an escape, or on a devastavit against an executor, the judgment in these cases being merely inducement, and the escape or devastavit the foundation of the action. But when the deed is the founda- tion of the action, although extrinsic facts are mixed with it, the defendant must plead 7ion est factum, and nil dehet is not a sufficient plea, as in debt for a penalty on articles of agree- ment, or on a bond, setting out the condition and breach, or on a bail bond.* iVo/i assumpsit is not a proper plea in an action of debt.* The plea of nil debet, in debt on a specialty, is not a nullity, but is bad on demurrer;* and a judgment over such a plea un- answered is erroneous." This plea, like the general issue in assumpsit, puts the plaintiff on proof of the whole of the alle- gations, in the declaration.^ The language of the plea puts in issue the existence of the debt at the time of bringing the action; and consequently any matter may be given in evidence, T. Boynton, 37 N. H. 9; Judkins v. Love v. Kidivell, 4 Blackf. 553; Edkle Ins. Co., 37 N. H. 470; see Ins. Co. v. Oliver, 5 Blackf, 3; Smith v, V. Barker, 55 111. 241. Steivart, 6 Blackf. 162; Shook v. ^ Stilson V. Tobey, 2 Mass. 521: State, 6 Ind. 113; 1 Chit. Pi. 424; Burnham v. Webster, 5 Mass. 266; 1 Shunick v. Thompson, 25 111. App. Chit. PI. 428. 619. ■^ Trustees v. Clovgh, 8 N. H. 22. « Tate v. Wymond, 7 Blackf. 240; 3 1 Chit. PL 423, 424; Stephen's Wheeler v. Curtis, 11 Wend. 653. PI, 174, ?i. '' Jansen v. Ostrander, 1 Cowen * Harloio v. Bosivell, 15 111. 56; 670; Broum v. Littlefield, 7 Wend. Lancaster v. Lancaster, 29 111. App. 456; Gavin v. Annan, 2 Cal. 494; 1 510. Chit. PI. 422-424. i" Trimble v. State, 4 Blackf. 435; DEBT. 489 under such plea, which shows that nothing was due at that time, as payment, or release, or other matter in discharge of the debt' Where nil debet is pleaded to an action on a bond, etc., the plaintiff ought to demur, for if he does not he will have to prove every allegation in his declaration, and the defendant will be at liberty to avail himself of any ground of defense which in general may be taken advantage of under this plea.* No. 261. Plea of non est factum. {Title of court, etc., as in last precedent.) And the defendant, by G. H., his attorney, comes and defends the wrong and injury, when, etc., and says that the supposed writing obligatory {or " deed," or •' indenture," e^c.,) in the said declaration mentioned is not his deed; and of this he puts him- self upon the country, etc. {To put the plaintiff ujwn proof of the execution of the instrument, add affidavit as in No. 137, ante, which see.) In debt on bond, or other specialty, when the deed is the foundation of the action, the plea of non est factum is proper, either when the plaintiff's profert can not be proved as stated, or the deed was not executed, or varies from the declaration/ This plea may be pleaded in Illinois, notwithstanding it is not verified by affidavit,* though by the statute a defendant can not deny on the trial the execution of any instrument in writing, whether sealed or not, upon which any action is brought, unless his plea is verified b}'- affidavit.^ A plea so verified puts the plaintiff upon proof of the execution of the instrument sued on, but the affidavit is not evidence for the defendant." ^LindsY. Gardner, 1 Cranch 313; Curtis, 1798; Rev. Stat. (1895) 1159; Gavin v. Annan, 2 Cal. 494; 1 Chit. Flax Co. v. Beebe, 48 111. 138; see PI. 423. Pritchett v. Peojile, 1 Gilm. 525; '^ Kilgourv. Drain. Comm., Ill m. Peoples. Yeazel, 84 111. 538; Her- 343; 3Ii,x v. Peojjle, 86111. 339; 1 Chit. rick v. Stoartwout, 73 111. 340; Kit- Pl. 424; Caldwell v. Richmond, 64 ner v. Whitlock, 88 111. 513; Delaliay 111. 30, V. Clement, 2 Scam. 575: Gaddy v. » 1 Chit. PL 424; Gardner v. Gard- McClcave, 59 111. 183; Martin v. Cut- ner, 10 Johns. 47. ver, 87 111. 49; Mix v. Peoj)le. 92 111. ■* Russell V. Hamilton, 2 Scam. 56; 549; Wallace v. Wallace, 8 Bradw. see Melvin v. Hodges, 71 111. 423; 69: Baird v. Be.st, 13 Bradw. 385. Schroeder v. Harvey, 75 III. 638. ^ Walter v. Tru.stees. 12 111. 64; 5 Rev. Stat. (1893) 1075; 2 Starr & Hunter v, Harris, 131 111. 483. 400 DEBT. A defendant may give in evidence, under the plea of non est factum, that the deed was delivered to a third person as an escrow, (though it is more usual to plead the fact,) ' or that it was void at common law ah initio? The plea of non est factum only denies the giving of the deed; and it is not necessary for the plaintiff, on the issue presented by that plea, to prove the averments of other matters or the breaches contained in his declaration, as the plea ad- mits them.^ A notice of special matter of defense may be given with the plea of non est factum.^ If this plea is pleaded, although not verified by affidavit, it requires the instrument to be produced on the trial,' or at least to be accounted for. See the observations under the plea of non est factum^ in covenant, ante (No. 155). No. 2G2. Non est factum and nil debet, to ^bt on bond and simple contract. (Title of court, etc. , as in No. 260, ante.) And the defendant, by G. H. , his attorney, comes and defends the wrong and injury, when, etc., and as to the said first count of the said declaration, says that the supposed writing obligatory therein mentioned is not his deed: And of this he puts himself upon the country, etc. And as to the said second, third, fourth and last counts of the said declarar tion. the defendant says that he does not owe the said sums of money therein mentioned, or any or either of them, or any part thereof, in man- ner and form as the plaintiff has above complained against him: And of this the defendant puts liimself upon the country, etc. No. 263. Plea of non est factum, after craving oyer, etc. {Title of court, etc., as in No. 260, ante.) And the defendant, by G. H., his attorney, comes and defends the wrong and injury, when, etc. , and craves oyer of the supposed writing obligatory in the said declaration mentioned, and it is read to him, etc. He also craves oyer of the condition of the said ' 4 Esp. 225; 6 Mod. 217; 1 Salk. v. Executors, 5 Ohio 169; Granger 274; 1 Chit. PI. 424; see Governor v. v. Granger, 6 Ohio 35; 1 Chit. PI. Lagow, 43 111. 134. 428; see Governor v. Lagoiv, 43 111. 2 Phelps V. Decker, 10 Mass. 267; 134. Anthony v. Wilson, 14 Pick. 303; 1 * Beach v. Springer, 4 Wend. 519; Chit PL 424. Granger v. Granger, 6 Ohio 35; Bey- ^ Legg v. Robinson, 7 Wend. 194; nolds v. Executors, 5 Ohio 340. Gardner v. Gardner, 10 Johns. 47; * Fosdick v. Starbuck, 4 Blackf. Utter \. Vance, 7 Blackf. 514; Cour- 417; see 1 Chit. PI. 424. cier V. Graham, 1 Ohio 830; Reynolds DEBT. 49 J supposed writing obligatory, and it is read to him in these words : " Whereas (here set forth, verbatim, the recitals, if any and the condition) Which being read and heard, the defendant says that the said supposed writing obhgatory is not his deed; and of this he puts himself upon the country, etc. If the action is upon an indenture, etc., say — " Craves oyer of the supposed indenture {or as the case may be) in the said declaration mentioned, and it is read to him in these words: {setting forth the instrument, verbatim.) Which being read and heard, the defendant says," etc. It is not usual to plead nan est factum, setting out the condi- tion, or the indenture, etc., on oyer, except where the defend- ant pleads double.' The practical use of demanding oyer, in pleading, is to enable the party demanding it to recite upon the record the instrument pleaded against hira, and thus avail himself, upon the face of the record, of anything in the writing which may aid him in meeting the allegations of his adver- sary — a writing thus set out on oyer being considered as a part of the last pleading of the opposite party. Thus to debt on bond, the defendant having recited the condition, on oyer, is enabled to avail himself of it, by pleading or demurring, as his case may require. Oyer is of course unnecessary when the instrument is truly set out, in haec verha, in the previous plead- ing. On the subject of oyer, see 1 Chit. PI. 369 to 375; Gould's PI., chap. 8, sees. 32 to 64; Andrews' Steph. PI., 144 to 159; Eev. Stat. (1895) 1157. Special non est factum. — In actions founded on deeds, the defendant may, instead of pleading non est factum, in common form, allege any special matter, which admiU the execution of the writing in question, but which shows, nevertheless, that it is not in law his deed; and may conclude with non est factum: As that the writing was delivered to J. S. as an escrow, to be delivered over, on a certain condition, which has not been complied with, " and so is not his act : " Or, that the writing lias heen altered by the plaintiff, since its delivery, " and so is not his act : " Or, that the defendant was, at the time of mak- ing the writing, -a. feme cover't; " and so it is not her act." In a plea of this kind, the latter part (the nvn est factum) is merely ' 3 Chit. PI. 953, 954, notes. 492 DEBT. an inference from the special matter which precedes it : The Avord " so " being used in an illative sense, and conveying the same meaning as the word " therefore." The special matter then merely shows how and why the instrument is not the de- fendant's act; and on the trial of the issue, the evidence on both sides is confined to the special matter alleged.' Duress, infancy, or other matter which renders the deed merely voidable, can not properly be pleaded in this form.' The effect of a demurrer to a special no7i est factum is strictly analogous to a demurrer to evidence; the question of law being, on a demurrer to such plea, whether the facts therein specially set forth are sufficient in law to maintain the general issue (with which it concludes) in favor of the party pleading them.^ The better authority appears to be, that this plea should conclude to the country; * though according to some opinions it may and should conclude with a verification. But a con- clusion with a verification " would alter the essential character of the plea, and convert it into a mere special plea amounting to the general isstie,yf\i\ch. is, regularly, inadmissible."* No. £64. Plea that bond was delivered as an escroic. (First plea, non est factum, as ante, No. 261; second plea, onerari non, etc., as in next form, to the asterisk, and then proceed :) that the said writing in the said declaration mentioned was made by the defendant, on, etc., afore- said, to secure the repayment of a certain sum of money then lent by the plaintiff to one E. F., and was delivered by the defendant to one G. H., as an escrow, to be kept by him on this special condition, that is to say, that (here set forth the condition, according to the facts, in this manner — ) if the said E. F. should, within the space of months then next following, secure the repayment of the said sum of money to the plaintiff, by a mort- gage on a certain parcel of land of the said E. F., situate, etc., then the said writing should be immediately discharged, annulled and held for nothing, and redelivered to the defendant; but that in default of the said E. F.'s so seciu-ing the repayment of the said sum of money as aforesaid, then the said writing of the defendant should stand and be against him in full force. And the defendant further says, that within the space of months from the time of the making and delivering of the said writing as an escrow to 1 Gould's PL 312. n.; 1 Id. 475; Hinton v. Husband, 3 2 7d. 300, 301, 314. Scam. 187. 3 Id. 314. * Gould's PL 315; see Governor v. 4 Gould's PL 314; 3 Chit. PL 962, Lagoio, 43 lU. 134. DEBT. 493 the said G. H. as aforesaid, to wit, on, etc., in, etc., the said E. F. did secure the repayment of the said sum of money to the plaintiff, bj- a mort- gage upon the said parcel of land, which said mortgage the plaintiff then and there accepted and received as a security for the repayment of the said sum of money so by him lent to the said E. F. as aforesaid; whereby the said writing became and was wholly discharged and annulled. And so the defendant says, that the said writing is not his deed; and of this he puts himself upon the country, etc. It seems that the plea must show to whom the bond was delivered; ' and it is no escrow if delivered to the obligee.^ An escrow is a deed conditionally delivered to a stranger, and not to the obligee or grantee himself, to be held until a certain condition shall be performed, and then to be delivered to the obligee or grantee. Until the condition is performed, and the deed delivered over, it does not take effect.' A re- lation back to the first delivery, so as to give the deed effect from that time, is, however, allowed in cases where necessary to render the deed valid — as where 2, feme sole makes a deed, and delivers it as an escrow, and then marries before the second delivery.* As has been already observed, the delivery of a deed as an escrow may be given in evidence under the plea of non est factum, though it is more usual to plead it.* No. S65. Onerari non. {TVhen pleaded as a second or subsequent plea, commence thus:) And for a furtlier plea in this behalf, the defendant says that he ought not to be charged with the said debt by virtue of the said supposed writing obliga- tory, {or " indenture," etc., or " the said writing,") because he says, (*) that {here state the subject-matter of the defense, and conclude as foUoirs:) And this the defendant is ready to verify; wherefore he prays judgment if he ought to be charged with the said debt by virtue of the said supposed writing obligatory {or " indenture," etc.) ' 5 Bac. Abr. 160, Oblig. C. Catlin v. Jackson. 8 Johns. 520; 2 Hob. 246; Ventr. 9; 2 Stark. Ev. Furness v. Williams, 11 111. 229; 271; Foley V. Coicgill, 5 Blackf. 18; Foy v. Blackstone, 31 111. 538; Price Moss v. Riddle, 2 Pet. C. Rep. 277; v. R. R. Co., 34 111. 13; Leiter v. see Neely v. Lewis, 5 Gilm. 31; Stoiie Pike, 127 111. 326. V. Duvall, 77 111. 475; Land Co. v. " 2 Bl. Com. .307; 2 Bouv. Inst, n., Peek, 112 111, 231; Weber v. Chris- 2024; 4 Kent Com. 446. ten, 121 111. 94. "1 Chit. PI. 424; see Governor v. 3 Jackson v. Catlin, 2 Johns, 248; Lagow, 43 111. 134. 404 DEBT. "Where tlie validity of the deed is disputed, or where an heir pleads riensper descent^ the defendant should sa}" oiverari non dehet^ (as'above,) and actionem non; and the plea should de- scribe the deed as a writing, or supposed writing obligatory, (or "indenture, etc.,) and should not admit that it is a deed.' No. 266. Plea of tender, to debt on simple contract— Wi\ debet as to part, and tender as to residue. (Title of court, etc., as in No. 260, ante.) And the defendant, by G. H., his attorney", comes and defends the wrong and injury, when. etc. , and as to the several sums of money in the said declaration mentioned, and thereby demanded, except as to the sum of dollars, {the sum tendered,) parcel thereof, says that he does not owe the same, or any part thereof, to the plaintiff, in manner and form as the plaintiff has above complained against him, the defendant: And of this he puts himself upon the country, etc. And as to the said sum of dollars, parcel, etc., the defendant says that the plaintiff ought not to have his aforesaid action against him, the defendant, to recover any damages by reason of the non-payment of that sum of money, because he says, that he was when the same became due, and from thence hitherto has been, and still is, ready to pay to the plaintiff the said sum of doUai-s, parcel, etc , to wit, in the cjunty aforesaid; and that after the same became due, and before the commencement of this suit, to wit, on, etc., the defendant was there ready and willing, and tendered and offered, to pay to the plaintiff the said sum of dollars, parcel, etc., to receive which of the defendant, he, the plaintiff, then and there wholly refused; and the defendant now brings the said sum of money, so tendered, into the court here, ready to be paid to the plaintiff, if he will accept the same. And this the defendant is ready, to verify; wherefore he prays judg- ment if the plaintiff ought to have his aforesaid action to recover any dam- ages by reason of the non-payment of the said sum of dollars, parcel, etc. If the money has already been paid into court, then instead of alleging the bringing in thereof, as in the above form, say — " and the defendant avers that he has paid the said sum of money, so tendered, into the said court of, etc., ready to be paid," etc. A tender must be pleaded. See the form No. 121, ante, and the observations thereunder. No. 267. Plea of nul tiel record. {Title of court, He, as in, No. 260, ante.) And the defendant, by G. H., his attorney, comes and defends the wrong and injury, when, etc., and 1 1 Chit. PI. 471; 3 Chit. PI. 955, n. DEBT. 495 says that there is not any record of the supposed recovery in the said dec- laration mentioned, remaining in the said court of, etc., in manner and form as the plaintiff has above in his said declaration alleged : And this the defendant is ready to verify; wherefore he prays judgment if the plaintiff ought to have his aforesaid action against him, etc. It seems the words, " and this defendant is ready to verify," are not necessary.' It is the proper practice for the court to determine the issue on the plea, by an inspection of the transcript of the record; and if this fails to show jurisdiction of the person of the defendant, it can not be aided by other evidence.'' The plea of nul tiel record draws nothing in question but the existence of the record.^ The party can not, therefore, under such plea, set up, in contradiction of the record, that he was not served with process, or that he did not appear by at- torney.* But where the record shows an appearance by attor- ney, the defendant may plead and prove that the attorney had no authority to appear for him." It is held that the defense that a judgment of another state, an which an action is brought, was obtained by fraud, is not available at law, and that the proper course is to seek relief by bill in chancery, impeaching the judgment for that cause;" but this doctrine is denied.' A variance between the record declared on and the one pro- duced in evidence, can be taken advantage of by a plea of nul tid record." > 3 Chit. PI. 995, n; Com. Dig. PI. Bimeler v. Dairson, 4 Scam. 536; E. 33. Hall V. Williams, 6 Pick. 232: Shum- ^ Kimball Y. Merrick, 20 Ark. 12; way v. Stillman, 6 ^Y'md. 4A1. Pitt V. Knight, 1 Saund. 92. n. 3; * Anderson v. Anderson, 8 Ohio Riley v. Eiley, 1 Spencer (20 N. J.) 108; Story's Eq. PI., sec. 426; see.4»i- 114. bier v. Whipple, 139 111. 311. ^ Anderson \. Anderson, 8 Ohio '' Bimeler v. Dawson, \ Scam. ^ZQ, 108. and cases cited; Welch v. Sykes, 3 * Bennett V. Morley, 10 Ohio 100; Gilm. 197; Borden v. Fitch, 15 Westervelt v. Leivis, 2 McLean 511; Johns. 121; Andretvs v. Montgom- Hally. Williams, QFick.2d2; Shum- ery, 19 Johns. 162; see Ambler \. toay V. Stillman, 6 Wend. 447; Whipple, 139 111. 311. Welch v. Sykes, 3 Gilm. 197; Rust «2 Paine' C. C. R. 209; Randolph V. Frothingham, Breese 331. v. Keiler, 21 Missouri 557: Smith v. ^ Welch v. Syhcs, 3 GUm. 197; .Br«s/i. 8 Johns. 83; Stra. 1721; Pitt 496 DEBT. The plea of nul tiel record, in scire facias on a mortgage, only puts in issue the execution and registry of such mort- gage.' This plea is improper in an action of debt on an ap- peal ' or a replevin bond." In general, the conclusion of a plea of nul tiel record to the country, is wrong; but such defect can only be taken advan- tage of by a special demurrer." It was held in England that the plea of md tiel record, pleaded to an Irish judgment, must conclude to the country, for though since the union of England and Ireland such judg- ment was a record, yet it was only provable by an examined copy on oath, the verity of which was only triable by a jury.^ And in the case of Baldwin v. Hale, 17 Johns. (N". Y.) 272, it was held that a circuit court of the United States, in relation to a state court, was to be regarded as a court of another gov- ernment, and its records, therefore, must be considered as for- eign records, and their verity must be tried by a jury. But under the act of congress which provides for the manner of proving the records of the courts of the various states, by the attestation of the clerk and the seal of the court annexed, with the certificate of the judge,® the proving of such records by examined copy is not necessary, and the issue of nul tiel record is tried by the court by an inspection of the record. No. 268. Replication to plea of nul tiel record. In the Court. * term, 18 — . A. B. ) vs. [ Debt. C. D. ) And the plaintiff, as to the plea of the defendant by him first above pleaded, says that he, the plaintiff, by reason of anything in that plea alleged, ought not to be barred from having his aforesaid action, because V. Knight, 1 Saund. 92, n. 3; Giles ^Steele v. Hanna, 8 Blackf. 326; V. Shaiv, Breese 125; Giles v. Shaw, Co. Lit. 117, b; see Chit. PI. 475, 476. Breese 219. * Colliiis v. Mathew, 5 East 473; ' Woodbury v. Manlove, 14 111. see 1 Chit. PI. 475. 213. « Rev. Stat. (1893) 86; Eev. Stat. * Arnott v. Friel, 50 HI. 174; Her- (1895) 86; 1 Starr & Curtis 1094; see rickv. Sicarticout,'72 III. S'iO; Mix Mills v. Duryea, 7 Cranch 481; V. People, 86 111. 329. Hampton v. MeConnel, 3 Wheat. * Tedwick v. Wells, 59 111. App. 234; Bimeler v. Dawson, 4 Scam. 657. 586. DEBT. 497 he says, that there is such record of the said recovery remaining in the said court of, etc., as he has above in his said declaration alleged. And tliis the plaintiff is ready to verify by the said record, etc., and he prays that the same may be seen and inspected by the court here, etc. No. 269. Plea of duress — Menace to kill. (First plea, non est factum, as ante, No. 261; second plea, onerari non, etc., as in No. 265, ante, fo the asterisk, and then proceed— ) that the plaintiff, just before the making of the said writing in the said declaration mentioned, to wit, on, etc., in, etc., threatened the life of the defendant, unless he, the defendant, would make, seal and deliver the writing afore- said, and the defendant did thereupon then and there, by reason of such threats, and in fear thereof, make, seal and deliver the said writing. And this, etc. (concluding with a verification, as in No. 265, ante). No. 270. Replication to plea of duress, No. 269. (Similiter to non est factum, as ante. No. 10.) And the plaintiff, as to the plea of the defendant by him secondly above pleaded, says that he, the plaintiff, by reason of anything in that plea alleged, ought not to be barred from having his aforesaid action, because he says, that the defendant, of his own free will, made, sealed and delivered to the plaintiff the said writing obligatory, and not by reason of the supposed threats in the said second plea naentioned, or in fear thereof, in manner and form as the defendant has above in that plea alleged. And this the plaintiff prays may be inquired of by the country, etc The plea may alleo^e a battery and menace of further battery, or a battery and fear of mayhem, or duress of imprisonment, etc. See the precedents. 3 Chit. Fl. 9(54, 965. Fear of unlawful imprisonment will constitute a case of duress j96r w.inas and avoid a contract.' The general rule is, that the imprisonment or duress must either be tortious, and without authority, or be an abuse of lawful authority to arrest, to constitute duress by imprison- ment.^ See the Illinois cases noted below, on this subject.' • Co. Lit. 253, 6; 2 Inst 483; 39 111. 243; Haskin v. Raskin, 41 111. Foshay v. Ferguson, 5 Hill (N. Y.) 197; Stover v. Mitchell. 45 111. 213. 154. ^Taylor v. Cottrell, 16 111. 93; « 2 Kent's Com. 565; Watkins v. Plummer v. People, 16 111. 358; Bane Baird,Q Mass. 511; Taylor v. Cot- x.Detrick, 52 111. 20; Thurman v. trell, 16 111. 93; see Plummer v. 5!trf, 53 111. 129; Gingrich x. People, People, 16 111. 358; Gingrich v. 34 111. 448; Huggins v. People, 39 111. People,Ul\\.U9;Hugginsv. People, 242; Haskin v. Haskin, A\ 111. 197; 82 408 DEBT. No. £71. Plea of set-off , to debt on a money bond with a penalty. {If pleaded as a first plea, commence — after the entitling— " And the de- fendant, by G. H., his attorney, conies and defends, etc., when, etc., and says that the plaintiff ought not," etc. If as a second or Huhsequent plea., commence thus:) And for a further plea in this behalf, the defendant says that the plaintiff ought not to have his aforesaid action against him, the de- fendant, because he says,(*) that at the time of the commencement of this suit there was due from the defendant to the plaintiff, upon the said writ- ing obligatory, by the said condition thereof, for the principal and interest in the said condition mentioned, the sum of dollars: And the defend- ant further says that the plaintiff was befoi'e and at the time of the com- mencement of this suit, and still is, indebted to him, the defendant, in a much larger sum of money than the said sum so due from the defendant to the plaintiff upon the said writing obligatory, that is to say, in the sum of dollars; for {here state the sidy'ect-matter of the set-off^) which said sum of money so due from the plaintiff to the defendant, as aforesaid, or so much thereof as shall be necessary in this behalf, the defendant is ready and willing, and offers, to set off and allow against the said sum of money so remaining due by the said condition of the said writing obligatory, ac- cording to the form of the statute, etc. And this the defendant is ready to verify; wherefore he prays judgment if the plaintiff ought to have his aforesaid action, etc. See form 105, ante, and the observations thereunder. In the above plea, and the next following, oyer should be craved, (as in No. 263,) if the declaration does not set forth the condition and breach. But if non est factum, cravino^ oyer (No. 262) is pleaded, then it is not necessary to again demand oyer in a subsequent plea. No. 272. Plea of payment— To debt on bond (solvit ad diem). {As in last precedent to the asterisk, and then proceed — ) that on the said day of, etc. , in the said condition of the said writing obligatory men- tioned, he, the defendant, paid to the plaintiff the said sum of dollars, in the said condition mentioned, together with all interest then due thereon, according to the form and effect of the said condition, to wit, in the county aforesaid: And this, etc. {concluding with a verification, as in last pre- cedent.) Stoverv. Mitchell, 45 111. 213; Schom- Bank, 96 111. 301; Willittsv. Willitts, mer v. Farivell, 56 111. 542; Swan- 104 111. 122; Brower v. Callender, ston V. Ijajns. 63 111. 165; Peacock v. 105 111. 88; Overstreet v. Dunlop, 56 People, 83 111. 331; R. R. Co. v. III. App. 486; Lamson y. Boyde^i, 57 Thomas, 85 111. 464; Compton v. 111. App. 232. DEBT. 499 If payment after the day is pleaded, {solvit post diem,) then say that " after the said day of, etc., in the said con- dition mentioned, and before the commencement of this suit, to wit, on etc., he, the defendant, paid," etc.; and omit the words '' according to the form and effect," etc. No. 273. Plea of failure of consideration — To debt on specialty.— [30 III. 329.] {First plea, non est factum, as ante, No. 261.) And for a further plea in this behalf, the defendants say that the plaintiffs ought not to have their aforesaid action against them, the defendants, because they say, that the several supposed causes of action in the said declaration mentioned are one and the same, to wit, the supposed cause of action in the said first count mentioned, and not different causes of action; and that by the writing in the said first count mentioned the plaintiffs did covenant that they would, on the payment of the money mentioned in the said writing, convey to the defendants the land in the said writing mentioned, and in and by their deed of conveyance for that purpose would covenant to warrant the title so to be convej^ed to the defendants, against any persons claiming by, through or under the patentee of the said land : And the defendants aver that neither at the time of the making of the said writing, nor at any time since, have the plaintiffs been the owners of the patent title to the said land, or had any right or title to the same whatever : And the defendants further aver that the obtaining of the title to the said land was the only consideration and object of the making of the said writing by the defendants as aforesaid : Wherefore, by reason of the plaintiffs' not having any title to the said land, the said covenant in the said writing mentioned was then and there worth- less, and the consideration of the said writing has wholly failed. And this the defendants are ready to verify; wherefore they pray judgment, etc. If in the cause in which this plea was pleaded, the declara- tion fully set out the contract, then it was unnecessary to allege in the plea that the contract contained a certain cove- nant, since that already appeared on the record; and if the declaration did not set out the entire writing, so as to show such covenant, then the plea should have set it forth on oyer. No. 274. Plea of performance generally. (As in No. 271, ante, to the asterisk, and then proceed—) that the defend- ant did from time to time, and at all times, after the making of the said writing obligatory and the said condition thereof, well and truly keep and perform all and singular the matters and things in the said condition speci- fied, on his part to be kept and performed, according to the tenor and effect of the said condition : And this, etc. {concluding icith a verification, as in No. 271, ante.) 500 DEBT. As to this plea, see the remark following the next form. A defendant can not plead performance of the condition, without praying oyer, and setting it out m hcec verha."^ But where the condition is already set out in the declaration, or in a previous plea craving oyer, it is unnecessary to again de- mand oyer, and set it out. A plea of performance generally, to a declaration making negative averments in assigning breaches, is not good.^ No. 275. Plea of non damnificatus. {As in No. 271, ante, to the asterisk, and tlien proceed — ) that the plaintiff has not, at any time since the making of the said writing obligatory and condition thereof hitherto, been in anywise damnified by reason of any matter or thing in the said condition mentioned : And this, etc. {conclud- ing with a verification, as in No. 271, ante.) As to craving oyer, see the remark under the preceding form. It would seem that performance generally, and non damnifi- catus, should, properly, only be pleaded where the condition and breach are not set forth in the declaration. In Illinois, it is provided by statute that " in actions brought on penal bonds, conditioned for the performance of covenants, the plaint- iff siiall set out the conditions thereof, and may assign as manv breaches as he may think fit; " * and it is the practice^ in all actions on bonds with conditions, to set out the condi- tion, and assign the breaches, in the declaration, instead of making such assignment in the replication, as was the practice in England in many cases.* A plea of non damnificatus is good only when the action is upon an indemnity bond.^ It is sufficient when the condition of the bond is merely to indemnify, but when the condition is for the performance of any particular act, the performance must be specially pleaded.** '^Arlington v. Merrick, 2 Saund. Patrick v. Eucker, 19 111. 428; Foltz 409, n. 2; 3 Chit. PI. 986, n. v. Stevens, 54 111. 180. ''State V. Levaele, 3 Blackf. 117; * See 3 Chit. PI. 1177-1179. Mlv V. People, 86 111. 329; Mix v. ^ State v. Gresham, 1 Ind. 190; People, 92 111. 549. Sears v. Nagles, 18 Bradw. 547; ^Kev, Stat. (1893), 1074; Rev. Stat. Coombs v. Newlan, 4 Blackf. 120. (1895), 1158; StaiT & Curtis 1786; see " Cutler v. Southern, 1 Saund. 117, DEBT. 501 No. 276. Plea— To debt on a demise, for rent— No rent in arrear. {See No. 241, ante.) (As in No. 271, ante, to the asterisk, and then proceed—) that no part of the said rent in the said declaration mentioned is in arrear or unpaid, in manner and form as the plaintiff has above in his said declaration alleged: And of this the defendant puts himself upon the country, etc. This plea may be pleaded in debt for rent, though not in covenant.' But as nil debet may be pleaded, which puts in issue the whole declaration, there would seem to be no ad- vantage in pleading rien en arrere. It was formerly held that this plea should conclude " and so the defendant does not owe," etc. {nil dehet.) An eviction may either be pleaded, or given in evidence upon nil dehet, in debt, but in covenant it must be pleaded.' No. 277. Plea — To declaration on arbitration bond— No award made. (As in No. 271, ante, to the asterisk, and then proceed—) that the said arbitrators named in the said condition did not, nor did any two of them, on or before the said day of, etc., mentioned in the said condition, make any award in writing, under their hands, or the hands of any two of ^lem, (this must be according to tlie averment in the declaration,) of and concerning the premises in the said condition mentioned, and so referred as aforesaid, ready to be delivered to the said parties in difference: And this the defendant is ready to verify; wherefore he prays judgment, etc. See observation as to oyer, under JSIo. 271, ante. No. 27S. Plea of eviction in an action by landlord against tenant. (First, nil debet, and second, actio non.) And for a further plea in this behalf, the defendant says actio non, be- cause he says that the plaintiff, after the making of the said lease, and before any part of the said rent in the said declaration mentioned became due and payable, the plaintiff, to wit, on, etc., with force and arms, etc., entered into and upon the said demised premises, and then and there ejected, expelled, put out. and amoved the defendant from the possession thereof, and kept and continued the defendant so ejected, expelled, put out, and amoved from thence hitherto, to wit, at, etc., aforesaid. And this the defendant is ready to verify, wherefore he prays judgment, etc.^ G. H., Atfy for Deft. n. 1; 3 Chit. PI. 985, n.; Aridrus v. Salmon v. Siuith, 1 Saund. 204, n. 2. Warring, 20 Johns. 153. ^ Dean v. Cover, 2 Saund. 297, n. '1 Chit. PI. 423; Cowp. 588; 1 1; Ld. Raym. 1503; Salmon v. Rich. C. P. 500. Smith, 1 Saund. 204, n. 1, 2. 21 Chit. PL 423; 3 Chit. PI. 993; 502 DEBT. No. 279. Replication denying eviction. {Venue, and title of cause.) And the plaintiff as to the said plea of the defendant by him above pleaded, says, precludi non, because he says that the plaintiff did not, be- fore the said rent became due, eject, expel, put out, or amove the defend- ant from the possession of the said demised premises, or any part thereof, in manner and form as the defendant has above in his said plea in that be- half alleged; and this the plaintiff prays may be inquired of by the country^ etc. E. F., Att'yfor Pl'ff. No. 2S0. Plea — To declaration on replevin bond — That merits were not de- termined in replevin suit, etc. (First plea, non est factum, as ante. No. 261.) And for a further plea in this behalf, as to anj^ damages by reason of the said supposed breach (or " breaches") of the said condition of the writing aforesaid, except as to the sum of one cent, the defendants say that the plaintiff" ought not to have his afoi'esaid action against them, the defendants, to recover any greater dam- ages than that sum, because they say, that {here state enough of the pro- ceedings in the replevin suit to show that the merits were not determined in the trial thereof —for example as follows — ) the said judgment in tlie said action of replevin, in the said declaration mentioned, was given upon a trial of that action, in the said court, at the said term thereof, in the said year 18 — ; and that the said trial was had solely upon a certain issue joined upon a certain replication of the said C. D. to a certain plea of the said J. K. {the defendant in replevin) denying the jurisdiction of the said court in that behalf (which said issue was then and tliere found for the said J. K.), and upon no other issue whatsoever: And so the defendants say, that the merits of the case were not determined in the trial of the said ac- tion of replevin. And the defendants further say, that the 'said goods and chattels in the said writ of replevin mentioned, at the said time when, etc., were the property of the said C. D., and not of the said J. K., as by the said declaration in this behalf is above supposed. And this the defendants are ready to verify: wherefore they pi'ay judgment if the plaintiff ought to have his aforesaid action to recover against them any greater damages than the said sum of one cent, in this behalf, etc. It is provided by statute, in Illinois, that, " in all actions upon replevin bonds, where the merits of the case have not been determined in the trial of the action of replevin in which the bond was given, the defendant may plead the above facts, and also his or her title to the property in dispute in said action of replevin," ' ' 2 Starr & Curtis 2018; Rev. Stat. see Richards v. Rape, 3 Bradw. (1893) 1174; Rev. Stat. (1895) 1258; 24; Ledford v. Weber, 7 Bradw. DEBT. 603 In King v. Ramsey, 13 111. 619, the court say: "Enough of the proceedings in the former action should be set forth to en- able the court to decide on demurrer whether the rio-ht of property has already been determined. If the suit was dis- missed, that fact should be stated. If there was a trial the plea ought to show what were the issues, and how they were disposed of. The plea was also defective in professing to an- swer the entire cause of action. Even if the goods replevied belonged to the plaintiffs in the action of replevin, and the right of property was not determined in that suit, the obligee would still have a cause of action on the bond, and be entitled to recover nominal damages for a failure to make return of the goods, as required by the judgment of the court.'' No. 281. Plea— To debt on statute— Former conviction for same offense. (First xilea, nil debet, as ante. No. SGO.) And for a further plea in this behalf, the defendant says that the plaintiff ought not to have liis aforesaid action against him, the defendant, because he says, that after the com- mitting of the said offense in the said declaration mentioned, and before the commencement of this suit, to wit, on, etc., in, etc., aforesaid, one E. F. went befoie G. H., Esq., then and still being one of the justices of the peace in and for the said cotmty, and informed the said G. H. that the defendant, on, etc., in, etc., did, etc. {here state the offense., as in the complaint); and thereupon such proceedings were had before the said G. H., the justice aforesaid, that afterwards, to wit, on, etc., the defendant was there duly convicted of the said offense, according to the fonn of the statute in such case made and provided; which said judgment of conviction is yet in full force and effect: And the de- fendant avers that he, the defendant, who is sued by the name of C D. in this suit, and the said C. D. in the said complaint and conviction named, are one and the same person, and not other or different; and that the said offense in the said declaration mentioned, and the said offense in the said complaint cliarged, and whereof the defendant was so convicted as afore- said, were done and committed by the defendant at one and the same time, and are in fact the very same offense, and not other or different offenses. And this he is ready to verify; wherefore he prays judgment, etc. In an action for a penalty, where any person may prosecute, 87; King v. Ramsey, 13 IlL 0'Z)onnfZZ v. Co%. 153 111. 324; UVft- 619; Chinn v. McCoy, 19 111. her v. Mick, 131 111. 520; Holler v. 604; Lemen v. Robinson, 59 111. 115; Coleson, 23 111. App. 324; Haneliett Stemson v. Earnest, 80 111. 513; v. Gardner, 138 111. 571. Morehead v. Yeazel, 10 Brad. 263; 504 DEBT. a judgment in a suit by A. may be pleaded in bar to a prose- cution by B. for the same cause or offense.* Demurrer, after craving oyer. — In some cases, where the plaintiff in the declaration partially states a deed which is defective, or contains matter qualifying the part stated, the defendant may crave oyer of the deed, and set forth the whole, thereby making it a part of the declaration, and then demur either in respect of the defect in the deed, or the improper manner in which the plaintiff has stated it; and this is the proper course, when upon oyer it would appear that a bail bond is defective. So a deed untruly stated in a plea, being set out upon 03^er by the plaintiff, becomes part of the plea, and if it thereby appears that the plea is false, the plaintiff need not show any matter of fact in his replication to maintain his action, but may demur; for it is a general rule that an in- denture set out upon oyer becomes part of the preceding plea.^ When it is desired to crave oj^er and demur to a declara- tion, proceed as in form No. 263, ante, or in the remark there- under, setting out the indenture, etc., and then say : *' Which being read and heard, the defendant says that the said declara- tion, and the matters therein contained, in manner and form as the same are above pleaded and set forth, are not sufficient in law," — and so on, as in an ordinary demurrer. Over is craved and granted by the court, where some writ- ing is in possession of the opposite party; * but not of an in- strument not under seal; * or of a record." For replications, rejoinders and demurrers, the pleader is referred to the forms in chapter III, entitled, Defenses to an Action. ' Crosby v. Gipps, 16 111. 352; see * Gatton v. Dimmitt, 27 III. 400; JR. R. Co. V. Allen, 39 111. 205; Ham- Ins. Co. v. Mehlman, 48 111. 313. ilUm V, Quimhy, 46 111. 90; Krtuchi ^ Giles v. Shaiv, Breese219; Hanna V. Dehler, 50 111. 176. v. Yocum, 17 111. 387; Deeme v. 1 1 Chit. PI. 578; Gould's PL 409, Crume, 46 111. 69; see Young v. 419; see 1 Chit. PL 424, 425; Ferrall Campbell, 5 Gilm. 80; Linder v. V, Shaen, 1 Saund. 295, b; Boss v. Monroe, 33 111. 388; Brent v. Shock, Parker, 1 B. & C. 358. 36 111. 125; Bowman v. irood, 41 111. ^Eddy V. Brady, 16 IlL 307; 203. Hanna v. Yocum, 17 111. 387. CHAPTEE Xiy. HABEAS CORPUS. Origin and history of the writ.— The writ of fiaheas cor- pus is an ancient English writ, used for a variety of purposes from a remote antiquity. One of the purposes for which it was used was to recover freedom which had been wrongfully taken away. Personal liberty was always asserted by the com- mon law, from its earliest ages; and it was always assailed by kings who would be tyrants, and with an earnestness proper: tioned to their tyranny. Hence it became necessary to declare this principle in the most solemn manner in Magna Charta (A. D. 1215). But before the 31st year of the reign of Charles II. (A. D. 1679,) its benefits were in a great degree eluded by time-serving judges, who awarded it only in term time, and who assumed a discretionary power of awarding or refusino- it. The writ was evaded by courts and sheriffs who were dis- posed to support royal and ministerial usurpations; and it be- came so powerless, that early in the reign of Charles I. (1626.) the court of king's bench formally decided that it had no power to release any person imprisoned without any cause as- signed, if he was imprisoned by the express command of the king, or by the lords of the privy council. The petition of rights, of the third year of the reign of Charles I. (A. D. 1628,) asserted the illegality of this decision, and declared that "no freeman should be imprisoned or detained without cause shown, to which he may make answer according to law." But the means of enforcing this rule were still imperfect, and personal liberty was still violated; and by 16 Charles I., chap. 10, (A. D. 1641,) various provisions were enacted, intended to make the writ of habeas corpus more effectual. But this was not enough. The judges still continued to refuse the writ at their pleasure; and prisoners were sent to distant jails, (505) 506 HABEAS COKPUS. and sheriffs and jailers refused to obey it; or if the person im- prisoned was brought before an examining court, his hberty was still denied him on frivolous pretenses. To secure the full benefits of the writ to the subject, the statute of 31 Charles II., chap. 2,(1679,) commonly called the habeas corpus act, was passed. This gave to the writ the vigor, life and efficacy requisite for the due protection of the liberty of the subject. This act consisted of a variety of provisions, de- vised with so much skill, and so well adapted to give each other mutual support, that it may safely be asserted that per- sonal liberty will be safe, in England and the United States, so long as this law remains in force. Evasion of it is almost impossible; and it can be made ineffectual only by a positive and open violation of its essential provisions, or by a distinct denial of its interposition. The enactment of this great " pal- ladium" of English liberty was secured after persistent efforts on the part of Lord Shaftesbury and other friends of liberty in parliament. The bill only passed the House of Lords by an erroneously reported vote of fifty-seven to fifty-five. It is alleged by a cotemporary writer that it was passed by a fool- ish jest and falsehood.^ The manner of its passage is related to have been as follows : The bill had passed the House of Commons, and was taken to the House of Lords. When the question was about to be taken in that house, " Lords Grey and Norris were named to be the tellers. Lord Norris, being a man subject to vapors, was not at all times attentive to what was doing. So a very fat lord coming in. Lord Grey counted him for ten, as a jest only at first; but seeing Lord Norris had not observed it, he went on with his misreckoning of ten, and so it was reported to the house, and declared that they who were for the bill were in a majorit}^, though it indeed went on the other side." Shaftesbury, who presided as Lord Chancel- lor, then spoke until members had come and gone, so that the house could not be retold, and the mistake corrected. The bill was approved by the king, and became a law. Lord Camp- bell, in his life of Lord Shaftesbury, says that there must have been some mistake in the return of the votes upon the bill, ' Bishop Burnet's History of His Own Times, HABEAS CORPUS. 507 because the journal of the House of Lords shows that the whole number of lords present was one hundred and seven, w^hile the bill was declared jDassed by fifty-seven to fifty-five. Although this great act may have been procured by a jest and unfair means, and at a period of turbulence and disorder, it is one of the most salutary measures ever passed by the British parliament, and renders the year 1679 a most impor- tant era in the history of constitutional liberty. The habeas corpus act has been substantially incorporated into the jurisprudence of every state in the Union; ' and the right to the writ has been secured by the constitutions of most of the states, and by that of the United States. The constitution of the United States, art. 1, sec. 9, par. 2, provides, that "the privilege of the writ of habeas corj9w* shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it." By the statute of Illinois, the benefit of the writ of habeas corpus is given in all cases where " any person shall be com- mitted or detained for any criminal or supposed criminal mat- ter," and where " any person, not being committed or detained for any criminal or supposed criminal matter, shall be confined or restrained of his liberty, under any color or pretense what- ever." And in order to still further secure to the citizen the benefit of this w^rit, a heavy penalty is imposed upon any judge, empowered to grant such writ, if he corruptly refuses, or un- reasonably delays, so to do; and upon any sheriff, jailer or other person Avho refuses or evades obedience to such writ.^ The statute of Illinois will be understood as referred to, when any statutory provision is hereafter quoted or mentioned in this chapter. When it is to be granted. — The writ is to be granted when- ever a person is in actual confinement, or restrained of his lib- erty, under any color or pretense whatever. Every restraint upon a man's liberty is, in the eye of the law, an imprisonment, wherever may be the place, or whatever may be the manner, ' Hammoiid v. People, 32 111. 446. ^ j gt^rr & Curtis 1253; Rev. Stat. (1893) 799; Rev. Stat. (1895) 846, SiS. 508 HABEAS COKPUS. in which the restraint is effected.' Words may constitute an imprisonment, if they impose a restraint upon the person, and he is accordingly restrained and submits/ It may be on the public street, and though the party is not put into any prison or house/ Whenever a person is deprived of the privilege of going when and where he pleases, he is restrained of his lib- erty, and has a right to inquire if that restraint, whether by a sheriff, constable, or private individual, is illegal and wrongful. It is not necessary that the degradation of being incarcerated in a prison should be undergone, to entitle any citizen, who may consider himself unjustly charged with a breach of the laws, to a hearing.* A mere moral restraint, however, is not such an imprison- ment as will entitle the party to the writ.* Persons discharged on bail will not be considered as restrained of their liberty, so as to be entitled to a writ of habeas corj)us.^ It is immaterial whether the imprisonment is under criminal or civil process; if it is illegal, the prisoner is entitled to the benefit of the writ.' The court has power, on haheas corpus^ to determine the question of the right to the custody of a child,* Before a writ of habeas corpus is granted, sufficient probable cause must be shown. If it appears, upon the petitioner's own showing, that there is no sufficient ground, prima facie, for his dis- charge, the court will not issue the writ. It ought not to be granted if the court is satisfied that the prisoner should be re- manded,^ In the United States, the right of bail has been thought •Hurd on Hab. Corp. 209; 1 Kent Arnold, 3 Yeates 263; Com. v. Rob- 631. inson, 1 S. & R. 356; Territory v. « 1 Kent 631; Butler N, P. 62; Pike Cutler, 1 McCahon (Kan.) 152. V. fla?? son, 9 N. H. 491; Tri7Zia7»son "< Hecker v. Jarrett, 3 Biun. 404; V. Letcis, 39 Penn. State 9; see Wales People v. Turner, 55 111. 280; People V. Whitney, 114 U. S. 564. v. Whitson, 74 111. 20. ^Hurd on Habeas Corpus, 210. * State v. Richardson, 40 N. H. 272; * Commonu-ealth v. Ridgeuxty, 2 1 Geo. Decis. 93; Ex parte Ferrier, Ashm. (Pa.) 247; Kurd Hab. Corp., 103 111. 367. 210. 'Sm's Case, 7 Cush. 285; 2 M. & ■'Dodge's Case, 6 Mart. (La.) 569; S. 428; 3 Black. 132; see Ex parte Wales V. Whitney, 114 U. S. 564. Klepper, 26 111. 532; Jn re O'Connor, • 1 Bouv. Law D. 574; State v. 6 Wis. 288. HABEAS CORPUS. 509 worth}^ of constitutional protection. In the federal constitu- tion, and in the constitutions of nearly all the states, it is pro- vided that " excessive bail shall not be required." The constitution of Illinois provides, that " all persons shall be bailable by sufficient sureties, unless for capital offenses, where the proof is evident or the presumption great.." ' Where bail, in a bailable case, has been refused by the com- mittinf]^ magistrate, the writ of habeas corpus may be granted for the sole purpose of admitting the prisoner to bail." And so when excessive bail has been exacted, and it ap]>ears from the petition that the bail is unreasonable, the judge may, in the plenitude of that power which he possesses at common law, in the sound exercise of his discretion, reduce the bail to a reasonable amount.^ If an affidavit for a capias ad respondendum, in an action ex contractu, does not conform to the requirements of the consti- tution (of Illinois), a person imprisoned under the capias may be discharged on a habeas corpus* By whom application may be made. — Although the per- son imprisoned has an undoubted right to make the applicii- tion, it is not necessary that it should proceed directly from him. It may be made by an agent, or friend, on behalf of the prisoner; ' or by a wife on behalf of her husband; ° or a hus- band on behalf of his wife.' But no legal relation is required to exist between the prisoner and the person making the ap- plication. It may be made by any one.' Where the applica- tion is by a third person, it is supposed to be made in accord- ance with the wishes of the person restrained of his liberty, 'Art. 3, Sec. 7, Const, of 111. People v. Hancheft, 111 111. 90; Ex 2 4 Inst. 290; Ex parte Croom, 19 parte Smith, 16 111. 347. Ala. 561; Com. v. Keeper, 2 Ashm. ^ i4 How, St. Tr. 814; Rev. Stat. (Pa.) 227; Ex parte Taylor, 5 Cow. (1893) 797; 1 Starr & Curtis 1253; 39; Jones v. Kelly, 17 Mass. 116; Rev. Stat. (1895) 846. Eva^is V. Foster, IN. H. 374; see^a; * Kurd's Hab. Corp. 211; Cobbett 2)arte Klepper, 26 111. 532; People v. v. Hudson, 10 Eng. C. L. R. 318. McLeod, 1 Hill (N. Y.) 398. ''Gregory's case, 4 Burr. 1991; ^ Jones V. Kelly, 17 Mass. 116; Hurd's Hab. Corp., 211; People v. Hurd's Hab. Corp. 449; see People Mercein, 8 Paige 47. V. Town, 3 Scam, 19. ® The Hottentot Venus Case, 13 *Ex parte Salisbury, 16 IlL 350; East 195; State v. Philpot, Dudlev (Ga.) 42. 510 HABEAS CORPUS. and is allowed to prevent delay, where the latter is repre- sented to be under any disability, or in any manner prevented from making the application in his own right.' But mere volunteers, who do not appear on behalf of the prisoner, or show some right to represent him, will not be heard.'' The writ may be granted at the instance of a parent for his child,' a guardian for his Avard,* a master for his apprentice,^ or a special bail for his principal.* Section 24 of the statute, entitled " Lunatics," provides that " when a patient, committed to the insane hospital, shall be restored to reason, he Avill be discharged, and that if he be detained afterward, contrary to his wishes, he shall have a writ of habeas corpus.'' The writ of habeas corpus does not lie to review a judgment at law, for an alleged error in the proceedings in a case where the court had jurisdiction of the subject-matter and of the person.' A writ of error will not lie to review the finding of the court below upon a writ of habeas corpus.^ To whom application may be made. — In Illinois, the appli- cation for a writ of habeas corptis may be made to the supreme or circuit courts in term time, or any judge thereof in vaca- tion.'" Masters in chancery, in their respective counties, have power, in the absence of the judge from the county, to order the issuing of writs of habeas corpus.^^ They have, however, no power to issue writs; but they may, by indorsement on the application, order the clerk of the circuit court to issue such writs. The writ should not be made returnable before the 1 Kurd's Hab. Corp., 212. •> Rev. Stat. (1893) 949; Rev. Stat. ^ Rexx. Clark, 3 Burr. 1363; Ex (1895) 1011; 2 StaiT & Curtis 1573; parte Child, 29 E. C. L. R. 259; People v. Oilhert, 115 111. 59. Linda v. Hudson, 1 Cusli. 385. * Ex parte Smith, 117 III. 63; ^People V. Mercein, 3 Hill 399; People v. Allen, \mi\\. AOQ. People V. Mercein, 8 Paige Ch. 47. ^ People v. Skinner, 19 111. App. * Commonw. v. Dotvens, 24 Pick. 332; People v. Gilbert, 57 III. App. 227; Commonw. v. Hammond, 10 505. Pick. 274; Hovey v. Morris, 7 '« Starr & Curtis 709; Rev. Stat. Blackf. 559. (1893) 436; Rev. Stat. (1895), 478; ^People v. Pillow, 1 Sanf. 672. Matson v. Sioanson, 131 III. 255. ^Halsey v. Trevillo, 6 Watts 402; "2 Starr & Curtis, 1598; Rev. Stat. Anon V. Penni)igton, 484; Bond v. (1893), 962; Rev. Stat. (1895), 1024. Isaac, 1 Burr, 339. HABEAS CORPUS. 511 master, but to the circuit or supreme court, if in session, or, in vacation, before some judge of one of those courts.' It is not for the applicant to select, at will, the judge to whom he will apply, and then compel the officer holding him in custody to convey him to another part of the state. The application should be made to the judge in the county or dis- trict where the prisoner is detained,' or, in case of his absence, to the master. A judge of another circuit will not entertain the application, unless special reasons are shown for his so doing. Form of application. — If the prisoner is committed or de- tained for a criminal or supposed criminal matter, the appli- cation must be in writing, and signed by the prisoner, or some person on his behalf, setting forth the facts concerning his imprisonment, and in whose custody he is detained; and it must be accompanied by a copy of the w^arrant or warrants of commitment, or an affidavit that such copy has been demanded of the person in whose custody the prisoner is detained, and by him refused or neglected to be given.^ "When any person, not committed or detained for any criminal or supposed criminal matter, is confined or restrained of his lib- erty, under any color or pretense w^hatever, the application for the writ must be in writing, signed b}'^ such person, or some other on his behalf, setting forth the facts concerning his im- prisonment, and wherein the illegality of such imprisonment consists, and in whose custody he is detained; and the applica- tion or petition must be verified by the oath or affirmation of the party applying, or some other person on his behalf. If the confinement or restraint is by virtue of any judicial writ or process, or order, a copy thereof must be annexed to the peti- tion, or an affidavit made that such copy has been demanded and refused.* A petition for a writ of habeas corpus, where the prisoner has been regularly committed, should set forth the evidence adduced before the examining magistrate, so that the court ' People V. Toum, 3 Scam. 19. * 1 Starr & Curtis 1253; Rev. Stat. « Ex joarte Ellis, 11 Cal. 222. (1893) 797; Rev. Stat. (1895) 846, 3 1 Starr & Curtis, 1253; Rev. Stat, (1893) 797; Rev. Stat. (1895), 846. 512 HABEAS COEPtJS. may act advisedly. The aflSdavits of the petitioner and his counsel, giving their opinions, will not be sufficient. The court will presume that the committing magistrate acted properly upon the evidence submitted, and will sustain his proceedings, preferring to rely upon the presumptions in favor of the con- duct of the magistrate, rather than to take the opinions of the accused or his counsel.' No. 2S2. Petition for a habeas corpus, tvJiei'e petitioner is detained without warrant, etc To the cu-cuit court of the county of , in the State of Illinois {or, in vacation, " To the honorable J. K., judge of the judicial circuit of the State of Illinois"). Your petitioner, A. B., of, etc., complaining, shows that he is detained and imprisoned by C. D., sherilf of the said county of , without any author- ity of law, for a supposed criminal matter, the precise nature whereof is to the petitioner unknown. And your petitioner further shows that he has de- manded of the said C. D. a copy of the warrant or warrants for the com- mitment of the petitioner, but the said C. D. has hitherto refuse 1, and still refuses, to deliver such copy to the petitioner; and he believes that the said C. D. has no wai-rant whatever for the commitment or detention of the petitioner, but merely detains him on suspicion that he may be guilty of some criminal offense. Your petitioner therefore prays a writ of habeas corpus in this behalf, to be directed to the said C. D. , and returnable forthwith, according to the form of the statute in such case made and provided. A. B. State of Illinois. } . County of . f A. B. , the petitioner in the foregoing petition named, makes oath and says, that the mattei-s and things in the said peti- tion contained are true, to the best of his knowledge, information and belief. A. B. Subscribed and sworn, etc. A verification of the petition by affidavit, though usual, would seem not to be required b}^ the statute, where the deten- tion is for any criminal or supposed criminal matter. But if a copy of the warrant has been refused, that fact must be shown by affidavit." ^Ex parte Klepper, 26 111. 532; "See Hurd's Hab. Corp. 218; 1 Piatt V. Harrison, G Clarke (Iowa) Starr & Curtis 1253; Rev. Stat. (1893) 79; see In re aCo7i7wr, 6 Wis. 288; 797; Rev. Stat. (1895) 846. Ex parte Tliompson, 93 111. 89. HABEAS CORPUS. 513 No. SS3. Petition for a habeas corpus, where petitioner is detained under a warrant of commitment. {Address, as in last precedent.) The petitioner, A. B., of, etc. , complain- ing, shows that he is detained and imprisoned in the jail of the said county of — — , by C. D. , sheriff and jailer of the said county, on a charge of lar- ceny, by virtue of a certain warrant for the commitment of the petitioner, a copy whereof is hereto annexed; which detention and imprisonment of the petitioner are unjust, and contrary to law. And the petitioner further shows that the evidence on which his said commitment was based was in substance as follows, that is to say: (Hei-e give the substance of the evidence. Any other matters, or grounds of dis- charge, may he likeivise set forth.) To be relieved from which said detention and imprisonment the peti- tioner now applies, praying that a writ of habeas corpus, to be directed to the said C. D., may issue in this behalf, pursuant to the statute in such case made and provided, so that the petitioner may be forthwith brought before this court, {or, "your honor,") to do, submit to and receive what the law may require. A. B. {An affidavit may be added, as in last precedent; and annex copy of vxirrant.) No. 284. Petition for habeas corpus, by a parent for a child. (Address, as in No. 282. ante.) The petitioner, A. B. , of, etc. , complaining, shows that E. F., aged years, the daughter of the petitioner, is re- strained of her liberty by C. D., of, etc,; and that the said E. F. is not detained for any criminal or supposed criminal matter. And the petitioner further shows, that {here set forth the facts concerning the detention, and ifherein the illegality thereof consists, etc.) The petitioner therefore prays a writ of habeas corpus, pursuant to thQ statute in such case made and jirovided, to be directed to the said C. D.. commanding him to bring the said E. F. forthwith before the court here, {or " your honor "), and to show the cause of her detention, etc. A, B. {Add affidavit, as in No. 282, ante.) No. 285. Petition for a habeas corpus, lohere petitioner is held rmder a capias ad respondendum. {Address as in No. 282, ante.) The petitioner, A. B., of, etc., complaining sliows that he is unjustly imprisoned and restrained of his liberty by C. D. , sheriff of the said county of , by virtue of a certain writ of capias ad respondendum, issued from the court of the county aforesaid, a copy of which said writ, marked Exhibit A, is annexed to and made a part of this petition. And your petitioner further shows that his said imprison- ment and restraint are unlawful, for the reason that the affidavit on which the said writ of capias issued was wholly insufficient to authorize the issu- 33 514 HABEAS CORPUS. ing of such writ; as will fully appear by a copy of the said affidavit, marked Exhibit B, annexed to and made a part of this petition . Wherefore the petitioner prays a writ of Jiabeas corpus in this behalf, to be directed to the said C. D., and returnable forthwith, according to the form of the statute in such case made and provided. A. B. {Add affidavit as in No. 282, ante.) By the "act concerning bail in civil cases," (1872), it is pro- vided that " the court in term-time, or the judge in vacation, may, on application, discharge the defendant from arrest, for insufficiency of the affidavit, or hecause the facts stated therein are not true., or other good cause which would entitle him to be discharged upon habeas corpus; or in case he has given bail may discharge the same, or reduce the amount thereof, upon good cause shown." ^ No. 3S6. Petition for a habeas corpus ad testificandum. (Address, as in No. 283, ante.) The petitioner, A. B., respectfully shows that he is the party defendant in a certain cause now pending in said court {or "in the court of the county of ,")to wit, a certain action of , wherein oneC. D. is plaintiff; that the said cause is set for trial in the said court on {or " will probably come on for trial in the said court on or about ") the day of, etc. ; that one E. F. is a material witness for the petitioner, in the said cause; and that the said E. F. is now a prisoner in the custody of G. H., sheriff of the said county of , and therefore the petitioner will be unable to produce the said E. F. as a witness, on the trial of the said cause by oi'dinary process of law. Wherefore the petitioner prays a writ of habeas corpus ad testificandum, according to the form of the statute in such ca.se made and provided, to be directed to the said G. H., and commanding him that he have the said E. F. before the said court at, etc., on, etc., to testify on behalf of the petitioner, etc. A. B. {An affidavit may he added as in No. 282, ante.) The statute also provides for a haheas corpus for the purpose of bringing in a prisoner to be surrendered in discharge of bail, and also for the purpose of discharging a person committed for a contempt in not performing an order or decree for the pay- iRev. Stat. (1893), 191; 1 Starr & Curtis, 360; Rev. Stat. (1895), 193; Bruner v. Ingraham, 1 Scam. 556. HABEAS CORPUS. 515 ment of money, where such person is unable to comply with the order or decree, or is unable to endure the confinement.' Allowing and issuing of the writ.— If issued by the court, the writ is to be under the seal of the court; if by a judge, under his hand.* "Where the writ is allowed by the master, his order, to be indorsed on the application, may be as follows : No. 287. Master's order for a habeas corpus, in absence of judge. In the absence of the honorable J. K., judge of this judicial circuit, from this county (and circuit), I do hereby order that a habeas corpus issue on the within application, returnable forthwith into the circuit court of the county of (or " before the said judge, at, etc.," or, if the judge is absent from the circuit, " before the honorable L. M., judge of the judicial circuit, at, etc.") {Date.) O. P., Master in Chancery for the county of . To R. S.. Clerk, etc. On filing the application, so indorsed, with the clerk of the court whereof the person allowing the writ is master, such clerk will immediately issue the writ.^ No. 288. General form of a writ of habeas corpus. The People of the State of Illinois: To the sheriflf of the county (or to A. B., as the case may be). You are hereby commanded to have the body of C. D., by you imprisoned and detained, as it is said, together with the time and cause of imprison- ment and detention, by whatever name said C. D. shall be called or charged before the court of county (or before E. F., judge of, etc.), at, etc.. immediately after being served with this writ, to be dealt with according to law; and have you then and there this writ, with a return thereon of your doings in the premises. Indorsement. — To the intent that no officer, or other per- son to whom such writ is directed, may pretend ignorance thereof, every such writ shall be indorsed with these words : " ^y the Habeas Corpus Act." * Service of writ. — " The haheas corpus may be served by the sheriff, coroner, or any constable or other person appointed for ' 1 Starr & Curtis 1260; Rev. Stat. » See People v. Toum. 3 Scam. 19- (1895) 850. "Rev. Stat. (1893) 798; Rev. Stat. ■' 1 Starr & Curtis 1254: Rev. Stat. (1895) 847. (1893) 798; Rev. Stat. (1895) 847. 516 HABEAS COKPUS. that purpose by the court or judge by whom it is issued or al- lowed. If served by a person not an officer, he shall have the same power, and be liable to the same penalty for non-perform- ance of his duty as though he was sheriff. " Service shall be made by leaving a copy of the original writ with the person to whom it is directed, or with any of his under officers who may be at the place Avhere the prisoner is detained; or if he can not be found, or has not the person im- prisoned or restrained in custody, the service may be made upon any person who has him in custody, with the same effect as though he had been made a defendant therein." ' Expenses, etc. — "When the person confined or restrained is in the custody of a civil officer, the court or judge granting the writ shall certify thereon the sura to be paid for the ex- pense of bringing him from the place of imprisonment, not exceeding ten cents per mile, and the officer shall not be bound to obey it unless the sum so certified is paid or tendered to him, and security is given to pay the charges of carrying him back, if he should be remanded : Pi^ovided^ that if such court or judge shall be satisfied that the person so confined or re- strained is a poor person, and unable to pay such expenses, then the court or judge shall so certify on such writ, and in such case no tender or payment of expenses need be made or security given as aforesaid, but the officer shall be bound to obey such writ." Return of writ. — " The officer or person upon whom such writ is served, shall state in his return, plainly and unequivo- cally : 1. Whether he has or has not the party in his custody or control, or under his restraint, and if he has not, whether he has had the party in his custody or control or under his re- straint at any and what time prior or subsequent to the. date of the writ. 2. If he has the party in his custody or control, or under his restraint, the authorit}'^ and true cause of such imprison- ment or restraint, setting forth the same at large. 3. If the party is detained by virtue of any writ, warrant »Rev. Stat. (1893), 798; Rev. -Stat. (1895), 847. HABEAS COUPUS. 517 or other written authority, a copy thereof shall be annexed to the return, and the original shall be produced and exhibited on the return of the writ to the court or judge before whom the same is returnable. 4. If the person upon whom the writ is served has had the party in his custody or control, or under his restraint, at any time prior or subsequent to the date of the writ, but has trans- ferred such custody or restraint to another, the return shall state particularly to whom, at what time, for what cause and by what authority such transfer took place. The return shall be signed by the person making the same, and except where such person is a sworn public officer and makes the return in his official capacity, it shall be verified by oath." ' Precedence siven to the writ. — The authority of all other writs must yield to the authority of the writ of habeas corpus. Therefore, from the moment the sheriff receives such writ, the custody of the petiti Assutnj)sit. C. D. ) The clerk of the said court will issue a scire facias against the said C. D., to revive the judgment rendered in this behalf against him in the said court, in the term, 18 — ; such writ to be directed to the sheriff of the county of , and returnable to the next term of the said court. {Date.) E. F., Attorney for Plaintiff. ToL. M., Clerk, etc. No. 297. Scire facias to revive a judgment. The People of the State of Illinois, to the sheriff of the county of , greethig : Whereas A. B. heretofore, in our court of the said county of , in the term thereof, in the year 18 — , to wit, on, etc., in the same year, by the consideration and judgment of the same court recovered against C. D., in a certain action of , the sum of dollars, damages, {or " the sum of dollars, debt, and the further sum of dollars, damages for the detention thereof," according to the record,) and also the costs of the said A. B. in that behalf, taxed at the sum of dollars, whereof the said C, D. was convicted, .as appears to us of record : And now on the behalf of the said A. B. we have been informed, that although judgment was given as aforesaid, yet execution of the damages {or " debt, damages "') and costs aforesaid still remains to be made to him, wherefore the said A. B. has be- sought us to provide him a pi'oper remedy in this behalf. We do therefore command you, that you make known to the said C. D. that he be before our said court, at the court house in , in the county aforesaid, on the Monday of next, to show cause, if any he have, why the said A. B. ought not to have execution against him, the said C. D., of the dam- ages {or "debt, damages") and costs aforesaid, according to the form and effect of the said recovery : And have you there then this writ. Witness, R. S., clerk of our said court, and the seal thereof, at aforesaid, this day of , in tlie year 18 — . [L. s.] R. S. See a scire facias against heirs and terre-tenants, 35 111. 377. It is not necessary that a scire Jacias to revive a judgment should show that no execution issued within one year after the rendition of the judgment.' Where a judgment has been obtained by the people, it is ^AlUn V. People, 46 111. 372. SCIRE FACIAS. 527 n©t essential that execution should issue within the year, in order to authorize the issuing of execution after ^ that time. But a scir^e facias will lie on such judgment, notwithstanding execution could issue thereon at the same time.' No. 298. Scire facias to revive a judgment in ejectment. The People of the State of Illinois, to the sheriff of the county of greeting : Whereas, A. B. , heretofore, in our court of said county of , in the term thereof, in the year 18 — , to wit, on, etc., in the same year, by the consideration and judgment of the same court recovered against C. D. in a certain action of ejectment, a judgment for the following piece or parcel of land, to wit, {here describe) which said court found that said C. D. was guilty of unlawfully withholding; and whereas the said court further found (*) the fee simple title to said premises to be in the said A. B., the plaintiff in said action; and whereas the said court therefore ordered that the said A. B. , plaintiff, have a writ of possession (*) for said described prem- ises, and that the said A. B. have judgment against the said C. D. for his costs in that behalf, taxed at the sum of dollars, whereof the said C. D. stands convicted, as appears to us of record; and now on behalf of said A. B. we have been informed that the said judgment remains in full force and effect, imreversed and unsatisfied (**) and that no writ of possession has ever issued in conformity to the said order of court therein, and although said judgment was given as aforesaid, yet no execution upon said judgment or costs hath ever been made, and that execution of said judgment and costs remains to be made to the said A. B., plaintiff; wherefore the said A. B. has besought us to provide him a proper remedy in this behalf. We do therefore command you that you make known to the said C. D. that he be before our said court, at the court house in in the countj^ afore- said, on the Monday of next, to show cause, if any he have, why the said A. B. ought not have execution made to him of his said judgment, according to the form and effect of the said recovery; and have you then and there this writ, > Witness, etc., R. B., Clerk. If the recovery was had for a term of years only, omit all between the asterisks in above precedent and insert, in lieu thereof, the following, viz.: " The plaintiff, the said A. B., to he entitled to his term then a7id yet to come, of and in the said above described preynises, beginning on. etc., and ending on, etc., and the said court therefore ordered that the said A. B., plaintiff, have a. ivrit of possession of his term yet to come." And insert, also at (**), the following : " that said title, iti said judgment ntentioned, has not yet expired.'^ , » People V. Peck, 4 Scam. 404; Al- » Albin v. People, 43 111. Z'2. bin V. People, 46 111. 372. 528 SCIEE FACIAS. Where the allegations of a scire facias to revive a judgment in ejectment affirmatively show that the judgment sought to be revived, not only adjudged the plaintiff to be entitled to the possession of the premises, but also to be the owner thereof in fee simple; that the recovery was not for a term of years, but for the entire estate; that such judgment remained unexecuted, and that execution therein remained to be made to the plaintiff, the same will be sufficient to entitle the plaint- iff to judgment of revival. The plaintiff need not allege that he has not parted with his title by conveyance. The scire facias need not aver in terms that the title of the plaintiff has not expired, where the judgment recites that the recovery was for the fee simple title, and not for a term of years.' The defendant can not avail himself of an outstanding title in a third person. The only defense on the trial of a scire facias on a judgment is a denial of the existence of the judg- ment, or proof of a subsequent satisfaction or discharge thereof. Whether there is an outstanding paramount title in some third person is immaterial." Foreclosure of mortgage. — It is provided in section 17 of the chapter entitled " Mortgages," that " If default be made in the payment of any sum of money secured b}'^ mortgage on lands and tenements, duly executed and recorded, and if the payment be by installments, and the last shall have become due, it shall be lawful for the mort- gagee, his assigns, or his or their executors or administrators, to sue out a writ of scire facias from the clerk's office of the circuit court of the county in which the said mortgaged prem- ises may be situated, or any part thereof, directed to the sheriff or other proper officer of any county or counties where the defendants, or any of them, may reside or be found, re- quiring him to make known to the mortgagor, or, if he be dead, to his heirs, executors or administrators, to show cause, if any they have, why judgment should not be rendered for such sum of money as may be due by virtue of said mort- gage; and upon the appearance of the party named as a de- 1 Wilson V. Trustees of Schools, ^ Smith v. Stevens, 133 DL 183. 144 111. 29. SCIEE FACIAS. 529 fendant in said writ of scire fac'ma the court may proceed to judgment as in other cases, but if said scire facias be returned nihil, or that the defendant is not found, an alias scire facias may be issued." ' Prior to the amendment of the section quoted by the re- vision of 1874, an assignee of a mortgage could not have a scire facias thereon in his own name; " but the assignment of a note and mortgage did not prevent a foreclosure by this proceeding in the name of the mortgagee for the use of the assignee, the proceedings being upon the record of the mort- gage, and not upon the note. Jurisdiction of foreclosure by a scire facias rests upon mort- gage duly executed and recorded; and is not impaired by a destruction of the record.' The relation of a mortgagor and mortgagee is not terminated by such proceedings until the time of redemption expires and the foreclosure is complete; nor can the purchaser maintain a possessory action until the expiration of the period for redemption.* As has been seen from the section quoted, the remedy by scire facias to foreclose a mortgage, is now given by statute to the "mortgagee, his assigns, his or their executors or admin- istrators." It is not essential to the right of an assignee of the mortgage to foreclose by this remedy that the assignment should be acknowledged,' The wife of the mortgagor, if she joined in the mortgage, should be made a party defendant, in order to bar equit}^ of re- demption and right of dower.' The proceeding by scire facias for a foreclosure is a proceeding at law, and is governed by the practice of courts of law, and not of courts of equity, None but the mortgagor, or, in case of his death, his heirs, executors or administrators, should be made parties defendant. Assignees in bankruptcy, subsequent purchasers and mortgagees, etc., are '2 Starr & Curtis 1642; Rev. Stat. "^ Alvis v. Morrison, 63 111. 181. (1893) 989; Rev, Stat. (1895) 1056, * Rockivell \ . Servant, 63 111. 424. ^Olds V. Ciimmings, 31 111. 188; ^ Honore v. Wilshire, 109 111. 103; Camp V. Sviall, 44 111. 37; Winchell see Ogle v. Turpin, 102 111. 148. V. Edwards, 57 111. 45; Bourland v. « Camp v. Small, 44 111, 37; Dayw Kipp, 55 111. 376. Cushman, 1 Scam. 475. 34 530 SCIRE FACIAS. bound to take notice of the proceeding, and failing to do so, their rights are not protected.' Two returns of nihil are in general equivalent to a service;^ and this rule applies in scire facias on a mortgage.* This remedy applies only to mortgages made to secure the payment of money. It does not extend to mortgages made to secure the delivery of specific articles of property, or the performance of other acts." The proceeding is in rem^ to enforce a specific lien, and is not for the purpose of obtaining a judgment in personam. The judgment only directs the sale of the mortgaged property, to satisfy the debt and costs, and is not a lien on any other property.* No. 299. Scire facias on a mortgage.^ The People of the State of IlUnois, to the sheriff of the county of , greeting : Whereas C. D. and E. D., his wife, on, etc., by their deed of that date, duly executed, did grant, bargain, sell and convey to A. B., his heire and assigns, a certain parcel of land, situate in tlie county aforesaid, to wit, {here describe the land) ; to have and to hold the same, with its appurte- nances, unto him, the said A. B., his heirs and assigns, forever; and did thereby also release unto him and his heirs and assigns all right of home- stead of thera, the said C. D. and E. D., in tlie said parcel of land; yet upon the condition that if the said C. D., his heirs, executors, or administrators, should well and truly pay, or cause to be paid, to the said A. B., his heirs, executors, administrators, or assigns, the sum of dollars, after the date aforesaid, with interest thereon at the rate of per centum per annum, according to the tenor and effect of a certain promissory note of the said C. D., of tlie date first afoi'esaid, then the said deed should be void, otherwise should remain in full force; as by the record of the said deed, remaining in the office of our recorder of deeds for the county afore- said (in which office the said deed was on, etc., duly recorded), more fully appears. And whereas we are informed by the said A. B., that default has been made in the payment of the said sum of money, with the interest ^CMckeringY. Failes, 26 111.507; 'Woodbury v, Manlove, 14 III, Bank v. Wilson, 4 Gilm, 57. 213; Carpenter v. Mooers, 26 111. 162; ^ Sans y. People, ^GWm.Z'il; Best- see Osgood v. Stevens, 25 111, 89; mer v. People, 15 111. 440; Choats v. White v. Watkins, 23 111. 480. People, 19 111. 63; Chickering v. ^ See Woodbury x . Manlove, lilW. Failes, 26 111. 507; see Lytle v. People, 213; Mitchelltree v. Steward, 2 Scam . 47 111. 422. 18; McFadden v. Fortier, 20 111. ^ Cox V. McFerron, Breese 28. 509. * McCumher v. Gilman, 13 111. 543. SCIRE FACIAS. 531 thereof, as aforesaid, and that the same, with such interest, is in arrear and unpaid, contrary to the form and effect of the said condition of the deed aforesaid: (*) We do therefore, according to the form of the statute in such case made and provided, command you, that you make known to the said C. D. and E. D. that they be before our circuit court, at the court house in , in the county aforesaid, on the Monday of next, to show cause, if any they have, why judgment should not be rendered against them in favor of the said A. B., for such sum of money as may be due by vii-tue of the said deed : And have you there then this writ. Witness, R. S. , clerk of our said court, and the seal thereof, at afore- said, this day of , in the year 18 — . [L. s.] R. s. If the scire facias is against the heirs, etc., of the mortgao-or, insert, at the asterisk in the above precedent, an averment like the following : " And whereas we are further informed by the said A. B., that afterwards, to wit, on, etc., the said C. D. departed this life, intestate, leaving him survivino- the said E. D., his widow, and F. D. and G. D. his children and heirs at law; and that O. S. was thereupon, by the county court of the county aforesaid, appointed administrator of the estate of the said deceased." The writ will then proceed to command the sheriff to " make known to the said E. D., F. D., G. D., and O. S.," etc. It is sufficient to set out a copy of the mortgage, with the certificates of acknowledgment and recording annexed, with- out any direct allegation that the mortgage was acknowl- edged or recorded.' If the mortgage debt is pavable by installments, the writ must show that the last instalhnent has become due.^ And it must show a breach, by non-payment of the debt, as well as every other substantial matter required in a declaration. If it fails in any of these respects, it is obnox- ious to a demurrer.^ No. 300. Another form of scire facias on a mortgage. The People of the State of Illinois, to the sheriff of the countj- of greeting: Whereas on, etc., a certain deed of mortgage was duly recorded in the ' Mitchelltree v. Steward, 2 Scam. ' Osgood v. Stevens, 25 111. 89; see 18. Miichelltreev. Steicard, 2 Scam. 18; ' Day V. Cushman, 1 Scam. 475; Woodbwy v. Manlove, 14 111. 213. Osgood V, Stevens, 25 111. 89; see Mitchelltree v. Steward, 2 Scam. 18. 532 SCIRE FACIAS. office of our recorder of deeds for the county aforesaid, which said deed, as appears by us to the record thereof, remaining in the said office, is in these words and figures, that is to say: (Here insert a copy of the mortgage.) And whereas we are informed by the said A. B. that default lias been made in the payment of the sum of money and interest in the said deed mentioned, and that the same are in arrear and unpaid, contrary to the form and effect of the said deed. We do therefore, according to the form of the statute in such case made and provided, command yoii {as in the last precedent to the end). Oil recoffiiizaiices. — The statute of Illinois provides that " in all cases of bail for the appearance of any person or per- sons charged with any criminal offense, the security or any of them may, at any time before default upon the bond or recog- nizance, surrender the principal in their exoneration or the principal may surrender himself to the pro])er officer. " When any person who is accused of any criminal offense shall give bail for his appearance, and such person does not appear in accordance with the terms of the recognizance, the court shall declare such recognizance forfeited, and the clerk of the court shall thereupon issue a scire facias against such person and his sureties, returnable on the first day of the next term of the court, to show cause why such judgment should not be rendered against such person and his sureties for the amount of the recognizance, which scire facias shall be served bv the sheriff of the county where the court is held, upon such person and his sureties, by reading the same to the defendants named in such scire facias, at least five days before the first day of the term to Avhich the same is returnable, and, in case the person aforesaid can not be found by the sheriff, he shall make return of that fact to the court. The court shall there- upon enter judgment by default against the defendants for the amount of the recognizance, unless defendant shallappear and defend such cause; and if the defendant shall appear and interpose a defense, then the case shall be tried in the same manner as other cases of a like nature, after any such recog- nizance shall be declared forfeited as aforesaid. Before judg- ment the court may, in its discretion, set aside such forfeiture, upon the accused being brought or coming into court, and showino- to the court, by affidavit, that he was unable to ap- pear in court according to the terms of the recognizance, by SCIRE FACIAS. 533 reason of sickness or some other cause which shall satisfy the court that the accused had not been guilty of any laches or negligence : Provided^ that no such forfeiture of a recogni- zance shall be set aside until the accused shall pay the costs of such recognizance." ' An offer to pay costs is not a literal compliance with the statute requiring the accused to pay all costs made on the re- cognizance before a default is set aside; and even if the court has the power to permit the costs to be paid after the entry of a motion to set aside the forfeiture, the statute has made the setting aside the same discretionary. ^ A recognizance, conditioned that the principal shall be and appear before the court, etc., on the first day of the term thereof to be holden at, etc., to answer unto a certain crime (stating it,) and abide the order of the court, and not depart without leave, requires the accused to appear on the first day of the next term, and from day to day during the term, and from term to term, and f rOm day to day of each term, until the final sentence or order of the court, to answer the specified charge. And a forfeiture may be declared, even though two terms may have elapsed from the time to which the principal was required to appear.^ No. 301. Scire facias on a recognizance made in open court, after indict- ment found. The People of the State of Illinois, to the sheriff of the county of , gi'eeting : Whereas heretofore, in the term of our court of the said county of , in the year 18 — , C D., J. K. and L. IVL personally came into our said court, and then and there jointly and sevex'ally acknowledged them- selves to be indebted to us in the sum of dollars, to be levied of their respective goods and chattels, lands and tenements, as the law directs; yet upon the condition that if the said C. D, should personally appeal- before our said court, on the first day of the then next term thereof, to answer to a certain indictment therein pending against him for , and should not depart our said court without leave, and should abide the order of tlie same 'Starr & Curtis 847; Rev, Stat. Bradw. 380; Reese v. People, 11 (1893) 525; Rev. Stat. (1895) 568; see Bradw. 346. Lane v. People, 76 111. 300; Welbom ^ Gallagher v. People, 88 111. 335; v. People, 76 111. 516; McElwee v. Peo- People v. McFarland, 9 Bradw. 275. pZe,. 77 111. 493; Adamsv. People, 12 '^ Gallagher v. People, 88 IlL 335. 534 SCIKE FACIAS. in the premises, then the said recognizance was to be void, and otherwise to remain in full force, as by the record of the said recognizance, remaining in our said court, more fuU}'^ appears. And whereas afterward, in the term of our said court, in the sa?«e year [being the term next after the mak- ing of the said recognizance as aforesaid], such proceedings were thereupon had in our said court, in that behalf, that the said C. D. was three times solemnly called in open court, yet he came not, but made default; and the said J. K. and L. M. were each then and there likewise three times solemnly called, and required to bi-ing into court the body of the said C. D., yet they, the said J. K. and L. M. also made default, and failed to bring into court the body of the said C. D. ; and thereupon it was then and there considered and adjvidged by our said court that the said recognizance should be tak^en for and declared forfeited, and that a writ of scire facias should issue in that behalf against the said C. D., J. K. and L. M., as by the record and proceedings thereof, remaining in our said court, more fully appears. We therefore command j'ou, that you make known to the said C. D. , J. K. and L. M. that they be before our said court, at the court house in , in the said county of , on the Monday of next, to show cause, if any they have, why execution should not be awarded against them upon the said recognizance, so declared forfeited as aforesaid, for the sum of money therein mentioned. And have you there then this writ. Witness, R. S. , clerk of our said court, and the seal thereof, at afore- said, this day of , in the year 18 — . [L. s.] R. S. See the cases of Vancil v. The Peojyle^ 16 111. 120, scire facias on a recognizance taken by the sheriff; Van Blaricum v. The People^ 22 III. 86, scire facias on a recognizance taken by a sheriff on the granting of a supersedeas; and Gingrich v. The People^ 34 111. 448, scire facias on recognizance taken by a jus- tice of the peace. Two returns of nihil^ in scire facias on a recognizance, are equivalent to actual service.' Before the passage of the statute of Illinois (act of 1869) above quoted, a judgment could not properly be rendered against both the principal and surety, where the former had not been served, unless there had been two returns of nihil^ or his appearance had been entered.^ It is indispensable to a legal default and declaration of for- ' Sans V. People, 3 Gilm. 327; * Ujtle v. People, 47 111. 422; Pettij Besimer v. Peo2)le. 15 111. 440; Choat v. People, 118 111. 148. V. People, 19 111. 63; Chickering v. Failes, 26 111. 507. SCIRE FACIAS. 535 feiture of a recognizance, that the principal should have been regularly called, and upon such call failed to appear.' A. wvii oi scire fiicias upon a recognizance should clearly show before what court the recognizance was entered into, and for what offense the principal in the recognizance was in- dicted; also, that a judgment of forfeiture was entered- prior to the commencement of the proceeding for judgment/ It must be sufficient on its face to entitle the People to recover the amount of the recognizance, or it will be obnoxious to a demurrer,* An indictment need not be set out in such writ,-^ and it is not necessary to aver or prove that one was ever found/ The recognizance of record and judgment of forfeiture are competent and sufficient evidence, under appropriate aver- ments in the scire facias, to authorize judgment of execution according to the form, force and effect of the recognizance.' The recognizance may be stated according to its legal effect, or it may be set out verlKitim^ leaving the court to de- cide on its effect.* Where the recognizance was entered into before a justice of the peace, or other officer, and not in open court, the writ should show, by proper recitals, that the recognizance legally became a matter of record.' A scire facias on a recognizance to appear from day to day, until discharged, to answer, etc., is good, although it does not show that any indictment was found against the princijial.'" The writ should issue against the principal and the sureties, and not against the sureties alone." Where a scire facias recites that the persons before whom the recognizance was entered into were justices of the peace for the county in which it was taken, the court will presume, ' Broivn v. People, 24 111. App. 72. ' Ibid. 2 Thomas v. People, 13 111. 696: ^ Lawrence v. People, 17 111. 172. see Bacon v. People, 14 111. 312; » Shadley v. People, 17 III. 252; Kennedy v. People, 15 111. 418: Con- see McFarland v. People, 13 111. 9. ner V. Peop?e, 20 111. 381; Eubank w. ^^ Wheeler v. Peojjle, 39 111. 430; People, 50 III Ad6; Petty v. People, People v. O'Brien, 41 III. 303; 118 111. 148. O'Brien v. Peojjle, 41 111. 456; but " Brown v. People, 24 111. App. 72, see Piercy v. People, 10 Bradw. 219. * Wood V. People, 16 111. 171. » Alley v. Peojile, 1 Gilm. 109; ^ Chumasero -v. Peojjle, 18 III. 405. Banta v. People, 53 111. 434; see « Kepley v. People, 123 111. 367. Chuniasero v. People, 18 111. 405, 536 SCIKE FACIAS. on demurrer, that the charge was regularly preferred and examined, and the proper adjudication made by the justices, before the recognizance was acknowledged.' Defenses to scire facias. — A scire facias is considered, in Illinois, both *as a process and a declaration; and if defective, the defendant may demur,' or move to quash the writ.^ The defendant may plead nul tiel record.yfhich puts in issue the existence of the record upon which the proceeding is based; and under this plea he may take advantage of any variance between the record produced in evidence and the one recited in the writ.* See the form of this plea in debt, antSy No. 494, and the remarks thereunder. In a plea in bar to a scire facias (except on a mortgage), in- stead of actio7iem nan, etc., the defendant says that the plaint- itf ought not to have execution against him, etc.; and the plea concludes with a prayer of judgment if the plaintiff ought to have execution against him, etc. To a scire facias on a judgment, nothing can be pleaded in bar which might have been pleaded to the original action,'' nor anything contrar\^ to the title on which the recovery was obtained, or which shows only that the judgment was errone- ous or voidable; * nor can the defendant plead the pendency of a writ of error on the same judgment.' To a scire faci-os on a mortgage, the defendant can not plead usury," or a total or partial failure of consideration or a want of consideration,* or fraud, as it is said,'" or a set-off." 1 McFarland v. People, 13 111. 9; R. R. Co. v. Marshall, 85 Penn. St. see Pate v. People, 15 111. 223. 187. ^Marshall v. Maury, 1 Scam. 231; ^ Com. Dig. Plead. 3 L. 10. McFaddenv. Fortier, 20 1\\. 50Q. '' 4 Mod. 247; see contra. Show. 3 McFadden v. For tier, 20111. 509; 86; Skin. 590. see Reddick v. Cloud, 2 GUm. 670; » Camp v. Sviall, 44 111. 37; Car- Ferris V. Croiv, 5 Gilm. 96. penter v. Mooers, 26 111. 162. * Compton V. People, 86 111. 176; ^ Hallx. B7jrne,lScam.U0;Wood- Farris v. People, 58 111. 26; Slaten v. bury v. Manlove, 14 111. 213; White People, 21 111. 28; Mooney v. People, v. Watkins, 23 111. 426; Fitzgerald v. 81 111. 134; Allen y. People, 29 lU. Forfestal, 48 111. 228. App. 555. "> White v. Watkins, 23 111. 426; ^ Cooke y. Jones, Cowp. 728; Wil- see Dorr v. Munsell, 13 Johns. 430; cox V. Mills, 4 Masa 218; 1 Chit. PI. Franchot v. Leach. 5 Cow. 506. 427; McFarland v. h^win, 8 Jolms. "• Woodbury \. Manlove, 14 111. 313. 77; Oreen v. Ovington, 16 Johns. 55; SCIRE FACIAS. 537 So a plea alleging the assignment of the note and mortgage to a third person, before the issuing- of the writ, is not a good plea in bar.' "The mortgage, being recorded, is treated as a record, importing absolute verity, against which nothing in the shape of a defense can be averred except that it was void ah initio, and never a valid lien, or that it has been discharged or released." ^ A scire facias on a mortgage is not an action.^ The plea of non est factum is not a good plea to a scire facias, which is always founded on a record.* It may be shown, in defense to a scire facias on a recoo-- nizance, that the performance of the condition was rendered impossible by the act of God, or of the law, or of the cog- nizee.' But where the sureties in a recognizance pleaded (1) that the principal, after his discharge on bail, and before the term of the court at which he was bound to appear, without their knowledge or consent, enlisted as a private in the military service of the United States, and Avas ordered into another state, where he still remained, under military authority, not at liberty to suirender himself, nor could his sureties arrest and surrender him, in satisfaction of the re- cognizance, and that they could not procure his custody bv habeas corpiis or otherwise; and (2) that at the time of the taking of the forfeiture, and for a long time before, the prin- cipal was, and at all times since has been, in another state, and was sick and disabled, insomuch that he could not be re- moved, or brought and surrendered to the court or any officer by his sureties, without great danger of the loss of his life, the pleas were regarded as not presenting any good defense. It was held, however, that the same matters, substantiallv, set forth in an affidavit, showed good grounds for a continu- ance." In another case, the surety pleaded that the principal was in the service of the United States at the time he was arrested; J^OMWandv. A'tpp. 55 III. 376. * Johnson v. People, 31 III. 469; ^ Carpenter V. Mooers, 26 111. 162; Camp v. Small, 44 111. 37. Wliitey. Watkins, 23 111. 426; Camp ^ Co. Lit. 206, a; Bac. Abr. Cond. V. Small, 44 111. 37. 2; Mather v. Peojjle, 12 111. 9; Piercy ^Carpenter v. Mooers, 26 111. 162; v. People, 10 Brad. 219; Hangsleben Woodbury v. Manlove, 14 111. 213. v. Peojtle, 89 111. 164. « Gingrich v. People, 34 III. 448. 538 SCIRE FACIAS. that after giving bail he was held to such service, and taken by the military authorities to another state, and was prevented by reason thereof from appearing according to the terms of the recognizance; and that by reason of his being so held by the military authorities in another state, it was out of the power of the surety to surrender him, and out of his power to appear, etc. It was held, on demurrer, that the plea was bad, and that the principle of vis major did not apply in such a case.' But in Illinois the death of the principal in any recognizance after forfeiture thereof, but before judgment rendered upon the scire facias issued thereon, may be pleaded by the sureties in discharge of such recognizance.^ A plea that the sureties in the recognizance surrendered their principal after the forfeit- ure thereof, and before the issuing of the scire facias thereon, is bad on demurrer.^ The plea of 7ml tiel recognizance is not a proper plea in scire facias upon a recognizance. The action being upon a record, is fully met by the plea of nul tiel record* ^ Hnggins v. People, 39 111.241; Starr & Curtis 841; People v. Gingrich v. People, 34 111. 448. Meacliam, 74 111. 292. « Mather v. Peojile, 12 111. 9; 1 ^ Hangsleben v. People, 89 111. 164. * Mooney v. People, 81 111. 134. CHAPTER XYI. MANDAMUS. Nature of writ. — A writ of mandamus is a command issu- ing in the name uf the sovereign authority, from a superior court having jurisdiction, and is directed to some person, cor- poration or inferior court, within the jurisdiction of such superior court, requiring him or them to do some particular thing therein specified which pertains to his or their office and duty, and which the superior court has previously deter- mined, or at least supposed to be consonant to right and justice.' Award of, discretionary with court. — It is not a writ of right but is only granted in the discretion of the court to which the application for it is made; and this discretion is not exercised in favor of the applicant unless some just and use- ful purpose may be answered by the writ."* Purpose of writ. — This .writ was introduced to prevent disorders from a failure of justice; and therefore it ought to be used upon all occasions where the law has established no specific remedy, and where in good justice and good govern- ment there ought to be one.* Prior to the revision of the statute it was held that it would i2Bouv. Law Diet. 100; Carpen- 178; Peojjle v. Solomon, 51 III. 39; ter V. Co. Com. 21 Pick. 258. People v. Curyea, 16 111. 547; Stri- ^ Peoi^le V. Davis, 93 111.133; Peo- gert v. Hamilton Co., 130 111. 538; jyle V. Hatch, 33 III. 9; t'eople v. People v. Tnuitees, 42 111. App. 60; Lieh, 85 111. 484; People v. R. R. North v. Trustees, 137 111. 296; Peo- Co., 55 111. 95; People v. I. C. R. R. pie v. McConnell, 146 111. 532. Co., 62 111. 510; R. R. Co. v. Co. ^Rex v. Barker, 3 Burr. 1267; Clerk, 74 111. 27; People v. Ketchum, Mention v. County, 10 Pick. 235; 72 111. 212; Com. Yorktown v. Peo- Johnson v. Randall, 7 Mass. 340; 2>le, 66 III. 339; Cristman v. Peck, People v. Thorp, 12 Wend. 183; 90 111. 150; Watch v. Pearson, 140 Kendall v. U. S., 12 Pet. 524; Rex v. III. 425; People v. Williams, 55 111. Directors, 12 East 429. (539) 540 MANDAMUS. ' be granted only where there was no other remedy,' or where it was doubtful whether there was another effectual remedy/ or where the court did not see its way clearly to one/ But it is provided by section 9 of the present statute on mandamus, that the proceeding shall not be dismissed, nor the writ denied because the petitioner may have another specific and sufficient remedy.* To entitle a party to the writ, he must show a clear legal right to have the act sought by it done, and in the manner and by the defendant sought to be coerced; that it is the de- fendant's imperative duty to perform the act; that such act is within the defendant's power to perform, and the case must be one in which the remedy would be effectual.* If the amount or the right involved presents an issue of fact, it must be referred to the arbitrament of a jury, or to the ordinary process of the courts." It will never be awarded in a doubtful case, or where it will prove barren or fruitless, or can not have a beneficial effect,' or can be of no substantial or practical benefit to the petitioner.* 1 School Board v. People, 20 111. 96 III. 503; Com. v. People, 99 111. 535; Peo20le v. Hatch, 33 111. 9; Tap. 587; People v. Johnson, 100 111. 537; on Mandamus 18; People v. Cover, Johnson v. People, 8 Bradw. 395; 50 111. 100; People v. Supervisors, 50 Sivigert v. Hamilton Co., 130 111. lU. 213; People v, Warlield, 20 111. 538; Watch Co. v. Pearson, 140 111. 159; People X. Solomon, 46 111. 415; 425; Dement v. Rokker, 126 111. 174; City of Ottawa V. People, ^%m.2Zd; R. R. Co. v. Suffem, 129 111. 274;- People V. Common Council, 53 111. People v. Getzendaner, 137 111. 234; 424; State Board v. People, 20 North v. Trustees, 137 111. 296; Peo- Bradw. 457. pie v. McConnell, 146 111. 532; Peo- 2 City of Ottaica v. People, 48 111. pie v. Ruby, 59 111. App. 653; Buck- 233; Ry. Co. v. People, 56 111. 365; ley v. Eisendrath, 58 111. App. 364; People V. Solomon, 51 111. 39. Railroad Co. v. People, 132 111. 559; 3 Tap. on Mandamus 19; People v. People v. Com., 118 111. 239. Cummings, 25 111. 325. « People v. Getzendaner, 137 111. 4 Starr & Curtis' An. Stat. 1588; 234. Rev. Stat. (1893) 958; Rev. Stat. (1895) ■> Swigert v. Hamilton Co., 130 111. 1020; Rtj. Co. V. People, 121 111. 483. 538; Watch Co. v. Pearson, 140 111. ^People V. R. R. Co., 55 111. 95; 425; Dement v. Rooker, 126 111. 174; People V. Lieb, So m. 4Si', People v. Brokaw v. Comm., 130 111. 482; Forquer, 1 Breese (Beecher) 104; North v. Trustees, 137 111. 296; Peo- People V. Glann, 70 111. 232; People pie v. Trustees, 42 111. App. 60. V. Crotty, 93 111. 180; Lavalle v. « Gormley v. Day, 114 111. 185; Aff Soucy, 96 111. 467; People v. Dulaney, v. Hop>kins, 57 111. App. 529. MANDAMUS. 541 The absence or want of any other adequate and specific remedy is not, of itself, sufficient to lay the foundation for interference by mandamus.^ A mandmmis is a proper remedy for the people, where a public officer refuses to perform a duty required of him by law.^ In all matters requiring the exercise of official judgment, resting in the sound discretion of the person to whom a dut}^ is confided by law, mo/ndamus will not lie, either to control the exercise of that discretion, or to determine the decision which shall be finally given/ While it is true that mandamus will not lie to compel the performance of acts or duties which necessarily call for the exercise of judgment on the part of the officer or body at whose hands their performance is required, yet if a discretionary power is exercised with manifest injustice, or such discretion is grossly abused, or exercised from selfish and unworthy mo- tives, the courts are not precluded from commanding its due and proper exercise. Such abuse of discretion will be con- trolled by mandamus.*' Where the object of the writ is the enforcement of a public right, the people are regarded as the real party, and the relator need not show that he has any legal interest in the result. It is enough that he is interested, as a citizen, in having the law executed and the right in question enforced.^ A mandamus can only be awarded to compel a person to perform an act when it is his duty to do so without it.° 1 People V. Garnett, 130 HI. 340. 111. 218; Sayer v. Gametf, 130 III. ^ People V. Johnson, 100 111. 537; 340; Peojjle v. Trustees, 43 111. App. Iroquois Co. V. Bates, 61 111. 490; 60. Peojjle V. Ry. Co., 118 111. 113; Hyde * State Board v. People, 123 111. Park V. Thatclier, 13 Bradw. 613; 227; Brokaic v. Com., 130 111. 482; People V. County, 125 111. 334. People v. Com., 158 111. 197; Peotone 3 Ottatca V. People, 48 111. 233; v. Adams, 61 111. App. 435. School Board v. People, 20 111. 526; ^People v. Board of Education, People V. Hilliard, 29 111. 413; St. 127 111. 613. C/aiV Co. V. PeopZe, 85 111. 396; Peo- ^People v. McKee, 5 Gilm. 243; pie V. 3IcKee, 5 Gilm. 242; Peo2jle v. People v. Hatch, 33 111. 9; People v. Com., 118 111. 239; People v. Com., Bd. of Sup., 45 111. 162; People v. 158 111. 197: North v. Trustees, 137 Salomon, 46I\\. S3d; Peajile v. Miuer, 111. 296; Hubbard v. Anthony, 129 46 111. 384; Ottawa v. People, 48 lU. 542 MANDAMUS. If it is doubtful whether the person has by law a right to do such act or not, the writ will be denied/ When it will lie. — Where one has been elected to a public office, a mandamus will be awarded to compel his predecessor to deliver possession of the office, but the right to the per- manent enjoyment of the office is not determined in such pro- ceeding.'^ Where a person is in possession of an office and exercising the duties thereof, with a color of right, mandamus will not be awarded. The proper remedy is quo warranto.^ Mandamus will lie to compel an officer to give notice of an election,* or to announce the result of an election; ' to compel a railway company to deliver grain to an elevator; " but not off its own line; ' to compel a board of supervisors to submit a proposition for subscription to a railway company to a vote of the people; * to compel a city to maintain, open and close bridge;' to compel a city to pay a judgment against it; '" to compel a city to open street; " or to repair streets; '* to com- pel the issue of a dram-shop license, wrongfully refused under a general ordinance; '^ to compel the issue of bonds; '* and to 233; County v. People, 85 111.396; '^People v. Trustees, 51 111. 149; School Trustees v. People, 71 111. 559; People v. Thompson, 155 111. 451. People V. Glann, 70 111. 333; Com. v. ° People v. Salomon, 46 111. 415. People, 66 111. 339; Klokke v. Stan- ^ Ry. Co. v. People, 56 111. 365. ley, 109 111. 193; People v. Ruby, 59 ''People v. R. R. Co., 55 111. 95; 111. App. 653. see Hoyt v. R. R. Co., 93 111. 601. ^People V. Forquer, Breese 104; '^ People v. Logan Co., 45 111. 163. People V. Hatch, 83 111. 9; People v. » Ottawa v. People, 48 111. 333. Head, 35 111. 335; Peoples. R. R. ^^ Olney v. Harvey, 50 111. 453; Co., 55 111. 95; People v. Cline, 63 Chicago v. Peojjle, 48 111. 416; C7ii- III. 394; People v. Supervisors, 88 cago v. Sansum, 87 111. 183; People 111. 303; Sujjervisors v. People, 16 v. Sup. Clark Co., 50 111. 313; Chi- Bradw. 305; People v. Comm., 118 cagro v. O'iJara, 60 111. 413; Cooky. 111. 839; Sup. Stark Co. v. People, Comm., 61 111. 115; Cairo v. Camp- 118 111. 459. bell, 116 111. 305; R. R. Co. v. St. ■2 Peojile V. Head, 25 111. 835; Dele- Anne, 101 111. 151; Cairo v. Everett, hanty v. Warner, 75 111. 185; see 107 111. 75; Bd. of Auditors v. Peo- People V. Kilduff, 15 111. 493. pie, 38 111. App. 339. ^People V. Trustees, 43 111. App. " Webster v. Chicago, 83 111. 458. 60; People v. Forquer, Breese 104; '^ People v. Mayor, 63 111. 207. People V. Matteson, 17 111. 167; Peo- ^^ People v, F. W. Co., 60111. App. pie V. Hilliard, 29 111. 413; see 395. chapter on Quo Warranto. ^* People v. Logan Co., 63 111. 374; MANDAMUS. 543 compel the stopping of railway trains at county seats; ' or to compel a corporation to keep its records at its principal office or place of business." Where city authorities, without legal excuse, refuse a permit to a railroad company to lay tracks across a street, mandamus, and not injunction, is the remedy.^ A clerk of a court may be compelled by mandamus to ad- minister an oath of office, and file an official bond, and deliver a commission to an officer, when it is by law the duty of such clerk so to do." And it is the proper proceeding against an ex-mayor, to compel him to deliver to the mayor-elect the seal, books, papers, etc., of the corporation.^ A jnandamus will lie to compel a circuit judge to sign a bill of exceptions, when a correct one is presented in apt time,® and where his decision is not final; '' to compel a judge to trv a person indicted for murder;* to compel a clerk to issue an execution;' or an officer to execute a deed which it is his duty to execute; '" or overseers of the poor to perform their duties in respect to contracts for supporting or rendering med- ical services to paupers; " or a county judge to make an order appointing appraisers to assess damages, when the law requires him to do so; '^ or commissioners of highways to perform their People V. Sup., 67 111. 62; R. R. Co. v. Ames, 74 111. 253; Peojile v. Pend- V. St. Anne, 101 111. 151; Peojyle v. ergast, 117 111. 588; Peoj^le v. Will- Bishop, 111 111. 124. iams, 91 III. 87; People v. Bhuks, '/. a R. R. Co. V. People, 143 10 Bradw. 17; People v. Anthony, III. 434. 129 111. 218; Haices v. People, 129 « Tow Co. V. Thomas, 60 111. App. 111. 123: People v. Haices, 25 111. 234. App. 326; People v. Donnelly, 59 111. 3 Ry. Co. V. Chicago, 159 111. 369. App. 413. •• Peojile V. Fletcher, 2 Scam. 482; ' People v. Smith, 51 111. 177. Ross V. People, 78 111. 375; Peojjle v. ^People v. Zane, 105 111. 662. Dulaney, 96 111. 503. » People v. Cloud, 2 Scam. 362; ^People V. Kilduff, 15 111. 492; Allenv. Conlon,2Brad\\. im. Taylor v. Henry, 2 Pick. 897; Tap. ^'^ Maxcy v. Clahaugh, 1 Gilm. 26; on Mand. 94. Klokke v. Stanley, 109 111. 192; People ^People V. Pearson, 3 Scam. 270; v. Ryan, 16 Bradw. 347. People V. Jamison, 40 111. 93; People " Rouse v. Peoria Co., 2 Gilm. 99. V. Pearson, 2 Scam. 189; Weather- '-See Graham v. People, 111 111. ford V. Wilson, 2 Scam, 253; Hulett 253; Peojjle v. Zane, 105 111. 662. 544 MANDAMUS. duties in regard to the making of roads, etc.;' or to compel school trustees to lay out a new school district.'' Will not lie. — It is not a proper proceeding to try the ques- tion of the location of a public highway, as between the pub- lic and the land holders over whose land such highway is to be laid out.' It will not be granted to compel the governor to return a legislative bill to the secretary of state; * nor to compel the state treasurer to pay a warrant in gold coin when there is no gold in the treasury belonging to the particular fund on which the warrant is drawn.* It does not lie to compel reinstatement of member of board of trade; * nor to compel the performance of an enjoined act; ' nor to compel the performance of an executory contract; * nor to compel the granting of a change of venue.^ It does not lie at the relation of a mere taxpayer to compel supervisors to comply with contract with third persons; '" nor to compel county officers to tevy tax to pay county orders; " nor to com- pel highway commissioners to open road before right of way has been obtained; " nor to compel judge to refer cause to a particular master.'^ Jurisdiction. — The supreme court,'* and the respective ap- pellate,'^ and the circuit courts of Illinois,'® have power to issue • See People v. Comm., 52 111. 498; ^People v. Beveridge, 37 111. 307; Cornm. v. People, 31 111. 97; Hall v. People v. SecVy of State, 58 111. 90; People, 57 III. 307; People v. Comin., Comm. v. Snyder, 15 Bradw. 645. 88 111. 141; Sheaf t v. People, 87 ^ People v . Board of Trade, 80 III 111. 189; Peoj^e v. Dent, 110 111. 134. 180; Supervisors v. People, 110 111. ■" Peoplex. HaTce, 81 111. 540. ^W; Klein v. People, 31 111. App. ^ People x . Dulaney , ^Q IW. mZ. 303; see People v. Com., 32 111. App. » People v. McRoherts, 100 111. 458. 164; Com. v. Jackson, Ql 111. App. ^^ People v. Vermilion Co., 47 111. 381; Com. v. Watts, 61 111. App. 634. 256. -School Directors v. School Di- " People v. Clark Co., 50111. 213. rectors, 135111. 464: Hainesv. People, '^ Com. v. People, 4 Brad. 391. 19 Bradw. 354; People v. Comm., " People v. Williams, 55 111. 178. 158 111. 197. " Sec. 2, Art. VI. Const. ^People V. Ciiryea, 16 111. 547; » 1 Starr & Curtis 703; Rev. Stat, see Comm. v. People, 31 111. 97; (1893) 433; Rev. Stat. (1895) 475. People V. Supervisors, 111 111. 527. '« 1 Starr & Curtis, 709; Rev. Stat. * People V. Yates, ^"40 111. 126; (1893)436; Rev. Stat. (1895) 478. People V. Bissell, 19 III. 239; People V. Cullom, 100 III. 472. MANDAMUS. 545 writs of mandamus; but the circuit courts can not issue writs to operate beyond the limits of their respective circuits.' The relator. — The question as to who shall be the relator (or petitioner) in an application for a mandamus depends upon the object to be attained by the writ. When the remedy is resorted to for the purpose of enforcing a private right the relator must be the person interested in having the rio-ht en- forced. The relator is considered the real party, and his right to the relief must clearly appear. But where the object is the enforcement of a public right, the people is regarded as the real party, and the relator need not show he has any legal in- terest in the result. It is enough that he is interested as a cit- izen, in having the laws executed, and the duty in question enforced.'' A petition for mandamtis by a private person must clearly show that the petitioner has a personal interest in the thin^ he seeks to compel to be done, and that he has been injured in his personal interests by the refusal of the defendants to per- form a duty imposed upon them by law.' A private person may apply for a mandamus to enforce a public duty not due to the government as such, without the intervention of the government law officer.* Proceedings — Summons. — Section 1 of chapter 87 of the revised statutes,* entitled Mandamus, is as follows : "■ That upon the filing of a petition for a mandamus, the clerk of the court shall issue a summons, in like form as other summons in suits at law, commanding the defendant to appear at the return term thereof, and show cause why a Avrit of mandamus should not be issued against him. If the summons is issued in vacation it shall be returnable on the first day of the next term; or in term time, it may be made returnable on any day of the term not less than five days after the date of the writ." » Welch V. People, 38 111. 20; see » North v. Board of Trustees, 137 Sandbury v. Papineau, 81 111. 446. 111. 296. 2 Pike Co. V. State, 11 111. 202; Ot- * North v. Board of Trustees, Ibid. tawa V. People, 48 111. 233; Thatcher. ^ Rev. Stat. (1893), 957; Rev. Stat. V. Peojile, 98 111. 635; People v. Su- (1895), 1020; Starr & Curtis An. Stat. pervisors, 47 111. 256: People v. Trus- 1584. tees, 86 III. 613; Glencoe v. People, 78 111. 382. 35 546 MANDAMUS. The tenth section of the Practice Act of 1872 is as follows : " It shall not be necessary hereafter, in any action of manda- mus or quo warranto^ to set out the cause of action in the writ, but it shall be sufficient to summon the defendant in a summons in the usual form, commanding the defendant to appear and answer the plaintiff in an action of mandamufi or quo warranto^ as the case may be, and the issues shall be made up by answering, pleading or demurring to the petition as in other cases." ' By the section above quoted, the issuing of an alternative writ of mandamus setting out the cause of action, is in effect dispensed with; and it is sufRcient '' to summon the defendant in a summons in the usual form;" and the issues are to be made up as in other cases." Before this statute, the petitioner was required to give notice of the application; and if the petitioner presented a proper case, prima facie, an alternative writ of mandamus issued, commanding the defendant to do the thing required, or to show cause to the court why it should not be done. This writ then served the same purpose as a declaration in an ordinary cause; and the defendant might move to quash it, or demur to it, or make a return denying the allegations thereof, or setting up new matter constituting a defense to the relator's claim;'^ and if the defen'dant neglected to make any answer or return to the alternative writ a peremptory writ would issue, without any rule against him to return the alternative writ.* Demand. — Where the duty sought to be enforced by rnanda^ mus is of a merely private nature, affecting only the right of the relator, a demand is necessary to lay the foundation for relief by mandamus. But if the duty, the performance of which is sought to be enforced, is a public duty, resting upon the respondents by virtue of their office, no such demand and refusal are necessary/ 1 Rev. Stat. (1893), 1072; 2 Starr & 9; People v. Kilduff, 15 111. 492; Cvistis, 1780; Rev. Stat. (1895), 1156. Peoiile v. Davis, 93 111. 133; Silver 2 Com V. Gibson, 7 Bradw. 231; v. PeopZe, 45 111. 224. People V. Glann, 70111. 232; PeopAe * People \. Pearson, 2 Scam. 187; V. Crabb, 156 111. 155. People v. Pearson, 3 Scam. 283. ^See Canal Trustees v. People, ^People, v. Bd. of Ed., 127 111. 12 111. 248; People v. Hatch, 33 111. 613; People v. ML Morris, 137 111. MANDAMUS. 547 The demand may be made by the petitioner, or by some one duly authorized, and personally upon those from whom the duty, etc., is required.' Requisites of petition. — It is a familiar rule of universal application to a proceeding by mandamus, that the petition must set forth distinctly all the material facts on which the re- lator relies, so that the same may be reversed or admitted. It must set forth a clear right on the part of the relator to have the act performed, and set forth every material fact, showing it is the duty and within the power of the persons sought to be coerced to do the act.^ The statute dispensing with the alternative writ does not relieve the relator from the common law requirement of show- ing a clear and indubitable right to the relief demanded.^ The petition under our practice takes the place of a declara- tion in ordinary actions at law and it is not necessary or even permissible to plead mere evidence.* Default, answer, etc. — Sec. 2 provides that " Every defend- ant who shall be served with summons shall be held to show cause by answer to the petition, or to demur thereto, on the return da}'- of the summons, or within such further time as may be allowed by the court; and in default thereof, judgment may be taken nildicit, and a iperem-ptory 7)ianda)m(s shall be allowed against the defendant." A default admits the facts averred in the petition to be true, but does not admit that such facts constitute a cause of action.^ 576; Peoi^le v. Hyde Park, 117 III. on Mand. 204.205; StorkCo. v. Peo- 462; Chicago v. Sansum, 87 111. 182; jjle, 110 111. 577; Klokke v. Stanley, Macoupin Co. v. People, 58 111. 191; 109 111. 192; People v. Trustees, 111 Com. V. Jackson, 61 111. App. 381. 111. 171; Lavallev. Saucy, 96 111.469; ' Tap. on Mandamus, 282. Peojylex. Hyde Park, 117 111. 462; ^ People V. Town of Mt. Morris, \i5 People \. Davis, 39 III. App. 162; III. 427; People v. Supennsors, 125 People v. Village, 48 111. App. 643; IW.ZZ^; Northw. Board of Trade, Vil People v. Soucy, 26 111. App. 505; 111. 296; Swigert v. Hamilton Co., People v. Rid^y, 59 111. App. 653. 130 111. 538; People v. Hatch, 33 111. ^ North v. Board of Trade, 137 111. 9; McCagg v. Mayor, 51 111. 17; 298. Allen V. Conlon, 2 Bradw. 166; Peo- * People v. Pavey, 151 111. 101. pie V. City Council, QQ 111.507; Su- "Madison Co. v. Smith, 95 111. pervisors v. People, 12 Bradw. 210; 328. People V. Glann, 70 111. 233; Moses 548 MANDAMUS. Time to plead. — Sec. 3 provides that " The court in which any such petition is filed may allow the petitioner or any de- fendant such convenient time to answer, plead, reply, rejoin or demur as shall be deemed just and equitable." False return. — Sec. 6 provides that " If damages are re- covered against the defendant, he shall not be liable to be sued in any other action or suit, as for making a false return." Judgment. — Sec. 5 provides that " If a verdict is found for the petitioner, or judgment is given for him upon demurrer, nil dicit, or for want of an answer or other pleading, he shall recover his damages and costs, and a peremptory w^rit of man- damus shall be granted. If judgment is given for defendant he shall recover his costs." A personal judgment against a public officer, in a proceed- ing by mandamus^ to compel the payment of money, is erro- neous.' Where a petition for a writ of mandamus asks the court to compel the performance of two different acts, it maybe issued for a part of the relief sought and denied in part.^ New defendants. — Sec. 7 provides that " If, after the filing of any such petition, any other person than the original de- fendant shall appear to the court to have or claim any right or interest in the subject-matter, such person may be made a defendant, and may be summoned, and appear and plead, answer and demur, in the same manner as if he had been made defendant to the original petition." This section does not give to any person who has or claims an interest in the subject- matter, the right to interplead and ask affirmative relief.^ Death of defendant. — Sec. 8 provides that " The death, resignation or removal from office, by lapse of time or other- wise, of any defendant, shall not have the effect to abate the suit, but his successor may be made a party thereto, and any peremptory writ may be directed against him." * Eifect of other remedy. — Sec. 9 provides that " The pro- ceedings for a w^rit of inandaTnus shall not be dismissed, nor ' Rjogers v. Feople, 68 III. 154. 111. 90; People v. lAppincott, 72 111. 2 Watch Co. V. Pearson, 140 111. 578. 423; People v. Secretary of State, 58 ^ Winstanley v. People, 92 111. 402. : People V. Fletcher, 3 Scam. 483. mandamus. 551 State of Illinois, ) County of . ) set. A. B. , the petitioner in the foregoing petition named, makes oath and says, that the several matters and things in the said petition contained are true, to the best of his knowledge, information and belief.' A. B. Subscribed and sworn, etc' See the substance of a petition for a mandamus to compel a municipal corporation to pay the amount of a judgment ob- tained against it, 50 111. 160; the substance of a petition for a mandamits to compel a county clerk to make out and deliver a certificate of election, 29 111. 413; a petition for a writ to compel a municipal corporation to complete the collection of a certain tax specially assessed, for the opening of a street, and to pay the damages awarded to the petitioner, 18 111, 276; to compel a county judge (under a special statute) to ascertain, with the mayor of a city, the pro]3ortion of taxes to be paid to the city, 25 111. 187; to compel the auditor to allow damages on protested bank bills, out of the proceeds of stocks sold on the winding up of a bank, 29 111. 48; to compel the judges of a court to receive the appearance of a defendant in an action, with or without entering of special bail, Moses on Mandamus, 237; to compel a city council to pass an order on the treasurer, Id. 239. DEFENSES. The Illinois practice act, as above mentioned, provides that the issues in "an action ot mandamus,^'' shall be made up " by answering, pleading or demurring to the petition, as in other cases." ' For demurrers, see Defenses to an Action, ante^ page 60. Pleadings. — Section 4 provides that " The petitioner may plead to or traverse all or any of the material facts contained in the answer, or demur thereto, to which the defendant shall reply, take issue or demur, and like proceeding shall be had as in other cases at law." Under our statute, a mandamus proceeding is an action at 1 Moses Mand. 238, 241; Ex parte 22 Starr & Curtis 1587; Rev. Stat. Taylor, 14 How. (U. S.) 3; People v. (1893) 957; Rev. Stat. (1895) 1020. Chicago, 25 111. 483. 552 MANDAMUS. law, and it is therefore governed by the same rules of plead- ing that are applicable to other actions at law.' Under the former practice, in proceedings for mandamus, the defendant's return to the alternative writ, corresponded to the answer to the petition under the present practice. Under the present statute, the petition takes the place of the alternative writ, and the defects therein are taken advantage of in the same manner as defects in the alternative writ were formerly reached.^ Substantial defects in a petition may be taken advantage of at any time before granting the peremptory writ. Where, un- der the former practice, the return to the alternative writ con^ troverted no facts alleged in the writ, the return was held to have the effect of a demurrer only." The answer of pleas must either deny the facts alleged in the petition, on which the claim of the relator is founded, or must set up other facts sufficient in law to defeat such claim, and these facts should be alleged positively and distinctly; .' and if instead of stating facts, the pleading merely sets out and refers to matters of evidence from which these facts are inferred, it is objectionable." All the material facts alleged in the petition, not denied by the pleadings of the respondent, will be taken as true;* and every intendment will be made against an answer or plea which is not responsive to the important allegations of fact contained in the petition.* It is not sufficient to aver conclusions of law.' If an answer ^Dement v. Rokker, 126 111. 174; v. Baker, 35 Barb. 105; Commoni- Super. V. People, 159 111. 242; Sttn/f wealth v. Commissioners, 37 Penn. V. People, 160 111. 561. St. 237. 2 People V. Crabb, 156 111. 155. « jj. jr. Co. v. Suffern, 129 111. 274; * People V. Mt. Morris, 145 111. 427. Supervisors Madison Co. v. Smith *R. R. Co. V. Suffern, 129111. 274; 95 111. 328; People v. Cm6&,156 111. People V. Horton, 46 111. App. 434; 155. Bank \. Canal Com., 10 Wend. 20; ■> People v. Kilduff, 15 111. 492; People V. Baker, 35 Barb. 105; Peo- People v. Supervisors, 51 111. 191; pie V. Crabb, 156 111. 155; Board v. People v. Horton, 46 111. App. 434; Nelson, 62 111. App. 541. Board v. Nelson, 62 111. App. 541. s Moses on Mandamus 210; Bank ^ People v. Sujiervisors, 51 111. 191. V. Canal Com., 10 YJ end. 20; Peoj^le MANDAMUS. 553 or plea is insufficient, the relator raa}'- demur; ' but a demurrer admits the truth of the matters set forth in the answer or plea.^ And when the answer shows the non-joinder of necessary parties plaintiff, a general demurrer thereto will be an admission of that fact.' Where there is no issue of fact made by the pleadings, upon which the determination of the right of the relator to the peremptory writ depends, the answer will be treated as a de- murrer to the petition, and the right to the writ will depend upon the sufficiency of the petition on its face/ On demurrer to a petition for a mandamus by a part of the respondents, the question as to the sufficiency of the service upon one not appearing can not arise. The only question pre- sented is the sufficiency of the petition.^ If the respondent answers to the merits after his demurrer to the form of the petition is overruled, he will thereby waive his grounds of demurrer, and can not urge the same objection to the petition after trial on the merits." A petition for mundamus is subject to be barred by statute of limitations.^ No. 303. Ansicer to a petition for a mandamus. In the Circuit Court. Term, 18—. The answer of C. D., defendant, to the petition of A. B., petitioner, for a vrrit of mandamus. The defendant, for answer to the said petition, says, that (here deny, or confess and avoid, or admit, some material allegation of the petition.) And the defendant further answewng, says, that Qiere deny, or confess and avoid, or admit, some other material allegation of the petition; and proceed in this manner until the whole petition is answered). Wherefore the defendant prays the judgment of the court here, whether the petitioner ought to have a writ of mandamus in this behalf; and that he, the defendant, may be hence dismissed, with liis costs, etc. CD. 1 ' Moses on Mand. 214. ' People v. Town of Mt. Morris, s Peojjle V. Supervisors, 47 111. 137 111. 576. 256; Dement v. Rokker, 126 111. 174. « I. C. R. R. Co. v. People, 143 III. 3 Deinent v. Rokker, 126 111. 174. 434. « People V. Mt. Morris, 145 111. 427. ' Super, v. Gordon, 82 111. 435; Meeuts v. Monroe, 62 111. App. 17. 554 MANDAMUS. Nn. 304. Plea to a petition for a mandamus. In the Circuit Court. Term, 18—. C. D. ^ The People/ etc., ex rel. \ Proceeding for mandamus. A. B. J And the defendant, by E. F., his attorney, comes and defends, etc., and says that the peti- tioner ought not to have a writ of mandamus agaist him, the defendant, in this behalf, because he says, that {here set forth the subject-matter of the defense. If the jjlea merely denies an allegation of the petition, conclude to the country. If it sets up neiv matter, conclude — "And this the defend- ant is ready to verify; wherefore he prays judgment if the petitioner ought to have a writ of mandamus against him in this behalf, etc.)" If the defendant desires to deny more than one material averment of the petition, or to set up several defenses, he should plead as many distinct pleas as there are matters of fact to be traversed, or defenses to be presented. CHAPTER XYIL CERTIORARI. Certiorari is the name of a judicial writ issued by a superior court, directed to one of an inferior jurisdiction, commanding the latter to certify and return to the former the record in the particular case.' I. THE COMMON LAW WRIT. The general rule seems to be, that this writ lies only to infe- rior tribunals and officers exercising judicial functions, and the act to be reviewed must be judicial in its nature, and not min- isterial or legislative. But it is not essential that the proceed- ings shall be strictly and technically "judicial,*' in the sense in which that word is used when applied to courts of justice. It is sufficient if they are qucm judicial.' A body, municipal or otherwise, to which power has been intrusted, does not exercise judicial action merely because it is vested with discretion, or may exercise judgment.^ The common law remedy of certiorari is adopted and in force in this state, and any court exercising general common law jurisdiction has, unless expressly forbidden to do so by the statute, an inherent authority to issue the writ.^ It is not a writ of right, but issues only under proper appli- cation and proper cause shown,^ and only when a court, upon ' Deer V. Comm., 109 111. 879; En- Brown v. Robertson, 123 HI, 631; nis V. Ennis, 110 111. 78; Comm. v Mayor v. Dean, 62 III. App. 41, Supervisors, 27 111. 140; Peterson v, ^ Mayor v. Dean, 62 111. App., and Lawrence, 20 Bradw. 631 ; Hamilton cases there cited. V. Haru-ood, 113 111. 154; Hyslop v. * Com. v. Griffin. 134 HI. 330. Mnc/i, 99 111, 171; Randolph \. Co. ^Com. v. Griffin, 134 111. 330; Board, 19 Bradw. 100. Chapman v. Com., 28 111. App. 17; 2Com. V. Griffin, 1.34 111. 330; Lees v. Dram, Cow., 24 111. App. 488. Wliittaker v. Village, 150 111, 195; (555) 556 CEKTIOEARI. investigation, and in the exercise of sound legal discretion, can see that justice requires it.' The only office which the common law writ of certiorari per- forms, is to cause the record of a proceeding to be certified from an inferior to a superior tribunal. Upon service of the writ it becomes the duty of the inferior tribunal, to which it is directed, to transmit a full and complete transcript of the record of the proceeding, of which complaint is made, to the court awarding the writ. Nothing outside of the record should be certified, but simply the record itself. Upon the return of the writ, the cause is tried solely upon the record; and allegations in the petition, of matters outside of the rec- ord, will not be considered. No trial can be had upon any issue of fact. When the return is sufficient, the court will determine, upon the record alone, whether the inferior tribunal had jurisdiction of the parties and of the subject-matter, and whether it had exceeded its jurisdiction, or otherwise pro- ceeded in violation of law." When the controversy involves the investigation of facts not appearing in the record, certiorari is not the proper remedy.' If the want of jurisdiction appears from the record, the proper judgment is that the record be quashed.* The writ will not lie merely because proceedings have been commenced before a tribunal that has no jurisdiction, when the tribunal has not taken final action on them, and has made no order which must, of itself, injuriously affect the party suino- out the writ, unless it shall be annulled by a court of re- view.^ The common law proceeding is wholly different from that 1 Board Srip. v. Magoon, 109 111. Com., 109 III. 379; McMamis v. 3Ic- 142; Trustees v. Sch. Dir., 88 111. 100; Donough, 107 111. 95; Com. v. Grif- People V. Trustees, 43 111. App. 650. fin, 134 111. 330; Blair v. Sennott, ^Com. V. Supervisors, 27 111. 140; 134 111. 78. Com. V. Harper, 38 111. 104; Ry. ^Smithy. Com. 150 111. 385; Ran- Co. V. Fell, 22 111. 333; Donahue v. decker v. Com., 61 III. App. 426. County, 100 111. 94; Peterson v. * Smith \. Com., \bOl\\.'&S^; Com. Lawrence, 20 Bradw. 631; Gerdes v. v. Griffin, 134 111. 330. Champion, 108 111. 137; Deer v. ^ Glennon v. Burton, 144 111. 551. PERTIORAKI. 557 under the statutory writ of cet^tiorari (in Illinois), as in the latter there is a trial de novo} The common law writ of certiorari may issue to all inferior tribunals, in cases where they have exceeded their jurisdic- tion, and in cases where they have proceeded illegally, and there is no appeal, or other mode of directly reviewing their proceedings. These are the only instances in which the pro- ceedings of such inferior tribunals can be reviewed on certio- rari? In case a court refuses to make a record of its proceedings, the remedy is not by certiorari^ but by mandamus/ A writ of certiorari at common law to review the record of a justice of the peace for illegality in the proceeding, does not lie until the justice has rendered a final judgment. The writ can not be made to operate as an injunction and restrain a tri- bunal from acrting beyond its jurisdiction.* Mere lapse of time alone, short of the limitation for the prosecution of a writ of error, will not bar the issuing of a common law certiorari? To be barred by ladies^ it must appear that since the making of the record, sought to be reviewed, and upon its as- sumed validity, something has been done so that great public detriment or inconvenience might result from declaring it invalid." The writ is obeyed by returning and certifying the record of the proceedings of the inferior tribunal, or the entries made by it in the nature of a record. A common law certiorari re- moves nothing more; and if the return contains anything more 1 Gallimore v. Dazey, 12 III. 142; 138; Glennon v. Burton, 144 111. 551 ; Comm. v. Supervisors, 27 111. 140. Trustees v. Shepherd, 139 111. 114; 2 R. R. Co. V. Whipple, 22 111. 108; Schlink v. Maxton, 153 111. 447; Lees Doolittlev. R. R. Co., 14 111. 381; v. Dr. Com. 125 111. 47; People v. People V. Wilkinson, 13 111, 660; Neicherry, 135 111. 471; Mayor v. City of Ottaiva v.R. R. Co., 25 111. Dean, 62 111. App. 41. 43; Rue v. Chicago, 66 111. 256; 3Iil- ^ Blair v. Sennott, 134 111. 78. ler V. Tnistees, 88111. 26; Supervisors * Glennon v. Burton, 144 111, 551. V. Blagoon, 109 111. 142; Hamilton v. " Hyslopv. Finch, 99 111, 175. Harwood, 113 lU. 154; Drain. Com. « Dr. Com. v. Voike, 59 111. App. 286; V. Griffin, 134 111. 330; Smith v. Com. , see Trustees v. Sdi. Dir. , 88 111. 100. 150 Dl. 385; Wright v. Ccnn., 150 111. 558 GERTIOKAEI. it will be rejected or disregarded jt?yo tanto} The writ can not. in general, bring up for review the evidence, and the rulings and decisions of the inferior tribunal thereon, but only the record. "When there is technically no record, the written pro- ceedings and orders, or a history of the proceedings and the written orders, w^hich are in the nature of records, are to be certified." If the writ has issued in an improper case, the defendant may move to quash it; and the court will quash it even after a return, and a hearing on the merits.'' See a petition for a common law certiorari^ 20 111. R. 537. This writ is sometimes used as an auxiliary process to obtain a full return to some other process. For example, Avhen the record of an inferior court is taken before a superior court by appeal, writ of error, or otherwise, and a suggestion of a dim- nution, etc., is made, a certiorari will be granted, requiring a true record to be sent up.* It is the proper remedy to review the proceedings of commissioners of highways in establishing a road.^ II. THE STATUTOET WRIT. The statute of Illinois provides as follows : " The judges of the courts to wiiich appeals may be taken, shall have power, within their respective jurisdiction, and it shall be their duty, upon petition made as hereinafter men- tioned, to grant writs of certiorari^ to remove causes from be- fore justices of the peace into their courts, who shall indorse an order for the same upon the petition of the party praying such writ; and on producing the same to the clerk of the court he shall issue said writ in conformity to the provisions of this act. 'Green's Pr. 497; Mc3Icinus v. James v. Hughitt, 2 Scam, 361; McDonough, 107 111. 95. Boynton v. ChampHn, 40 111. 63; see " Stone y. Mayor, 25 Wend. 168; Ennisx. Ennis, UO III. 18; Scales v. see 3Iiller v. Trustees, 88 111. 26; By. Co., 104 111. 93. Trustees v. Directors, 88 111. 100; ^ Trainer v. Lawrence, 36 III. App. Savage v. Corners, 10 Bradw. 204. 90; Com. v. Newhy, 31 111. App. 378; M How. Pr. 141; Ennis v. Ennis, Ravette v. Race, 153 111. 672; Com. 110 111. 78. V. Hohlit, 19 111. App. 259; Broton * Holmes v. Parker, 1 Scam. 567; v. Roberts, 23 111. App. 461. CEKTIOKARI. 559 " The petition for a writ of certiorari shall set forth and show, upon the oath of the applicant, or his agent, that the judgment before the justice of the peace was not the result of n3gligence in the party praying such writ; that the judgment, in his opinion, is unjust and erroneous, setting forth wherein the injustice and error consists, and that it was not in the power of the party to take an appeal in the ordinary wav, setting forth the particular circumstances which prevented him from so doing. " Xo writ of certiorari shall issue after the expiration of six months from the time of the rendition of judgment,' " Before any writ of certiorari shall issue, the party applying therefor shall give bond, with security, in the same manner and with the same conditions, and when the same shall be defective, may be perfected as bonds in cases of appeals from justices of the peace. The writ of certiorari shall require the justice to certify to the court issuing the writ a transcript of the judgment and other proceedings had before him; and in no case shall the justice be required to send up a minute or memorandum of the evidence given before him; but upon the return of said writ, such proceedings shall be had thereon as in cases of appeals." " The statute also provides that one or more of several plaint- iffs or defendants may sue out a cei'tiorari without the con- sent of the others; and all further proceedings are thereupon to be stayed, the same as if all had united in such certiorari? A writ of certiorari is also given in oases of the trial of the right of property before justices of the peace.* Masters in chancery, in their respective counties, may order the issuing of ^ Graff V. Smolensky, 35 111, App. Ravdall, 26 III. 243; Ottcyi v. Lehr, 264. 68 111. 64; Darmstadter v. Aimaur, '2 Starr & Curtis, 1461-2; Rev. 17 Bradw. 285; Hough v. Baldwin, Stat. (1895) 974; Yunt v. Broirn, 1 16 111. 294; Bussell v. Pickering, 17 Scam. 264; Cushman v. Rice, 1 111. 31. Scam. 565; Lord v. Burke, 4 Gilm. ^ 2 Starr & Curtis, 1454; Rev. Stat. 363; Hoare v. Harris, 14 111. 35; (1895) 966; see Flinn v. Barlow. 16 Murray v. Murphy, 16 111. 275; Clif- 111. 39. ford v. Waldrop, 23 111. 336; Harri- « 2 Starr & Curtis, 1469; Rev. Stat. son v. Chipp, 25 111. 575; Davis v. (1895) 969. 560 CERTIOEAKI. writs of certiorari, to remove causes from before justices of the peace into the proper court. Requisites of petition, etc. — A petition for a writ of cer- tio7'ari must clearly point out wherein the injustice of the judgment complained of consists. Allegations of injustice, made in general terms, will not suffice. It must state facts sufficient to show that injustice has been done.' The statute requires that the petition " shall set forth and show that the judgment before the justice of the peace was not the result of negligence." This requirement can only be fulfilled by setting forth facts which show that the party was not o-uilty of negligence in not attending to the defense of the cause before the justice.^ The mere statement that the judgment was not the result of the negligence of the peti- tioner, does not show that such was the case; that is a con- clusion for the court to draw from the facts alleged." Where a party permits a judgment to go by default, before a justice of the peace, with the intention of taking an appeal to the circuit court, and contesting the merits in that court, a petition for certiorari will not be sustained. Diligence must be used to prevent the judgment in the justice's court.* It is not sufficient to aver that the justice, in receiving or rejecting testimony, or in any matter arising upon the trial, erred in point of law, if the petitioner is not injured by the final determination, in the amount of the judgment recovered." Where a petition is based on the ground that the petitioner did not know of the rendering of a judgment against him until the twenty days in which the appeal might have been taken had elapsed, by reason of his being misled by the oppo- site party, he should state how and by what he was misled; i Harrison v. CMpp, 25 111. 575; ^Clifford v. Waldrup, 23 111.336 Davis V, Randall, 26 111. 243; Mur- Russell v. Pickering, 17 111. 31; Har- ray v. Murphy, 16 111. 275; Bank v. rison v. CMpp, 25 111. 575; Doan \ Beresford, 78 111. 392; Cole v. Atkin- Sibbitt,(jl 111. 485; Trustees v. Kem son, 6 Bradw. 353; C. B. Co. v. per, 88 111. 579. Brewer, 57 111. App. 526. * Murray v. Murphy, 16 111. 275 ^Stocking v. Knight, 19 111. App. O'Hara \. O'Brien, 4 Bradw. 154. 501; R. R. Co. v. McCoy, 23 111. App. ^ Ho^igh v. BalduHn, 16 111. 293 143, Trustees v. Kemper, 88 111. 579. CEETIOKAEI. 561 and he should show diligence, by an inspection of the justices' docket or otherwise, to ascertain what order had been made in the suit, or some reason why this was not done.' The petition must also allege that it was not in the power of the party to take an appeal in the ordinary way, and must set forth particularly the circumstances that prevented him from so doing.^ Where a petition alleged that the petitioner was a poor man, and that it took him several days after the rendition of judg- ment to procure security on the appeal bond; that fourteen or fifteen days after the rendition of judgment he called at the justice's office for the purpose of procuring the proper papers and perfecting his appeal, but the justice was absent from his office, and the petitioner, after dihgent inquiry, was unable to learn where he was; that on the last day when he could have taken the appeal, he again called at the justice's office, and again failed to find him, making the same inquiry as at the first time; it was decided that sufficient diligence w^as not shown. No reason appeared why the petitioner did not enter his appeal with the clerk of the court.^ Where a petition states that the petitioner had been sum- moned as garnishee in a number of cases, before the same justice of the peace, and was discharged after examination, by the justice, and had no knowledge that a judgment was ren- dered against him, until it was too late to take an appeal, and that the judgment was unjust, showing wherein, he can have relief by writ of certiorari* Where a petition of a guardian for a writ of certiorari stated that he was taken sick shortly after the service of proc- ess upon him, and continued unable to transact business until ^ Davis Y. Randall, 26 111. 243; see Harris, 14 111. 35: Dye v. Noel, 85 Fitzgerald v. Kimball, 86 111. 396; 111. 290; Darmstadter \ . Armour, 17 Bank v. Beresford, 78 111. 391; Brad w. 285; i2ej7/?/ v. Prince, 37 111. CfHarav. O'Brien, 4 Bradw. 154; see App. 102. McDonald V. WiUianis, ^\ IlL App. ^ White v. Frye, 2 Gilm. 65; 378. Darmstadter v. Armour, 17 Bradw. ^Holmes v. Parker, 1 Scam. 567; 285. see Lord v. Burke, 4 Gilm. 363: * McNeTmey v. Newberry, S7 III. 91; Davis V. Randall, 26 111. 243; Har- Pierce v. Wade, 19 Bradw. 185. iHson V. Chipp, 25 111. 575; Hoare v. 86 562 CEETIOKAEI. after the trial; that as soon as he was able to attend to busi- ness, and within twenty days after judgment, he demanded an appeal, which was refused on the ground that it should have been taken on the day of trial; and that the judgment was not upon a valid claim against the estate; it was held that the petition entitled the guardian to the writ.' A petition for a certiorari^ to bring up the proceedings had before a justice of the peace, must stand on its merits; affida- vits in support of it, or against it, can not be read.^ The court will take into consideration the condition of a party, where he shows in his petition circumstances that prevented his using diligence; as that he was a physician, and was nec- essarily attending upon patients dangerously ill, etc.; or that he was sick at the time the judgment was rendered against him, and unable to attend the trial, etc.* Where a statute gives an appeal from an assessment of damages for a right of way, a certiorari will be sustained, it appearing that the petitioner had no notice of the assessment, or opportunity to appeal. A certiorari in such a case is in the nature of an appeal from the decision of a justice of the peace, and governed by the same rules.* A judgment entered by a justice of the peace, which is based upon an admission by the defendant of the amount due, is not entered by confession, and a writ of certiorari lies to remove the cause in which such judgment is entered to the circuit court.* No question of laches is involved upon the issuance of a writ of certiorari at any time during the period prescribed by the statute.** iVb. S05. Petition for a certiorari to a justice of the peace. To the Honorable L. M., Judge of the court of the county of , in the State of Illinois, Your petitioner, A. B., of, etc., complaining shows, that C. D., of, etc., ^Hoarev. Harris, 14 111. 35; Otten *R. R. Co. v. Barrows, 24 IlL 562: V. Lehr, 68 111. 64. Shinkle v. Magill, 58 111. 422; » Datis V. Randall, 26 111. 243; Hyslojy v. Finch, 99 111. 171. Harrison v, Chipp, 25 111. 575; Fitz- ^ Goddard v. Fisher, 23 111. App. gerald v. Kimball, 86 111. 396. 365. 3 Cook V. Hoyt, 13 111. 144; Hoare « Graff v. Smolensky, 35 111. App. V. Harris, 14 111. 35; White v. Frye, 264. 2Gilm. 65. CEBTIOKARI. 563 on the day of, etc., commenced an action against your petitioner, be- fore one G. H., then and still being one of the justices of the peace in and for the said county of , to recover the sum of dollars, alleged to be due from your petitioner to the said C. D., for {here the subject-matter of the alleged debt may be stated); and that afterwards, on, etc., the said justice rendered judgment against your petitioner, in that action, for the sum of dollars, and costs of suit; which matters aforesaid appear to your peti- tioner from the docket of the said justice, and the papers in that behalf filed and remaining in his office. And your petitioner further shows that at the time of the commencement of the said action, and from thence con- tinually until more than twenty days had elapsed after the rendition of the said judgment as aforesaid, your petitioner was absent from this state: and that during all that time your petitioner had no knowledge or information of the commencement or pendency of the said action, or of the rendition of the said judgment, as aforesaid; and that therefore your petitioner could not take an appeal from the said judgment in the ordinary way. And your petitioner further shows that he was not at the time of the commencement of the said action as aforesaid, nor is now, in any manner indebted to the said C. D.; and that the said judgment is therefore wholly unjust and erroneous. Your petitioner therefore prays a writ of certiorari, to remove the said cause from before the said justice into the said court, accord- ing to the form of the statute in such case made and provided. A. B. State of Illinois, ) County of . J set. A. B. , the petitioner in the foregoing petition named, makes oath and says that the matters and things in the said petition contained are true in substance and in fact. A. B. Subscribed and sworn, etc. If made by an agent, the affidavit may be as follows : "J. K. makes oath and says that he is the agent in this behalf of A. B,, the petitioner in the foregoing petition named; and that the matters and things in the said petition contained are true, to the best of this affiant's knowledge, information and belief." See a petition for a certiorari by a garnishee, 37 111. E. 91. The statute of Illinois provides that " the justice of the peace, constables, and other persons concerned, shall, as soon as the writ of certiorari shall be served on such officers, stay all further proceedings in that case until the further order of the court issuing the writ." ' Where a cause is taken up by certiorari, the trial is to be de novo, as in cases of appeal.^ The justice is not required •Starr & Curtis 1462; Rev. Stat * Gallimore v. Dazey, 12 111. 143; (1893) 911; Eev. Stat. (1895) 966; Gerdes v. Cliampion, 108 111. 137; Coram, v. People, 99 III. 587. Deer v. Comm., 109 111. 379. 564 CERTIOKARI. to make any formal return to the writ; his only duty is to send up the papers and proceedings; and if the writ is served and returned, and its mandate is not obeyed, an attachment may issue against the justice.' Where the papers and a tran- script of the proceedings are filed in the court, the issuing of a certiorari to the justice is unnecessary .2 The dismissal of an appeal, or a certiorari^ is equivalent to an affirmance of the judgment, so as to entitle the party to claim a forfeiture of the bond, and to have his action thereon,* ]Jy the statute, if the judgment of the justice is reversed, in whole or in part, such reversal does not vitiate any sale on execution, effected before the issuing of the certiorari; but in such cases the court may assess the damages which have accrued in consequence of such sale, and " cause judgment to be entered or a deduction made therefor," In case of a par- tial reversal of the judgment, the costs may be apportioned.* ^Gallimore v. Dazey, 12 111. 143; 571; Docm v. SibUtt, 61 111. 485; McMamis v. McDonough, 4t Bradw. Fans v. O'Connor, 6 Bradw. 593. 180. *i2 Starr & Curtis 1463; Rev. Stat. ^ Stout V. Slattery, 12 111. 163; (1893) 911; Rev. Stat. (1895) 974; Gallimore v. Dazey, 12 111. 143. Wickersham v. Hurd, 72 111. 464; 3 McConnell v. Parsons, 2 Scam. Beckmaii v. Kreamer, 43 111. 447. CHAPTER XYIII. QUO WARRANTO. Quo warranto is the name of a writ issued in the name of the people or government, against any person or corporation that usurps any franchise or office, commanding the sheriff of the county to summon the defendant to be and appear before the court -from whence the writ issued, at a time and place therein named, to show " by what warrant " he claims the franchise or office mentioned in the writ.' By the fiction of the feudal law, the king, as the head and visible representative of the community, was considered not only as the ultimate proprietor of all the land in the kingdom, but the fountain from whence all public franchises were de- rived; and if any individual or collective body of men, whether corporate or not, without legal authority, exercised any such franchise, it was considered as an usurpation of the king's pre- rogative; and if a franchise had been legally granted, but was exercised in a manner inconsistent with the express or implied condition of the grant, the franchise was considered forfeited, and the sovereign might resume it. This writ has become obsolete, having given way to informations in the nature of a quo warranto at the common law.^ Nature of. — An information in the nature of a qiio warranto is understood to be in form a criminal proceeding,^ and can be resorted to only in cases where the public, in theory at least, has some interest.* It does not lie merely as to private J2Bla.Com. 262, 263;2Bouv.L. D. People v. Shaic, 13 111. 58i; Wight 417; Wallace v. Anderson, 5 Wheat. v. People, 15 111. 417; People v. Ridg- 291; Commonu'ealth v. Lkarhom, 15 ley, 21 111. 65; Chesshirev. People, 116 Mass. 125; Ang. & Ames on Corp., 111. 493. Sec. 731. * Dickson v. People, 17 111. 191; 2 Ang. & Ames on Corp., Sec. 721; People Y.Ridgley, 21 111. 65; People v. 2 Bouv. L. D. 417; see 3 Bla. Com, Golden Rule, 114 111. 34; McGrathv. 262, 263. People, 100 111. 464; see People v. ^Donnelly y. Peoole, 11 111. 552 Boyd, 132 IW. QO. (565) 566 QUO WARRANTO. rights.' Though a criminal proceeding in form, yet in sub- stance it is but a civil one.' And is so regarded in this state.' Jurisdiction of circuit courts. — By the constitution (sec. 12, art. 6), the circuit courts are vested with the power, among others, to hear and determine informations in the nature of quo warranto^ they being proceedings at law. The right to in- quire into the authority by which any person assumes to exer- cise the functions of a public office or franchise belongs to the people, as a part of the sovereignty.* Practice. — The usual mode of m'sXxivXmg quo warranto pro- ceedings is for the state's attorney to submit a motion, based on affidavits, for leave to file an information. A rule nisi is then entered requiring the defendant to show cause why the information should not be filed. The respondent may then answer the rule b}'- counter affidavits.^ When leave to file information will be granted. — It is not granted of course, but depends on the sound discretion of the court upon the circumstances of the case.^ It will usually be granted where the right, or the facts on which the right depends, is disputed and doubtful; ' or where the right turns upon a point of new or doubtful law; ^ or where there is no other remed3^* In a proceeding by quo warranto^ the issue of a writ does not end the discretion of the court. Where the writ has been improvidently issued the court may decline to proceed or to grant the relief sought.'" ^People V. Cooper, 139 111.461; Richardson, 4 Cow. 103; People \. People V. Dr. Com., 31 111. App. 219; R. R. Co., 54 111. App. 348. People V. R. R. Co., 54 111. App. ^ People v. ilarfe, 70111. 25; People 348. V. Callaglian, 83 lU. 128; People v. ^Kingv. Francis, 2 T. R. 484; 3 R. R. Co., 88 111. 537; People v. Kyd on Corp. 439; Commomvealth Golden Rule, 114 111. 34; Atfy v. R. V. Commissioners, 1 Serg. & Rawle R. Co., 112 111. 520; People v. R. R, 385; People v. R. R. Co., 13 111. 66; Co., 54 111. App. 348. Donnelly v. People, 11 111. 552; Es- ' Rex v. Latham, 3 Burr. 1485; 1 minger v. People, 47 111. 384. Bl. Rep. 468. 3 People V. Boyd, 132 111. 60; People » Rex v. Carter, Cowp. 58; Rex v. V. Boyd, 30 111. App. 608. Goodwin. Doug. 397; People v. Rich- * Snowball v. People, 147 111. 260. ardson, 4 Cow. 102. £■ King v. Symons, 4T. R. 221; Peo- » Cas. K. B. 225; Bull N. P. 212. pie V. Tibbit!>. 4 Cow. 383; People v. «» People \. Hamilton, 24 111. App. QUO WARRANTO. 567 When leave to file will not be granted.— If the defendant can show that his right has already been determined by mcm- da.mus^ or that it depends on the right of those who voted for him, which has not been tried; ' or that the person upon whose right the defendant's title depends has enjoyed his franchise so long that the court would not permit it to be impeached in this mode of proceeding, the information will be denied.^ So if the defendant's right has been acquiesced in for a length of time.' So the information will not be granted if it appears that the time for which the officer was elected will expire before the inquiry can have any effect.* In England, it seems, the court will not grant an informa- tion to try the validity of an election to the office of church warden, because it is no usurpation of the crown." But in Pennsylvania an information has been granted against persons exercising the office of trustees of a church corporation," and it is said to be settled, in this country, that an information will lie against any one who intrudes himself into an office of a private corporation.'' Limitations. — At common law the time within which a corporate office might be impeached by a quo warranto was indefinite; it varied with the circumstances of each particular case; ^ and it was for some time thought better that it should be unsettled.' At length, however, the court (the kino-'s bench) set a limit to its discretionary power, and confined the time, in analogy to other cases of limitations, within twenty 609; Com. v. Cheely, 56 Pa, St. 270; S. & R. 127; see Lawson v. Kolhen- Peoplev. Drain. Com., 31 111. App, son, 61 111. 405; People \. Moore, IS 219; Peoplev. R. R. Co., 54 111. App. 111. 132. 348. ' Ang. & Ames on Corp., sec. 736; ' 2 Hawk. P. C, chap. 26, sec. 9. People v. Moore, 73 111. 132; Latcson 2 Rex V. Stephens, 1 Burr. 433; v. Kolbenson, 61 111. 405. Rex V. Peacock, 4 Term R. 684. * ^e^ v. Poioell, 8 Mod. 165: and 3 Bac. Abr., Information. see Rex v. Stax^ey, 1 T. R. 1; Rex v. * People V. Siveeting, 2 Johns. 184; -Pi^"«' 8 Mod. 286, cited; and Rex v. Commonu-ealth v. Athcarn, 3 Mass. Newling, 3 T. R. 311; Rex v. Bond, 285; see Clark v. People, 15 111. 213. 2 T. R. 767. f- Rex V. Master, 4 Term R. 381; ' ^^ v. Latluxm, 3 Burr. 1485, see People v. De MUl, 15 Mich. 164. I486. * Commonwealth v. Arrison, 15 568 QUO WARRANTO. years,' and at length to six years; ^ and the last period was confirmed by parliament, by stat. 32, Geo. 3, 58. In the absence of any statutor}' period of limitation, it is held in this country that the attorney-general may file an in- formation in behalf of the people at any time; and that the lapse of time constitutes no bar to the proceeding, in con- formity with the maxim, nnUinn jpeTnp'tLS occurrit regi? It is a familiar doctrine that the state is not embraced within the statute of limitations, unless specially named, and, by analogy, will not fall within the doctrine of estoppel.* The statute applies, however, when the object of the action is to enforce private rights as distinguished from public rio-hts," and the period of limitation has been held to be five years.** The statute of limitation may be interposed by demurrer when the declaration discloses the proper facts to raise the question.^ When it lies. — By section 1 of the " Quo "Warranto" act, it is provided " That in case any person shall usurp, intrude into, or unlaw- fully hold or execute any office or franchise, or any office in any corporation created by authority of this state (or any per- son shall hold or claim to hold or exercise any privilege, ex- emption or license, which has been impro]:)erly or without warrant of law issued or granted by any officer, board, com- missioner, court, or other person or persons authorized or em- powered by law to grant or issue such privilege, exemption or license), or any public officer shall have done or suffered any act ' Winchester Causes, 4 Burr. 1963, * Catlejtt v. People. 151 III. 16; 2023, 2121, 2523; People v. Richard- People v. Broivn, 67 111. 435; People son, 4 Cow. 103; see State v. 3Iiaini v. Gilbert, 18 Johns. 227; Bank v. Co., 11 Ohio 126. Brown, 1 Scam. 106. 2 Rex V. Dicken, 4 T. R. 283; * People v. Boyd, 132 111. 60; S. King v. Peacock, 4 T. R. 684; R. G. C, 30 111. App. 608. Hill. T. 1791. ® Peojile v. Boyd. 132 111. 60. ^ CatMt V. People, 151 111. 16; "i Henry v. Co. Drain. Co., 52 III. High's Ext. Leg. Rem., Sec. 621; 454; Ilett v. Collins. 103 111. 74; see People v. R. R. Co., 54 Ul. Bank v. Jenkins, 104 III. 143; Bdl App. 348; McPhail v. People, 160 v. Johnson, 111 111. 374, lU. 77. QUO WAKKANTO. 569 which, by the provisions of law, works a forfeiture of his office; or any association or number of persons shall act within this state as a corporation, without being legally incorporated; or any corporation does or omits any act which amounts to a sur- render or forfeiture of its rights and privileges as a corpora- tion, or exercises powers not conferred by law; or if any rail- road company doing business in this state shall charge an extortionate rate for the transportation of any freight or pas- senger, or shall make any unjust discrimination in the rate of freight or passenger tariff over or upon its railroad, the attor- ney-general or state's attorney of the proper county, either of his own accord or at the instance of any individual relator, may present a petition to any court of record of competent jurisdiction, or any judge thereof in vacation, for leave to file an information in the nature of a quo warranto in the name of the people of the State of Illinois, and if such court or judge shall be satisfied that there is probable ground for the pro- ceedings, the court or judge may grant the petition and order the information to be filed and process to issue. When it ap- pears to the court or judge that the several rights of divers parties to the same office or franchise, privilege, exemption or license, may properly be determined on one information, the court or judge may give leave to join all of such persons in the same information in order to try their respective rights to such office, franchise, privilege, exemption or license." * Under this section, as amended in 1881, the suit lies by the attorney-general against licensee to test the validity of a license to keep a dram-shop.'' One of the objects of an information of this nature is to call in question the title to an office or franchise claimed and ex- ercised by the defendant, because of some alleged defect in such title; as, for instance, that at the time of the election of the defendant to an office, he was disqualified to be elected; or that the election itself was void or irregular; or that the de- fendant was not duly elected, or not duly appointed; or that he has not been duly sworn in, or has been otherwise unlawfully 1 Rev. Stat. (1893), 1087; Rev. Stat. ^ Sicarth v. People, 109 III. 621; (1895), 1171; 2 Starr & Curtis, 1871. Handy v. People, 29 IlL App. 99. 570 QUO WARRANTO. admitted; or that lie has since become disqualified, and yet presumes to act.' A defective title is understood to be, and is, in contemplation of law, the same as no title whatever; and a person exercising an office or franchise of a public nature is considered as a mere usurper unless he has a good and complete title in every respect.^ The question as to whether a person who claims the right and exercises the powers of a public office, has been lawfully elected, may be tested by quo warranto and the incumbent ousted if he has usurped the same.' Where a person is in office by color of right, the remedy is not by mandamus to admit another having lawful claim, but by information in the nature of a quo warranto!' An information lies, under our statute, not only against a person who has usurped or intruded into an office, but also against a person who unlawfully holds an office to which he was at first entitled. If an officer rightf ull}'- elected and quali- fied exercises the functions of his office after its termination, by subsequent occurrences, this proceeding is the appropriate remedy to oust him.^ An information will lie against a corporation or an indi- vidual,® and against officers appointed by the executive, as well as those holding corporate offices or franchises.' The legality of the organization of a corporation can be attacked and judi- cially examined only in a direct proceeding by quo warranto.^ ^People V. Ridgley, 21 111. 65; * People v. Forquer, Breese 104; People V. Whitcomb, 55 111. 172; People v. FletcJier, 2 Scam. 487; People V. Waite, 70 111. 25; Esmin- People v. Matteson, 17 111. 167; see gerv. People, 47 111.384; People x. People v. Mobley, 1 Scam. 215; Beach, 77 111. 52; Hinze v. People, People v. Whitcomb, 55 111. 172; 92 111. 406; McPhail v. People, 56 Rafferty v. McGowan, 136 111. 620. 111. App. 289; Greenwood v. Murphy, ^ Burgess v. Davis, 138 III. 578. 131 111. 604. «Cas. K. B. 225; Bull N. P. 212; "^People V. Ridgley, 21 111. 65; see see Coinmonw. v. Ins. Co., 5 Mass. Clark V. People, 15 111. 213; People 230. V. Ins. Co., 15 Johns. 358; Simons v. '' Commonwealth v. Fowler, 10 People, 18 Bradw. 588, Mass. 290; Renttrick v. Hall, 84 111. * Snowball v. People, 43 111. App, 162; Lawson v. Kolbenson, 61 III. 405; 241; Snoivball v. People, 147 111. 260; Sullivan v. People, 18 Bradw. 627. Rafferty V. McGowan, 136 111. 620; ^ Lees v. Dr. Com. 125 111, 47. Burgess v. Davis, 138 111. 578, QUO WARRANTO. 571 Where an incorporated company carries on banking operations, without authority from the legislature, this information lies,' and it is the proper mode of testing the question of the for- feiture of a charter.* The right to preside over the meetings of a city council is a franchise given by law; and if invaded, the remedy is by infor- mation in the nature of a quo warranto.^ Where a part is attempted to be taken from a school district and added to another, the legality of the change can be tested by quo warranto. *^ Whether or not a railroad company is a 'bona fide corpora- tion, within the meaning of the law and spirit of the law, can only be determined by quo warranto.^ A municipal body which has exceeded its jurisdiction and has proceeded illegally, ma}^ be proceeded against either by quo warranto^ scire facias, or the common law writ of certi- orari.* Where the legality of the formation and organization of a drainage district, or the validity of the annexation of land to , a drainage district, under the drainage act of 1SS5, is ques- tioned, the proper remedy is a quo warranto against the drain- age commissioners/ Quo warranto lies against one who wrongful!}^ assumes to act as a drainage commissioner,* When a corporate body assumes powers which, from defect in its organization, it can not legally exercise, quo warranto is the proper remedy.® It is the proper proceeding to test the eligibility of a per- ^ People V. Ins. Co., 15 Johns. 358. Trumbo v. People, 75 111. 561; Ren- ^ Baker V. Adni'r, 32 111.79; Wil- wick \. Hall, 84 111.162; People v. liamsv. Bank, 1 Gilm. 667; People Bd. of Education, 101 111. 308. V. R. R. Co., 15 Wend. 113; People ^ Brown v. Ry. Co., 125 111. 600. V. Bristol, 23 Wend. 222; King v. « Comm. v. Griffins, 134 111. 330; Pasmore, 3 T. R. 132; see Common- see People v. City, 61 III. App. 86. wealthy. Turnpike Co., 6 B. Mon. '^ Bodriian v. Drain. Dist., Id2 III. (Ky.) 397; People v. Bank, 6 Cowen 439; Evans v. Leicis, 121 111. 478; 217; H.Ry.Co.v. City, 47 111. App. Keigwin v. Dr. Com., 115 111.347; 388. People v. Jones, 137 IlL 35. ^Cochran v. McLeary, 22 Iowa 755 * Smith v. People, 140 111. 355; S. see People v. Bird. 20 Bradw. 568. C, 39 111. App. 238. ^People V. Trustees, 87 lU. 41; * Baker v. Backus, 32 111 10. 572 QUO WARRANTO. son to hold the office of circuit judge; ' or of members of city- council; "^ or of wharf master;' or of city marshal; * or of school trustees.^ It is the proper remedy to test the legality of the organiza- tion of a school district; * or of a village.' It lies against a person holding and executing an office created by unconstitutional law,' It is a proper remedy if a board of education undertakes to exercise powers it does not possess." It is not a proper proceeding to test the validity of an act extending the territorial limits of a city;'" nor to test the validity of a contract entered into b}" a municipal corpora- tion; " nor to contest the election for the adoption of a city charter;'^ nor to test the legality of the official action of public or corporate officers.'^ The extraordinary remedy by qtco warranto is not grantable where the party aggrieved can obtain full and adequate relief in the usual course of proceeding at law, or where the griev- ance may be redressed by bill in equity.'* Parties. — If the information is for the abusing of a fran- chise by a corporation, it sliould be against the corporation; if for usurping to be a corporation, it should be against the par- ticular persons.'* It will not lie on the relation of an individ- ' Smith V. People, 44 111. 16. ^ People v. Board of Educaticm, 2 Peojile V. Bird, 20 111. App. 568. 101 111. 308. 3 Ensminger v. People, 47 111. 384. i" People v. miitcomh, 55 111. 172. * People V. Canty, 55 111, 33. " People v. City, 61 111, App. 86. 5 See Simons v. People, 18 111. App. '^ Chicago v. People. 80 111, 496, 588; Peoi^/e V, l/oore, 73 111. 132; see »3 High Ext. Leg, Rem., 2d Ed,, Lau'son v, Kolbenson, 61 111, 405, Sec, 618; People v. Whitconib, 55 « Renwick v. Hall, 84 111. 162; 111, 172; People v. Wyatt, 34 111. App. Ward V. Farivell, 97 111, 593; Trumbo 454. V, People, 75 111. 561; People v. New- '^High Ext. Leg. Rem,, Sec, 617; beri-y,8'7 111.41; Sch. Dir. v. Sch. People v. WTiitcomb, 5ol\\. 172; Peo- Dir., 135 111. 464; People v. Bicker, pie v. Springfield, 61 111. App. 86. 142 111. 650; Rayfi£ld v. People, 144 '^2 Roll. Rep. 113, 115; see People 111.332. V, R. Co., 88 '111, 537; People v. ' Kamp V. People, 141 III. 9; Poor Spg. Valley, 129 III 169; People v. V. People, 142 111, 309, a Hair, 128 111. 26. « Hinze v. People, 92 III. 406. QUO WARRANTO. 573 ual, against a copporation as a body. This should always be by the attorney-general.' If on the relation of a private person, it should be against the several individuals, to show by what authority they claim their respective franchises.* If the information is at common law, there is no relator.^ Motion for leave to file information.— The first step towards the filing of an information, at the relation of any person, is a motion by the attorney-general, or state's at- torney, based on an afiidavit or alfidavits, for leave to file such information.* If the applicant makes out a case prima facie, the usual course is for the court to grant a rule nisi on the defendant, to show cause why the information should not be filed; and on the day appointed, or at such time thereafter as the court may fix, he may show cause against the rule, and exhibit counter affidavits.^ This rule can not be applied, however, when the application is made to a judge in vacation, as a judge can exercise no judicial functions in vacation, unless expressly authorized to do so." For the requisites of the affidavits on both sides, and ob- servations thereon, see note.'' Unless the cause shown is such as to put the matter beyond dispute, the court will make the rule absolute for the infor- mation, in order that the question of the right may be prop- erly determined.* Form of information. — The outline of the English form is given in 4 Coav. K. 106, from 2 Kyd on Corp. 403; and a variety of English precedents will be found in 6 Wentworth's ' Chicago v. People, 80 III. 496; ' See People v. Shrnv, 14 111. 476; People V. Board, 101 111. 308; Sicarth People v. R. Co., 88 111. 537; People V. People, 109 111. 621; People v. v. McFall, 124 111. 642. Golden Rule, 114 111, 34; Chesshire v. « People v. McFall, 124 111. 642. People, 116 111. 493. ' Peoiile v. Richardson, 4 Cow. R. ^Rex V. Carmarthen, 2 Butt. 869. 105-106, and Ang. & Ames on Corp. »Bull. N. P. 211; see Chesshire v. Sees. 748, 749. People. 116 111. 493. sbuII. N. P. 210; People v. Rich- * See People v.Mohley.\Scam.21^; ardso». 4 Cow. 106; Att'y Gen. v. People V. Golden Rule, 114 111. 34. R. R. Co., 112 111. 520. 574 QUO WAKRANTO. Pleadings, 28 to 234. In Illinois, an information must be " in the name and by the authority of the People of the State of Illinois," and conclude " against the peace and dignity of the same," ' if it does not, advantage can be taken either in arrest or on error." And it should be drawn with the same certainty as an indictment or declaration.* Summons. — " Sec. 2. On the filing of such information the clerk of the court" shall issue a summons in like form as any other summons, commanding the defendant to appear at the return term thereof to answer the relator in an informa- tion in the nature of a quo warranto. If the information is filed in vacation, the summons shall be made returnable on the first day of the next succeeding term; if in term time, it may be made returnable on any day of the same term, not less than five days after the date of the w^rit, as shall be di- rected by the court." Service of summons. — " Sec. 3. The summons may be served in the same manner as other summons in suits at law; but if any defendant resides, or is out of the state, he may be served with a copy of the information, in the same manner, and with like effect, and the service may be proved in the same way as provided in cases of bills in chancery." * Defendant required to plead. — " Sec. 4. Every defendant who shall be summoned, or served with a copy of the infor- mation, as required in this act, shall be held to demur or plead to the information on the return day of the summons, or when served with a copy of the information at the expira- tion of the time required to be given, or within such further time as may be granted by the court, or in default thereof, judgment may be taken, nU dicitP The defendant should either disclaim or justify; and if h« justifies he should set out his title specially. He must exhibit » People V. R. R. Co., 13 111. 67; Lavalle v. People, 68 111. 253; Minch Wright V. People, 15 111. 417; Hay v. People, 6 Bradw. 127; Lecroix v. V. People, 59 111. 94; Chesshire v. People, 6 Bradw. 129. People, 116 111. 493. * Lavalle v. People, 68 111. 253; see 2 Hay V. Peo2)le, 59 111. 94. People v. Golden Rule, 114 111. 34. ^People V. Higgins, 15 111. 110; QUO WARRANTO. 575 good authority or the people will be entitled to a judgment of ouster.' Burden of proof. — Where the matters alleged in an infor- mation against a corporation, or the relator's replication, as ground for the forfeiture of its character, are denied by the rejoinder, the burden will rest upon the relator to prove, by a preponderance of the evidence, that the defendant has com- mitted or omitted acts which amount to a surrender or for- feiture of its rights and privileges as a corporation." Time to plead, etc.—" Sec. 5. The court in which any information as aforesaid, is filed, may allow the relator or de- fendant such convenient time to plead, reply or demur, as it shall deem just and reasonable." Judgment. — " Sec. 6. In case any person or corporation against whom any such information is filed, is adjudged guiltv as charged in the information, the court may give judo-ment of ouster against such person or corporation from the olRce or franchise and fine such person or corporation for usurping, in- truding into, or unlawfully holding and executing such office or franchise, and also give judgment in favor of the relator for the costs of the prosecution : Provided, that instead of judo-- ment of ouster from a franchise for an abuse thereof, unless the court is of the opinion that the public good demands such judgment, the court may fine the person or corporation found guilty in any sum not exceeding twenty-five thousand dollars ($25,000) for each offense. AVhenever judgment is given for any defendant in such information, the person or corporation to whom judgment is given shall recover costs against the relator." The judgment upon information, charging defendant with usurping, unlawfully entering and exercising powers of an office, etc., if against the defendant, is that he is guilty as charged in information and of ouster.^ The judgment of ouster against an alleged municipal corpo- • Clark V. People, 15 III. 21d; III. « Ibid.; K & S. Stock Co. v. Peo- M. R. Co. V. Peo2^le, 84 111. 426; pie, 147 111. 234. Holden V. People, 90 III. 'iU; Simona ^Simons v. People, 18 III. App. V. Peojjle, 18 111. App. 588: Carrico 588. V. People, 123 111. 198, 576 QUO WARRANTO. ration has the effect to dissolve it, whether it existed de jure or de facto, and to completely extinguish it.' A judgment of ouster is conclusive upon the defendants in the proceeding." Appeal and writ of error. — " Sec. 7. Appeals and writs of error may be taken and prosecuted in the same manner, and upon the same terms, and with like effect as in other civil cases." Process. — Section 10 of the Practice Act of 1S72 is as fol- lows : *'It shall not be necessary hereafter, in any action of man- damus or quo warranto, to set out the cause of action in the writ, but it shall be sufficient to summon the defendant in a summons in the usual form, commanding the defendant to appear and answer the plaintiff in an action of mandamus or quo xoarranto, as the case may be, and the issues shall be made up by answering, pleading or demurring to the petition as in other cases." ' JNTo. oOG. Information by the attorvey-geveral, ex officio, against a corpo- ration, for exercising franchises without authority.*^ In the Circuit Court. Term, 18—. State of Illinois, ) County of , i^ set. A. B., attorney-general of the said State of Illi- nois, who sues for the People of the said state in this behalf, comes into the court here, on this day, and for the said People, and in the name and by the authority thereof, gives the court here to understand and be informed, that the company, for the space of months last past, and more, in the county of aforesaid, has used, and still does use, without any warrant, charter or grant, the following liberties, privileges and franchises, to wit, [that of becoming proprietors of a bank or fund for the purpose of issuing notes, receiving deposits, making discounts, and transacting other business which incorporated banks may and do transact by virtue of their respective acts of incorporation, and also that of actually issuing notes, re- ceiving deposits, making discounts, and carrying on banking operations and other moneyed transactions which are usually performed by mcorpo- rated banks, and which they alone have a right to do;] all which said lib- erties, privileges and franchises the said company, during all the time aforesaid, in the county aforesaid, upon the said People has usurped, ' Dodge v. People, 113 111. 491. ^ 2 starr & Curtis 1780; Rev. Stat, i Waterman v. R. R. Co., 139 111. (1893) 1088; Rev. Stat. (1895) 1172. (1.^8. * Peoples. Ins. Co., 15 Johns. 36. QUO WARRANTO. 577 and still does usurp; to the damage and prejudice of the said People, and against the peace and dignity of the same. Whereupon the said attorney- general, for the said Feople, and in the name and by the authority thereof, prays the consideration of the court here in the premises, and due process of law in this behalf, to make the said company answer to the said People by what warrant it claims to have, use and enjoy the liberties, privileges and franchises aforesaid. A. B., Attorney-General. The information need not show any title in the People to the franchise, but it lies with the defendant to show a warrant for exercising such franchise; and if the title set up is incom- plete, the People is entitled to judgment.' See the cases re- ported in 6 Cow. K. 196, 211, 217. In these cases, the infor- mations charged the corporations generally with usurpations; and on the defendants setting out their charters, and justify- ing under them, the attorney -general replied the causes of for- feiture specially; and this was held to be no departure. No. 307. Information at the instance of a relator, under the statute.'^ {Title of court, etc., as in last precedent.) A. B., state's attorney for the said county of , who sues for the People of the said State of Illinois in this behalf, comes into the court here, on tliis day, and for the said People, and in the name and by the authority thereof, at the relation of E. F. , (ac- cording to the form of the statute in such case made and provided,) gives the court here to understand and be informed, that C. D., for the space of now last past, and more, in the county aforesaid, unlawfully has held and executed, and still does hold and execute, without any warrant or right whatsoever, the office {or " franchise," or " office and franchise"') of ; which said office {or " franchise," etc.,) the said C. D., during all the time aforesaid, in the county aforesaid, upon the said People has usurped, and still does usui-p; to the damage and prejudice of the said Peo- ple, and against the peace and dignity of the same. (*) Whereupon the said state's attorney, for the said People, and in the name and by the au- thority thereof, at the relation of the said E. F. , prays the consideration of the court here in the premises, and due process of law against the said C. D., to make him answer to the said People by what warrant he claims to hold and execute the office {or " franchise," etc., ) aforesaid. A. B., State's Attorney. ^People V. Ins. Co., 15 Johns. 363; 23 gtan- & Curtis, 1871; Rev. Stat. People V. Ridgley, 21 111. 65; Simons (1893) 1087; Rev. Stat. (1895) 1171. V. People, 18 Bradw. 588. 37 S^TB QUO WARRANTO. If deemed expedient, another count, or counts, may be in- serted, at the asterisk in the above form. The information should describe the ofRce or franchise which the defendant is alleged to hold and execute, so that it may be seen whether the case is within the statute or not.' The appearance of the defendant to a rule to show cause, etc., is not appearance to the information; and therefore, on filing the information, the prosecutor is not entitled to a rule to plead, but there must be a service of process, or an appear- ance. The rule to show cause is for the purpose of obtaining leave to institute the proceeding, but it is commenced by the, information." It is said that " in this country it seems to be not an unu- sual practice for the information, whether it be for an intrusion into or usurpation of an office, or for an assumption or con- tinued exercise of corporate powers without right, to set forth specially the right of the relator who claims the office, as well as the usurpation of the defendant.^ Where an information is filed to test the question of an in- trusion into or usurpation of an office, it is sufficient to allege, o-enerally, that the defendant is in possession of the office with- out lawful authority. The rules of pleading do not require that the pleader shall anticipate that the defense will justify under an election, and show in advance the invalidity of such election. If the election is pleaded, its invalidity is a matter to be shown by replica- tion.* Amendments. — The information and proceedings thereon are amendable in the discretion of the court, both under the common law and the statute." An amendment is properly refused where the same is con- trary to and inconsistent with the terms of the information.* T' People X. Ridgley, 31 111. 65; La- *Ibid.; People v. Cooper, 139 111. valle V. Peai?le, 68 111. 253. 461 '■* Ang. (fe Ames on Corp., Sec. 751 Commonw. v. Sprenger, 5 Binn. 358 Hambleton v. People, 44 111. 458 ^Hinze v. People, 93 HI. 406; Handy v. People, 39 111. App. 99; Starr & Curtis' An. Stat. 265. see Rev. Stat. (1893), 1088. ^People v. Spring Valley, 129 111. » Ang. & Ames on Coi-p., Sec. 756. 169. QUO WARRANTO. 579 See the substance of an information against certain persons exercising the office of bridge commissioners, 14 111, 476. DEFENSES. For pleas in abatement, see Defenses to an Action, ante. The pleadings in q^w warranto proceedings should conform as far as possible to the general principles and rules which govern in civil actions.' Pleas to the information. — The defendant must either justify or disclaim. If he justifies, he must set out his title fully and particularly, showing by what right he uses or holds the franchise or office; and general allegations are in- sufficient.' Disclaimer and justification are repugnant and intionsistent in this proceeding, and a plea attempting to join them is sub- ject to demurrer.^ Not guilty, and non usurpavit, are not good pleas, for they do not answer to the nature of the charge, which is to show by what authority the defendant uses the franchise, etc." The sufficiency of the information, in point of substance, to sustain a judgment, is reviewable on error, whether previously challenged by demurrer or not,* The People, in this proceeding, is not required to show any- thing, at least in the first instance, but the entire burden is on the defendant; and (unless he disclaims) he must show by his plea, and prove that he has a valid title to the office or fran- chise. He must set out by what warrant he exercises or uses such office or franchise, and must show good right thereto or the People will be entitled to judgment of ouster." A party exercising an office or franchise of a public nature is considered as a mere usurper, unless he has a good and com- 'D. (fc C, F. Co. V. People, 156 * People v. Richardson, 4 Cow. 111. 448. • U8; Crook V. Jayne,10Q III 237. ^ Clark V, Peop>le, 15 111. 213; Ry. ^ D. <& C. F. Co. v. People, 156111. Co. V. People, 84 111. 426; Gunter- 448. man v. People, 138 111. 518; Holden « People v. Ridgley, 21 111. 65; Pea- V. People, 90 111. 434; D. & C. F. Co. pie v. Ins. Co., 15 Johns. 858; Holden V. People, 156 111. 448. v Peoi)le, 90 111. 434; Ounternian v. »A cfc C. F. Co. V. People, 156 Peoi^le, 138111. 518; Carrico v. Peo- 111. 448. pie, 123 111. 198. 580 QUO WARRANTO. plete title in every respect. A mere equitable title will not suffice.' No. SOS, Plea by a corporation, to an information by the attoimey-general. In the Cirduit Cburt. Term, 18—. ^fg I Information in nature of quo tcarranfo. The People, etc. ) And now on this day comes the said company, by J. K., its attorney, and having heard the said informa- tion read, for plea in this behalf says, that {here set forth the title to the franchise, etc.): And by this warrant the said company has used during all the time in the said information mentioned, and still uses, the said liberties, privileges and franchises of, etc., etc., as the said company well might, and still may; without this, that the said company has usurped, or now does usurp, the liberties, privileges and fran- chises aforesaid, or any or either of them, upon the said People, as by the said information is above supposed. All which matters the said company is ready to verify, etc. ; wherefore it prays judgment, etc. No. 309. Plea to an information at the instance of a relator. In the Circuit Court. Term, 18—. CD. ^ ro, -r. ^^^- „^ ^„j ^ Information in nature of m Schmidt v. Glade, 126 111. 485. 15 Ala. 398; Blair v. Wallace, 21 s Burroivs v. Guthrie, 61 III. 70; Cal. 817. Hoicardv. Babcock, 21 111.259; Red- '^ Richardson v, Huggins, 23 N. H. mondv. Redford, 40 111. 267; Ingra- in, ham V. Whitmore, 75 111. 24; Al- * Satoyer v. Freeman, 35 Me. 542 Glade v. Schmidt, 20 Bradw. 157 Lee V. Delano, 39 N. J. Eq. 193 fred V. R. R. Co., 92 III. 609; Mc- Donald V. Bacon, 3 Scam. 428; Tucker v. Page, 69 111. 179. Caldwell on Arbitration, 321; White » Root v. Renunck, 15 111.461; Mc- V, Arthur, 59 Cal. 336. Millan v. James, 105 111. 194; Gud- *Steere v, Broumell, 113 111. 415; gell \. Pettigrew, 26 111. 305; Whit- Buntain v. Curtis, 27 111. 374. more v. Mason, 14 111. 392; Shear v. 5 Smith V. Potter, 27 Vt. 804; Har- Master, 8 Bradw. 119; Darst v. Col- ker V. Hough, 7 N. J. Law 428; Mul- tier, 86 111. 96. 588 AKBITKATION AND AWARD. or unfairness is shown.' In order to invalidate an award upon the ground that it does not embrace all the matters sub- mitted, it must appear that they were made known to the ar- bitrators, and that they declined or neglected to pass upon them.'' Prima fade, an award is good, although not co-extensive with the submission, because it is presumed that it embraces all that was called to the attention of the arbitrators; and if in fact other matters we7'e called to their attention, and not passed upon by them, the fact must be proved.' Either party not complying, award may be filed in court. — Section 6 of the act in relation to arbitrations and awards provides that " If either of the parties neglect to comply with the said award, the other party may, at any time within one year from the time of such failure, file such award, together with the submission or arbitration bond, in the court named in the submission." Judgment upon award. — Section 7 declares that " The party filing such award may, at the next term after such filing, by giving four days' notice of his intention to the opposite party, and if no legal exceptions are taken to such award or other proceedings, have final judgment thereon, as on the verdict of a jury, for the sum specified in said award to be due, together with the costs of arbitration and of the court; and execution may issue therefor, as in other cases." This section applies as well to arbitrations in matters not in suit, under section lQ,post, as to matters in suits pending under section 1, ante.*' A judgment will not be entered upon an award unless it is made in pursuance of the statute." But 1 Hayward v. Harmon, 17111. 477; tain v. Curtis, 27 III. 374; Busse v. McDonald v. Arnout, 14 111. 58; Agnew, 10 Br adw. 521. Steams v. Cope, 109 111. 340. "* F. L. Co. v. Ragsdale, 12 Bradw. 2 Whetstone v, Thomas, 25 111. 441. 361; McNeavY. Bailey, 18 Mo. 251; * Weing y. Dopier, 17 111, 111; Varney v. Breioster, 14 N. H. 49. Lowe v. Nolle, 15 111. 368; Cook 3 Ott V. Schroeppel, 5 N. Y. 482; v. Schroeder, 55 111. 530; Marline v. McNearv. Bailey, 18 Me. 251; Bun- Hai-vey, 12 Bradw. 587; Smith v. Douglas, 16 111. 34, ARBITRATION AND AWARD. 589 the court will enter judgment on a common law award by the consent of the parties.* Jurisdiction to enter a judgment upon an award of arbitra- tors, being wholly given b}'' statute, the proceedings must con- form strictly to the requirements of the statute, or the court will have no jurisdiction or authority to enter judgment upon the a ward. ° Where the parties to a suit have submitted the matters in- volved to arbitrators, and stipulated that their award shall be entered as the finding of the court, the complainant can not dismiss the suit after a motion to set aside the award has been overruled,^ Enforcement of award. — Section 8 of the act relating: to arbitrations and awards, provides that " When the award requires the performance of any act other than the payment of money, the court rendering such judg- ment shall enforce the same by rule, and the party refusing or neglecting to comply with such rule, may be proceeded against by attachment or otherwise, as for a contempt.". This section applies to arbitrations under the statute of con- troversies not in suit. When anything is to be done other than the payment of money, as where the submission is of all matters in dispute with regard to a right of way of a railroad company, the award could not be one on which a judgment could properly be rendered for a sum of money only. The payment of money and conveyance of the right of wa\' in such a case, would be properly made concurrent acts; but the en- forcement as a statutory award can only be compelled under the above section 8.* Award, when set aside. — It is provided in section 9 of the same act, that " If any legal defects appear in the award or other proceed- ings, or if it shall be made to appear on oath or affirmation, that said award was obtained by fraud, corruption or other undue ' 31orey \. Mower Co., 90 111. 307. * R. R. Co. v. Alfred, 3 Bradw. 'Martine v. Harvey, 12 Bradw. 511; ie. R. Co. v. R. R. Co., 66 HI. 587. 174. ^Ives V. Ashelby, 26 HI. App. 244. 590 AKBITKATION AND AWAKD. means, or tbat such arbitrators misbehaved, said court may set aside such award." This section applies to arbitrations under the statute, whether in cases pending, or disputes not in suit.' Mere error of arbitrators as to the law or facts, is not ground for setting aside the award; "^ but if the submission requires an award to be an entirety, an award which is too narrow or too broad, will bind neither party." The award of two or three arbitrators is void, if the third arbitrator has no notice to act in the matter; or if it purports to be the award of three, when in point of fact, it was only the award of two of them,* Fraud. — An award obtained by the fraud of the party," or by reason of fraud, corruption, partiality or gross misconduct on the part of the arbitrators, will be set aside by a court of equity, where courts of law do not possess the power, as being against equit}^ and good conscience," unless the party apply- ing therefor has done that which amounts to a waiver.' If there has been no waiver, the award may be set aside upon those grounds, even though the parties agreed in the submission that there should be no exception or appeal.* In order to impeach an award upon the ground of fraud, corruption or misconduct of an arbitrator, the proof must be clear and conclusive and not depend upon the naked assertion of the other party, or upon mere suspicion." But it may be inferred, where the award is so manifestly unjust as irresisti- ' See sections 16-18, post. '■ Bulkley v, Starr, 2 Day 552; « Pottle V. McWorter, 13 111. 454; Spurck v. Crook, 19 111. 415. Ross V. Watt, 16 111. 99; Mer- ^ Baird v. Crutchfield, 6 Humph. rett V. Merrett, 11 111. 565; Sherfy v. 171; Rand t. Redington, 13 N. H. Graham, 72 111. 158; Buntain v. Cur- 72; Conway v. Duncan, 28 Ohio 102; tis, 27 111. 374; Tucker v. Page, 69 Toiving Co. v. Taylor, 126 111. 250. 111. 179; Wlietstone v. Thomas, 25 "> Noyes v. Gould, bTif.B.. 20; Sea- 111. 361. ton V. Kendall, 61 111. App. 289. 8 Alfred v. R. R. Co., 92 111. 609; ^ Speer v. Bidwell, 44 Penn. 33. Glade v. Schmidt, 20 Bradw. 157; « Coryell v. Coryell, 1 N. J. Law Steams v. Cope, 109 111. 340. 888; Hardeman v. Burge, 10 Yerg. * Bannister v. Read, 1 Gilin. 92; 202; Hamilton y. Hor^ 3 Blackf. 68; see Ins. Ass'n y. Briggs, 22 111. App. Gallant v. Downey, 2 J. J. Marsh. 107. 346. ARBITRATION AND AWARD. 591 bly to lead to the conclusion, as, where the amount awarded is nearly three times as much as was claimed.' To warrant the court in setting aside an award upon the ground of fraud or corruption upon the part of the arbitrators, upon the ground of excessive damages, the amount awarded must be so grossly extravagant as to negative the idea that it expresses the honest judgment of the arbitrators." If an arbitrator was intoxicated during the hearing, the award will be set aside without any other proof, as that is evi- dence of such misconduct as ought to vitiate his action upon the matters between the parties.^ Where there is no evidence of partiality, an award will not be set aside because one of the arbitrators is a creditor of one of the parties; * or had previously expressed an opinion upon the matters in dispute.^ And it is no ground for setting aside an award of an arbitrator, that he had formerly been counsel in another suit for the party in whose favor he found, although this fact was not known or communicated to the party against whom the award was made, or to his counsel, in the absence of evidence that the fact was intentionally con- cealed." Private conversations concerning the controversy between a party, his agent or attorney, and one of the three arbitra- tors, after the selection of the latter, is a ground in chancery for setting aside the award; ' although a conversation with a third party is held to be no ground for disturbing the award; but an arbitrator, after being chosen, should not listen to state- ments as to matters involved, except when given in evidence." It is the duty of an arbitrator, as of a juror or judge, to keep himself, as far as possible, free from any influence that ' R. R. Co. V. Moore, 28 Geo. 398; 26; Wallis v. Carpenter, 13 Allen. R(ind V. Redington, 13 N, H. 72. 19. '^Burchell v. Marsh, 17 How. (U. * Graves v. Fisher, 5 Me. 69; Fox S.) 344; Rudd v. Jones, 4 Dana 229. v. Hazelton, 10 Pick. 275. Van Cortlandt v. Underhill, 17 "^ GoofZr/c/i v. lf«Z&er<, 123 Mass. 190 John. 405. ' Mosier v. Shear, 102 III. 169. » Smith V. Smith, 28 111. 56. » Shear v. Mosier, 8 Bradw. 119; * Fischer v. Towner, 14 Comm. Strong v. Strong, 7 Cush. 560; John- son V. Holyoke, 107 Mass. 473. 592 AEBITKATION AND AWARD. would tend to impair his impartiality or expose him to the suspicion of prejudiced But as a long^er interval of time usu- ally occurs between his selection and his service, subjecting- him to greater exposure, and not being specially advised of his duty, and restrained in his conduct by the direction and authority of a court, greater latitude is to be expected and tolerated in his case, than in that of a juror,^ It is held to be sufficient to authorize a court of equity to enjoin a suit at law upon an award, and set aside an award, that one of the parties in interest made a statement to one of the arbitrators, in the absence of the adverse party, designed and having a tendency to improperly affect his decision as an arbitrator, without showing that such statement, in fact, pro- duced any harmful result to the other party. And a party to an arbitration, who, by overt acts, attempts to corrupt or im- properly influence the arbitrators, or any one of them, to make an award in his favor, will not be heard to say that he was impotent to accomplish what he sought, and to raise an issue thereupon.^ Mistake. — A common law award can not be set aside for mistake, either of law or facts, unless the error is so palpable as to show that injustice has been done, as they are the judges of both. But under statutory submissions, it is held that an award may be set aside for mistakes as to the facts, when such mistake clearly appears upon the face of the award; * and the arbitrators were evidently misled or deceived thereby.* The instances are rare, in which an award .will be set aside for mistake of facts.' And an award will only be set aside 1 Shear v, Mosier, 8 Bradw. 119; ler v. Wall, 9 R. I. 264; Sisk v. Morville v. Tract Soc, 123 Mass, Garey , 21 Md. 401; Morse on Arb. 139; Gas Co. v. City, 5 W. Va. 492; and Award, 534; 3 Story's Eq., Sec. see Haiinroth v. Peters, 50 111. App. 1452a. 366. '* Conger v. James, 2 Swan. 213; ^ Shear v. Hosier, 8 Bradw. 119; Halstead v. Seaman, 52 How. (N. Jones V. 3{iller, 1 Dallas 205; Graves Y.)415; Fudicker v. Ins. Co., 62 N. V. Fisher, 15 Maine 54; Gas Co. v. Y. 392. City, 5 West Va. 492. * Roloson v. Carson, 8 Md. 208; " Catlett V. Dougherty, 114 111. 6 Wait's Ac. and Def. 549. 568; Hosier v. Shear, 102 111. 169; ^ Pulliam v. Pensoneau, 33 111. Strong v. Strong, 9 Cush. 574; Cut- 374; Si^urck v. Cook, 19 111. 425; AEBITEATION AND AWARD. 593 upon the ground of a mistake as to the law, when the submis- sion requires that they shall decide according to law, or it is evident from their award that they intended so to decide, but acted under a clear mistake as to what the law was.' Of award prepared by one of the attorneys.— The fact that an award of arbitrators is prepared by the attorney of the successful party, affords no ground for setting it aside where it fully expresses the findings and conclusions of the arbitrators." Signing of the award. — It is not necessary that the award should be signed at the same time and place;^* nor that the parties should be present when signed.* When conrt may correct award. — Section 10 of the act re- lating to arbitration and awards provides that " If there be any evident miscalculation or misdescription, or if the arbitrators shall appear to have awarded upon mat- ters not submitted to them, not affecting the merits of the de- cision upon the matters submitted, or where the award shall be imperfect in some matters of form, not affecting the merits of the controversy, and where such errors and defects, if in a verdict, could have been lawfully amended or disregarded by the court, any party aggrieved may move the court to modify or correct such award." This section does not give the court equitable power to re- form an award. It is intended to give the court authority to correct awards in matters of form merely.' There is no doubt of the power of a court of equity to cor- rect a mistake in an award where it is the mutual mistake of all the arbitrators. The award is sometimes treated as the judgment of a tribunal of the parties' own choosing, and sometimes as an agreement which they have authorized the arbitrators to make for them. Regarding it in the latter Water Co. v. Gray, 6 Mete. 131; ^Steere v. Broumell, 113 111. 415; Learned v. Bellows, 8 Vt. 79; 3Ic- see Kilderhouse v. Hall, 116 111. 147. Calinotit V. Wliittaker, 3 Rawle, 84; ^ Blodgett v. Prince, 109 Mass. 44. 2Greenl. on Ev., Sec. 78. * Roloson v. Carson, 8 Md. 208; ' Crissman v. Crissman, 5 Ired. Saunders v. Heaton, 12 Ind. 20; 498; Muldrow v. Norris, 2 Cal. 74; Steerev. Brownell, 113 111. 415. Johnson v. Noble, 13 N. H. 28G; » Howell v. Hotcell, 26 III. 460; see Johns V. Stevens, 3 Vt. 308. Farr v. Johnson, 25 III. 522. 38 59-i ARBITRATION AND AWARD. character, courts of equity have assumed to correct a mistake in an award where it is mutual, was acquiesced in by all the arbitrators, and where the award as made is not their award, but if corrected would be the award of all of them.' If an award is within the submission, and contains the honest decision of the arbitrators after a fair hearing, a court of equity will not set it aside for error in law or fact.^ When motion to set aside, or modify, must be made. — It is required by section 11 of the same statute that " Application to set aside, modify or amend such award, as provided in the two preceding sections, must be made before the entry of final judgment on such mw^rd; provided, nothing herein contained shall be so construed as to deprive courts of chancery of their jurisdiction, as in other cases." Error and appeals.— Section 12 of the same statute author- izes — " Writs of error and appeals may be taken from any de- cision of the court by the party deeming himself aggrieved, as in other cases; and if the supreme court shall remand the case, such further proceeding shall be had as the nature of the case may require." There is no appeal from or review of an award within the jurisdiction of the arbitrators, except for fraud, partiality or misconduct.* , Compensation of arbitrators — Fees of witnesses. — Section 13 of the same statute provides that " Each arbitrator shall be allowed, for every day's attend- ance to the business of his appointment, $2, to be paid in the first instance by the party in whose favor the award shall be made, but to be recovered of the other party with the other costs of suit if the award or final decision shall entitle the prevailing party to recover costs. Witnesses shall receive the same fees for attendance at arbitrations as shall be allowed ^ Einsmeyer V. Sauter, 77 111. 515; ^ BurcheU v. Marsh, 58 U. S. (17 Stone V. Atwood, 28 111 . 30 ; Ballance How . ) 344 . v.l7H,der/i,iZZ, 3 Scam. 453; PwZZzaw ^Sherfy v. Graham, 73 111.158; V. Pensoneau, 33 111. 375; see Toby Phelps \. Dolan, 75 111. 90; see Vvn V. Rou-e, 18 Bradw. 293; Catlctt v. V/inJdev. Beck, 2 Scam, 488; Rogas Dougherty, 114 111. 508. v. Holden, 13 111. 293. AEBITKATION AND AWARD. 595 them in the circuit courts. Sheriffs, constables, clerks and justices of the peace shall be entitled to the same fees for services performed, in relation to any arbitration, as shall be allowed by law for the like services in their respective courts." Arbitrators may be compelled to duty. — Section 14 of the same statute declares that " arbitrators may be compelled by order of the court in which any cause submitted to them shall be pending, to proceed to a hearing thereof, and to make a report without unnecessary delay." Record of reference. — It is provided by section 1 5 of the same statute that " when any cause pending in any court shall be referred, as herein provided, an entry of such refer- ence shall be made on the record, and day shall be given to the parties, from time to time, until the arbitrators report, or they may be thereof discharged, on filing such report." In matters not in suit. — Section 16 of the statute relat- ing to arbitrations and awards provides that "All persons having a requisite legal capacity may, by an instrument in writing, to be signed and sealed by them, sub- mit to one or more arbitrators any controversy existing be- tween them, not in suit; and may, in such submission, agree that a judgment of any court of record, competent to have jurisdiction of the subject-matter to be named in such instru- ment, shall be rendered upon the award made pursuant to such submission." The first section of the act, as we have seen srtpra, relates exclusively to pending suits, in which class of cases the court has authority to enter an order submitting the matter involved to three arbitrators. Section sixteen, above quoted, relates exclusively to controversies not in suit. Under section one, the court has no authority to order a submission to one arbi- trator, or to any greater or less number than three; nor has the court authority to make an order of submission in respect to any matter not involved in a suit pending. Under section sixteen, parties may submit controversies between them to anv number of arbitrators mutually agreed upon, but to entitle them tx> have a judgment rendered upon the award, it must affirmatively appear that the submission was of matters not in suit. Unless this appears in the articles of submission, the 596 AEBITRATION AND AWARD. court is without jurisdiction to enter judgment and the party is left to his remedy independent of the statute.' The juris- diction of the court in such cases is conferred exclusively by the statute, and the statute must be strictly construed.^ But the statute does not abridge the common law right of parties to adjust their differences by arbitration.^ Proceedings under section 16. — Section 17 of the same statute provides that " upon a submission under the foregoing section, the arbitrators shall take the same oath, and may compel the attendance of witnesses, and shall proceed in the same manner as if the submission had been made in a cause of pleading." A provision in a lease for appointment of persons to fix the rent to be thereafter paid, is not a submission to arbitration so as to require notice to the parties of the time and place of the meeting of the appraisers.* Award under section 16. — It is provided in section 18 that " the award and instrument of submission may be filed in a court of record of competent jurisdiction, within the same time and upon like conditions, and notice and proceedings had thereunder, and judgment entered, the same as if the award had been made in a suit pending in such court.^ II. COMMON LAW SUBMISSION. Common law submissions differ from statutory submissions, in that they are dependent entirely upon the agreement of the parties, and have no validity if either withdraws his as- sent before an award is made, and in that the award merely has the force of a debt in favor of the person in whose favor it is made, against the other party, and can only be en- forced by an action at law thereon, or by application to a court ' Martine v. Harvey, 12 Brad. 587; * Norton v. Gale, 95 111. 533: Stose Lou-e V. Nolte, 15 111. 368. v. Heissler, 120 111. 433; Pearson v, 2 Lowev. Nolte, 15 111. 368; Ham- Sanderson, 128 lU. 88; S. C ., 28 111. ilton V. Hamilton, 27 111. 158; Ran- App. 571, kin\. Rankin, 36 111. 293; Martine ^Rev. Stat. (1893), 165; Rev. Stat. V. Harvey, 12 Bradw. 587. (1895), 168; 1 Starr & Curtis 306; 3 Smith V. Douglas, 16 111. 34; see Seaton v. Kendall, 61 111. App. 289. Coimivall V. March, Breese 295 ; R. R. Co. V. Alfred, 3 Bradw. 511. ARBITRATION AND AWA..^. 597 of chancery for a specific performance. But, while a common law award is not a judgment in the strict sense of the word, and can not be enforced as such, yet it possesses many of the attributes of a judgment, and in many cases reaches further, and more effectually settles controversies between parties than would a judgment of a court of law. A court of law can only conclude the parties as to matters set forth in the decla- ration under which the judgment is rendered, and only their legal rights, leaving all equitable rights still open for adjust- ment. But an award reaches out and embraces and settles all the rights of the parties as to the matters submitted, Ijoth legal and equitable, and forever settles all controversies per- taining thereto, so that no other human tribunal, as between the parties thereto, and their privies, can ever re-adjudicate them, unless the award is first set aside upon the ground of fraud, misconduct or mistake.' How submitted. — At the common law, a submission may be made either in writing or by parol, by the agreement of the parties, and an award made in pursuance of a parol sub- mission is as binding upon the parties as one made in writing,^ But where a writing is required to pass the thing in contest, such as disputes concerning real estate, the submission and award must be in writing; in all other cases a verbal submis- sion and award will effectually conclude the parties.^ But even if the rule were otherwise, relative to submissions relat- ing to land, such submission would be void under the statute of frauds.* It is held that matters relating to the price of land may be submitted by parol;' and it has been held in Pennsylvania, that a parol submission as to a boundary line is valid." And so is ^Rogers v. Holden, 13 111. 293; Titus v. Scantling, 4 Blackf. 89 Hadaimy v. Kelly, 78 111. 286; Oer- Shockley v. Glasford, 6 Dana 90 risk V. Ayres,^ Scam. 2^5; Wmkler Martin v. Chajmian, 1 Ala. 278 V. Beck, 2 Scam. 488; Kimball v. French v. New, 28 N. Y. 147. Walker, 30 111. 482; Tucker v. Page, *Stark v. Cannaday, 3 Litt. 399; 69 111. 180: 6 Wait's Ac. & Def. 506. Philbrick v. Preble, 18 Me. 255; Nor- ^ Phelps V. Dolan. 75 111. 90; Koons ton v. Gale, 95 111. 533. V. Hollingsworth, 97 111. 52. ^ Davey v. Farr, 7 Cranch (U. S.) ^ Smith V. Douglas, 16 111. 34; Val- 172. entine v. Valentitie, 2 Barh. Ch. ^30; * Bowen v. Cooper, 7 Watts 11; 598 ARBITRATION AND AWARD. a parol submission as to damages growing out of a contract relating to land/ if the contract itself is valid. Where the submission is by parol, it is material to prove, not only that both parties promised to abide by the award, but that the prom- ises were concurrent and mutual, for otherwise each promise is but nudum pactum.^ Revocation. — All common law submissions to arbitration, whether by parol, in writing, or by deeds, are revocable, even though the parties expressly agree that they shall not be. No stipulation in such agreements will be sustained, either at law or in equity, which deprives parties from having recourse to courts of justice to settle their differences, if they so elect; consequent!}'', independent of some statutory restrictions, an ag-reement of this character can not be made irrevocable: ^ and this right may be exercised at any time before the award is actually made; * and by such revocation annul all contracts relative to the submission, and leave the other party to rest entirely upon the penalty of the bond, if there is one, or their remedy upon the case, if no bond was entered into.* The institution of a suit by one party before the award has been made, the cause of action being the subject-matter of the arbitration, will operate to revoke, by implication, the agree- ment to arbitrate.' After an award is made and published, neither party can revoke the submission without the consent of the other.' If the submission is by parol, it may be revoked by parol, but see also Orr v. Hadley, 36 N. H. 875; v. Manski, 136 111. 72, same case, 24 Stewart v. Cass, 16 Vt. 663. 111. App. 105. * Carson V. £arZ?/u'in€, 14 Ind. 256. ^ Pond v. Harris, 113 Mass. 114; ^Ingraliam v. Whitmore, 75 111. Aspinwallv, Tousey, 2 Tyler (Vt.) 24; Keep v. Goodrich, 12 Johns. 397; 328; Miller v. Canal Co., 53 Barb. 2Greenl. Ev., Sec. 73; Kingston v. 590; Craftsburg v. Hill, 28 Vt. 763; Phelps, Peake's Cases 227. Brown v. Leavitt, 26 Me. 251. ^Frink v. Ryan, 3 Scam. 322; ^Peters v. Craig, 6 Dana 307, Marsh v. Packer, 20 Vt. 198; Davis Morse on Arbitration, 236; Paulsen V. Maxwell, 27 Geo. 368; Tobey v. v. Manski, 24 III. App. 105; same County, 3 Story (U. S.; 800. case, 126 111. 72. * Leonard v. House, 15 Geo. 473; ' Marsh v. Packer, 20 Vt. 198; Allen V.Watson, 16 John. 205; Bray Clement v. Hadlock, 13 N. H. 185; V. English, 1 Conn. 498; Aspinwall Eastman v. Armstrong, 26 111. 216. v.roiisej^, 2„Tyler(Vt)328; PawZsen . > ARBITRATION AND AWARD. 599 the party must give distinct notice of revocation.' A sub- mission in writing can only be revoked in writing; ' and where the submission is under seal, it has been held that the revoca- tion must also be under seal; ' and it has been held that a parol agreement between the parties to waive and abandon an award, made under a submission under seal, can not be pleaded in bar to an action on the bond.* If the submission is made by one party on one side, and two on the other, one of the two can not revoke it without the assent of the other.* The death of one of the parties to the submission operates as a revocation, jper se, unless otherwise expressly provided in the articles of submission.^ If either of the arbitrators refuses to act, the submission becomes abortive, and both parties are re- leased therefrom,' unless provision is made for such a contin- gency by agreeing upon a substitute.* Who may be arbitrators.— The parties knowing the facts may submit their differences to any person, whether he is in- terested in the matters involved,* or is related to one of the parties, and the award will be binding upon them; and where knowledge of such facts comes to a party after the submis- sion is made, but while there is still power to revoke, if he neglects to revoke the submission, but permits the award to be made, he is treated as having waived the objection, and is ■1 Bac. Abr. 306;A'e?/esv. Fulton, Bailey v. Stewart, 3 W. & S. 560 42 Vt. 159. Dexter v. Young, 40 N. H. 130 ^McFarlane\. Cushman,2\ Wis. Whitfield v. Whitfield, 8 Ired. L, 401; Midlins v. Arnold, 4 Sneed 163; Tyson v. Robinson, ^lved.Z'3,2 262; Evans v. Cheek, 3 Hayw. 42; Marseilles v. Kenton, 17 Pa. St. 238, Antwerp v. Stewart, 8 Johns. 125; ^ Wooley v. Clark, 2 D. & R. 158 but see Paulsen v. Manski, 24 111. Blundell v. Brettargh, 17 Ves. Jr. App. 105. 242; see Church v. Hearson, 41 III. ^ Brown v. LeanDitt, 26 Me. 251; App. 89. Wallis V. Carpenter, 13 Allen 19. « Wilson v. Cross, 7 Watts (Penn.) *Braddick v. Thompson, 8 East 495; Binsse v. Wood, 47 Barb. 624- 344. Woodbury v. Procter, 9 Gray 18. ^Robertson v, McNeil, 12 Wend. ^ JVav. Co. v. Fenlon, 4 W. & S. 578; 1 Bac. Abr. 308. (Penn.) 205; see Ben. Ass'n v. Rob- ^ Melntire v. Morris, 14 Wend. 90; inson, 147 111. 109. Potoer V. Poufer, 7 Watts (Pa.) 205; 600 ARBITRATION AND AWARD. bound by the award.' But if the facts were unknown to one of the parties, the objection woukl be fatal to the award.^ General powers and duties. — There is a broad distinction between the powers of arbitrators under a common law submis- sion, and those appointed under the statute; and this distinction must not be overlooked. In a common law submission, the arbitrators are not required to be sworn, nor are they bound to conform to the rules of law or equity in the admission of evidence; or in arriving at the result. So long as they keep within the limits of the submission, and do not act corruptly, and there is no fraud or evident mistake, their decision is con- clusive." They have the power to decide upon both the law and the facts and neither party can complain that they have made a mistake in either respect.* They are at liberty to decide according to equity and good conscience, irrespective of the rules of law; ^ and in a case where an action of slander was submitted, and the arbitrators awarded damages for words not actionable, the court refused to interfere; * and the rule generally is, both at law and in equity, that arbitrators are clothed with authority to decide the questions submitted to them, and that, if their authority has been fairly and im- partially exercised, their decision can not be revised. To war- rant the court in reviewing their action upon the merits, something more than error of law or of judgment as to the facts must be established. It must appear either that they have transcended their powers, or have committed a mistake so gross and palpable as to evince partiality, corruption or grave misconduct,^ resulting in an injury to the party seeking 1 Davis V. Forshee, 35 Al. 107. ^ Bliss v. Rollins, 6 Vt. 529. '^ Brown v. Leavitt, 26 Me. 251; ^ Shepard v. Watrous, 3 Cai. (N. Hicks V. McDonnell, 99 Mass. 459. Y.) 166. 3 Brown v. Bellows, 4 Pick. 179; ^ Wynn v. Bellas, 34 Penn. 160; Todd V. Barlow, 2 Johns. Ch. 551; Perkins v. Giles, 5S Barb. 342; Wade Golden v. Mueller, 23 111. App. 527. v. Powell, 31 Ga. 1 ; Mulder v. Cra- *Mitchell V. DeSckaamps, 13 Rich. vat, 2 Bay (S. C.) 370; Bennett v. Rus- 9; R. R. Co. V. Scruggs, 50 Miss. 285; sell, 34 Mo. 524; Goldsmith v. Tilley Micklesv. Thayer, lAAWenlU; Mfg. 1 H. & J. (Md.) 361; Bell v. Price, Co. V. Fox, 18 Maine, 117: Crabtree 22N. J. L. 578; iVheatley v. Martin, Q V. Given, 8 Geo. 8; Conrad v. John- Leigh (Va.) Q2; Ashley v. Thomas, son, 20 Ind. 421. 1''' Texas 220; Browni v. Green, 7 ARBITKATION AND AWARD. 601 to avoid their action; ' as a party benefited by a mistake has no reason to complain.^ Recommitting award. — Under a common law submission, the courts have no power to recommit an award to the arbi- trators for correction or reconsideration, or for any purpose. When arbitrators have once executed their powers, by making and returning an award, their powers expire and are forever gone, without the express consent of both parties to recommit the matters in contest to them a^ain.^ The right of the court to remit a cause decided by arbitra- tor to them again, without the consent of the parties, has no more foundation than the right to send a cause to arbitration in the first instance, without their consent. Great injustice might be done in such cases, as in the interval, one party may have discovered that his rights were not safe with the arbitra- tors — that they were prejudiced, corrupter incompetent.* When an award has been set aside, the court will proceed with the case as if it had never been referred.* III. FORMS FOR SUBMISSIONS TO ARBITRATORS. No. 310. Agreement to submit, suit jiending. In the Circuit Court. Term, A. D. 18—. A. B. ) vs. >• In an action of . C. D. ) Know all men by these presents: That we, the above named plaintiff and defendant, do hereby mutually agree to submit the matter involved in the above entitled cause to the decision and award (*) of E. F. , G. H. and Conn. 536; Bridgman v. Bridgman, ^ Russell on Arbitrators, Sec. 8, p. 23 Mo. 272; Ins. Co, v. Hamilton, ^Gl; Fitzgerald \\ Fitzgercdd,B.axdin 48 111. App. 593. (Ky.) 228; French v. Mosely, 1 Litt. ' Daniels v. Willis, 7 Minn. 374; (Ky.) 248; Lansdale v. Kendall, 4 Pomeroy v. Kibbee, 2 Root (Conn.) Dana (Ky.) 613; Aldrich v. Jessi- 92; Tomlinson v. Hammond, 8 vian, 8 N. H. 516; B. R. Co. v. Iowa 40. Bradley, 7 Ind. 53; Doke v. James, " Galvin v. Thompson, 18 Me. 367; 4 Comst. 575; Smith v. Smith, 28 Lymanv. Arms, 5 Pick. 213; Macon 111. 59, V. Crump, 1 CaU (Va.) 575; Brad- * Smith v. Smith. 28 111. 59. Shaw v. Docks, 12 Q. B. 562; 6 "Smith v. Smith, 28 111. 59. Wait's Ac. and Defs. 519. 602' ARBITRATION AND AWARD. J. K., as arbitrators, pursuant to section 1, chapter 10 of the Revised Statutes of this State. Dated this of , A, D. 18—. A. B., Plaintiff, C. D., Defendant. No. 311. Agreement to submit mit pending, each party selecting one arbi- trator, and tlie court tlie third. (Commence as in the last form to tlie (*) and tlien proceed:) of E. F. and G. H., selected by said parties, and agree that the court may name the third ar- bitrator, pursuant to section 1 of chapter 10 of the Revised Statutes of this State. Dated, etc. A. B., Plaintiff, C. D., Defendant. No. 312. Order referring suit pending to arbitrators. (Title of cause.) Upon the agreement of the parties hereto, it is ordered that this cause and the matters involved therein,be, and the same is hereby submitted to tlie decision of E. F., G. H. and J. K., as arbitrators, agreed upon by the parties respectively, in pursuance to the statute in such case made and provided. No. 313. Oath of arbitrators. (Ventie, and title of cause as in No. 310, ante.) We, the undersigned, to vs^hom the matter in controversy involved in the above entitletl cause was submitted by the court, as arbitrators, each of us» on oath state that we, and each of us, will faithfully hear, examine and determine the cause, according to the principles of equity and justice; and will make a just and true award, according to the best of our understand- ing, so help us God. E. F. G.H. J. K. Subscribed and sworn, etc. No. 314. Atixird in suit pending. (Vemte, and title of cause as in No. 310, ante.) To all to whom these presents shall come, or concern, be it known and published : That we, the undersigned, to whom the matters involved in the' above entitled cause were submitted, by the order of the court, therein, as arbi- trators, do declare and publish that we, after being each sworn, as re- quired by the statute, to faithfully hear, examine and determine the said cause, aiccording to the principles of equity and justice, and to make a just and true award according to the best of our understanding, and having ap- pointed a place and time for the hearing of said cause, and having given ARBITRATION AND AWARD. 603 tlie said parties, respectively, notice of the place and time of such hearing, and having been attended by said parties, or their respective attorneys, and having heard the proofs and allegations of the parties, and examined the matters in controversy in said cause, and being fully advised in relation thereto, do make and publish this, our award, in writing. That, etc. {Here insert tlie viatters determined and awarded.) In witness whereof we have hereunto subscribed our names, this day of , A. D. 18—. E. F., G. H. and J. K., Arbitrators. No. 315. Agreement of submvision of a controversy not in suit. (Statutory under section 16.) Know all men by these presents: That whereas a controversy is now ex- isting and pending, but not in suit, between us, the undersigned, in rela- tion to {here state tJienature of the controversy.) That we, the undersigned, do hereby submit to E. F., of, etc., {or E. F., G. H. and J. K., of, etc.,) as arbitrator, {or arbitrators,) the said matter of controversy existing between us; and we do hereby further agree that a judgment of any court of record, competent to have jurisdiction of the sub- ject-matter of said controvei-sy, may be rendered upon the award made pur- suant to this submission, in pursuance of the statute in such case made and provided. Dated, etc. A. B. C. D. No. 316. Award in a controversy not in suit. {Statutory in section 16.) To all to whom these presents shall come, or may concern, be it known and published: That I, E. F., {or we, E. F., G. H. and J. K.,) arbitrator, {or arbitrators) to whom the matter in controversy existing between A. B. and CD., not m suit, was submitted, do declare and publish, that I, {or we) after being sworn, as required by the statute, to faithfully hear, examine and deter- mine the said cause, according to the principles of equity and justice, and to make a just and true award according to the best of my {or our) under- standing, and having appointed a place and time for the hearing of said cause, and having given the said parties, respectively, notice of the place and time of such hearing, and having been attended by said parties, or their respective attorneys, and having heard the proofs and allegations of the parties, and having examined the matters in controversy in said cause, and being fully advised in relation thereto, do make and publish this, my {or o«r) award, in writing, that is to say: • That, etc. {Here insert the matters determined and auxirded.) In witness whereof, I {or ux") have hereunto subscribed my name, (or our nnines) this day of , A. D. 18 — . {Signed by arbitrator or arbitrators.) ; 604 ARBITRATION AND AWARD. No. 317. General agreement for submission of all matters in controversy. {Common lau\) KnoTT all men by these presents: That whereas differences and contro- versies now exist and are pending between the undersigned, A. B. of, etc, and C. D. of, etc., in relation to divers subjects of controversy and dispute; Therefore, we, the undersigned, do hereby submit said differences to the arbitrament of E. F., G. H. and J. K., or to any two of them, to arbi- trate, determine and award, of and concerning all manner of actions, suits, bills, bonds, specialties, controveries. trespasses, damages, debts, claims, demands, and all and every other subject of differences whatso- ever, at any time heretofore had, possessed, instituted, prosecuted, made, began, pending, existing, done, or suffered to be done, committed, or pend- ing, by and between us, directly or ind.rectly. That the said award shall be made in writing, under the hands of the said named arbitrators, or any two of them, ready to be delivered to us, the said parties, or such of us as may desire the same, on or before, etc. That the said award, when made, shall in all things by us, and each of us, be well and faithfully kept, observed and performed. Witness our hands {and seals) this day of A. D. 18 — . A. B. [seal.] C. D. [SEAL.] No. SIS. Agreement of subinission of particular mntter in controversy. {Common law.) Know all men bj' these presents: That whereas divei-s disputes and con- troversies have arisen and are now depending between the undersigned, A. B. of. etc., and C. D, of, etc., touching and concerning {state the matter in controversy.) That for the determination and ending of the said controversies, it is hereby mutually agreed by and between the said parties, that all matters in controversy between them, touching and concerning all and every matter and thing above mentioned and specified, shall be referred and submitted to the arbitrament and determination of E. F. {or E. F., G. H. and J. K., or any two 'of them). That the said award shall be made in w^riting, under the hand of said arbitrator {or under the hands of said arbitrators, or any two of them,) ready to be delivered to said parties, or such of them as shall desire the same, on or before the day of , A. D. 18 — . That the said award when so made shall in all things by us and each of us be well and faithfully kept, observed and performed. {To be signed by the parties.) The parties may agree that each shall give a bond to the other for the faithful compliance with the award of the arbi- trators. In such case the following form of such bond may be used : AKBITKATION AND AWARD. 605 No. 319. Arbitration bond, to be given by each party to the other. Know all men by these pr&sents : That I, (.4. B. or C. D.)of, etc., am held and firmly bound unto (C. D. or A. B.) in the sum of dollars, for the payment of which I bind myself, and legal representatives, by tliese presents. The condition of the above obligation is such, that if the above bounden {A. B. or C. D.), or his legal representatives shall submit, perform, and comply with the determination and award of E. F,, G. H. and J. K., the arbitrators named and selected by said parties to determine and award of and concerning Qiere describe the matter submitted), in accordance with the terms of submission agreed upon between said parties, of even date here- with, then this obUgation shall be void, otherwise to be, and remain in full force and effect. Witness my hand and seal this day of , A. D. 18 — . {To be signed by the party executing the bond.) No. 320, Award, on common laiv s2d)mission, by single arbitrator. Know all men by these presents: That by an agreement of submission, bearing date, on, etc., the matters in difference, etc., between A. B. and C. D. , were by them submitted to the consideration of the under? igned, arbi- trator, to hear, determine, and award concerning the same. That by virtue of said agreement of submission, and after having given the said parties, respectively, due notice of the time and place of said hear- ing, and after hearing the proofs and allegations of the respective parties, and examining the subject in controversy between them, I do determine and award as follows : That, etc. (Here set out the matters determined and airarded.) Witness my hand {a7id seal) this daj- of , A. D. 18 — . E. F., [SEAL.] Arbitrator. No. 321. Award, on common law submission, by three, or more, or less, arbitrators. To all to whom these presents shall come, or concern, be it known and published: That we,.E. F., G. H. and J. K., arbitrators, to whom were submitted the matters in controversy existing between A. B. and C. D., as by agreement of submission, bearing date on, etc., more fully appears. That we, tlie said arbitrators, after having appointed a time and place for the hearing of said matters, and after having given due notice thereof t<} the respective parties, and having heard the proofs and allegations of the parties, and examined the matters in controversy submitted, do make, de- clare and publish the following award and determination concerning the same, to wit: That, etc. {Here insert the matters awarded and determined.) In witness whereof, we have hereunto set our hands(a/icZ seals) this • day of , A. D. 18—. E. F., G. H. and C. D., [seals.] Arbitrators. CHAPTEE XX. CONFESSION OF JUDGMENT. In Illinois. — The statute of Illinois provides as follows : " Anv person for a debt honafide due, may confess judgment by himself, or attorney duly authorized, either in term or va- cation, without process. Judgments entered in vacation shall have like force and effect, and from the date thereof become liens, in like manner and extent as judgments entered in term." ' Practice. — The established practice, in Illinois, in cases of confession of judgment in courts of record, is to file a declara- tion on the cause of action, a warrant of attorney (usually accompanying a promissory note) with an affidavit proving it, and a plea of confession, or cognovit^ The declaration. — The declaration should correspond with the nature of the action, and may be taken from the prece- dents already given. It is not essential, but according to the practice, to tile a declaration on a confession of judgment.^ Warrant of attorney. — A warrant of attorney to confess judo-ment for a debt, authorizes the attorney therein named to appear for the defendant and receive a declaration in an action for the debt, and to confess the action, or suffer judgment by nil dicit, or otherwise, to pass,* The doctrine is well settled that a power to confess a judg- ment must be clearly given and strictly pursued, or the judg- ment will not be sustained.* But the rule has its reasonable » 2 Starr & Curtis, 1828; Rev, Stat, * French v. Miller, 126 111. 611. (1893) 1079: Rev. Stat. (1895) 1163; * Campbell v. Ooddard, 117 111, see Atwater v, Barik, 152 111. 605. 251; Frye v. Jones, 78 111. 632; Keith « See Roundy v. Hunt, 24 111. 598; v. Kellogg. 97 III. 147; Gardner v, Iglehart v, Morris, 34 111. 501 ; Bush Bunn, 132 111. 403;, Poppers v. Meager, v. Hanson, 70 111. 480; Stein v. Good, 33 111. App. 19; Roundy v. Hunt, 24 16 111. App. 516; Tucker v. Gill, 61 111. 598; Tucker v. Gill, 61 111. 236; 111, 236: Martin v. Judd, 60 111. 78. Chase v. Dana, 44 III. 262; Matzen- ^ Russell v.Lillja, 90 111. 327. baugh v. Doyle, 56 111, App. 343, (606) CONFESSION OF JUDGMENT. ^07 limitations and must not be applied with such strictness as to defeat the obvious intention of the party granting the power.' Proof of the execution of the warrant of attorney is juris- dictional, and can not be dispensed with. Where the confes- sion is taken in vacation, an affidavit of the execution must be filed.'' The warrant of attorney is usually attached to the note, or other evidence of debt, upon which the confession is to be taken. Although it is usual to affix a seal to the warrant of attorney, it is not necessary to do so.' The proof or the warrant, etc., when the judgment is con- fessed in open court, may be made orally, but it is usual and preferable even in term, and necessary in vacation, to make such proof by affidavit, which may be as follows: No. S22. Proof of warrant of attotmey, etc. State of Illinois, ) County of ) set. E. F. of, etc., makes oath and says, that he knows C. D., whose name is subscribed to the promissory note and warrant of attorney hereto annexed, (*) and was present and saw him sign tlie said note and warrant, on or about the day the same bears date. Subscribed and sworn, etc, E. F. If the proof is only as to the handwriting, then instead of the words following the asterisk in the above form, say : " And has seen him write, and is acquainted with his handwriting; and that the signatures, purporting to be his, to the said note and warrant, are in the handwriting of the said C. D." The cognovit. — A cognovit containing the words " I can not deny " is sufficient to authorize the clerk to enter up a judgment.* Where the name of an attorney is signed to a cognovit by ' Holmes y. Parker, 125 111. 478. Oppenheimer v. Giershafer, 54 III. 2 Stein V. Good, 115 111. 93; Gard- App. 38. ner v. Bunn, 132 111. 403; Durham ^ Truett v. Waimanght ,4 Gilm. V. Broivn, 24 111. 93; Roundy v. 411; Tidd's Pr. 546; see SIoo v. Hunt. 24 111. 598; Thayer x. Finley, Bank, 1 Scam. 428; Adams v. Ar- 86 111. 262; BaU v. Miller, 38 111. nold, 86 111. 185. 110; see Iglehart v, Morris, 34 111. * Lewis v. Barber, 21 III. App. 638. 501; Iglehart y. Church,'^ 111. 255; 60S CONFESSION OF JUDGMENT. another person without his knowledge, the cognovit will be held valid until repudiated.' No. 323. Cognovit. In the court. C. D. ) Term, 18—. ats. Y Assumpsit. A. B. ) And the said C D., defendant, by G. H., his attorney, comes and waives service of process, etc., and confesses that the said A. B.. plaintiff, on occasion of the non-performance of the several promises in the said dec- laration mentioned (and including the sum of dollars for his reasonable attorney's fees in this behalf), has sustained damages to the amount of dollars, over and above liis costs by him about this suit expended. And the defendant agrees that judgment may be entered against him, in this be- half, for that amount and such costs; and that no writ of error or appeal shall be prosecuted on such judgment, nor any bill in eqviity exhibited to interfere in any manner with the operation thereof : And he releases all error that may intervene in the entering of such judgment, or in the issu- ing of execution thereon, and consents to immediate execution on such judgment. In term time. — Where a judgment is taken in open court on warrant of attorne.y, the matter must be brought before the judge in person, and passed upon by him. It can only be entered by the clerk, in vacation.^ A judgment by confession can, in term time, only be entered in open court.* Where a judgment is taken in term time it is immaterial whether the record of the same is written up or not at the time an execution is issued thereon.* But an execution issued before a judgment confessed in vacation has been entered up by the clerk, is void and can not be cured by a subsequent amendment of the record.' The record of a court showing a judgment by confession in open court, imports verity, and can not be contradicted by parol evidence.* i Hall V. Jones, 33 111. 38; see ' Bafcer v. Barber, 16 111. App. 621; Martin V. Jiicld, 60 111. 78. Liiig v. King, 91 III. 571; Cummins 2 Anderson v. Field, 6 Bradw. 307. v. Holmes, 109 111. 15. 3 Conkling v. Ridgely, 112 111. 40; « Weigley v. Matson, 125 III. 64; Anderson v. Field, 6 Bradw. 807. Hansen v, Schlesinger, 125 111. 230; ♦ Weigley v. 3Iatson, 125 111. 64. Boche v. Beldam, 119 111. 320. CONFESSION OF JUDGMENT. 609 In vacation — Power of clerk. — "Where a judgment is en- tered in vacation by the clerk, the proper papers should be filed with him, and these become part of the record; and a bill of exceptions is not necessary to bring them before the supreme court. Judgments confessed in vacation are not judicial acts. They are merely conclusions of law, or con- tracts acknowledged of record.' The clerk has no power to enter a judgment by confession in vacation without proof being first filed of the execution of the power of attorney.^ The clerk has no power to pass upon the sufficiency of the papers so filed. If papers purporting to be in conformity to the practice are filed, the clerk must enter the judgment; and if they are insufficient to warrant the confession, the defend- ant may apply to the court, when in session, to have the judg- ment vacated; and from the decision of the court on that application the parties may prosecute a writ of error in the supreme court. Where such judgments are confessed in open court, it is presumed that the authority to confess the judg- ment was judicially passed upon by the court,^ at least when the record recites that due proof of the warrant was made.* but a judgment confessed in vacation creates no such pre- sumption," The confession of a judgment in vacation will not be held valid unless there is a strict compliance with the statute.' Where a judgment confessed is void for want of proof of power to execute the warrant of attorney, such proof can not after- wards be received to cure the defect.' ^Durham v. Brown, 24 111. 93; Biinn v. Gardner, 18 Bradw. 94; Stein V. Good, 115 111. 93; Conkling Campbell v. Goddard, 117 111. 251. V. Ridgley, 112 111. 36. ^Durham v. Brown, 24 111. 93 •^Gardner v. Bunn, 132 111. 403, Iglehart v. Ins. Co., 35 111. 514 and cases there cited. Bunn v. Gardner, 18 Bradw, 94 ^Roundy v. Hunt, 24 111. 598; Campbell v. Goddard, 117 111. 251 Iglehart v. Morris, 34 111. 501; Hall Matzenbaugh v. Doyle, 156 111. 331. V. Jones, 32 111. 38; Martin v. Judd, ^Matzenbaugh v. Doyle, 56 111. 60 111. 78; Russell v. Lillja, 90 111. App. 343; Stein v. Good, 115 111. 93; 327. MTiitney v. Bohlen, 157 111. 571: * Iglehart y. Church, 35 111. 255; Gordner v. 5jm«, 132111. 403. Iglehart v. Ins. Co., 35 111. 514; ■> Bailey v. Snyder, 61 111. App. 89 472. GIO CONFESSION OF JUDGMENT. When may be taken before maturity. — A judgment by confession may be entered on a note before its maturit3% when the warrant of attorney authorizes the entry at " any time after the date " of the note.' Where the warrant authorizes the entry of judgment " at any time hereafter " it may be en- tered on the same day the power is executed; "" but where the warrant is to confess " at any time from and after date," a judgment can not be taken until after the day of the date has elapsed.' A judgment by confession is not void because en- tered by the clerk on a legal holiday.* Attorney's fees. — A judgment by confession, on a warrant of attorney, may properly include attorney's fees, if authorized by the warrant.* But where a promissory note contains an ao-reement on the part of the maker, that in case suit is brought on the note he will pay a certain sum as attorney's fees, sucli sum is not due until after suit is brought, and can not be included in the judgment.* Where a warrant of attorney au- thorizes a confession for amount due, " and a reasonable attor- ney's fee," the court must determine the reasonable attorney's fee.' The moral obligation resting on a debtor to see that his creditor gets all his money without deduction for fees, is a suf- ficient consideration for the confession of a judgment, includ- ing reasonable attorney's fees; but where the debtor is insolv- ent, it is held that the including of attorney's fees is fraudulent and void as to other creditors.' Confession by a partner. — One partner can not execute a warrant of attorney, to confess a judgment in the firm name, ^Sherman v. Baddely, 11 III. 622; '^Bradley v. Clandon, 45 HI. App. Adams \. Arnold, 86 111. 185; Frye 326, and cases there cited. V. Jones, 78 111. 627; McDonald v. ^ Ball \. Miller, 38 111. 110; Weig- Chisholm, 131 111. 273. ley v. Matson, 125 111. 64. ^Thomas v. Mueller, 106 111. 36; '^ Nickerson v. Babcock, 29111 497. Cummins v. Holmes, 11 111. App* '^Campbell \. Goddard, 117 HI. 158; Cohen v. Burgess, 44 111. App* 251; same case, 123 111. 220; see Fol- 206; Bankv. Havens, 61 111. App. lansbee v. Mfg. Co., 5 Bradw. 17; 211. Sole.sT. Sheppai-d, 99 HI. 620; Keith 3 Waterman v. Jones, 28 HI. 54; v. Kellogg, 97 111. 147. llliitev. Jones, 38 111. 159: Chisholm » Hidse v. Mershon, 125 111. 52. V. McDonald, 30 111. App. 176. CONFESSION OF JUDGMENT. 611 without express authority from, the other partner, or the rati- fication of the act by the latter;' but to enable a third party to raise the question, he must show that his rights have been in- vaded.' Confession hj corporation. — Neither the president nor treasurer of a corporation has an implied power, by virtue of his office, to confess a judgment against the corporation.' They can only exercise such power when it has been given them in express terms by the board of directors.* Where the general financial manager of a corporation ex- ecutes a judgment note in the course of business, he will be presumed to have acted within the scope of his power, even though no resolution of the directors is shown; and a stranger dealing with him, without notice of want of authority, will be protected. If the act is knowingly acquiesced in by the corpo- rate authorities, it becomes binding.^ By an infant. — A minor can not execute a valid warrant to confess a judgment, and a judgment based upon such warrant is void." In cases of tort, — The practice of entering judgment by confession upon warrant of attorney, without process, in actions for tort, is not allowable by the common laAv. It is allowed only in respect to debts.' Sureties. — The statute concerning sureties provides that no surety shall be suffered to confess judgment, or suffer judgment to go by default, so as to distress his principal, if the latter will enter himself as defendant to the suit, and ten- der to the surety other good and sufficient collateral security, to be approved by the court in which the suit shall be pend- ing.' ^Heir\. Kaufman, 134 111. 215; Sloo 313; see Burcli v. West 134 111. 258; V. Bank, 1 Scam. 428; Martin v. Bailey v. Snyder, 61 111. App. 472. Judd,m\\\.lS\XJhlendorf\.Kauff- ^ Atwater v. Bank; 152 111.605; man, 41 111. App. 375. McDonald v. Crisholm, 131 111. "^ McCormick V . Coe, 53 III. App. 273; Moravvetz on Corp., Sec. 6-18. 488; Martin v. Judd, 60 111. 78; Far- « Fuqna v. Sholem, 60 111. App. 140. ?t7eZZ V. CooA;, 42 111. App. 291. Trench v. Wilier, 126 III. 611; ^Joliet V. Ingalls, 23 111. App. 45; Buryisv. Xash, 23 111. App. 552. Adams v. Print. Co., 27 111. App. » 2 Starr & Curtis 2373; Rev. Stat. 313; Boston V.Fisher, 59111. App.400. (1893) 1420; Rev. Stat. (1895) 1518. * Adams V, Print. Co., 27111. App. 612 CONFESSION OF JUDGMENT. Vacating juclgnient. — Courts of law possess an equitable jurisdiction over judgments entered by confession upon war- rants of attorney/ and in proper cases will liberally exercise such jurisdiction.^ The question, on a motion to vacate the judgment, is not whether it shall be set aside for errors of law, but whether there are equitable reasons why it should be opened up to let in a defense.* Where an application is made for the exercise of this equi- table power, and it clearly appears that the plaintiff was not entitled to judgment on the bond, or note, and warrant of at- torney, the court will vacate the judgment, and leave him to pursue the ordinary remedy by action; but' if the case is in- volved in doubt, or the testimony is so contradictory that the truth can not be ascertained with reasonable certainty, an is- sue may be directed to try the question — in other words, the defendant may be let in to make a defense on the merits." The court, in such case, will fully protect the rights of the parties, by staying all proceedings on the judgment, and per- mitting it to stand on a lien and security, until the merits of the case are heard and determined. If the defense is success- ful, the judgment fails; if otherwise, the judgment is to be enforced.^ The court has power to open a judgment when usury is alleged, to hear the parties, and reduce the amount of the judgment or set it aside altogether.* If a judgment is entered by confession for more than is authorized by the war- ^ Condon v.Besse,8QI\\A5Q; Lake don v. Goodell,M 111.429; Hall v. V. Cook, 15 111. 353; Campbell v. Jones, 33 111. 38; see Bolton v. Mc- Goddard, 17 111. App. 382; Heir v. Kinley, 22 111. 203; Stein v. Good, Kaufman, 134 111. 226; Farwell v. 115 111. 93. Huston, 151 111. 239.; Packer v, Rob- * parwell v. Huston, 151 111. 239; erts, 140 111. 9; Jordan v. Hunting- Lake v. Cook, 15 111. 353; Condon v. ton, 58 111. App. 646; Bank v. Ha- Sesse, 86111. 159; Norton v. Allen, 69 vens, 61 111. App. 213. 111. 306; Gibboney v. Gibboney, 2 '^Lake v. Cook, 15 111. 353; Ken- Bradw. 322; Packer v. Roberts, 140 nedy v. Evans, 31 lU. 258; Hall v. 111. 9. Jones, 32 111. 38; Burwell v. Oi'r, 84 « Fleming v. Jenska, 22 111. 475; 111. 465. McGuire v. Campbell, 58 III. App. 3 Knox V. Bank, 57 111. 330; Mum- 188; Mumford v. Thomas,\h'l 111. 258; ford V. Thoman, 157 111. 258. Chicago v. Bank, 145 111. 481. * Lake v. Cook, 15 111. 353; Gor- CONFESSION OF JUDGMENT. 613 rant of attorney, application should be made in the court where the judgment was entered, to correct it,' but a stranger to the record can not complain, although he be a creditor." An assignee for the benefit of creditors is the proper party to make the motion to vacate a judgment confessed by the as- signor, before making the assignment.* Where the defendant has been let in to plead, the original judgment standing as security, and the amount thereof was reduced by a verdict, an order of the court, that only the amount found by the jury should be made on the execution already issued, was held to have been properly made.* The like rule prevails in all cases of mere irregularity in the entry of judgment by confession; and on application to set aside the judgment, some equitable ground for relief must be shown.' A judgment entered by confession in vacation, on a promis- sory note, more than a year and a day after its maturity, will not be set aside, or the defendant let in to make a defense, merely because there was no evidence filed that the defendant was still living, and that the debt, or a part of it, remained unpaid, and no order of a judge was obtained for the entry of the judgment. In addition to the want of proof, or an order of a judge, it must appear that the defendant has a meritorious defense." Where a judgment was confessed on a note, dated April 2-1, ^ Iglehart v. Morris, M 111. 501; ^ Risiyig v. Brainard, 36 El. 79; Stuhl V. Shipp, 44 111. 133; see Ball v. Miller, 38 111. 110; Stuhl v. Zuckerman v. Solomon, 73 111. 130; Shipp, 44 111. 133; Campbell v. God- Campbell V. Goddard, 117 111. 251. dard, 17 Bradw. 383; Packer v. Rob- 2 Adams v. Arnold, 86 111. 185. erts, 140 III. 9; Hansen v. Schlesin- * Martin v. Knight, 56 111. App. 65; ger, 125 111. 230; Heir v. Kaufman, Roche V. Beldam, 119 111.320; Conk- 134 111. 226; Atkinson v. Foster, 134 ling V. Ridgley, 112 111. 36; Baker v. 111. 472. Barber, IQ 111. App. 621; Kingman ^Hempstead v. Humphreys, Z%\\\. V. Reinemer, 58 111. App. 173. 90; see Hinds v. Hopkins, 28111. 344; * Boynton v. Remvick, 46 111. 280; Rising v. Brainard, 36 111. 79; Far- Page V. Wallace, 87 111. 84; Wcdker toell v. Meyer, 36 111. 510; Stein v. V. Ensign, 1 Bradw. 113; Stein v. Good, 16 Bradw. 516; Alldvitt v. Good, 115 111. 93: BorcJisenius v. Bank, 22 111. App. 24. Canutson, 100 111. 82; Lay ton v. Lantz, 43 III. App. 654. 614 CONFESSION OF JUDGMENT. 1856, under a warrant of attorney authorizing a confession of judgment on a note, dated April 24, 1846, it was held that the judgment was a nullity.' The court may set aside a judgment by confession, on mo- tion, during the term in which it is rendered; and this exer- cise of discretion is not a matter for review in the supreme court; ' but a motion to set aside a judgment by confession, rendered four terms previously, comes too late/ It has been held that a motion to vacate, filed at the next ensuing term of court after the judgment was confessed, is in apt time,* and that it may be made by the executor of a deceased maker. ^ Where the note, the warrant of attorney, the cognovit and the judgment all correspond in amount, a variance in that re- gard between the declaration and the judgment will not avail on a motion to vacate the judgment." Limitations. — If by the running of the statute of limita- tions, the debt is barred, the power to confess judgment con- tained in the power of attorney is also barred.' Power to confess in lease. — A power of attorney for the confession of a judgment for the sum due is not authorized by the statute nor at common law in a case where the amount of the judgment is not fixed in the power, and depends upon the hearing of evidence dehors the obligation on which it is based and to which the power is attached. And a power in a lease to confess judgment against the lessee for an uncertain, un- liquidated and unlimited amount paid out for water and gas rates, etc., which the lease provided were to become so much additional rent, can not be lawfully either given or exercised; ' but it has been held that where the lease provides for a stipu. lated sum to be paid as rent in installments, a judgment may 1 Chase v. Dana, 44 111. 263. * Kingman v. Reinemer, 58 111. s Bolton V. McKhtleij, 23 111. 203; App. 173. see Gordon v. Goodell, 34 111. 429; '" Whitney v. Bohlen, 157 111. 571. Iglehart v. 3Iorris, 34 111. 501; Hall « Martin v. Judd, 60111. 78; Adams V. Jones, 32 111. 38; Bunnell v. Orr, v. Arnold, 86 111. 185. 84 111. 465; Evans v. Laundry Co., ■" Matzenbaugh v. Doyle, 156 111. 57111. App. 150. 331; Waldron v. Manson, 33 Wis. 3 Austin V. Lott, 28 111. 519; Hall 393; Broicn v. Parker, 28 Wis. 22. V. Jones, 32 111. 38. « Little v. Dyer, 138 III. 272. CONFESSION OF JUDGMENT. 615 be properly confessed for the amount of rent due as shown by the lease.' Ill forcible detainer. — A judgment entered by confession under a warrant of attorney and cognovit in a forcible de- tainer suit, is unauthorized by law and void.' Appeal. — An appeal or writ of error will not lie directly from a judgment rendered by confession when the warrant of attorney waives all errors and all right to appeal from said judgment. It is only from an order overruling a motion to vacate the judgment that it will lie.' Vacation. — As to what is " vacation " within the language of the statute, see cases noted below.* ' Scott V. Mantonya, 60 111. App. ton, 74 111. 437; Little v. Dyer, 35 481; see Bush v. Hanson, 70 111. 480; 111. App. 87; Werkmeister v. Beau- Seaver v. Siegel, 54 111. App. 6325 mont, 46 111. App. 370; Seaver v. Werkmeister v. Beaumont, 46 111. Siegel, 54 111. App. 632; Mumford v. App. 369; Fortune v. Barth, 62 111. Thoman, 54111. App. 471; Carpenter App. 290. V. Bank, 119 111. 356; Hall v. Jones, ' French v. Wilier, 126 111. 611; 32 111. 38. Burns v. Nash, 23 111. App. 552; see '* Conkling v. Ridgley, 112 111. 36; Rl/an V. Kirschberg, 17111. App. 132; Field v. Ridgley, 116 111. 424; Bank Linksv. Mayer, 22 III. App. 489. v. Daly, 34 111. App. 173; Jasper v. ^ Lake v. Cook, 15 111. 353; Fi^ear Schlesinger, 23 111. App. 637. V. Bank, 73 111. 473; Hall v. Hamil- CHAPTER XXI. DISTRESS FOR RENT. This remecly is of great antiquity, and is said to have pre- vailed among the Gothic nations of Europe from the break- ing up of the Roman Empire. The English statutes since the days of Magna Charta have, from time to time, extended and modified its features to meet the exigencies of the times.^ The legislature of this state has generally, and with some modifications and alterations, adopted the English provisions, recognizing the old remedy as a salutary and necessary one, equally conducive to the security of the landlord and to the welfare of society. Distress for rent does not lie unless the relation of the landlord and tenant exists and there is certain fixed rent in money, produce or service payable at a certain time.* Landlord's lien. — The statute of Illinois provides that '• everv landlord shall have a lien upon the crops grown or growing upon the demised premises for the rent thereof, whether the same is payable wholly or in part in money or specific articles of property or products of the premises, or labor, and also for the faithful performance of the terms of the lease. Such lien shall continue for the period of six months after the expiration of the time for which the premises were demised." " The lien of the landlord, upon crops growing or grown, does ' Bouv. Law Diet 485. 677; Craig v. Merime, 16 Bradw. ^Marrv. Ray, 151 111. 840; Murr 214; Meadv. Thompson, 78 111. 62; V. Glover, 34 111. App. 373. Watt v, Scofiekl, 76111. 261; Thomp- 3 3 Starr & Curtis 1504; Rev. son v. Mead, 67 111. 395; O'Hara v. Stat. (1893) 923; Rev. Stat. (1895) Jones, 46111. 288; Gittings v. Nelson, 979; Prettyman v. Unland, 77 111. 86 111. 591; Webster v. Nicols, 104 206; Herron v. GiU, 112 111. 247; 111. 160. Hadden v. Knickerbocker, 70 Hi. (616) DISTRESS FOR KENT. 617 not depend upon the levy of a distress warrant, but is given by the statute, so that an attaching creditor can not, by bring- ing an attachment before the issuing of the distress warrant, gain any precedence.' A purchaser of grain raised by a tenant, upon which a land- lord has a lien for rent, with knowledge of that fact, and that the rent is not fully paid, will be liable to the landlord in trover for the rent due, to the extent of the value of the grain purchased by him.' But a hona fide purchaser without notice, or facts sufficient to put him on inquiry, will not be liable for its value in a per- sonal action, although the landlord may still levy his distress warrant on the grain, if it can be found and identified.^ The lien attaches upon the crops grown upon the demised premises in any given year, for the rent of such year, from the time of the commencement of their growth, whether the rent is then due or not.* What property may be distrained. — " In all cases of dis- tress for rent, the landlord, by himself, his agent or attorney, may seize for rent any personal property of his tenant that may be found in the county where such tenant shall reside; and in no case shall the property of any otiier person, al- though the same may be found on the premises, be liable to seizure for rent due from such tenant." ^ If property of a third party temporarily in the possession of a tenant, is taken under a distress against the tenant, the land- lord will be liable to the owner for its value.' The same articles of personal property which are, by law, exempt from execution, except the crops grown or growing upon the de- mised premises, are also exempt from distress for rent.' 1 Mead v. TJwmpson, 78 111. 62. « Emmert v. Reinhardt, 67 111. 481. ''Prettyman v. Unkind, 77 111. 211; ' 'i Starr & Curtis, 1504; Rev. Stat. Carter v. Andreivs, 56 111. App. 646. (1893) 923; Rev. Stat. (1895) 978; see ^Finney v. Harding, 136 111. 573, Johnson v. Pnissing, 4 Bradw. 575; and cases there cited. Lindley v. Miller, 67 111. 244: Bon- * Watt V. Scofield, 76 111. 261 . neU v. Boicman, 53 111. 460; Smothers 5 Starr & Curtis. 1500; Rev. Stat. v. Holly, 47 111. 331; Bingham v, (1893) 921; Rev. Stat. (1895) 977; i/o«a- Maxey, 15 111. 290; Cook v. Seott, { day V. Bartholomeio, n Bradw. 20&; Gilni. 333; McCluskey v. McXeely, Becker v. Dnpree, 75 111. 167; see 3 Gilm. 578; HoUnday v. Bartholo- Herronv. Gill, 112 111. 247. view, 11 Bradw. 206. 618 DISTRESS FOR RENT. " When a tenant abandons or removes from the premises, or any part thereof, the landlord, or his agent or attorney, may seize upon any grain or other crops grown or growing upon the premises or part thereof so abandoned, whether the rent is due or not.' If such grain or other crops or any part thereof is not fully grown or matured, the landlord, or his agent or attorney, shall cause the same to be properly cultivated and harvested or gathered, and may sell and dispose of the same, and apply the proceeds, so far as may be necessary, to com- pensate him for his labor and expenses, and to pay the rent : Provided., the tenant may, at any time before sale of the prop- erty so seized, redeem the same by tendering the rent due and the reasonable compensation and expenses of the cultivation and harvesting or gathering the same, or he may replevy the property seized." ' "That if any tenant shall, without the consent of his land- lord, sell and remove, or permit to be removed, or be about to sell and remove, or permit to be removed from the demised premises, such part or portion of the crops raised thereon, as shall endanger the lien of the landlord upon such crops for the rent agreed to be paid, it shall and may be law- ful for the landlord to institute proceedings by distress before the rent is due, as is now provided by law, in case of the re- moval of the tenant from the demised premises; and thereafter the proceedings shall be conducted in the same manner as is now provided by law in ordinary cases of distress, where the rent is due and unpaid." " When the rent is payable wholly or in part in specific articles of property or products of the premises, or labor, the landlord may distrain for the value of such articles, products or labor." " The right of the landlord to distrain the personal goods of the tenant, shall continue for the period of six months after the expiration of the term for which the premises were demised or the tenancy is terminated." ' » See Finney v. Harding, 136 111. (1895), 979; 2 Starr & Curtis, 1506; 573; Bunk v. Adain, 138 111. 483. Hare v. Stegall, 60 111. 380. » Rey. Stat. (1893) 923; Rev. Stat. ^ Werner v. Bopieqiiet, 44 111. 522. DISTRESS FOE KENT. 619 A distress warrant issued after six months from the time of the termination of the lease, is null and void.' A landlord can not legally seize the property of his tenant, for rent, with- out first issuing a distress warrant as provided by statute. It was otherwise at common law." A distress warrant can not be issued against a dead person, nor against his administrator.^ No. 32^. Warrant of distress by landlord. State of Illinois, ) County of , ) ^• To the Sheriff or any constable of said county: (or E. F., agent or at- torney). Distrain the goods and chattels of C. D. which are liable to be distrained, wherever they may be found in the county of , where the said C. D. resides, for the sum of dollars, being {stating the time for which rent is due), rent due me on the — day of , 18 — , from the said C. D. for the premises now in his possession, demised to him by me, and situated in said county. Dated this — day of , 18—. A. B. No description of the demised premises is necessary to be given in a distress warrant.* A landlord is permitted to make a reasonable distress, and he is not bound to confine himself to the precise amount of rent due. If he were knowingly to claim more rent than was due, for the purpose of oppression and wrong, and levy an amount sufficient for its payment, he would be guilty of will- fully and maliciously making an excessive levy; but a mere mistake in judgment as to the value of the property seized, or a want of knowledge of the sum due, can not render him a trespasser.^ The action of replevin may be brought to try the legality of a distress for rent, provided there is no sum whatever due for rent; but if any sum is due, and the distress is for a greater sum, or is excessive in regard to the quantity of goods 1 Wenier v. Ropiequet, 44 111, 522. 3 Estate v. Noble, 159 111, 311. ^Arnold V. Phillips, 59 111, App. *Alwood v. Mansfield, S S 111. 452. 213. ^ Harms v. Solem, 79 111, 460. 620 DISTRESS FOR RENT. taken, or otherwise is irregular, the remedy must be by an action of case. ' Return of distress warrant — Inrentory. — " The person making such distress warrant shall immediately file with some justice of the peace, if the amount of the claim is within his jurisdiction, or with the clerk of a court of record of compe- tent jurisdiction, a copy of the distress warrant, together with an inventory of the property levied upon." * No. 325. Inventory to be filed with copy of distress warrant. State of Illinois, ) County of . S An inventory of the several goods and chattels of C. D. , distrained by me, on the day of , 18 — , in the county of , where the said C. D. resides, by virtue of the warrant and authority, and in behalf of A. B., the landlord, for the sum of dollars, being for rent due to the said landlord, on the day of , 18 — , for tlie premises in the wariant mentioned, to wit: {Here describe the property distrained.) E. F., Sheriff of County. Summons to issue. — "Upon the filing of such copy of dis- tress warrant and inventory, the justice of the peace or clerk shall issue a summons against the party against whom the distress warrant shall have been issued, returnable as other summons." Notice to non-residents, etc. — " "When it shall appear, by afiidavit filed in the court where such proceeding is pending, that the defendant is a non-resident or has departed from this state, or on due inquiry can not be found, or is concealed within this state, and the affiant shall state the place of resi- dence of said defendant, if known, and if not known, that upon diligent inquiry he has not been able to ascertain the same, notice may be given, if the suit is before a justice of the peace, as in cases of attachment before justices, or if in a court of record, as in attachment cases in such courts." ^ ' Hare v. Stegall, 60 111. 380; Lind- ' 2 Starr & Curtis, 1501; Rev. Stat. ley V. Miller, 67 111. 244; see Speer (l893) 931. v. Skinner, 35 111. 282. ' 2 Starr & Curtis' An. Stat. 1502; Rev. Stat. (1893) 629. DISTRESS FOR RENT. 621 No. 326. Affidavit for pudlication against non-residents, etc. In the of the county of in the State of Illinois. A. B. ) vs. - Distress for rent. C. D. ) A. B., of, etc., on oath states, that C. D., the above named defendant, is a non-resident, (or " has departed from this state," or " on due inquiry can not be foimd," or ''is concealed within this state," as the case maybe), and that the place of residence of the said C. D. is (or " is not knotvn, and upon diligent inquiry affiant lias not been able to ascertain the same.") Subscribed and sworn, etc. A. B. Proceedings— Pleadings. — The statute provides that " the suit shall thereafter proceed in the same manner as in case of attachment before such court of justice of the peace; pro- vided, that it shall not be necessary for the plaintiff in any case to file a declaration, but the distress warrant shall stand for a declaration, and shall be amendable, as other declarations, provkled, that no such amendment shall in any way affect any liabilities that may have accrued in the execution of such war- rant." ' Where a plaintiff files an affidavit of claim with the distress warrant, the defendant is bound to file with his pleas an affidavit of merits.^ The statute provides that proceedings in distress shall be the same as in attachment cases, and the distress warrant shall stand as a declaration. In attachment cases, the defeat of the attachment, where there was personal appearance, does not defeat the action, only the lien of the attachment, and this rule applies in distress for rent, to allow a recovery for the rent where there is personal appearance and defense to the merits.^ A distress warrant is not a lien prior to executions, except as to growing crops.* Defenses — Set-off, etc.— The statute provides that "the defendant may avail himself of any set-off or other defense ' Rev. Stat. (1893), 923; Rev. Stat. 2 Bnrtlett v. Sullivan, 87111. 219. (189.1), 977; 2 Starr & Curtis. 1502; ^ Holley v. Metcalf, 12 Bradw. 141; Holley v. Metcalf, 12 Bradw. 141; see see Alwood v. Mansfield, 33 111. 452; Oldsv. Loomis, 10 Bradw. 498; Cun- Kruse v, Kruse, 68 111. 188; Storing neav. Willianis, 11 Brad. 72; Al- v. Ojdey,U III. 123. toood V. Mansfield, 33 111. 452; Bart- * Rowland v. Hewitt, 19 Bradw. lett V. Sullivan, 87 111. 219. 450; Herron v. Gill, 112 111. 247. 622 DISTRESS FOE EENT. which Avould have been proper if the suit had been for the rent in any form of action, and with like effect." ' In a distress for rent, where the defendant pleads no rent in arrear only, he can not recover judgment for damages. To authorize this he must plead a set-off, either specially, or give notice under the general issue. The action is for rent only, and unless the defendant opens the door to the investi- gation of other matters, by pleading a set-off, the rent alone is the proper subject-matter of the suit, and to this the proof should be confined. But if the tenant pleads a set-off, the landlord, by way of replication, may plead any matter of de- fense, such as a set-off, the same as if he were sued as defend- ant; but the landlord, in such case, can not recover for any excess of his set-off over that of the tenant. The prayer of judgment in such replication should be as claimed in the dec- laration.* The statute giving the tenant the right to avail himself of a set-off was intended to apply only to cases where, upon a fair adjustment of all counter claims other than the rent, the land- lord will be indebted to the tenant, and in such case gives the tenant the benefit of his claim on such balance.^ Judgment for plaintiff. — " If the plaintiff succeeds in his suit, judgment shall be given in his favor for the amount which shall be due him. When the defendant has been served with process, or appears to the action, the judgment shall have the same force and effect as in suits commenced by sum- mons, and execution may issue thereon, not only against the property distrained, but also against the other property of the defendant. But the property distrained, if the same has not been replevied or released from seizure, shall be first sold." * When there has been personal service, or a personal appear- ance, a judgment rendered is final and conclusive between the '2 Starr & Curtis, 1503: Rev. Stat. Lindley v. Miller, 67 111. 344; Hat- (1893) 923; Rev. Stat. (1895) 977; see field v. Fullerton, 24 111. 280. Sketoe v. Ellis, 14 111. 75; Lindley v. •» Rev. Stat. (1893) 922; Rev. Stat. Miller, 67 111. 244; Lynch v. Bald- (1895) 978; 2 Starr & Curtis 1502; win, 69 111. 210. Clevenger v. Dunaway, 84 111. 367; •'Cox V. Jordan, 86 111. 560; see Kruse v . Kruse, 68 111. 188; iJait/i v. Asay V. Sparr, 26 111. 115. Ritchie, 1 Bradw. 188. 3 See Lynch v. Baldwin, 69 111. 310; DISTRESS rOK KENT. 623 parties as to all matters that should have been determined in the proceeding, the chief of which is, whether rent was due, and if so, what amount." Where there is no personal seryice, etc. — " Where publi- cation of notice shall have been made, as provided by this act, but the defendant is not served with process, and does not ap- pear, judgment by default may be entered, and the plaintiff may recover the amount due him for rent at the time of issu- ing the distress warrant, and a special execution shall issue against the property distrained, but no execution shall issue against any other property of the defendant." Judgment for defendant, etc. — The statute further pro- vides that " if the judgment is in favor of the defendant, he shall recover costs and have judgment for the return of the property distrained, unless the same has been replevied or re- leased from such distress. And if a set-off is interposed, and it appears that a balance is due from the plaintiff to the de- fendant, judgment shall be rendered for the defendant for the amount thereof. Release of property distrained — Bond. — " When any dis- tress warrant has been levied, the person whose propertv is distrained may release the same by entering into bond in double the amount of the rent claimed, payable to the landlord, with sufficient sureties, to be approved by the person making the levy if the bond is tendered before the filing of the copy of the warrant, as provided in this act, or if after, by the clerk of the court in which, or justice of the peace before whom, the suit is pending, conditioned to pay whatever judgment the land- lord may recover in the suit, with costs of suit. If the bond is taken before the filing of a copy of the distress warrant, such bond shall be filed therewith; and if taken after the filing of a copy of the distress warrant, it shall be filed in the court, or with the justice, where the suit is pending." " Perishable property. — " If any property distrained is of a perishable nature, and in danger of immediate waste or decay, and the same is not replevied or bonded, the landlord or his 'See Clevenger v. Dunaway, 84 *Seei2aM?iv. iJi7c/iie, 1 Brad w. 188. 111. 367. G24r DISTRESS FOK RENT. agent or attorney may, upon giving notice to the defendant or his attorney, if either can be found in the county, or if neither can be found, without any notice, apply to the judge or a master in chancery of the court in which, or the justice of the peace before whom, the suit is pending, describing the property, and showing that the same is so in danger, and if such judge, mas- ter or justice of the peace is satisfied that the property is of a perishable nature and in danger of immediate waste or decay, and if the defendant or his attorney is not served with notice, or it does not appear that he can not be found in the county, he may issue an order to the person having possession of the property, directing the sale thereof upon such time and such notice, terms and conditions as the judge, master or justice of the peace shall think for the best interest of the parties con- cerned. The money arising from such sale shall be deposited with the clerk of the court in which, or justice of the peace before whom the suit is pending, there to abide the event of the suit." Rights against sub-lessees, etc. — The statute provides that " In all cases where the demised premises shall be sub-let, or the lease is assigned, the landlord shall have the same right to enforce his lien against the sub-lessee or assignee that he has ao-ainst the tenant to whom the premises were demised." There can be no distress, unless there has been an actual demise, at a certain fixed rent; and unless it be for rent due.' A purchaser at a foreclosure sale can not distrain for rent, unless the tenant has attorned to him." A person not occupy- ino' the position of lessor, grantee, assignee or heir, can not maintain a distress.* ' Johnson v. Prussing, 4 Bradw. 40; Taylor's Land. & Ten. 561-4; 575. Hatfield v. Fullerton, 24 111. 278; 2 Reed v. Bartlett, 9 Bradw. 267. Leitch v. Boyington, 84 111. 179. * McGillick y. McAllister, 10 Bradw. CHAPTER XXII. CASE. By the 21st section of the Illinois Practice Act, it is enacted that " the distinctions between the actions of trespass and tres- pass on the case are hereby abolished; and in all cases where tres- pass or trespass on the case have been heretofore the appro- priate form of action, either of said forms may be used, as the party bringing the action may elect." * This section allows counts in trespass and counts in case to be joined in one declaration, and the action to be called either trespass or case, but each count must state a complete cause of action either in trespass or case; and the evidence must corre- spond with the pleadings." Trespass on the case is the form of action usually resorted to for the redress of wrongs done to a man's person, reputa- tion, goods or estate, without direct force. It lies for negli- gence or nonfeasance, that is, the omission of what one is bound by law to perform; misfeasance, that is, an improper performance of what one has a right to do in a proper man- ner, or what one has undertaken, or is bound by law to per- form; or malfeasance, that is, doing what is illegal, or what one has no right to do; whereby a consequential injury results to another. It is a familiar principle that where a person exercises or enjoys a peculiar privilege, productive of benefit to him alone, the law requires that he shall exercise extraordinary care to so use or enjoy such special privilege that no injury shall re- sult through such use or enjoyment to other persons.^ »Rev. Stat. (1893), 1074; Rev. Stat. Blaloch v. Randall, 76 III. 224; R. (1895). 1158; 2 Starr & Curtis 1787; R. Co. v. Summit, 3 Bradw. 155. Krug V. Ward, 77 111. 603; Barker v. ^Nelson v. Godfrey, 12 III. 20; see Koozier, 80 111. 205. Schtcartz v. Gilmore, 45 III. 455; iJ. « Gay V. DeWerff, 17 Bradw. 417; R. Co. v. Middlesivorth, 46 111. 494; 40 (625) 626 CASE. An action on the case will lie against one erecting a nui- sance, or one continuing a nuisance erected by another.' Case lies where the plaintiff has been aggrieved and dam- nified by the commission of unlawful acts b}*^ the defendants, in pursuance of a combination or conspiracy for that pur- pose." This action lies also against one who knowingly sells un- wholesome meat; ^ and against a public officer, for refusing the plaintiff's vote at a town meeting.* An officer who negligently permits the escape of a prisoner, is liable to any person injured by such neglect of official duty.* A constable, having the custody of a person on a bastardy warrant, is liable to the mother of the illegitimate child, for neo-ligently suffering such prisoner to escape.* Case lies against a magistrate for a corrupt refusal to allow an appeal from his decision.' If a justice of the peace acts corruptly, he can be made to answer criminally and civilly.* When the receiver of a telegram is injured by reason of the careless and negligent performance of the telegrapher's duty the proper remedy is an action on the case.* "Where stock is shipped under a special contract and damage is sustained to such stock, the shipper may have his action on the case for damages.'" Actions upon the case do not depend upon the holding by the plaintiff of a legal estate in the thing for an injury to which the action is brought." The action of case is a proper R. R. Co. V. Phillips, 49 111. 234; (Me.) 411; see MUls v. 3IcCabe, 44 Springfield v. LeChdre, 49 111. 476. 111. 194. ^ Arundel V. McCtdloch, 10 Mass. ^Broumv. Genung, 1 Wend- 115; 72; see Gas Co. v. Graham, 28 111. Pease v. Hubbard, 37 111. 257; Will- 73; Gas Co. v. Thompson, 39 111. iams v. Mostyn, 4 M. & W. 145; 599; Marnier v. Lussem, 65 111. 484; Sawyer v. Ballew, 4 Port (Ala.) 116. Guest V. Reynolds, 68 111. 478. « p^ase v. Hubbard, 37 111. 257. 2 Mott V. Danforth, 6 Watts (Penn.) ■" Tompkins v. Sands, 8 Wend. 462. 306; Griffith v. Ogle, 1 Binn. 172; « Garfield v. Douglas, 22 111. 100. Mitdiell V. Peiirod, 8 Serg. & R. 522; » Tel. Co. v. Dubois, 128 111. 254. Polk V. FancJier, 1 Head 336. '« Coles v. R. R. Co., 41 111. App. ^Peckham v. Holman, 11 Pick. 609. 4g4_ " Chitty's PL, title, Actions on the * Osgood V. Bradley, 7 Greenl. Case; Yates v. Joyce, 11 Johns. 136; CASE. C27 proceeding for an injury to property when the interest in it is in reversion/ Such action is an appropriate remedy for a mortgagor when property has been injured while in the possession of the mortgagee.' Where one person makes an unauthorized and tortious use of the property of another, and thereby realizes profits, the owner may disaffirm the transaction and sue as for a tort, or he may waive the tort and recover the money realized, in an action for money had and received.' A lunatic is liable in a civil action for a tort committed by him.* Case may be maintained against a sheriff, for taking an in- sufficient bond in replevin; ' or for not returning an execution, though the plaintiff may proceed by attachment.* And case lies also against a person who has neglected to attend and give evidence in a cause, after service of suhpmna.^ Case lies for an infringement of a copyright.^ It lies for not repairing fences, whereby cattle got into plaintiff's field.* Where goods are deposited with a party, to be sold at not less than a certain fixed price, and the depositary sells them at a less price, case, not trover, is the proper remedy.'" An action on the case may be sustained against an inn- SchaXk V. Kingsley, supra; Newman 207; Kron v. Schoomnaker, 3 Barb. V. Ty meson, 13 Wis. 191. 649; Morse v. Crawford, 17 Vt. 499. ' Chitty's Pi., title, Actions on the ' Rev. Stat. (1893), 1173; Rev. Stat. Case; Frankentlud v. Mayer, 54 111. (1895), 1257; Starr & Curtis 2014; App. 160. People v. Robinson, 89 lU. 159; Peo- * Woodside v. Adams, 40 N. J. L. pie v. Core, 85 111. 248. 417, 422, 424, 426; Jackson ads. Tur- ^ Burk v. Caviphell, 15 Johns. 456. rell, 39 N. J. L. 329, 333: Jones on ''Pearson v. lies, Doug. 556; Hallet Chattel Mortgages, Sec. 683; Leach v. Mears, 13 East 17, n; 2 Chit. PI. V. Kimball, 34 N. H. 568; Russell v. 757. Butterfield,2\^en6..'^()0;Schalkv. ^Clementiv. Goulding, 11 East Kingsley, 42 N. J. L. 32. 244; 1 Camp. 94. » Drill Co. V. Ashurst, 148 111. 115. » 1 Salk. 335; Saxton v. Bacon, 31 *McInt7jrev. Scholtz, 24: m. App. Vt. 540. 605; 1 Chit. PI. 76; Cooley on Torts, " 16 Johns. 74. 100; Ex parte Leighton, 14 Mass. 028 CASE. keeper, for goods lost or stolen out of his inn, witliout proving negligence.' Case lies by a husband against his wife's father, for enticing her away.^ Ministerial officers ma}^ be sued in case for any breach of duty, whether intentional, or malicious, or not.' An action on the case may be brought in the name of the principal, for a false representation made to the agent.* Case will lie for the assertion of a falsehood with a fraud- ulent intent, as to an existing fact, where a direct, positive and material injury results from such assertion." And it will lie for a deceit, as where a person is induced to purchase land by a false representation that a certain privilege is annexed to the land, but which is not included in the deed.' If a person falsely represents himself as the agent of another, and authorized to receive certain money, and thereby obtains the money, he may be reached by a special action on the case for fraud.' Fraud or deceit, wherefrom damage re- sults, is a good cause of action.* Where a person makes a false representation to another, with a design to deceive and de- fraud him, and the latter enters into a contract with a third person, relying upon the representations, and sustains an in- jury thereby, an action on the case, in the nature of deceit, will lie at the suit of the person injured against the person making the fraudulent representations, although he was not a party to the contract by which the plaintiff was injured.' ^Clutev. Wiggins, 14 Johns. 175; Van Valserv. Seeberger, 59111. App. Hayward v. Mei-riU, 94 111. 349; 323. Perry v. Carmichael, 95 111. 519. ' Duncan v. Niles, 32 111. 532. * Hutchinson V . Peck, 5 Johns. IQG; ^ Upton v. Vail, 6 Johns. 181; Barber v. Amstead, 10 Ired. 530. Barney v. Deioey, 13 Johns. 224; ^ Keith y. Howard, 24 Pick. 292; Duncan \. Niles, 32 111. 532; Fames Spicer v. Cummings, 23 Pick. 224; v. Morgan, 37 111. 260; Broii^n v. Gates V. Neal, 23 Pick. %0%;Abbott\. Lobdell, 50 111. App, 559; People v. Kimball, 19 Vt. 551. Healey, 128 lU. 9. iRa7jmond y. Hoivland, 12 V^ end. ^Weather ford v. Fishbach, 3 176; Ins. Co. v. Hogan, 80 111. 35. Scam. 173; see Low v. Martin, 18 ^Benton y. Pratt, 2 Wend. 384; 111. 290; Fames v. Morgan, 37 111. Fames v. Morgan, 37 111. 260. 260. See observations under Form ^Monell V. Welter, 13 Johns. 395; No. U4:, post. see Applebee v. Rumery, 28 111. 280; CASE. 629 In an action for deceit in the sale of a horse, what the con- sideration to be paid was, or whether it was paid down or not, is not material.' Where one person owns the ground rooms in a building, and another the upper stories, the latter has a right to have his portion of the tenement supported by the division wall in the lower part; and the removal of such support by the owner of the lower part of the building is such an infringement of that right as will sustain an action on the case against the wrong-doer." Where a person borrows a horse of another, for use, with- out compensation, he becomes a gratuitous bailee, and is liable for an injur}'- to the horse while in his custody, unless he has exercised extraordinary care.^ An action on the case for seduction may be sustained, not only by a parent, but b\^ a guardian, master, brother-in-law, or other person standing in loco parentis to the person seduced.^ A party is liable in an action on the case for damage done to the property of another by setting fire to a prairie." Case lies for criminal conversation with the plaintiff's wife,* or he may sue in trespass, at his election.' An action on the case will not lie for improperly causing a writ of injunction to be issued. The remedy is on the injunc- tion bond.' In an action on the case for malicious prosecution, want of probable cause must be shown. The existence of malice is not sufficient to raise a presumption of a want of probable cause, ihough a want of probable cause may raise a presumption of malice. In order to sustain such action, there must be proof both of malice and a want of probable cause.' What is such prob- ' Applehee v. Rumery, 28 111. 280. ' Yundt v. Hartrunft, 41 III, 9; « McConnell v. Kibhe, 33 III. 175. 1 Chit. PI. 128. 3 Bennett v. O'Brien, 37 111. 250. « Gorton v. Broum, 27 111. 489. * Ball V. Bruce, 21 111. 161; see ^ Leidig y . Rmrson, 1 Scam. 272; Anderson v. Ryan, 3 Gilm. 583. Jacks v. StiinjJS07i, 13 111. 701; Wade 5 Burton v. McClellan, 2 Scam. v. Walden, 23 111. 425; Murray v. 434. Long, 1 Wertfl. 140; Potter v. Searl, « VanVactor v. J/cA'i/iip, 7 Blackf . 8 Cal. 217; Barrett v. Spaids, 70 111, 578. 408; Ames v. Snider, 69 111. 376; 630 CASE. able cause as will justify the prosecution of a person for a crim- inal offense, is a question of law. An honest belief that the ac- cused is guilty, founded on circumstances which tend to show that he has committed a criminal offense, negatives the idea of a want of probable cause for the prosecution.' An action on the case for malicious prosecution can not be brought before the former suit has been legally determined, and it must be averred that the former suit terminated in the present plaintiff's favor." (See observations under Form No. 338, post.) Causing Avater to flow back upon the land of another is such an act as entitles the person injured to his action. Although the act may be in itself lawful, yet, if in its consequences it necessarily damages the property of another, the person oc- casioning the damage may be compelled to make reparation commensurate with the injury he has caused.' If two or more persons are jointly concerned in a particular act which occasions injury to another, they may be sued jointly, and all persons who co-operate in an act directly caus- ing injury are jointly liable for its consequence, if they act in concert, or unite in causing a single injury, even though acting independently of each other.* In the case of several tort feasors, the party injured may, at his election, sue one, or several, or all; and when the suit is against one or some of them, but not against all, the person or persons sued have no right to complain. And so, also, when there is a suit against several tort feasors, the dismissal of the action against one or a covenant not to sue him does not bar the action against the others.^ But a release to one of Davis V. Wislier, 72 111. 262; Calef ^ Stout v. McAdams, 2 Scam. 67; V. Thomas, 81 111. 478. Nevinsv. Peoria, 41 111. 502; Gillham ' Jacks V. Stimpson, 13 111. 701; v. Madison, 49 111. 484; see R. R. Co. i^isZierv. Forrester, 33 Penn. St. 501; v. Hunter, 50 111.325; Winkler v. Potter V. Searl, 8 Cal. 217; Harp- Meister, 40 111. 349. hamv. Wliitney,!! 111. 32; Palmer * Machine Co. v. Keifer, 134 111. V. Ridmrdson, 70 111. 544; Brown v, 481. Smith, 83 111. 291; see observations 5 Chicago v. Babcock, 143 111. 358; under Form No. 338, post. j^ j^ q^ ^.^ ^^^^^ 1^3 jl, g. ^^-^^^^ '^Feazlev. Simpson, 1 Scam. 30; 3 ^ , oo th a an^ tt Chit PI. 610, n, ^- ^^'^^' ^^ ^"' ^PP- ^^^' ^""^^ ^- CASE. 631 several joint tort feasors is a release to all, and an accord and satisfaction with one of them is a bar to an action against the others.' Negligence. — One can not recover for an injury, even from the gross negligence of another, unless he is free from culpa- ble negligence on his own part.^ The doctrine of comparative negligence is no longer the law in Illinois, and in order to en- title the plaintiff to recover in an action for negligence, he need only show that at the time of the injury he was in the exer- cise of ordinary care, and that the defendant was guilty of such negligence as caused the injury.' Whether there was negligence or want of care in whatever degree, in either of the parties, is a question of fact, to be de- termined by the jury; and whether the circumstances attend- ing the transaction constitute such negligence or want of care, will not, though admitted, be decided by the court as a matter of law, but w411 be left to the jury, as evidence for them to pass upon. This is especially true where the circumstances in question are but part of the evidence in the case.* It is only when the conclusion of negligence necessarily re- Roche, 94 N. Y. 329; Sloan v. Her- rick, 49 Vt. 327; Bloss v. Plymale, 8 W. Va. 893. ' Cooley on Torts; Turnery. Hitch- cock, 20 Iowa 310; OUpatrick v. Hunter, 24 Me. 18; Ellis v. Bitzer, 2 Ohio 89; Metz v. Soule, 40 Iowa 230; Branson v. Fitzpatrick, 1 Hill 185; Neiimian v. Fowler, 37 N. J. 89; Karr V. Barstow, 24 111. 580; City v. Bab- cock, 143 111. 358; Wagner v. St. Yds., 41 111. App. 410; Vigeant v. Scully. 35 111. App. 46. ^R. R. Co. V. Elliott, 98 III. 481; Id. V. Dimick, 96 III. 42; Id. v. Patterson, 93 111. 290; Stratton v. R. R. Co., 95 111. 25; Austin v. R. R. Co., 91 111. 35; R. R. Co. v. Wallace, 110 111. 114; Peoria v. Simpson, 110 111. 294; R. R. Co. v. Londergan, 118 111.41; Id.y. ireZs/i, 118I1I. 572; Gas Co. V. O'Brien, 118 111. 174; R. R. Co. V. Bragioner, 119 111. 51; Titans. Co. V. Shacklet, 119 111. 232; Penn. Co. v. Marshall, 119 111, 399; R. R. Co. v. Clayberg, 107 III. 644: Chicago v. Stearn&i, 105 111. 554; Cousenv. Ely, 37 111. 338; R. R. Co. v. Johnson, 135 111. 647. 3 Coal Co. V. Holmqiiist, 152 111. 581; Cityv. Daugherty, 153 111. 163; Village v. Moore, 124 111, 133; iJ, R. Co. V. Matheuys, 153 111. 268; R. R. Co. V. Meixner, 160 111. 320. ■» Beers v. R. R. Co., 19 Conn, 566; 2 Am. R. R. Cases 114; Broicn v, R. R. Co., 31 Barb. (N, Y.)385; see iJ. R. Co. V. Weldon, 52 111. 290; Id. v. Baches, 55 111. 380; 3Iyers v. R. R. Co., 113 111. 389; Penn. Co. v. Frana, 112 111. 405; Canning Co. v. Lines, 125 111. 410; R. R. Co. v. Parker, 131 111, 564; Id. V. Davis, 130 111. 149; Id. \. Lane, 130 III. 122; Id. y.Voel- kers, 129 III. 552; Id. v. Warner, 123 111. 38. G32 CASE. suits from the statement of fact, that the court can be called upon to say to the jury that a fact establishes negligence as a matter of laAv; and if the conclusion of negligence, under the fact stated, may or may not result, or shall depend on other circumstances, the question is one of fact for the jury. Neg- ligence can not be conclusively established by a state of facts upon which fair minds may well differ.' In an action for an injury to the plaintiff, resulting from the negligence of the defendant, the care required of the plaintiff is that degree of care which may reasonably be ex- pected from one in his situation, that is reasonable care; and if this degree of care be exercised by him, the want of a less degree will not preclude him from a recovery for the negli- gence of the defendant. And what will be deemed reasonable care in any case will depend on the peculiar circumstances of the particular case.'' Although the plaintiff may be charge- able with some degree of negligence, yet if it is but slight as compared with that of the defendant, the plaintiff can recover, and this rule holds even where the slight negligence of the plaintiff in some degree contributed to the injury." The law is well settled that in actions based on negligence the allegations of the declaration and the proofs must agree. » R. R. Co. V. O'Connor, 119 111. v. Triplett, 38 111. 482; Id. v. Pane, 586; Id. V. Voelkers, 129 111. 540; Id. 49 111. 499; Id. v. Gretzner, 46 V. Uine, 130111. 116; Id. v. Johnson, 111. 74; Id. v. Todd, 36 111. 409; Id. 135X11. 641; Id. v. Robinson, 127 111. v. Harris, 54 111. 528; Id. v. Pon- 12; Id. V. Lonis, 138 111. 9; Id. v. dram, 51 111. 333; Id. v. Gravey, 55 Ouska, 151 111. 232. 111. 379; Id. v. Hart, 87 111. 529; Id. '■' Beers V. R. R. Co., 19 Conn. 566; v. Parker, 131 111. 565; C. D. F. Co. 2 Am. R. R. Cases 114; Bird v. Hoi- v. Van Dam, 149 111. 337; R. R. Co. troofc, 4 Bing. 628; R. R. Co. v. Haz- v. Bodemer, 139 111. 596; W. S. Co. zard,2Q 111. 373; Id. v. Fay, 16 111. v. Whalen, 151 111. 472; Harris v. 558; Coursen v. EJy, 37 111. 338; R. Shebeck, 151 111. 287; Goldie v. R. Co. V. Adler, 129 111. 340; Td. v. Warner, 151 111. 551 ; Village v. Wilson, 133 111. 60; Id. v. Hutchin- Brooks, 150 111. 97; City v. Smith, son, 120 111. 587; Cartervillev. Cook, Ibid. 169; Partlowv. R.R. Co., Ibid. 129 111. 155^ R. R. Co. v. Parker, 321; R. R. Co. v. Baddley, Ibid. 131 111. 573; Id. v. Havelick, 131 111. 328; Coal Co. v. Bruce, Ibid. 449; 180. Ry. Co. V. Hessions, 150 111. 546; B. 3 Coursen v. Ely, 37 111. 338; see R. Co. v. Eldridrje, 151 111. 542. R. R. Co. V. Hogarth, 38 111. 370; Id. CASE. 633 The plaintiff can not charge in his declaration a specific act of negligence, and succeed on the trial by proving another act of negligence wholly different from that charged. ' In deter- mining the degree of negligence of a person, the jury should take into consideration his capacity. A child can not be re- quired to exercise as much care and caution as a person of mature years, but only such care as a person of his age and discretion would naturally use. Ordinary neglect as to a person of full age and capacity, might be gross negligence as to a child.^ COMMENCEMENT OF THE ACTION. The action is commenced b}'" suing out a summons, or a capias ad respondendum; and if the plaintiff is a non-resident, security for costs must be filed.' DECLARATIONS IN CASE. For the particular mode of framing declarations in this action, the pleader is referred to the precedents here given, and the observations thereunder. As a general rule, it may be laid down that the declaration should set forth, by way of inducement, the circumstances under which the injury was committed, and should then set forth the injury, and the con- sequential damages resulting therefrom to the plaintiff.* Counts in trover may be joined with counts in case; ^ tres- pass and case may also be joined.* No.. 327. Against a railroad company, for negligently Thinning train across highway, whereby plaintiff was injured, etc. In the Court. Term, 18 — . State of Illinois, ) County of , \ set. A. B., plaintiff, by E. F., his attorney, complains of the railroad company, defendant, of a plea of trespass on the case: For that whereas the plaintiff, on, etc., in, etc., ' R. R. Co. V. Dickson, 143 111. 33 111. App. 452; Id. v. Robinson, 368; Steamesv. Ready, \^^l\\.\2^. 127111.13. 2 Kerr v. Forgue, 54 111. 482; R. ^ Ante, p. 13. R. Co. V. Deicey, 26 111. 255; Robin- * 1 Chit. PI. 327. son V. Cone, 22 Vt. 213; Birge v. ^ 1 Chit. PI. 181; see Hays v. Bor- Gardner, 19 Conn. 507; City v. ders, 1 Gilm. 46; Brady v. Spurck, Keefe, 114 111. 222; Scott v. McMena- 27 lU. 479. min, 51 111. App. 121; R. R. Co. v. « Krug v. Ward. 77 111. 603; Bar- Ryan, 131 111. 477; R. R. Co. v. ker v. Koozier, 80 111. 205. Slater, 129 111. 100; Id. v. Wilcox, 634 CASE. was rilling in a certain carriage, then and there drawn by a certain horse, upon and along a (certain public highway there (to wit, a certain public highway leading from to ,) at a certain crossing of the said public highway and a certain railroad of the defendant, in the county of aforesaid; and the defendant was then and there possessed of a certain locomotive engine, with a certain train of cars then attached thereto, which said locomotive engine and train were then and there under the care and management of divers then servants of the defendant, who were then and there driving the same upon and along the said railroad, near and towards the crossing aforesaid: And while the plaintiff with all due care and dili- gence, was then and there riding in the said carriage across the said rail- road, at the said crossing, upon the said public highway there, the defend- ant then and there, by its said servants, so carelessly and improperly drove and managed the said locomotive engine and train, that by and through the negligence and improper conduct of the defendant, by its said servants, in that behalf, the said locomotive engine and train then and there ran and struck with gre^t force and violence upon and against the said carriage, (*) and thereby the plaintiff was then and there thrown with great force and violence from and out of the said carriage to and upon the ground there, and was thereby then and there gi-eatly bruised, hurt and wounded, and divers bones of his body were then and there broken, and he became and was sick, sore, lame and disordered, and so remained for a long space of time, to wit, hitherto, during all which time he, the plaintiff, suffered great pain, and was hindered and prevented from attending to and transacting his affairs and business; and by means of the premises the plaintiff was forced to, and did then and there lay out divers sums of money, amounting to dollars, in and about endeavoring to be cured of his said wounds, hurts and bruises, occasioned as aforesaid; and also by the running and striking of the said train upon and against the said carriage as aforesaid, at the time and place in that behalf aforesaid, the said carriage, then of the value of dollars, and whereof the plaintiff was then and there lawfully possessed, was crushed and destroyed, and then and there became and was rendered of no use or value to the plaintiff. (J. count on the statute,^ for not ringing a hell, etc., may he added, if deemed expedient— see form S2S, concluding the declaration as follows:) Wherefore the plaintiff says that he is injured, and has sustained damage to the amount of dollars, and therefore he brings his suit, etc. The words in italics, in the above form, would seem to be unnecessary. In Hazzard's case, 26 111. 373, the court says that " his (the plaintiff's) exercise of proper care, as well as the negligence of the defendant, should be alleged in the declara- » Rev. Stat. (1893), 1116; Rev. Stat. Slater, 139 111. 193; Id. v. TutwUcr, (1895), 1200; 2 Starr & Curtis 1935; 16 111. App. 199; Id. v. Jemine, 16 111. see Hays v. Borders, 1 Gilm. 46; R. App. 212; Id. v. Felton, 24 111. App. B. Co. v. Dillon, 123 lU. 570; Id. v. 376. CASE. 635 tion; " but in Simmons' case, 38 111, 242, this is said to have been dictum merely; and the precedents given in the books do not contain any such allegation. It is a well settled rule that the pleader is required to set out the particular facts constituting the negligence complained of only so far as they appear to be properly within his knowl- edge.' Where the act upon which the negligence is predi- cated is of a simple character, an allegation of an absence of care in its performance becomes reasonably intelligible, and hence it is not necessary to specify in a declaration the acts of omission or commission which constituted the negligence of the defendant, which is the basis of the action." A railroad company and a traveler on the highway have correlative rights, and each must use proper caution where there is a danger of a conflict; neither has a superior right, except as it results from the difficulties and necessities of the case.^ There is no distinction between railroads and ordinary highways in regard to the degree of care which the law requires on the part of those who have the direction or man- agement of vehicles upon them.* A railroad company is responsible for an injury occasioned by want of proper care and prudence on the part of its serv- ants in the management of a train which is under their exclu- sive care, direction and control, although the train belongs to another company. It has been held in Massachusetts that if such injury results from the negligence of another railroad company which has a joint right with the defendant to use the defendant's track, under a lease from the defendant, and which is accordingly running trains over the defendant's road on its own account, the defendant is not responsible.* In Illinois it " Yoxing v. Lynch, 66 Wis. 514; IL v. Hixon, 110 Ind. 235; Fittsy.Wal- R. Co. V. Van Home, 38 N. J. L. 133; deck, 51 Wis. 567. R, R. Co. V. Jennings, 157 III. 274. ^ R. R Co. v. Dill, 22 111. 265; *i2. R. Co. V. Jennings, 157 111. Walker v. Herron, 23 Texas 55; 274; Id. V. Van Home, 38 N. J. L. Dascomb v, R. R. Co., 27 Barb. (N. 143; Id. V. Keiley, 23 Ind. 133; Clark Y.) 221; see R. R. Co. v. Geddis, 33 V. R. R. Co., 28 Minn. 69; Hawker 111. 304. V. R. R. Co., 15 W. Va. 628; Bems * Beers v. R. R. Co., 19 Conn. 566; V. Coal Co., 37 W. Va. 285; R. R. Co. 2 Amer. R. R. Cas. 117. ^Fletclier v. R. R., 1 Allen 9. 636 CASE. is held that a railroad company can not release itself from liability by leasing its road to other parties; and that con- tractors for the construction of a railroad are the servants of the company, and for their tortious acts, while about the comjmny's business, the company is liable.' It is negligence for a deaf person to drive an unmanageable horse across a railroad track when a train is approaching. It is his duty to keep a lookout and avoid the danger; and it is no excuse that the horse rushed upon the track near the cross- ing, or was driven there to avoid the engine." But the fact that a person who was killed by a railroad train, at a crossing, was partially deaf, will not excuse the company for not having sounded the whistle, or rung the bell, from the point required by the statute.^ Persons crossing a railroad track are bound to know that such an undertaking is dangerous, and they must take all proper precautions to avoid accidents in so doing, or they can not recover for injuries received.* "Where a drunken man was driving towards a railroad, while a train was coming, in full view, and notwithstanding the shouting of persons within hearing distance, he attempted to cross the track and was injured, it was held that he could not recover for injuries received.* The proprietors of railroads, when running their engines over crossings, are bound to exert reasonable care and dili- gence to prevent injury therefrom to travelers on the road crossed; and whether such care and diligence have been em^ 1 JS. R. Co. V. Whip2)le, 22111. 106; 88; Ry. Co. v. Zafflnger, 107111. 199; R. R. Co. V. McCarthy, 20 111. 385; Ry. Co. v. Clayberg, 107 111. 644. Ry. Co. V. Dunbar, 20 111. 623; see ^ R. R. Co. v. Gretzner, 46 111. 74; Hinde v. Nav. Co., 15 111. 72; Lesher R. R. Co. v. Fears, 53 111. 115; R. R. V. Nav. Co., 14 111. 85; R. R. Co. v. Co. v. Sweeney, 52 111. 325; see R. Kanouse, 39 111. 272; R. R. Co. v. R. Co. v. Middlesworth, 43 111. 64; Rumbold, 40 111. 143. R. R. Co. v. Baches, 55 111. 380i 2i2. R. Co. V. Buckner, 28 111. 299; * Ry. Co. v. Riley, 47 111. 514; see R. R. Co. V. Goddard, 72 111. 567; R. R. Co. v. Robinson, 8 Wright R. R. Co. V. Bell, 70 111. 102. (Penn.) 175; R. R. Co. v. Heilman, 3 R. R. Co. V. Tinjilett, 38 111. 482; 13 Wright (Penn.) 60; Steves v. R. see R. R. Co. v. McKean, 40 111. R. Co., 18 N. Y. 422; Brooks v. R. 218; R. R. Co. v. Harwood, 80 111. Co., 25 Barb. 600; R. R. Co. v. Hutchinson, 47 111. 408. CASE. 637 ployed in a particular case, is a question of fact, to be decided by the jury upon all the circumstances.' A compliance with the provisions of a statute respecting the putting up of notices at railroad crossings, and the ringing of a bell when engines are passing over the same, will not exempt the proprietors of a railroad from their obligation to use reasonable care and diligence in other respects when ruli- nins: their eno^ines over crossino-s, if the circumstances of the case render the use of other precautions reasonable.^ An omission to ring a bell or sound a whistle at a crossing of a public road, as required by the statute, is negligence prima facie on the part of a railroad company.^ For a case where suit was brought against a railroad company for injuries re- ceived by the plaintiff from the explosion of the boiler of one of the company's engines — such explosion being held evidence priTna facie of negligence — see 49 111. 234, and 55 111. 194, In Avhat county suit may be brought. — By the statute of Illinois, "actions against a railroad company may be brought in the county where its principal office is located, or in the county where the cause of action accrued, and into or through which its road may run." * No. 328. On the statute, * against railroad company, for not ringing hell, etc., at crossing, whereby plaintiff uxis injured, etc {Commoice as in last precedent.) For that whereas the defendant, on, etc. , in etc., was the owner of and used and operated a certain railroad extend- ing through a part of the county aforesaid, which said railroad then crossed a certain public highway there, to wit {liere describe the highway, by name, location or termini,) at a certain place in the said public highwa}^ (here describe tlie place as nearly as may be); and so being the owner of and using and operating the said railroad as aforesaid, the defendant then and there drove a certain locomotive engine upon and along the said railroad, up to, upon and across the said public highway, at the said crossing of the same and the said railroad; and in so doing no bell of at least thirty pounds' ^Penna. Co. v. Conlan, 101 III. 93; see R. R Co. v. Swearingen, 33 111. M. F. Co. V. Abend. 107 111. 44. 290; R. R. Co. v. Williams, 77 111. * Bradley v. R. R.,2 Cush. (Mass.) 354. 539; 1 Am. R, W. Cases, 457; R. R. ^2 Starr & Curtis 1935; Rev, Stat. Co. V. Baclies, 55 111. 379. (1893) 1116; Rev. Stat. (1895) 12(X); ^R. R. Co.v. Terhune, 50 111. 151. R. R. Co. v. DamereU, 81 111. 4.50; *2 Starr & Curtis, 1773; Rev. Stat. R. K Co. v. Siltman, 88 111. 529. (1895) 1155; Rev. Stat. (1893) 1071; 63S GASE. weight, or steam whistle, placed on the Said locomotive engine, was rung or whistled by the engineer or fireman thereof, at the distance of at least eighty rods from the said crossing, and kept ringing or whistling until the said crossing was reached by the said locomotive engine, but therein the defendant wholly failed, and made default, contrary to the form of the statute in such case made and provided: By means and in consequence of which default and neglect of the defendant, as aforesaid, the said locomo- tive engine then and there ran and struck with great force and violence upon and against a certain carriage, then and there drawn by a certain horse, in which said carriage the plaintiff was then with all due care and diligence riding upon the said public highway, at the said crossing; {pro- ceed in the same manner as in the last precedent, from the asterisk). By the common law and independent of the statute it is the duty of those having charge of a train to give notice of its approach at all points of known danger. Where the remedy by the statute is cumulative and differs from that given by the common law, and the relief given by the statute is sought, the pleader must manifest that purpose or intent by apt words of reference to the statute,* No. 329. Against street raihcay company for improperly managing cable motor whereby plaintiff was injured.'^ {Commence as in precedent No. 337, ante.) For that whereas, the plaint- iff on, etc., in etc., was riding in a certain carriage, then and there drawn by a certain horse, which was driven by plaintiff, upon and along street, a public highway, in said city of , and the defendant was then and there possessed of a certain motor or grip-car used by said defendant to propel certain passenger cars known as street cars along and on said avenue by means of a wire rope or endless cable and the said motor car had then and there attached thereto, a train of said passenger cai's, which said motor and train of said passenger cars were then and there under the care and management of drivers then servants of the defendant who were then and there driving the same upon and along the said street at or near the intersection of avenue and said street in said city of aforesaid, and while plaintiff with all due care and diligznce was then and there riding in the said carriage, along and on the said street at or near its intersection with said avenue as aforesaid, upon the said public high- way, the defendant then and there, by its said servants, so carelessly and improperly drove and managed the said motor and train of cars, that by or through the negligence, mismanagement and unskillfulness of the defend- ant, by its said servants, in that behalf, the said motor and train of cars then and there ran into and struck with great force and violence upon and »i2. R. Co. V. Dillon, 123 111. 570. ^See R. R. Co. v. Jennings, 157 lU. 274 CASE. 639 against the carriage (allege damages according to tJie facts — see precedents No. 327 and 32S ante). The driver of a cable or electric street car is governed by established rules. He must know how to manage the motor; he must not drive it at an unreasonable rate of speed; he must keep a reasonably careful lookout ahead and must respect the equal rights of others as to the use of the streets.' No. 330. Against a railroad company, for negligence in management of train whereby plaintiff, a passenger, was injured. {Commence as in No. 327, ante.) For that whereas the defendant, on, etc., in. etc., was possessed of and using and operating a certain railroad extending through and from, etc., to, etc., in the county aforesaid, with certain trains of cars running thereon for the conveyance of goods and passengers, for reward; and the plaintiff, at. etc., aforesaid, then became a passenger in a certain train of the defendant, on the said railroad, to be earned, and was thereupon accordingly then carried, in the said train, from thence to, etc., aforesaid, for certain reward to the defendant in that be- half: And thereupon it then became and was the duty of the defendant, upon the arrival of the said train at, etc., aforesaid, to give the plaintiff an opportunity of safely alighting therefrom, and then and there to stop the said train a reasonable time to enable the plaintiff so to alight therefrom safely as aforesaid; yet the defendant did not regard its duty, or use due care, in that behalf, but on the contrary thereof, upon the arrival of the said train at, etc., aforesaid, on the day aforesaid, and while the plaintiff, urith all due care and diligence, was then and there about to alight there- from, the defendant carelessly and negligently caused the said train to be suddenly and violently started and moved, and thereby the plaintiff was then and there thrown with great force and violence from and off the said train to and upon the ground there; by means whereof, then and there, one of the legs of the plaintiff was broken, and one of his ankles was dis- located, and he was otherwise greatly bruised, hurt and wounded; and thereby the plaintiff was obliged to and did then and there lay out divers large sums of money, amounting to dollars, in and about endeavoring to be cured of the said injuries so received as aforesaid; and also by means of the premises the plaintiff then and there became and was sick, lame and disordered, and so remained for a long time, to wit. hitherto, during all which time the plaintiff suffered great pain, and was hindered and pre- vented from transacting and attending to his business and affairs, and lost and was deprived of divers great gains and profits which he might and otlierwise would have made and acquired: To the damage of the plaintiff of dollars, and therefore he brings his suit, etc.^ ^Ey. Co. V. Jennings, 157 111. 274. v. Coss, 73 111. 394: Id. v. Mnmford., «See R. R. Co. v. Hazzard, 26 HI. 97 111. 560; Id. v. TT7/.so7;. 6;? 111. 167; 373; Id. V. Simmons, 38 111. 242; Id. Id. v. MUls, 105 111. 63; Id. v. Amol, 640 CASE. As to the avermont of due care and diligence on the part of the phiintiif, see the remarks under form No, 337, ante. It has been held in a number of cases that it is negligence for a passenger to get on or off a train, of which the motive power is steam, while the cars are in motion.' The rule, however, is relaxed when applied to horse cars or street railways." No. 331. Against a railroad comjxiny, for damage caused by fire from engine.^ {Commence asin No. 327, ante.) Foi* that whereas the plaintiff, on, etc., was the owner of stacks of wheat, containing a large quantity, to wit, , bushels of wheat, then on his farm in the township of , in the county aforesaid; and the defendant was before that time and then pos- sessed of and using and operating a certain railroad leading from, etc., to etc., and running through the plaintiff's said farm, and was also possessed of the land to the said raikoad there appertaining, the same being a strip of land of about the width of one hundred feet, to wit, of the width of fifty feet on each side of the middle of the said railroad, and extending through the said farm : And although it was before that time and then the duty of the defendant to keep the said strip of land free from diy grass and weeds, so that fire from the locomotive engines and trains of the defendant, on the said railroad, would not by means of such dry grass and weeds spread and be communicated therefrom to the said farna of the plaintiff; yet the defend- ant, not regarding its duty, or using due care, in that behalf did not, nor would keep tlie said strip of land free from dry grass and weeds as afore- said, but on the contrary thereof before that time negligently suffered large quantities of such dry gi-ass and weeds to accumulate, and then negligently suffered the same to remain on the said strip of land; by means whereof fire then and tliere emitted and thrown from a certain locomotive engine and train of the defendant, on the said railroad, then and there ignited the said dry grass and weeds, and spread and was communicated from and by the same to and upon the said farm and the said stacks of wheat of the plaintiff, and thereby the said stacks of wheat, being then and there of the value of dollars, were then and tliere consumed, and wholly lost to the plaintiff. (Second count.) And whereas also the plaintiff, on the day aforesaid, was the owner of other stacks of wheat, containing a large quantity, 144 111. 261; Id. v. Cook, 145 111. Jd v. Scafes, 90 IlL 586; Id.x. Meix- 551. ner, 160 111. 320. ' R. R. Co. V. Lutz, 84 III. 598; Id. » R. R. Co. v. Buck, 93 Tnd. 346; V. Stratton, 78 111. 88; Id. v. CMm- Stonerv. Penn. Co., 98 Ind. 384; R. hers, 71 111. 519; Id. v. Slattoti, .54 R. Co. v. Mei-acner, 160 lU. 320, and 111. 133; Id. V. Randolph, 53 111. 510; cases there cited. »i2, R. Co. v. Ccrrn, 71 lU. 493. CASE. 641 to wit, busheTs of wheat, then in a certain close of the plaintiff, in the township and county aforesaid; and the defendant was then and there possessed of and operating a certain other railroad extending along and adjoining the said close, and was then and there running divers locomo- tive engines on the last mentioned railroad; and while a certain locomotive engine of the defendant, and under its control, was then and there passing upon the same railroad, along the said close, divers sparks and brands of fire then and there escaped and were thrown from the same locomotive en- gine, by and through the mere carelessness and negligence of the defend- ant, and set fire to certain stubble then in the said close, and thereby fire spread and was communicated to the last mentioned stacks of wheat of the plaintiff, whereby the same stacks of wheat, being then and there of the value of dollars, were then and there consumed, and wholly lost to the plaintiff. Wherefore the plaintiff says that he is injured, and has sustained dam- age to the amount of dollars, and therefore he brings his suit, etc. The statute provides that in all actions for damages occa- sioned by fire communicated by a locomotive engine, the fact that the fire was so communicated shall be 'prhna facie evi- dence to charge the defendant with negligence.* Evidence that the railroad company has used and operated the road for years, will sustain an averment in the declaration that the company is the owner of the road." A railroad company is required to use the same diligence in removing dry grass and weeds, and other combustible materials, from exposure to ignition by fire from trains, that a cautious, prudent man would use in respect to combustible materials on his own farm, if exposed to the same hazard from such ma- terials.^ Where fire is communicated to a building, through the negligence of a railroad company, the owner can not recover for the loss of property or money which he could easily, and without danger, have saved from destruction,* It is the duty of all railroad corporations to keep their right of way clear from all dead grass, dry weeds, or other com- ' 2 Starr & Curtis 1949; Rev. Stat. 355; Id. v. Com, 71 111. 493; Id, v. (1893) 1132; Rev. Stat. (1895) 1206; see Motherspaugh, 71 111. 572. R. R. Co. V. Spencer, 149 111. 97; Cal- * IL R. Co. v. Mills, 42 111. 407. lawayv. Sturgeon, 58 111. App. 159; ^ij. R. Co. v. JlfiZZs, 42 III. 407; Ry. Bass V. R. R. Co., 28 111. 9; R. R. Co. Co. v. Campbell, 86 111. 443. V. Pindar, 53 111. 449; Id. v. Gillham, *Ry. Co. v. Pindar, 53 HI, 447. 39 111. 455; Id. v. McCleUan, 42 111. 41 642 CASE. bustible material, and for neglect they are liable to the person injured.' It is not negligence per se for a railroad company to suffer grass and weeds to accumulate on its road; the fact, however, is proper evidence for the jury, who may find negligence from it. Owners of lands contiguous to railroads are as much bound, in law, to keep their lands free from an accumulation of dry grass and weeds as railroad companies are; so where a fire is started on the company's land, and is communicated to fields adjoining, the negligence of such owner, in that respect, will be held to have contributed to the loss. And unless it appears that the negligence of the company is greater than that of such land owner, the latter can not recover for injuries thus arising.^ No. 332. Against a railroad commny on the statute^ for damages resulting from not fencing its road, etc. {Commence as in No. 327, ante.) For that whereas the defendant, before and on the day of , in the year 18 — , in the county aforesaid, was a railroad corporation, and was possessed of and using and operating a cer- tain railroad, extending through a part of the county aforesaid, the line of which said railroad then and there was, and for more than six months be- fore that time had been, open for use; yet the defendant, not regarding the statute in such case made and provided, did not before that time tliere erect and then and there maintain fences on the sides of its said railroad suitable and sufficient to prevent horses from getting upon the said railroad; by means whereof and for want of such fences — horses of the plaint- iff then and there strayed and went upon the said railroad, at a certain place where such fence was then necessary to prevent horses from getting upon the said raih-oad from the lands adjoining the same, and not where the said raih'oad then ran through uninclosed lands lying at a greater dis- tance than five miles from any settlement, nor where the proprietors of the lands through which the said railroad then ran had then already erected fences, or agreed with the defendant so to do, nor at the crossing of any public road or highway, nor within the limits of any town, city or village; and the said horses so being on the said railroad there (to wit, at the place in that behalf aforesaid), a certain engine of the defendant, then driven ' Rev. Stat. (1895), 1199; 2 Starr & Pindar, 53 111. 447; R. R. Co. v. Si- Curtis, 1933; Rev. Stat. (1893), 1115, monson, 54 111. 504. •"R.R. Co. v. Shamfelt, 47 111. 497; ^2 Starr & Curtis' Stat. 1927; Rev. R. R. Co. V. Frazier, 47 111. 505; R. Stat. (1893) 1115; Rev. Stat. (1895) R. Co. v. MUls, 42 111. 407; R. R. 1199. Co. V. Munn, 51 111. 78; Ry. Co. v. ^ CASE. 64:3 and governed by divers, then agents of the defendant, on the said railroad, then and there ran and struck upon and against the said horses, and thereby of the said horses, each of the value of dollars, were then and tliere killed, and wholly lost to the plaintiff, and the others of the said horses, each of the value of dollars, were then and there greatly hurt, wounded and lamed, and became of no use or value to the plaintiff. {Second count, for not maintaining cattle-guards.) And whereas also the defendant, before and on the day aforesaid, in the county aforesaid, was a railroad corporation, and was possessed of and using and operating a cer- tain other railroad extending through a part of the county aforesaid, the line of which last-mentioned railroad then and there was, and for more than six months before that time there had been, open for use; yet the de- fendant, not regarding the statute in such case made and provided, did not before that time there constrtict and then and there maintain cattle-guards, suitable and sufficient to prevent horses from getting upon the same rail- road, at a certain road crossing there before that time and then existing and established, to wit, at the crossing of the same railroad and a certain road {describe the road by name, location, or termini and if it crosses the railroad more than once state the particular place ;)hy Tnca,ns whereof, and for want of such cattle-guards, other horses of the plaintiff then strayed and went upon the same railroad, from the said road crossing, and strayed and wandered along and upon the same railroad, beyond and near the said road crossing, (to wit, in the county aforesaid); and the last men- tioned horses so being on the same railroad as aforesaid, a certain other en- gine of the defendant, then driven and governed by divers then agents of the defendant, on the same railroad, then and there ran and struck upon and against the same horses, and thereby of the same horses, each of the value of dollars, were then and there killed, and wholly lost to the plaintiff, and the others of the same horses, each of the value of dollars, were then and there greatly hurt, wounded and lamed, and became of no use or value to the plaintiff. {A count at common law may be inserted, charging the injury to have been negligently and willf idly done, and omitting all allegations in respect to fences and cattle-guards.) Wherefore the plaintiff says that he is injured, and has sustained damage to the amount of dollai*s, and therefore he brings his suit, etc' Since the passage of the act of 1855, railroad companies in Illinois are liable for injuries caused to cattle that stray upon their roads through want of the required fences or cattle- guards;" and the failure of a railway to comply with the stat- ' See R. R. Co. v. Crawford, 25 111. Hall, 88 IlL 368; Schertz v. Ry. Co., 529; Id. V. Helm, 27 111. 198; Id. 107 111. 577; Ry. Co. v. Schertz, 12 v. Mothland, 30 111. 452; Id. v. Bradw. 304; Id. v. Crauford, 25 111. Bookless, 55 111. 230. 529; Id. v. Barton, 80 Hi. 72; Id. v. ' Rev. Stat. (1893) 1115; R. R. Co. Gerber, 82 111. 632; Id. v. Woosley, V. Neikirk, 13 Bradw. 387; Id. v. 85 111. 370. 641 CASE. ute, renders it liable, prima facie, for stock killed or injured by its agents, engines or cars.' In an action against a railroad company, under the statute, the plaintiff must show that the railroad has been open for use six months before the occurrence of the injury; ^ and that such injury was occasioned by the omission of the company to main- tain a fence or cattle-guards at some place where the statute requires the same to maintained.' The declaration need not allege that the place where, etc., was not a farm crossing, as the statute does not exempt the company from fencing its road at such crossings; and if the required bars or gate at a farm crossing were left down or open by some one, without the fault of the company, and thereby the animals got on the track and were injured, that is a matter of defense.* Although the declaration must negative all the exceptions in the statute, the burden is not on the plaintiff to prove the averment that there was no contract between the company and the owner of the ground that the latter should build the fence at the place w^here the animal went upon the railroad.* A town or village, within the meaning of the statute, is any as- semblage of houses, for dwellings, or places of business, or both, whether situated on regularly laid out streets and alleys or not." Railroad companies, by force of the statute, are required to fence their roads with sufficient fences to turn cattle, and after erecting to keep them in repair; they are required to put in gates or bars at farm crossings, which are a part of the fence, and the duty to keep their fences in repair includes the duty of keeping the gates or bars securely closed, so as to prevent cat- tle from getting upon their roads at such place as well as at other points. And while these companies are not required to J R. R. Co. V. Brake, 125 111. 393; Id. v. WUliams, 27 111. 48; Id. v. Id. V. Lynch, 67 111. 149. Saunders, 85 111. 288. 2 R. R. Co. V. Meisenheimer, 27 III. * R. R. Co. v. Helm, 27 111. 198; Id. Z^; Id. V.Jones, 211X1.^1; Ry. Co. \. v. Swearinger, ZZ l\\. 289; 7d. v. Diehl, 52 111. 441; Id. v. Bacon, 30 Buck, 14 Bradw. 394; Id. v. Sierer, 111. 347; Id. V. Bookless, 55 111. 230; 13 Bradw. 261. Id. V. Brake, 125 111. 393. » R. R. Co. v. Bacon, 30 111. 347. ^R. R. Co. V. Taijlor, 27 lU. 207; « R. R. v. Williams, 27 III. 48. CASE. 64:5 keep such a force of men on their roads that abreach in a fence would be seen and repaired as soon as made, still the law re- quires them to keep a force sufficient to discover and close such a breach within a reasonable time.' When a servant of the company went over the road at four p. M. Saturday, and found the fences in repair, and the next Monday morning he again passed over the road, and found that a fence had been recently broken, and cattle had got upon the track and been injured, it was held that the company showed due diligence, and was not liable for the injurj-- to the cattle." If a horse takes fright and runs away, and gets upon a railroad at a point where the company is bound to fence, and is killed upon the track, the fact that the fence or cattle- guard was insufficient at that point, will alone render the company liable. But if the horse, in its fright, gets upon the track by breaking a fence or leaping a guard which would be sufficient under ordinary circumstances, then the company will not be obliged to prove an absence of negligence in run- ning the train, and will not be liable unless shown to have been guilty of carelessness or a willful commission of the injury.' A good and sufficient fence is not merely one which will turn ordinary animals,* but one which will turn animals which are to some extent unrulj^^ It is gross negligence in an engine driver not to observe cattle upon or near the track, at a road crossing eighty or one hundred yards distant, when he could readily do so.® It is gross negligence to drive a train of cars before the engine, at a high rate of speed, through a deep cut, toward a crossing at the end of the cut, without sounding the bell or whistle con- tinuously for the distance required by the statute.^ If an animal is suddenly driven on the track by a dog, and there is • Ry. Co. V. Harris, 54 lU. 528; Id. * R. R. Co. v. Utley, 38 HI. 410. V. Barrie, 55 111. 226; Id. v. Saun- ''Ibid, ders, 85 111. 288. ' R. R. Co. v. Cauffman, 38 111. 424; » R. R. Co. V. Swearinger. 47 111. Id. v. Wren, 43 IlL 77; Id. v. Bar- 206; see Ry. Co. v. Barrie, 55 111. rie, 55 HI. 226. 226; R. R. Co. v. Hall, 88 111. 368. ' R. R. Co. v. TnjpUtt, 38 111. 482. *R, R.Co. V. Vtley, 38 lU. 410. 646 CASE. no fault on the part of the engine driver, the company will not be held liable.' While the failure of a railroad compan}'- to fence its road is negligence, it is also negligence on the part of the owner of horses to place them, with blind bridles on them, in a field through which an unfenced railroad passes. The owner has a right to place them in the field, but not so blinded as to render them incapable of avoiding danger. In such a case, whether the one party or the other has been guilty of the greater negligence, is a question to be determined by the jury.^ If a railroad company has erected and maintains sufficient fences and cattle guards, then it is not liable for injuries caused to cattle on its road, unless such injuries are caused by the negligent or willful act of the company.^ An omission to ring a bell or sound a Avhistle at a road crossing does not render a railroad company liable for an injury to animals, unless such ringing or sounding would have prevented the injury. Where a company is not bound to fence its road, it is only liable for injuries done to animals through wantonness or gross negligence.* The trustees of a railroad company, if they do business in the name of the company, are liable to be sued in that name, and their property is liable for debts incurred while transact- ing: business under that name.^ A railroad company can not free itself from liabilit}'' by leas- ing its road to other parties. Contractors for the construc- tion of a railroad are the servants of the company, and for their tortious acts, while about the company's business, the company is liable." The company owning a railroad not fenced as required by ' R. R. Co. V. Wren, 43 HI. 77. * R. R. Co. v. Phelps, 29 lU. 447; 2i2. R. Co. V. Todd, 36 lU. 409; see Id. v. Baker, 47 111. 295. Id. V. Baches, 55 111. 379. * Wilkinson v, Fleming, 30'I1I. 353. 3 R. R. Co. V. Crawford, 25 III. « R. R. Co. v. Whipple, 22111. 106; 529; see Id. v. Goodwin, 30 111. 117; see Hinde v. Nav. Co., 15 111. 72; Id. V. Morthland, 30 111. 451; Id. v. Leslier v. Nav. Co., 14 111. 85. Geddis, 33 111. 304; Id. v. Middles- worth, ^QJH. 4ai. CASE. 647 law, and also the company using it, are liable for injuries done to cattle by the trains of the latter company.' No. 333. Against a railroad company, for causing death of person — Suit by administrator, {Title of court, etc., as in No. 327, ante.) A. B. plaintiff, administrator of the estate of G. H., deceased, who died intestate, complains of the railroad company, defendant, of a plea of trespass on the case : For that whereas the defendant, in the lifetime of the said G. H., to wit, on, etc., in, etc. , was possessed of and using and operating a certain railroad extending through a part of the county aforesaid, and was also then and there pos- sessed of a certain locomotive engine, with a certain train of cars then at- tached thereto, which said locomotive engine and train were then and there under the care and management of divers then servants of the defendant, who were then and there driving the same upon and along the said rail- road, near and towards a certain crossing of the said railroad and a certain public highway there, (to wit, a certain public highway then leading from to ;) And while the said G. H., ivith all due care and diligence, was then riding across the said railroad, at the sa"d crossing, upon the said public highway there, in a certain wagon drawn by two horses, the defend- ant then and there, by its said servants, so carelessly and improperly drove and managed the said locomotive engine and train, that by and through the negligence and improper conduct of the defendant, by its said servants, in that behalf, the said locomotive engine and train then and there ran and struck with great force and violence upon and against the said wagon, and thereby the said G. H. was then and there thrown with great force and violence from and out of the said wagon to and upon the ground there, and was thereby then and there killed. And the plaintiff avers that the said G. H. left him surviving one J., his widow, and one L., his son and next of kin, who are still living; and that by reason of the death of the said G. H. as aforesaid, the said J. has been and is deprived of her means of support, and the said L. has been and is deprived of his means of support and education. 2 {A count may he inserted, charging neglect to ring a hell, etc., like No. S28, ante.) To the damage of the plaintiff, as administrator as aforesaid, of dol- lars, and therefore he brings his suit, etc. And the plaintiff brings into the court here the letters of administration to him granted by the county coiui; of the county aforesaid, which give sufficient evidence to the court here of the grant of administration of the said estate to the plaintiff, etc. This action is given, in Illinois, by the act of February 12, 1 853.^ In order to recover, the plaintiff must allege in his dec- » R. R. Co. V, Kanouse, 39111. 272; 'See R. R. Co. v. Morris, 26 HI, Id. V. Rumhold, 40 111. 143; but see 400; 10 Law & Eq. 439; 3 Duer 635. Fletdierv. R. R. Co. , 1 Allen (Mass.) 9. » 1 Starr & Curtis 1290; Rev. Stat. 648 CASE. laration, and prove, that the deceased left a widow or next of kin, to whom the damages can be distributed. There may be persons who have been for years separated from their families and kindred, and who in all probability would never return to them; and in case of the death of such persons, there would be no next of kin who could sustain any pecuniary loss thereby, because a continuance of their lives would have brought no pecuniary benefit to their kindred. The sole measure of dam- ages is the pecuniary loss; nothing is to be allowed, by way of solace, for the bereavement.' When the death of a person is caused by the wrongful act, default, or negligence of another, and the act or neglect is such as would have entitled the former to maintain an action if death had not ensued, the wrongdoer is liable for damages, in an action to be brought in the name of the personal repre- sentatives of the deceased. Suit must be brought within two years.^ The action, under the statute, is to be brought by the exec- utor or administrator of the deceased; and it is not limited to those cases where the deceased leaves a widow. Any money recovered by such action is not to be treated as a part of the estate of the deceased; creditors do not derive any benefit from it. It is to be distributed among those to whom the personal estate would go by law, in the absence of a will. Orphans may have redress, under this statute, where both parents are killed, and a husband for the loss of a wife." (But the hus- (1893) 813; Rev. Stat (1895) 861; see ^Itev. Stat (1893) 812; Rev. Stat Coal Co. V. Strawn, 15 Bradw. 347; (1895) 861; 1 Starr & Curtis 1290; R. Bolton V. Daly, 106 111. 131; R. K R. Co. v. Morris, 26 111. 400; Chicago Co. v. Clayherg, 107 111. 644. v. Major, 18 111. 349; Id. v. Slattern, 1 R. R. Co. V. Harwood, 80 111. 88; 54 III. 133; R. R. Co. v. Harwood, 80 Barley V. Chicago, ^B\sB.AZQ; Brady III. 88: Hackett -v. Svielsley, 77 111. V. Chicago, 4 Biss. 448; R. R, Co. v. 109; R. R. Co. v. O'Connor, 77 111. Moranda, 93 111. 302; Id. v. May, 391; Id. v. Becker, 76 111. 25; Id, v. 108 111. 288; Furnan Co. v. Abend, Miller, 76 111. 278; Id. v. Durkin, 76 107 IlL 44; R. R. Co. v. Morris, 26 111. 395; Weick v. Landers, 75 111. 93; 111. 400; Id. V. BacJies, 55 111. 381; Chicago v. Scholten, 15 III. 'iQ8. Coal Co. V. Hood, 77 111. 68; R. R. ^ City v. Major, 18 lU. 349; Id. v. Co. Brooks, 81 111. 245; Chicago v. Starr, 42 111. 174; Id. v. Porter, 47 Scliolten, 75 Bl. 468; R. R. Co. v. 111. 66; Kerr v. Forgue, 54 111. 482; Austin, 69 111. 426. R. R. Co. v. Wlialen, 19 Bradw. 116; CASE. 649 hand is not in any sense next of kin to the wife, nor the wife to the husband.)' A child, four years old, fell into a water tank constructed by the city of Chicago, and was drowned. Held^ that the father, as administrator, could maintain an action under the act which gives a remedy when the death of a person is caused by the wrongful act, default, or negligence of another.* I^o. 334. Against a city, for permitting a sidewalk to remain out of repair whereby plaintiff was injured. {Title of court, eta., as in No. 327, ante.) A. B., plaintiff, by E. F., his attorney, complains of the city of , defendant, of a plea of trespass on the case: For that whereas the defendant, before and on, etc., was pos- sessed and had control of a certain public sidewalk on a certain public street, called street, in the said city, in the county aforesaid, and ought to have kept the same in good and safe repair and condition. Yet the defendant, not regarding its duty in that behalf, while it was so pos- sessed and had the control of the said sidewalk, to wit, on the day afore- said, there wrongfully and negligently suffered the same to be and remain in bad and unsafe repair and condition, and divers of the planks where- with the said sidewalk was laid to be and remain broken and unfastened, by means whereof the plaintiff, who was then and there passing along and upon the said sidewalk, then and there necessarily and unavoidably tripped and stumbled upon and against one of the said broken and unfastened planks of the said sidewalk, and was thereby thrown and fell to and upon the said sidewalk and the ground there, and thereby the right wrist of the plaintiff was then and there dislocated and broken, and he became sick, lame and disordered, and so remained for a long time, to wit, from thence hitherto, during all which time he thereby suffered great pain, and was hin- dered from transacting his business and affairs, and also, by means of the pwemises, was there obliged to and did layout divers sums of money, amounting to dollars, in and about endeavoring to be healed of the said wounds, sickness and disorder. To the damage of the plaintiff of dollars, and therefore he brings his suit, etc. "Where the law imposes the duty upon a municipal corpo- ration of keeping its streets in a safe condition for the use of the public, an action on the case will lie to recover damages Id, V. O'Connor, 19 Bradw. 591; ^Chicago v. Major, 18 III. 349; Id, V. Carey, 115 111. 115; Id. v. Chicago v. Starr, 42 111. 174; see Shacklett, 10 Bradw. 404; Id. v. City v. Porter, 47 111. 66; Herr v. Shacklett, 105 111. 364. Forgue, 54 III. 483; R. R. Co. v. ' Toumsend v. Radcliffe, 44111. 446; Stumps, 55 111. 367. 2 Kent. Com. 136; see Whiton v. R. R. Co., 2 Diss. 282. 650 CASE. occasioned by a neglect of such duty.' And such duty can not be shifted by the corporation upon a person who may be employed to perform it." If an individual constructs a hatchway in a sidewalk, he must respond for any damages resulting from his negligence to render it safe and free from danger. It is also the duty of the city to keep the streets and sidewalks in safe condition, and it will be liable for injury resulting from its neglect of duty in that respect. But should a recovery be had against the city in such case, the person whose neglect of duty caused the injury will be liable over to the city therefor.* The measure of damages in an action against a municipal corporation, for negligence in not keeping its streets and side- ■walks in good condition, is compensatory, unless the proof shows the injury complained of was willful, which is scarcely possible in the case of a corporation of that description.* ' Springfield v. Le Claire, 49 111. 476; Lesher v. Wabash Co., 14 111. 85; Hinde v. Wabash N. Co., 15 111. 73; Browning v. Springfield, 17 111. 143; Scammon v. Chicago, 25 111. 424; Bloomington v. Bay, 42 111. 503; Severin v. Eddy, 52 111. 189; Decatur V. Fisher, 53 111. 407; City v. Cock- rum, 59 111. App. 540; Clayburgh v. Chicago, 25 111. 535; Joliet v. Verley, 35 111. 58: Chicago v. Gallagher, 44 111. 295; Lacon v. Page, 48 III. 499; Chicago v. Johnson, 53 111. 91; Lovenguth v. Bloomington, 71 III. 238; Kepperlyv. Ramsden, 83 III. 357; City V. Brown, 13 Bradw. 122; Chi- cago V. Keefe, 114 111. 225; Mansfield V. Moore, 124 111. 136; Rock Island v. Cuineley, 126 111. 408; Chicago v. Dalee, 115 III. 386; Joliet v. Graber, 21 111. App. 632; Sterling v. Merrill, 124 111. 523; Bloomington v. Annett, 16 111. App. 303; Heam v. Chicago, 20 111. App. 249; McDaneld v. Logi, 143 111. 487; Chicago x. Bahcock, 143 111. 358; Bloomington v. Osterle, 139 111. 130; Village v. Johnson, 52 III. App. 659; Springfi£ld v. Rosenmeyer, 52 111. 302; Senger v. Harvard, 147 111. 304; Streator v. Hamilton, 49 111. App. 449; Normal v. Gresliam, 49 111. App. 196; Mt. Carmel v. Guthridge, 52 111. App. 633; City v. Scraggs, 52 111. App. 551; La Salle V. Porterfield, 138 111. 114; Smith v. 3IcDowell. 148 lU. 51. '^Springfield v. Le Claire, 49 111. 476. 2 Severin v. Eddy, 52 111. 189; see Pfau V. Reynolds, 53 111. 212; Chi- cago V. Gallagher, 44 111. 295; Chi- cagov. Stearns, 105 111. 554; Chicago V. Schmidt, 107 111. 186; Blooming- ton V. Chamberlin, 104 111. 268; R. R. Co. V. Rung, 104 111. 641. '* Chicago v. Martin, 49 111. 241; Decatur v. FisJwr, 53 111. 407. CASE. 651 No. 335. Against defendant, for keeping uncovered a vault-hole in street, adjoining his premises, whereby plaintiff fell doum, and was injured. (Title of court, etc., as in No. 327, ante.) A. B., plaintiff, by E. F., his attorney, complains of C. D., defendant, of a plea of trespass on the case : For that whereas the defendant, before and on, etc., was the possessor and occupier of a certain messuage and premises, with the appurtenances, sit- uate in the county aforesaid, and near to a certain common and public highway there, in which said highway there now is, and before and on the day aforesaid there was, a certain hole, opening into a certain cellar and vault of and belonging to the said messuage and premises of the defendant, to wit, in the county aforesaid : Yet the defendant, well knowing the mat- ters aforesaid, while he was so the possessor and occupier of the said mes- suage and premises, with the appurtenances, and while there was such hole as aforesaid, to wit, on the day aforesaid, there wrongfully and unjustly permitted the said hole to be and continue, and the same then and there was so badly, insufficiently and defectively covered, that by means of the premises, and for want of a proper and sufficient covering to the said hole, the plaintiff, who was then and there passing in and along the said high- way, then and there necessarily and unavoidably slipped and fell into the said hole, and thefeby the left leg of the plaintiff was then and there broken, and he became and was sick, sore, lame and disordered, and so remained for a long space of time, to wit, from thence hitherto, during all which time the plaintiff thereby suffered great pain, and was prevented from attending to and transacting his affairs and business; and also, by means of the premises, was obliged to and did pay out a large sum, to wit, the sum of dollars, in and about endeavoring to be healed of the said wounds, sickness and disorder : To the damage of the plaintiff of dol- lars, and therefore he brings his suit, etc. Where the tenant of a house was bound to repair it, but the landlord superintended the repairs, and the cellar was left in a dangerous state, and an accident happened, the landlord was held liable.* So where the defendant had employed a brick- layer to make a sewer, who left it open, in consequence of which the plaintiff fell in and broke his leg, the defendant was held liable.' Where a clerk of a retail merchant went down into a cellar that was being excavated by the landlord of the merchant, to Fijcover a lady customer's hat, and while there was injured by the falling of a wall, it was held that he could maintain an '^Leslie v. Pounds, 4 Taunt. 649; v. Major, 18 111. 349; Hunt v. Horjt, Payne v. Rogers, 2 H. Black 349. 20 III. 544; Pekin v. Newell, 26 111. ^Slyv. Edgley, 6 Esp. 6; Langher 320; Severin v. Eddy, 52 111. 190. V. Pointer, 5 B. & C. 559; see Oity 652 CASE. action against the person doing the work, for the injury re- ceived.' Every person must so use his own property as not to injure his neighbor; and if he fails so to do, through the want of reasonable care or skill on the part of himself or his servants, he is liable for injuries thereby sustained." An owner of land, who contracts with a skillful person to erect a building thereon, and who for that purpose surrenders the premises for the use of the contractor, is not, during the erection of the building, answerable in damages for an accident occurring to a stranger passing by. If the sufferer has any recourse, it is against the contractor, or the corporation within which the property is situated. The persons who may be ac- cused of negligence, under such circumstances, are not the servants of the owner of the premises, but of the contractor.^ No. 335a. AgaiTist defendant for obstructing the natural flow of water, etc. {Commence as in No. 335, ante.) For that whereas, on, to wit, etc., the plaintiff was and from thence hitherto has been, and still is lawfully pos- sessed of the following described real estate, to wit {here describe); and the defendant was possessed of the following described real estate, to wit {here describe), which said last mentioned real estate of the defendant adjoined the real estate of the plaintiff above described on the east side thereof; that on, to wit, etc., the defendant wrongfully and unlawfully erected and built, and from that time until the commencement of this suit, maintained and continued a certain levee or embankment along the west side or line of his said real estate, which said levee or embankment was of great dimensions, to wit, of the width of sia; feet, and of the height of ttvo feet, and was with- out sufficient openings therein to permit the free passage of water. That by reason whereof the flow of large quantities of rain water which natu- rally flowed upon, over and across the said premises of the defendant, was obstructed, and said water was diverted from its natural course, and ran and flowed in a different direction over and upon the said land and prem- ises of plaintiff, and there remained, whereby the said land and prem- ises of the plaintiff were greatly damaged and injured, and became and were and are wet, swampy, and to a great extent, unfit for cultivation, to the damage of the plaintiff of dollars, and therefore he brings his suit, etc » Lamparter v. WaUbaum., 45 IlL 111. 494; R. R. Co. v. Phillips, 49 lU. 444, 234; City v. LeClaire, 49 III. 476. 2 Lamparter v. WaUbaum, 45 111. ^ Scammon v. City, 25 III. 424; see 444; R. R. Co. v. Middlestvorth, 46 Mercer v. Jackson, 54 111. 397. CASE. 653 If one connects a part of his own premises with a public sidewalk, he thereby invites the public to treat the part so connected as belonging to the sidewalk, and can not be heard to say that the whole is not a public way. In such case he must exercise due care to keep the premises in a reasonably safe condition. So, if a hole in a stone platform between a building and a street, open to the public use as a part of the street, is necessary to light the basement, and it can be made safe by a railing, or otherwise, it is the duty of the owner making the platform, to use ordinary care and diligence to make and keep such opening reasonably safe.' As a general rule, the occupant, and not the owner, is responsible for injuries arising from a failure to keep the premises in a proper state of repair.' But when premises are let with a nuisance upon them, by means of which the injury complained of is received, the owner or landlord will be liable.^ "When a party comes into possession of land as grantee or lessee, with an existing nuisance upon it, he can not be held liable to an action for damages until he has been first notified to remove it.* No. 336. Against proprietors of stage coach for negligence. {Commence as in last precedent.) For that whereas the defendant, before and at the time of committing the grievances hereinafter mentioned, was the owner of a certain common stage coach, by him used and employed in carrying passengers from, etc., to etc., and divers other places, for hire and reward; and being such owner of the said stage coach, he, the defendant, on, etc., at, etc., aforesaid, received the plaintiff into the said coach as a passenger, to be safely conveyed thereby on a journey from, etc., aforesaid, to, etc., aforesaid, for a certain fare and reward to the defendant in that behalf; and by reason thereof the defendant ought carefullj' to have con- veyed the plaintiff, by the said coach, on the said journey. Yet the de- fendant, not regarding his duty in that behalf, so carelessly and unskill- fuUy conducted himself that by and through the negligence and default of the defendant and his servants, and for want of due care and attention to their duty in that behalf, the said coach afterwards, and while the same was ^ Tomle v. Hampton, 129 111. 379. ♦Angell on "Water Courses, Sec. ^Tomle v. Hampton, 129 111. 379; 403; Cooley on Torts, 611; Johnson Stephaniv. Brovm, 40 111. 428; Grid- v. Lewis, 13 Conn. 303; Graff v. An- ley V. Bloomington, 68 III. 47; City kenbrandt, 124 111. 51, and cases V. Simpson, 110 111. 294. there cited. 3 Tomle V, Hampton, 129 111. 379, and cases there cited. 654 CASE. conveying the plaintiff on the said journey, and before the arrival thereof at, etc., aforesaid, to wit, on the day aforesaid, in the county aforesaid, was overset and thrown down; by means whereof the plaintiff, then being therein, was greatly cut, bruised and wounded, and the left leg of the plaintiff vv^as then and there broken and he became sick, sore, lame and disordered, and so remained for a long space of time, to wit, from thence hitherto, during all which time he, the plaintiff, thereby suffered great pain, and was prevented from attending to and transacting his affairs and business, and was also by means of the premises obliged to lay out, and did lay out, a large sum of money, to wit, dollars, in and about endeavor- ing to be healed of the said wounds, sickness and disorder; and also thereby the plaintiff was hindered and prevented from continuing his said journey, and was detained at a certain inn at , for the space of weeks, and during that time there incurred great expenses, amounting to dollars, in and about his necessary support and maintenance. To the damage, etc. "Where a traveler in a public coach is injured by the careless- ness of the driver, such carelessness is to be deemed negligence on the part of the owner, in a suit brought against him for damages.' As regards passengers, a stage coacli proprietor is not liable for any personal injury they may sustain from the upsetting of the coach, etc., unless he, or his servants, be guilty of gross negligence, or unskillfulness in driving or providing horses, coach or harness, etc.; " but the breaking down or up- setting of the coach is said to be jprima facie evidence of neg- lect.' No. 337. Against defendant, for keeping a dog which bit plaintiff. {Covimenee as in No. 335, ante.) For that whereas the defendant, on, etc., and from thence until and at the time of the damage and injury to the plaintiff as hereinafter mentioned, to wit, in the county aforesaid, wrong- fully and injuriously did keep a certain dog, he, the defendant, during all that time well knowing that the said dog then was used and accustomed to attack and bite mankind; which said dog afterwards, and while the defend- ant so kept the same as aforesaid, to wit, on, etc., aforesaid, did there attack and bite the plaintiff, and did then and there greatly lacerate, hurt and wound one of the legs of the plaintiff, and thereby he, the plaintiff, then and there became and was sick, sore, lame and disordered, and so remained for the space of six months then next following, during all wliich ^ Brown v. R. R. Co., 31 Barb. Joiies v. Voorhees, 10 Ohio, 145 385. Stokes v. Saltonstall, 13 Pet. 181 2 Company v. Raivlings, 3 Bing. McKinney v. Neil, 1 McLean, 540 71; Sharp v. Grey, 9 Bing. 457. Maury v. Talmadge, 2 McLean, 157. ^ Christie v. Grigg, 2 Carapb. 79; CASE. 655 time he thereby suffered great pain, and was thereby then and there hindered and prevented from transacting his affairs and business; and also, by means of the premises, the plaintiff was thereby then and there put to great expense and charges, in the whole amounting to the sum of dollars, in and about endeavoring to be cured of the said wounds, sickness, lameness and disorder so occasioned as aforesaid, and has been and is, by means of the premises, otherwise greatly injured and damnified. {A count may be inserted, alleging that the dog "was of a ferocious and malicious disposition," — and another count for not keeping the dog properly secured or fed.) To the damage of the plaintiff of dollars, and therefore he brings his suit, etc. If a person negligently keeps clogs, or other animals, which are known to him to be of a savage and ferocious disposition, he is accountable for all injury which the\^ may do; and it is the duty of the owner of such animals to secure them from doing mischief.' It is in general necessary, in an action for an injury com- mitted by a domestic or other animal not naturally inclined to commit mischief, to allege and prove that the owner pre- viously had notice of the animal's mischievous propensity, or that the injury was attributable to some other neglect on his part.* No. 33S. For malicious prosecution. {Commence as in No. 335, ante.) For that whereas the plaintiff now is a good and honest citizen of this state, and as such has always behaved himself, and has not ever been guilty, or until the time of the committing of the several grievances by the defendant, as hereinafter mentioned, been suspected to have been guilty of larceny, or of any other such crime, by means whereof the plaintiff, before the committing of the said grievances, had deservedly obtained the good opinion and credit of all his neighbors, and other worthy citizens of this State; yet the defendant, well knowing the premises, but contriving and maliciously intending to injure the plaintiff in his aforesaid good name, fame and credit, and to bring him into public scandal, infamy and disgrace, and to cause the plaintiff to be imprisoned for a long space of time, and thereby to impoverish, oppress and ruin him, on, etc., in, etc., went and appeared before one E. F., Esq., then and there ^ Pickering V. Orange,! Scam. 3SS; Egan, 65 111. 235; Flansherg v. Pickering v. Orange, 1 Scam. 492; Basin, 3 Bradw. 531: Wonnley v. Stumps V. Kelly, 22 111. 140; Norris Gregg, 65 111. 251; Spray v. Amer- v. Warner, 59 111. App. 300; Linck man, 66 111. 309; Marean wVanatta, V. Scheffel. 32 111. App. 19. 88 111. 132; Norris v. Warner, 59 111. ^ 1 Chit. PI. 70; Keightlinger v. App. 300. 656 CASE. being one of the justices of the peace in and for the county aforesaid, and then and there, before the said E. F., so being such justice as aforesaid, falsely and maliciously , and without any reasonable or probable cause whatsoever, charged the plaintiff with having feloniously stolen a certain gold watch of tlie defendant; and upon such charge the defendant falsely and maliciously, and without any reasonable or probable cause whatsoever, caused and procured the said E. F,, so being such justice as aforesaid, to make and grant his certain warrant, under his hand, for the apprehending and taking of the plaintiff, and for bringing the plaintiff before him, tlie said E. F., or some other justice of the peace in and for the said county, to be dealt with according to law for the supposed offense; and the defendant, under and by virtue of the said warrant, afterwards, to wit, on the day aforesaid, there wrongfully and unjustly, and without any reasonable or probable cause whatsoever, caused and procured the plaintiff to be arrested by his body, and to be imprisoned, and kept in prison for the space of hours then next following, and until he, the defendant, afterwards, to wit, on, etc., there falsely and maliciously, and without any reasonable or prob- able cause whatsoever, caused and procured the plaintiff to be carried in cus- tody before the said E. F., so being such justice as aforesaid, to be examined before the said justice, touching the said supposed offense; which said jus- tice having heard and considered all that the defendant could say or allege against the plaintiff touching and concerning the said supposed offense, thereupon then and there adjudged and determined that the plaintiff was not guilty of the said supposed offense, and then and there caused the plaint- iff to be discharged out of custody, fully acquitted and discharged of the said supposed offense; and the defendant has not further prosecuted his said complaint, but has abandoned the same, and the said complaint and pros- ecution are wholly ended and determined. {Second count.) And whereas also the defendant, further contriving and maliciously and wickedly intending as aforesaid, on, etc., aforesaid, in, etc., aforesaid, falsely and maliciously, and without any reasonable or probable cause whatsoever, charged the plaintiff with having committed a certain offense punishable by law, to wit, larceny; and upon such last-mentioned charge the defendant then and there falsely and -maliciously caused and pro- cured the plaintiff to be arrested by his body, and to be imprisoned, and to be kept in prison for the space of then next following; at the expira- tion of which time he, the plaintiff, was there duly discharged and fully acquitted of the last-mentioned supposed offense. (Averment of damage, applicable to both counts.) By means of which several premises, the plaintiff has been and is greatly injured in his credit and reputation, and brought into public scandal, infamy and disgrace, with and among all his neighbors, and other worthy citizens of this State, and divers of those neighbors and citizens, to whom his innocence in the prem- ises was unknown, have, on occasion of the premises, suspected and believed, and still do suspect and believe, that the plaintiff has been and is guilty of larceny; and also the plaintiff has, by means of the premises, suffered great anxiety and pain of body and mind, and has been obliged to lay out, and has laid out, divers large sums of money, amounting to dollars, in and CASE. 657 about tlie procuring; of his discharge from the said imprisonment, and the defending of himself in the premises, and the manifestation of liis innocence in that behalf, and has been greatly hindered and prevented, by reason of the premises, from following and transacting his affairs and business, for the space of ; and also, by reason of the premises, the plaintiff has been and is otherwise greatly injured in his credit and circumstances: To the damage of the plaintiff of dollars, and therefore he brings his suit, etc. The gist of this action is, that the prosecutor acted mali- ciously, and without probable cause. If there is no malice, or if there is probable cause, the action will not lie.' Probable cause is defined to be a reasonable ground of sus- picion, supported by circumstances sufficiently strong in them- selves to warrant a cautious man in the belief that the person accused is guilty of the offense charged." A defendant may give in evidence any facts which show that he had probable cause for prosecuting, and that he acted in good faith upon the ground of suspicion.^ Good faith is al- ways an important subject of inquiry in an action of this kind.* To enable a party to maintain this action, it is not essential that there should have been a trial by jury, and a verdict of acquittal rendered, upon the charge preferred against him,* but it is essential to aver and prove that the charge upon which the plaintiff was arrested has been legally determined, in his favor, either by a trial or otherwise.' ^ Jacks V. Simpson, 13 111. 702; Ross v. Innis, So III. 487; Chapman Leidig v. Rawson, 1 Scam. 272; Mc- v. Caicrey, 50 111. 512; Angela v. Bean v. Ritchie, 18 111. 114; Ross v. Faul, 85 111. 106; Palmer v. Richer- Innes, 35 111. 487; Anderson v. son, 70 111. 544; Harpham v. Whit- Friend, 85 111. 135; Harpham v. ney, 77 111. 32; Broton v. Smith, 83 Whitney, 77 111. 32; Barrett v. 111. 291; Hess v, Webb, 53 111. App. Spaids, 70 111. 408; Mitchinson v. 53. Cross, 58 111. 366; Bourne v. Stout, ' Leidig v. Rawson, 1 Scam. 272; 62 111. 261; Montross v. Bradsby, 68 Richie v. McBean, 17 111. 63; Collins 111. 185; McFarland v. Washburn, v. Hayte, 50 111. 337; Comstock v. 14 111. App. 369; Low v. Greemcood, Wood, 50 111. 352. 30 111. App. 184; Wilmerton v. Sam- * Comstock v. Wood, 50 111. 352; pie, S9 111. App. &2; Loiery V. Hately, Bee Wagner v. Atdtman, 2 Bradw. 30 111. App. 299; Sundmacher v. Ul; Bishop v. Bell, 2 Bradw. 551; Block, 39 111. App. 553: Neufeld v. Splane v. Byrne, 9 Bradw. 392. Rodemenski, 144 111. 83; Schattgen * Gilbert v. Emmons, 42 111. 143. V. Holnback, 149 111. 646. ^ Feazle v. Simpson, 1 Scam. 30; « Richie v. McBean, 17 111. 63; Hurd v. Shaw, 20 lU. 354; Walker 42 65S CASE, And where a plaintiff sboAved a discharge under a hctbeas corpus, it was held that it should also have been made to ap- pear on the trial that the state's attorney did not send the case, with the witnesses, before the grand jury, or, if he did so, that no further steps had been taken by the people.' If an attorney commences an action against a party when he knows that his client has no cause of action, but with some sinister view, for some purpose of his own, he will be liable therefor.^ Although a want of probable cause may raise the presump- tion of malice, the existence of malice is not sufficient to raise a presumption of want of probable cause. The want of proba- ble cause must be shown.^ It is for the plaintiff to show that the defendant had not probable cause or reasonable ground for prosecuting. Probable cause is a mixed question of law and fact.' Malice may be inferred from want of probable cause, but it does not follow, as a legal inference.* Previous good character may be shown as one evidence of want of probable cause, and bad character may be shown as reason for probable cause. The discharge of the accused by the examining magistrate, is not sufficient evidence of the existence of want of probable cause; and any fact, such as the admission of the accused, which goes to disprove either want of probable cause or malice, is proper for the consideration of the jury, in an action for malicious prosecution/ V. Martin, 43 111. 508; Blalock v. ney, 77 III. 32; Thompson v. Force, Randall, 76 111. 224; Rothschild v. 65 111. 370; Montross v. Bradsby, 68 Meyer, 18 Bradw. 284;iioy v. Goings, 111. 185; Mitchinson v. Cross, 58 III. 112 111. 656; Leyenberger v. Paid, 40 866; Roy v. Goings, 112 111. 656. 111. App. 516; Rosenberg v. Hart, 33 * ZsraeZ v . BrooA-s, 23 111. 575; Jacks 111. App. 265; Hibbard v. Ryan, 46 v. Simpson, 13 111. 701; Broivn v. III. App, 313. Smith, 83 111. 292; Hirschv. Feeney, 1 Walker v. Martin, 43 111. 508; 83 111. 548; see Wade v. Walden, 23 Poppers V. 3Iiller, 14 Bradw. 87; 111. 425; Palmer v. Richardson, 70 Harpham v. Whitney, 77 111. 32; 111. 544; Calef v. Thomas, 81 III. 478; Kriig V, Ward, 77 111. 603. Angelo v. Faid, 85 111. 106; Schattgen 2 Burnap v. Marsh, 13 111. 535. v. Holnback, 149 111. 646. ^Wade V. Walden, 23 111. 425; ^ Cartright \. Elliott, ^5 111. App. Angelo v. Paul, 85 111. 106; King v. 458. Ward, niH-QOS; Harpham V.Whit- ^Israel v. Brooks, 28 111. 575; CASE. 659 It is not requisite that a crime shall have been committed before probable cause for an arrest can exist. An act may have been done which will create a belief of crime, but when the animiis is shown with which the act was done, its char- acter may be entirely chanf^ed.* The waiving of an examination before a magistrate, and giving bail for appearance at the circuit court, is not such an admission of guilt as will preclude the plaintiff from sustain- ing an action for a malicious prosecution. A discharge, by the prosecuting attorney, of the recognizance of the person accused, is the usual mode of terminating a prosecution in Illi- nois. A bill need not be ignored before such person may main- tain an action for a malicious prosecution.' If a private person takes part in an unlaw^ful imprisonment of another by an officer, he becomes a principal in the act and is liable; but if he merely communicates facts or circumstances of suspicion to the officer, leaving him to act on his own judg- ment, he is not liable at all, in an action either for malicious prosecution, or false imprisonment.* The mere " knowledge and consent " of one partner, as to an arrest, unaccompanied with his advice and co-operation, will not render him liable with his copartner in an action by the person arrested.* The law upholds and favors prosecutions under the public laws of the land, and shields and protects parties instituting them in good faith and from proper motives. So, when a party consults with counsel of good standing, and lays before him fully the facts within the party's knowledge, and then acts in good faith and in the honest belief that the party charged is probably guilty of the criminal offense, he will not be held responsible, if it shall turn out that the party is not guilty. If a criminal prosecution is instituted by a party maliciously Thorpe v. Balliet, 25 111. 339; see ^SchoonJwver v. Meyers, 28111 SOS. Ross V. Innis, 35 111. 487; Anderson ^ Brmvn v. Chadsey, 39 Barb. 253; V. Friend, 85 111. 135. GiTbert v. Emmons, 42 111. 143. ' Ross V. Innis, 26 111. 259; Mc- * Gilbert v. Emmons, 42 111. 143; David V. Blevins, 85 111. 238; see Rosenkrans v. Barker, 115 111. 331; Krug V. Ward, 77 111. 603; Davie v. Grund v. Van Vlcck, 69 111. 478. Wisher, 73 lU. 262. 6C0 CASE. and not in good faith upon the advice of legal counsel that a crime has been committed, he will be liable for a malicious prosecution, and the advice of counsel Avill not avail as a defense.' No. 340. For criminal conversation. (Commence as in No. 335, ante.) For that whereas the defendant, con- triving and wickedly intending to injure the plaintiff, and to deprive him of the society and assistance of E. B., the wife of the plaintiff, and to alien- ate and destroy her affection for the plaintiff, on, etc. , and on divers other days between that day and the commencement of this suit, in, etc., wrong- fully and wickedly debauched and carnally knew the said E. B., then and there and still being the wife of the plaintiff; and thereby the affection of the said E. B. for the plaintiff was then and there alienated and destroyed, and also, by means of the premises, the plaintiff has from thence hitherto wholly lost and been deprived of the society and assistance of the said E. B., his said wife, in his domestic affairs, which the plaintiff during all that time ought to have had. and otherwise might and would have had: To the damage of the plaintiff of dollars, and therefore he brings his suit, etc. An action for er'hninal conversation may be maintained either in case, or trespass,^ but it is in effect in case.^ A re- covery against one party in an action for crim. con. is no bar to an action against another party for a similar injury.* In such action the plaintiff must prove an actual marriage.^ A marriage license, issued in the State of Tennessee, with a certificate indorsed thereon by a justice of the peace, that he had solemnized the marriage, was held to have been properly admitted in evidence, the official character of the officer grant- ing the license, and also that of the justice of the peace, being 1 Neufeld v. BodeminsJci, 144 111. 70 III. 544; Loioenthal v. Streng, 90 83; Roy v. Goings, 112 111. 662; 111. 74; Nelson v. Daniehon, 83 111. Schaltgen v. Holnback, 149 III. 646; 545; Home v. Sullivan, 83 111. 30; Bliss v. Wyman, 7 Cal. 257; Ross v. Leyenberger v. Paul, 40 III. App. Innis, 35 111. 487; Collins v. Hayte, 516. 50 111. 337; Anderson v. Friend, 85 ^ And. Steph. PI. 83, n.; Yundt v. 111. 135; Daviev. Wisher, 73 111. 262; Hartninft, 41 111. 9. STcidmore v. Bricker, 77 111. 164; ^McFadzen v.Olivant, 6 East S87; Murpheyv. Larson,!! III. 112; Calef Van Vacter v. MeKillip, 7 Blackf. V. Thomas, 81 111. 478; Ames v. 578. Snider, 69 111. 376; Anderson v. ''I Camp. 415; 1 Chit. PI. 77. Friend, 71 111. 475; Brown v. Smith, ° 4 Burr. 2057; Phil, on Ev. 206; 83 111. 291; Palmer v. Richardson, Selw. N. P. 14, 16. CASE. 661 certified by the clerk, the keeper of the records, under his offi- cial seal, and the presiding justice having certified to the authority and oflicial character of the clerk.' While the loss of service of the wife or daughter is the alleged ground of recovery, the injury to the family in its reputation, the mental anguish and distress which necessarily attend the transaction, are the real causes for the recovery. And though the husband be absent from home, he is still entitled to his wife's services in the nurture of his children, as well as to the setting of a virtuous example to them by her.* In an action for criminal conversation, evidence that the plaintiff is ill tempered, and that before the illicit intercourse charged he and his wife lived unhappily together, and occa- sionally came to blows, is inadmissible in mitigation of dam- ages; ^ nor are the confessions of the wife, or the opinions of witnesses, as to her fondness for the defendant, admissible in evidence against him.* No. 341. For debauching plaintiff's daughter, etc. (Commence as in No. 335, ante.) For that whereas the defendant, con- triving and wrongfully intending to injure the plaintiff, and to deprive him of the service and assistance of E. B., the daughter and servant of the plaintiff, on, etc., and on divers other days between that day and the com- mencement of this suit, in, etc., debauched and carnally knew the said E. B., then and there, and from thence hitherto, being the daughter and serv- ant of the plaintiff; whereby the said E. B. there became pregnant and sick with child, and so remained for the space of nine months then next follow- ing, at the expiration whereof, to wit, on, etc., she, the said E. B., was there delivered of the child with which she was so pregnant as aforesaid: By means of which said several premises, she, the said E. B., from the day first above me itioned hitherto, there became and was unable to do or per- form the necessary affairs and business of the plaintiff, so being her father and master as aforesaid, and thereby the plaintiff, during all that time, lost and was deprived of the service of his said daughter and servant; and also, by means of the several premises, the plaintiff was obliged to, and did nec- essarily, pay out divers sums of money, in the whole amounting to dollars, in and about the nursing and taking care of the said E. B., his said daughter and servant, and in and about the delivery of the said child : To the damage of the plaintiff of dollars, and therefore he brings liis suit, etc. ' King v. Dale, 1 Scam. 513. ^ Van Vacterv. 3IeKillip,lBlackt. 8 Yundt V. Hartrunft, 41 111. 9. 578. *McVey v. Blair, 7 Ind. 590. 662 CASE. An action on the case may be sustained by ?i father, for the seduction of his daughter, without proving any actual loss of services; it is enough that the daughter be a minor, residing with her fatlier, and that he has a right to claim her services.' Although the loss of service is the alleged ground of complaint, the injury to the family in its reputation, and the mental an- guish and distress which necessarily attend the seduction, are the real grounds of recovery,* It is said, however, that a parent, in that character merely, can not support an action for debauching or beating his daughter, and that such an action is only sustainable in respect to the supposed loss of service, some slight evidence of which must in general be adduced.* And the action may be sus- tained, not only by a parent, but by a guardian, brother-in- law, master, or other person standing in loco 2)cii^6ntis to tlie person seduced;* and for the seduction of an adopted daughter." If the person seduced is a minor, the action will be sus- tained, whether she resided with the plaintiff or elsewhere at the time of the seduction, if she was legally under the control of, or might be required to perform service for the plain tiff.'' Criminal connection may take place between the sexes with- out seduction; and in a suit by the father for the debauching of his daughter, if seduction be not proved^ damages should not be given for it.' ' Hewitt V. Prime, 21 Wend. 79 Horkethv. Barr, 8Serg. & Rawle36 Mercer v. Walmsley, 5 Harr. & J. 27 Alcott, 2 Term 168; Doyle v. Jessup, 29 111. 460; Bayles v. Burgard, 48 111. App. 371; Garretson v. Becker, Moran v. Daws, 4 Cow. 412; Clark 52 111. App. 255. V. Fitch, 2 Wend. 459; Grable v. * Ball v. Bruce, 21 111. 161; Bracy Margrave, 3 Scam. 373; Anderson v. Kibhe, 31 Barb. (N. Y.) 273. V. Ryan, 3 Gilm. 583; Robinson v. 'Irwin v. Dearman, 11 East 23; Burton, 5 B.aTrmg. (Bel.) dd5; Verry Maguinay v. Saudek, 5 Sneed V. Watkins, 32 Eng. C. L. 308; Hoi- (Tenn.)146. laxoay v. Abell. 32 Eng. C. L. 528. ^ Ball v. Bruce, 21 111. 161; Boijd 8 Yundt V. Hartrunft, 41 111. 9; 1 v. Byrd, 8 Blackf . 118; Boltun v. Chit. PI. 167; Garretson v. Becker, Miller, 6 Ind. 362. 52 111. App. 255. ''Boyd v. Byrd, 8 Blackf. 113; ^ Dean v. Peel, 5 East 45; Weedon Richardson v. Fonts, 11 Ind. 466. V. Timbrell, 5 Term 360; Bennett v. CASE. 663 The daughter is a good witness; ' and she can not be cross- examined as to illicit intercourse with other men; and evidence of a promise of marriage is not admissible; and the plaintiff can not call witnesses to the girl's good character, unless the defendant has by evidence attacked it.* The damages are not to be measured by the loss of service, but may be exemplar}^; ^ and expenses actually paid may be recovered.* A verdict for eight hundred dollars, in an action for seduction, is not excessive.* If in an action by a father for his daughter's seduction, her character for previous chastity is successfully impeached, the right of action is not defeated, but this proof goes only in mitigation of damages.* No. SJt2. For deceit in obtaining goods on credit. {Commence as in No. 335, ante.) For that whereas, on, to wit, etc., the plaintiff was possessed of certain goods of the value of dollars, and the defendant then and there applied to the plaintiff to sell to him said goods upon a credit of days from said date. That for the purpose of inducing plaintiff to sell to him said goods upon said credit, the defendant falsely and fraudulently represented and stated to the plaintiff tliat he, the defendant was solvent: that he was worth in the neighborhood of the sum of dollars; that his business was in good condition; that he had the sum of dollars invested therein; that his stock was well worth the suiu of dollars; that he had goods, notes and book accounts due and owing to him to the amount of about dollars; that his outstanding indebtedness did not exceed the sum of ■ dollars. And plaintiff avers that on the faith of said representations and state- ments made by the defendant as aforesaid and relying implicitly upon the same and believing the same to be true, he, the plaintiff, sold to the de- fendant the said goods upon said credit of days. And plaintiff fm-ther avers that said statements and representations so made by the defendant as aforesaid were each and all of them utterly false and untrue at the time they were made and were at that time known by defendant to be false and untrue and that the same were made by said de- fendant with the fraudulent purpose of obtaining said credit as aforesaid » 2Stra. 1064; 2 Chit. PL 11 Am. ^Ball v. Bi'uce,21 lU. 161; Grable Ed. 644, n. v. Margrave, 3 Scam. 373. '■ Dodd V. Morris, 3 Campb. 519; * 1 Stark. C. N. P. 287; Doyle v. Bonifield v. Massey, 1 Campb. 460; Jessup, 29 111. 460. Doyle V. Jessup, 29 111. 460; State v. "Doyle v. Jessup, 29 111. 460. Bierce, 27 Conn. 319; Barcy v. ^ Reed v. Williams, 5 Sneed Kibbe, 31 Barb. 273; Shattuck v. (Tenn.) 580. Myers, 13 Ind, 46; Reed v. Williams, 5 Sneed 580. 664 CASE. and for the purpose of obtaining the possession of said goods upon credit and without paying for the same; that at the time of the making of said statements and representations the said defendant was wholly insolvent and has so remained ever since, and that defendant was fully aware of that fact and knew when he bought said goods that he could not pay for the same as he agreed. And plaintiff further avers that although the time at which said payment was to be made for said goods has elapsed the defendant has never paid the sum so agreed to be paid for said goods or any part thereof. And so the defendant deceived and defrauded the plaiutiff in the sum of dollars and therefore he brings this suit, etc. No: 343. For deceit in the warranty of a horse. {Commence as in No. 335. ante.) For that whereas the plaintiff, on, etc., bargained with the defendant, at his request, to buy of him a certain horse at a certain price, to wit, the sum of dollars; and that tlie defendant for the purpose of inducing the plaintiff to purchase said horse at said price then and there fraudulently and falsely warranted tlie said horse to be sound, and quiet in harness, whereas in truth and in fact the said horse was at the time of said warranty and sale thereof, unsound, unsteady, restive and ungovernable in harness, and has from thence hitherto so re- mained, which said facts were well known to the defendant at the time of the warranty by him of said horse as aforesaid. And plaintiff further avers that relying upon the warranty of the defendant as aforesaid he then and there purchased of the defendant the said horse and then and there paid to the said defendant the said sum of dollars; and the plaintiff avers that the defendant by means of the premises, on the day aforesaid, there falsely and fraudulently deceived the plaintiff on the sale of the said horse as aforesaid and thereby the said horse afterward, to wit, on the day aforesaid, not only became of no use or value to the plaintiff but also then and there greatly kicked, injured and spoiled a certain other horse of the plaintiff of the value of dollars; and thereby also the plaintiff was then and there put to great expense of his moneys, in the whole amount- ing to the sum of dollars, in and about the feeding and taking care of and selling and disposing of the first mentioned horse; to the damage of the plaintiff of dollars, and therefore he brings his suit, etc. An action will lie for deceit and warranty in the sale of a horse, no matter what the consideration to be paid was, or whether it was paid down or not.' In an action on the case upon an express warrant, a scienter need not be alleged, nor, if alleged, need it be proved." ^ Applebee v. JRumery, 28 111. 280; Schoenell, 55 Ind. 101; Cameron v. see Eamesv. Morgan, 37.111. 260. Mount (Wis.), 56 N. E. Rep. 109 i; ■^ Williamson v. Allison, 2 East 8 Am. & Eng. Enc. Law, 793, note. 446; 2 Chit. PI. 681, n.; Gregory v. CASE. 665 See the observations and authorities under form No. 61, ante, in Assumpsit. No. SU- For deceit in tlie sale of wool deceitfully packed and not merchant- able, etc. (Commence as in No. 335, ante.) For that whereas the plaintiff, on, etc., in, etc., bargained with the defendant to buy of him pounds of wool, which was then and there packed and bound up into parcels in the form and having the appearance of fleece wool; that the defendant then and there falsely, deceitfully and fraudulently and with the intention and for the pur- pose of inducing the plaintiff to purchase the same, warranted said wool and each and every parcel thereof to be fleece wool and to be packed and bound up fairly and without deceit, and to be good and merchantable, which said representations and warranty were, when made by the defend- ant as aforesaid, well known by him to be false and untrue; that the plaint- iff relying upon the said representations and warranty of the defendant then and there purchased and the defendant then and there deceitfully sold the same to the plaintiff for the sum of dollars, which said sum plaintiff then and there paid to the defendant. And the plaintiff avers that at the time and place of the said sale the said wool was deceitfully packed and bound up and that parcels thereof were not fleece wool, but that the wool contained in those parcels was wool of much less value and not good and merchantable wool; of all which the defendant was then and there well knowing and so the defendant falsely deceived and defrauded the plaintiff to his damage of dollars and therefore he brings his suit, etc.^ To entitle a party to recover in an action for deceit, it must appear that the representations complained of were untrue; that they were material; that the party making them knew them to be false, and that the person seeking to recover reUed on the statements as true and was induced to act upon them.* A declaration wliich sets out the false representations, the knowledge of the defendant that they were false, their falsity in fact, the materiality of the representations, the reliance » See 8 Went. 369; 01. Prec. 414. v. ArhucUe, 81 111. 501; Bartlett v. ^Wheeler v. Randall, 48 111. 182; Blaine, 83 111. 25; Schivabacker v. Hinerv. Richter, 51 111. 299; Fames Riddle, 99 111. 343; McBean v. Fox, V. Morgan, 37 111. 260; Farwell v. 1 Bradw. 177; Budlong v. Cunnitig- Metcalf, 61 111. 372; Powers v. ham, 11 Bradw. 28; Sherburne v. Wheeler, 63 111. 29; Gage v, Lewis, Tobey, 19 Bradw. 618; Wightman v. 68 III. 604; Noetling v. Wright, 72 Tucker, 50 111. App. 75; Brown v. 111. 390; Ins. Co. v. Hogan, 80 111. 35; Lobdell, 50 111. App. 559; Fmerson v. Tone V. Wilson, 81 111. 529; Merwin Brigham, 10 Mass. 197. 666 CASE. upon them hy the plaintiff and the consequent damage is suffi- cient.' When the vendor of goods has sued the purchaser in as- sumpsit for the value thereof, he may afterwards by leave of court change the form of action to one of case charging the defendant with fraud and deceit in the purchase of the goods and recover their value. A plaintiff is not confined to the form of action he may first adopt." No. 344 «• Against commissioners of highways for flooding land by a ditch, etc.^ (Commence as in No. 335.) For that whereas the said plaintiff, heretofore and at the time of the committing of the grievances hereinafter mentioned, was, and from thence hitherto has been, and still is, lawfully possessed of certain lands and premises, with the appurtenances, situate in the county aforesaid, which said land and premises the said plaintiff, before and at the time as aforesaid, used and enjoyed, and of right ought to have used and enjoyed, and still of right ought to use and enjoy, to wit, in, etc. ; never- theless the said defendants, acting at the time aforesaid, and long before and hitherto have acted and still act, as commissioners of highways of the township of Wilmington in the county aforesaid, having the care and su- perintendence of the highways and bridges therein, contriving and unjustly intending to injure, prejudice and aggrieve the said plaintiff in the posses- sion, use, occupation, and enjoyment of his said lands and premises, and to render the same incommodious and unfit for tillage, and of little or no use or value to the said plaintiff, whilst the said plaintiff was so possessed thereof and so used and enjoyed tlie same as aforesaid, to wit, on the day and year aforesaid, and in, etc. , wrongfully and unjustly cut, dug and made, and caused and procured to be cut, dug, and made, a certain ditch, drain, trench, and channel, and wrongfully and unjustly built thereupon, made, and erected, and caused and procured to be built thereupon, made, and erected, a certain grade, embankment and repair near to the said lands and premises of the said plaintiff in so careless, negligent, and improper a manner, and kept and continued the said ditch, drain, trench and channel, and the said grade, embankment and repair, for a long space of time, to wit, from thence hitherto, that by reason thereof afterwards, to wit, on the day and year aforesaid and on divers other times afterwards, and before the commencement of this suit, divers large quantities of rain water, and surface water, and standing water, ran and flowed from the said ditch, drain, trench and channel, and from and along the said grade, embank- 1 Brown v. Lobdell, 50 111. App. 559; « Floicer v. Bnimhack, 131 111. 646. Pasley v. Frieman, notes; Smith's ' Tearney v, Smith, 86 111. 392. Lead. Cases; People v. Healy, 128 111. 9. CASE. 667 ment and repair, down to, upon, and against, and into the said lands and premises of the said plaintiff, and walls, banks, ditches, fences, soil and other parts thei-eof and therein being, and thereby greatly injured and damaged the said lands and premises of the said plaintiff, and the said fences, walls, banks, ditches, soil, and other parts thereof, and by reason of the premises the said lands and premises of the said plaintiff became and were and are wet, swampy, and less fit for use, occupation, and cultivation, and also, by reason of the premises, the rain water, surface water, and standing water aforesaid ran and flowed in a different direction or chan- nel, and with much greater force and increased violence and impetuosity than it of right ought to have and otherwise would have done, unto and against the lands and premises of the said plaintiff, and the fences, banks, walls, soil, and other parts thereof as aforesaid, and undermined, washed away, damaged, and destroyed the said lands and premises of the said plaintiff, and the fences, banks, walls, soil, and other parts thereof, whereby the plaintiff has suffered great damage, to wit, etc. E. F., Att'y forPl'ff. JVo. 344 b. For negligence in setting fire to a prairie.^ {Commence as in No. , ante.) For that whereas the plaintiff on, etc., at, etc., was and still is possessed of a certain tract of land, to wit : {Here describe) on which said land there was then stacks of wheat in the sheaf; stacks of barley in the sheaf; stacks of oats in the sheaf, and stacks of hay, the property of the plaintiff; and around which land there was a rail fence, of all which the defendant then and there well knew; yet the defendant, at the said time and place, wittingly, knowingly and intentionally kindled a fire on the prairie near to and adjoining the said premises of the plaintiff, and so negligently and carelessly watched and tended the said fire, that the same communicated with and extended into and upon the said premises of the plaintiff, and consumed the said described stacks of gi-ain and hay, and the said fence, of great value, to wit, of the value of dollars, to the damage of the plaintiff of dollars, and therefore he brings suit, etc. E. F., Att'y forPl'ff. No. 345. Against sheriff for taking insufficient sureties in replevin. {Commence as in No. 335, ante.) For that w^hereasthe plaintiff, on, etc., in, etc., was possessed, as of his own property, of certain chattels, to wit, (here describe the property) of the value of dollars, and the defendant, on the day aforesaid, was sheriff of the said county; and the plaintiff, so of the said goods and chattels being possessed, and the defendant, so as afore- said being sheriff of the said county, the duty of his said office not consider- ing, but contriving and fraudulently intending the plaintiff of his goods and chattels aforesaid to deprive and defraud, on the day aforesaid, there by color of his office aforesaid, and under the i^retense of a certain writ of » Burton v. McClellan, 2 Scam. 434. 668 CASE. replevin, to him directed and delivered, the goods and chattels aforesaid, there being found, at the plaint of one J. R., pretending that the same goods and chattels were tlie property of him, the said J. R., and that the plaintiff had taken the said goods and chattels, and the same unjustly detained, against sureties and pledges, the goods and chattels aforesaid to be replevied from the possession of the plaintiff, and to be delivered to the said J. R., did cause and procure, without sufficient surety and pledges, or any sufficient surety had or taken, to prosecute the said suit and plaint of him, the said J. R., against the plaintiff, with effect and without delay, and to make a return of the said goods and chattels to the plaintiff, if a return thereof should be adjudged to him, and to save and keep harmless the said sherrff in making the said replevy, as according to the statute in such case made and provided, and the duty of his said office, and the tenor of the writ afore- said, he ought to have done. And thereupon, on the same day aforesaid, the plaintiff was there summoned into the circuit court of the said county, to appear on, etc., to answer the said J. R. of a plea wherefore he, the plaintiff, took the goods and chattels aforesaid; and thereupon it was in such manner proceeded, that by the said court it was considered that the plaintiff should have a return of the said goods and chattels, to be delivered to him; which said judgment remams in full force and effect: And the plaintiff in fact says, that the goods and chattels aforesaid, to the said J. R., by reason of the said replevin so as aforesaid delivered, to places obscure and unknown were eloigned, whereby they can not be returned or delivered to the plaint- iff; and the plaintiff the goods and chattels aforesaid, by the occasion afore- said, has wholly lost, and is without remedy: To the damage of the plaintiff of dollars, and therefore he brings his suit, etc.' If a sheriff fails to take a bond from the plaintiff, before re- plevying the property, or returns an insufficient bond, he is liable to pay to the party injured all damages which he may sustain in consequence of such neglect, to be recovered by an action on the case in the circuit court.* See form No. 246, a7ite, and cases there cited. No. 346. For overloading and immoderately driving a horse. {Commence as in No. 204, ante.) For that whereas the plaintiff, on, etc. , in , etc. , had delivered to the defendant a certain horse of the plaintiff, of the value of dollars, to drive from, etc., to, etc.; but the defendant, on the same day, in the county of aforesaid, so grievously overloaded, and so immoderately and with such unreasonable swiftness drove the said horse, that the said horse there afterwards, on the same day, by means of such immoderate overloading and unreasonable driving, there died. To ' rearce v. Humphreys, 14 Serg. (1895), 1257; 2 Starr & Curtis' Stat. & R. 23. ' 2014; People v. Robinson, 89 111. 2 Rev. Stat. (1893), 1173; Rev. Stat. 159; People v. Core, 85 111. 248. CASE. 669 the damage of the plaintiff of dollars, and therefore he brings his suit, etc. Where a person hires a horse, he is bound to use it with moderation, and if he does not, and an injury is occasioned, he will be liable in case therefor.' A gratuitous bailee of a horse — a person who borrows the horse of another for use, without compensation — is bound to use extraordinary care. The expense incurred by the borrower for the keeping of the horse, is not such a compensation to the lender as changes the gratuitous character of the bail- ment.^ See the form of a Declaration in Assumpsit, ante^ Xo. G9, and the authorities there cited. No. 34.7. Against a physician, for neglect, etc., in treatment of plaintiff. (Commencement as in No. 335, ante.) For that whereas the defendant, before and at the time of committing the grievances hereinafter mentioned in the county aforesaid, was exercising the profession of a physician, and the plaintiff, on, etc., and while the defendant was so exercising such pro- fession, there retained and employed the defendant, as such physician, for reward, to attend and treat the plaintiff for the cure of the plaintiff of a certain sickness and malady under which he was then and there suffering; and thereupon the defendant, as such physician, then and there accepted such retainer and employment, and entered upon the treatment of the plaintiff in pursuance thereof, and continued such treatment for the space of days then next following : Yet the defendant, not regarding his duty as such physician, during that time there so unskillfully and negli- gently conducted himself in that behalf, that by and through his want of skill and care the said sickness and malady of the plaintiff then and there became greatly increased and aggravated, and the plaintiff then and there underwent great and unnecessary anguish and distress, and became and wiis greatly disordered, reduced and weakened in body, and so remained for a long time, to wit, hitherto, during all which time the plaintiff suf- fered great pain, and was hindered and prevented from transacting his affairs and business; and also, by means of the premises, the plaintiff has been obliged to pay, and has paid, to divers other physicians, divers sums of money, amounting to dollai-s, in and about endeavoring to be cured of his said sickness, malady and disorder : To the damage of the plaintiff of dollars, and therefore he brings his suit, etc.^ • Newton v. Pope, 1 Cowen 109; see ' 7 Ohio (part 2), 123; 2 Wils. 359; Bennett V. O'Brien, 37 111. 250. 1 H. Bla. 158; Seai-l v. Prentice, 8 ^Bennett v. O'Brien, 37 111. 250; East348; ffaucA:t; v. jEZooper, 32 Eng. see Howard v. Babcock, 21 111. 259. C. L. 510. 670 CASE. When a person assumes the profession of a physicnan and surgeon, the law holds him responsible for any injury from a want of reasonable care, skill and diligence in his practice, unless the services rendered were gratuitous, in which case gross negligence will alone make him liable.' But the high- est degree of care and skill is not required." Where he does not profess to be a physician, however, nor to practice as such, and is merely asked his advice as a friend or neighbor, he does not incur any professional responsibility.* No. 34s. Against an attorney for negligence in prosecfiding an action. {Commence as in No. 335, ante.) For that whereas the defendant, before and at the time of committing the grievances hereinafter mentioned, in the county aforesaid, was following the profession of an attorney at law; and the plaintiff on, etc., and while the defendant was so following such pro- fession, there retained and employed the defendant, as such attorney, for reward, to prosecute and conduct a certain action of assumpsit, in the Court of the said county, at the term then next following, at the suit of the plaintiff, against one E. F. , for the recovery of a certain sum of money, to wit, , dollars, which the plaintiff tlien claimed to be due him from the said E. F. ; and thereupon the defendant, on, etc., aforesaid, there accepted such retainer, and entered upon such employment : Yet the de- fendant, not regarding his duty or his said retainer and employment, did not prosecute and conduct or manage the said action with due and proper care, skill and diligence, but on the contrary thereof prosecuted, conducted and managed the same in such a careless, unskillful and improper manner, and with such want of due and proper care, skill and diligence in that be- half, that the said action afterwards, to wit, on, etc. , there became and was wholly abortive and of no avail, and the plaintiff then and there was forced to be, and he was then and there nonsuited; (or if a verdict teas found against him, or otherwise, state the fact accordingly,) whereby the plaintiff was and has been hitherto not only hindered and prevented from recovering his said claim from the said E. F., but is likely to lose the same; and also has incurred and paid to the said E. F. a large sum of money, to wit, dollars, for his costs and charges in and about his defense to the said action; and has also incurred the loss of and paid a large sum of money, to wit, dollars, for the plaintiff' s costs and charges in and about prose- ^Ritcheyv. West, 23 111. 385; 3Ic- "^^ 111. 232; Utley v. mcrns, 70 111. Nevins v. Lowe, 40 111. 209. ^62; Hilliard on Torts, 225; Moss v. 'Holtzman v. Hoy, 118 111. 534; Pardridge, 9 Bradw. 490; Sims v. McNevinsv. Lowe, 40 111. 209; Fisher Parker, 41 111. App. 286. V. Nicolls, 2 Bradw. 484; Quinn v. '^^^^•' ^^^^^^^ v- ^^icolls, 2 Bradw. Donova7i, 85 111. 194; Barnes v. 484; Qimin v. Do7iova7i, 85 111. 194; Means, 82 111. 879; Kendall v. Brown, ^^^"^ v- l^inncy, 98 111. 214. CASE. 671 cuting and conducting the said action: To the damage of the plaintiff of dollars, and therefore he brings his suit, etc' An attorney at law who assumes to exercise the duties of his office in behalf of another, for hire and reward, will be held to employ in his undertaking a reasonable degree of care and skill; and if injury results to the client for the want of such a degree of reasonable care and skill, the attorney will be liable to the extent of the injury sustained." The question of negligence is one for the opinion of the jury.' If diligence would have been ineffectual, the defendant must prove it.* In such case he will be only liable for nominal damages.' For further observations upon the liability of attorney's, see chapter entitled " Attorneys at Law," post. No. 349. Against railroad company, as common carrier, for not deliver- ing goods. (Commence as in No. 327, ante.) For that whereas the defendant, on, etc., was possessed of and using and operating a certain railroad, and was a common carrier of goods and chattels thereon for hire, to wit, from to ; and the plaintiff on, etc., aforesaid, at, etc., aforesaid, caused to be delivered to the defendant, and the defendant then and there received of the plaintiff, boxes, containing divers goods, to wit, (specify the articles) of the plaintiff, of the value of dollars, to be safely and securely carried by the defendant, from aforesaid to aforesaid, and at the last-named place to be safely and securely delivered for, (or "to,'' as the case may be,) the plaintiff, for certain reward to the defendant in that behalf: Yet the defendant did not safely and securely carry the said boxes and their contents aforesaid from aforesaid to aforesaid, and at the last-named place safely and securely deliver the same for (or " to," as the case may be.) the plaintiff; but on the contrary thereof, by the negligence of the defendant and its servants in that behalf, the said boxes and their contents aforesaid, afterwards, to wit, on the day aforesaid, in, etc., aforesaid, became and were wholly lost to the plaintiff: To the dam- age of the plaintiff of dollars, and therefore he brings his suit, etc. '2 Chit. PI. (11 Am. Ed.) 669. ^Reece v. Rigby, 4 B. & A. 202. ^Stevens v. Walker, 55 111. 151; * Bourne v. Digg, 2 Chit. Rep. 311; Cox V. Livingston, 2 Watts & Serg. see 1 Campb. 176; 2 Salk. 515; 103; Fitch v. Scott, 3 How. (Miss.) Peake's Rep. 162. 316; Gilbert v. Williains, 8 Mass. * Grayson v. Wilkinson. 5 S. & 51; see Walker v. Stevens, 79 111. M. 268; Walker v. Goodman, 21 193; Hughes v. Ziegler, 69 111. 38. Ala. 647. 672 CASK. A second count, for not carrying within a reasonable time, may be framed from the second count in I^o. 70, ante^ page 120. A carrier is an insurer of the safe delivery of the goods to the person to whom they are consigned and can not escape lia- bility on the ground that deception, imposition or fraud were resorted to by an impostor to obtain from the agent of the carrier the goods intrusted to his care.' The consignee is presumptively the owner of the goods trans- ported by a carrier, and delivery to him without notice of dif- ferent ownership discharges the carrier, but it is the duty of the carrier to ascertain whether a bill of lading was delivered to the shipper, and if so, to retain the property until demanded by one claiming thereunder." The acceptance by a carrier, for transportation, of goods marked to a place beyond the terminus of its own line, and its giving a receipt therefor, constitute d^, prima facie contract to carry and deliver at the point so marked.' See observations upon the liability of common carriers, fol- lowing precedent No. 71, ante, page 130, and the cases there cited. No. 350. Against a seller of intoxicating liquors, on the statute ^ — Action by the widow of a physician, for causing his habitual intoxication and thereby his death, and the loss of her means of support, etc. {Commence as in No. 335, ante.) For that whereas the plaintiff, before and on, etc., in, etc., was the wife of one G. B., and so continued to be until the time of his death as hereinafter mentioned; and the said G. B., on the day aforesaid, and for a long time next preceding that day. there ex- ercised the profession of a physician, and derived therefrom a large yearly income, to wit, the yearly sum of thousand dollars, and was also pos- sessed of moneys and property amounting in value to a large sum of money, to wit, the sum of thousand dollars, and by means thereof was enabled to and did provide a comfortable and liberal maintenance as well for him- self as for the plaintiff and for one H. B., then and still being the minor son of the said G. B. and the plaintiff: And on the day aforesaid, and on divers other days between that day and the death of the said G. B., the de- fendant there sold and gave intoxicating liquors to him, the said G. B., and thereby caused him, the said G. B. , to become, and he during that time there was, habitually intoxicated; and so being habitually intoxicated, he, the ^Ex. Co. v. Shearer, 160 111. 215. * Starr & Curtis' Stat., 971; Rev. ^Bankv. R. R. Co., 160 111. 401. Stat. (1893), 613; Rev. Stat. (1895), 3i2. R. Co. v. Simon, 160 111. 648. 661. CASE. 073 6aid G. B., in consequence thereof , during the time last aforesaid , there wasted and squandered all his moneys and property, and became greatly impoverished, reduced, degraded and wholly ruined, as well in his mind and body as in his estate, and neglected and ceased to exercise or attend to the duties of his said profession, or any other calling or business whatso- ever, or in any manner to earn or provide a livelihood for himself or the plaintiff , or their said minor son; [and also thereby the plaintiff, during that time, was there compelled to and did lay out divers sums of money, amounting to a large sum, to wit, dollars, of her own moneys and earn- ings in and about the care, nui-sing and maintenance of the said G. B. , and for medicines and the services of physicians for him, and in and about the maintenance of the plaintiff and her said minor son:] and in further conse- quence of the habitual intoxication of the said G. B. as aforesaid, so by the defendant caused as aforesaid, he, the said G. B., on, etc., there died: By means of which premises the plaintiff has been and is injured in her [property and] means of support, and deprived of the same [and has been and is com- pelled to support herself and her said minor son by her own labor]. Where- fore the plaintiff says that she is injured, and has sustained damage to the amount of dollars; and by force of the statute in such case made and provided, an action has accrued to her to demand and have of the defend- ant that sum of money; and therefore the plaintiff brings her suit, etc. No. 351. Against a seller of intoxicating liquors, and his landlord, 07i the statute, ' for injury done by an intoxicated person. {Title of court, etc., as in No. 327, ante.) A. B., plaintiff, by G. H., his at- torney, complains of C. D. and E.F., defendants, of a plea of trespass on the case: For that whereas the said C. D., on, etc., in etc., in a certain building and premises by him then and there occupied, did sell and give intoxicating liquors to one L. M., and thereby caused the intoxication of him, the said L. M.; and the said E. F., before that time and then, being the oumer of the said building and premises, and having knowledge that intoxicating liquors were to be sold therein, there permitted the occupation of the said building and premises by the said C. D. : and thereupon the said L. M., so being in- toxicated, and in consequence thereof, then and there (here set foi'th the vrrongful act done hy the intoxicated person, and the consequent damage, the same as in an action against such person). Wherefore the plaintiff says that he is injured, and has sustained damage to the amount of dollars; and by force of the statute in such case made and provided, an action has accrued to him to demand and have of the defendants that sum of money; and therefore the plaintiff brings his suit, etc. Section 9 of the "act to provide for the licensing of, and against the evils arising from the sale of intoxicating liquors, is as follows : » 1 Starr & Curtis' Stat. 971; Rev. Stat. (1893) 613; Rev. Stat. (1895) 661. 43 674: CASE. " Every- husband, wife, child, parent, guardian, employer or other person, who shall be injured in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in his or her own name, severally or jointly, against any person or persons who shall, by selling or giving Intoxicating liquors, have caused the intoxication, in whole or in part, of such person or persons; and any per- son owning, renting, leasing or permitting the occupation of any building or premises, and having knowledge that intoxicating liquors are to be sold therein, or who, having leased the same for other purposes, shall knowingly permit therein the sale of any intoxicating liquors that have caused, in whole or in part, the intoxication of any person, shall be liable, severally or jointly, with the person or persons selling or giving intoxicating liquors aforesaid, for all damages sus- tained, and for exemplary damages; * * and a married woman shall have the same right to bring suits, and to control the same and the amount recovered, as a feme sole; and all dam- ages recovered by a minor, under this act, shall be paid either to such minor, or to his or her parent, guardian, or next friend, as the court shall direct; and the unlawful sale or giving away of intoxicating liquors shall work a forfeiture of all rights of the lessee or tenant, under any lease or contract of rent upon the pr^piises where such unlawful sale or giving away shall take place; and all suits for damages under this act may be by any appropriate action in any of the courts of this state having competent jurisdiction." i This statute is held to be highly penal in its character, pro- viding a right of action unknown to the common law, and should receive a strict construction. An action by a wife, for injuries to her person, occasioned by the drunkenness of the husband, can not be sustained with- out showing an assault, or some actual violence, or some ' 1 Starr & Curtis 971; Rev. Stat., Drummond, 16 Bradw. 641; O'Hal- (1893) 613; Rev. Stat. (1895) 661; see loran v. Kingst&n, 16 Bradw, 659; King v. Haley, 86 111. 1G6; Reed v, Flynn v. Fogarty, 106 111. 263; Low- Thovipson, 88 111. 245; Holmes v. ry v. Coster, 91 111. 182; Bell v, Cas- Nooe, 15 Bradw. 164; Johnson v. sem, 158 111. 45. CASE. 675 physical injury to the person or the health. Mental anguish, disgrace, or loss of society or companionship, constitute no element for the recovery of damages under the statute.' By the common law it is not a tort, for which an action lies, to either sell or give away intoxicating liquors, and such an act, at the common law, is not culpable negligence that will impose a legal liability for damages upon the vendor or donor of such liquor. The right to recover damages for such an act is purely statutory." Section 9 of the dram shop act does not apply to persons who are not directly or indirectly, or in any way to any extent, engaged in the liquor traffic; and the right of action therein given to one injured in her means of support, is not intended to be given against one who, in his own house, or elsewhere, gives a glass of intoxicating liquor to a friend as a mere act of courtesy or hospitality, and without any purpose or expectation of pecuniary gain or profit.* It has been held that it was the intention of the legislature in the passage of the two sections to deal only Avith landlords and their property and those having a rentable interest in the buildings and premises that they could control at the time, and that it was not intended to include those who only have re- versionary and contingent interests and who are not in any way responsible for the renting, control or disposition of the prop- erty.* The two years statute of limitations does not apply to an action brought under section 9, chapter 43, of the dram shop act.' Intoxication caused, in whole or in part, by several sales and by several persons, creates a joint liability, and each per- son, who, by sale or gift, contributes to such intoxication, may be sued jointly." In suits under section 9 of the dram shop act, the plaintiff may proceed against any and all persons jointly or severally who may have caused the intoxication in whole or in part, without reference to whether they have equally contributed to the injuries complained of. They stand > Freese v. Tripp, 70 111. 496. * Castle v. Fogerty, 19 Bradw, 442. « Cruse V. Aden, 127 111. 231. ^ O'Learyv. Frishy, 17 Bradw. r)o3. 3 Cruse V. Aden, 127 111. 231. « OLeary v, Friahy, 17 Bradw. 553. 676 CASE. upon the same footing as persons engaged in a joint tort, each beino; liable for the entire damage,' To make a liquor dealer liable under the statute, he must create the very intoxication, habitual or otherwise, from which the injury follows. During the time the sales are going on, the party using the liquor must be contracting by the use of it, in whole or in part, the disease of which he afterwards dies." In an action by a widow to recover for an injury to her means of support b}^ the death of her husband, occasioned by the sale to him of intoxicating liquors by the defendant, the jury may take into consideration in assessing her damages, not only the wages and earnings of her husband, but also the age and probable life of the husband till terminated by natural causes, together with all other facts and circumstances shown in evidence. In case of the husband's death, the loss to tl e wife's means of support is co-extensive with her life, and the general average of the husband's contributions can only be ascertained from proof of his Avages and earnings, which fur- nish her means of support.* If an intoxicated person fall into a stream and be drowned, or should go on a railroad track and be there run over by a loco- motive and killed, by reason of being incapable of exercising proper caution or taking proper care of himself, the proximate cause of his death would be intoxication,* In an action by a widow against a dram shop keeper and his lessor, to recover for an injury to her means of support, it is error for the court to so instruct the jury as to make the rio-ht of recovery depend upon the question whether the plaint- iff has been injured in her means of support " by the sale or gift of intoxicating liquor " to her husband. Intoxication produced by the liquor sold or given, and not the mere gift or sale of the liquor, must be the cause of injury to the means of support. In such action, it is necessary for the plaintiff to show the sale or gift of intoxicating liquor to the deceased, ^BncJcivorth v. Crawford, 24 111. ^Betting v. Hohhett, 142 111. 72. App. 603. * Meyer v. Butterbrodt, 146111. 131. ^ Westphal v. Austin, 41 111, App. 648. CASE. 677 and also to show intoxication resulting from the liquor so sold or given, and injury resulting from such intoxication.' In an action on the bond of a dram shop keeper by a widow, to recover damages for being deprived of her means of support by the sale of intoxicating liquors to her husband, causing his intoxication, the submission to the jury of the question of the giving of such liquors to the husband is not error, where the declaration alleges the giving as well as the sale of such liquors to him, and. there is some evidence, though slight, of the gift of such liquor to the husband.' The sureties on the bond are not liable to exemplary dam- ages, but only for such actual damages as the party for whose use the action is brought may sustain either in person, property or means of support.^ Where a dramshop keeper continues to sell intoxicatincr liquors to a man in the habit of drinking to excess, in wanton disregard or defiance of the request and warning of the wife of the latter, in consequence of which the husband becomes intoxicated, and the wife is thereby actually injured in her means of support, the jury may, in an action by the wife, give her exemplary damages." Where saloon keepers, with knowledge that a person is in the habit of becoming intoxicated, and while he is in fact in- toxicated, sell him liquor and he is killed in consequence of his intoxication, they will be liable to exemplary damages in an action against them by the widow of the person so losing his life.' Where the action is brought for injury to a wife's 7neans of support, it is not necessary to show that she has been at any time, in whole or in part, without present means of support. It is enough that the means of her future support have been cut off, or diminished below what is reasonable and competent for a person in her station in life, and below what they would otherwise have been. The rule of damages in such case should be, not the amount of loss occasioned to the husband's estate, but the diminu- ' McMahon v. Sankey, 133 111. 636. \McMahon v. Sarikey, 133 El. 636; ^ Smith V. People, 141 IlL 447. Wolf v. Johnson, 152 III. 210. ^Ibid. ^ Kennedy y. Sullivan, 136 IIL 94. 678 CASE. tion, if any, thereby resulting to the wife's means of present and future support. And the liability of the defendant, in such cases, is not confined to injuries resulting from drunk- enness immediately, and during its continuance, but extends to injuries resulting from insanity, sickness or inability induced by intoxication.' Exemplary damages can not be awarded as a punishment in this action, for the reason the statute provides that the public shall avail itself of its punitive provisions, which are fines and imprisonment in the county jail; the penalty of impris- ment to be enforced by indictment.^ The following cases arising under the dram shop act may also be consulted.^ ACTION ON THE CASE FOR SLANDER, ETC. Slander is the defaming of a man in his reputation, or ren- dering him an object of ridicule, by words spoken or written, from whence an injury in character, or property, or feeling, arises or may arise to him. Written or printed slanders are libels. 1 Mnlford v. Cleicell, 21 Ohio St, 191; Brannan v. Adams, 76 111. 331; Shngart v. Egan, 83 111. 56; Con- frey v. Stark, 73 111. 187; 3IcCannv. Roach, 81 111. 213. 2 See Freese v. TiHpj), 70 111. 496. 3 Roth V. Eppy, 80 111. 283; Hackett V. Smelsley, 77 111. 109; Horn v. Smith, 77 111. 381; McEvoy v. Hum- johrey, 77 111. 388; Reget v. Bell, 77 111. 593; Meidel v. Anthis, 71 111. 241; Emory v. Addis, 71 111. 273; Kellerman v. Ariiold, 71 111. 632; Fentz V. 3Ieadows, 72 111. 540; Keedy x.Hotve, 72 111. 133; Confrey v. Stark, 73 111. 187; Brant igam v. While, 73 111. 561 ; Brannon v. Silvemail, 81 111. 434: Bates v. Davis, 76 111. 222; Schimvielfenig v. Donovan, 13 Bradw. 47; Kadgin v. Miller, 13 Bradw. 474; Cobb v. People, 84 111. 511; Loicrey v. Coster, 91 111. 182; People V. Crotty, 93 lU. 180; Carroll V, People, 13 Bradw. 206; Wright y. People, 101 111. 126; Moorev. People, 109 111. 499; Holmes v. Nooe, 15 Bradw, 164; Johnson v. Drummond, 16 Bradw. 641; CHalloranw. Kings- ton, 16 Bradw. 659; Hart v. Duddle- son, 20 111. App. 618; Aden v. Cruse, 21 111. App. 391; Murphy v. Curran, 24 111. App. 475; People v. B rum- back, 24 111. App, 501 ; Mayers v. Smith, 25 111. App. 67; Clears v. Stanley, 34 111. App. 341 ; Hayes v. Waite, 36 111. App. 399; Campbell v. Magruder, 39 111. App. 606; Mar- shall V. Laughran, 47 111. 29; West- phal V. Austin, 41 111. App. 648 Lloyd V. Kelly, 48 111, App. 554 Hellmuth v. Bell, 49 111. App. 626 Lane v. Tippy, 52 111. App. 533 Brant v. Mclntee, 53 111. App. 467 Hanewacker v, Ferman, 152 111. 321; Jury V. Ogde7i, 56 111. App. 100; Bell V. Cassen, 56 lU. 260. CASE. 679 "With respect to verbal slander, actionable words are of two kinds : first, those actionable in themselves, without proof of special damage; secoiully, those actionable only in respect to some actual consequential damage. Words of ihQ first description must impute the guilt of some offense for which the party, if guilty, might be indicted and punished by the criminal courts; such as calling a person a traitor, thief, or highwayman, or to say that he is guilty of perjurjr, forgery, murder, larceny, adultery, fornication, and the like; and although the imputation of guilt may be o-eneral without stating the particulars of the pretended crime, it is actionable/ Words charging a person with having a disease, or distem- per, which renders hi-m unfit for society, are actionable in themselves.* An action can therefore be sustained for callino- a man a leper;' but charging another with hamng had a con- tagious disease is not actionable, as he will not on that account be excluded from society.* A charge which renders a man ridiculous, and impairs his enjoyment of general society, and injures those rights of friendly intercourse and mutual benev- olence which man has with respect to man, is also actionable.' To charge unfitness in an officer, who holds an oflSce to which profit or emolument is attached, either in respect to morals or inability to discharge the duties of the office, is actionable.* To impute a want of integrity, or capacity, whether mental or pecuniary, in the conduct of a profession, trade or business in which the party is engaged, is actionable; ' as to accuse an ^Holt V. Schofield, 6 Term 694; Taylor v. Hall, 2 Str. 1189; Bac. Walton V. Singleton, 7 S. & R. 449; Abr., Slander, b. 2. Shaffer V. Kintzer,! Binn. 537; Eck- *Holt on Libel, 221; Williams v. art V. Wilson, 10 S. & R. 44; Holdredge, 22 Barb. 396. IVidrig v. Oliver, 13 Johns. 124; *Holt on Libel, 207; Starkie on Martin v. Stillwell, 13 Johns. 275; Slander, 100. Gosling v. Morgan, 32 Penn. 273; ' Cavip v. Martin, 23 Conn. 86; Wright v. Paige, 36 Barb. 438; Sumner v. JJtley, 7 Conn. 257; Car- Strauss V. Meyer, 48 111. 385. roll v. White, 33 Barb. 615; Xelson « Bac. Abr., Slander, b. 2. v. Borchenius, 52 IlL 236; Storey v. 3 Starkie on Slander, 97. People, 79 111. 45; Rearick v. Wilcox, * Carslake v, Majjle, 2 Term 473; 81 III. 77; Clay v. Peojile, 86 111. 147; Clifford V. Cochrane, 10 Bradw. 570. 680 CASE. attorney or artist of inability, of inattention, or want of integ- rity,' or charging a clergyman with being a drunkard.^ Of the second class are words which are actionable only in respect of special damage sustained by the person slandered. Though the law will not permit in these cases the inference of damage, yet when the damage has actually been sustained, the person aggrieved ' may support an action for the publica- tion of an untruth,' unless the words are spoken in the asser- tion of a supposed claim; * but if maliciously spoken, an action lies/ The charge must be false.* The falsity of the charge is to be implied until the contrary is shown.' The slander must, of course, be published, that is, communi- cated to a third person; and if verbal, then in a language which he understands; otherwise the plaintiff's reputation is not impaired.* To render words actionable, they must be uttered without lecal occasion. On some occasions it is justifiable to utter slander of another; in others it is excusable, if done without express malice." It is justifiable for an attorney to use scan- dalizing expressions in support of his client's cause, and per- tinent thereto.'" Members of congress and other legislative assemblies can not be called to account for anything said in debate.'^ 1 3 Wils. 187; 2 Bl. 750. *Bac. Abr., Slander, D. 4. « McMillon V, Birch, 1 Binn. 178. '® Brook v. Montague, Cro. Jac. ^ 1 Lev. 53; 1 Sid. 79; 3 Wood. 210; 90; Hodgson v. Scarlett, 1 B. & A. 8traus v. Meyer, 48 la 385. 232; v. Moore, 1 M. & S. 284; 4 Com. Dig., Act. on Case for Def. Harding v. Greening, 1 Holt (N. P. J) 3o_ 531; Kean v. McLaugldin, 2 Serg. & ' 1 Eoll. Abr. 36; Craft v. Boite, 1 R. 469; McMillan v. Birch, 1 Binn. Saund. 243; Hartley v. Herring, 8 178; Swear v. Birch, 4 Yeates Term 130; Vicars v. H^iZcoar, 8 (Penn.) 822; Mowei^ v. Watson, 11 -j^QgX 1. ^^' ^^^! Shelf er v. Gooding, 2 "5 Co. 125; Cass V. Anderson, 33 Jones' Law (N. C.) 175; Hoar v. Y^ 182. Wood, 3 Met. 193; Hastings v. Lusk, 1 Maitland v. Goldney, 3 East 436; 22 Wend. 410; Marsh v. Ellsworth, Craft V. Boite, 1 Saund. 242. 36 How. (N. Y.) 532. » Frank v. Kaminshy, 109 111. 26; " Newell on Def. and Slan. 420. Craft V. Boite, 1 Saund. 242; Shef- fill V, Van Demen, 13 Gray 304. CASE. GSl Malice is essential to the support of an action for slanderous words, but malice is in general to be presumed until the con- trary is proved.' The testimony of the hearers as to the sense in which they understood the words spoken, is admissible.' In Illinois it is provided by statute that " if any person shall falsely use, utter or publish words which, in their com- mon acceptation, shall amount to charge any person with hav- ing been guilty of fornication or adulter}^, such words so spoken shall be deemed actionable, and he shall be deemed guilty of slander. 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 publish- ing 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." •* " In actions for slander or libel, an unproved allegation of the truth of the matter charged shall not be deemed proof of malice, unless the jury, on the whole case, find that such de- fense was made with malicious intent, and it shall be compe- tent for the defendant to establish the truth of the matter charged by a preponderance of testimony." * Where the defense is that the statements made were privi- leged communications, it must be shown that the words were spoken at such time and under such circumstances as would negative the supposition of malice in using them.^ ' Bromage v. Prosser, 4 B. & C. (1895) 1450; Rev. Stat. (1893) 1352; 247; Craft v. Boite, 1 SauAd. 242, Sanford v. Gaddis, 13 111. 329; Spen- n. 2; Weather v. Haicking, 1 Term eer v. McMasters, 16 111. 405; Wol- 111; Sutton V.Johnson,! Term 54A; brecht v. Bumgarten, 26 111. 291; Harman v. Tappenden, 1 East 555; Harbison v. Shook, 41 111. 141; Flagg Maitland v. Goldney, 2 East 436; v. Roberts, 67 111. 485; Mitchell v. 3IcKee v. Ingalls, 4: Scam. 30; Harry Milholland, 106 111.175; Tunnel v. V. Constantine, 14 La. An. 795; Fergusoii, 17 Bradvv. 76. Gaul V. Fleming, 10 Ind. 253; Colby * 2 Starr & Curtis, 2286; Rev. Stat. V. McGee, 48 111. App. 294; Gilmore (1895) 1450; Rev. Stat. (1893) 1353; V. Litzelman, 41 111. App. 541. Haii-ver v. Haicver, 78 111. 412; « Nelson v. Borchenius, 52 III. 236; Schmisseur v. Kreilich, 92 111. 347. Starkie on Slander, 44. ' -E^^«»^ v- Badger, 23 111. 498; Sny- 3 2 Starr & Curtis, 2284; Rev. Stat. d^r v. Degant,Alad. 578; Wright v. 6S2 CASE. The law will imply malice in the uttering of slanderous words, and heat of passion does not rebut the malice thus im- plied; ' but if a person provoke and excite such passion as results in the use of slanderous words, that fact should be con- sidered in mitigation.^ And it is no mitigation of the offense to show that the person slandered was quarrelsome." The pecuniary circumstances of the defendant may be given in evidence to the jury.' An infant under ten years of age may maintain an action, by her next friend, for slanderous words charging her with theft.^ The defendant may show that he offered an explanation of the offensive words, if the explanation was a part of the same conversation, and before the same auditor, and the same subject Was still under consid- eration or in dispute.' Where the defendant pleaded not guilty, and filed with his plea a notice of justification, which was read to the jury, but after the plaintiff had closed his case was erased by leave of the court, it was held that such conduct might be considered by the jury in estimating the damage, and that the with- drawal of the notice did not render an instruction to that ef- fect improper.' In an action for slander, it is for the jury to determine, from all the circumstances, what damages ought to be given; and such damages are not necessarily confined to mere pecuniary loss or injury; and unless the jury acted from prejudice, partiality or corruption, the verdict should not be dis- turbed.* A repetition of the words after the beginning of a suit Paige, SQ Barb. (N. Y.) 438; see 571; but see Store?/ v. £"0;'??/, 86 111. Wharton v. Wright, 30 111. App. 461. 343, * Stewart v. Howe, 17 111. 71; York ' Hosley v. Brooks, 20 111. 115; v. Pease, 2 Gray (Mass.) 283. Hatch V. Potter, 2 Gilm. 725; Gaul ^Winchellv. Strong, 17 111. 597; V. Fleming, 10 Ind. 253; Hudson v, see McKee v. Ingalls, 4 Scam. 30; Garner, 22 Mo. 423; Hagan v. Heii- Miller v. Johnson, 79 111. 58. dry, 18 Md. 177; but see McKee v. ^ Beasley v. Meigs, 16111. 139. JngfaZZs, 4 Scam. 30; Lamed y. Buff- ^Spencer v. McMasters, 16 111. inton, 3 Mass. 553. 405; Coleman v. Southwick, 9 Johns. 2 Freeman v. Tinsley, 50 111. 497; 51; 2 Stark, on Sland. 105; Symands Miller v. Johnson, 79 111. 58. v. Carter, 32 N. H. 458; Cramer v. 3 Hosley v. Brooks, 20 111. 115. Noonan, 4 Wis. 231; see McNamara * Hosley v. Brooks, 30 III. 115; v. A'wfir, 2 Gilm. 433. Forshee v. Abrams, 2 Clarke (Iowa) CASE. 683 for slander may be considered b}^ the jury upon the question of malice and in aggravation of damages.' In action by husband and wife for slander of the latter, it is not necessary to prove that the plaintiffs were husband and wife at the time the slander was uttered, if it appears that they were married when the suit was brouirht.'' Where a person, acting as constable, arrested another, and took from him a knife and other articles, and the arrested person accused him of theft, it was held that if the words spoken were understood to relate to the arrest, they were not actionable.^ To charge a person with pilfering is actionable.* Where words which are actionable in themselves are not spoken under circumstances wiiich render them privileged communications, the law will presume malice, which can not be rebutted under the general issue; and it is no defense to the party that he believed the words to be true.* It is not actionable to charge a man with an intent to com- mit a crime. The word " thief " is not actionable, unless the defendant intended to impute a crime, which the law will presume if a contrary intent is not shown.* It is said that if words are spoken in merriment or jest, Avithout malice, they are not actionable; ' but it is otherwise where there is malice and intention to defame. Drunkenness is no excuse.* In an action for slander, where the defendant does not jus- tify, he may mitigate the damages in two ways only : first, by showing the general bad character of the plaintiff; second, bv showing any circumstances which tend to disprove malice, but do not tend to prove the truth of the charge.* ^Stou-ell V. Beagle, 79 111. 525; "< McKee v. Itigalls, 4 Scam. SO; hut Halsey v. StiUman, 48 111. App. 413; see 2 Stark. Ev. 464; 1 Hawks" PI. Sheen v. Jouimal Co., 53 111. App. Cr. 356. 267. ^ McKee v. Ingalls, 4 Scam. 30. ^ Spencer V. McMasters, W 111. iOi). ^ Regnier v. Cabot, 2 Gilm. 34; ^ Ay ersv. Grider, 15 III. S". Young v. Bennett, i Scam. 43; *Becket v. Sterrett, 4 Blackf. 499. Wetherbee v. Marsh, 20 N. H. 561; ^Gilmer v. Eubank, 13 111. 271; Fuller v. Dean, 31 Ala. 654; Bod- Gilmer v. Eubank, 13 111. 321; see xcell v. Sican, 3 Pick. 376; Cooper v. Darling v. Banks, 14 111. 46. Barber, 24 Wend. 105; Root v. * McKee v. Ingalls, 4 Scam. 30; King, 7 Cow. 630; Cole v. Grant Miller v. Johnson, 79 111. 58; Stumer 3 Hai-rison (N. J.) 327. V. Pitchman, 124 111. 250. 6S4: CASE. It is said that although the words spoken charge an offense to have been committed in another state, which is not punish- able where the suit is brought, still they are actionable.' Words actionable at common law, spoken in one sti.te, are ac- tionable in another/ If slanderous words are spoken, maliciously or not, with the belief that they are true, giving the name of the author of them does not mitigate the offense.* So if a libel is published, and the name of the author given, the publication is, neverthe- less, actionable.* Words charging a person with having forged a deposition are actionable." And to charge one with being a thieving person, or to say of him that he stole and ran away, is actionable." To charge a man with ravishing a cow imports bestiality, and is actionable.' The words, " I have said j^ou stole the knife, and still say it," are actionable." To say that a woman is a w^hore, and to say that there is a rumor that she is such, are in legal contemplation equally slanderous.' The terms " bitch " and " slut," when applied to a woman and taken in their common acceptance, are not actionable To charge a man with having a venereal disease, and con- tracting marriage with that disease upon him, and communi- cating it to his wife, "will not be actionable if the plaintiff im- mediately after his marriage had the disease in fact, even ^French v. Creath, Breese 31; ^ Kelley y. Dillon, 5 Ind. 42Q; Dai- Johnson V. Dicken, 25 Mo. 580; Poe ley v. Reynolds, 4 Iowa 354; Schmis- V. Grever, 3 Sneed (Tenn.) 664. seur v. Kreilich, 92 111. 347; Elamv. ^LlnvilleY. Earlyu-ine, 4 Blackf. Badger, 23 111. 498; Kodi v. Heide- 469; Offutt V. Early wine, 4 Blackf. man, 16 Bradw. 478; Frank v. 460; Afret v. Burch, 1 Blackf. 400. Kaminsky, 109 111. 26; Claypool v. ^ Jones V. Chapman, 5 Blackf. 88. CAaypool, 56 111. App. 17. * Clarkson v. McCarty, 5 Blackf. '« Ruby v. Murphy, 27 111. App. 5';'4^ 394; Claypool v. Claypool, 56 111. 5 Atkinson v. Reding, 5 Blackf. 39. App. 17; K v. H , 20,Wis. ^ Alley Y. Neely,^B\a.cM . 200. 252; Sclmrich v. Kallman, 50 Ind. "> Harper v. Delp, 3 Ind. 225. 336; Logan v. Logan, 77 Ind. 558. « Jseley v. Lovejoy, 8 Blackf. 463. CASE. 685 though there may be proof that his wife, whom he married without knowing that she had the disease, communicated it to him,' To call a man a thieving puppy is actionable,' To charge a person with having maliciously killed a domes- tic animal is actionable,^ Charges made in the due administration of justice are privi- leged, and slander and libel will not lie upon them.* Matter contained in a pleading in a cause filed in due course of a judicial proceeding in a court of competent jurisdiction is privileged if pertinent to the matter in controversy; * but when a ])arty injects into a pleading defamatory language wholly irrelevant, he will be liable,' Declarations for slander and libel. — In general, three things are to be attended to in framing a declaration for slan- der or libel : 1st, the statement of extrinsic facts or circum- stances (where necessary,) by which the words become action- able; 2d, the colloquium, or averments that the libelous or slanderous matter relates to these extrinsic facts, and to the plaintiff; and 3d, connecting averments or innuendoes, by which such parts of the publication or words as want ex- planation are pointed or referred to the extrinsic facts which have been previously alleged.' 1st. As to the statement of extrinsic facts or circumstances. If the words themselves are a direct unequivocal charge, and per 86 import slanderous or libelous imputations, and point directly to the plaintiff, as that " A. B. has committed the crime of perjury," no extrmsic facts or circumstances need be averred. So where the meaning can be collected from the defendant's own words, no averment ought to be made as to the existence of any circumstances to which the defendant ^Goklerman v, Stearns, 7 Gray ^ Strmiss v. 3Ieyer, 48 lU. SS5. (Mass.) 181, ^ McLaughlin v. Coidey, 127 Mass. " Little V. Barlotv, 26 Geo. 423. 316; See Ash v. Zwietusch, 159 111. 3 Tottleben v. Blankenship, 58 ILL 455. App. 47. '' Young v. Gilbert, 93 111. 595; see *Hibbard v. Ryan, 46 111. App. Young v. Richardson, 4 Bradw. 364; 313; Fagan v. Fries, 30 111. App. Broxni v. Burnett, 10 Bradw. 279; 236. Hill V. Miles, 9 N. H. 9. 686 CASE. might possibly allude; since it is now settled that it is perfectly immaterial to the maintenance of the action, whether the de- fendant invented the circumstances, or whether they really existed. Therefore, where the words are general, no explana- tion is necessary to render them more particular, if the words themselves impute a crime.* But if the words do not naturally and jper se convey the meaning the plaintiff would wish to assign to them, or are ambiguous and equivocal, and require explanation, by reference to some extrinsic matter, to show that they are actionable, it must be expressly shown that such matter existed, and that the slander related thereto.' 'Thus, at common law, if the defendant charged the plaintiff with false swearing, a colloquium of its being in a cause pend- ing in a court of competent jurisdiction, and on a point material to the issue, is necessary.' Under the statute of Illi- nois, however, words imputing false swearing are actionable, whether spoken in a conversation concerning a judicial pro- ceeding or not.* With respect to the allegation of extrinsic facts, in reference to which the words are actionable, care should be taken not to allege such facts too minutely, and not to allege more than is necessary, lest there should be a variance between the alle- gation and the proof; though if the objection to the proof relates to matters which may not only be taken distributively, but which neither bear essentially upon the libel or slander, nor affect its character, 'and enough is left to render it action- 1 1 Swan's Pr. 552; 1 Chit. PI. 400- v. Munn, 13 Johns. 48; Crookshank 438; Snyder v. Degant, 4 Ind. 578; v. Gray, 20 Johns. 344; Hopkins v. see Harbison v. Shook, 41 lU. 141. Bedle, 1 Caine 347; Phillips v. ■•' 1 Chit. PI. 400; Hawkes v. Haw- Haeffer, 1 Penn. 62; Palmer v. Hun- key, 8 East 427; Roberts v. Camden, ter, 8 Mo. 512; Sanderson v. Hub- 9 East 93; Bell v. Byrne, 13 East 554; bard, 14 Vt. 462; Van Slyke v. Car- Case V. Buckley, 15 Wend. 327; Liii- penter, 7 Wis. 173; Stancell v.Pryor, ville V. Earlyivine, 4 Blackf. 469; 25 Geo. 40. Browny.Bro2vn,2SheY>l.Sn;Har- *Sanford v. Gaddis, IS 111. 329; ris V. Burley, 8 N. H. 256; see Wolbrecht v . Bimigarten, 2Q III. 291; Strauss v. Meyer, 48 111. 385. Harbison v. Shook, 41 111. 141; see ^ Blair V. Sharp, Breese, 30; Niven Elam v. Badger, 23 111, 498. CASE. 687 able, the variance will be immaterial.' If the matter referred to is material, and affects the char<^e in such a manner that the omission of it would alter the character of the slander or libel, either in the degree in which it is charged to be injurious, or in the estimate of damages, the court will hold the plaintiff to strict proof." But if the extrinsic facts are surplusage, so that the words alleged in the declaration are actionable, inde- pendently of the extrinsic facts and the colloqxdum^ the variance will be unessential.^ 2d. The colloquium, and averments connected therewith, show, first, (in an action for verbal slander,) that the de- fendant held a discourse, and usually that it was concerning the plaintiff; and secondly, that the slanderous words were spoken in the same discourse, (or the libelous words were pub- lished,) of and concerning the plaintiff; and if there is a pre- vious statement of extrinsic facts or circumstances, it is also averred that the slanderous matter was spoken in such dis- course, (or the libelous matter wjs published,) of and concern- ing the plaintiff.* The colloquium always connects, by its averments, the plaintiff and the extrinsic facts and circumstances with the libelous or slanderous words set out in the declaration. 3d. The innuendoes. The office of the innuendoes is to explain such parts of the libel or slanderous words as are equivocal, obscure, or need explanation. And for this pur- pose, the innuendoes can only point put or refer to the extrin- sic facts, etc., which have been previously alleged." ^McGregor v. Thu-aites, 10 Eng. 7 Johns. 359; Gidney v. Blake, C. L. R. 36; Rex v. WHght, 18 Eng. 11 Johns. 54; MilUgan v. Thome, 6 C. L. R. 162; 1 Swan's Pr. 553. Wend. 413; Nestle v. VanSlyck, 2 ^Rex V. florae, 2 Cowp. 672; Rex Hill. 282; Sayrcv. Jewett, 12 Wend. V. Wright, 18 Eng. C. L. R. 173; see 135; Tenney v. Clement, 10 N. H.52; 1 Chit. PI. 401-403, and cases there see Patterson v. Edwards, 2 Gilm. cited. 720, ^Jacobs V. Fyler, 3 Hill (N. Y.) ^ Stone v. Clark, 21 Pick. 51; 572; Harvey v. French, 28 Eng. C. Shencood v. Chace, 11 Wend. 38; L. R. 514; 1 Swan's Pr. 553; see Hopkins v. Beedle, 1 Caine 347; Elam V. Badger, 23 111. 498. Crookslutnk v. Gray, 20 Johns. 344; <1 Chit. PI. 403; 1 Stark, on SI an- Pratt v. Price, 11 Wend. 127; Day- der (2d Ed.) 383; Craft v. Boite, I ton v. Rocktvdl, 11 Wend. 140; Saund. 242 b, n. 3;Lwidsa^v.SmfA, GUman v. Loicell, 8 Wend. 573; 688 CASE. These three parts of a declaration for a libel or slander have been referred to, because it is so common, in practice, to crowd into the innuendoes what should be averments in the intro- ductory part of tlie declaration. The general rule, which should be ever kept in mind when framing a declaration for libel or slander, is this : that an innuendo can not extend or enlarge the sense of the words beyond their own meaning, unless something is put in the previous part of the declaration for the innuendo to explain. It can not in any case add or in- troduce new matter not previously stated. It can not supply the w^ant of a proper colloquium,^ or of an averment of the introductory matter. The innuendo can simply explain what has been previously averred in the introductory part of the declaration, or in the colloquium^ or other previous averments.' Great care is required in stating the words correctly; for the plaintiff must prove the exact words laid in the declaration, or enough of the same words to make out the slander. But it is sufficient to prove part only of any set of words alleged, if the proved part is itself intelligible and actionable, and the re- mainder is neither a qualification of the part proved, nor neces- sary to render the part proved intelligible." It is not sufficient, however, to prove equivalent words of slander, or different words of the same import.' il/cLattg^ryv. Wefrnore, 6 Johns. 82; neU v. Walker. 48 HI. App. 331. 1 Swan's Pr. 554; Patterson v. Ed- '^Richards v. Bainngart, 56 111. ic>ards,2Gi\m.'720;Gaultv. Babbitt, App. 422; Keefe v. Voight, 45 111- 1 Bradw. 130; Strader v. Snyder, 67 App. 620; Stvord v. Martin, 23 111. 111. 404; Strauss v. Meyer, 48 111. App. 304; BiUer v. Gockley, 18 111. 385; Nelson v. Borchsenius, 52 111. App. 496. 236; McGregor v. Eakin, 3 Bradw. ^ Wallace v. Dixon, 82 111. 202; 340; Foval v. Hallett, 10 Bradw. Schmisseur v. Kreilich, 92 111. 347; 268; Cliffordv. Cochrane, 10 Bradw. Slocum v. Kuykendall, 1 Scam. 187; 570; Schmisseur y. Kreilich, 92 111. Patterson v. Kdwurds, 2 Gihn. 720; 347. Sanford v. Gaddis, 15 111. 228; Nor- » Swan's Pr. 554; Cro. Car. 420; 1 ton v. Gordon, 16 111. 38; Wilbom v. Stark, on Slander (Wend. Ed.), 344; Odell, 29 111. 456; Crotty v. Morris- Craft V. Boite, 1 Saund. 243, n. 4; sey, 40 111. 477; Harbison v. Shook, Patterson v. Edwards, 2 Gilm. 720; 41 111. 141; Baker v. Young, 44 111. Townsend on Sland. and Lib., Sec. 42; Olmstead\. Miller, 1 Wend. 510; 335, and cases there cited; Uleryv. Birch v . Benton, 26 Mo. 153; Albin Stock Exch., 54 111. App. 233; Fin- v. Parks, 3 Bradw. 576; Thomas v. CASE. 689 With respect to variances from omissions (that is, omis- sions to allege in the count all the words spoken), it seems, in case of oral slander, to be sufficient to set out the words which are material, and it is not even necessary to state words which may qualify the objectionable ones.' An allegation spoken affirmatively will not be sustained by proof of Avords spoken interrogatively; nor will proof of words spoken to a person sustain a declaration which charges words spoken of a person.' So, proof of words spoken in the second person, will not, it seems, support an allegation of words spoken in the third per- son; ^ and words spoken as a rumor, or as the words of another, will not support words alleged unqualifiedly as the defendant's.* Distinct sets of slanderous words, importing the same charge, and said to have been spoken at the same time, though in fact spoken at different times, may be put into the same count; Fischer, 71 111. 576; Sword v. Martin, 23 111. App. 304; NeweU on Def. & Slander, 804, 805, 808. ' 1 Stark, on Slan. 375; Townsendon Slan. & Libel, Sec. 265; Sanford v. Gaddis, 15 111. 228; Norton v. Gor- don, 16 111. 38; see Illinois cases, siipra; Fox v. Vanderbeek, 5 Cow, 513; Nestle v. VanSlyck, 2 Hill (N. Y.) 282; Sumner v. Utley, 12 Vt. 257; Scott V. McKinnish, 15 Ala. 662; Hancock v. Stejihens, 11 Humph. (Tenn.) 507; Iseley v. Lovejoy, 8 Blackf. 462: Nye v. Otui, 8 Mass. 122 Whiting v. Smith, 13 Pick. 364 Pond V. Hart well, 17 Pick. 353 Allen V. Perkins, 17 Pick. 369; Miller V. Miller, 8 Johns. 74; McClintock V. Crick, 4 Iowa 453; Wheeler v. Robb, 1 Blackf. 330; Berry v. Dry- den, 7 Mo. 324; Coghill v. Chandler, 33 Mo. 115; Frank v. Kaminsky, 109 111. 26. ^King v. Berry, 4 Term 217; San- ford V. Gaddis, 15 111. 228; 3Iiller v. Miller, 8 Johns. 74; see McConnell 44 V. McCoy, 7 Serg. & Rawle 223 Patterson v. Edwards, 2 Gilm. 720 Slocumb V, Kuykendall, 1 Scam. 187 Berry v. Dryden, 7 Mo. 324; Wat- son V. Miisick, 2 Mo. 29; Linville v. Earlywine, 4 Blackf. 469; Creelman V. Marks, 7 lb. 281; Williams v. Bryant, 4 Ala. 44; Easley v. Moss, 9 lb. 266; Fox v. Vanderbeek, 5 Cow. 513; Olmstead v. Miller, 1 Wend. 506; King v. Whitley, 7 Jones (N. C.) L. R. 529; Wilbom v. Odell, 29 111. 456; Stees v. Kenible, 27 Penn. St. 112; Lancaster v. Heu'son, 2 M. & R. 176; Pasley v. Kemp, 22 Mo. 409; 2 Stephens' N. P. 2576; Coleman v. Playsted, 36 Barb. (N. Y.) 26. ^ King v. Berry, 4 Term 217; Mc- Connell V. McCoy, 7 Serg. & Rawle 223; Wolf V. Rodifer, 1 Har. & J. 409; Miller v. Miller, 8 Johns. 74; but see Cro. Eliz. 503; Tracy v. Hankins, 1 Binn. 395, n. ; Huffman V. Shumate, 4 Bibb (Ky.) 515. « Bell V. Byrne, 13 East 554. 690 CASE. and if any one of the sets is sustained by proof, the plaintiff is entitled to a verdict on the set proved.' Where slanderous words are uttered in a foreign language, the declaration should set out the words in that language, with a translation.' An averment of words spoken in English will not be sup- ported by evidence of words spoken in a foreign language." The place of the offense is not material; like a date it may be proven differently from that alleged, and it is not neces- sary that the place be stated under a videlicet." No. 352. General form of declaration for slander. (Commence as in No. 335, ante.) For that whereas the plaintiff, before and at the time of the committing by the defendant of the several griev- ances hereinafter mentioned, was a person of good name, credit and repu- tation, and deservedly enjoyed the esteem and good opinion of his neighbors and other worthy citizens of this state: Yet the defendant, well knowing the premises, but contriving and maliciously intending to injure the plaintiff, aud to bring him into public scandal and disgrace, on, etc., in the county aforesaid, in a certain discourse which the defendant then and there had of and concerning the plaintilf, in the presence and hearing of divers persons, falsely and maliciously, in the presence and hearing of those persons, spoke and published, of and concerning the plaintiff, the false, scandalous, malicious and defamatory words following, that is to say, "He, etc.. {setting out the words, with proper innuendoes, etc, as in No. 35Jt., post.) Second count.— And afterwards, to wit, on, etc., aforesaid, in, etc., aforesaid, in a certain other discourse which the defendant then and there had, in the presence and hearing of divers other persons, of and concerning the plaintiff, the defendant, further contriving and intend- ing as aforesaid, in the presence and hearing of those persons falsely and maliciously spoke and published of and concerning the plaintiff these other false, scandalous, malicious and defamatory words following, that is to say, "He, etc., {setting out theivords, icith proper inmiendoes.) By means of the committing of which said several grievances by the de- 1 Long V. Hitchcock, 3 Ohio 274; Schmisseur v. Kreilich, 92 111. 347 Steph. N. P. 2577; Rathbun v. Koch v. Heideman, 16 Bradw. 478 Emigh, 6 Wend. 407; Diogt v. Tan- ^ Zenobio v. Axtell, 6 Term 162 ner, 29 Wend. 190; Hall v. Nees, 27 Wormuth v. Cramer, 3 Wend. 394 111. 411; 2 Esp. 191; Townsend on A'er.^c/i v. SZu.sser. 12 Ind. 453; Kiene Sland. & Lib., Sec. 365. v. Ruff, 1 Clarke (Iowa) 482; see re- 2 Kersch v. Slusser, 12 Ind. 453; marks under form No. 356, post. Townsend on Slan. & Lib., Sec. 330; " Boyd v. Humphries, 53 111. App. Heard on Slan. & Lib., Sec. 210; 422. CASE. 691 fendant, the plaintiff has been and is greatly injured in his said good name, credit and reputation, and brought into pubHc scandal and disgrace, and has been and is shunned and avoided by divers persons, and has been and is otlier wise injured: To the damage of the plaintiff of dollars, and therefore he brings his suit, etc. No. 353. For words charging an unmarried woman with fornication. {Commence as in No. 385, ante. ) For that vt^hereas the plaintiff, before and at the time of the committing by the defendant of the several griev- ances hereinafter mentioned, was, and always has been, virtuous and chaste, and was a person of good name and reputation, and deservedly enjoyed the esteem and good opinion of her neighbors and other worthy cit- izens of this state: Yet the defendant, well knowing the premises, but con- triving and maliciously intending to injure the plaintiff in her said good name and reputation, and to bring her into public scandal and disgrace, and to cause it to be suspected and believed by divers persons that she was imchaste, on, etc., in, etc., in a certain discourse which the defendant then and there had, in the presence and hearing of divers persons, of and con- cerning the plaintiff, falsely and maliciously, in the presence and hearing of the said persons, spoke and published of and concerning the plaintiff the false, scandalous, malicious and defamatory words following, that is to sa}^ etc. {Jiere set out the ivords. with innuendoes, asiti the next form), meaning thereby then and there to charge that the plaintiff had been and was guilty of fornication. {Add other counts if desired, and conclude as follows:) By means of the committing of which said several grievances by the defend- ant, the plaintiff has been and is greatly injured in her said good name and reputation, and brought into public scandal and disgrace, and has been and is shunned and avoided by divers persons, and has been and is otherwise injured. To the damage of the plaintiff of dollars, and therefore she brings her suit, etc. ' No. 354.. For words charging perjury. {Commence as in No. 335, ante.) For that whereas the plaintiff, before and at the time of the committing by the defendant of the several griev- ances hereinafter mentioned, was a person of good name, credit and repu- tation, and deservedly enjoyed the esteem and good opinion of his neighbors, and other worthy citizens of this state; and whereas, also, before the com- mitting of those grievances, to wit, on, etc., in the county aforesaid, a cer- tain action was pending before E. F., one of the justices of the peace in and for the county aforesaid, wherein the People of the State of Illinois was plaintiff, and one G. H. was defendant, and on the trial of which said action then and there, before the said justice, the plaintiff was duly sworn and examined, and did give his evidence, as a witness, touching the matters in controversy therein. Yet the defendant, well knowing the premises, but contriving and maliciously intending to injure the plaintiff in his said good > Elam V. Badger, 23 111. 500. 692 CASE. name, credit and reputation, and to bring hiai into public scandal and dis- grace with and among his neighbors and acquaintances, and to cause it to be suspected and believed by them and others that the plaintiff had been guilty of false swearing, afterwards, to wit, on, etc., in the county afore- said, in a certain discourse which the defendant then and there had, in the presence and hearing of divers persons, of and concerning the plaintiff, and of and concerning the matters and premises aforesaid, falselj^ and mali- ciouslj', in the presence and hearing of the said persons, spoke and published, of and concerning the plaintiff, and of and concerning the matters and jwemises aforesaid, the false, scandalous, malicious and defamatory words following, that is to say: '"You " (meaning the plaintiff) " have sworn to a damned lie: " " You " (meaning the plaintiff) " have sworn to a damned lie before Esquire E. F.," (meaning the said E. F., the justice of the peace aforesaid,) " and I " (meaning the defendant) " can prove it." "!fou" (meaning the plaintiff) " have sworn to a lie, and I " (meaning the defend- ant) " can prove it by j'our" (meaning the plaintiff's) " own daugliter." " You " (meaning the plaintiff) " swore that you " (meaning the plaintiff) " never spoke to me " (meaning the defendant) " previous to that time" (meaning the time of the trial aforesaid) " in the street; and that is a damned lie, and I " (meaning the defendant) " can prove it." "You" (meaning the plaintiff) " have sworn falsely, and I " (meaning the defend- ant) " can prove it." " You " (meaning the plaintiff) " committed perjury, and I " (meaning the defendant) " can prove it by your " (meaning tlie plaintiff's) " daughter." " You " (meaning the plaintiff) " conmiitted per- jury." " You" (meaning the plamtiff) " swore falsely." " You " (mean- ing the plaintiff) " swore to a lie." " You " (meaning the plaintiff) " swore to a damned lie." Meaning and intending thereby to charge that the plaintiff, on the trial of the action aforesaid, had, as a witness as aforesaid, sworn falsely. Second count. — And also for that whereas afterwards, to wit, on, etc., aforesaid, in, etc., aforesaid, in a certain other discourse which the defendant then and there had, of and concerning the plaintiff, in the presence and hear- ing of divers persons, the defendant falsely and maliciously, in the presence and hearing of those persons, spoke and published, of and concerning the plaintiff, the false, scandalous, malicious and defamatory words following, that is to say : " You " (meaning the plaintiff) " perjured yourself." " He " (meaning the plaintiff) " perjured himself." " He" (meaning the plaintiff) " committed perjury." "You'' (meaning the plaintiff) "swore to a lie." " You " (meaning the plaintiff) " swore to a damned lie." " You " (meaning the plaintiff) " swore to a lie, and I" (meaning the defendant) "can prove if By means of the speaking and publishing of which said several false, scan- dalous and malicious words by the defendant, the plaintiff has been and is greatly injured in his good name, credit and reputation, and brought into public scandal and disgrace, and has been and is otherwise injured: To the damage of the plaintiff of dollars, and therefore he brings his suit, etc.^ » WolbrecM v. Bumgarten, 26 111. 291. CASE. 693 No. 355. For words charging larceny, {Commence as in No. 335, ante.) For that whereas the plaintiff, before and at the time of the committing by the defendant of the several griev- ances hereinafter mentioned, was a person of good name, credit and repu- tation, and deservedly enjoj'ed the esteem and good opinion of all his neigh- bors, and other worthy citizens of this state: Yet the defendant, well knowing the premises but contriving and malicious!}^ intending to injure the plaintiff, and to bring him into public scandal and disgrace, on, etc., in, etc., in a certain discourse which the defendant then and there had, of and concerning the plaintiff, in the presence and hearing of divets persons, falsely and maliciously, in the presence and hearing of the said persons, spoke and published, of and concerning the plaintiff, the false, scandalous, malicious and defamatory words following, that is to say: " He" (meaning the plaintiff) " stole my corn." " He " (meaning the plaintiff) " and S. H. stole my corn." " He " (meaning the plaintiff) " stole my hogs." "' He " (meaning the plaintiff) " stole my eggs and apples." " He" (meaning the plaintiff) " keeps S. H. to steal my (meaning the defendant's) corn, and he" (meaning the plaintiff) " conceals it." Meaning and intending thereby to charge that the plaintiff had feloniously stolen, taken and carried away the goods and chattels of the defendant. {A second count m/xy be here inserted, if deemed necessary, concluding the declaration as follows:) By means of the committing of which said several grievances by the de- fendant, the plaintiff has been and is greatly injured in his said good name, credit and reputation, and brought into public scandal and disgrace, and has been and is shunned and avoided by divers persons, and has been and is otherwise injured: To the damage of the plaintiff of dollars, and therefore he brings his suit, etc. ' No. 356. For ioords spoken in a foreign language. {Commence as in No. 335, ante.) For that whereas the plaintiff, before and at the time of the committing by the defendant of the several griev- ances hereinafter mentioned, was a person of good name and reputation, and deservedly enjoyed the esteem and good opinion of his neighbors, and other worthy citizens of this state: Yet the defendant, well knowing the premises, but contriving and maliciously intending to injure the plaintiff, and to bring him into public scandal and disgrace, on, etc., in, etc., in a certain discourse which the defendant then and there had, of and concern- ing the plaintiff, in the presence and hearing of divers persons, falsely and maliciously, in the presence and hearing of the said divers persons, who then and there understood the German language, spoke and published, of and concerning the plaintiff, the false, scandalous, malicious and defama- tory w'ords following, in the said German language, that is to say, (here set forth the words in the German language); which said words signified and meant, in the English language, as follows, that is to say {here set forth a « HaU V. Nees, 27 111. 411. 694 CASE. correct translation of the words in English, with innuendoes, as in Nos. 354 and 355, ante.) {Here insert a second count, if deemed necessary, and conclude as fol- lows : ) By means of the committing of which said several grievances by the de- fendant, the plaintiff has been and is greatly injured in his said good name and reputation and brought into public scandal and disgrace; and has been and is shunned and avoided by divers persons, and has been and is other- wise injured: To the damage of the plaintiff of dollars, and therefore he brings his suit, etc. Where the words were spoken or published in a foreign lan- guage the foreign words must be set forth/ together with a translation into English, To set forth the words alone, or the translation alone, would not be sufficient/ The omission to set forth a translation may be rectified by an amendment,' On the general issue, the plaintiff must prove the correct- ness of the translation; but the accuracy of the translation is admitted by a demurrer.* No. 357. By a tradesman, for words imputing insolvency, etc. — Alleging special damages. (Commence as in No. 335, ante.) For that whereas the plaintiff, before and at the time of the committing by the defendant of the several grievances hereinafter mentioned, exercised and carried on, and still does exercise and carry on, the business of a vierclumt, in, etc., and has always conducted the same with punctuality in dealing, keeping his engagements and paying his debts, and was deservedly held in gi-eat credit and esteem by his neigh- bors, and those with whom he had dealings in his trade and business as such merchant, whereby he daily acquired divers gains and emoluments in his said trade and business, to the support and maintenance of himself and his family, and the great increase of his fortune. Yet the defendant, well knowing the premises, but contriving and wrongfully and maliciously in- tending to injure and destroy the good name, reputation and credit of the plaintiff in his said trade and business, and to cause him to be regarded as a person of no credit, worth or substance, and in insolvent circumstances, on, etc., in the county aforesaid, in a certain discoui-se which the defend- ant then and there had, of and concerning the plaintiff, and his circum- 1 Zenobio v. Axtell, 6 Term 162. ' Zenobio v. Axtell, 6 Term 162; 2 Wormuth v. Cramer, 3 Wend, Rahauser v. Barth, 3 Watts 28. 394; Kersch v. Slusser, 12 Ind. 453 Hickley v, Orosjean, 6 Blackf. 351 Rahauser v. Barth, 3 Watts 28 Keenholts v. Becker, 3 Denio 346 Heard on Lib, and Slander, Sec. 210. * Hickley v. Gro.sjean, 6 Blackf, 351; Townshend on Slan. and Lib. Sec. 330, CASE. 695 stances, and his said trade and business, in the presence and hearing of divers persons, falsely and maliciously, in the presence and hearing of the said persons, spoke and published of and concerning the plaintiff, and his cir- cumstances, and his said trade and business, the false, slanderous, malicious and defamatory words following, that is to say: "The property of B." (meaning the plaintiff) "will be in the hands of the sheriff by Saturday night"' (meaning thereby that the plaintiff was in insolvent circumstances^ and that his business was about to be closed by his creditors). "He," (meaning the plaintiff) " is trying to sell out his stock " (meaning the stock of goods which the plaintiff then had in his store,) "to avoid paying his" (meaning the plaintiff's) " debts." " He " (meaning the plaintiff) " is a ras- cal, and cheat, and not able to pay his " (meaning the plaintiff's) " debts." By means of the committing of which said several grievances by the de- fendant, the plaintiff has been greatly injured in his said good name, credit, reputation, trade and business : And one G. H. , then one of the creditors of the plaintiff, thereupon, by reason of the speaking and publishing of the said false, scandalous, malicious and defamatory words by the defendant as aforesaid, then and there sued out of the court of the said county a certain writ of attachment, against the goods and chattels of the plaintiff, and caused the stock of goods and merchandise of the plaintiff to be seized, and the same then and there were seized, by virtue of the said writ, to sat- isfy the debt of the plaintiff to the said G. H.; and thereby the store of the plaintiff was then and there closed, and kept closed for a long space of time, to wit, days, during all which time the plaintiff was hindered and pre- vented from carrying on his said ti-ade and business; and he was thereby also compelled to and did then and thei'e pay out divers sums of money, amounting to dollars, in and about the said attachment suit, and for costs in that behalf, and in obtaining the release of his said goods and mer- chandise from the attachment aforesaid; and divers persons who had, be- fore the speaking of the said false, scandalous, malicious and defamatory words by the defendant as aforesaid, been accustomed to deal, and divers other persons who would otherwise have dealt, with the plaintiff in his said trade and business, have since that time, and wholly on that account, re- spectively refused to do so; and particularly one E. F,, by reason of the speaking and publishing of the said false, scandalous, malicious and defam- atory words by the defendant as aforesaid, then refused, and thence hith- erto has refused to have any dealings or transactions with the plaintiff in his said trade and business, as he, the said E. F., otherwise might and would have had; and by means of the several premises the plaintiff has there lost and been deprived of divers great gains and profits which other- wise would have accrued to him in his said trade and business, and has been and is otherwise injured: {here add any other cause of special damage that may accord with tJie facts) : To the damage of the plaintiff of dollars, and therefore he brings his suit, etc. No. S58. For libel in a newspaper. {Commence as in No. 335, ante.) For that whereas the plaintiff, before and at the time of the committing by the defendant of the several griev- 696 CASE. ances hereinafter mentioned, was a person of good name, credit and repu- tation, and deservedly enjoyed the esteem and good opinion of his neigh- bors and other worthy citizens of tliis state : Yet the defendant, well knowing the premises, but wickedly and maliciously intending to injure the plaintiff, and to bring him into public scandal and disgrace, on, etc., in, etc., wickedly and maliciously did compose and publish, and cause to be composed and published, of and concerning the plaintiff, in a certain news- paper called the , whereof the defendant was then and there the editor and proprietor, a certain false, scandalous, malicious and defamatory libel, containing (among other things) the false, scandalous, malicious, defama- tory and libelous matters following, of and concerning the plaintiff, that is to say: " He, (meaning the plaintiff) etc. {setting out the libelous matter in hgec verba, with proper innuendoes, as in the next form.) Second count. — And the defendant, further contriving and intending as aforesaid, afterwards, to wit, on, etc., aforesaid, in, etc., aforesaid, falsely, wickedly and maliciously did compose and publish, and cause to be com- posed and published, of and concerning the plaintiff, in the said newspaper called the , whoreof the defendant was then-and there the editor and proprietor, a certain otlier false, scandalous, malicious and defamatory libel, containing (among other things) the false, scandalous, malicious, de- famatory and libelous matters following, of and concerning the plaintiff, that is to say, etc. {Here set out the libelous matter, with proper innuendoes, as in next form. By means of the committing of which said several grievances by the de- fendant, the plaintiff has been and is greatly injured in his said good name, credit and reputation, and brought into public scandal and disgrace, and has been and is shunned and avoided by divers persons, and has been and is otherwise injured. To the damage of the plaintiff of dollars, and therefore he brings his suit, etc. No. 359. For libel by letter, imputing insolvency; claiming special dam- ages, etc. {Commence as in No. 335, ante.) For that whereas the plaintiff, before and at the time of the committing by the defendant of the several grievances hereinafter mentioned, exercised and carried on, and still does exercise and carry on, the business of a merchant, in, etc., and has always conducted the same with punctuality in dealing, keeping his en- gagements, and paying his debts, and was deservedly held in great credit and esteem by his neighbors and those with whom he had dealings in his trade and business as such merchant, whereby he daily acquired divers gains and emoluments in his said trade and business, to the support and maintenance of himself and his family, and the great increase of his for- tune: Yet the defendant, well knowing the premises, but wickedly and maliciously intending to injure and destroy the good name, reputation and credit of the plaintiff in his said trade and business, and to cause him to be regarded as a person of no credit, worth, or substance, and in insolvent circumstances, and to prejudice and injure the plaintiff with one E. F. . a trader and merchant doing business at , who for a long time before CASE. 697 then had dealt, and was then dealing, with the plaintiff in the way of his said trade and business, and to induce the said E. F. to leave off dealing with the plaintiff, on, etc., in, etc., did wrongfully, falsely and maliciously write and publish a certain false, scandalous, malicious and defamatory libel, of and concerning the plaintiff, and of and concerning his said trade and busi- ness, circumstances and credit, in the form of a letter addressed to the said E. F., containing the false, scandalous, malicious, defamatory and libelous matters following, that is to say: " Sir, you (meaning the said E. F.) will be surprised to see a stranger write to you, (meaning the said E. F.,) but as I (meaning the defendant) have no other view but doing as I (meaning the defendant) would be done by, therefore as I (meaning the defendant) be- lieve you (meaning the said E. F.) are a fair trader, therefore can not see you (meaning the said E. F.) wronged without letting you (meaning the said E, F.) know it, for I (meaning the defendant) am told you (meaning the said E. F.) have large dealings with one A. B., (meaning tlie plaintiff,) and he (meaning the plaintiff) was a banknipt some years before, (meaning before the writing and publishing of the said libel,) and never could get his (meaning the plaintiff's) certificate; so all that he (meaning the plaintiff) has or deals for is his (meaning the plaintiff's) former credit- ors' rights, and he (meaning the plaintiff) has not been in business above three quarters of a year, and now is joined witli his (meaning the plaint- iff's) brother, (meaning one O. D.,) and they (meaning the plaintiff and the said O. D.) get all the credit they (meaning the plaintiff and O. D. ) can by one (meaning one of the two last-mentioned persons) recommending another, (meaning one of the two last-mentioned persons,) and they (meaning the plaintiff and the said O. D.) are arrested every day, etc., to bail one another and pay nobody, so now I (meaning the defendant) have done my (mean- ing his, the defendant's) part, and if you (meaning the said E. F.) are not the man it (meaning the said letter or libel) was designed for, pray burn it (meaning the said letter or libel); and if you (meaning the said E. F.) take hint, burn it, (meaning the said letter or libel,) for the writer (meaning the defendant) is neither to get nor lose by it, so farewell." And the defendant tlien and there falsely and maliciously sent the said letter, containing the false, scandalous, malicious, defamatory and libelous matters aforesaid, by mail to the said E. F., and the same was then received and read by the said E. F., as thereby published by the defendant to the said E. F. By means of the committing of which said several grievances by the defendant, the plaintiff has been and is greatly injured in his said good name, reputation, credit, trade and business, and has fallen into great discredit among his creditors, and other worthy persons witli whom he had dealt and traded in his said trade and business, and of whom he was accustomed to buy goods and merchandise on credit, and especially the said E. F.; insomuch that those creditors, and other persons, and especially the said E. F., wholly on account of the writing and publishing of the said false, scandalous, mali- cious and defamatory libel by the defendant as aforesaid, have altogether refused, and still refuse, to buy of, or sell to, or have anything to do with, the plaintiff in his trade and business aforesaid; (here may be added any other causes of special damage that tlie facts may justify;) and also by 698 CASE. means of the premises the plaintiff has been and is otherwise injured: To the damage of the plaintiff of dollars, and tlierefore he brings his suit, etc. A publication, to be a libel, must tend to injure the plaint- iff's reputation, or expose him to public hatred, contempt or ridicule,' but it need not charge a crime.'' It is defined by the statute of Illinois to be a malicious defamation, expressed either by printing, or by signs or pictures, or the like, tending to blacken the memory of one who is dead, or to impeach the honesty,. integrity, virtue or reputation, or publish the natural defects, of one who is alive, and thereby to expose him or her to public hatred, contempt or ridicule.^ An action for libel may be sustained for words published which tend to bring the plaintiff into public hatred, contempt or ridicule, even though the same words spoken would not have been actionable," Where a member of a school district wrote a letter to a school committee, accusing a teacher of a want of chastity, and remonstrating against her appointment, it was held that the communication was libelous, if shown to have been made with malice, or without probable cause,^ The better and prevailing opinion is that no action for libel can be maintained for defamatory matter contained in a plead- ing in a court of civil jurisdiction.' A corporation is not liable for a libel written by an agent without its express authority, although such libelous writing relates to the business of the company/ DEFENSES TO THE ACTION. For pleas in abatement, and observations on the principles governing the same, see Defenses to an Action, ante^ page 32. * Armen v. Moranda, 8 Blackf. 426; seq,; Cerveny v. Daily News, 139 111. OosUng v. Morgan, 32 Penn. St. 345. 273. * Bodwell v. Osgood, 3 Pick. 379. ^Johnson v. Stebbins, 5 Ind. 364. «Townshend Sland. and Lib. 381; ^ Starr & Curtis' Stat. 804; Rev. McLaughlin v. Cowley, 127 Mass. Stat. (1893), 500; Rev. Stat. (1895), 316; Ash v. Zweitusch, 57 111. Apjx 543; see Clay v. People, 86 111. 147. 157. * Newell on Def. and Sland. 78 et "> Ex. Co. v. Fitzner, 59 Miss. 581; CASE. 699 Pleas in bar. — In an action on the case, the plea of not guilty is the general issue. No. 360. Plea of not guilty. In the Court. Term, 18—. C. D. ) ats. y Case. A. B. ) And the defendant, by E. F. , his attorney, comes and defends the wrong and injury, when, etc., and says that he is not guilty of the said supposed grievances above laid to his charge, or any or either of them, in manner and form as the plaintiff has above thereof complained against him : And of this the defendant puts himself upon the country, etc. The plea of not guilty, in an action on the case, puts in issue the wrongful act, and it is very seldom necessary to plead any other plea. The gist of the action is the tort, and this is put in issue by this plea. It compels the plaintiff to prove everv essential allegation in his declaration that goes to make up the liability of the defendant. The facts stated in the induce- ment, however, are not put in issue by it.' Thus where the action is for negligent driving, and the defendant's possession of the carriage alleged to have been negligently driven is stated in the declaration by way of inducement, such posses- sion is admitted by the plea." In an action under the statute of Illinois, for causing the death of a person by negligence, the plea of not guilty puts in issue the allegation of there being a widow or next of kin sur- viving, as well as the commission of the act complained of.^ Special pleas generally. — As an action on the case is founded upon the mere justice and conscience of the plaintiff's case, and is in the nature of a bill in equity, and is in effect so, the defendant may, under the general issue, introduce in evidence any matters which show that the cause of action has been discharged, or that in equity and good conscience the WoodlingY. Knickerbocker, 31 Minn. ' Allen v. Michel, 38 III. App. 818; 268; Harding v. Greening, 8 Taunt 2 Greenl, Ev., Sec. 231. 42; Ins. Co. v. Paid, 37 111. App. ^2 Steph. N. P. 1025. 439. 8 Conant v. Griffin, 48 111. 410. 700 CASE. plaintiff ought not to recover.' Thus a release, former recov- ery, or satisfaction need not be pleaded.^ But to this general rule there are some exceptions, such as the statute of limitations, and justification in an action for slander, alleging the truth of the vverds, which must be specially pleaded.' The defendant may, however, plead specially anything which, admitting that the plaintiff once had a cause of action, goes to discharge it; such as a release, accord and satisfaction, discharge in bankruptcy, former recovery, etc.* (jeneral issue in actions for slander. — In an action for oral or written slander, the plea of not guilty operates as a denial of the extrinsic facts stated in the inducement; the speaking of the words, or publication of the libel; the truth of the colloquium, or the application of the words to the plaintiff, and to the extrinsic facts stated in the declaration; and the damage, when special damage is necessary to maintain the action. And when the defense is, that the libel or words were published or spoken, not in the malicious sense imputed by the declaration, but in an innocent sense, or upon a justi- fiable occasion, this matter may be given in evidence under the geiieral issue.^ The defendant can not prove under the gen- eral issue the truth of the words, either in bar of the action, or in mitigation of damages." »lChit. PL 483; Greenl. on Ev., Scott v. Fleming, 17 Bradw. 561; Sec. 231; Kennedy v. Strong, 10 Lafanettev.3IcC Myers v. People, 26 111. 173; John- *B. E. Co. V. People, 106 111. 652; son v. R. E. Co., Ill 111. 413. Jn.9. Co. V. Vanduzor, 49 111. 489; ^ Elizabethtoivnv. LeJler,2'S lU. 90; Tram. Co. v. Joesting, 89 111. 152; Buckland v. Goddard, 36 111. 206; Cro?me V. Fan iVbr^/mncfc, 56 111. 353; Ballance v. Leonard, 37 111. 43; E. Ins. Co. V. Heck, 65 111. 111. E. Co. v. Mclntire, 39 111. 298; R. E. 744 BILLS or EXCEPTIONS. If documents introduced are lengthy, and relate partly to other matters, it seems the material parts only need be pre- served in the record.' A bill of exceptions is not necessary in any case where the error is intrinsic, appearing on the face of the record.^ An exception to the overruling of a demurrer,' or a motion in arrest of judgment,* is improper, as these matters are part of the record, and need no bill of exceptions to make them so. If a bill of exceptions includes the pleadings in the cause, or other unnecessary matters, the costs thereby occasioned will be taxed against the party who caused their insertion." Interrogatories to and answers of a garnishee," or a sub- mission and award filed for the purpose of obtaining judg- ment,' are part of the record, and need not be put into a bill of exceptions. Objections to remarks of counsel not con- tained in the bill of exceptions will not be considered on appeal.* Where a judgment is confessed in tei'm, on a promissory note and warrant of attorney, these papers can become part of the record only by being preserved in a bill of exceptions; ^ but it is otherwise in the case of a judgment confessed in vacation.'". Original papers, even by consent, can not be presented in the appellate court as a part of a bill of exceptions, unless some- Co. V. Oarish, 39 III. 370; Mner v. Sivift v. Castle, 23 111. 209; Schmidt Phillips, 42 111. 123; McPherson v. v. Skelly, 10 Bradw. 564. Nelson, 44 111. 124:-, Gallagher v. ^Hatvk v. McCiillough, 21111 220 Brandt, 52 111. 80; Esty v. Grant, 55 Hamlin v. Reynolds, 22 111. 207; Mix 111.341; Trustees T. iJiseyiheimer, 89 v, Nettleton, 29 111. 245; Chase v, lU. 151; Lawyer v. Langham, 85 111. De Wolf, 69 111. 47; Offield v. SUer 138; Culliner v. Nash, 76 111. 515; 15 Bradw. 308. Proutv. Grout, 12111.456; Henry V. *MixY. Nettleton, 29 111. 245 Halloway, 78 111. 356; Lee v. Town, Nichols v. People, 40 111. 395. 118 111. 304; Johnson v. Glover, 19 ^ R. R. Co. v. Jones, 20 111. 221 Bradw. 585; Brown v. Coal Co., 40 Vandusen v, Pomeroy, 24 III. 289. 111. App. 602; Redner v. Davern, 41 * Rankin v. Simonds, 27 111. 352. 111. App. 247; Garrityv. Hamburger, '' Buntain v. Curtiss, 27 111. 374. 136 111. 499; Goodwillie v. Lake, 137 ^People v. Board, 26 111. App. 476; IlL 67; Auburn v. Goodwin, 128 Hickam v. People, 137 111. 80; Gan- lU, 65. non v. People, 127 111. 518. * Trustees v. Welchley, 19 111. 64. ^ Waterman v. Caton, 55 111. 94. ^Kitchell V. Burgwin, 21111. 40; ^^ Durham v. Brown, 24 111. 94; Waterma7i v. Caton, 55 111. 94. BILLS OF EXCEPTIONS. 745 thing is to determined by an inspection of them, or they can not be exhibited by copy so as to present the point of law- intended to be raised — and then they should be clearly identi- fied by the bill of exceptions.* A bill of exceptions presenting a mere abstract proposition, as applicable to one case as to another, can not be made the foundation of a writ of error. The party excepting must dis- tinctly point out wherein he supposes himself to be aggrieved,^ Although a bill of exceptions may show that testimony was improperly admitted or excluded, or instructions were im- properly given or refused, or other error was committed by the court, yet unless it also appears from the bill that the proper objections were made and exceptions taken, such mat- ters can not be assigned for error.^ The counsel for the party excepting prepares the bill of ex- ceptions, and submits it to the judge, who examines it, and, if correct, signs and seals it; and it is then filed, and becomes a part of the record. Documentary evidence is sufiiciently made a part of the record by recitals in the bill of exceptions that it was marked by certain numbers and attached thereto and made a part thereof, and by attaching the same to such bill designated by such numbers, before the bill is signed and sealed by the judge.* It is impossible to give forms of bills of exceptions appli- 1 Trustees v. Welchley, 19 111. 64. 470; Boyle v. Levings, 28 111. 314; R. '^ King V. Kenny, iOhiold; McDon- R. Co. v. Garish, 39 111. 370; R. R. galv. Fleming, 4: Ohio 388; Lewis v. Co. v. McKean, 40 111. 220; McClur- Sanfc, 12 Ohio 132; see il/^/ers v. Peo- kin v. Ewing, 42 111. 283; Gardner pie, 26 111. 173. V. Haynie, 42 111. 291; Gill v. People, ^Snyder v. Lafrainboise, Breese 42 111. 321; McPherson v. Hall, 44 343; Peck v. Boggess, 1 Scam. 281; 111. 264; Boynton v. Remvick, 46 111. Miller v. Dobson, 1 Gilm. 572; 280; Natlian v. City, 46 111. 347; Sdilenker v, Risley, 3 Scam. 483; Johnson v. Gillett, 52 111. 358; Min- Selby V. Hutchinson, 4 Gilm, 319; gia v. People, 54 111. 274; People v. Buckmaster v. Cool, 12 111. 74; Bur- Green, 54 111. 280; R. R. Co. v. Miller, kett V. Bond, 12 111. 87; Martin v. 55 111. 448; Wright v. Wheeler, 55 111. People, 13 111. 341; Pottle v. McWor- 528. ter, 13 111. 454; Smith v. Kahili, 17 *Legnardx. Rhoades, 156 HI. 431; 111. 67; Sedgu'ick v. Phillips, 22 111. Moses v. Loomis, 156 111. 392. 183; Mathews v. Hamilton, 23 III. 746 BILLS OF EXCEPTIONS. cable to all cases. The following may by used, varying them to suit the circumstances. No. 365. Bill of exceptions to evidence, instructions, and denying of motion for new trial. In the Court. Term, 18—. CD.) ats. V Assumpsit. A. B. ) Be it remembered, that on the trial of this cause, in this term, the plaintiff gave in evidence on his behalf as follows, that is to say: J. K., being duly sworn, testified: My name is J. K. ; I am acquainted with, etc. (Objections made and exceptions taken in the course of the examination may be set forth in this manner:) Thereupon the counsel for the plaintiff asked the witness this question: What, etc. To which ques- the defendant, by his counsel, then and there objected, for the reason, etc.; but the court overruled the objection, and permitted the witness to to answer the question, which he thereupon did as follows: I heard, etc. To which ruling and decision of the court, in permitting this question to be so asked and answered, the defendant, by his counsel, then and there excepted. {Proceed with the testimony thus:) And thereupon the witness further testified: I acted for the plaintiff, etc. On cross-examination by the counsel for the defendant, this witness tes- tified : I was not present, etc. (Proceed in like manner with the testimony of any otlier witnesses for the plaintiff.) And thereupon the defendant gave in evidence on his behalf as follows, that is to say : (Hej'C insert the testimony for the defendant, vnth any objections made and exceptions taken by him) The foregoing was all the evidence introduced on the trial of this cause. And thereupon the court gave to the jm-y, on behalf of the plaintiff, the following instructions, to wit : (Here insert the instructions for the plaintiff.) To the giving of each and all of which instructions the defendant, by his counsel, then and there excepted. And thereupon the court gave to the jury, on behalf of the defendant, the following instructions, to wit : (Here insert the instructions given for the defendant.) And the defendant, by his counsel, then and there asked the court to also give to the jury the following instructions, to wit : (Hereinsert the refused instructions.) But the court refused to give these instructions to the jury; to which de- cision of the court in refusing to give the same, and each of them, to the jury, the defendant, by his counsel, then and there excepted. And thereupon the jury rendered a verdict against the defendant; where- upon the defendant, by his coimsel, then and there moved the court to set BILLS OF EXCEPTIONS. 747 aside the verdict so rendered, and grant a new trial of this cause, and filed the following reasons in writing for his motion, to wit: {Here insert the reasoyis filed.) But tlie court denied the motion, and gave judgment on the verdict against the defendant; to which decision of the court, in denying such motion, the defendant, by his counsel, then and there excepted. And forasmuch as the matters above set forth do not fully appear of record, the defendant tenders this his bill of exceptions, and prays that the same may be signed and sealed by the judge of this court, pursuant to the statute in such case made; which is done accordingly, this day of, etc. L.M., Judge, [l. s.] No. 366. Bill of exception on the refusal of a continuance. {Title of court, etc.) Be it remembered, that on this day of, etc., in this term, the defendant moved the court to continue this cause, on account of, etc. , and read and filed in support of his said motion the following afiidavit, to wit: {Here insert the affidavit.) But the court, having heard the said afiidavit, (*) denied the said motion, and refused to continue this cause; to which ruling and decision of the court the defendant, by his counsel, then and there excej^ted. A nd because the matters aforesaid do not fully appear of record, the defendant presents this his bill of exception, and prays that the same may be signed and sealed by the judge of this court, pursuant to the statute, etc. , wliicli is accord- ingly done. L. M,, Judge. [L. s.] In the case of a motion on which counter affidavits or testimony may be heard, insert (at the asterisk in the above form) the words, " which was all the evidence heard in that behalf" — first setting forth all the affidavits or testimony introduced.' Bills of exception ma}^ be amended upon application and notice to the adverse party; but it must be made in term time.= See several bills of exceptions to instructions of the court, in 1 Scam. R. 47, 107, 181, 187; a bill of exceptions to evidence and the denial of a motion for a new trial, in IS 111. R. 392; and a bill of exception on the denial of a motion to set aside a judgment by confession, in 1 Scam. R. 428, ' Miller v. Metzger, 16 111. 390. Lamb, 117 111. 550; Pecple v. An- 2 Goodrich v. Minonk, 62 111. 121; thomj, 129 111. 218; Wright v. Griffey, Myers v.PhiUips, 68111.269; Smith 146 111.394; R. R. Co. \. Levy, 57 V. JSleivland, 40 111. 100; Heiasen v. 111. App. 365. CHAPTEK XXVIII. AGREED CASES— QUESTIONS OF LAW CERTIFIED. Agreed cases — Certified to supreme or appellate court. — It is provided by section 74 of the Practice Act that '' The parties in any suit or proceeding at law or in chancery, in any circuit court, or the superior court of Cook county, or in any city court, make an agreed case containing the points of hiw at issue between them, and file the same in such court; and the said agreed case, with the decision thereon, may be certified to the appellate court or supreme court by the clerk of such court, without certifying any fuller record in the case; and upon such agreed case being so certified and filed in the appellate court or supreme court, the appellant or plaintiff' in error may assign errors, and the case shall then be proceeded in in the same manner as it might have been had a full record been certified to said appellate court or supreme court." ' When a court has reason to believe that an agreed case is not real, but a fictitious proceeding, proof will be required that the action is not feigned.^ The supreme court or appellate court has no jurisdiction to decide an agreed case without it first having been decided by a trial court and a record is cer- tified from that court; ^ nor can such courts acquire jurisdic- tion by stipulation of the parties in the absence of a judgment." Under an agreed statement of facts, where the clerk certi- fied counsel's certificate and " the final decision of the case," ' 2 Starr & Curtis, 1837; Rev. ^ piumleigh v. White, 4 Gilm. 387 Stat (1895), 1165; Rev. Stat. (1893), see R. R. Co. v. Giiertin, 115111. 466 1081. * 3Ioore v. Bolin, 5 Bradw. 556 "^People v. Leland, 40 111.118; Village v. Cemetery Ass'?i, 5 Bradw. Spragginv. Houghton, 2Sc8im. 211; 230; Moody v. Peake, 13 111. 343 McConnell v. Shields. 1 Scam. 582. Cridl v. Keener. 17 111. 246; Cox v Rule 20 of Sup. Ct. 93 111. 7; Puter- Jordan, 86 111. 560. baugh's Ch. PI. & Pr. 956. (748) AGREED CASES — QUESTIONS OF LAW CERTIFIED. 7-i9 the transcript was held fatally defective for omitting the cer- tificate of the decision of the court on the questions of law stated in the stipulation.* Questions of law certified — Judges may certify questions of law. — Section 75 of the Practice Act provides that "Any judge of the circuit court, or the superior court of Cook county, or of an}'- city court, may, if the parties liti- gant assent thereto, certify any question or questions of law arising in any case tried and finally determined before him to the appellate or supreme court, together Avith his decision thereon; or the parties in the case ma}'- agree as to the ques- tions or points of law arising in the case, and the same may be certified by the counsel or attorneys of the respective parties, who shall sign their names thereto; and upon such cer- tificate being made, the same shall be filed in the court render- ing the decision, and a copy of such certificate, certified by the clerk of said court, wi^-h the decision thereon and final de- cision in the case, to the appellate court or supreme court, and filed therein; and upon filing the same, the like proceedings may be had in the appellate court or supreme court as if a full and complete record had been transcribed and certified to said court." ^ Exceptions to the two above sections. — It is declared by section 7G of the Practice Act, that " The two preceding sections shall not apply to cases in which the title to real estate is in question, nor to cases where any question of fact appertaining to the constitutional enact- ments of a law of this state is involved." ' Certification of. — In plain terms, section 75 of the statute prescribes, first, a certificate by the counsel or attorneys of the " questions or points of law arising," a copy of which must be certified by the clerk; who must also certify, second, the decision thereon; and third, the final decision. The court is not, under this section, authorized to accept the agreement or certificate > R. R. Co. V. Goodwin, 18 Bradw. ^ 2 stair & Curtis, 1837; Rev. Stat. 65; see Ives v. Hulce, 17 Bradw. 38. (1893), 1081; Rev. Stat. (1895), 1165; * 2 Starr & Curtis 1837; Rev. Stat, sec Wheeler v. Gage, 28 III. App. 427. (1895), 1165; Rev. Stat. (1893), 1081; seeR. R. Co. v. Guertin, 115 111. 466. 750 AGREED CASES — QTTESTrONS OF LAW CEETIEIED. of counsel as to the facts, and without them, the court can not know what the decision was, upon the points of law stated.' No. 367. Agreed ease behceen parties in suit pending. (Under Sec. 74, Practice Act.) ^ In the Circuit Court. Term, A. D. 18—. A. B. The — Railroad I Trespass on the ease. Company. J We, A. B., plaintiff, and the defendant, rail- road company, in the above entitled cause, now pend- ing and undetermined in said court, in pursuance of the statute in such case provided, do hereby mutually make this an agreed case and hereby stipu- late as follows, that is to say: That on, etc., the plaintiff filed his declaration in due form, counting upon a failure of the defendant to fence its road, as required by the statute in such case made and provided, that is to say {here set forth the substance of the allegations of each count); and that on, etc., the defendant filed its plea of the general issu3 thereto, to which the plaintiff added a similiter. That the facts of the matter in controversy are as follows: {Here set forth the facts in the case as agreed upon.) It is further stipulated and mutually agreed by and between the said par- ties, that the points of law at issue between them are as follows, viz. : I. Is the plaintiff entitled to recover, he having built the fence off the line between him and the defendant's right of way, as above set forth? II. Is it lawful to award as damages a sum in double the amount of the cost of the fence mentioned? III. Under the foregoing stipulation and agreement, is the plaintiff en- titled to recover against the defendant ? And it is further stipulated and agreed by and between the parties, that upon the foregoing agreed case, containing the points of law at issue be- tween them, and filed in said cause, that the court shall decide tliereon, and shall render judgment therein, according as the rights of the said parties in law may appear, in the same manner as if the facts aforesaid were proved upon the ti'ial of said issue; in pursuance of the statute in such case provided. Dated, this day of A. D. 18—. A. B. by , his attorney. The Railroad Co. by , its attorney. No. 36S. Decision of the court upon agreed case between parties in suit pending. (Under section 74, Practice Act.) * {Venue, and title of cause as in No. 367.) And now come the plaintiff and defendant, by their respective attorneys, 1 ii.i2, Co. V. Goodwin, 18 Brad. 65. ^gee R. R. Co. v. Goodwin, 18 ' See R. R. Co. v. Goodwin, 18 Bradw. 65. Bradw. 65. AGEEED CASES — QUESTIONS OF LAW CERTIFIED. 751 and this cause coming on to be heard before the undersigned, judge of said court, upon the agreed case between said parties, and the points of law at issue between tliem; and the same having been argued by the attorneys for the parties respectively; and the court being fully advised in the prem- ises, doth decide and hold, I. That the plaintiff is entitled to recover, he having built the fence off the line between him and the defendant's right of way as in said agreement mentioned. II. That it is lawful to award as damages, a sum in double the amount of the cost of the fence mentioned, III. That under the stipulation and agreement by and between the par- ties, and upon the said agreed facts and the law of the case, as filed in said cause, the plaintiff is entitled to recover against the defendant. IV. Therefore the court doth decide and hold that the plaintiff is en- titled to recover of and from the defendant the sum of dollars, with costs of suit to be taxed by the clerk, and directs that judgment be entered accordingly, in pursuance of the statute in such case made and provided. Dated this day of , A. D. 18 — . Judge. Upon the decision of the court, thus made, a judgment should be entered, whereupon the said agreed case, with the decision thereon, and the judgment rendered, may be certi- fied to the appellate court or the supreme court, by the clerk of such court, without certifying any fuller record in the case.' No. 369. Agreement that judge may certify questions of law. (Under Sec. 75, Practice Act.) {Venue, and title of cause as in No. 367, ante). We, A. B., plaintiff. andC. D., defendant, in the above entitled cause, tried and finally determined in said court, do hereby consent and agree that the judge of said court may certify any question or questions of law aris- ing in this cause to the appellate {or supreme) court, together with his de- cision thereon, in pursuance of the statute in such case provided; and that upon such certificate being made, the same shall be filed in said court, and that a copy of such certificate, certified by the clerk of said court, with the decision thereon, and the final decision in this cause, may be certified to the appellate court {or supreme court), and filed therein; and upon filing the same, the like proceedings may be had in the appellate {or supreme) court, as if a full and complete record liad been transcribed and certified to said court. Dated this day of , A. D. 18 — . A. B., Plaintiff. C. D., Defendant. > See authorities already cited, ante. 752 AGREED CASES — QUESTIONS OF LAW CERTIFIED. No. 370. Agreement to parties as to questions of law arising in the case, (Under Sec. 75, Practice Act.) {Venue and title of cause as in No. 367, ante.) We, A. B., plaintiff, and C. D., defendant, in the above entitled cause, tried and finally determined in said court, do hereby, in pursuance of the statute in such case provided, consent and agree, as to the questions or points of law arising in the cause; and that the same may be certified by our respective counsel or attorneys, who shall sign their names thereto; and that upon such certificate being made, the same shall be filed in said court; and that a copy of such certificate, certified by the clerk of said court, with the decision thereon, and the final decision in the case, may be certified to the appellate court (or supreme court), and filed therein ; and that upon filing the same, the like proceedings may be had in the appel- late court {or supreme court), as if a full and complete record had been transcribed and certified to said court. Dated, etc. A. B., Plaintiff. C. D., Defendant. No. 371. Certificate of judge of questions of law arising in a case deter- mined, etc. (Under Sec. 75, Practice Act.)* {Venue, and title of cause as in No. 367, ante.) The undersigned, judge of the, etc., hereby certifies that the above en- titled cause was based upon, and originated in a distress for rent, under section 17 of chapter 80 of the revised statutes of 1874, by the plaintiff filing with the clerk of said court a copy of a distress warrant against the defendant, with an inventory of the propertj'^ levied upon; which was a warrant against the goods of the defendant for rent claimed by the plaintiff to be due and in arrear to him as the landlord of the defendant. ' A summons was issued, as pi'ovided in section 18 of that act, which was duly served on the defendant, who appeared and pleaded " no rent in arrear." After this plea was interposed, the plaintiff, by leave of court, filed the common counts in assumpsit, as an amendment to the distress warrant, and to this the defendant pleaded non-assuinpsit, and set-off. The issues thus formed were, by agreement of the parties, submitted to the court for trial without a jury; and after the hearing of the proof and arguments, the court ordered " that plaintiff's declaration in assumpsit, and defendant's plea of general issue be stricken from the files," for the follow- ing reasons: {Here insert tlie ground for the same;) and thereupon the court found the issue for the defendant, and assessed his damages at the sum of dollars, for which a judgment was rendered in favor of the de- fendant, and against the plaintiff. Tliat during the progress of said trial the following questions of law did > See Cox v. Jordan, 86 111. 560. AGREED CASES— QUESTIONS OF LAW CERTIFIED. 753 arise and were determined by me, as such judge, in said cause, that is to say : First. Whether or not said plaintiff had a right to amend his distress warrant, so as to make the same cover claims and demands outside of and not covered by the claim and demand for rent, by adding the common counts for goods, wares and merchandise sold and delivered, work and labor done, money loaned, etc. Second, Whether or not, under an amendment to the distress warrant covering the aforesaid claims and demands of the plaintiff, outside of the claims and demands for rent, the plaintiff had the right to make proof of such outside claims and demands. Third. Whether or not, in case of distress for rent, the tenant having entered his appearance, and filed a claim of set-off greater in amount than the landlord's claim for rent, the landlord had the right, under any amend- ment wliich could be legitimately allowed to the distress warrant, to pre- sent and make proof of other claims and demands against the tenant, out- side of the claim and demand for rent upon which the distress for rent was based. Fourth. Whether or not, upon the trial of a proceeding based upon dis- tress for rent by the landlord against the tenant, when the tenant has en- tered his appearance in said causa, the plaintiff has the legal right to plead and make proof of claims and demands outside of claims and demands for rent upon which the distress for rent was based, and not growing out of, or dependent upon the relation of landlord and tenant, and recover a judg- ment against the defendant in such suit or proceeding for such outside claims and demands, if the proof warrants such judgment. And I further certify that each and all of said questions were deter- min d by the undersigned, as judge of said com-t, against the plaintiff, the undersigned holding that the claims and demands, outside of the claims and demands for rent, could not be pleaded and given in evidence by the land- lord in such a proceeding, but that the tenant had the right to plead and prove matters of set-off against the landlord, to which ruling of the court the plaintiff then and there excepted, and prayed an appeal to the appellate court; and now by the assent of the parties litigant, the foregoing ques- tions or points of law, and the decisions thereon, are hereby certified to the appellate court {or supreme court) of the state, for review, in conformity with the statute in such case made and provided. Dated, etc. , Judge. No. 372. Agreement as to questions of laio arising in the case. (Under Sec. 75 of the Practice Act.) {Venue, and title of cause as in No. 367, ante.) We, the undersigned, E. F., attorney for the plaintiff, and G. H., attor- ney for the defendant in the above entitled cause, tried and finally deter- mined in said court, in pursuance to the mutual agreement of the respective parties, and the statute in such case made and provided, do hereby agree, and certify as to the questions or points of law arising in the progress of 48 75J: AGREED CASES — QUESTIONS OF LAW CERTIFIED. ihe trial of said cause; and that the same may be filed in said court; and that a copy of such certificate, certified by the clerk of said court, with the decision thereon, and the final decision in the case, may be certified to the appellate court {or supreme court), and filed therein, that is to say: That this was an action of assiiuqisit, and an attachment issued thereon in favor of the plaintiff, and was levied upon the real estate of the defendant. That the cause assigned in the aflidavit for issuing of the attachment, was that the defendant was a non-resident of the State of Illinois. That the de- fendant appeai'ed, and filed a plea in abatement to the writ, denying that at the time of the issuing of the writ, he was a non-resident of the state. On the trial, the plaintiff proved that at the time the writ in attachment was issued, which was on the 20th day of August, 1878, the defendant was in Minnesota, and had been there since he left Chicago, in April, 1878; and to sustain the allegation of his affidavit, he testified that the defendant told him before he left Chicago, that he was going to Minnesota to reside permanently. A witness also testified on behalf of the plaintiff, that a few days before the attachment was sued out, he saw the defendant in Minne- apolis, who then told him that he intended i-esiding in Minnesota, and had come there to reside, and never intended to return to Illinois to live. The defendant, to prove the issue raised by his plea, testified that he did not have the conversation testified to by plaintiff and his witness; that he went to Minnesota with no intention of residing there, but upon business; that he was a single man, and always intended to return to Chicago; and did return there a short time after this suit was commenced, and has re- sided there ever since. The defendant then offered to read in evidence the deposition of G. A., who deposed substantially that about the time the defendant left Chicago, he told him he was going away that afternoon or the next day, to St. Paul or Minnesota, to collect money that was due him. That the money was due and he did not expect to have much trouble, and that he would not be gone a great while. Also, the deposition of R. B., who deposed that in the latter part of March, or the beginning of April, a few days before the de- fendant left, he had a conversation with him, in which the defendant told him that he was going to make a trip to Minnesota where he was ac- quainted with millers; and the witness, who was in the flouring business, suggested he would introduce him to the firm of G. S. & Co. , for the pur- pose of establishing some business relations; and after the introduction, witness thinks the defendant suggested that on his return he would make permanent arrangements with the firm either for a stipulated salary or a certain commission, on all the consignments received here through his in- strumentality. And also the deposition of E. S. , who testified that ki the latter part of April, 1878, he had a conversation with the defendant, who told him he would start for St. Paul to arrange some business matters of which he had previously spoken, about a certain draft of $1,000, which was withheld, and also to make arrangements with regard to shipments of flour to this market; and that he might be gone two weeks or a month. To the reading of these depositions, and each of them, the plaintiff ob- jected, on the ground that such evidence was incompetent; and the com-t. AGREED CASES — QUESTIONS OF LAW CERTIFIED. 755 sustaining tlie objection, excluded the testimony from the jury. To which ruHngs of the court the defendant then and there excepted. Whereupon a verdict was rendered for the plaintiff; and on overruling a motion in writ- ing to set aside the verdict and for a new trial, to which the defendant ex- cepted, the court rendered a judgment against the defendant. And we, the attorneys, as aforesaid, hereby agree and certify as to the questions or points of law arising in the case, which are as follows, viz. : First. Whether or not, the depositions of G. A., R. B. and E. S., offered by the defendant, and excluded by the court, were competent testimony in this cause. Second. Whether or not the court erred in denying the defendant's mo- tion to set aside the verdict of the jury and for a new trial, on the ground of the refusal of the court to permit said depositions to be read to the jury. Dated, etc. E. F., Attorney for Plaintiff. G. H., Attorney for Defendant. No. 373. Decision of the judge npon the questions of law arising in case flnally determined. (Under Sec. 75, Practice Act.) {Venue, and title of cause as in No. 367, ante.) The parties litigant having assented and agreed as to the questions or points of law arising in this cause, and the same having been certified by the counsel or attorneys of the respective parties, who have signed their names thereto, and such certificate having been filed in this court, the un- dersigned, judge of said court, does determine the said several questions or points of law arising in the case, in favor of the plaintiff; the undersigned, as such judge, holding that the said testimony contained in, said deposi- tions, and each of the same was incompetent; and that the court did not err in overruling the defendant's motion to set aside the verdict of the jury and for a new trial, on the gi-ound of the refusal of the court to permit said depositions to be read to the jury. To which determination of the court the plaintiff then and there excepted, and prayed an appeal to the appellate court. And the foregoing questions or points of law, and this decision thereon, and the final decision in this cause, are directed to be certified by the clerk of this court to the appellate court of this state for review, in conformity with the statute in such case made and provided. Dated, etc. Judge. Kule 20 of the supreme court, and rule 16 of third district appellate court, provide that " No judgment will be pronounced in any agreed case placed upon the docket of this court, unless an affidavit shall be filed setting forth that the matters presented by the record were litigated in good faith about a matter in actual controversy 756 AGREED CASES QUESTIONS OF LAW CERTIFIED. between the parties, and that the opinion of this court is not sought with any other design than to adjudicate and settle the law relative to the matter in actual controversy between the parties to the record." ' No. 374. Affidavit that matters in agreed case are litigated in good faith. (Venue, and title of cause as in No. 367, ante.) A. B. , of, etc. , on oath states that he is the plaintiff in the above entitled cause; that the matters presented by the record in said cause were liti- gated in good faith about matters in actual controversy between the parties hereto; and that the opinion of this court is not sought with any other de- sign than to adjudicate and settle the law relative to the matters in actual controversy between the parties to the record. A. B. Subscribed and sworn to, etc. 1 93 111. 7; 52111. App. 680; Puterbaugh's Ch. PI. & Pr. 956. CHAPTER XXIX. REFEREES. Referring causes by agreement. — Section 1 of the act of IS 72, entitled " An act to provide for referees in common law cases," ' provides " That in all common law causes in courts of record, after issue joined or default entered, it shall be competent for the court, upon agreement of the parties or their counsel, to appoint one or more referees, not exceeding three, who shall have authority to take testimony in such cause, and report the same in writing, together with their conclusions of law and fact, to the court, and the court shall have power to render judgment upon the filing of such report; provided, either party may except to such report, and have his excep- tions heard and determined by the court; and the court may, if necessary to take further evidence, refer the cause back to the referees, with instructions. Notice of the time of hearing such exceptions and taking of such further evidence shall be given under such rules as the court may prescribe." The power given to the court by the above section is a discretionary power, with the exercise of which the appellate court will not interfere unless it is clearly shown that it has been abused.* The proceeding before a referee, being statutory, must in all substantial respects pursue the statute, or it can not be sustained. The statute quoted provides for the selection or appointment of no referee except by order of court. It author- izes no report by a referee except one containing the evidence heard and giving the referee's conclusions thereon, to which the parties are entitled to be heard on exceptions. If the > 3 Starr & Curtis, 2003; Rev. Stat. ^ p^pe v. People, 19 111. App. 34. (1895) 1345; Rev. Stat. (1893) 1161. (757) 70» KEFEEEES, report fails to give the evidence no judgment can bo entered on it.' The appointment of a referee to try a common law contro- versy stands upon the same reason as the reference to a master of a similar controversy in chancery, and the proceedings should be similar.' Where the parties to a suit at law make an agreement out of court to submit the cause to a third person, and that the court shall enter judgment on the finding of such third person, though not in compliance with the statute in reference to arbitration, or that concerning the appointment of a referee, the court may, by mutual consent, enter judgment upon the finding, but if it is objected to, the trial must proceed as at common law. This is well illustrated by reference to kindred cases where causes pending are submitted to arbitration with an agreement that judgment may be rendered thereon under the statute. In such cases it is held that nothing but a strict substantial compliance with the statute will authorize the court to enter ai judgment upon the award." The referee is an officer of the court, and can only be appointed by an order of the court.* Oath of referee. — It has been held that the taking of an oath is a pre-requisite to the power of an auditor or referee to proceed with his duties,^ but the objection will be deemed waived by the appearance of the parties and the examination of witnesses without objection." Exceptions to report — When to he made. — Exceptions to the report of the referee must be made in the court from which the reference is taken. Where no objections are taken in the court below, they will not be considered in the appellate or supreme court upon appeal or writ of error.' ^Morey v. 3Iower Co., 90 111. 307. ^ Pardridge v. Ryan, 134 III. 247: ^ Pardridge v. Ryan, 35 111. App. but see same case, 35 111. App. 230. 230. ^Pardridge v. Ryan, 134 111. 247; ^ Loiv V. Nolte, 15 III. 368; Weinz same case, 35 111. App. 230. V. Dopier, 17 111. Ill; ilfore^ v. ^ Stock Yards v. Hirnrod, 88 111. Mower Co., 90 111. 307. 410; Rape v. People, 19 lU. App. 24; * Hoflfman on Referees; 3Iorey v. Butler v. Cornell, 148 III. 276. Jfoii-er Co., 90 III. 307. REFEREES. 7o9 The report and findings of a referee under tlie statute in ref- erence to the facts, are regarded in the same light as the verdict of a jury, and should not be set aside or disturbed, except upon such grounds as would justify the setting aside of a verdict and granting a new trial/ Attendance of witnesses — Oaths. — Section 2 of the same act provides that " Witnesses may be required to attend and testify before such referees in the same manner as is or may be provided bv law in cases before masters in chancery; and such referees shall have power to administer oaths to witnesses." Judgment — Referee's fees — Costs. — By section 3, it is pro- vided, that " Upon final hearing of the cause the court shall render judgment, and shall tax as costs against the unsuccessful party such fees, for the services of the referees, as shall, in the judg- ment of the court, be reasonable and proper, not to exceed $5 per day; provided, that whenever the parties to any such suit, or their counsel, shall, in writing, to be filed in court, agree upon a larger or less sum per day, then the court shall be authorized to tax as part of the costs in such case the per diem so agreed upon." Testimony — Record. — It is provided in section 4, that " All testimony taken before referees shall be subscribed by the witnesses, and the same, together with all exhibits and papers introduced in evidence, and the report of the referees, shall be included in and form a part of the record of the cause." No. 375. Agreement to refer cause to referees. In the Circuit Court. Term, A. D. 18— A. B. ) vs. > In Assumpsit. C. D. \ The above named plaintiff and defendant hereby mutually agree that the court may appoint one or more referees, not exceeding three, to be authorized to take the testimony in such cause, and report the same in writing, together with their conclusions of law and facts, to the court, in pursuance of the statute in such case made and provided. Dated, etc. A. B. C. D. ^ Scott V. Maxwell, \% Til. App. 72; v. Sutrick, 22 Cal. 471; Edwards Butler V. Cornell, 148 111. 276; Keller on Eeferees, 131. 7G0 KEFEREES. No. 376. Order cq^pointing referee. (Title of cause.) Upon the agreement of the parties hereto, it is ordered that E. F. be. and he is hereby appointed referee, witli authority to take testimony in this cause, and report the same in writing, together with his conclusions of tlie law and facts in this cause, to the court; pursuant to the statute in such case made and provided. No. 377. Report of referee in favor of the plaintiff. {Venue and title of cause.) To the Honorable Judge of said court: In pursuance of an order of this court made in the above entitled cause, on, etc., appointing the undersigned referee, with authority to take testi- mony in this cause, and report the same in writing, together with his con- clusions of the law and facts in said cause, to the court, the undersigned, referee, respectfully reports, that having first given a written notice to the said pai'ties, respectively, of the time and place when and where the said testimony would be taken, and caused to come before him, as such referee, all such witnesses as the respective parties desired or made known to him, and having been attended by the attorneys of the respective parties, the un- dersigned, as such referee, did, on, etc., at, etc., proceed to take the testi- mony of the respective parties; and the several witnesses attending, having been severally sworn and examined, he, as such referee, reduced their tes- timony to writing, and herewith reports the same, to be filed in said cause. The undersigned would further report, that, having examined the law and facts in said cause, he reports his conclusions thereon as follows, that is to say : Uj)on the facts in the case he concludes and finds: First. That, etc. {Here insert the facts as found.) ^ Second. That, etc. (And so on.) And upon the law of the case his conclusions are: First. That, etc. Second. That, etc. (And so on, inserting the conclusions of the referee upon each legal point.) The undersigned, as such referee, finds ( * ) that there is due to the plaint- iff. A. B., from the defendant, C. D., the sum of dollars, besides the costs of suit. All of which he, as such referee, respectfully reports to the court. Dated, etc. E. F. Referee. No. 378, Report of referee in favor of the defendant. (As in the last form to the (*), and then as follows:) that there is nothing due from the defendant, CD., to the plaintiff, A. B. All of which, etc. (As in the last form.) KEFEKEES. 761 No. 379. Exceptions to report of referee. {Venue and title of cause.) Exceptions of the defendant (or plaintiff) to the report of the referee, filed in said cause, on, etc. First. For that the said referee in his first findings of fact has erro- neously found, etc. (Here insert the ground of exception.) Second. For that tlie said referee in his second findings of fact has erro- neously found, etc. Third. For that, etc., {and so on.) Fourth. For that the following facts are not stated in the findings of fact in the said report, viz.: That, etc., {here insert.) Fifth. For that the first of the conclusions of law contained in the said report is erroneous. Sixth. For that the second of the conclusions of law contained in the said report is erroneous. Seventh. For that the said report is in favor of the plaintiff {or defend- ant), whereas it should have been in favor of the defendant {or plaintiff). Eighth. For that the following conclusions of law upon the facts in the case are not contained in the said report, viz.: That, etc. {Here insert.) Wherefore the defendant {or plaintiff) excepts to the said report, and appeals therefrom to the judgment of this court. , Attorney for . CHAPTER XXX. ATTORNEYS AND COUNSELORS AT LAW. An attorney at law is an officer of a court of justice, who is employed by a party in a cause to manage the same for him. Appearance by an attorney has been allowed in England from the time of the earliest records of the courts of that country. They are mentioned in Glanville, Bracton, Fleta and Britton; and a case turnino- upon a party's right to appear by attor- ney is reported in the Year Book, 17 Edw, III., A. D. 1344.' It results from the nature of their functions, and of their duties, as well to the court as to the client, that no one can, even by consent, be the attorney of both the litigating parties in the same controversy.' The name of attorney is given to those officers who practice in courts of common law; solicitors in courts of equity; and proctors in courts of admiralty, and in the English ecclesias- tical courts.^ How admitted. — The question as to who may be admitted as an attorney, is to be determined by the rules and regula- tions established on the subject in the several states. Every state in the Union has laws by which the right to practice in its courts may be granted, and the right is very generally made to depend upon good moral character, the learning, and professional skill of the party on whom the privilege is con- ferred. The right to admission in no sense depends upon citi- zenship of the United States.* But a citizen of one state is not entitled, as a matter of right, to admission to the bar of another state.' 11 Bouv. L. D. 140. wood v. R. R. Co., 15 Barb. 650; ^See Bac. Abr., tit. Attorneys, c; Price v. Railroad, 18 Ind. 137. Valentine v. Stewart, 15 Cal. 387; ^ j b^u^ l D. 206. Com. V. Gibbs, 4 Gray 146; Sher- * Bradwell v. State, 16 Wall. 130. ^Matter of Henry, 40 N.Y. 560. (762) ATTOKNEYS AND COUNSELORS AT LAW. T63 Qualifications. — Attorneys are officers of the court, admitted as such by its order upon evidence of their possessing suf- ficient legal learning and fair private character. It is the general practice in this country to obtain this evidence by a personal examination of the parties making application for admission. And where the law provides for an examination of applicants for admission to the bar, before their admission, a candidate ought not to be admitted without attendino- in person at the time of the hearing, even when physically dis- abled at the time from coming.* In regard to the inquiry as to the moral character of an applicant for admission, the court is not limited to the certifi- cate, but may look behind it, and is bound to do so in cases attended with suspicious circumstances.^ Eule 2 of the supreme court of the United States provides that "It shall be requisite to the admission of attorneys or coun- selors, to practice in this court, that they shall have been such for three years past in the supreme courts of the states to which they respectively belong, and that their private and professional character shall appear to be fair." In this state a candidate for examination must have pur- sued a regular course of law study in the office of some lawyer in general practice for at least two years. If such applicant shall have been in attendance in a law school as a student at law, the time thus spent may be considered as a part of the two years. If the ap))licant presents a diploma regularly issued by any law school, regularly organized under the laws of this state, whose regular course of law studies is two years, and requiring an actual attendance by the student of at least thirty-six weeks in each of said years, he may be admitted upon such diploma without examination. No recovery can be had by any unlicensed attorney for serv- ices rendered in a court of record, notwithstanding a con- tract providing therefor.' ' Ex parte SnelUng, 44 Cal. 553; Y. 67; Strother v. Missouri, 1 Mo. 1 Wait's Ac. & Def. 432. 605. ^Attorney's License, 21 N. J., ^ City v. Freeh, 17 111. App. 339; Law 345; Matter of Cooper, 22 N. Sellers v. Phillips, 37 111. App. 74; 764: ATTORNEYS AND COUNSELORS AT LAW. As to licensing attorneys and penalties for misconduct, see Puterbaug-h's Ch. PL & Pr. Authority of attorneys, etc. — The mere appearance of an attorney is generally deemed sufficient for the opposite part}'-, and for the court, who will look no further, and will proceed as if he had sufficient authority, and leave any party who may be injured to his action against the attorney, unless there ap- pears to be fraud or collusion in the case.' The public office which he bears, the oath under which he acts, and, it may be added, the experience of the general integrity and fidelity of the profession, have operated to establish a usage, and make that usage law, that except in extreme cases, the appearance of an attorney for a party will in general bind him," The case is strongly analogous to that of sheriffs and other returning officers. Their returns are taken to be true, and are not per- mitted to be contradicted; and if false, the remedy is by an action against them. Kent, C. J., says, that " by licensing attorneys, the courts recommend them to the public confi- dence; and if the opposite attorney, in the business of a suit, must always, at his peril, look beyond the attorney to his au- thority, it would be productive of great public inconvenience." ^ An attorney at law, when acting in good faith, and his client makes no objection to his management of the cause, has the power to waive or withdraw a defense and consent to judg- ment but not to fraudulently sell out his client's interests to the opposite party; and the courts will protect suitors from the treachery of their solicitors, as far as possible.* The authority of an attorney to appear in a case will always be presumed, until the contrary appears; ' but where the Tedrick v. Hiner, 61 111. 189; ^ Hart v, Waterhouse, 1 Mass. 4:S?<; Hughes V.Dougherty, 62m. ApiiAU. 8 Mass. 113; Foster v. Wiley, 27 I Smith V. Steivart, 6 Johns. 34; Mich. 244; Moulton v. Bowker, 115 Denton V . Noyes, 6 Johns. 296; Os- Mass. 36. born V. Bank, 9 Wheat. 738; Wil- ^Denton v. Noyes, 6 Johns. 302; liams V. Butler, 35 111. 544; Rust v. Rice v. Wilkins, 21 Maine 558; Ryan Frothingham, Breese 331; Cham- v. Doyle, 31 Iowa 53; Cameron v. bers V. Hodges, 23 Tex. 104; Lawson Stratton, 14 Bradw. 270. V. Bettison, 12 Ark. 401; Sampsonv. *C. B. Soc. v. Hass, 111 111. 176. Ohleyer, 22 Cal. 200; Moulton v. ^Ransom \. Jones, 1 Scam. 291; Bowker, 115 Mass. 36. ATTOKNEYS AND COUNSELOKS AT LAW. 765 court is satislied that an attorney has commenced a suit in the name of another, without authority, the suit will be dismissed.' Whatever may be the true rule in regard to the question as to what extent, for what purposes and under what circumstances a party for whom an appearance to a suit has been entered can deny the authorit}^ of the attorney, and ask relief from the court, the claim to do so is viewed with great disfavor by courts, whenever innocent third parties have acquired rights under the judgment or decree.'^ Where an attorney enters the appearance of a defendant without authority a judgment or decree based upon such act is void, and may be collaterally attacked.^ If it is desired to raise the question of the authority of an attorney to appear and plead for such parties as he claims to represent, it may be done by affidavit; and the court will hear counter affidavits upon the question.* The court will order an attorney to show his authority to sue, when a due regard to the rights of the de- fendant seems to demand it.^ But the reasons must be strong. If a respectable and responsible attorney appears for a party, the court will not ordinarily inquire into the fact whether he was actually authorized to appear or not.^ The rule that the authority of an attorney will be presumed, and his acts binding on the person for whom he appears, has not been applied to acts and transactions out of court.' An attorney who is employed to defend a suit is not authorized to confess a judgment against his client without his consent.* But where he has been employed in anticipation of a suit he may waive service on his client.^ In an action upon a record of a foreign judgment, which Lawrence V. Jarvis, ^2 111. dOA; Reed *Reed v. Curry, 35 111. 536; see V. Curry, 35 111. 536; Williams v. Harris v. Galbraith, 43 111. 309. Butler, 35 111. 544; Harris v. Gal- ^ Frye v. County. 14 111. 132. braith. 43 111. 309; see Sanderson v. « Republic v. De Arangois, 5 Duer LaSaZZe, 117111. 171. (N. Y.) 643; Miller v. Lane, 13 ' Frye v. County, 14 111. 132; see Bradw. 648. Williams v. Butler, 35111. 544; Fence ' Hart v. Waterhouse, 1 Mass. 433; Co. V. Wernsing, 19 Bradw. 42. Brooks v. Kerns, 86 111. 547. ^Kenyon v. Shreck, 52 111. 382. « People v.Lamborn, 1 Scam. 124. ^Griggs v. Gear, 3 Giltn. 2; ^ Hefferman v. Burt, 7 Clarke Bruschke v. Verein, 145 111. 433. (Iowa) 320. 766 ATTORNEYS AND COUNSELORS AT LAW. shows that there was no service of process, but that the ap- pearance of the defendant was entered by an attorney, it may be shown that the attorney who entered the appearance did so without authority, and thereby a recovery upon the judgment may be defeated/ An attorney employed to collect a debt can only obtain judgment, have execution issued, and receive and receipt for the proceeds. He can not compromise the debt, give day of payment, or receive a less amount, or anything but money in satisfaction.^ He has no power to sell his client's judgment; and an attempted sale will only bind the client when the act is ratified or adopted by the receipt of money, or otherwise.* Nor has an attorney a right to give up securities of his client, without actual payment, or special authority.* In ordinary cases, where an attorney is employed to take the care and management of a suit, he has a right to consider his employment as continuing to the end of the litigation in that court, unless discharged by his client.^ But the power of an attorney ceases upon the termination of the relation, after which any and all acts of an attorney, whether in the matter of receiving the benefits of a judgment or decree, or releasing errors of record, or otherwise, are unwarranted, and do not bind the client." The mere employment of an attorney to at- tend to a cause in an inferior court, does not authorize his appearance in the same cause on appeal to a higher tribunal.^ Authority of, can not be delegated. — The authority of ' Thompson v. Emmert, 15 111.415; 73 111. 415; Isaacs v. Ziigsmith, 103 see Bimeler V. Daivson, 4: Scam. ^iSd; Pa. St. 77; Ins. Co. v, Buchanan, Welch V. Sykes, 3 Gilm. 197; Whit- 100 Ind. 63. taker v. Murray, 15 111. 293. « Rowland v. Slate, 58 Penn. St. "■Nolan V. Jackson, 16 111. 272; \96; Vickery v. 3IcClellan, dl 111.311 Stokely v. Robinson, 34 Penn. 315; Locheiimeyer v. Fogarty, 112 111. 512 State V. Hawkins, 28 Mo. 366; 3Iil- * Terhune v. Colton, 2 Stockt. (N lew. Lane, 13 Bradw. 648; Wether- J.) 21; Jeter v. Haviland, 24 Geo bee V. Fitch. 117 111. 67; Stocking v. 252; C. B. Soc. v. Haas, 111 111. 176, Knight,l%Bvai(l\v.^Ol;seeTruinhull ^ Langdon v. Tower, 30 Vt. 285 V. Nicholson, 27 111. U9; Jeter y. Phillips v. Edsall, 121111. 535. Haviland. 24 Geo. 252; Jonesv.Wol- ^Ruckmanv. Ahvood, 4A 111. 183 cott, 2 Allen 247; Chapman v. see Ruckman v. Alwood, 40 111. 128 Cowles, 41 Ala. 103; Ruckman v. Al- Cameron v. Stratton, 14 Bradw. 270, wood, 44 111. 183; Wadhams v. Gay, ' Covill v. Fhy, 24 lU. 37. ATTOENEYS AND COUNSELORS AT LAW. 767 an attorney is personal, and can not be delegated to an- other.' If a person engages the services of an association of law3^ers, he is entitled to the services of every one of them; and if one abandons the retainer with the assent of the others, express or implied, or they attempt to supply his place with another attorney (though of equal or superior qualifications,) it will be no performance of the contract.- It is personal, and can not be delegated to, or performed by, another.- So if attor- neys who are partners accept a retainer, the contract is joint, and continues to the termination of the suit; and neither can be released from the obligation or responsibility assumed, either by a dissolution of their partnership, or by any other act or agreement between themselves,^ and the client will be entitled to the services of all.* Retainer, etc. — It requires a retainer, or fee paid, to con- stitute the relation of attorney and client; ^ and an attorney can not recover for services rendered as such, unless he can show an employment or retainer."* It is not essential, how- ever, to the right of recovery for professional services, that there should be an express request; but if the services were rendered under such circumstances as will reasonably imply that they were performed with the assent and at the request of the client, a- recovery therefor may be had.^ Agreements. — All agreements made by an attorney with the opposite party, and entered of record, or made in writ- ing and filed with the papers in the cause, are binding on his client. As to agreements not in writing, there may be doubts how far the courts will enforce them, or whether the perform- ance must not be left to the honor of the attorney. As a general rule, courts refuse to enforce agreements made be- tween attorneys, where the same are not in writing, or en- ' Cornelius v. Wash, Breese 98, * Bank v. Miller, 47 111. App. 310. ^Morgan v. Roberts, 38 111. 65; ^ DeWolf v. Strader, 26 111. 225; Davis V. Peck, 54 Barb. 425. Davis v. Peck, 54 Barb. 425; Cavil- » Walker v. Goodrich, 16 111. 341; land v. Yale, 3 Cal. 108; see John- Smith V. Harvie, 31 111. 62; McGill ston v. Broim,, 51 111. App. 549. V. McGill, 2 Mete. (Ky.)258; Moshier «i2. R. Co. v. Lamed, 26 111. 218. V. Kitdidl, 87 111. 18. ^ Cooper v. Hamilton, 52 111. 120. 7GS ATTOKNEYS AND COUNSELORS AT LAW. tered of record.' They are, and should be, discouraged. In case of the death or change of the attorney who made them, his successor and the client would be without means of know- ing them. If clearly proved, however, the court will see that the opposite party does not suffer, and perhaps performance would be compelled; but there is so much danger of mistake and disagreement, and attorneys so frequently differ with re- spect to them, that it should be invariably required that all important agreements should be put in writing, or entered of record. Admissions. — Admissions made by attorneys, with a view to their being used as evidence, may be so used; ■' but casual admissions in the course of conversation, or not for that pur- pose, are not evidence against the client. An admission which is made for the purpose of a trial, is regarded as a stip- ulation of the party making it that the fact about which it is made exists, and he is estopped from denying it.' Termination of employment. — The relation of attorney and client is one of mutual trust, confidence and good will; and any conduct on the part of the attorney which must nec- cessarily put an end to these, justifies the client in terminating the relation by notice to the attorney.* DUTIES AND LIABILITIES. The duties of an attorney are care, skill and integrity. If he is not deficient in these requisites, he is not responsible for any error or mistake arising in the exercise of his profession;* but a deficiency in skill or care, by which a loss ensues to his client, renders an attorney liable.* He will be held liable for 1 Oliver V, Hart, 35 111. 55; Brook- Burnham v. Smith, 11 Wis. 258; heim v. Ins. Co., 38CaI. 633; Rogers Patterson v. Ely, 19 Cal. 28; Rogers V. Greenwood, 14 Minn. 333; but v. Greenwood, 14 Minn. 333. see Ry. Co. v. Hintz, 132 111.265; * Arrington v. Sneed, IS Texas 135. Thompson on Trials, S§ 193, 200. n Tidd's Pr. 225; Pitt v. Yalden, 2 Bank v. Sprigg, 11 Md. 389; 2 4 Burr. 2060; see People v. Ford, 54 StarkieEv. 136; Smith w. Dixon, 3 111.520. Mete. (Ky.) 438; Yost v. Devaidt, 9 ^ Hastings v. Halleck, 13 Cal. Iowa 60. 203; Swatinel v. Ellis, 1 Bing. 347; 3 Mason v. Park, 3 Scam. 532; ■ Goodman v. Walker, 30 Ala. 483; ATTOENETS AND COUNSELORS AT LAW, 769 atiy loss occasioned by a disobedience of the lawful instructions of his client.' If an attorney becomes the instrument for prosecuting and imprisoning a party against whom he knows his client has no just claim or cause of arrest, but is actuated by malicious mo- tives, he is liable to the injured party .^ Duty to court. — While an attorney at law owes his client the duty of fidelity, he also owes the duty of good faith and honorable dealing to the court before whom he practices. He is an officer of the court, and his high vocation is to correctly inform the court upon the law and the facts of the case, and to aid it in doing justice. He violates his oath of office when he resorts to deception or permits his client to do so. He is under no obligation to seek to obtain for his client that which is forbidden by the law.^ Ought not to be a witness for his client. — It is regarded as of very doubtful professional propriety for an attorney to be- come a witness for his client, without first entirely withdraw- ing from any further connection with the cause. An attorney occupying the attitude of both witness and attorney for his client, subjects his testimony to criticism, if not suspicion.* It is sometimes indispensable that an attorney, to prevent injustice, should give evidence for his client. It has therefore been held in numerous cases that the attorney in a cause is not, because such, disqualified from being a witness; ^ even though his fee depends on his success; ^ and though he expects a larger fee if he succeeds.' But the practice of an attorney Barter v. Morris, 18 Ohio St. 493 Kiramell v. Bitner, 63 Penn. 303 Stevens v. Walker, 55 111. 151 * Ross V. Demoss, 45 111. 447; see Morgan v. Roberts, 38 111. 65. 5 Cobbett V. Hudson, 23 L, J. Q. B. Hughes v.Ziegler, 69111. 38; Newman 11; Cobbett v. Hudson, Ell. & B. 11; V. Schueck, 58 111. App. 338. Chartiers v. McNamara, 73 Penn. ' Gilbert v. Williams, 8 Mass. 57; St. 278; Ball.v. Renfro, 3 Mete. (Ky.) Nave V. Baird, 12 Ind. 318; People 51; Robinson v. Dauchy, 3 Barb. 20. V, CoZe, 84 111. 337. '^Newman v, Bradley, 1 Dall. ^Burnap v. 3Iarsh, 13 111. 535; (Penn.) 841. Revitt V. Pettitt, 3 Mete. (Ky.) 314; ' Boulder v. Hebel, 17 S. & R. 33; Stockley v. Hor ridge, 34 Eng. C. L. Miles v. OHara, IS. & R. 32; Mc- 276; see Moir v. Hopkiiis, 16 111. Geliee v. Hansell, 13 Ala. 17; Slo- 313; Hardy v. Keeler, 56 111. 153. cum v. Newby, 1 Mui-ph. (N. C) 423. ^People V. Beattie, 137 111. 553. 49 770 ATTOENEYS AND COUNSELORS AT LAW. testifying or making affidavit for his client, is considered ob- jectionable,' and should be discountenanced as far as possible, by the courts and counsel.' In Little v. McKeon, 1 Sandf. 607, the court said: "As to the effect of this practice upon the character of the bar, we think the evil will work its own cure. Attorneys, as well as coun- selors, of standing and character, will never, except in ex- treme cases, present themselves before a jury as witnesses in their own causes on litigated questions, and in such cases only on some unforeseen necessity. Those gentlemen of the bar who habitually suffer themselves to be used as witnesses for their clients, soon become marked both by their associates and the courts, and forfeit in character more than Avill ever be compensated to them by success in such client's contro- versies." Acting in anotlier capacity. — A solicitor in a case can not act as a special master to execute the decree.' And, as a gen- eral rule, a receiver in a cause can not appoint, as his attorney, the attorney of either party.* And so a person who is adminis- trator of an estate can not act as an attorney in the prosecu- tion of claims against the same estate.* Can not act on opposite sides. — An attorney owes to his client fidelity, secrecy, diligence and skill; and he can not, therefore, serve professionally, both parties to the controversy, nor accept a reward from the other side.* So an attorney is never allowed to change sides in the same cause, though at dif- ferent trials.' But where an attorney, in the course of other business, had obtained a knowledge of matters connected with the suit in question, he will not generally be prevented from ^Sfratton v. Henderson, 26 111. *1 "Wait's Pr. 243; Herrick v. 68; Spencer v. Kinnard, 12 Tex. 180. Catley, 1 Daly (N. Y.) 512; Herrick ^State V. Woodside, 9 Ired. (N. C.) v. Catley, 30 How. (Pa.) 208; Sher- 496; Frearv. Drinker, 8 Penn. St. wood v. R. R. Co., 15 Barb. (N, Y.) 520. 650. 3 White V. Hoffaker, 27 111. 349. ' Valentine v. Stewart, 15 Cal. 387; * Branch v. Hai^rington, 4:9(Row.) Gaiddenv. State, 11 Ga. 47; Com- N. Y. 196; Warren v. Sprague, 4 inonw. v. Gibbs, 4 Gray (Mass.) 146; Edw. Ch. (N. Y.) 416. Price v. R. R. Co., 18 Ind. 137. ' Spi7iks V. Davis, 32 Miss. 152; see Bruce v. Dickey, 116 111. 527. ATTORNEYS AND COUNSELORS AT LAW. 771 acting against the party through whose business he obtained such knowledge, and counsel may act as such at the same time for both parties to a transaction; and the fact that a contract is drawn by and under the advice of one who, at the time, is counsel for one of the parties, when such fact is known to the other part}'-, does not, in the absence of evidence of fraud or unfairness, invalidate or affect the contract.' Liability to third persons. — One who suffers an injur}^ by an unauthorized appearance of an attorney for him, has a remedy by action against the attorney." So an attorney and his client are both liable for an execution illegally issued by the former.* An attorney may so act under his general employment to enforce a legal claim, as to render himself alone liable for a malicious prosecution or arrest.* He does not, however, incur any civil liability for ordering a levy on property, if he acts in good faith and on reasonable cause.* And he is not charo-e- able with a trespass of the constable who has charge of the execution.' Nor is he responsible for conveying to an officer his client's directions for seizing goods on an execution.'' Dealings between attorney and client. — The highest de- gree of good faith is required from an attorney, who, while the relation, and the confidence incident to it, exists, enters into bargains and dealings with his client.* The confidential nature of the relation enables the attorney to exercise a strono- influence over the actions of his client; puts it in his power to avail of his necessities, good nature, liberalit}^ and credulity; and hence the law not only watches over all the transactions ^ JosUn V. Cowes, 56 N. Y. 626; ^ Hunt v. Printup, 28 Ga. 297; see 1 Wait's Ac. and Def., 448. Wigg v. Simonton, 12 Rich (S. C.) ^ Smith V. Bowditch,! Pick. 138; 583. Coit V. Sheldon, 1 Tyler (Vt.) 304; ^ Se.atoiiv. Cordray, Wright (Ohio) Field V. Gibbs, Pet. (C. Ct.) 155. 102. ^Newberry V. Lee, 3 Hill (N. Y.) ''Ford v. Williains, 13 N. Y. 577. 523; Armstrong v. Dubois, 1 Abb. * Mechem on Agency, Sees. 877- (N. Y.) 8; Armstrong v." Dubois, 4 879; Weeks on Att., Sec. 268; Mor- Keyes (N. Y.) 291; Foster v. Wiley, rison v. Smith, 130 111. 304; Eolfe v. 27 Mich. 244; Foster v. Wiley, 15 Rich, 149 III. 436; Ross v. Payson, Am. Rep. 185. 160 111. 349. * Bitmap V. Marsh, 13 111. 535; Hardy v. Keder, 56 lU. 152. 772 ATTOKNEYS AND COUNSELORS AT LAW. of parties in this predicament, but often interposes to declare void, transactions which, between other parties, would be held unobjectionable. So strict is the rule on this subject, that dealings between an attorney and his client are held, as against the attorney, to be lyriina facie fraudulent, and the burden rests upon the attorney to show fairness, adequacy and equity.' But the law does not prohibit an attorney from purchasing Droperty from his client when the transaction is fair and honest, and in no manner tainted with fraud, undue influence or corruption.^ Assigned to defend prisoners. — Paragraph 482 of the crim- inal code provides that " Ever}'- person charged with crime shall be allowed counsel, and u'hen he shall state upon oath that he is unable to procure counsel, the court shall assign him competent counsel, who shall conduct his defense. In all cases counsel shall have access to persons confined, and shall have the right to see and consult such persons in private."^ Courts, at common law, had the power, and it was their duty, to assign counsel to defend persons charged with crime, who were unable to employ counsel, and such has always been the practice in this state, and such power in the courts has never been questioned.* The law confers on licensed attorneys rights and privileges, and with them imposes duties and obligations, which must be reciprocally enjoyed and performed. Counsel, when so as- signed, but performs an official duty, for which no compensa- tion is provided.^ > Weeks on Att., Sec. 268; Aticood (Tenn.) 30; Phillips v. Overton, 4 V. Mansfield, 59 111. 496; Bank v. Hayw. (Tenn.) 291; Mason y. Ring, Keeler, 103 111. 425; Elmore v. John- 3 Abb. C. A. (N. Y.) 210; Roby v. son, 143 111. 513; Ross v. Payson, Colehour, 135 111. 300; Rolfe v. Rich, 160 111. 349, 149 111. 436; Sutherland v. Reeve, 41 2 Bank v. Keeler, 109 111. 385; At- 111. App. 295; Herr v. Payson, 157 wood V. Mansfield, 59 111. 496; Hess lU. 244. V. Voss, 52 111. 472; Bibb v. Smith, ^ 1 Starr & Curtis, 861; Eev. Stat. 1 Dana (Ky.) 583; Mills v. Mills, 26 (1895), 578; Eev. Stat. (1893), 536. Conn. 213; Starr v. Vanderheyden, * Johnson v. Wliiteside Co., 110 9 Johns. 253; Downing v. Major, 2 111. 22; Vise v. County, 19 111. 78. Dana (Ky.) 228; Payne v. Avery, 21 'Johnson v. Wliiteside Co., 110 Mich. 524; Rose v. Mynatt, 7 Yerg. 111. 25; Vise v. County, 19 IlL 78; ATTORNEYS i-ND COUNSELORS AT LAW. 773 EIGHTS AND PRIVILEGES. Privileged comniiinicatious. — Communications made by a client to bis attorney, witb a view to obtaining professional ad- vice or assistance, are privileged; and courts will not require or permit tbem to be divulged by tbe attorney, without the consent of his client, whose privilege it is.' Xo one can be compelled to disclose to the court any communication between himself and his legal adviser, which his legal adviser could not disclose without his permission.'* But if he becomes a witness he becomes liable to full cross-examination.^ A statement made to an attorney is not privileged unless made with the object of obtaining professional advice.* An attorney who is merely employed to draw a deed or morto;age, without giving any legal advice in regard thereto, can not de- cline to testify to statements made by his employer, on the ground that they are privileged communications.^ An attorney who has in his possession receipts which his client could be compelled to produce or disclose, can also be compelled to produce them, or testify as to their contents.^ An attorney's clerk is also privileged as to any communications between the attorney and his client, to the same extent that the attorney may be. A communication made by a client to a person whom he supposed to be an attorney, and whom he employed as such, see County v. Waller, 90 Penn. St. Greenl. on Ev., 240: Hemimcay v. 99; Eowe v, Yaab Co., 17 Cal. 61; Smith, 2SYt.'1Q\ ; Beliler \. Rehyer, People V. Supervisors, 28 How. (N. 43 Ind. 112; State v. White, 19 Kan- Y.) 22; Wright y. State, 3 Heisk. sas 445; 5tfe?2 A; v. PeopZe, 20 111. App. (Tenn.) 256; Elam v. Johnson, 48 111. Geo. 348. ^Com. v. Mullen, 97 Mass. 545; ' 1 Greenl. Ev., Sec. 237; Daniel v. Inhab. v. Henshaw, 101 Mass. 200. Daniel, 39 Penn. St. 191; Fossler v. * Marsh v. Hoice, 36 Barb. (N. Y.) Schriber, 38 111. 172; Hatton v. 649; 24 Ark. 346; 26 Tex. 273. Robinson, 14 Pick. 420; People '= De Wolf v. Strader, 2Q 111.225; V. Barker, 56 111. 299; Thorp v. Woodruff v. Hurson, 32 Barb. 575. Goewey, 85 111. 611; Scjtt v. Harris, ^ Andreivs v. R. R. Co., 14 Ind. 118 111. 447; see Lynn v. Lyerle, 113 169; Borum v. Fonts, 15 Ind. 50; Ex 111. 128; Tyler V. Tyler, 126 111. 525; parte Maulsby,13Ud. G25; Peoplev. Sivaim v. Humphreys, 42 111. App. Sheriff, 29 Barb. 622; see Gray v. 370; City v. Falver, 27 111. App. 604. Fox, 43 Mo. 570. ''Wharton on Ev., Sec. 583; 774 ATTORNEYS AND COUNSELORS AT LAW. but who, although acting as an attorne}'', was not in fact ad- mitted, are not privileged.' While an attorney may not dis- close the confidential communications of his client, he may testify to facts he learns or knows from other sources than from the relation of attorney and client.'' j^ees. — An attorney can not recover for services rendered as such unless he can show an employment or retainer;^ and it requires a retainer, or fee paid, to constitute the relation of attorney and client.* Agreements for contingent fees to at- torneys are not against law or public policy.* If an attorney is employed, for a stipulated fee, to prosecute a suit to a final judgment, and his client, during the progress of the cause, dismisses him without any fault on his part, he is entitled to payment for the services already rendered, if not to the stipulated fee.' An attorney can not recover for services which, through his own neglect, proved to be of no value to his client.'' A client can not, at his own option, by the employment of additional counsel, reduce the amount of the compensation or fee Avhich he had stipulated to pay to the original attorney.' I^ieii. — At common law, an attorney has a lien for his fees upon any papers of his client which may come into his hands,* and this is not confined to any particular case, but extends to his whole account.'" In Illinois an attorney has a general lien upon all papers, documents, etc., of his client placed in his hands in his professional character or in the course of his pro- fessional business." ^Sample v. Frost, 10 Iowa 266; Wood v. Anders, 5 Bush (Ky.) 601; Fos^erv.flaZi, 12 Pick. 89; AicLaug/i- Quint v. Mining Co., 4 Nev. 304; Zmv. Gilmore, 1 Bradvv. 563; Inhab. Myers v. Crockett, 14 Tex. 257. V. Henshaiv, 101 Mass. 200. ''Nixon v. Phel2)s, 29 Vt. 198. 2 Chillicothe v. Jameson, 48 III. ^ Randall v. Archer, 5 Florida 438. 281; Staley v. Dodge, 50 III. 43. ^Hughes v. Mayre, 3 T. R. 275; 3i2. R. Co. V. Lamed, 26 111. 218. Mitchell v. Oldfield, 4 T. R. 123; *DeWolf V. Strader, 26 111. 225; Tidd's Pr. 337. see Johnston y. Brown, 51 111. App. ^^ Stephens \. Blalock, 1 M. «fe S. 549. 535; Ward v. Craig, 87 N. Y. 551; 5 Newkirh v. Cone, 18 111. 449; see St. John v. Diefendorf, 12 Wend. 261; Fraatzv. Gairison, 83111. 60; Badger Smith v. Young, 62 111. 210; Walker V. Gallaher, 113 111. 662; People v. v. Sargant, 14 Vt. 247. iHitrp/iy, 119 111. 159. ^^ Sanders v. Seelye, 128 111. 631; ^ Jones V. Morgan, 39 Geo. 310; Dinswoor v. BressZer, 56 111. App. 207. ATTORNEYS AND COUNSELORS AT LAW. i7o It seems, however, that he has no charging or special lien upon the subject-matter of the suit,' but he may by agree- ment with his client acquire an equitable lien as against him in the judgment recovered, or the subject-matter of the litiga- tion and proceeds thereof, for his fees and disbursements in the case.^ Change of attorney. — An attorney can not withdraw his appearance from a cause, nor can a party litigant substitute another attorney without notice to the parties in interest, and the judgment of the court is required upon the subject in order that the rights of all parties may not be unduly preju- diced.' A party having appeared by one attorney can not make an application to the court by another, without having obtained an order for changing his attorneys. And till an order is obtained, the opposite party and his attorney are justified in considering the former attorney as being still employed, and are not bound to take notice of any proceedings in the name of another attorney.^ A plea filed by a new attorney without any order of the court for change of attorneys is irregular, and the complainant is not bound to accept such plea.' ' Sanders v. Seelye, 128 111. 631 Forsythe v. Beveridge, 53 111. 268 Humphrey v. Browning, 46 111. 476 LaFrambois v. Grow, 56 111. 197 ^ Stock Exchange v. McClaugkry, 50 III. App. 358. * Stock Exchange v. McClaughry, 50 111. App. 358; 1 Tidd'sPr. 93; Gin- Henchey v. City, 41 111. 136; Nichols ders v. Moore, 1 B. & C. 654; Cohen V. Pool, 89 III. 491; Bromwell v. v. Smith, 33 111. App. 344; U. S. v. Turner, 37 111. App. 561; Dinsmoor Curry, 6 How. (U. S.) 106. V. Bressler, 56 111. App. 207. * Stock Exchange v. McClaughry, •2 Smith V. Young, 62 111. 210; see 50 111. App. 358. Patton V. Wilson, 34 Pa. St. 299. CHAPTER XXXI. CHANGE OF VENUE IN CIVIL CAUSES. Causes. — The statute of Illinois provides that "a change of venue in any civil suit or proceeding in law or equity, in- cluding proceedings for the exercise of the right of eminent domain, may be had in any of the following cases : First. Where the judge is a party or interested in the suit, or his testimony is material to either of the parties to the suit, or he is related to, or shall have been counsel for either party in regard to the matter in controversy. In any such case a change may be awarded by the court in term time, with or without the application of either party. Second. Where either party shall fear that he will not re- ceive a fair trial in the court in which the suit or proceeding is pending, because the inhabitants of the county are or the judge is prejudiced against him, or the adverse party has an undue influence over the minds of the inhabitants. In any such case the venue shall not be changed except upon applica- tion, as hereinafter provided, or by consent of the parties." ' A change of venue in proceedings by information in the nature of a quo warranto^ and for mandainus against a county,' and in any suit where a county is a party, may be taken.* When the reasons for a change of venue cease to exist the necessity and the right to a change also cease.' " Neither party shall have more than one change of venue." ' 1 Rev. Stat. (1893) 1468; 2 Starr & ^People v. Shaw, 13 111. 582; Ens- Curtis 2448-9; Rev. Stat. (1895) 1570; minger v. People, 47 111. 384. see Pierson v. Finney, 37 111. 29; ^ il/cBane v. PeojiZe, 50 111. 503. Bruen v. Bruen. 43 III. 408; Coal Co. " County v. Hall, 53 111. 440. V. Merrick, 79 111. 112; Ins. Co. v. ''Myers v. Walker, 31 111. 353. Tolman, 80 111. 106; Matter of Will « 2 Starr & Curtis 2452; Rev. Stat, u/ W. F. Storey. 20 Bradw. 183; (1893) 1469; Rev. Stat. (1895) 1571. Cassem v. Olson, 45 111. App. 38. (776) CHANGE OF VENUE IN CIVIL CAUSES. 777 Notice. — A party desiring a change of venue must give notice of his intention at the earliest period. If the cause of the change is known in vacation, notice should be given, and the application made to the judge at chambers. The require- ment of the statute as to notice is positive.' The notice to be given to the opposite party, or his attor- ney, may be in the following form : No. 330. Form of Notice. In the Court. CD.) ats. y Assumpsit. A. B. ) To the above named A. B. , plaintiff. Take notice that on, etc., or as soon thereafter as counsel can be heard, the defendant will make an application to the (judge of the) said court (at, etc.), for a change of venue in this cause, on account of {here state the ground of the application:) and jou can appear and resist such application if you see fit so to do. {Date.) Att'ij for Deft. The petition. — The statute of 1874 requires that "Every application for a change of venue shall be by peti- tion, setting forth the cause of the application and praying the change of venue; which petition shall be verified by the affidavit of the applicant." " If the cause for the change is the prejudice of the inhabit- ants of the county, or the undue influence of the adverse party over their minds, the petition shall set forth the facts upon which the petitioner founds his belief, and must be sup- ported by the affidavits of at least two other reputable per- sons, resident of the county. The adverse party may contro- vert the petition by counter affidavits, and the judge may grant or deny the petition, as shall appear to be accordino- to the right of the case." ^ ' Rev. Stat. (1895), 1571: see Bry- Co. v. Eddy, 72 111. 138; McCann son V. Craivford, 68 III. 362; Graves v. People, 88 111. 103; 3Iiller v. V. Shoefelt, 60 111. 462; M >ore v. Pence, 132 111. 149. Ellfnvorth, 51 111. 308; Marble v. ^ 2 Starr & Curtis, 2450; Rev. Stat. Bonhotel,d5m. 240; Kelly V. Doims, (1893) 1463; Rev. Stat. (18)3) 1571; 29 111. 74; Utleyy. Burns, 70 111. 162; see Hall v. Barnes. 82 111. 228; Git- By. Co. V. Maxfield, 72 111. 95; Ry. chell v. People, 45 111. App. 116. 778 CHANGE OF VENUE IN CIVIL CAUSES. No. SSI. Form of petition on account of the prejudice of a judge. (Title of court, etc., as in No. 3S0.) The petitioner, C. D., defendant in this cause, respectfully shows to the (judge of the) said court that he, the petitioner, fears that he will not receive a fair trial in the said court, on account that the judge thereof is prejudiced against him, the petitioner, so that he can not expect a fair trial in the said court, and that a knowledge of such prejudice did not come to the petitioner until, etc. He therefore prays a change of venue in this cause, pursuant to the statute in such case made and provided. C. D. {Title of court, etc., as in No. 380, ante.) C. D. , defendant in this cause, makes oath and says, that the foregoing petition is true in substance and in fact. C. D. Subscribed and sworn to, etc. No. 382. Form of petition on account of prejudice of inhabitants, etc. {Title of court, etc., as in No. 380.) The petitioner, C. D. , defendant in this cause, respectfully shows to the (judge of the) said court that he, the petitioner, fears that he will not receive a fair trial in the said court, on account that the inhabitants of the said county of are prejudiced against the petitioner {or that A. B., plaint- iff in this cause, has an undue influence over the minds of the inhabitants of said county of ) so that the petitioner can not expect a fair trial in the said court; and that he, the petitioner, did not ascertain the existence of such prejudice {or influence) until within the last days; and that he, the petitioner, founds his belief upon the following facts, etc. {Here set forth the facts upon which the petitioner founds his belief.) The petitioner therefore prays a change of venue in this cause, pursuant to the statute in such cases made and provided. C. D. {Add affidavit as in last precedent, also affidavit of two residents.) When application may be made. — " The application may- be made to the court in which the cause is pending in term time, or to the judge thereof in vacation; reasonable notice thereof having been given to the adverse party or his attorney." " No application for a change of venue after the first term shall be allowed, unless the party applying shall have given to the opposite party ten days' previous notice of his inten- tion to make such application, except where the causes have arisen or come to the knowledge of the applicant within less than ten days before the making of the application." " No change of venue shall be granted after the first term of the court at which the party applying might have been heard, unless he shall show that the causes for which the CHANGE OF VENUE IN CIVIL CAUSES. 779 change is asked has arisen or come to his knowledge since the term at which the application might have been made." ' By whom application must be made. — An application for a change of venue must be made by a party to the record.* But when a corporation applies, any recognized officer thereof may make the requisite affidavit/ By part of plaintiffs or defendants. — " When there are two or more plaintiffs or defendants, a change of venue shall not be granted unless the application is made by or with the consent of all the parties, plaintiff or defendant, as the case may be; providecl^ that in proceedings for the condemnation of property, when the application is by or against all the owners of an}'- parcel of property to be condemned, a change of venue may be made of so much of the case as affects them, if it" can be done without prejudice to the other defendants or plaintiffs in such proceeding." ' Where a part of the defend- ants have let judgment go by default they need not join in the application." When a part of the defendants who were served with process obtained a change of venue, other defend- ants afterwards served were held not bound by such order.® Order in vacation. — "When a change of venue is granted in vacation, the judge granting it shall immediately transmit the petition and affidavits, and his order directing the change of venue, to the clerk of the court in w^hich the cause is pend- ing, who shall file the same in his office, and make an entry of such order on the records of the court." Terms and conditions. — " The order for a change of venue may be made subject to such equitable terms and conditions as safety to the rights of the parties may seem to require, and the judge in his discretion may prescribe." '2 Starr & Curtis, 2451-2; Rev. » Croiuellv. Maughs, 2 Gilm. 419. Stat. (1895), 1571; Rev. Stat. (1893), ^ Ins. Co. v. Mehlman, iS III. 313. 1469; see i^eeresv.iJeeves, 59111. 203; < 2 Starr & Curtis, 2452; Rev. Ry. Co. v. Eddy, 72111. 139; see Bry- Stat. (1893), 1469; Rev. Stat. (1895), son V. Crmcford, G8 III. SQ2; Ry. Co. 1571; see Schmidt v. Mitchell, 84 v. Mitchell, 74 111. 394; Hudson v. 111. 195. Hanson, 75 111. 198; Richards v. * iZ^i« v. 4«en, 13 III. 592; Wight Green, 78111.525; Harding v. Toivn, v. Meredith, 4 Scam. 360; see Hili 83 111. 501; White v. Murtland, 71 v. Gruell, 42 111. App. 411. 111. 250; Gager v. Edwards, 26 111. « Albin v. Talbott, 46 111. 424. App. 487. 780 CHANGE OF VENUE IN CIVIL CAUSES. Costs of the change. — " The expenses attending a change of venue shall be taxed by the clerk of the court from which the case is certified, according to the rate established by law for like services, and shall be paid by the petitioner, and not taken as a part of the costs in the suit." When to he paid. — "The order shall be void unless the party obtaining a change of venue shall, within fifteen days, or such shorter time as the court or judge may prescribe, pay to the clerk the expenses attending the change." " Where the venue is changed without the application of either party, the costs of such change shall abide the event of the suit." ' Transcript papers, etc. — " In all cases of changes of venue the clerk of the court from which the change is granted shall immediately make out a full transcript of the record and pro- ceedings in the case,*and of the petition, affidavits and order for the change of venue, and transmit the same, together with all the papers filed in the case to the proper court; provided^ that when the venue is changed, on behalf of a part of the defendants to a condemnation proceeding, it shall not be nec- essary to transmit the original papers in the case, but it shall be sufficient to transmit certified copies of so much thereof as pertains to the case so changed. Such transcript and papers or copies may be transmitted by mail, or in such other way as the court or judge may direct.^ All objections to the transcript should be made at the earliest period,^ and all exceptions will be waived if parties pro- ceed to trial.* To what court. — " When a change of venue is granted it may be to some other court of record of competent jurisdiction in the same county, or in some other convenient county, to which there is no valid objection; provided^ that when the action is pending in either the circuit or superior court of Cook ' 2 Starr & Curtis, 2453; Rev. Stat. ^ Granger v. Warrington, 3 Gilm. (1893) 1469; Rev. Stat. (1895) 1571-2; 299; Watts v. Stoltz, 28 III. App. see English v. Faidds, 58 111. 266. 541. 2/6.; see Yates v. People, 38 111. *Hittv. Allen, 13 111. 592; Tucker 527; see Wright v. Kirk, 4 Scam. 339; v. Peoyle, 122 111. 583. English v. Faulds, 58 111. 266; Hea- cock V. Hosmer, 109 111. 245. CHANGE OF VENUE IN CIVIL CAUSES. 7S1 count}^, and the only causes for a change of venue apply to one or more but not all of the judges of such court, the case may be tried before some one of the judges of such court to whom the causes do not apply." * The question as to what is a " convenient county," within the meaning of the statute, is to be determined by the pre- siding judge in the exercise of his discretion.^ The case may be sent from the circuit to the county court.^ Docketing cause. — " The clerk of the court to which the change of venue is granted shall file the transcript and papers transmitted to him, and docket the cause, and such cause shall be proceeded in and determined in all things, as well before as after judgment, as if it had originated in such court." * Irregularities waived. — "All questions concerning the regularity of the proceedings in a change of venue, and the right of the court to which the change is made to try the cause and execute the judgment, shall be considered as waived after trial and verdict." ^ Where a change of venue is improperly granted, the proper practice for the party complaining is to move to remand the cause to the county from which it was sent, and if his motion is overruled take an exception and embody the motion and ruling of the court in a bill of exceptions.* Criminal cases. — For proceedings for a change of venue in criminal cases, see Rev. Stat. 1895, p. 1572, and 2 Starr & Curtis' An. Stat. 21:5'1-S; also cases cited below.' '3 Starr & Curtis, 2454-5; Rev. ^Johnson v. Von Kettler, 66 111. Stat (1893), 1469; Rev. Stat. (1895), 63. 1571; see I-OMJre^/v. Cosier, 91111. 182; '' Perteet v. People, 65 111. 230; R. R. Co. V. Perkins, 125 111. 127. Rafferty v. People, 66 111. 118; Bar- ^Stringam v, Parker, 159 111. 304. roivs v. Peojile, 11 111. 121; Little v. ■^McOrath v. Miller, 61 111. App. Allington, 93 111. 253; Gray v. Peo- 497; see Mix v. People, 122 111. 641. pie, 26 111. 344; Smith v. People, 36 4 Rev. Stat. (1895), 1572; Ins. Co. 111. 290; McBane v. People, 50 111. V. Nelson, 75 111. 548. 503; People v. McRoherts, 100 111. 5Jb.; Gardner V. PeojaZe, 3 Scam. 458; Price v. People, 131 111, 223; 8d; Brennan v. People, 15 111. 511; Langford v. People, 134 111. 444; Johnson v. Von Kettler, 66 111. 63; Hicham y. PeopZe, 137 111. 75; Cant- Perteet v. People, 70 111. 171; Flagg uell v. People, 138 111. 602; Jamison V. Roberts, 67 111. 485; Noyes v. v. PeojJle, 145 111. 357. Zerns, 94 111.521. 782 CHANGE OF VENUE IN CIVIL CAUSES. To what judse.— When a change of venue is granted on account of the alleged prejudice of the presiding judge, it is proper practice to change the venue to another judge of the same circuit.* ' R. R. Co. V. Perkins, 26 111. App. Myers v. Walker, 31 111. 353; Ins. 67; see Curran v. Beach, 20 111. 259; Co. v. MeMman, 48 111. 313. CHAPTER XXXII. SUBMISSION TO JUDGE. The act of 1887, entitled " An act to enable parties to avoid delay in the administration of justice," provides " That any two or more persons or corporations may ap- pear in person or by attorney in any circuit court [or in the superior coui't of Coolc county), and submit to any judge thereof, orally, and without formal pleadings, any matter in con- troversy, having first entered into a written agreement [to he entered of record), and substantially in the following form, to wit : ' No. 383. Agreevient to submit controversies to a judge. " In the court of county. First. "We {here insert names) do hereby mutually agree to submit to Judge Qiere insert name), of said court, certain matters in controvei-sy be- tween us for his determination, without a jury, he to hear the same forth- with and to enter the judgment or decree of the court therein within (here insert number of days or ''forthwith ") days after such hearing is concluded. Second. That said judgment or decree shall contain a statement as to what matters in controversy were so submitted, and such statement thereof shall be conclusive. Third. That no record, except of this agreement and of such judgment or decree, shall be made as to the matters in controversy so submitted, or as to the proceedings had on the hearing thereof. Fourth. That such judgment or decree may be enforced in like manner as other judgments and decrees of such court. Fifth. That we each to the other hereby waive all right of appeal from such judgment or decree, and release all errors that may intervene in tlie hearing of the matter so submitted, and in the entering up of the judgment or decree therein, and agree that this release of errors may be pleaded in bar of any writ of error that may be sued out as to such judgment or decree. Witness our hands and seals, this day of , A. D. 18 — , [seal.] [SEAL.]" ' 3 Starr & Curtis' An. Stat. 1000; Rev. Stat. (1893) 1085; Rev. Stat. (1895) 1169. (783) 784 SUBMISSION TO JUDGE. " Such agreement shall be signed by the parties in person or by duly authorized attorney in fact, and when so executed shall be of binding force upon the parties thereto in all the courts of this state. " It shall be the duty of such judge to proceed and in a summary manner to hear and determine the matters so sub- mitted, and he shall enter a judgment or decree therein, within the time fixed in said agreement, which said judgment or decree shall be final and conclusive, and may be enforced in like manner as other judgments or decrees of such court, but no appeal shall be allowed therefrom," The provisions of section 1 of the statute requiring the agreement "to be entered of record," are directory only, and not jurisdictional.* All matters which, under our system, are cognizable either at law or in equity, are susceptible of submission to the judge of the court for determination under this statute.' ' Farwell v. Shirges, 58 111. App. * Ibid. 462. CHAPTER XXXIII. NEW TEIALS. The practice of granting new trials is said to have begun in England in 1652.' At first they could be obtained only with the greatest difficulty, but in modern practice they are liberally granted in furtherance of justice. Where, however, the proceedings in a cause have been regularly and fairly con- ducted, courts will very reluctantly disturb a verdict and grant a new trial.^ The principal grounds for setting aside a verdict and grant- ing a new trial, may be considered under the following heads : 1. Misl)eliavior of the party prevailing. — If a party is guilty of any improper conduct towards a witness, such as threatening or persuading him, or influencing him upon the stand, as by making signs how the witness shall answer, a new ti'ial will be granted; ' or if the prevailing party, his agent or counsel, surreptitiously hands to the jury any paper not pre- viously offered in evidence, baing material to the point in issue; * or if he or they directly approach the jury on the sub- ject of the trial; ^ or where indirect measures have been resorted to for the purpose of influencing the jury,° or tricks practiced,' ^Woodv. Gunston, Styles' Rep. C.R.25Q; Watson v. Walker,dFo8ter 462; Williams v. Pratt, 7 Eng. C. L. 471. 293. * Blaine v. Chambers, 1 S. & R. 2 Wickersliam v. People, 1 Scam. 169; Ritchie v. Holbrook, 7 S. & R. 128; Hust V. Conn, 12 Ind. 257; 458; Claggage v. Swan, 4 Binn. 150; Powell V. Grimes, 8 Ind. 252; see Knight v. Freeport, 13 Mass. 218; Sullivan v. Dollins, 13 111. 85; Cal- Thompson y. Mallett, 2 Bay Qi; Cot- houn V. ONeal, 53 111. 354.' tie v. Cottle, 6 Greenl. 140; Martina. ^Amherst v. Hadley, 1 Pick. 38; il/breZocA;, 32 111. 485. Knight \. Freeport, \Z^li\ss. 21S. ^ Spencely v. DeWillott, 7 East * Lonsdale v. Brown, 4 Wash. C. 108. C. R. 148; Whitney v. Wliitman, 5 '11 Mod. 141; Walker v. Walker, Mass. 405; People v. Carnal, 1 Parker 11 Geo. 203. 50 (785) 786 NEW TRIALS. or disingenuous attempts made to suppress or stifle evidence, or thwart the proceedings, or obtain an unconscientious ad- vantage, or mislead the court and jury, a new trial will be awarded.' If a party in whose favor a verdict is rendered, or his at- torney, holds a conversation with any of the jurors, about the case, after it has been submitted and before the verdict is delivered, it will be a ground for a new trial.* 2. Mistakes and misconduct of tlie jury, etc. — Where the jurors determine their verdict by casting lots, a new trial will be granted;* but where each juror named a sum, and the whole, being added together, was divided by twelve, and the quotient was taken for the verdict, a new trial was refused.* Where a juror had formed and expressed a decided opinion upon the merits of the case, adverse to the defendant, and that fact was not known to the latter or his counsel, who exercised proper diligence by asking the juror, before he was sworn, whether he had formed and expressed an opinion — it was held that the defendant was entitled to a new trial.* If the jurors act in disregard of their oath,' drink spirit- uous liquors after being charged with the cause "" or resort to artilice to get rid of their confinement,' or commit other acts of that sort, it will avoid a verdict.' But misconduct on the ' Grab. New Trials 56; 4 Chit. Pr. ^ Vennum v, Hanvood, 1 Gilm. 59. 659; Sellers v. People, 3 Scam. 412; 2 Martin v. Morelock, 33 111. 485; see Jeffries v. Randall, 14 Mass. 205; see Bonnet v. Glattfeldt, 120 111. People v. Fries, 3 Dall. 515; People 166; Bevelot v. Lestrade, 153 111. 625. v. Plummer, 9 Cal. 298. s Voize V. Deleval, 1 Term 11; St. « Cro. Eliz. 778; Martin v. State, John V. Abbott, Barnes 441; Smith 25 Geo. 494; State v. Shelledy, 8 V. Cheetham, 3 Caines 57; Coram, v. Clark (Iowa) 477; see R. R. Co. v. Roby, 12 Pick. 496; Manix v. Malo- Swearengen, 47 111. 206. ney, 7 Clarke (Iowa) 81; Schanler v. ''People \. Douglass, 4 Cow. 26; Porter, 7 Clarke (Iowa) 482; GHn- Brant v. Foider, 7 Cow. 562; Com. nell V. Phillips, 1 Mass. 530; R. R. v. Roby, 12 Pick. 496; see Wilsonx. Co. V. Birkett, 62 III. 332. Abrahams, 1 Hill (N. Y.) 207. 4 Qrinnell v. Phillips, 1 Mass. 530; * Oliver v. Trustees, 5 Cow, 283. Brooke V. White, 1 Bos. &P. ; see ' Bumb. 35; St. John y. Abbott Reed v. Thompson, 88 111. 245; Cum- Barnes, 438; 1 Str. 462; 1 Bl. 1299; mins V. Crawford, 88 111. 312; Comb. 357; 4 Cbit. Pr. 48. Claggage v. Swan, 4 Binn. 150. NEW TRIALS. 7S7 part of the jurors is not, in all cases, a sufficient ground for setting aside a verdict; and although their misconduct may subject them to punishment, yet if there does not appear to have been any abuse, the verdict will not be disturbed.' If an officer, having charge of a jury, permits any member of it to drink spirituous liquors after he is sworn, but before the case is submitted, the officer may be punished for it, but the verdict will not be vitiated.'' The affidavits of jurors themselves will never be received, to prove any impropriety or misconduct on their part, relating to the trial or verdict.'' 3. Terdict against law ami evidence. — A new trial will be granted where the verdict of the jury is contrary to the law,* or manifestly against the evidence.^ But unless the ver- dict is clearly against the evidence, a new trial will not be granted;* especially where two juries have determined the ' Smith V. Thompson, 1 Cow. 221, note; see Adavis v. People, 47 111. 376; Jetvsbury v. Sperry, 85 111. 56. 2 Davis V. People, 19 111. 74; see Jieins V. People, 30 111. 256; Adams V. People, 47 111. "376. J Martin v. Ehrenfels, 24 111. 187; Bishop V. State, 9 Geo. 121; Boston V. Dana, 1 Gray 83; People v. Car- mal, 1 Parker C. R. 255; Folsom v. Braitm, 5 Foster 114; Burns v. Pain, 8 Texas 159; Clai'k v. Carter, 12 Geo. 500; U. S. v. Eeid, 12 How. (U. S.), 361; Dajiav. Tucker, A Johns. 487; Sergant v. Denniston, 5 Cow. 106; Voize v. Delcval, 1 Term 11; Grinnell v. PhiUips, 1 Mass. 542; Colemanv. State, 28 Geo. 78: Broiim V. State, 28 Geo. 199; Heins v. People, 30 111. 256; Allison v. People, 45 111. 37; but see Saicger v. Stephenson, Breese 24; Reed v. Thompson, 88 111. 245; NiccoUs v. Foster, 89 111. 386. * Cunningham v. Magoun, 18 Pick. 13; Tyler v. Gray, 9 Geo. 408; Drake v. Surget, 36 Miss. 458; Higgins v. Lee 16 111. 495; R. R. Co. v. Stvearengen. 47 III. 206; McDavid v. Blevins, 85 111. 238. * Tilley v. Spaidding, 44 111. 80; Bush V. Kindred, 5 Mass. 353; Wait V. McNeil, 7 Mass. 261; Curtis v. Jackson, 13 Mass. 507; Lucasv. Par- sons, 27 Geo. 593; Clements v. Lit- tle, 28 Geo. 491; Mississippi y . Cross, 20 Ark. 443; Young v, Wilson, 24 Miss. 694; Easterling v. Power, 12 Cal. 88; see City v. French, 55 111. 317; Coal Co. v. Lamprecht, 51 III. App. 649. "^ Bush V. Kindred, 5 Mass. 353; Coffin V. 7ns. Co., 15 Pick. 291; Howell V. 7ns. Co., 7 Ohio 276; Hen- dry V. Smith, 28 Geo. 308; Tallahas- see V. Macon, 8 Flor. 299; Holden v. Blo.vum,3o Miss. 381; Montgomery V. Cidton, 23 Texas 156: Weddle v. Stark, 10 Cal. 301; R. R. Co. v. Lee, 87 111. 454; Bell v. Gordon, 86 111. 501. 788 NEW TRIALS. same way;' or where a former jury could not agree;' or where the verdict is against the party having the burden of proof/ A new trial can only be granted in extraordinary cases, Avhere it is manifest that the jurors have mistaken or abused their trust;' or where the verdict is clearly against the weight of evidence/ It will not be granted because there is an entire absence of direct proof, and presumptions alone are relied on to establish the necessary'- facts/ Where the evidence is conflicting, and that produced by either party, considered alone, is sufficient to require a verdict in his favor, a new trial will not be granted on the ground that the verdict is not sustained by the evidence.' 4. Excessive or inadequate damages. — New trials may be granted for excessive or inadequate damages, where there are fixed rules and principles whence it may be known that there is an error in the verdict; as in actions on contracts, or for torts done to property, the value of which may be ascer- tained.' And whenever the court is satisfied that there is no reasonable proportion between the injury and the compensa- tion, it is its dut}'- to grant a new trial." The damages, how- ever, must be clearly excessive or inadequate, and such as everybody would cry out against, and not merely a sum larger ^Barrett v. Rogers, 7 Mass. 291; ''Stickler v. Otto, 86 111. 161; Cunningham V. Magoun, 18 Pick. 13; Hayes v. Houston, 86 111. 487: Ad- Ramsey V. Hamilton, 14 Miss. 358. dems v. Surer, 89 111. 482; Hoicitt v. "^ Baker v. Briggs, 8 Pick. 122; Estelle, 92 111. 218; Lewis v. Lewis, Rozar v. Burns, 13 Geo. 34. 92 111. 237; Sugar Co. v. Frazier, 26 3 Cunningham v. Magoun, 18 Pick. 111. App. 60. 13, ^Comm. v. Norfolk, 5 Mass. 435; " Baker v. Briggs, 8 Pick. 122; see Barnard v. Poor, 21 Pick. 378; Win- Webster v. Vickers, 2 Scam. 296: El- Chester v. Grosvenor, 44 111. 425; see dridge v. Huntington, 2 Scam. 538. Beveridge v. Welch, 7 Wis. 465. Dexter v. Cole, 6 Wis. 319; R. R. Co. ^Sam2)Son v. Smith, 15 Mass. 365; V. Swearengen, 47 111. 206. Stevenson v. Belnap, 6 Clark (Iowa) 5 Miller v. Baker, 20 Pick. 289; 97; Lehman v. City, 29 Barb. 234; Coffin y. Ins. Co., 15 Pick. 291; see i2t/. Co. v. JacAsow. 55 111. 492; Schwab V. Gingerick, 13 111. 697; Ry. Co. v. Hughes, 87 111. 94; Ry. White V. Clayes, 32 111. 325; R. R. Co. v. Payzant, 87111. 125; Hennies Co. V. Hutchins, 34 111. 108. v. Vogel, 87 111. 242; Kolb v. O'Brien, 6 Blanchard v. Coidburn, 16 Mass. 86 111. 210; Ry. Co. v. Dewin, 86 111. 345; Rogers v. King, 12 Geo. 229. 296. NEW TEIALS. 789 or smaller tlian the judge who presided at the trial would have given.' Where it is apparent the jury were actuated by passion and prejudice, or some motive other than a desire to do justice between the parties, the verdict, if excessive, will be set aside.'' Where there is a motion for a new trial on the ground of excessive damages, the plaintiff may, if he chooses, remit a portion of the verdict to obviate the objection.^ Where the verdict gives grossly inadequate damages to the plaintiff, a new trial may be granted the plaintiff upon the same principle that like relief is granted to a defendant when excessive damages are assessed by the jury.* 5. Admitting improper, or refusing proper eyidence. — If the court errs in admitting or refusing testimony, a new trial will be granted;' but if the improper testimony is not ob- jected to on the trial, and the whole evidence has been weighed by the jury, the court will not disturb the verdict." A verdict will not be set aside because evidence has been erroneously admitted, if such evidence is entirely unimportant,' nor when a new trial must result in the same verdict.^ Bat the admission of incompetent or irrelevant testimony, calcu- lated to make an impression on the minds of the jury, is a good 1 Pleydell v. Earle, 7 Term. 529; Hunt, 24 111. 597; Smith v. Gillett, Shnte V. Barrett, 7 Pick. 82; Jen- 50 111. 290. nings v. Loring, 5 Ind. 250; Clark v. ^ Harris y. Doe, 4 Blackf. 369; see WhitaJcer, 19 Conn. 319; Letton v. Oillham v. Bank, 2 Scam. 245. Young, 2 Mete. (Ky.) 558; Lucas v. ' Turnpike Co. v. Berry, ^ Ind. Parsons, 27 Geo. 593; Ry. Co. v. 286; State v. Laivson, 14 Ark. 114; Willianis,55l\\.18'r, City V. French, School v. Bragdon, 3 Foster 507; 55 111. 318; Elgin v. Renwick, 86 111. Bird v. State, 14 Geo. 43; Santillan 498. V. Moses, 1 Cal. 92; Litchfield v. "^Ry. Co. V. Barnett, 56 111. App. Londonderry, 39 N. H.247; Dralce v. 384. Surget, 36 Miss. 458; Dodge v. Gi^ee- ^Ry. Co. V. Wrixon, 150 111. 532, ley, 31 Me. 343; Mattingly v. Crow- and cases there cited. ley, 42 111. 300; see Roidey v. Hughes, 4 Sutherland on Dam. 815-816; 40 111. 316; J/c/v7c/ia ?i v. A/eBean, 45 Carr v. Miner, 42 111. 179; James v. 111. 228; City v. Patterson, 50 111. 61. Morey, 44 111. 352; Hackett v. Pratt, ^Marshall v. Morris, 16 Geo. 368; 52 111. App. 346. Cogan v. Frishy, 36 Miss. 178; Lynes ^Hunt V. Adams, 7 Mass. 518; -v. State, 'dQ'Miss. Qll; ?,ee Mattingly Mercer v. Sayre, 7 Johns. 306; San- v. Crowley, 42 111. 300; Machine Co. tillan V, Moses, 1 Cal. 92; Roundy v. v. Rosine, 87 111. 105. 790 NEW TRIALS. ground for a new trial; for it is impossible to say what influ- ence such testimony may have exerted,' The refusal to admit proper evidence is not a ground for setting aside the verdict, if the excepting party was not thereby injured. Where the deposition of a witness was erroneously rejected, and the party afterward procured the attendance and testimony of the witness at the trial, it was held that the re- jection of the deposition was not a ground for a new trial.'' 6. Error in the charge to the jury. — Error of the court in improperly charging or refusing to charge the jury, is a ground for a new trial. The following observations under this head refer to the statutory provisions and the adjudica- tions and practice in Illinois, respecting instructions to the jury. It is provided by the statute that the court, in charging the jury, shall instruct only as to the law of the case; and all in- structions must be in writing.^ It is usual for the counsel to prepare the instructions, and submit them to the judge; and the statute requires the judge to write on the margin of such as he approves, the word " given," and on the margin of such as he can not give the word " refused." After instructions are given, he may not qualify, modify, or in any manner ex- plain them, otherwise than in writing;* but he is not prohib- ited from giving, of his own accord, any written instructions applicable to the case,' Where the parties agree to a trial by the court, without a jury, " upon such trial either party may, within such time as the court may require, submit to the court written proposi- tions to be held as law in the decision of the case, upon which ^Dresser v. Ainsworth, 9 Barb. (1893), 1078; 2 Starr & Curtis 1815; 619; Boyle v. Coleman, 13 Barb. 42; Ray v. Wooters, 19 III. 82; see Bloomer Thurmond v. Trammall, 22 Texas \.Therrill,lll\l.48S;3Iayerv.Meod, 257. 83 111. 19; Reinbaek v. Crabtree, 77 2 Clough V. Bowman, 15 N. H. 504. III. 182; Ryan v. Donnelly, 71 111. 100 ; see Bidl v. Griswold, 19 111. 631. Packet Co. v. Binninger, 70 111. 571; 3 2 Starr & Curtis 1814; Rev. Stat, Clapp v. Martin, 33 lU. App. 439. (1893), 1077; Rev. Stat, (1895), 1161; ^ Broum v, Peojile, 4 Gilm. 439; R. R. R. Co. V. Hammer, 85 111. 526; R. Co. v. Jacobs, 20111 478; Stumps Abingdon v. Meadows, 28 111. App. v. Kelley, 22 111. 140; Ins. Co. v. Pul- 442. ver, 126 111. 332; Aneals v. People, iRev. Stat. (1895), 1162; Rev. Stat. 134 111. 416. NEW TRIALS. 791 the court shall write ' refused ' or ' held,' as he shall be of opinion is the law, or modify the same, to which either party may except as to other opinions of the court." ' See Pr'oj)ositions of Law, Chapter 37, j)ost. Instructions must be based on the evidence, and applicable to the case, and not contain mere abstract propositions.^ They should be. concise, briefly presenting the points of law on which the party relies, and not argumentative;' and they ought to be as few and simple as possible, as otherwise they are likely to mislead the jury." Instructions should present the law of the case, leaving the facts to the jury, and not assume facts to have been proved.^ If instructions given were calculated to mislead, and must have misled the jury, it is ground for a new trial, or a reversal of the judgment.® When two instructions are asked, both containing the same principle of law, the court may give the one and refuse the other.' iRev. Stat. (1893), 1076; Rev. Stat. (1895), 1160; 2 Starr & Curtis 1808; Kepperly v. Ramsden, 83 111. 354; McKinzie v. Remington, 79 111. 888. '^ See Humphreys v. Collier, 1 Scam. 47; Hamilton v. Hunt, 14 III. 472; Coughlin v. People, 18 111. 266; Riley v. Dickens, 19 111. 29; R. R. Co. V. George, 19 lU. 510; Hosley v. Brooks, 20 111. 115; County v. Buck, 27 111. 440; Harris v. 3Iiner, 28 111. 135; Pfund v. Zimmerman, 29 111, 289; Hessing v. McCloskey, 37111.341; R. R. Co. V. 3IcKee, 43 111. 119; Ken- nedy V. People, 44 111. 283: Harnit V. Thompson, 46 III. 460; Bullock v. Marrott, 49 111. 62; Chairman v. Caiorey, 50 111. 512; Collins v. Wa- ters, 54 111. 485; Wray v. R. R. Co., 86 111. 424. ' Merritt v. Merritt, 20 111. 65; see Cushman v. Cogswell, 86 111. 62; Ins. Co. V. Nelson, 75 111. 548. ■* Cemetery Ass'n v. Smith, 24 111. 480; Newkirk v. Cone, 18 lU. 449; see Higgins v. Lee, 16 111. 497; Ins. Co. V. Crawford, 89 lU, 62; Moshier v. Kitchell, 87 111. 18. * See Sherman v. Dutch, 16 111. 283; Wall v. Goodenough, 16 III. 415; Gehrv. Hagerman, 26 111. 438; Conk- loright v. People, 35 111. 204; Winne V. Hammond, 37 111. 99; Haivk v. Ridgivay, 33 111. 473; Sinclair v. Berndt, 87 111. 174. ^ Broivn v. Graham, 24 111. 628; see Gibson v. Webster, 44 111. 483; Bullock V. Marrott, 49 III. 62; Col- lins V. Waters, 54 111, 485; Orr v, Jason, 1 Bradw, 439; Sinnet v, Boicman, 151 lU, 156. ''May V. Tallman, 20 111. 443; Cur- tiss V. Martin, 20 111. 557; Montag V. Linn, 23 111. 551; College v. Mcin- tosh, 37 Miss. 671; see Hessing x. Mc- Closkey, 37 111.341; Bowen v. Schuler, 41 111. 192; Halty v. Market, 44 111. 225; McKichan v, McBean, 45 111.228; Underwood v. White, 45 111. 437; Ware v. Gilmore, 49 111. 278; Free- 792 NEW TRIALS. If substantial justice has been done, even though improper instructions have been given, or proper instructions re- fused, the verdict will not be set aside.' And although a verdict may be clearly wrong, yet if another instruction, on behalf of the same party, puts the case fairly before the jury, the finding will not be disturbed,' 7. Newly discovered evidence. — In order to support a motion for a new trial upon the ground of newly discovered evidence, it ought to be made to appear that the testimony has been discovered since the trial, or that no laches is imputa- ble to the party, and that the testimony is material. If the party knew of the existence of the testimony, and could not procure it in time, he ought to have applied for a postpone- ment of the trial.' A new trial will not in general be granted for the purpose of introducing newly discovered evidence, merely cumulative in its character, and not conclusive,* or which would onlv be man v. Tinsley, 50 111. 497: Calhoun V. O'Neal, 53 111. 354; Franks v. Welch, 89 111. 38; Scott v. Delany, 87 111. 146; Keeler v. Stuppe, 86 111. 309; Holcomb v. Peojjle, 79 111. 409; Chicago v. Hessing, 83 111. 204; Ins. Co. V. Jackson, 83 111. 303. ' Neivkirk v. Cone, 18 111, 449; Dishon v. Schorr, 19 111. 59; Elam V. Badger, 23 111. 498; Schwarz v. Schivarz. 26 111. 81; Warren v. Dick- son, 27 111. 115; McConner v. Kibbe, 33 111. 175; Curtis v. Sage. 3511122; Jns. Co. V. Frost. 37 111. 333; Daily V. Daily, 64 111. 329; Tuttls v. Rob- inson, 78 111. 332; Chicago v. Hess- ing, 83111. 204; Bromley \. Goodwin, 95 111. 118. 2 Warren v, Dickson, 27 111. 115; Elam V. Badger, 23 111, 498: R. R. Co. V. Sivearingen, 47 111. 206; see Brown v. Graham, 24 111, 628; Mfg. Co. V. Ballon, 71 111. 417; Wallace V. People, 159 111. 446. '■Mill Co. V. Gillen, 100 111. 52; R. R. Co. V. Sullivan, 21 111, App, 580; Classen v. Ciiddigan, 21 111, App. 591; see Crozier v. Cooper, 14 111. 139; Keenan v. People, 104 111. 385; Pipe Co. V. Johnson, 44 111. App. 224; Dyke v. DeYoung, 133 111. 82. * Morrison v, Stewart, 24 111. 24; Adams v. People, 47 111. 376; R. R. Co. V. Seitz, 53 111. 452; Harvey v. Collins, 89 111. 255; Abrahams v. Weller, 87 111. 179; Emory v. Addis, 71 111. 273; Fidler v. Little, 69 111, 229; Bell v. Gardner, 77 111. 319; Wright v, Goidd, 73 lU. 56; Cha7n- pion V. Ullmer, 70 111. 322; Dyer v. People, 84 111. 624; Elgin v. Renivick, 86 111. 498; Klein v. Peojjle, 113 111. 596: Laird v. Warren, 92 111. 204; Friedbergv. People, 102111. 160; Sah- lingerx. People, 102 111. 241; Monroe V. Snow, 131 111. 126; Plumb v. Camp- bell, 129 111. 101; City v. Merrill, 124 111. 522; O'Neil v. O'Neil, 123 III. 361; Petefishv. Watkins, 124 111. 384; Bums v. People, 126 111. 282; Ry. Co. V. Clough, 134 111. 586: Lang- don V. People, 133 111. 388; Spahn v. NEW TRIALS. ^93 in mitigation of the damages; ' nor for tlie purpose of impeach- ing the testimony given on the trial." But cases may arise that may require a relaxation of the latter rule to prevent a palpa- ble wrong,^ and if the new evidence goes to impeach the whole of the opposite party's case, by the imputation of fraud, a new trial will sometimes be granted — as where payment was sworn to upon the trial by two witnesses, who, there was strong reason to believe, had been tampered with/ Where the newly discovered evidence is not cumulative in regard to the particular point to which it relates, and its importance could not have been foreseen, and it strengthens the conviction that justice has not been done, a new trial may be granted/ A new trial may be awarded to enable a defendant to prove an alihl, but this will be done with great caution/ The affidavit in support of an application for a new trial on the ground of newly discovered evidence, must fully set forth such evidence,' and must show that it has been dis- covered since the trial; that it is material to the issue; that it is true; that it is not cumulative; that it does not go to impeach the character of a witness; and that it could not have been produced on the trial by the use of due diligence/ And the application should be supported by the affi lavit of the witness by whom it is proposed to prove the matters relied on, or some excuse should be shown for not producing such affidavit/ 8. Absence or mistakes of witnesses. — Anew trial will People, 1 87 111. 538; Lilly v. People, * Peterson v. Barry, A Blnn. 481; 148 111. 467. Bixby v. State, 15 Ark. 395. 1 Schlenker v. Risley, 3 Scam. 483. ^ Wilder v. Greenlee, 49 lU. 253; * Ricqiiet v. McKay, 2 Blackf. 465; Schireyer v. Anstett, 2 Bradvv. 335. Bland v. State, 2 Blackf. 608; Mcln- ^ Wilson v. People, 26 111. 434. tire V. Young, 6 Blackf. 498; Martin ''Perry v. Cochran, 1 Cal. 180. V. Ehrenfels, 24 111, 187; see O'Reily s Crazier v. Cooper, 14 111, 139 V. Fitzgerald, 40 111. 310; Besse v. see Ritchie v. West, 23 111. 385 Sawyer, 28 111. App. 248; Monroe v. Murphy v. McGrath, 79 111. 594 Snow, 131 111. 126. Chapman v. Chapman, 129 111. 386 3 Cochran v. Ammon, 16 111. 316; Booth v. Tabbernor, 23 111. App. Levinings v. State, 13 Geo. 513; 173. Ham V. Ham, dd Me. 2m; Gardner V. ^ Coivan v. Smith, 3.5 111. 416; Gardner, 2 Gray 434; Dyer v . People, Emory v. Addis, 71 111. 273; Alholtz 84 lU. 624. V. Durfee, 25 lU. App. 43. 79-i NEW TEIALS. sometimes be granted on account of the unavoidable absence of witnesses.' But it must be where the party was so situated that a continuance could not be had; for if a party, knowing his witnesses to be absent, chooses to risk a trial without their testimony, he ought to abide by the result; ^ and a new trial is never granted where the party has been guilty of neglect in not coming prepared with evidence which he knew to exist, and might have produced at the trial, or in not going into the examination of the evidence.' But if the attendance of a ma- terial witness on one side is prevented by the fraud or miscon- duct of the other pa,rty, a new trial will be granted.* A want of recollection of a fact by a party, which by due attention might have been remembered, is not a ground for granting a new trial.* So, it is said, if a witness has, from want of attention or from not being prepared, made a mistake in giving his evidence, a new trial will not be granted, because this would be extremely dangerous in its consequences.^ But in other cases this rule is denied, and it is laid down that if a party is nonsuited by the mistake of a witness in a material part of his testimony, a new trial ought to be granted.' A motion for a new trial on account of the absence of a material witness should be supported b}'- the affidavit of the witness, or some excuse should be shown for not producing it." If the testimony of witnesses, which occasioned a verdict, was founded upon, or derived credit from, particular circumstances, and those circumstances are afterwards clearly shown not to have existed, a new trial Avill be granted.' 9. Surprise.— Where a party has been vigilant in prepar- ' Bo7id V. Cutter, 7 Mass. 205; t Bond v. Cutter, 7 Mass. 205. Synith v. Chapel, 36 Minn. 180; ^ Steinbach v. Ins. Co., 2 Caine Smith V. State, 58 Iowa 487; Servis 129; Say. 27; O'Kelly v. Felker, 71 V. Cooper, 33 N. J. L. 68. Ga. 771. 2 Wits V. Polehampton, 2 Salk. i 2 Anst. 517; Say. 28; Hewlett v. 645. C/mrc/iZet/, STaunt. 277; Bicliardson ^3MH}er x. Sayre, 7 Johns. 306. v. Fvsher, 1 Bing. 145. 4 Wilkinson v. Payne, 2 Salk. 647; « Coioan v. Smith, 35 111. 416. Stra. 691; IWils. 98; Gistx. Mason, ^Lister v. Mundell, 1 Bos. & Pul. 1 T. R. 84; Vernon x. Hankey, 2 T. 427. R. 113; Casey v. King, 5 Geo. 75; Crafts V. Ins. Co., 36 N. H. 44. NEW TRIALS. T95 ing for trial, using every reasonable precaution, and is taken by surprise by the introduction of evidence which he could not reasonably have anticipated, and which he can overcome on another trial, such evidence contributing to an unfavorable verdict, he will be entitled to a new trial.' The surprise must be in an essential matter, and produce injury, and must not be the consequence of the party's own neglect or inattention; and all reasonable efforts must be made to overcome the evidence which works the surprise.^ Death of trial judge. — When the judge before whom the cause was tried dies after verdict and pending or before the determination of a motion for a new trial, the succeeding judge has power to decide the motion and grant or overrule the same, and enter such judgment or order as shall to justice ap- pertain.^ Improper remarks of counsel. — Eemarks of counsel in ar- guments to the jury are not, as a general rule, sufficient cause to set aside the verdict, unless they are of such an inflammatory nature as to prejudice the minds of the jury.* But where a jury is improperly influenced by remarks, allusions, or com- ments outside of the evidence, made by counsel during the progress or the argument of a cause on trial, the verdict should be set aside. Counsel should confine their discussion to the evidence in the particular case, and avoid intemperate and extravagant statements of matters not pertinent and which are calculated to arouse the prejudice and passion of jurors and lead to un- just results.* ' Holbrook v. Nichol, 36 111. 162. Hac'ett v. Smelsley, 11 III. 109; Parfcsv.iV/c/ioZs, 20111. App. 143. Chase v. Chicago, 20 Bradw. 278; «i2. R. Co. V. Voshurgh, Ad III 311; HaJIoran v. Halloran, 137 III. 100; Thovipson V. Anthony, 48 111. 468; Hollou-ay v. Johnson, 28 111. App. R. R. Co. V. Rose, 72 111. 183; Slade 463; Ry. Co. v, Barron, 57 111. App. V. McClure, 76 111. 319; I. & W. Co. 469; Ry. Co. v. Cullison,iO 111. App. V. Badger, 30 111. App. 320; W. C. 67. Co. V. Lapp, 35 111. App. 374. '-R- R- Co. v. May, 33 III. App. i People V, McCcmnell, 155 III 366; Freeman v. Dempsey, 41 111. 192, and cases there cited. App. 554; R. R. Co. v. Johnson, 116 *R. R. Co. V. Long, ^2 111. App. lU- 206; Ry. Co. v. Annis, 62 111. 670; Kennedy v. Sullivan, 136 111. App. 180. 94; see Henniesw. Vogel, 87 111. 244; 798 NEW TRIALS. "Where the language of counsel tends to excite passion and prejudice to a degree that will probably cloud the judgment, and therefore improperly affect the verdict, the court should properly check and rebuke him; and for a failure in this re- spect, a verdict in favor of the party whose counsel thus abuses his position should be set aside. But it must not be assumed that every misstatement of law or fact will have the effect of exciting improper prejudice in the jury.' A court hearing counsel, under pretense of arguing a case, making statements of matters to the jury not in evidence, or pertinent as illustrative of matters in evidence, should promptly stop him, explain to the jury the impropriety of his language, and take such measures as are appropriate to pre- vent a repetition of such misconduct, and for a failure of duty in this respect manifestly affecting the result, the judgmc^it should be reversed. In such case, the counsel whose client is unfavorably affected by such statements, should call the atten- tion of the court to them at the time, lest the court might not otherwise have noticed the same.^ Statutory provisions in Illinois. — "Whenever an entire verdict shall be given on several counts, the same shall not be set aside or reversed on the ground of any defective count, if one or more of the counts in the declaration be sufficient to sustain the verdict." " If either party may wish to except to the verdict, or for other causes to move for a new trial, or in arrest of judgment, he shall, before final judgment be entered, or during the term it is entered,^ by himself or counsel, file the points in writing, particularly specifying the grounds of such motion; and final judgment shall thereupon be stayed until such motion can be heard by the court." (The motion should be made before judg- ment is rendered, although by the statute the " points " may be filed at any time during the term.) Where a motion for a new trial is submitted without any statement in writing of the grounds therefor, without objec- 1 Henry v. R. R. Co., 121 III. 264; 619; Ry. Co. v. Wilson, 56 lU. App. Siebert v. People, 143 111. 571. 364. 2 R. R. Co. V. Fletcher, 128 111. ^ Campbell v. Conover, 26 111. 64. NEW TRIALS. 797 tions, such statement will be treated as waived, and the want of it can not be urged in the appellate court/ A verdict may not be set aside for irregularity only, unless cause is shown therefor during the term in which the verdict is rendered, Ko more than two new trials of a cause may be granted to the same party, on the same grounds,^ In all cases where a new trial is granted on account of im- proper instructions given, or improper evidence admitted, or because the verdict is against the weight of the evidence, " or for any other cause not the fault of the party applying," it is to be without costs, and as of right. Where a cause is tried b\'^ the court, without a jury, excep- tion may be taken to any decision of the court, " whether such exception relates to receiving improper, or rejecting proper testimony, or to the final judgment of the court upon the law and the evidence." ^ New trial by agreement. — The granting of a new trial is a judicial function, and although both parties may be dissatis- fied with the verdict and ask that it be set aside it is still for the court to determine whether or not a new trial shall be granted.* Mode of applying for a new trial. — Application for a new trial is made by motion, which should be in writing; and in Illinois, as above mentioned, written specifications of the grounds of the motion are required to be filed. Such motion, and the reason therefor, may be framed as follows : No. 384. Motion by defendant for new trial. In the Court. Term, 18—. C. D. ) ats. ^Assumpsit. A. B. ) And now cx)mes the defendant, by his attorney aforesaid, and »i2. R. Co. V. McNath, 91 111. 104; ^2 Starr & Curtis 1826; Rev. Stat. May V. May, 36 111. App. 77; Brom- (1893) 1079; Rev. Stat. (1895) 1163. ley V. People, 150 111. 297. * Sinedley v. By. Co., 45 111. App. 5 Rev. Stat. (1893) 1078; Rev. Stat. 426; City v. McEniry, 39 111. App. (1895) 1162; 2 Starr & Curtis 1818; 218; Aiken v. Bruen, 21 Ind. 137; see Silsbee v. Uicas, 53 111. 479: De Phelan v. Rtitz, 15 Cal. 90; Xichols Soto v. Buckles, 40 111. App. 86. v. Ey. Co., 10 Bosw. (N. Y.) 260. T98 NEW TRIALS. moves the court to set aside the verdict rendered, and to grant a new trial in this cause. And for grounds of his motion the defendant shows to the court the fol- lowing, to wit : 1. The court admitted, on the trial, improper evidence on the part of the plaintiff, that is to say {here specify such evidence.) 2. The court refused to admit proper evidence offered by the defendant, that is to say {here specify the evidence.) 3. The court improperly gave to the jury the second, fourth and fifth instructions asked by the plaintiff. 4. The court improperly refused to give the third, sixth and seventh in- structions offered by the defendant. 5. The verdict is contrary to the law and the evidence in the case. {Any other grounds may he specified in like manner.) G. H., Attorney for Defendant. A motion for a new trial should be made before a motion in arrest of judgment, as the latter is, strictly speaking, a waiver of the former.' Where the cause is tried by the court, without a jury, it is not necessary that a motion for a new trial should be made, in order that the evidence in the cause may be reviewed in the supreme court." Setting aside default and granting new trial.---The law intends that every one shall have a fair trial; and if a party, by misfortune or accident, without any fault on his part, has been unable to present his defense before a default is taken, the court will, on a proper case shown by affidavit, set aside the default, and grant a hearing on the merits, on such terms as the justice of the case may require. The terms usually im- posed in such case are the payment of costs.^ The statute of Illinois * provides that " the court may, in its discretion, before final judgment, set aside any default upon good and sufficient cause, upon affidavit, upon such terms and conditions as shall be deemed reasonable." An application to set aside a default is addressed to the I Hallv. Nees, 27 III. 411; see Parr ^ Yost v. Worls, 41 111. App. 556; V. Van Home, 4:0 m. 122; Board of Burhansv. Village, 138 111. 147. Ed. V. Hoag, 21 111. App. 588. -"Rev. Stat. (1893), 1076; Eev. Stat. ■^Mahoney v. Davis, 44 111. 288; (1895) 1160; 2 Starr & Curtis, 1805; Sands v. Wacaser, 149 111. 580; Harmison v. Clark, 1 Scam. 131; /Sands v. Kagy, 150 111. 109. Gillett v. Stone, 1 Scam. 539. NEW TRIALS. 799 discretion of the court, and the decision thereon can not be assigned for error,' unless there has been a gross abuse of such discretion.' The application must be made in apt time. It is too late to apply after a term of the court has intervened between the term at which the default was taken and that at which the motion is made, without showing a good reason for such delay.' The party making application to have a default set aside must support it by an affidavit, showing that the default w^as , taken without any fault or negligence on his part, and that there is merit in his defense, stating what such defense is, so that the court may see whether it is sufficient.* The appli- cation should be made at the term at w^hich the default is entered.* The fact that counsel, whom the defendant supposed he had engaged to make his defense, failed to do so, does not make it imperative on the court to set aside a default entered against hira, when there was time for him to have given his personal attention to his defense.' The motion will not be granted at a subsequent term for ' Garner v. Crenshmv, 1 Scam. sell. 89 111. 113; Souerhry v. Fisher, 143; Hannison v. Clark, 1 iScam. 62 111. 135. 131; Wallace v. Jerome, 1 Scam. ^ Ryder v. Thviss, 3 Scam. 4; see 5^4; Gillett v. Stone, 1 Scam. 539; Messervy v, Beckwith, 41 III. 452; Woodruff V. Tyler, 5 Gilm. 457; Hibbard v. Mueller, 86 111. 256; R. Mitchell V. Chicago. 40 111. 174; R. Co. v. Coss, 73 111. 394. Bowman v. Wood, 41 111. 203; see * Rich v. Hathau-ay, 18 111. 548; Moiry. Hopkins, 21 1)1. bol; Fergus Roberts x. Corby, 86 111. 182; Men- V. Mfg. Co., 71 III. 51; R. R. Co. v. dell v. Kimball, 85 lU. 582; Edwards Mitchell, 74 111. 394; Leather Co. v. v. McKay, 73 lU. 570; Mfg. Co. v. Woodley, 75 111. 435; Constantine v. Thomas, 17 111. App. 235; Slack v. WdlS'dm. 192; Hitchcock v.Herzer, Casey, 22 111. App. 412; Schultz v. 90 111. 543; Wheeler v. Alexander, 30 Meiselbar, 144 111. 26. 111. App. 502; Hall v. Bank, 133 III. s Messervy v. Beckwith, 41 111. 452; 234; Kingsland v. Koeppe, 137 111. Scales v. Lobar, 51111.232; see Cook 348: Michael v. Mace, 137 111. 494; v. Wood, 24 111. 295; Smith v. Wil- Wright v. Griffey, 146 111. 394. s(m, 26 111. 186. '^ Greenleaf V. Roe, 17 111. 474; see ^ Schroer v. Wessell, 89 III. 113; Bounnanv. Wood, 41 111. 203; Oetger TJiielman v. Burg, 73 111. 293; Men- V. Ross, 36 111. 335; Schroer v. Wes- dell v. Kimball, 85 III. 582; Schultz V. Meiselbar, 144 111. 26. 800 NEW TEIALS. any error of law apparent on the record.' The admission of counter affidavits upon a motion to set aside a default is im- proper.^ See Judgment hy Default, page 821, ^os^. ' Schmidt v. Thomas, 33 111. App. Scrafield v. Sheeler, 18 Bradw. 507; 109; KnoxY. Bank, 57 111. 330. Phillip v. Blagge, 3 Johns. 141; Han- ••' Mfg. Co. V. Thomas, 17 Bradw. ford v. McNair, 2 Wend. 286; City 235; Wendell v. Kimball, 85 111. 582; v. ^tfeoji, 43 111. App. 417. CHAPTER XXXIY. EVIDENCE. The mode of procuring the evidence that may be used in the trial of a cause, is a subject deserving attention in a work on practice. For this purpose, the various kinds of evidence may be considered under these three heads, viz.: Documentary evi- dence; Oral testimony of witnesses; and Depositions. Documentary evidence. — If documents, such as statutes, public or private, records of any courts, judgments, etc., are required in the course of a trial, the party needing them must procure the originals, if necessary, at their place of deposit, or copies, when they are admissible, duly authenticated according to the laws of evidence in the various cases. If deeds or other writings, or books of account, or private papers of any sort, are required, the party, if they are con- trolled by his adversary, must give him, his agent or attorney, written notice to produce them at the trial. There is no par- ticular form of this notice; but a copy of it should be kept, attested to be a true one by the person who delivers the orig- inal. If the party who has an instrument required as evi- dence does not produce it, the other, upon proving service of the notice, will be permitted to prove the contents of the in- strument by a copy, or other secondary evidence, in the same manner as if it had been destroyed or lost.' The notice should be served seasonably, in order to give the party reasonable time to produce the original. If the instrument is produced, the party giving the notice to produce it may introduce it in evidence or not, as he may ' Starr & Curtis 1080; Rev. Stat. v. Ze?nans%, 9 Bradw. 479; Morgan (1893) 717; Rev. Stat. (1895) 765; v. CorZies, 81 111. 72; J5anA; v. i^erris, Prettyman v. Walstoii, 34 III. 190; 118 111. 465; Pynchon v. Day, 18 Bank v. Mansfield. 48 lU. 494; Field Bradw. 147. 51 (801) 802 EVIDENCE. choose.' But if introduced, its execution must be proved, in like manner as if no notice had been given, etc." If, however, the party who produces the instrument under the notice is a party to it, and claims a beneficial interest under it, the party calling for the instrument need not prove its execution.^ And whether the party producing it, on notice, claims a bene- ficial interest under it or not, its genuineness need not be proved." Public records are not within the rule in regard to the pro- duction of paper evidence under the control of the opposite party. Courts have the power to compel the custodians of records and public documents to produce them; but where the exercise of this power is not necessary — as where certified copies could be obtained and used — a court may properly re- fuse to require the production of the originals.' The record may be properly used instead .of a copy when the case in which it is offered is being tried in the same court which made the record.* The notice to the opposite party to produce a written in- strument may be in the following form : No. 3S5. Notice to produce written instrument on trial. In the Court. A. B. ) vs. y Covenant. CD.) To the above named C. D. defendant : You will please produce, on the trial of this cause, a certain (here describe the instrument with such particularity as to apprise theparty of what is required.) Otherwise the plaintiff will offer secondary evidence of the con- tents of the said instrument. {Date.) E. F., Attorney for Plaintiff. Where notice was given the day before a trial, to produce a ' Jordan v. Wilkins, 2 Wash. 482. Jackson v. Kingsley, 17 Johns. 158. ^ Wetherston v. Edgington, 2 ^ McPherson v. Bathbone, 7 Wend. Camp. 94; Gordon v. Secretan, 8 216. JEast 548. ' Seeley v. Wells, 53 111. 120. ^ Pearce v. Hooper, d Taunt. 62; «1 Greenl. Ev., Sec. 502; Gray Orr V. Marice, 7 E, C. L. R. 382; v. Davis, 27 Conn. 447; Tayler v. Belts V. Badger, 12 Johns. 223; Adams, 115 111. 570. EVIDENCE. 803 paper Avhich was eighty miles distant, in the hands of another person, it was held that the court could not take judicial notice that the paper could not have been obtained, and exclude secondarv evidence.' If a person who is not a party to the cause has in his pos- session any written instrument, etc., which a party desires to use in evidence, a subpcena duces tecum should be served upon him, commanding him to bring with him and produce at the trial the instrument named. This suhpcena may be framed from the common one, by adding the command to bring the required instrument. Production of books and writings. — Sec. 9, Chap. 51, of the statute, provides that " the several courts shall have power in any action pending before them, upon motion and good and sufficient cause shown, and reasonable notice thereof given, to require the parties, or either of them, to produce books or writings in their possession or power which contain evidence pertinent to the issue," ' This section was designed to invest courts of law with more power than they had previously'' exercised in reference to the production of private writings and to furnish to a party liti- gant a speedy and summary mode by which to obtain written evidence which is in the possession and control of his adver- sary, and thus obviate the necessity of a bill of discovery seek- ing the same end. It contemplates the production of evidence on the trial of the cause, which the part}"- appl3"ing therefor is entitled to introduce in support of his case, and which the other party withholds. A defendant is not required to disclose mat- ters of evidence relied upon in the defense, and thus inform the plaintiff of his case further than the pleadings show. Matters purely of defense are the property rights of the defendant, which he may disclose or not, upon the trial. Under the statute the court has power to compel the pro- duction of the books of a party, to be used in evidence on the trial by his adversary, upon proper showing that they contain entries tending to prove the issues; but the statute can not be construed as giving the court power and authority to take the ^Cody V. Hough, 20 111. 43; see 'Rev. Stat. (1893) 717; Rev. Stat. Bushndlv. Bishop, 28 III. 204. (1895) 765; 1 Starr & Curtis 1080. 804 EVIDENCE. books and papers of tlie party and impound them with an officer of the court for inspection or examination, out of the presence of the court. The statute does not give the right to compel the submission of the books of a party to general in- spection or examination for " fishing " purposes, or AAith a view to find evidence to be used in other suits or prosecutions. The power of courts to require the production of papers, etc., should be used with circumspection. The statute requires " good and sufficient cause shown " as a prerequisite. Such cause should be shown by affidavit particularly pointing out the necessity and propriety of the desired order of the court requiring the production of such books, etc., so that the court can see that the applicant is really in need of the same to enable him to fairly present his cause of action or his defense, and that the application is for no improper or ulterior purpose.' The court will not compel a party to submit for inspection his books of account with other persons not parties to the suit, when it is not made to appear that they contain evidence pertinent to the issue. Where a party is required to produce his books of account for inspection, he will have leave to seal up and conceal all such parts of them as, according to his affi- davit, previously made and filed, do not relate to the matters in question.'^ Books of account as evidence. — To admit books of account in evidence, the common law requires that the entries therein shall be proved by the clerk or servant who made them, if he be alive and can be produced; and it is necessary that the en- tries shall have been made in the ordinary course of business by a person whose duty it was to make them; and that they shall have been made contemporaneously with the delivery of the goods, so as to form a part of the res gestae'^ Besides the requirement that the entries should have been made in the usual and regular course of business, it is also necessary that the books should have been fairly and honestly kept.* ^Lester v. People, 150 lU. 408; ^Hcnise v. Bmfc, 141 111. 290, and Meeth v. Briclc Co., 48 111. App. 602; cases there cited; Chisholm v. lea- see mgdon V. Conley, 141 111. 565. vian, 160 lU. 111. ■ Pynclion v. Day, 118 111. 9. * Ibid. EVIDENCE. 805 The fact that a book of account contains some entries which are not original entries, forms no objection to receiving the book as evidence of other entries which are regularly made.' Section 3 of the act in regard to Evidence and Depositions, first passed in 1867, adds to and enlarges, but does not repeal, the common law rule for the admission of a party's books of account in evidence. This statute authorizes the party him- self to testify to his own books, which was not allowed at common law. It was not the intention of the statute to pro- hibit the introduction in evidence of books of account kept by a clerk, when such clerk is living in the state and is able to tes- tify to the correctness of the books. The statute merely per- mits an interested witness to testify to all the facts necessary to lay a foundation for the admission of the books of account. The books of original entries kept by the clerk himself are admissible to sustain an account composed of many items, on proof that some of the articles were delivered at or about the time the entries purport to have been made; that the entries are in the handwriting of such party; that he kept no clerk at the time, and that persons having dealings with him have set- tled by such books and found them to be fair and correct. Where the clerk who makes the entries has no knowledge of their correctness, but makes them as the items are furnished by another, it is essential that the party furnishing the items should testify to their correctness, or that satisfactory proof thereof (such as the transactions are reasonably susceptible of) from other sources shall be produced.^ The rule seems to be well settled, that account books of a party are inadmissible to prove any matter collateral to the issue of debt and credit between the parties.' Where a complainant introduces in evidence the books of another for the purpose of charging his estate, the former is ^ Chisholm v. Beaman, 160 111. Watts. 340; Winsor v. Dillaway, 4 111. Met. (Mass.) 231; Bustinx. Rogers, « House V. Beak. 141 111. 290; Chis- 11 Cush. 346; Jones v. Brick, 3 Hal- holm Y. Beaman, \Q0 1i\. \1\. stead 332; Tenbroke v. Johnson, ^ Batchelder V. Sa7iborn, 22 '^. H. Coxe (N. J.) 334; Palmer v. Gold- : 25; Gage v. Mcllvain, 1 Strobh. smith, 15 111, App. 544. 135; Lonergan v. Whitehead, 10 806 EVIDENCE. bound to admit those items or entries which make against him as well as those which operate in his favor, unless he can show that the items to his prejudice have been improperly in- serted/ It is true of books of account, as of all other documents in writing, that they furnish the best evidence of what they contain, but it is also true that where books of account are voluminous and intricate, resort to the aid of an expert bookkeeper to explain the meaning of entries and the true state of accounts to a jury, or a court, may frequently be had.^ It has been held that a plaintiff who has made the proper preliminary proof by his own testimony only, may produce his books of account in evidence in an action against the administratrix of the debtor.^ Oral testimony of witnesses. — The attendance of witnesses at a trial is compelled by a s^ihpoena, which is a judicial writ, directed to the witnesses, commanding them to appear before the court at the time therein specified, to give their evidence in the cause named in the writ. In Illinois the writ is gen- erally directed to the sheriff. It is usual for the party desiring the attendance of witnesses to file with the clerk of the court ^.prcBcipe, which may be in the following form : No. 386. In the Court. A. B. ) vs. y Asmimpsit. C. D. J The clerk of the said court will issue a suhpcena for J. K. and L. M., as witnesses for the j^laintiff, in this cause, to appear on, etc.; and direct the same to the sheriff of the county of to execute. (Date.) E. F., Attorney for Plaintiff. There is no time limited within which a suhpcena must be served. It ought, of course, be served so as to give the wit- nesses a reasonable time to come to the place specified, if they ' Hoivell V. 3Ioores, 127 111. 67, and Culver v. Marks, 123 Ind. 554; Bw- cases there cited. ton v. Driggs, 20 Wall. 125; Ouar- 2 1 Greenl. Evid., Sec. 93; Holling- antee Co. v. Loan Ass'n, 57 IIJ. App. worth V. State, 111 Ind. 289; Am. & 254. Eng. Ency. of Law, Art. 71, p. 88; 'Ailing v. Brazee, 27 HI. App. UnderhiU on Evid., Sec. 38 (1894); 595. EVIDENCE. 807 reside at a distance; but when they are at hand, the subjpcena may be served even after the trial has commenced. If the witnesses reside in another county than that where the court is held, their fees for travel and attendance must be paid or tendered to them, on service of the suhpodiia, or they can not be proceeded against for not appearing.' If a witness who has been regularly summoned (and whose fees have been tendered to him, where required) neglects or refuses to attend and testify, as commanded by the writ, the court will, on motion, order an attachment to be issued against him for contempt, and impose such fine upon him as the court may deem just and proper, and order him to pay the costs of such attachment; and such witness is further liable to the action of the aggrieved party, for all damages by him sustained by the default. If a witness is in custody at the time of the trial, the only way of bringing him into court to give evidence, is by a writ of habeas corjnis ad testificandum^. This writ can be obtained only upon motion to the court, and in the English practice the application must be accompanied by an affidavit showing that the witness is a material one; but this affidavit is not always required in practice in Illinois. If the motion is allowed, the writ is made out, signed and directed, and deliv- ered to the officer in whose custody the witness is held, who will bring him up, on being paid his reasonable charges.' For a form of petition for a writ of habeas corpus ad testi- fi/iandum., see the chapter on Habeas Corpus. The affidavit which it is necessary to make in order to ob- tain a continuance on account of the absence of a material witness, is considered under the head of Continuances.' The witnesses in a cause may, in the discretion of the court, be separated during their examination.* DEPOSITIONS (in ILLINOIS). Cases in which they may he taken. — When any person whose testimony is required in any suit at law, pending in any 'Bonner v.PeopZe, 40111. App. 628. * Errisman v. Errisman, 25 111. 2 2 Tldd Pr. 724. 136; Siaver v. Ahhott, 49 lU. App. » Chapter XXIV, ante, 429. 808 EVIDENCE. court in the state, is a non-resident, or resides in a different county from that in which the court is held, or is about to de- part from the state, or is in custody on legal process, or is unable to attend court on account of advanced age, sickness, or other bodily infirmit}'', his deposition may be taken, in the manner pointed out by the statute.' Of witnesses residing in another county, infirm wit- nesses, etc. — In all cases where the witness resides in a dif- ferent county from that in which the court is held, or is about to depart from the state, or is in custody on lethal process, or is unable to attend court on account of advanced age, sickness or other bodily infirmity, the party desiring his testimony, upon filing a proper affidavit, may have his deposition taken before any judge, justice of the peace, clerk of a court, master in chancery, or notary public, without a commission or inter- rogatories for such purpose, on giving the required notice to adverse part}^^ The affidavit to be filed in such case may be as follows : No. 387. Affidavit to he filed before taking deposition of witness residing in another county, etc. In the Court. A. B. ) vs. > Assuvix>sit. C. D. ) A. B., the above named plaintiff, makes oath and says that L. M., who is a material witness for this affiant, in this cause, resides in the county of , in this state, {or "is about to depart from this state," or " is in custody on legal process," or " is unable to attend the said court on ac- count of advanced age," etc., as the case may be), and that this affiant de- sires the deposition of the said G. H. , to be read in evidence on the trial of this cause. A. B. Subscribed and sworn, etc. Upon filing the affidavit, a written notice should be given to the adverse party, of the time and place of taking such dep- osition, which notice should be served by copy. The statute requires the notice to be given ten days before the time for taking the deposition, " and one day in addition thereto (Sun- days inclusive) for every fifty miles' travel from the place of 1 1 Starr & Curtis' An. Stat. 1086; »Rev. Stat. (1895), 768. Eev. Stat. (1895) 767; Rev. Stat. (1893) 719. EVIDENCE. 809 holding the court to the place where such deposition is to be taken." The statute further provides that " if the party en- titled to notice and his attorney reside in the county where the deposition is to be taken, five days' notice shall be suffi- cient.' The notice mav be in the following form : No. 388. Notice to take deposition of witness residing in another county, etc. In the Court. A. B. ) vs. r Assumpsit. C. D. ) To the above named C. D. , defendant. Take notice, that on, etc., between the hours of a. m. and p. m., at, etc., before J. K., a justice of the peace of that county, or some other officer authorized by law to take depositions in such cases, the plaint- iff will proceed to cause to be taken the deposition of L. M. , residing in the said county of , to be read in evidence on the trial of this cause, on tlie part of the plaintiff; at which time and place above mentioned for the taking of such deposition, you can appear, and cross-examine the said wit- ness, if you shall see fit so to do. {Date.) E. F., Attorney for Plaintiff. At the time and place appointed in the notice, the party at whose instance the deposition is taken, and the adverse party, if he sees fit, or their attorneys, together with the deponent go before the officer who is to take the deposition. The de- ponent is then duly sworn, and the party who caused him to be summoned first examines him, and the opposite partv, if present, then cross-examines him.' The questions of each party, the deponent's answers to them, and the objections which either party may make to any questions or answers, are written down in their order; and when the examination on both sides is concluded, and the result reduced to Avritino-, and read over to the deponent, he signs his name at the foot of the deposition. The general directions for taking depositions by commis- sioners are applicable in some respects to cases of this kind. > 1 Starr & Curtis' An. Stat. 1085 ; = Leiois v. Fish, 40 111. App. 373. Rev. Stat. (1893) 719; Rev. Stat. (1895) 767. 810 EVIDENCE. Any officer or commissioner may issue a suhpmna, if neces- sary, to compel the attendance of any witness whose deposi- tion he may be required to take.' If a party gives notice of the taking of two depositions in different places on the same day, so that the opposite party can not be present to cross-examine both the witnesses, he Taa.y elect which examination he will attend, and the other deposi- tions will be suppressed.^ An appearance and cross-examination of the witness will be deemed a waiver of objection to the sufficiency of the notice; * and where a party consents to the taking of a deposi- tion, it may be read in evidence, although no affidavit was filed, as required by the statute.* It is not irregular to take the deposition of a witness in a county other than that in which he resides. He may not be bound to attend, but if he does, it is regular.* Of witnesses residing in the state, more than 100 miles distant; non-resident witnesses; and witnesses In military or naval service. — The statute (sec. 26 of the act on Evidence and Depositions) provides as follows : " When the testimony of any witness residing within this state, more than one hun- dred miles from the place of holding the court, or not residing in this state, or who is engaged in the military or naval serv- ice of this state or of the United States, and is out of this state, shall be necessary in any civil cause pending in any court of law or equity in this state, it shall be lawful for the party wishing to use the same, on giving to the adverse party, or his attorney, ten days' previous notice, together with a copy of the interrogatories intended to be put to such witness, to sue out from the proper clerk's office a dedimus potestatem or commission, under the seal of the court, directed to any com- , petent and disinterested person as commissioner, or to any judge, master in chancery, notary public or justice of the peace of the county or city in which such witness maj'- reside, > 1 Starr & Curtis 1090; Rev. Stat. Cook v. Ome, 37 111, 186; Brackett v. (1893) 721; Rev. Stat. (1895) 769, Nikirk, 20 Bradw. 525. '^Hankinson v. Lombard, 25 111. •* Picard v. Safes, 38 111. 40. 572. ^Harding v. Larkin, 41 111. 413. « County V. Bledsoe, 12 111. 267; see EVIDENCE. 811 or in case it is to take the testimony of a person engaged in such military service, to any commissioned officer in the military or naval service of this state or the United States, authorizing and requiring him to cause such witness to come before him, at such time and place as he may designate and appoint, and faithfully to take his deposition upon all such in- terrogatories as may be inclosed with or attached to said com- mission, both on the part of the plaintiff and defendant, and none others; and to certify the same, when thus taken, to- gether with the said commission and interrogatories, into the court in which such cause shall be pending, with the least possible delay." ' The statute must be substantially complied with, and no material deviation therefrom will be allowed, unless by consent or waiver of the parties to the suit.^ The notices and formal interrogatories to be used in such cases may be as follows : No. 3S9. Notice and interrogatories for taking deposition iipon inter- rogatories in writing. In the court of the county of , in the State of Illinois. A. B. ) vs. > Assumpsit, C D. ^ To the above named C. D., Defendant. Take notice, that on, etc., the plaintiff will sue out from theclerk's office of the said court a commission, pursuant to tlie statute, to take the depo- sition of L. M., residing in the city of , in the county of and state of , to be read in evidence on the part of the plaintiff, on the trial of this cause. The interrogatories to be propounded to the said L. M. in this behalf, on the part of the plaintiff , are hereto subjoined; and you can file cross-interrogatories, and join in sucli commission, if you shall see fit so to do. {Date.) E. F., Attorney for Plaintiff. In the court of the county of in the State of Illinois. A. B. ) vs. > Assumpsit. CD.) Interrogatories to be propounded to L. M., a witness to be pro- ' 1 Starr & Curtis, 1086; Rev. Stat. see County v. Bledsoe, 13 III. 267: (1895), 767; Rev. Stat. (1893), 719; see Ballance v. Underhill, 3 Scam. 453; Brown v. Luehrs, 79 111. 575. Haioks v. Lands, 3 Gilm. 227; Edel- ' Cargan v. Anderson, 80 111. 95; man v. Byers, 75 lU. 367. 812 EVIDENCE. duced, sworn and examined in this behalf, on the part of the plaintiff , by virtue of the commission to be issued in pursuance of the foregoing notice : Interrogatory 1. What is your name, age, occupation, and place of resi- dence? Int. 2. Do you know the parties plaintiff and defendant in this cause, or either of them ? If yea, how long have you known them respectively ? {Proceed icith the interrogatories — numhering them consecutively — touch- ing the matters desired to he proved.) Lastly. Do you know of any other matter or thing, of benefit or ad- vantage to the plaintiff, touching the matters in conu-oversy in this cauSe, in addition to what you have already stated? If yea, state the same as fully as if thereto particularly interrogated. E. F., Attorney for Plaintiff. It is usual to name the commissioner in the notice; but in the case of Cole v. Choiiteau, 18 111. 439, the court said : " The statute here does not authorize the party to appoint the com- missioner, consequently he could not give his name in the notice to sue out the dedhnuft. It is not required by the stat- ute, for the clerk might appoint some other than the one so nominated in the notice." A commission not directed to any particular person, but directed generally to any judge, master in chancery, notary public, etc., of the county in which the witness resides, has been held to be sufficient.' In a suit against two joint-debtors, a notice to one of them, of the issuing of a commission to take depositions, is insuffi- cient, and the deposition can not be used against him who was not served with notice.* The usual mode of serving a notice of suing out a commis- sion, is to deliver a copy of the notice and interrogatories to the opposite party, or his attorney, who will generally acknowl- edge the receipt of the same on the back of the original. If this is not done, an affidavit of service should be attached. The service must be at least ten days before the issuing of the commission.' Of non-resident witnesses, npon oral interrogatories.— The statute provides, in this regard, as follows : " When a party shall desire to take the evidence of a non-resident wit- 1 Brackett v. Nikirk, 20 111. App. ^ McConnel v. Stetiniiis, 2 Gilm. 525. 707. 2 Cargan v. Anderson, 30 111. 95. EVIDENCE. 813 ness, to be used in any cause pending in this state, the party desiring the same, or, where notice shall have been given that a commission to take the testimony of a non-resident witness will be applied for, the opposite party, upon giving the other three days' notice in writing of his election so to do, may have a commission, directed in the same manner as provided in sec- tion 26 of this act, to take such evidence, upon interrogatories tcr be propounded to the witness orally; upon the taking of which each party may appear before the commissioner, in per- son or by attorney, and interrogate the witness. The party desiring such testimony shall give to the other the following notice of the time and place of taking the same, to wit, ten days, and one day in addition thereto (Sundays included) for every one hundred miles' travel from the place of holding the court to the place where such deposition is to be taken." ' The party who gives notice that he will sue out a dedimus to take the testimony of a witness upon written interroga- tories, after receiving notice that the party to whom the notice was given has elected to take the deposition upon oral inter- rogatories, should reply with a notice of the time and place where such deposition will be taken upon oral interrogatories in accordance with the statute; he is the party desiring the testimony and should give notice of the time and place for taking the same.' A motion to suppress a deposition taken upon written inter- rogatories should be sustained, where subsequent to the giving of the notice of the intention to take the same, the oppo- site part}' gave notice of his election to take it upon oral inter- rogatories. Sec. 28, Chap. 51, R. S., does not contemplate the issuing of two commissions, one to take the testimony upon written, and the other upon oral interrogatories.^ Notice by mail, or by advertisement. — With respect to notice where personal service can not be had, the statute pro- vides as follows : " When the deposition of any Avitness is desired to be taken under the provisions of this act, and the adverse party is not a resident of the county in which the suit > Rev. Stat. (1893), 720; Rev. Stat ^ Lewis v. Fish, 40 111. App. 372. (1895), 768; 1 Stan* & Curtis 1087. ^ Lewis v. Fish, 40 111. App. 373. 814 EVIDENCE. is pending, or is in default, and no attorney has appeared for him in such cause, upon filing an affidavit of such fact, and stating the place of residence of such adverse party, if known, or that upon diligent inquiry his place of residence can not be ascertained, the notice required by this act may be given by sending a copy thereof by mail, postage paid, addressed to such party at his place of residence, if known, or if not know^n, by posting a copy of such notice at the door of the court house w^iere the suit is pending, or publishing the same in the nearest newspaper, and when interrogatories are required, fil- ing copy thereof with the clerk of the court ten days before the time of suing out such commission." ' Instructions, etc., for taking depositions. — Where a depo- sition is to be taken under a commission, the following instruc- tions and forms for the taking, certifying and returning of depositions, according to the law^s of Illinois, may be inclosed with the commission : No. 390. Caption of the deposition. The deposition of L. M., of the city of , in the county of and state of , a witness of lawful age, produced, sworn, and examined upon his oath, on, etc., at my office in, etc., by me, J. K., a commissioner duly appointed by the annexed commission, issued out of the clerk's office of the court of the county of , in the State of Illinois, under the seal of tihe said court, and to me dii'ected, as such commissioner, for the examina- tion of the said L. M. , a witness in a certain suit now pending in the said court, wherein A. B. is plaintiff, and C. D. is defendant, on behalf of the plaintiff, as well upon the interrogatories of the plauit iff as upon the cross- interrogatories of the defendant, which were attached to the said commis- sion, and upon none others. The said L. M., being first duly sworn by me, as a witness in the said cause, before the commencement of his examina- tion, to testify the truth as well on the part of the plaintiff as the defend- ant, in relation to the matters in conti'oversy between the said parties, so far as he should be interrogated, testified as follows : Interrogatory 1. {Here insert the first interrogatoi'y .) Answer. {Here insert the ansioer — and so on successively, in the order in which the interrogatories may be propounded and answered. Then folloiv :) Cross-interrogatories on the part of the defendant, and answers thereto 1 Rev. Stat. (1893), 720; Rev. Stat. (1895), 768; 1 Starr & Curtis 1087. EVIDENCE. 815 by the said L. M. (Here urrite dcnvn tlie cross-interrogatories and answers successively. ) (After the deposition is taken, the interrogatories and answers should be read over to the witness, and if he assents to the truth of the answers as written down, he will then sign his name at the bottom of the deposition, and swear to the truth of it before the commissioner. This oath is in addition to the preliminary oath, which is administered before the commencement of his examination. The commissioner should then certify as to the time, place and manner of taking the deposition, as follows:) No. 391. Certificate. I, the above named J. K., of, etc., a commissioner duly appointed by the annexed commission to take the deposition of the said L. M., the witness whose name is subscribed to the foregoing deposition, do certify, that before the commencement of his examination as a witness in the said suit between the said A. B., plaintiff, and the said C. D., defendant, he, the said L. M., was duly sworn by me, to testify the truth in relation to the matters in controversy between the said parties, so far as he, the said L. M., should be interrogated concerning the same; that the said deposition was taken at my office, in, etc., on, etc.; and that after the said deposition was taken by me, as aforesaid, the interrogatories and cross-interrogatories, and the answers thereto, as written down, were read over to the said L. M. ; and that thereupon the said deposition was signed and sworn to by the said L. M., before me, at the place and on the day last aforesaid. J. K., Commissioner. (The foregoing certificate should be at the foot of the deposition, immediately following the signa- ture of the witness. The commissioner should then fold np the deposition, together with the commission and interrog atories, and all exhibits, if any, properly marked or lettered,, as " exhibit A," "exhibit B." etc., and inclose the whole in a suitable envelope: and then seal up the same securely with three seals, writing his name across the middle seal. The commissioner will also indorse the names of the parties to the suit across one end of the package, according to the proper title of the suit, and direct tht' package to the clerk who may have issued the commission, and transmit the same by mail to the proper post- office. No party, attorney or agent, or any person at all interested in the event of the suit, is per- mitted to dictate, write or draw up any part of the deposition, or— when taken upon written inter- rogatories— to be present during the taking of the same.' One caption will answer for the deposition of several witnesses, where they are all taken at the same time and place, to be read in the same suit, by modifying the form here given— for instance .is follows:) The depositions of E. F., G. H. and L. M., of, etc., witnesses of lawful age. produced, sworn and examined on their respective oaths, etc. (In the latter part of the caption say:) The said E. F., G. H. and L. M., being first duly sworn by me, as witnesses in the said cause, etc. (Then, at the com- mencement of each deposition, say:) InteiTogatories propounded to the said E. F., a witness produced and sworn as aforesaid, on the part of the jiluint- iff, and the answers of the said E. F. thereto, as follows: Interrogatory 1. (Here insert the interrogatory.) Answer. (Here insert the answer.) (And so on successively with all the interrogatories to be propounded to that witness. Then insert the cross-interrogatories as directed. The deposition should then be re.ad over to the witness and signed and sworn to by him before the next witness is examined. Then proceed with the second and third witnesses, in like manner, to the end. ■Rev. Stat. (1893) 721; Rev. Stat. (1895)768; 1 Starr & Curtis 1089. 816 EVIDENCE. One certifioate as to the time, place and manner of taking such depositions, and that thev were signed and sworn to by such witnesses, respectively, will be sufficient, provided due care is taken to insert the names of all the witnesses, and the certificate is in other respects in conformity with the form given in the first instance.) The statute has fixed no form for either the caption or cer- tificate to be attached to depositions. If they are taken and certified in substantial conformity with the requirements of the statute, they will not be suppressed on merely technical objections.' When the deposition is taken by a justice of the peace, notary public, or other officer, as such, he should so describe himself in the caption and certificate, and not as commissioner; and if so taken in another state, his return must be accom- panied by a certificate of his ofiicial character, under the great seal of the state, or under the seal of the proper court of record of the county or cit}'- where the deposition is taken,^ Interrogatories accompanying a commission to take a depo- sition need not be copied into the deposition. It is sufficient if they were propounded to the witness, answered by him, and so referred to that the court can see the deposition was fairly taken.* A deposition will be sufficient if it shows that the witnesses were sworn, although it may not appear in the right place, or be set out in the certificate, which ought to come at the close of the deposition.* The indorsement of the names of the parties litigant is directed by the statute, on the return of depositions; but an omission thereof, unless injury arises from the neglect, will not be fatal.' It seems that where the names of partner- ships are indorsed as parties litigant, it is a substantial compli- ance with the statute.* It is a valid objection to a deposition, that it has been dic- 1 Behrensvieyer v. Kreitz, 135 111. Brown v, LueJirs, 79 111. 575; Ken- 591 _ dall V. Limberg, 69 111. 356. 2 Rev. Stat. (1893) 720; Rev. Stat. ^ Hawks v. Lands, 3 Gilm. 227. (1895) 768; 1 Starr & Curtis 1088; * County v. Bledsoe, 12111. 2G'7; see see Wheeler v. Shields, 2 Scam. R. R. Co. v. Cowles, 32 111. 116; 348; McCoy v. People, 71 111. Ill; Kendall v. Limherg, 69 111. 356. Edleman v. Bj/ers, 75 111. 367; Eisen- ^Cole v. Choteau, 18 111. 439; see meyer v. Sauter, 77 111. 515; see R. R. Co. v. Coppinger, 66 111, 510. 6 Forsyth v. Baxter, 2 Scam. 9. EVIDENCE. 817 tatecl or drawn up by an attorney in the cause; but tlie objec- tion must be supported b}'- proof of the fact.' Where a dedimus was directed to a commissioner to take the testimony of " Seymour Rank," and the deposition returned was that of " Seigmond Rank," the variance was held to be fatal. ^ Depositions taken in one suit may be used in another, be- tween the same parties, where the same matters are in con- troversy.^ A party may cause a second deposition of a witness to be taken, without leave for that purpose; but it is discretionary with the court to say which shall be read.* Where a deposition has been lost, and the witness is dead at 4 the time of the trial, the contents of the deposition may be proved, like those of any other lost paper.^ It is no objection that .a witness, who is a party to the suit, wrote his own answers to the interrogatories in his deposition." It is no objection that a deposition was taken by a type- writer when the commissioner certifies that it was taken by him.' Where a commission issued from this country in the English language to a foreign C(juntry is returned with the answers of the witness written in the lang-uao-e thereof, the same may be translated, and the translation given in evidence, but such translation may be shown to be erroneous.^ On an objection to a deposition, on the ground that it came to the clerk unsealed, it will be presumed that the officer who took the deposition did his duty, and sent the same properly sealed, and the burden of proof is on the objector.' AVhere the deposition of a witness taken by the plaintiff is read in ' King v. Dale, 1 Scam. 514; see 1 Cookson v. Richardson, 69 111. 137; StaiT & Curtis 1089; Rev. Stat (1893), 721; Rev. Stat. (1895), 769. '^Scholesv, Ackerland, 13 III. 650 see McCoy v. People, 71 111. Ill Trans. Co. v. Leysor, 89 III. 43. » McConnel v. Smith, 27 111. 232 3fcConnel v. Smith, 23 111. 611 Wade V. King, 19 111. 300; Dajle v Wiley, 1o 111. old; Goodrich v. Han- 111. son, 33 111. 498; 3 Greenl. Ev. 326; » In re Noble, 124 111. 266. 52 Jarret v. Phillips, 90 111. 237; Pratt V. Kendig, 128 111. 293, * Beach v. Schmidz, 20 111. 185. 6 Aidger v. Smith, 34 111. 534, * Wood V. Shaiv, 48 111. 273. '' Behrensmeyer v. Kreitz, 135 lU. 591. 8 Christman v. Ray, 42 111. App. 818 EVIDENCE. evidence by the defendant, the person whose deposition has been so taken and read will not be the witness of the plaintiff, who will have the same right to contradict such witness as any other witness introduced by the defendant.' Where a deposition is taken by a party incompetent to testify on the ground of interest^ and an objection is interposed to the competency which is noted by the officer taking the dep- osition, and the party objecting cross-examines the witness, and on his motion the deposition is excluded by the court, the other party will not have the right to read, on the hearing, the cross-examination. By cross-examining an incompetent wit- ness before the court passes on an objection to the competency, the party so cross-examined does not make the matters drawn out by his examination competent evidence against him,^ Exceptions or objections to. — Objections to a deposition, and motions to suppress the same, may be made after leave has been obtained to open the same before the trial is entered upon.^ All exceptions to depositions, which go to the form of the same, or to the incompetency of witnesses, must be taken or made before the case is called for trial and submitted to the jury. If formal objections exist, they should be made and set- tled on exceptions before the trial, so that if they are sustained the party in whose favor they were taken may procure the evidence of the witness on the trial or retake his deposition.* Objection to their substance^ however, may be made on the trial.' Before the objection that a deposition in a given cause does not contain the best evidence of the matters referred to can be considered, it is essential, before trial, to move to suppress the same." If leading questions are propounded to a wit- ' Bloomington v. Osterle, 139 111. McKinley, 64 111. 338; Kassing v. 120. , Mortimer, 80 111. 602; Stoioell v. ■^Achilles v. Achilles, 137 111. 589. Moore, 89 111. 563; M. D. Co. v. Ley- ^ Everinghainy. Lord,\^\\\. A}^^. .sor, 89 111. 45; TFarren v. Warren, 565; Corgan v. Anderson, 30 111. 95. 105 111. 568; Carter v. Carter, 37 111. * Winslow V . Newlan, 45 111. 145; App. 219; Sheldon v. Burry, 39 111. Frinkv. McClung,AiG\lm..^Q^;Kim- App. 154; Dunbar v. Gregg, 44 111. ball V. Cooh,l Gilm. 423; Thomas v. App. 527. Dunaway, 30 111. 373; R. R. Co. v. * Frink v. McClung, 4 Gilm. 569. Baddeley, 54 lU. 19; R. R. Co. v. ^ Carier v. Carter, 37 111. App EVIDENCE. 819. ness whose deposition is being taken upon oral interrogatories, an objection to the form of a question must be made and noted at the time, or such objection will be waived. If, however, the party against whom the deposition is intended to be used? is not present when it is taken, the rule will not apply.' A party can not, it seems, have the deposition taken for his opponent suppressed for want of full answers by the witness to the latter's interrogatories.' Eut by the statute, the court may allow another commission to issue, if it appears that the Avitness has not given full or proper answers, or that a further examination ought to be allowed to either party .^ A motion to suppress a deposition upon a specific ground is a waiver of all other grounds of objection." A motion to suppress a deposition on the ground it was not properly sealed and directed, comes too late after a general order for the opening of all depositions, unless some good reason is given for the delay. The court upon objection taken before such order is made, can then decide the motion by inspection, instead of acting upon affidavits,' It is not sufficient to object to depositions before the trial; objections should be made and exceptions preserved when they are offered in evidence.' The rule seems to be well recognized that after a deposition taken in a cause has been read without objections upon one trial, it can not afterwards be objected to on account of any defect existing at the time it was so used.^ Where portions of an answer in a deposition are improper, the same should be eliminated before the deposition is read to the jury.* 219; Dunbar v. Gregg, 44 111. App. ^In re Noble, 124 111. 266. 527. ° Shedd v. Dalzell, 30 111. App. 356; ' Goodrich v. Hanson, 33 111. 499; Gardner v. Haynie, 42 111. 291. see Cooke v. Ome, 37 111. 186; '^mjis v. iJe^'c/i, 7 Wheat. 453; Lockimod v. Mills, 39 III. 602; Phy Spence v. Synith, 18 N. H. 587; Hill V. Clark, 35 111. 377. v. Meyers, 43 Pa. St. 170; McMillen 2 Cole V. Choteau, 18 111. 439. v. E. R. Co., 56 Iowa 421; Woodruff = Rev. Stat. (1893)721; Rev. Stat. v. Monroe, 33 Md. 146; Brackett V. (1895) 769; 1 Starr & Curtis 1089. Nikirk, 20 111. App. 525; see Bush v. *Bartee v. Jones, 33 Ala. 84, Stanley, 122 III iOQ, SaUmarch v. Boiver, 34 Ala. 613; ^R. R. Co. v. Southworth, 32 lU. Brackett v. Aikirk, 20 111. App. 525. App. 307, CHAPTER XXXY. JUDGMENTS. A judgment in law is a solemn determination of a question, declared by a court. The language used in a judgment is, that "it is considered by the court," etc., the theory being that the function of the court is not to give its own decis- ion, but to ascertain and pronounce the decision of the law. To give validity and full force to a judgment, the court which renders it must have competent jurisdiction over the subject- matter concerning which it adjudicates, and the particular person or thing on whom or concerning which it passes judg- ment;' the cause must have been properly brought before the court; and the trial must have proceeded with due regard to all those forms which are established by law, to prevent sur- prise, neglect, or error. Judgments are either interlocutory ovjinal. The former are such as are given during the progress of a suit, upon some plea, proceeding, or default, which is only intermediate, and does not finally determine or complete the suit — as, in the action of account, that the defendant account; or where there is a de- fault, and a writ of inquiry awarded, etc. The latter are such as at once put an end to the action. They are the sentence of the law, given by the court — as that the plaintiff recover his damages and costs; or, if for the defendant, that the plaintiff take nothing by his writ, and that the defendant recover his costs, and sometimes also his debt or damages, where he has pleaded a set-off. A judgment is said to be final when it terminates the litigation between the parties on the merits of the case.^ Judgments may also be divided into four kinds : First, 1 Dunham v. Dunham, 57 lU. App. ^R. R. Co. v. Chicago, 148 111. 141; 475. Glade v. Brick Co., 158 111. 39. (820) JUDGMENTS. 821 where both the facts and the law arising thereon are admitted by the defendant, as charged in the phiintiff's declaration; as in cases of judgment by confession or default. Second, where the plaintiff is convinced that the facts, or the law, or both, are not sufficient to support his action, and he therefore aban- dons his suit; as in cases of 7ionsuit or retraxit. Thii'd, where the facts are confessed by the parties, and the law determined by the court; as in cases of judgment w^^on demurrer, or an agreed statement of facts. Fourth, where the law is admitted by the parties, and the facts disputed; as in the case of judg- ment on a verdict/ Jiidgmeiit by default. — When the defendant fails to ap- pear and make a proper defense, a judgment may be taken against him by default. Before doing so, however, the plaintiff should examine the writ, and see that it is in due form," and properly attested; and also the return of the sheriff, to ascer- tain whether proper service has been made, a/ud whether the return is in due form. If the return is insufficient, the court will, on motion, permit the officer to amend it.' Where too large a judgment has been rendered against a defendant, by default, (but less than the amount claimed in the declaration,) he should apply by motion to the court ren- dering the judgment, to correct the mistake.* After a consid- erable delay, it will not be corrected on error.* A judgment by default will not be regular unless the defend- ant has been ^\\\y served with process. It should appear from the return that the writ has been served, and when, and on whom,^ and that the service was in due time.^ While an offi- cer's return can not be contradicted so as to defeat jurisdic- tion, yet it maybe done to excuse a default.® 'See 3 Blacks. Com., 396; Howe's ^See Pardon v. Dwire, 23 111. 572; Prac. 265. Bancroft v. Speer, 24 III. 227; Ogle ■i Culver V. Pheliis, 130 111. 217. v. Coffey, 1 Scam. 239; Pattison v. ^ Moore v. Purple, 3 Gilm. 149; Hood, 3 Scam. 152; Schmidt v. Montgomery v. Brown, 2 Gilm. 581; Thomas, 33 111. App. 110. People V. Harrison, 82 111. 84. ' Pattison v. Hood, 3 Scam. 152. 4i2ieZz/v. Barfo/i, 32 111. App. 528; ^Scrafieldw. Sheeler, IS Brachv. Hall V. Bank, 133 111. 244. 507; Culver v. PheljJS, 130 lU. 217. ^Elston V. Deu;es, 28 111. 436; see Under y. Monroe, 33 111. 388. 822 JUDGMENTS. When a defendant has pleaded, the plaintiff has no right to have him called, and take judgment by default;' and where the record shows that a plea was filed, and a judgment by default rendered, on the same day, the judgment will be reversed." It is erroneous to proceed to judgment by default against one or more of several joint defendants, without a final dis- position of the cause as to the others;^ and where one pleads, the cause should be tried before a rendition of final judgment against the others.* And where two are jointly sued, and are served with process, and one pleads, and procures a change of venue, and the other makes default, it is error to take judg- ment against the defendant in default alone.* Where a judg- ment is vacated as to one of several defendants it must be vacated as to all.' See Setting Aside Default, P^ge '^98, ant^. Damages — Assessment of. — Assessment of inquisitions of damages are generally taken, in Illinois, in open court; ' but a writ of inquiry may be directed to the sheriff of the county, to be executed in vacation." If it appears that an important question of law will arise on the execution of the writ, the court will order it to be executed in open court.* The writ may be executed by the sheriff at any place within the county.'" If any irregularity occurs, such as want of notice, etc., the proper course is to move the court, upon affidavit of facts, to set aside the inquest;^' and the insufficiency of the writ can not be ^ Manlove v. Bruner, 1 Scam. ^ Clajlin v. Dumie, 129 111. 241; 390; McKinney v. May, 1 Scam. 534 Parrott v. Goss, 17 111. App. 110 Pana v. Humphreys, 39 111. App 641; Barnett v. Craig, 38 111. App, 96; Griswold v. Brock; 29 111. App 423; Fauret v. Bank, 37 111. App 322; Race v. Ass'n, 50 111. App. 131 Bank v. Fairbank, 54 111. App. 296, ^ Lyon V. Barney, 1 Scam. 387 3 Kingsland v. Koeppe, 137 111. 344 * Wight V. Hoffman, 4 Scam. 361 Reynolds v. Barnard, 36 III. App. 218. ' Bell V. Aydelott, Breese 45; see Ins. Co. V. Phelps, 27111. 71; Reeh v. Bosch, 17 111. App. 426. ^Ins. Co. y. Phelps, 27 111. 71; Vanlandingham v. Fellows, 1 Scam. 233. ^ Tillotson V. Cheetham, 2 Johns. 107; Tidd'sPr. 513. '" Vanlandingham v. Fellows, 1 Russell V. Hogan, 1 Scam. 552; see Scam. 233; Ins. Co. v. Phelps, 27 Flake v. Carson, 33 111. 518. 111. 71. * Jansen v. Grimshaio, 125 111. " Vanlandingham v. Fellows, 1 468; Brown v. Tattle, 27 111. App. Scam. 233; Moore y. Purple, 3 Gilm. 389. 149. JUDGMENTS. 823 assigned for error, the proper practice being to move the court wherein the suit is pending to quash it.* The sheriff, in ex- ecuting the writ, acts ministerially, and not judicially." In the assessment of damages on a writ of inquiry, the de- fendant may cross-examine or introduce witnesses, to reduce the amount claimed;'' and if the inquest is taken in open court he may have the jury instructed as to the law; and he may take a bill of exceptions, or may move to set aside the in- quest, upon affidavit showing the evidence.* When a party is dissatisfied with an assessment of damages on default, he should file an affidavit showing all the evidence heard, and move to set aside the inquest, or the default and inquest; and in case the court denies the motion, it seems the decision may be reviewed on error.* The default of the defendant, as well as his failure to plead over after a demurrer has been overruled, admits the cause of action, but not the amount of damages claimed in the declara- tion; and the amount of damages may be litigated upon the writ of inquiry.® A default precludes the defendant from questioning the validity of an indorsement of a note on which he is sued.' The statute of Illinois provides that " in all suits in the courts of record in this state, upon default, where damages are to be assessed, it shall be lawful for the court to hear the evi- dence and assess the damages, without a jury for that pur- pose. In all cases where interlocutory judgment shall be given in any action brought upon a penal bond, or upon any instru- ment in writing, for the payment of money only, and the dam- ' Moore v. Purple, 3 Gilm, 149. lett v. Stone, 1 Scam. 539; Kalkaska 2 Tilloison v. Cheetham, 2 Johns. v. Tliomas, 17 111. App. 235. 63; Vanlandingham v. Fellows, 1 ^ Ilotsmger v, Colema7i, Will. 71; Scam. 233. see Vanlandigham v. Felloios, 1 3 And. Steph, PL 195, note 2; Scam. 233. Bridges v. Stephenson, 10 Bradw. « R. R. Co. v. Lomax, 7 Ind. 406 369; Briggs v. Snegham, 45 Ind. 14; Runnion v. Crane, 4 Blackf. 466 Madison Co. v. Smith, 95 111. 328; see R. R. Co. v. Ward, 16 111. 522 Ry. Co. V. Holbrook, 72 III. 419. Lucas v. Spencer, 27 111. 15. * See R. R. Co. v. Ward, 16 111. ' Underhill v. Kirkpatrick, 26 III. 522; Hotsingerv. Coleman, 16111. 71; 84. Horton v. Bailey, 1 Scam. 213; Gil- 824 JUDGMENTS. ages rest in computation, the court may refer it to the clerk, to assess and report the damages, and may enter judgment therefor; yrovided^ that either party may have the damages assessed by a jury." ' Judgment of nonsuit, etc. — Judgment of nonsuit may pass against the plaintiff, when, on the trial, he abandons his suit. By statute in Illinois, if the plaintiff desires to take a nonsuit, he must do so before the jury retires from the bar; ^ and it is held that when a cause is tried by the court, without a jury, a nonsuit may be taken at any tiine before the court notes down the finding." If, after issue is joined, the plaintiff neglects to bring such issue on to be tried in due time, as limited by the course and practice of the court, judgment will also be given against him for his default; and this is called a judgment as %n case of nonsuit^ A nonsuit is not regarded as a confession by the plaintiff that he has no cause of action, for the judgment in favor of the defendant is no bar to a second action for the same cause.^ Judgment may also be given against the plaintiff for not declaring, or replying, etc.; and these are called judgments of non pros, {non prosequitur.) So if he chooses, at any stage of the action, after appearance and before judgment, to say that he " will not further prosecute his suit," or that he '• with- draws his suit," or (in case of a plea in abatement) prays that his " writ " or " declaration may be quashed," that he may resort to a better one — there is judgment against him of nolle r>rosequi, retraxit, or cassetur hreve, or narratio, in these cases respectively.* In cases of nonsuit or non pros., the plaintiff may be called, and his default entered, in like manner as where a defendant makes default, as above mentioned. ' 2 Starr & Curtis 1807; Rev. Stat. PI. 195; Haskell v. Whitney, ISMass. (1893) 1076; Rev. Stat. (1895) 1160; 47; Berry v. Savage, 2 Scam. 261; Chicago v. Congdon, 111 111. 309; Gordon v. GoocMZ, 34 111. 429. Palmer y. Harris, 98 III. 501; Pinkel ^ Hoive v. Harroum, 17 III. 494; V. Machine Co.. 89 111. 277. Adams v. Shepard, 24 111. 464. 2 Rev. Stat. (1893) 1077); Rev. Stat. * And. Steph. PI. 195. (1895)1161; 2 Starr & Curtis 1812; ^ 3 Bla. Com. 876. see 3 Bla. Com. 376; And. Steph. «And. Steph. PI. 195. JUDGMENTS. 825 One entitled to judgment must have it entered. A judg- ment nunc j^ro tunc will not be entered if the dela}^ was caused by the laches of plaintiff.' Judgment on demurrer. — Judgment for the plaintiff on demurrer to a plea in abatement, or to a replication to such l^lea, is merely that the defendant answer over — respondeat ouster.^ And in all other cases of demurrer, in actions sound- ing in damages, the judgment for the plaintiff is interlocutory merely, until the damages are assessed, which assessment is made in the same manner as has been shown in the case of a default, when final judgment is given. Judgment for the de- fendant, on demurrer, is in all cases final.^ Except in the case of a decision for the defendant on demurrer to a plea in abate- ment, or to a replication to such plea, the courts in Illinois usually grant leave, if asked, to the party against whom the decision on the demurrer is made, to plead over, or amend, as the case may be.* Judgment on verdict. — On a verdict, the judgment, whether for the plaintiff or the defendant, is final — the jury at the same time trying the issue and assessing the damages, if any are given. Form of judgment, etc. — A judgment for the plaintiff (except respondeat ouster) always follows the nature of the action. In actions of assumpsit, covenant, trespass, and the like, in which damages only are demanded, the judgment for the plaintiff h that he recover his damages, as found by the verdict (or in case of demurrer or default, that he ought to recover, etc., and, after the assessment, that he recover, etc.), together with, his costs. In actions of deht, the judgment is that he recover his debt, and damages, if any, and costs. The proper form of a judgment for the plaintiff, in an action of debt on a penal bond conditioned for the performance of cov- enants, is that he recover the amount of the debt, to be dis- charged by the payment of the damages and costs.* In eject- 1 Tynan v. Weinhard, 153 111. 598. Giles, 113 Mass. 34; Parks v. Smith, 2 And. Steph. PI. 192; Smith v. 155 Mass. 26. Harris, 12 111. 463; Bradshatv v. ^gteph. PI. 192-3. Morehouse, 1 Gilm. 395; Young v. *See section 3, Prac. Act. ^ Eggleston v. Buck, 31 111. 254; S26 JUDGMENTS. ment, the entry is that he recover the premises demanded in the declaration, and costs, etc. In all cases, if the defendant prevails, he recovers his costs merely (except where he has pleaded and proved a set-off larger than the amount due to the plaintiff, in which case the defendant is entitled to judgment for the excess, as well as for his costs); and if the issue arises on a plea in abatement of the writ, etc., the judgment is that the writ be quashed, etc.; and in other cases the judgment is that the plaintiff take nothing by his writ, and that the de- fendant go thereof without day. In rej)levi7i, final judgment for the phi i/it iff is for his damages, which are usually nominal, as the goods demanded were delivered to him on the writ, and for his costs. For the defendant, the judgment is in general for a return of the goods, and for his costs. In detinue, the judgment is in the alternative, that the plaintiff recover the goods, or the value thereof, and his damages for the detention, and costs.' A judgment against a garnishee should be for the whole amount due from him to the attachment or judgment debtor, and not simply for the sum due the garnishing creditor.^ In no case can a plaintiff recover a greater sum as damages than he has laid in his declaration; but he may remit the excess and have judgment for the residue."^ Where the jury finds a sufficient tender to have been made, the court should render judgment in favor of the defendant for costs, and give the plaintiff leave to take out of court the sum tendered; and in such case the jury should not assess any damages.* In a qui tarn action on a statute, giving half of the penalty to the informer, a judgment against the defendant should be for the recovery of the debt, one-half to the people and one- half to the informer, and should award execution in that form.^ Parisherv. Waldo, 73 111. 71; R. R. v. Wells, 40 111. App. 355; Ravi v. Co. V. Steele, 69 111. 253; O'NeU v. Perry, 39 111. App. 341. Nelson, 32 111. App. 531. ^ Linder v. Monroe, 33 111. 388; ' And. Steph. PI. 80, note; 1 Chit. Pierson v. Finney, 37 111. 29. PI. 124; 1 Humph. Pr. •* Cilley v. Hawkins, 48 III. 309. ■^Kern v. Ass'n, 140 111. 371; Ins. ^ R. R. Co. v. Herr, 54 111. 356; Co. V. Kirk, 28 111. App. 19; Boddie see R. R. Co. v. Tait, 50 lU. 48. V. Mfg. Co., 51 111. App. 303; Glover JUDGMENTS. 827 Usage in this state has justified a judgment for costs with- out stating the amount; but in general, a money judgment must be for a sum fixed.' JiHlgment after death of defendant. — If jurisdiction be obtained of the person of a defendant in his lifetime, b}' service of process or appearance, a judgment against him after his death is not void, but only voidable. And while such a judg- ment can not be attacked collaterally, it may be reversed on error, if the fact of the defendant's death appears from the record; if not, the judgment may be vacated, upon motion, in the court where it was rendered." 'Black on Judgments, Sec. 118; ^Claflin v, Dunne, 129 III. 241. Club V. Baldwin, 59 111. App. 61. CHAPTER XXXYL TRIAL OF RIGHT OF PROPERTY— INTERPLEADER IN ATTACH- MENT. Prior to the enactment of the statute providing for a trial of the right of property, when a sheriff levied an execution on personal property claimed by a party other than the defend- ant in the execution, and he was notified of such claim, if he disregarded the notice and sold the property, he incurred thereby all the liabilities flowing from his conduct in an action brought by the true owner or claimant against him for damao-es; and having no justification or excuse for selling property not belonging to the defendant in the execution, he could not escape a recovery. On the other hand if he refused to sell the property levied upon, the plaintiff in the execution could bring his action for damages. The sheriff was thus placed between two fires with no possibility of escape; and prior to the statute such actions were quite common, result- in o- in great losses to sheriffs and other like officers,' To remedy this evil, the statute of 1845 was enacted, which provided for an inquiry into the rights of the parties claiming the property, by a jury presided over by the sheriff, and enabled the sheriff to interpose the verdict of the jury as his justification for selling the property, or restoring it to the claimant, as the verdict might direct. In the case of Rowe V. Boiven, 28 111. 116, this was held to be the only ob- ject of the statute; that the proceeding did not conclude the parties contesting; that should the verdict of the jury be against the claimant he could, notwithstanding, bring his action against any party meddling with the property, other than the sheriff, and that the sheriff might, notwithstanding a verdict for the claimant, retain and sell the property at his peril if he chose so to do.^ I Rou-e V. Boicen, 28 111. 120. Hihbard v. Thrasher, 65 111. 479; - See Foltz v. Stevens, 54 111. 180; Jones v. Peoj)le, 19 Braclw. 300. (828) TEIAL OF EIGHT OF PROPERTr. 829 The court was driven to this conclusion in order to uphold the law as it then was, for the reason that the proceeding was before the sheriff, and under the constitution, no judicial power could be vested in such an officer. In that case, however, Mr. Justice Caton, in a dissenting opinion, makes the logical point, the effect of which is, that while the proceeding before the sheriff was not judicial, j^et, the statute giving the right of appeal to the circuit court, the parties who availed themselves of it were thereby brought before a tribunal that had the power to hear and determine causes, and therefore its judgment would he res adjucUcata as to all parties and privies. The present statute (Sec. 10) provides that if judgment is rendered in favor of the claimant, the property levied upon shall be released. Under Sec. 11 the defeated party in such a trial may ap]3eal, provided the same is prayed on the day of entering judgment. There was no such proviso in the old statute. This proviso is doubtless mandatory and the prayer on that day a prerequisite to the right, at least, as against a sale before the bond is filed, to perfect the appeal thereafter. The purpose of this requirement, evidently, was that the officer might know whether or not he should proceed to sell, if the time for sale had been fixed to take place within the five days allowed for appeal, or proceed to advertise for sale if it had not already been done.^ The plaintiff and defendant in an execution issued pending a trial of the right of property between the latter as claimant and the judgment creditors of a third person, in goods levied on as property of such third person, are in such privity of relation that both will be alike bound by a judgment finding the right of property against the claimant.' The circuit court is not, by the act providing for trial of right of property in the county court, deprived of jurisdiction to determine the right to attached property claimed by a third person, under the provision of the attachment and garnish- ment act.' Proceedings for. — Section 1 of the statute provides that ' People V. Ward, 41 III. App. 470; ^ Hill v. Reitz, 24 111. App. 391. Ilg V. Eurhaiik, 59 lU. App. 296. ^Springer v. Bigford, 160 111. 495. 830 TRIAL OF RIGHT OF PROPERTY. " whenever an execution or writ of attachment, iss.ued from any court of record, shall be levied by any sheriff or coroner upon any personal property, and such property shall be claimed by any person other than the defendant in such execution or attachment, or shall be claimed by the defendant in execution or attachment as exempt from execution or attachment by virtue of the exemption laws of the state, by giving to the sheriff or coroner notice, in writing, of his claim, and intention to prosecute the same, it shall be the duty of such sheriff or coroner to notify the judge of the county court of such claim." The statute does not require the claimant of property taken on execution to state on whose execution the levy had been made, in the notice he serves. Notice to the officer that he claims the goods levied on, intends to prosecute his claim, and forbids the sale, is sufficient.' A landlord who has distrained upon the goods of his tenant, has a sufficient interest in them to enable him to be the claim- ant of the same on a trial of the right of property, if they are subsequently taken in execution.'' Making the claim to property which has been levied upon is merely an act in pais, and may be performed by an ordinary agent.^ Trial in county court. — Section 2 provides that the judge of the county court shall thereupon cause the proceciing to be entered on the docket of the county court, and the claimant shall be made plaintiff in the proceeding before the county court, and tlie plaintiff in the execution or attachment shall be made defendant in such proceeding. Notice. — Section 3 provides that the clerk of the county court shall thereupon issue a notice, directed to the plaintiff in the execution or attachment, notifying him of such claim, and of the time and place of trial, which time shall not be more than ten da^'^s nor less than five days from the date of such notice. Service of notice — Continuance. — Section 4 provides that such notice shall be served by the sheriff or coroner of any 1 Pearce v. Swan, 1 Scam, 266; » Webber v. Brown, 38 111, 87. ^ Orimsley v, Klein, 1 Scam. 342; TEIAL OF RIGHT OF PROPERTY. 831 county where tlie plaintiff in execution or attachment may be found, in like manner as summonses in chancery are served, at least five days before the day of trial; and if such notice shall be served less than five days before the day of trial, the trial shall, on demand of either party, be continued for a period not exceeding ten days. Notice by publication. — Section 5 provides that in case the sheriff or coroner shall make return of such notice that the plaintiff in the execution or attachment can not be found, the proceeding shall be continued for a period of not exceeding ninety days, and the plaintiff in the execution or attachment shall be notified of such proceeding by publication in like manner as non-resident defendants are notified in chancery cases. Entering appearance. — Section 6 provides that if the plaintiff in the execution or attachment, or his attorney, shall, at least five days before the day. of trial, file with the clerk of the county court a paper entering his appearance in such pro- ceeding, then it shall not be necessary to notify such plaintiff as above provided. Trial — Pleading— Jury.— Section 7 provides that the trial shall be without written pleadings, before the county judge, in the same manner as other trials before the county court, and may be by a jury if either party demand one. A claimant of personal property levied on under an execu- tion against another person, by giving notice of a trial of the rights of property, admits the validity of the execution.' On the trial of the right of property, a recital in the execu- tion of the rendition of the judgment is sufficient proof of the judgment; the claimant, by giving notice, admits the regularity and existence of the proceedings against the defendant." In a trial of the right of property, the only question for de- cision is whether the property belongs to the claimant, and , the burden of proof is upon the claimant.^ Trial by jury. — Section 8 provides that if a jury shall be demanded by either party, the judge shall direct the county ^Thomx>sonv. Wilhite, 81 111. 356; ^Marshall v. Cunnhighmn, 13 111. Merrick V. Davis, Q^ III. 319. 20; Hansen v. Dennison. 7 Bradw. "^Dexter v. Parkins, 32 111. 143. 73; Hardin v. Sissoii, 3G 111. App. 386. 832 TRIAL OF RIGHT OF PROPERTY. clerk to issue a venire for twelve competent jurors, unless the parties to such proceeding shall elect to have the same tried by six jurors, and deliver the same to the sheriff or coroner, who shall summon such jurors from the body of the county, to be and appear before such court at the time set for the re- turn of such venire; and if by reason of non-attendance, chal- lenge or otherwise, said jury shall not be full, the panel may be filled by talesmen. Said court shall have the same power to compel the attendance of jurors and witnesses as the circuit court has, and shall be governed by the same rules in impan- eling a jury.' Subpcpnas for witnesses. — Section 9 provides that the county clerk shall issue subpoenas for witnesses on the demand of either part}^. Judgment — Exempt property— Costs. — Section 10 pro- vides that in case the property shall appear to belong to the claimant, when the claimant is any person other than the de- fendant in execution or attachment, or in case the property shall be found to be exempt from execution or attachment, when the claimant is the defendant in the execution or attach- ment, judgment shall be entered against the plaintiff in the execution or attachment for the costs, and the property levied upon shall be released. If it shall appear that the property does not belong to the claimant, or is not exempt from execution or attachment, as the case may be, judgment shall be entered against the claimant for costs, and an order shall be made that the sheriff or coroner proceed to sell the property levied on. Appeal — Bond — Trial de novo. — Section 11 provides that an appeal may be taken to the circuit court, as in other cases; ])rovided, the same is prayed on the day of the entering of judgment; and the bond shall be given within five days from the time of entering judgment, and the trial in the circuit court shall be de novo.^ Judgment — Indemnity. — Section 12 provides that the judg- ment in such cases shall be a complete indemnity to the sheriff or coroner in selling or restoring any such property, as the case may be. iRev.Stat. (1893) 1458; Rev. Stat. *See People v. Ward, 41 111. App. (1895) 1557; 2 Starr & Curtis, 1413. 470; Ilg v. Burbank, 59111. App. 296. TKIAL OF EIGHT OF PROPERTY. 833 Apportionment of costs— Fees.^Section 13 provides that ii the judgment shall be for the claimant as to part of the prop- erty, and for the plaintiff in execution or attachment as to part, then the court shall apportion the costs in his discretion; and the sheriff, coroner and county clerk shall have the same fees as are allowed by law for similar services. No. 392. Notice to sheriff of claim to proj^erty held by him. State of Illinois, ) County of . [ ^• (Claimant,) vs. V Trial of right of property. (Plaintiff in writ.) To , Sheriff of said County. You will take notice that I claim to be the owner of the following described goods and chattels, to wit (here describe jiroperty), which said goods and chattels were on the day of , 18 — , seized and attached by you under and by virtue of a certain writ of (*) attachment issued out of the office of the clerk of the court of the county of on the day of , 18 — , at the suit of , plaintiff, and against the estate of , defendant; That the said goods and chattels so seized and attached (*) by you as aforesaid were at the time the same were so seized and attached and still are my property and that I intend to prosecute my said claim therefor. You will therefore please notify the judge of tlie county court of your said county of my claim, to the end that a trial of the right of property in the said goods and chattels maybe had as provided by section 1, chapter 140a, of the revised statutes of Illinois. Claimant. If the property has been seized and levied upon, under and by virtue of a writ of Jieri facias, omit all between the aster- isks in the above precedent and insert in lieu thereof the fol- lowing : *' Fieri facias issued out of the office of the clerk of the court of the county of , on the ■ day of , 18 — , under and upon a certain judgment (or decree) rendered by said court on the day of , 18 — , in favor of , plaintiff, and against , defendant; that the said goods and chattels so seized and levied upon," etc. 53 834: INTEEPLEADEE IN ATTACHMENT. INTEKPLEADEE IN ATTACHMENT. Section 29 of the Attachment Act provides that " In all cases of attachment, any ]ierson, other than the defendant, claiming the jDropertj^ attached, may interplead, verifying his plea by affidavit, without giving bail, but the property at- tached shall not thereby be replevied; and the court shall immediately (unless good cause be shown by either party for a continuance) direct a jury to be impaneled to inquire into the right of property; in all cases where the jury find for a claimant, such claimant shall be entitled to his costs; and where the jury find for the plaintiff in the attachment, such plaintiff shall recover his costs against such claimant. If such claimant is a non-resident of the state he shall file security for costs as in case of non-resident plaintiff." ' The statutory interpleader to try the title to property seized by attachment, is a substantial and valuable statutory right, and as it tends to prevent multiplicity of suits, the claimant of the property Avho asserts such right should not be deprived of it on merely technical grounds. The statute allowing an interpleader in an attachment suit, does not, in terms, say that it shall be tried, or even interposed, before judgment in the original attachment suit. But the better practice is, first to settle the matter of the interpleader, and then render judgment upon the attachment; or, if such judgment has already been taken, to open it for the purpose of permitting the interpleader. The remedy by interpleader lies in respect to both personal and real estate," but it must be interposed while the attach- ment suit is still hi fieri, which is before or during the term at which final judgment is entered against the defendant in at- tachment. If an interpleader is not filed in apt time in an attachment suit, the plaintiff should move to strike it from the files. If, however, he demurs to the pleading, this will amount to a waiver of the objection that it was filed too late,^ 1 Starr & Curtis 323; Rev. Stat. Wear, 145 111. 653; 7ns. Co. v. Bank, (1893), 173; Rev. Stat. (1895) 177. 68 111. 348. 2 JuilUard v. May, 130 111. 87; Bost- ^ Juilliard v. May, 130 111. 87. wick V. Blake, 145 111. 85; Ducker v. INTERPLEADER IN ATTACHMENT. 835 Where the issues formed upon an interpleader are found for the claimant after judgment against the defendant in the at- tachment and the issue of special execution, the court will have ample power to see that its process is not abused by mak- ing it the means of selling the property of one for the debt of another for which the former is not legally liable. The court can protect the successful claimant in his rights of property without vacating or changing the judgment rendered at a prior term against the defendant in attachment. A claimant of property attached is not bound by the judgment against the defendant in the attachment, ordering a sale of the prop- erty. He stands in the attitude of a stranger to the record.' The statute contemplates a speedy trial of an interpleader, and yet it gives either party a right of continuance for good cause shown." Under the statute giving any person, other than the defend- ant in attachment, the right to interplead and claim the prop- erty attached, a judgment in favor of a mortgagee so inter- pleading will be conclusive of his rights under the mortgage, as against the attaching creditor. But third persons can not litigate, in the name of the defendant in attachment, their rights to the property attached.^ In an attachment proceeding wherein certain insurance companies were garnished, third persons interpleading and claiming money due therefrom, it is not proper, the court finding that the interpleaders made out their cases, to render judgment in their favor for the amount due them, and for the attaching creditors for the balance; the proper practice in such case is to discharge the garnishees upon payment to the latter of this last sum named." The proceeding by way of interpleader authorized in courts of record, is not applicable to cases of attachment before jus- tices of the peace.^ The only question under an interplea is the title to the ' Juilliard v. May, 130 111. 87. * Glover v. Wells, 40 111. App. 350, 2 Juilliard v. May, 130 111. 87. ^Stafford v. Scroggin, 43 111. App. ^Weber v, Mick, 131 lU, 520. 48. S36 INTEKPLEADER IN ATTACHMENT. property in dispute, and upon this the burden of proof is on the interpleader.' Fraudulent sales being good as between the parties to the transaction, whether the defense to the claim of the purchaser be interposed by the officer or the plaintiff in attachment i uit, he must first estabfish the fact of the indebtedness.' Upon the trial between an intervening claimant of the attached property and the plaintiff in attachment, the judg- ment obtained against the defendant in the attachment suit is no evidence against the intervenor of any debt from the de- fendant to the plaintiff existing before the entry of the judg- ment, nor of the truth of any of the averments in the declara- tion. If the plaintiff attacks the disposition of the property by the defendant for fraud on creditors he must prove his debt Where the sheriff has money deposited in bank as such sheriff, belonging to various execution creditors, and the bank is o-arnisheed for an individual debt of the sheriff, he may, as trustee for and on behalf of the persons for whose use he holds such moneys, interplead, showing the facts of the case, and thereby protect the fund for those entitled to the same. A demurrer to such interpleader recognizes it as properly filed.* In an attachment suit, an interpleader tenders the simple issue of property in the property in controversy, and that question can only be met by a traverse; pleading property in any one else without specifically denying property in the party interpleading, is foreign to the issue tendered and a de- murrer will lie thereto." It is competent for the a-ssignee of insolvent debtors, when his assignors have refused to traverse the facts stated in the affidavit upon which an attachment suit had issued against them, not because those facts were true, but because of collu- ^ Marshall v. Cunningham, 13 111. ^ Springer v. Bigford, 55 IlL App. 30; Dexter v. Perkins, 22 111. 143; 198. Merrick v. Dai-is, 65 111. 319; 5os^ * Meadmccroft v. Agnew, 89 111, wick V. Blake, 145 111. 85; Bank v 469. Canniff, 51 111. App. 579. * Bipley v. Bank, 18 Bradw. 430. '^ Batik V. Canniff, 51 111. App. 579, INTEKPLEADEE IN ATTACHMENT. 837 sion with the plaintiffs in the attachment suits, upon leave of court to intervene by interplea, setting up the assignment and his title to the property, and to traverse in the same plea the alleged facts in which the attachment was issued.' A judgment creditor can interplead in an attachment suit, and set aside a judgment entered therein on a debt not due.' For form of interpleader, see precedent No. 220, page 388, ante. ^FarweU v. Jenkins, 18 Bradw. ^Schilling v. Deane, 36 El. App. 491. 513. CHAPTER XXXVII. TRIAL AND VERDICT. Who may open the case. — The general rule is, that the party having the aflfinnative of the issue, and consequently the burden of the proof, shall open and close the case to the jury.' Where the defendant pleads the general issue and also special pleas and the general issue is not waived, the plaintiff always opens and closes; ^ but if the defendant, at the opening of the trial, waives the general issue; ^ or if he pleads only a special plea in avoidance or justification, and issue is taken upon it, he will be entitled to the opening and closing of the case to the jury.* If, however, the replication to such special plea confesses and avoids it, as in the case of a plea of infancy, where a new promise is set up in the replication, it seems that the plaintiff again acquires the right of opening and closing.* And when there are several issues, if the plaintiff has the affirmative on either, he has the right to open and close the case. Order of proceedings on the trial. — The counsel of the party having the affirmative opens the case by reading to the jurv the declaration and subsequent pleadings, or stating the substance of the same— giving the jury to understand the ques- tions to be determined — and briefly stating the facts and cir- ^ Harvey v. Ellithorpe, 26 III. 418; ^R. R. Co. v. Bryan, 90 111. 126. Heivard v. Slagle, 52 111. 336; Hud- '^ Park Com'rs v. Trustees, 107 Til. dlev. Martin, 54 111. 258; Colwell v. 489; Williams v. Shup, 12 Bradw. Brower, 75 111. 516; Carpenter v. 454; Hai^vey y . Ellithorpe, 2ij 111. il8; Bank, 119 111. 352; McReynolds v. Kelts v. Davis, 57 111. 261. R. R. Co., 106 111. 152; Carroll v. ^ Davis v. Mason, 4 Pick. 156; Holmes, 24 111. App. 453. Sawyer v. Merrill, 6 Pick. 478; 2 Fa?icev. Fance, 2 Mete. (Ky.) 581; Brooks\. Barrett, 1 Vick. 94; Ayer Chesley v. Chesley, 37 N. H. 229; v. Austin, 6 Pick. 225; Edwards v. Carpenter v. Bank, 119 111. 352. Hushing, 31 III. App. 223. (838) TRIAL AND YEEDICT. 839 cumstances of the case, as they will appear from the evidence to be adduced, the application of the evidence to the points in issue, and the principles of law governing the same. He may also state the matters of defense, if they appear from the pleadings, or from a notice of set-off, or the like, and also the evidence by which those matters can be disproved.' The opposite counsel then states to the jury the matters of his client's defense, and the evidence which he will adduce in support of it, and comments upon the statements of the oppo- site part}'', so far as to make his own case intelligible. Or, the counsel may waive his statement of the defense, until the opposite party has rested his case. The usual practice in Illi- nois, however, is for both parties to state their cases respect- ively to the jury, before the examination of witnesses on either side. The limiting of the argument is a matter resting in the sound discretion of the court,'' but it should be reasonably exercised in view of the character and facts of the case on trial.^ Counsel in argument to the jury should not use extrav- agant and intemperate language, calculated to arouse passion or prejudice,' nor use language abusive of the parties, nor refer to irrelevant matters.* If any question arises in the course of the trial, as to the competency of a witness, it must be determined before the witness is allowed to proceed. If a child is offered as a wit- ness, the court will first examine it as to its sense of the obli- gation of an oath, before permitting it to be sworn." Where the objection is upon the ground of the infamy of the witness, such objection ought to be made before the witness is sworn; and the record of his conviction should be produced.' A wit- ness is not bound to answer a question in regard to any offense ^DeWane v. Hanson, 56 111. App. p7e, 107 111. 113; Elgin v. Eaton, 2 575. Brad%v. 90; Herkimer v. Shea, 21 HI. Wostery.3IaGin,nQm.'7rr,Wins- App. 85; E. R. Co. v. Perkins, 125 low V. Bloomington, 24 111. App. 111. 127. 647. ^Draper v. Draper, 68 111. 17. 3 PT/iiYe V. Peop/e, 90 111. 117, "< Moloney v. Daws, 2 Hilton (N- Ry. Co. v. Britz, 72 lU. 256; Ry. 5 Fortune v. Jones, 30 111, App. Co. v. Dunleavy, 129 111. 132. 116; Ry. Co. v. Dunleavy, 129 111, ^ Ry. Co. v. Dunleavy. 129 111. 132; 132; Ry. Co. v. Bouck, 33 111. App. R. R. Co. v. Speer, 156 111. 244. 846 TKIAL AND VERDICT. and notliing is to be presumed in favor of the special find- ings/ The various pleadings are to be construed, where it reason- ably can be done, to support the general verdict.'' A special finding under the statute is not a special verdict; a special ver- dict can not be found where there is a general verdict, while a special finding can be required only where such a verdict is rendered.^ To have any effect upon a general verdict the answer to a special question must relate not to evidentiary facts, but to those ultimate facts upon which the rights of the parties directly depend." Where a party asks for a special finding of fact by the jury and they returi; an answer to the question, if he thinks such finding is not supported by the evidence he should ask for a new trial, assigning such finding as a reason.* The mere failure of the jury to answer a question submitted to them, or the return by them of an irresponsive or unintelli- gible answer, will not entitle the party at whose instance the question was submitted, to have judgment in his favor. That is required by the statute only when the special finding is in- consistent with the general verdict.® The failure of the jury to answer, or their returning an in- sufficient answer, ordinarily, at least, will not entitle the party asking the same, to a new trial. He should object before the jury is discharged, so that, if the objection be well taken, the court mav send them back to perfect their verdict.'' Trial by court — Propositions of law. — Section 41 of the Practice Act provides that " in all cases in any court of record of this state, if both parties shall agree, both matters of law and fact may be tried by the court; and upon such trial either part}'" may, within such time as the court may require, submit to the court written propositions to be held as law in the de- cision of the case, upon which the court shall write ' refused,' ^Ry. Co. V. Dunleavy, 129 111. 132; * Society v. Kalhoun, 61 111. App. R. R. Co. V. Siiear, 156 111. 244; 266. Starrett v. Gault, 62 111. App. 209. ^ Avery v. Moore, 133 111. 74. ^R. R. Co. V. Ooyette, 32 111. App. ^R. R. Co. v. Goyette, 133 111. 21. 574. ''Ibid.; Ins. Co. v. Chetlain, 61 "i??/. Co. V. Dunleavy, 129 111. 182. 111. App. 450. TKIAL AND VERDICT. 847 or ' held,' as he shall be of opinion is the law, or modify the same, to which either party may except, as to other opinions of the court." ' Where a part}^ wishes to preserve the ruling of the court on the law of the case, he should request the court to pass upon an appropriate proposition for that purpose." It has been held that in cases of trials before the court without a jury, where no questions arise on the admission or exclusion of evi- dence, and no written propositions of law are presented or passed upon by the trial court hefore or at the time of render- ing judgment^ as provided by the foregoing section, no ques- tion of law is presented by the record for the determination of the court of appeal.' The written propositions must be submitted iipon the trial so that they may be considered by the court in the decision of the case.* The provision of the statute that they may be submitted " within such time as the court may require " does not author- ize an order of the court giving leave to submit them after the court has rendered a final decision, and erroneous rulings upon them made after final judgment has been entered will not reverse the judgment.* Propositions of law presented to the court should state the law applicable to the case made by the pleadings and proof, with reasonable accuracy, and should be based upon the evi- dence; ° but a proposition of law, unlike an instruction to the jury, may be expressed in general or abstract terms.'' When there is nothing in the case calling for the applica- tion of the proposition it may be refused.* AVhere the court is asked to hold a proposition of law based on a hypothetical case, it should be correctly and completely stated. Where the proposition is correct in principle upon » 2 Starr & Curtis 1808; Rev. Stat * Allman v. Lmnsden, 159 111. 219; (1893) 1076; Rev. Stat. (1895) 1160. Power Co. v. Carlyle, 31 111. Ap^x 325. « Hobbsv. Ferguson, 100 III. 282; Ubid. Farwell v. Shove, 105 111. 61; Ass'ti « Wadhams v. Sican, 109 111. 46; V. Hall, 118 111. 169; Bank v. Haskell, CBannon v. Vigiis, 32 111. App. 473. 124 111. 587. ' Vigus v. (JBannon, 118 111. 334. 3 Alhnan v. Lumsden, 159 111. 219; * G'Bannon v. Vigus, 32 111. App. Davies v. Phillips, 27 111. App. 387. 478. 848 TRIAL AND VEEDICT the defendant's hypothesis and based on evidence, it should not be refused merely because the plaintiff has evidence tending to avoid and destroy its application.' Where there is evidence on the part of the plaintiff he should ask a declaration of the law on his theory as a separate prop- osition or as a proposition to accompany that of the defend- ant/ The court may properly refuse to hold a proposition em- braced in substance in a proposition already held.' The court is not bound to hold every proposition of law asked; it is enough that those held state every essential principle of law.* In a suit where the evidence is conflicting, a proposition that the plaintiff is not entitled to recover is a proposition of fact, and not of law, and will therefore properly be refused.* No. 393. Form of submission of proposition of law. In the court. Term, 18—. A. B. ) V. > Assumpsit. C. D. ) And now comes the by his attorney, and submits the following propositions, and asks that the same may be held as law in the decision of the above entitled cause. 1. That, etc. A. B. , Attorney for . ' Cothran v. Ellis, 107 111. 413. * Ins. Co. v. Hick, 125 111. 361. 2/6. ^Knowles v. Knoivles, 12H 111. 110; ^Knowles v. Knowles, 128 111. 110; B. R. Co. v. Reich, 101 111. 157. CBannon v. Vigus, 33 111. App. 473. GENERAL INDEX. (See Index to Forms, post.) abatement- Pleas TO Jurisdiction and in Abatement. Order of pleading 34 Plea in abatement defined 35 Requisites of plea 35 When must be interposed 36 Statute relating to 37 Premature action, how set up 37 Variance between summons and declaration 37 Amendments to cure matters in abatement 37 Death of sole plaintiff or defendant 38 Death of sole plaintiff 38 Death of sole defendant 39 Several parties — Death of part 39 Death of all on one side .' 40 When plea must be verified s 40 Judgment upon plea 40 Plea by corporation 41 To jurisdiction 42 Of misnomer 44 Of non-joinder of defendant 47 Of non- joinder of plaintiff 48 Of misjoinder 49 Another action pending 51 Pleas in, in attachment 384 (For forms of pleas in, see Index to Forms, Abatement, forms of pleas in, replications, demurrer, etc., post.) ACCOUNT— Action of. When the action lies 247 By whom brought 249 Compelling account 249 Process 250 Form of declaration 250 Trial — Judgment 250 Auditors 251 Hearing — Notice — Default 211 54 (849) 850 GENEEAL INDEX. ACCOUNT -Conh'jiued. Oath— Witnesses 252 Taking account 253 Testimony 253 Compelling witness to answer 252 Adjusting accounts — Report 253 Judgment — Costs 253 Production of books 253 Consolidation of accounts 253 Notice of hearing 253 Continuance — Pleadings 254 Accounting before justice 254 Jurisdiction 254 Power of auditors 255 Action on book accounts 255 Appeal — Error 255 Chancery jurisdiction 255 Suits between executors 256 Limitations 256 Demand 256 Time for which account is to be taken 256 (For forms of declaration, pleas, etc., see Index to Forms, post, Account— Action of.) (See observations following each form.) ACCOUNT STATED— Form of count upon 77 Form of plea of , etc 202 ACCORD AND SATISFACTION— Observations upon plea of 199 Form of plea of 201 Same 203 Form of replication to pleas of 202 ACTIONS— Kind of 3 Forms of 3 Commencement of 5 Sounding merely in damages 7 ADDITIONAL COUNTS— When may be filed 27 ADMINISTRATOR— Form of declaration by, in assumpsit 90 Same, on note 98 Form of declaration on bond of 461 Observations upon 462 Form of declaration by, against R. R. Co. for causing death of tes- tator 647 GENERAL INDEX. 851 ADmNISTRATRIX— Form of declaration by, in case 647 ADMISSION TO BAR— (^ee Attorneys, etc.) AFFIDAVITS— In replevin 307 In attachment 877 For process of garnishment 393 Of merits 149 Observations upon 149 Form of 149 Of plaintiff's claim 11 Form of 12 Of poor person 18 Form of 19 For publication, etc., in distress for rent 621 (For forms of, see Index to Forms, post. Affidavits, forms of.) AGREED CASES— QUESTIONS OF LAW CERTIFIED— Certified to supreme or appellate courts 748 Statutory provisions relating to 748 Must not be feigned 748 Llust first be decided in trial court 748 Questions of law certified 749 Judges may certify 749 Exceptions to, statutory provisions, etc 749 What certificate must contain 749 Rules of supreme court relating to 748 (For various forms relating to, see Index to Forms, j^ost, Agreed Cases — Forms in.) ALIAS WRIT— (See Process for Appearance.) AMENDMENTS— Reform in the practice by 706 Amendments generally 706 Before judgment 708 Terms upon which allowed 709 Of execution, when allowed 709 Of return of process, etc 709 Of records, etc 710 Of pleadings in vacation, etc 712 Of process out of term, etc 712 Of errors in fact after judgment 712 Writ of coram nobis abolished 712 Other statutory provisions 713 Changing cause from law to chancery 713 Judgment after term 714 Bill of exceptions 714 Defects cured by pleading to merits 714 Defects cured by verdict 714 852 GENERAL INDEX. AMENDMENTS— Co?i/«med, Of affidavit in attaclmient 379 To bill of exceptions 714-747 To cure matters in abatement 37 In quo warranto 578 In attachment 379 ANIMALS— Form of count for hire of 77 Form of count for stabling 77 Declaration in trespass for killing 350 Owner of, liable for ti-espass by 337 Declaration in trespass for chasing cattle 349 Declaration in trespass for chasing mare 349 Declaration in case for killing dog 351 Declaration in case for keeping vicious dog 654 Case will lie for overdriving, etc 669 Form of declaration for 668 ANOTHER ACTION PENDING— Form of plea 50 Replication to 50 Observations upon 50 ANSWERS— Form of answer of garnishee 395 Form of answer to petition for mandamus 553 APPEAL— In quo warranto 576 From an award 594 From judgment by confession 615 In trial of right of property 832 APPEAL BOND— Action in debt upon 433 Form of declaration upon 445 APPEARANCE— PROCESS FOR— -See Process fob Appearance. APPRENTICE— Action by, against master 274 Form of declaration 274 Form of plea to 281 ARBITRATION AND AWARD— Nature of the proceedmg, etc 582 Statutory submission 582 In suits pending 582 Proceedings by arbitrators 583 Oath of arbitrators 584 Subpoenas for witnesses 585 Swearing witnesses 585 The hearing, etc 585 GENEEAL INDEX. 853 ARBITRATION AND AW AliB—ConUmied. The award — Publication of 586 Prima facie award is considered valid 588 Either party not complying 588 Filing of award in court 588 Judgment upon award , 588 Enforcement of award 589 Award, when set aside 589 For fraud 590 For mistake 593 Award prepared by attorney for one of the parties 593 Signing of award 593 When court may correct award 593 When motion to set aside, or modify must be made 594 Error and appeals 594 Compensation of arbitrators 594 Fees of witnesses, etc 594 Arbitrators may be compelled to act 595 Record of reference, etc 595 In controversies not in suit 595 Statutory provisions relating to 595 Construction of the statute 595 Proceedings under section 16 596 Award under section 16 596 Common law submissions 596 Differ from statutory submissions 596 How submitted 597 Revocation of submission 598 Who may be arbitrator 599 General iwwers and duties of arbitrators 600 Recommitting an award 601 Form of plea of 204 Form of replication to plea 204 Same, denying award 205 Same, to plea of award 205 Form, rejoinder to replication to a plea of award 205 (For forms relating to, see Index to Forms, post, Arbitration AND Award.) ARBITRATION BOND— Plea to declaration upon in debt 501 ARREST OF JUDGMENT— When it will be arrested 733 When it will not be 733 Time and manner in moving in arrest 736 ASSAULT AND BATTERY— Trespass will lie for 323-325 Form of declaration for 344^5_6 854 GENERAL INDEX. ASSAULT AND BATTERY- Continued. Observations upon 345 (See Trespass and forms relating to, Index to Forms, post.) ASSUMPSIT— Action of— Nature of the action, etc 70 Express assumpsit 70 Implied assumpsit 70 Special assumpsit 71 Where it lies, etc 71 Consideration of promises 74 Privity of contract 75 Commencement of the action 75 Declarations in 75 Indebitatus' assumpsit 76 Money had and received 81 Money paid and expended 83 Work and materials 84 Quantum meruit 84 Quantum meruit count 85 Quantum valebant count 85 Common counts 86 Special counts 91 Declaration on bills of exchange 113 Declaration on warranties 118 By landlord v. tenant 121 On promises to marry 123 Against bailees 127 Against common carriers 129 On policies of insurance 137 Miscellaneous declarations 143 (See observations following forms.) (For forms of declarations, pleas in abatement, replications, pleas in bar, rejoinders, demurrers and other forms con- nected with the action, see Index to Forms, post, Assump- sit, Action of, and Defenses to.) ASSUMPSIT— Defenses to— The General Issue 146 Observations upon. 146 Form of plea of 148 Affidavit of merits 149 Form of 149 General issue, with notice 150 Form of notice of set-off 151 Plea of Statute of Limitations 152 When begins to run 154 New promise, 155 On foreclosure 157 GENERAL INDEX. 855 ASS UMFSIT— Continued. Form of 157 " " replication to 158-159 " " rejoinder 159 Plea of Infancy 160 Observations upon 160 Form of 163 " " replication to 163-164 " " rejoinder to 164 Plea of Statute of Frauds 164 Collateral and original undertakings 166 Form of 169 " " replication to 169-170 Plea of Fraud 170 Observations upon 170 Diligence required of maker of note 173 " " of assignee of note 173 Forms of 174, 175 " "replication to 175 Plea of Usury 176 Observations upon 177 Form of 183 " " replication to 184 Plea of Set-off 183 Observations upon 183 No dismissal after 189 Form of 189 " " replication to 190 Plea of Release 191 Observations upon 191 Form of 194 " " replication to 195 Plea of Payment 195 Observations upon 195 Form of 197 " " replication 198 Plea of Accord and Satisfaction 199 Obsei-vations upon 199 Form of 201, 202 " " replications to 202, 203 Plea of Arbitrament and Award 203 Observations upon 203 Form of 204 " " replication to 204, 205 Plea of Former Adjudication 205 Observations upon 205 Form of plea of judgment recovered 208 " " replication to 209 856 GENERAL INDEX. ASSUMTSIT— Continued. Plea of Tender 210 Observations upon , 210 Form of plea of 213 " " replications to 215, 216 Plea by Surety 216 Further time given to principal 216 Notice by surety to prosecute , 219 Death of principal — Diligence against estate 221 Form of pleas 222 Plea of Breach op Warranty 223 Observations upon 223 Form of plea 225 Plea of Want or Failure of Consideration 226 Observations upon 226 Form of pleas 227,228, 229, 230, 231, 233 Plea of Illegal Consideration 234 Observations upon 234 Form of pleas 235 " " replications to 235 Plea of Discharge in Bankruptcy 236 Observations upon 236 Form of plea 238 Plea Denying Execution of Written Instrument 239 Observation upon 289 Form of plea 239 Plea Denying Joint Liability 241 Observations upon 241 Form of pleas 241 Plea of Nul Tiel CorporatiC)N 242 Observations upon 242 Form of plea 244 Plea of Puis Darrein Continuance 244 Observation upon 244 Form of plea 247 ATTACHMENT— Proceedings in— Nature of proceedings, etc 373 Where it lies, etc 376 Commencement of Proceedings in 377 By affidavit, etc 377 Forms of affidavit , 377 Traversing affidavit 378 Amendments , 379 Where suit to be brought 379 Plaintiff to give bond 380 Against joint debtors , 380 Execution of the writ, etc 381 The declaration, etc 382 GENERAL INDEX. 857 A^:TACn^^TENT— Continued. Garnishees, etc 382 Notice by publication 383 Default 38?. Continuance for service 383 Defenses to the Proceeding 384 Plea in abatement traversing affidavit 384 Practice and Pleadings in 385 Forthcoming bonds, etc 386 Bond, etc. , for return of property 386 Interpleader by Third Party 387 Statute relating to 834 Obsei-vations upon •. 834 Form of interpleader 388 Attachment in Aid of Suit Pending 388 Form of affidavit for 389 Service 390 Judgment where there is no personal service 390 Sale of property on execution 391 Division of proceeds, etc 391 By sheriff, etc 398 Proceeds brought into court, etc 393 {See Garnishment, 2^08 f.) Attachment of Water Craft 403 Lien upon, etc 403 For what lien is given 403 Lien on goods for freight 404 Limitation of proceedings 404 Petition to Enforce Lien 404 Bond to be filed, etc 404 Notice by publication 405 Intervening creditors 4C6 Bonding vessel '. 406 Appraisement, restitution, sale, etc 406 Answer, affidavit of merits, default, etc 406 Judgments, decree of sale 407 Amendments, etc 407 Distribution, etc 407 Jurisdiction 407 Prior liens 408 (See observations following each precedent.) (For forms in Attachment, and Attachment of Water Craft, see Attachment, proceedings in, etc.; Index to Forms, post.) ATTACHMENT BOND— Declaration upon 466 Observations upon 467 ATTORNEYS AND COUNSELORS AT LAW— Form of count for services 78 858 GENERAL INDEX. ATTORNEYS AND COUNSELORS AT 'LAW— Continued. Form of declaration against, for negligence, etc 670 Observations upon 671 Nature of the office, etc 762 How admitted 762 Qualifications 763 Authority of 764 It can not be delegated 766 Retainer, etc 767 Agreements made by, for clients, etc 767 Admissions by, etc 768 Tei-mination of employment 768 Duties and Liabilities 768 Duty to court 769 Ought not to be witness for client, etc 769 Acting in another capacity 770 Can not act on opposite sides 770 Liability to third persons 771 Dealings between attorney and client 771 Assigned by court to defend prisoners 772 Eights and Privileges 773 Privileged communications 773 Fees, etc 774 On confession of judgment 610 Lien of, etc 774 Change of attorney 775 AUDITORS— {See Account— Action of.) AVOWRY— Form of, for rent in replevin 818 Form of plea to, denying demise 818 Form, same, no rent in arrear 819 AWARD— (.^ee Arbitration and Award.) Debt will lie upon 427 Form of declaration on 438 Form of plea of award 204 Form of plea of no award 501 Form of replication to plea of award 205 Form of replication to plea of arbitrament, denying award 204 (See observations following forms.) BAILEES— Form of declaration against hirer of horse, etc 127 Same, overloading, etc 668 BAIL IN CIVIL CASES— When required, etc 7 In actions ex contractu 7 In actions sounding merely in damages. 7 GENERAL INDEX. 859 BAIL IN CIVIL CASES— Continued. Plaintiff to give bond 8 Bail bond, etc 8 (For forms in Bail in Civil Cases, see Index to Forms, 2iost, Bail in Civil Cases.) BANK CHECK— Form of declaration on Ill BANKRUPTCY— PLEA OF DISCHARGE IN— (See Discharge in Bankruptcy.) BILLS OF EXCEPTIONS— Objections to decisions of court preserved by, etc 737 When exceptions must be taken 739 Signing, etc ., of bill of, etc 739 Death of judge before signing 741 What the bill should contain 741 When necessary 741 Form of, to decision of the court, on evidence, etc 746 Form of, on refusal to grant continuance 747 Amendment of 71 4-747 BILLS OF EXCHANGE— (See forms of declarations upon. Index to Forms, post, As- sumpsit, Action of, and Debt.) BILL OF PARTICULARS 81 BOARD AND LODGING— Form of count for, in assumpsit 77 bond- Administrators- Declaration upon 461 Observations upon 468 Attachment 380 Forthcoming bond in 386 Arbitration — Plea to declaration upon arbitration bond 501 Capias Ad Res. Of plaintiff 8 Form of 10 Of defendant 8 Form of 10 Guardian — Declaration on bond of 457-459 Observations upon 457-460 Injunction — Declaration on bond 469 Observations upon 470 Replevin— Declarations on bond 448-450 Observations upon 450 860 GENERAL INDEX. BOND — Continued. Plea to declaration 503 Observations upon 503 Sheriff — Declaration on bond of 453 Observations upon 454 BOND FOR COSTS— {See Security for Costs.) BOND— Action in debt for breach of 431 BOOKS OF ACCOUNT— (^ee Evidence.) BKEACH— Of promise to marry 123 Form of declaration for 123 Observations upon 124 Of Warranty — Plea of, to declaration on note. 225 Same 228 Same 229 Same, of title to land 226 BURDEN OF PROOF— Under plea in replevin of property in defendant or stranger 313 CASE, ACTION ON THE— Nature of the Action, etc 626 Distinction between trespass and trespass on the case abolished .... 626 "Where the action will lie, etc 626 Negligence 631 Commencement of the action. 633 Declaration in 633 Trespass and trover may be joined with 633 In what county railroad company may be sued 637 Action for Slander, etc 678 When will lie 678 Malice essential to action 681 Declaration for Slander and Libel 685 Reqviisites of 685 The statement 685 The colloquium 687 The innuendoes 687 Slanderous words in foreign language 690-694 Defenses to the Action 698 Pleas in bar 699 Special pleas generally 699 General issue in actions for slander or libel 700 Damages 700 Special pleas in actions for slander and libel 703 GENERAL INDEX. 861 CASE, ACTION ON TB.E—Conti7med. Justification 703 De injuria , 704 (See observations following each precedent.) (For forms of declarations, pleas, etc., see Index to Forms, j)os^, Case— Action on the.) CAPIAS AD RESPONDENDUM— In what cases may issue 7 Actions sounding merely in damages . . 7 Plaintiff to give bond 8 Bail bond 8 Forms of affidavits for 8-9 Observations on 9 Form of order for 10 Form of plaintiff's bond, etc 10 Form of defendant's bond, etc ' 11 In action against drover, etc 480 CARRIERS— (See Common Carriers.) CATTLE— (See Animals.) CERTIFICATE OF LEVY— Of writ of attachment 381 CERTIORARI— The Common Law Writ 555 Its nature and purposes 555 The Statutory Writ 558 Its nature and purposes 558 T'HE Petition, etc 560 Requisites of, etc 560 Form of petition for, etc 563 (See observations following forms, etc.) CHANGE OF VENUE— In civil cases , . . . . 776 When the same may be had ! 776 Interest or prejudice of judge 776 Prejudice, etc. , of inhabitants 776 Notice of ai>plication, etc 777 Tlie petition for, etc 777 When application to be made 778 By whom made 779 By part of plaintiffs or defendants 779 Order granting in vacation 779 Terms and conditions of, etc 779 Costs of the change 780 When to be paid 780 Transcript, papers, etc 780 To what court sent, etc 780 Docketing cause, etc 781 SG2 GENEKAL INDEX. CHANGE OF YE^VE— Continued. Irregularities waived, etc 781 In criminal cases 781 To wliat judge 782 (For forms of notice, petition, etc., see Index TO FOKMS, post, Change of Venue. ) CITY— Declaration in case against, for permitting sidewalk to remain out of repair 649 Observations upon 649 COGNOVIT— (S'ee Confession of Judgment.) COMMENCEMENT OF AN ACTION— The praecipe 5 Affidavit of plaintiff's claim 11 Parties to an action 19 Suits for use of another 20 Against insane person 21 Against infant 21 Copy of account sued on 28 (See Security for Costs— Bail in Civil Cases— Declara- tion- -Process for Appearance). COMMON CAKRIER— Form of declaration for loss of goods, etc 129 Form, same, against captain of ship, etc 130 Duties and liabilities of, etc 132 Foi-m against railroad company for not delivering goods, etc 671 Form against proprietor of stage coach 653 COMMON COUNTS— Form of 76-86 Form of consolidated 78 COMPARATIVE NEGLIGENCE— Doctrine abolished in Illinois .' 63 (See Case.) CONFESSION OF JUDGMENT— In Illinois 606 Practice 606 The declaration 606 Warrant of attorney 606 Form of proof of warrant of attorney 607 The cognovit 607 Form of cognovit 608 In term time 608 In vacation — Power of clerk 609 When may be taken before maturity 610 Attorney fees 610 Confession by a partner 610 GENERAL INDEX. 863 CONFESSION OF JUDGMENT— Confimted. Confession by a corporation 611 by an infant 611 In cases of tort 611 Sureties 611 Vacation of judgment 613 Limitations 614 Power to confess in lease 614 In forcible detainer 615 Appeal 615 Vacation, what is 615 CONSIDEEATION— Must be on promises 74 Want of, for given note 227 Form of plea of total failure of, for given note 228 Form, same, etc 229 Form, plea given for fees, etc 230 Form in su t by assignee, etc 231 Form, partial failure of 233 Form of, in action of debt 493 (See observations, preceding and following precedents.) {See Illegal Consideration.) continuance- How and when applied for 716 For absence of witnesses, etc. ... 7j 6 Form of affidavit for, etc 717 By reason of amendments 703 For want of declaration, etc 722 Defendant in military service 723 Pai'ty or counsel in legislature 723 On remanding cause from supreme or appellate courts 723 Terms may be imposed, etc 793 By operation of law 794 In attachment for want of service 383 In trial of right of property 830 CONSTABLE— (.See Sheriff.) Form of declaration for seizing, etc. , property exempt, etc 351 Form of plea justifying arrest, etc 364 Form, same, etc 365 CONTRIBUTORY NEGLIGENCE— (5ee Case.) COPY OF INSTRUMENT OR ACCOUNT SUED ON— Statute requiring 29 Continuance for want of 29 Waiver of 30 With plea of set-off 31 CORAM NOBIS— Writ of, abolished 712 86-i GENERAL INDEX. corporations- How served 23 Plea in abatement by 40 Confession of judgment by 611 CORPORATION— NUL TIEL— Plea of— {See Nul Tiel Corpora- tion.) COSTS— On change of venue 780 In action of account 253 In trial of right of property 833 {See Security for Costs.) COVENANT -Action of— Where the action Ues, etc 264 Covenants in deeds, etc. , breaches of, etc 266 Defenses to the action 278 Pleas as to part, etc 279 Pleas to several counts 280 (See observations following each precedent.) (For forms of declaration, pleas, etc., see Index to Forms, post, in Covenant — Action of.) COUNTY CLERK— (5ee Marriage License.) CRIMINAL CASES— Change of venue in 781 CRIMINAL CONVERSATION— Trespass will lie for 324 Form, same, in trespass , 348 Case will lie for 629 Form of declaration for, in case 660 (See observations following each precedent.) CROSS-MOTION— For leave to file security for costs 15 DAMAGES— In replevin 319-20 In trover 297 In trespass 348 Measure of 343 Vindictive 847 In qui tarn actions ' 430 On injunction bond 470 DEATH— Of party to suit 38-40 Of garnishee 402 Of defendant in mandamus 548 Of trial judge pending motion for new trial 795 Of trial jvidge before signing bill of exceptions 741 DE BONIS ASPORTATIS— Form of common count for, in trespass 349 GENEEAL INDEX. 865 DEBT— Action of— Where the action lies, etc 425 Penal actions under statute 428 Commencement of the action 430 Form, praecipe for summons 430 Declaration in 430 Precedents of 434 Payee v . maker of note 436 On bill of exchange 438 On an award 438 On a judgment 440 Same, of another state 440 On a judgment of J. P 442 Action for rent 442 On single bill or sealed note 443 On appeal bond to supreme court 445 On replevin bond 448 Same 450 On sheriff's bond 453 On guardians bond 457 Same 459 On administrator's bond 461 On attachment bond. 466 On injunction bond 469 On license bond 475 Against seller of liquor, etc 476 On statute for cutting trees 477 On statute against drover 480 Against sheriff for not admitting attorney 482 By landlord against tenant 483 For delinquent taxes 484 Profert — when necessary 444 Actions on penal bonds, etc 444 Judgments in actions on penal bonds, etc 445 Exceptions and provisions in statute 481 Statutory actions against railroads 485 Statutory actions against county clerk or minister for violation of statute on marriages 486 Defenses to the action 486 Pleas in abatement 487 Pleas in bar 487 Special non est factum 491 Demurrer after craving oyer 504 (See observations following each precedent.) (For forms of declarations, pleas, etc., see Index to Forms, post, Debt, Action of.) DECEIT— Case will lie for 628 55 866 GENERAL INDEX. DECEIT—Contimied. Declai-ation for obtaining goods on credit by 663 for deceit in warranty of a horse 664 for deceit in sale of wool 665 Observations upon 665 DECLARATION— Variance 27 Additional counts 27 Time for filing 28 Copy of account sued on 28 Continuance for failure to file 29 Dismissal for failvu^e to file 30 Waiver of copy of account 30 V/ith plea of set-off 31 Bill of particulars 31 Where judgment confessed 606 (For forms of declarations, see Index TO Forms, post.) DECREE - Action of debt will lie upon, of other state 427 DEFAULT— Where no affidavit of merits is filed with plea, etc 11 When set aside 798 Judgment by 798 Assessment of damages upou, etc 822 In attachment 383 DEFECTS— Cured by pleading to merits 714 Cured by verdict 714 DEFENSES TO AN ACTION— Motions to Quash or to Dismiss 32 How made 32 When must be made 33 When writ will be quashed or suit dismissed on motion 33 Pleas to the Jurisdiction and in Abatement 34 Order of pleading 34 Pleas in abatement 35 Requisites of 35 When must be pleaded 36 Statute relating to 37 Premature action 37 Variance 37 Amendments to cure matters in abatement 37 Death of sole plaintiff or defendant 38 Death of sole i^laintiff 38 Death of sole defendant 39 Several parties— death of part 39 Death of all on one side 40 GENERAL INDEX. 867 DEFENSES TO AN ACTIO'N— Continued. Judgment upon plea 40 Plea in abatement by corporation 41 To jurisdiction 43 Of misnomer 44 Of non-joinder 46 Of misjoinder 49 Another action pending 50 Pleas in Bar 53 Special pleas in bar 55 Must answer all that it professes to answer 57 Pleas as to a part, etc 57 Common and special similiter to plea 58 Leave to file pleas 58 Additional pleas 58 Replication to Pleas 59 Demurrer 60 Nature of 60 May be carried back 61 Effect of demurrer 62 Pleading over 62 Waiver of demurrer 62 May be general or special 63 Judgment upon 66 Demurrer to evidence , 66 Joinder in 68 Defenses to the Action of Assumpsit— {See Assumpsit, Defenses to, etc.) DE INJURIA— Form of replication of, in case 704 Form, same, in trespass 359 DEMAND— In action of account 256 In trover 289 In replevin 306 In proceedings for mandamus 546 DEMURRER— Nature of 60 May be carried back 61 Effect of 62 "Waiver of 62 Pleading over 62 May be general or special 63 Special demurrers defined 63 General observations on 63 Judgment upon 66 To evidence 66 Joinder in 67 868 GENERAL INDEX. BEMJJ'RKER—Contimied. After craving oyer 504 (For forms of demurrers, see Index to Forms, post.) DENIAL— Of joint liability {see Joint Liability.) Of execution of instrument (see Execution.) DEPOSITIONS— OS'ee Evidence.) When they may be taken 807 Witnesses residing in another county, etc 808 Form of atfidavit to be filed, etc 808 Form of notice to be given, etc 809 Witnesses residing in state, non-resident witnesses, etc 810 Form of notice and interrogatories 811 Non-resident witnesses on oral inten-ogations, etc 813 Notice by mail, etc 813 Instructions for taking, etc 814 Form of caption to, etc 814 Form of certificate, etc 815 Exceptions and objections to 818 (See observations following each form.) DILIGENCE— Required of maker of promissory note 102 DISCHARGE— In Bankruptcy. Observations upon plea of 236 Form of plea of 338 DISMISSAL OF SUIT— When motion for must be made 32 How made 32 When granted 33 For want of security for costs 14 For failure to file declaration 30 After plea of set-off 189 DISTRESS FOR RENT— Nature of , etc 616 Landlord's lien, etc 616 What may be distrained 617 Form of distress warrant 619 Execution of warrant— When a trespass 328 Return of —Inventory 620 Form of inventory, etc 620 Summons to be issued 620 Notice to non-residents, etc 620 Pleadings 621 Procedure 621 Defenses 621 Set-off 621 Form of affidavit for publication 62] GENERAL INDEX. 869 DISTRESS FOR RE^T— Continued. Judgment for plaintiff 632 Where there is no personal service 628 Judgment for defendant 623 Release of property distrained, etc 623 Perishable property 623 Rights against sub-lessee 624 DOG— (See Animals.) DRAM SHOP ACT— (See Intoxicating Liquors.) DROVER— Action of debt will lie against 429 Statute 429 Form of declaration against 480 Capias ad res. against 480 Observations upon 480 duplicity- How taken advantage of 63 DURESS— Form of plea of 497 Form of replication to plea 497 Observations on 497 EJECTMENT— Action of. Nature of the action, etc 409 When the action lies, etc 409 Title necessary to sustain 411 By landlord against tenant 413 Against tenant by another than landlord 415 Who may maintain, etc 413 Against whom to be brought 414 Commencement of the action 416 Declarations in 416 Defenses to the action 418 Claim of mesne profits , . . . 420 Defenses to claim for mesne profits 421 Revival of judgment 424 Common source of title 424 (See observations following each form.) (For forms of declarations, suggestions of mesne profits and, pleas, etc., see Index to Forms, post, Ejectment, Action of.) ENGINEER— Action of debt will lie against, under statute when 429 ESCROW— Plea in debt that bond was delivered as an 491 EVICTION— Plea of 501 Replication to 502 870 GENERAL INDEX. EVIDENCE~(5^ee Depositions.) Demurrer to 66 Mode of procuring, etc 801 Documentary Evidence 801 Form of notice to produce on trial, etc 802 Production of books and writings 803 Books of account as evidence 804 Oral Testimony of Witnesses, etc 806 Attendance of witnesses, how procured 806 Form, prcecipe for subpoena for witnesses 806 Tender of fees, when required 807 Habeas corpus ad testificandum 807 EXCEPTIONS— (See Bills of Exceptions.) To report of referee 758 Form of 760 EXECUTOR— Form of common count, on promise to testator with profert of let- ters, etc 89 Form, same on note, etc 97 Form, in trover, for a conversion in lifetime of testator 293 Form of declaration by indorsee of, against maker 96 (See observations following each form.) EXEMPTIONS— Of defendant from arrest on civil process 25 Of defendant from service of summons 24 Trespass will lie for taking exempt property by an officer 328 Declaration against constable for seizing exempt property 351 EXECUTION— Replevin will not lie for goods taken on 299 Amendments to 709 Of Written Instruments. Pleas denying 239 Observations upon 239 EXTORTION— Debt will lie against R. R. Co. for 485 FAILURE OF CONSIDERATION— (5fee Consideration.) FALSE IMPRISONMENT— Form of declaration for in trespass 347 Observations upon 348 Form of declaration for in case 655 Observations upon 657 FEES— Of witnesses in arbitration 594 Of referees 759 Of attorneys 774 Of attorneys as damages in suit on injunction bond 474 GENERAL INDEX. 871 FENCING— Declaration v. R. R. Co. for not 643 Observations upon 643 FORCIBLE DETAINER— Confession of judgment in 615 FORMER ADJUDICATION— (See Judgment Recovered.) FORMER CONVICTION— Form of plea of, in debt, on statute 503 FORMS OF ACTIONS 3 FORNICATION— Form of declaration in slander for words charging C91 FRAUD— Observations on plea of 170 Diligence required of maker of note 173 Diligence required of assignee of note 173 Forms of pleas 174-175 Form of replication to 175 As ground for attachment 376 Award may be set aside for 590 {See Deceit.) FRAUDS —Statute of.— (See Statute of Frauds.) GAMBLING CONTRACTS— Form of plea that note was given in settlement of 235 Same, gambling in options 235 GARNISHEES— (See Garnishment, Attachment, etc.) GARNISHMENT— In attachment proceedings 382 Form of affidavit for, on judgment, etc 393 Service and return of summons in 393 Interrogatories and answers, etc 393 Form of interrogatories to garnishee 394 Form of answer of garnishee 394 Plaintiff may contest answer 395 Garnishee may deduct demands, etc . 396 Other claimants to effects in hands of garnishee 397 Garnishee may contest proceedings, etc 398 What is subject to garnishment 399 Non-resident garnishees 401 Judgment 401 Conditional judgment 401 Final judgment 401 Form of judgment 402 Death of garnishee, etc 402 Effect of judgment against garnishee 402 When debt of garnishee is not due, etc 402 GENERAL ISSUE— (See Defenses to the Various Actions.) 872 GENERAL INDEX. GOODS SOLD AND DELIVERED, ETC.-- Form of count on 76 Form, same, bargained and sold 76 GUARANTOR— Form of declaration against on note 108 Observation on 101-108 GUARDIAN— Foi'm of declaration on bond of, etc 457 Form, same, etc 459 Observations upon 458 HABEAS CORPUS— History of the remedy, etc 505 When writ will be granted, etc 507 By whom application for may be made 509 To whom made, etc 510 Form of application 511 Allowance and issuing writ, etc 515 Indorsement 515 Service of the writ, etc 515 Expense of, etc 516 Return of, etc 516 Precedence given to writ 517 Examination, etc 518 Denial of return, etc 518 Causes for discharge 518 {See observations following each form.) (For forms in proceedings by Habeas Corpus, see Index TO Forms, post, Habeas Corpus.) HORSES— (See Animals.) ILLEGAL CONSIDERATION— Plea of— Observations upon 234 Forms of pleas 235 Form of replication to 235 INDEBITATUS COUNTS— (fifee Forms of in Index to Forms, in As- sumpsit AND Debt.) INDORSER— Form of declaration against 99 Observations upon 100, 105, 106, 107 INFANCY— Plea of— Observations upon 160 Form of 163 Form of replications 163, 164 Form of rejoinder 164 INFANTS— Suits by 14 Suits against 21 Confession of judgment by 611 GENERAL INDEX. 873 INFORMATIOX— (e Quo Warranto.) INJUNCTION BOND— Form of declaration on 469 Observations on 470 Assessment of damages on 470 INSANE PEESONS— Suits against 21 INSOLVENCY— Form of declaration in slander for words imputing 694 INSURANCE POLICIES— Form of declaration on, in assumpsit 137 Form, same, etc 140 Form, same, in covenant 276 (See observations following each precedent.) INTENT— Wrongful— Not necessary to constitute trespass 329 INTEREST— Need not be specially claimed in declaration except when given by statute 437 Form of common counts for 77 INTERPLEADER— By third party in attachment, etc 387, 834 Tlie statiite 834 Observations upon 834 Form of, by third party claiming property 388 INTERROGATORIES— To garnishee 393 Form of 394 INTOXICATING LIQUORS— Declaration against seller by widow 672 Same against seller and landlord G73 Observations upon 674 JOINDER OF COUNTS— In different kinds of trespass allowed 344 Replevin and trover may be joined, etc 292 Allowed in trover and case 292 Counts on specialty and on simple contract may be joined 431 Counts in debt and assumj)sit can not be joined 431 JOINT DEBTORS— Attachment against 380 JOINT LIABILITY— Plea denying 241 Observations upon 241 Form of plea, by one defendant 241 Form, by defendants, denying 241 87-1 GENERAL INDEX. JOINT TI^ESPASSERS— Ti'espass will lie against S32 JUDGE - Death of, before signing of bill of exceptions 741 To what venue may be changed ' 783 (See SuBjiussiON to Judge.) JUDGMENT— Upon demurrer 66 In action of account 253 In trover 291 In replevin 320 In personam, in attachment 375 In attachment when defendant is not personally served 390 In garnishment, conditional 401 Final 401 Effect of 402 Form of 402 In attachment of water craft 407 In action on penal bonds 445 In quo icai'mnto proceeding^ 575 Upon an award 583 In distress for rent 622-3 In trial of right of property 832 Amendment of 714 Form of declaration in debt upon 440 Observations upon 440-1 Revival of judgment— (See Scire Facias.) (See Arrest of Judgment and Confession of Judgment.) JUDGMENTS— (See Confession of Judgment.) Nature and Effect of, etc 821 Interlocutory or final, etc i 821 By default, etc 821 Damages, assessment of 822 Of non-suit, etc 824 Effect of, etc 824 On demurrer 825 On verdict 825 Form of judgment, etc 825 Judgment after death of defendant 827 Forms of Declaration on. On judgment in same court 440 Same, of another State 440 Same, of J. P.of another State 442 Motion in arrest of 733 (See observations following each form.) Form, scire facias to make party to 524 Form, same, to revive, etc 526 GENERAL INDEX. • 875 JJJBG^IE^T— Continued. Observations on, etc 526 Upon plea in abatement 40 JUDGMENT RECOVERED— Plea of 205 Observations upon 205 Form of plea of 208 Form of replication to plea 209 (See Arrest of Judgment.) JURISDICTION— Form of plea to jurisdiction of the court 41 Observations on 42 Of state and federal courts over navigable waters 407 JURY— Right of trial by 725 Who are competent jurors 736 Who are exempt 726 Challenge of jurors 727 to the array 727 to the poll 728 for cause 728 peremptory, etc 729 Polling the jury, etc 731 JUSTICE OF THE PEACE— Form of plea by, justifying issuing of capias, etc 364 Certiorari to. etc 558 Form of petition for certiorari to. etc 563 When trespass will lie against 324 Form of declaration upon judgment of, of another state 443 Observations u^jon 443 JUSTIFICATION- FORMS OF Pleas and Replications, etc. — In slander, of words imputing perjury 703 Replication, de injuria to plea 704 In slander, words imputing larceny 705 By sheriff, of seizure under execution 367 By same in trespass, etc 3o9 Replication to 359 By school master, of battery, etc 363 By a J. P. for issuing a capias ad res 364 By constable for arrest without process, on suspicion, etc 364 Same, another form 365 Of arrest by jirivate person, etc 36 7 (See observations foUowmg each form, also Case, Trespass and Replevin.) LABOR AND SERVICES— Form of common count for, in assumpsit 76 876 ■ GENERAL INDEX. LANDLORD AND TENANT— (See Distress for Rent, Ejectment.) Form op Pleadings, Relating to— Declaration, landlord v. tenant, for double rent under the stat- ute, etc 483 Avowry or cognizance for rent 318 Plea to, traverse of demise 318 Same, no rent in arrear 319 Declaration on covenant to pay rent 273 Same for not cultivating, etc., in husbandlike manner 121 Same, for not repairing, etc 122 LARCENY— Form of declaration in slander for words charging 693 LEASE— Declaration on covenant to pay rent ' 273 Observations upon 273 LIABILITY— Joint— (See Joint Liability.) LIBEL— Defined 698 Form of declaration for, in a newspaper 695 Same, by letter 696 General issue in actions for 700 LIBERUM TENEMENTUM— Form of plea of 372 Observations upon 372 Form of replication to plea of 373 A good plea to trespass clausum fregit 374 Form, new assignment to plea of 374 Observations upon 374 LICENSE— Form of plea of, in trespass to real estate 370 Form of replication to plea of 370 Observations on plea of 370 Of attorneys, etc 762 (See Marriages.) LICENSE BOND— Declaration upon 475-6 Observations upon ■ 476-7 LIEN— Of attorneys, etc 774 Form of plea of, in replevin 317 Observations on 318 Form of plea that property was held as a pledge 317 Priority of, in attachment of water craft 408 LIMITATIONS— Statute of— Observations upon 152 Form of plea of 157 Form of replication denying plea of 158 GENERAL INDEX. 877 LIMITATIONS— Co« tinned. Same, that defendant was out of state, etc 159 Form of rejoinder that action was commenced within, etc 159 In action of account . , 256 In qtio ivarranto proceedings 567 In confession of judgment 614 LUNATICS— Suits against ." .' 21 MALICIOUS PROSECUTION— Case will lie for 639 Form of declaration for 655 Observations on 257 MANDAMUS— Nature and purpose of the writ 539 Award of, discretionary with court 539 In what cases awarded 540-542 When will not lie 544 Jurisdiction of the court in , etc 544 Tlie relator, etc 545 Proceedings— Summons 545 Demand necessary, etc '. 546 Petition for, etc 547 Requisites of 547 Form of 549 Summons to issue, etc 547 Default, Answer, etc 547 Time to plead, etc 543 Judgment, etc 543 False return, damages, etc 543 Making new defendants, etc 543 Death of defendant, etc 543 Effect of other remedy 543 Defenses to, etc 554 Answer or plea 55I Form of answer to petition 553 Form of plea to petition 554 (See observations following each precedent.) MARKET OVERT— Unknown in Illinois 284 MARRIAGE LICENSE— Debt will lie on, on statute v. county clerk for unlawfully issuing 486 Against minister, etc., for performing ceremony without 486 MESNE PROFITS— (See Ejectment.) MINISTER— (See Marriage License.) MINORS— Suits by 14 Suits against 21 878 GENERAL INDEX. MISJOINDER— Of Parties— Observations upon 49 Form of plea of 49 MISNOMER— Form of plea of 43 Form of replication to plea 46 Observations on 44 MISTAKE— Award may be set aside for 592 MIXED ACTIONS— Defined 3 MOLLITER MANUS IMPOSUIT— (See Trespass.) MONEY COUNTS— Form of common counts thereon, in assumpsit 77 Money had and received 81 Monej^ paid and expended 83 Forms of count in debt 434 MORTGAGES— Scire faciaa on, to foreclose 528 Forms of scire facias on 530 MOTIONS— Motion to quash writs, etc 32 to dismiss suit, etc 32 how made 32 when to be made, etc 32 when writ will be quashed 33 for security for costs, etc 15 for leave to prosecute as a poor person 18 for a continuanee 716 for a new trial 797 to set aside default 798 In arrest of judgment 733 NECESSARIES— Form of count in assumpsit for 77 NEGLIGENCE— Defined 631 (See Case.) NEW ASSIGNMENT— In trespass 361 Form of 374 NEW TRIALS— Grounds for gi-anting 785 Misbehavior of party prevailing 785 Mistakes or misconduct of jury, etc 786 Verdict against law and evidence 787 Excessive or inadequate damages 788 GENERAL INDEX. 8T9 NEW TRIALS-Continued. Admitting improper, or refusing proper evidence 789 Errors in charge to jury '''90 Newly discovered evidence '^^^ Absence or mistake of witnesses "^93 Surprise, etc ^^4 Death of ti-ial judge "^95 Improper remarks of counsel "95 Statutory provisions ' "" By agreement *9 ' Mode of applying for ''^97 7Q7 Form of motion for "^ * Setting aside defaults, gi-anting trial on merits, etc 798 NEXT FRIEND— Suit by ^^ NIL DEBET— Plea of, in debt 487 Form of plea, etc ^^"^ Form of, and non est factum 490 Form of, and tender 494 Form of replication of, to plea of set-off 191 (See observations following each form.) NON ASSUMPSIT- The general issue in assumpsit 146 Observations upon 146 Form of plea of, etc 148 Form of plea of, to suggestion of claim for mesne profits in eject- • 4. .423 ment NON CEPIT— Plea of, in replevin 310 Form of plea, etc ^10 Observations upon 310 NON DAMNIFICATUS— Plea of, in debt ^00 Form of plea of ^^^ When proper, etc ^^0 Observations upon ^00 NON DETINUIT— Form of plea of, in replevin 311 Observations upon ^^ ^ NON EST FACTUM— Plea of, etc 489 Observations on 489 Form of plea in covenant -"^8 Form of same, as in debt 489 May be pleaded without verification 489 Form of, and nil debet 490 880 GENERAL INDEX. NON EST FACTUM-Continued. Form of, after craving oyer , 490 Observations on 491 Notice of special defense under 490 Special non est factum 491 Form of plea, bond delivered as an escrow 493 Form of replication to plea of release 195 NOT GUILTY— General issue in actions for torts (see defenses in the various forms of Actions in Torts). May be pleaded in action in debt, for penalty 487 NON-JOINDER— Of party as defendant, etc 46 Form of plea of, in abatement 46 Form of replication to plea of 47 Observations on 47 Form of plea of, party plaintiff in abatement 48 Observations on 48 NON-RESIDENT— Plaintiff required to give security for costs, etc 13 Defendants in attachment 383 Garnishees 401 Defendants in distress for rent 620 NON-SUIT— Judgment upon 824 NO RENT IN ARREAR— Form of plea of, in debt 501 Form, same, to avowry, in replevin 819 (See observations following forms.) NOTICE— Of special matter under general issue 150 Form of notice of set-off under general issue 151 May be given under plea of non est factum, in covenant 490 Same, in debt 490 Of application for change of venue 777 To produce documents at trial 803 For taking depositions, etc 809 To sheriff in trial of right of property 830 Form of 833 NOTICE BY PUBLICATION— In attachment 383 Garnishment 401 Of water craft 405 In distress for rent 621 NUISANCE— Case will lie for maintaining 626-653 GENERAL INDEX. 881 NUL TIEL CORPORATION— Plea of 242 Observations upon 242 Form of 244 NUL TIEL RECORD— Form of plea of, in debt 494 Observations on 495 Form of replication to 496 Replication of, to plea of judgment recovered 209 Form of replication of, to a plea of another action pending 51 OATH— Of arbitrator 584 Oath of referee 758 OFFICER— When trover will lie by or against 286-7 When trespass will lie by or against 327, 328-331 Justification by in replevin 316 ONERARI NON— Form of plea of, in debt 493 Observations upon 494 OPTIONS— (See Gambling Contracts.) OYER— ■ Demurrer, after craving 504 Form of plea of non est factum, after craving 490 Observations upon 491 PARTIES— To an action 19 Suits for use of another , 20 Against insane persons 21 Against infants 21 PARTNERS— Action of account in suits between — {See Account — Action of,) Confession of judgment by 610 Forms of Declaration by and Against. By surviving partner, common counts 86 Against surviving partners 87 By partners v. partners on note 96 By surviving partner on note 98 payment- Forms OF Plea op. Observations upon 195 In assumpsit 197 Form of replication to 198 In covenant 279 In debt on bond 498 56 882 GENERAL INDEX. PENAL BONDS— Actions upon for performance of covenants 444 PENAL STATUTES— In actions upon statute must be strictly construed 4B3-479 Exceptions and provisos in 481 performance- Forms OF Plea. In covenant 289 In debt 499-500 Observations upon 500 PERJURY— (See Slander.) Form of declaration for slander for words charging 691 PERSON— Trespass for injuries to 323 (For forms of declaration for injuries to the person, see Tres- pass — Action of.) PERSONAL ACTIONS. Defined 3 PERSONAL PROPERTY— (For injuries to. See Trespass, Action of.) petitions- Forms of. For certiorari to J. P 560 For mandamus 547 For change of venue 777 For habeas corptis 511 PHYSICIANS - Form of common count for services, assumpsit 77 Form of declaration against, for malpractice, case 669 Observations on 670 PLEADING— Order of 34 Pleading over 62, 825 PLEADINGS— General principles of 1 Object of 1 Term defined 1 1 The common law system 1 In Illinois 2 Kinds of actions 3 Forms of actions 3 Order of pleadings 4 PLEAS— In Abatement. (See Abatement.) In Bar 53 Nature and requisites of, etc 53 Special pleas in bar 55 GENERAL INDEX. 883 'ELiEAS— Continued. Must answer all that it professes to 57 Pleas as to a part, etc 57 Common and special sirailiter to 58 Leave to file pleas 58 Leave to file additional pleas 58 (See pleas in bar under title of respective Forms of Ac- tion.) PLEDGE— Plea in replevin that property is held as 317 POOR PERSONS— May prosecute suits without costs, etc 18 Form of affidavit for leave, etc 18 POSSESSION— Necessary to maintain trespass 330-334 PRECIPE— Generally , 5 (See Index to Forms, x>ost.) PRAIRIE- Declaration in case for negligence in setting fire to 667 PREMATURE ACTION— How set up 37 PRISONER— Counsel for may be assigned by court ; 773 Action will lie against sheriff for refusal to permit to see attorney 482 Form of declaration for 483 PRIVILEGED COMMUNICATIONS— Slander and libel will not lie upon 680 Between attorney and client 773 PROCESS— Amendments to 709-713 PROCESS FOR APPEARANCE— Summons — Form — When returnable 22 How served 22 Alias writs 23 Corporations, how served 23 Trustee of railroad, how served 24 Privileges of defendant 24 The return of summons 25 In actions of account 250 In attachment 390 In garnishment 393 In mandamus 545 In quo loarranto 574-7 Amendments to process 709-12 In distress for rent 620 8S4: GENERAL INDEX. PROCESS FOR APPEARANCE— Con^/nwed. Of witness on statutory reference 759 In trial of right of property 830-1 {See Publication of Notice. ) PROFERT— Unnecessary in Illinois 273 When necessary 444 Omission of, how advantage of taken 444 PROPERTY IN DEFENDANT— Form of plea of, in replevin 31 3 Form of replication to plea of 313 Observations on 313 PROPERTY IN THIRD PERSON— Form of plea of, in replevin 314 Form of replication to plea of 314 Observations on 314 PUBLICATION OF NOTICE— To defendant in attachment 383 To defendant in attachment in aid 389 To non-resident garnishee 401 To party, of taking depositions 813 PUIS DARREIN CONTINUANCE— Plea of 244 Observations on 244 Forms of 247 QUANTUM MERUIT - Form of, comit of, in assumpsit 85 Observations on 84 QUANTUM VALEBANT— Form of, counts, in asmimpsit 85 Observations on 86 QUESTIONS OF LAW CERTIFIED— (.S'ee Agreed Cases.) QUI TAM ACTIONS— (See Debt, Action of.) Observations on 428, 477 Damages in 430 QUO WARRANTO— Nature of the writ, etc 565 Jurisdiction of circuit courts 566 Practice 566 When leave to file information will be granted 566 When leave to file information will not be granted 567 Limitations 567 AVhen it lies 568 Parties 572 Motion for leave to file information 573 Form of information 573 GENERAL INDEX. 885 QUO WARRANTO— CoJihnwed. Summons 574 Service of 574 Defendant I'equii'ed to plead 574 Burden of proof 575 Time to plead, etc 575 Judgment 575 Appeal and writ of error 576 Process 576 The Information, etc 576 Form of, by attorney-general, etc 576 Form of, at instance of relator 577 Amendments. . .' 578 Defenses to the Proceeding 579 Pleas to, etc 579 Form of plea, by corporation, etc 580 Form of plea by person, etc 580 Replication to pleas, etc 581 Authorities 581 (See observations following each precedent.) RAILROAD COiyiPANY— Declaration against for negligently running train across highway. 633 In what county suit against to be brought 637 Declaration against for failure to ring bell at crossing 637 Against street railway company for improperly managing motor. . 638 Declaration against for negligence in management of train 639 For damages caused by fire from engine 640 For damages for not fencing road 642 By administrator for causing death of person 647 Against as common carrier for loss of goods 671 Trespass will lie against for unlawfully expelling passenger from train 326 Actions in debt on statute against 485 (See observations following each precedent.) {See Common Carriers.) REAL ACTIONS— Defined 3 REAL PROPERTY— Trespass for injuries to 332 (For forms of declarations for, see Trespass — Action of.) In debt, for cutting trees on 428 receiver- How served 24 RECOGNIZANCE— Observations on 532 Form of scire facias on 533 To cover judgment in attachment 386 886 GENERAL INDEX. RECOVERY— FORMER— (5ree Judgment Recovered.) REFEREES — Statutory proceedings, etc 758 Oath of referee 758 Exceptions to report, when to be made 758 Attendance of witnesses 759 Judgment — Referee's fees — Costs 759 Testimony — Record 759 Form of agreement to refer 759 Form of order appointing 760 Form of report of referee in favor of plaintiff 760 In favor of defendant 760 Form of exceptions to report 760 REJOINDERS— (See Defenses to an Action, and titles of respective forms of action.) RELEASE— Observations on 191 Form of plea of in assumpsit 194 Form of replication to plea of 195 RENT— Declaration in debt for 443 Observations upon 443 (/See Landlord and Tenant.) REPLEVIN— Action of History and nature of the remedy 298 Where the action lies, etc 299 Who may maintain the action 302 Who may be made defendant 306 Demand, when necessary 306 Commencement of the Action 306 Venue 306 Form of plaint or affidavit 307 Bond 308 Declaration in 309 Defenses to the action 310 Judgment for plaintiff 319 For defendant— Retorno habendo 320 For damages 219-20 (See observations following each form. ) (For forms of declarations, pleas, replications, etc., see Index TO Forms, post, Replevin, Action of.) REPLEVIN BOND— Plea to declaration on 502 Observations on 502 REPLICATIONS— (See Defenses to an Action, and titles of respect- ive forms of actions.) RETAINER— (See Attorneys, etc.) GENERAL INDEX. 887 RETURN— Of SuinioNs 25 Amendments to. 09 (See Process for Appearance.) RETORNO HABENDO— (See Replevin.) REVIVAL OF JUDGMENT— In ejectment *'** (See Scire Facias.) SALOON-KEEPER— (See Intoxicating Liquors.) SCIRE FACIAS— Nature of the writ, etc ^23 To make party to judgment ^^i Against garnishees, etc ^-^^ To revive judgment ^*^ Form of praecipe for ^'-" Form of, to revive judgment 526 In ejectment Form of, to revive judgment in ejectment 527 On mortgages, etc 5-wO Form of, to foreclose mortgage 530 Form, same, etc 530 On recognizances, etc 53~/ Form of, on recognizance 533 Defenses to, etc 536 What defendant may plead 536 (See observations following each form.) SECURITY FOR COSTS— When required ^^ By non-residents, etc., before commencing suit 13 Suits on official bonds 13 In penal actions 1^ Suits by infants, by next friend, etc 14 Form of security for 1"* Approval and effect of bond for 14 Motion to dismiss for want of 15 Rule to file security 15 Cross-motion for leave to supply, etc 15 Objections to surety ^5 After suit brought ^5 When required, etc 15 Form of affidavit for rule, to give, etc 15 Form of bond for costs after suit brought 18 Plaintiff a poor person, etc 18 Form of affidavit for leave to prosecute as such 18 SEDUCTION— Case will lie for. 629 Of plaintiffs daughter, etc 661 Trespass will Ue for ^^ 888 GENERAL INDEX. SEDUCTION— Continued. Form, same, in trespass 348 Form of declaration for, in case 661 SET-OFF— Form of notice of set-off mider general issue 151 Copy of instrument or account to be filed with notice or plea, etc. . 31 Dismissal after plea 189 Can not be allowed in trover 296 Form of plea of set-off, in assumpsit 189 Form of replication to 190 Form of replication, nil debet, to plea, of 191 Form of plea of set-off, in debt 498 In distress for rent 621 (See observations following each form.) SHERIFF— (S^ee Constable.) When may maintain trover 287 Wlipn trover will lie against 286 Forms of Declarations Against. For taking insufficient sureties in replevin 667 On his official bond for not admitting counsel to prisoner 482 Form of Plea by. Justification under execution in replevin 315 Same, in trespass 367 (See observations following each precedent.) SIMILITER— Common and special to pleas 58 Form of special similiter 58 Form of, to replication, concluding to the country 59 SLANDER— Defined 678 When case will lie for 679 Malice essential to support action 681 Declaration for 685 General form of 690 For charging fornication 691 For charging perjury 691 For charging larceny 693 For words spoken in foreign language 693 For imputing insolvency 694 General issue in action for , . 700 Special pleas in actions for 702 SON ASSAULT DEMESNE— Form of plea of 358, 359 Observations upon 858 SPECIAL PLEAS— In bar 55 In case 699 GENERAL INDEX. 889 STATUTES— (S^ee Penal Statutes.) STATUTES OF FRAUDS— Plea of l^'* Observations upon l"'* Original and collateral undertakings 166 Form of 1*^^ Form of replication to 169, 170 STATUTE OF LIMITATIONS— (See Limitations.) STATUTORY SUBMISSIONS— (See Arbitration and Award.) STREET— Duty of city to keep in safe condition 649 Declaration against city for failure to 649 STREET RAILWAY— Declaration against, for improperly handling motor 638 SUBMISSION TO JUDGE— Statutory provisions '^^^ Form of agreement to submit 783 SUGGESTION OF MESNE PROFITS— (See Ejectment.) SUMMONS— (See Process for Appearance.) sureties- Forms OF Pleas by. That creditor gave further time to principal, etc 222 That creditor was requested in writing to sue, etc 222 Right of, where judgment confessed 611 (See observations preceding and following these forms.) TAXES— Delinquent— Form of declaration for 484 Observations upon 484 TENANT IN COMMON— Trover by 286 TENDER— Plea of— Observations upon 210 Form of plea of, in assumpsit 213 Forms of replications to plea of 215, 216 Form of plea of, in debt 494 TIMBER— (See Trees.) title- To real estate not necessarily in question, in trespass 336 TORT— Confession of judgment for 61 1 TORT-FEASORS— Joint— (See Case.) TREES— Form of declaration in trespass for cutting down 3.54 Debt will lie upon statute for cutting 428 890 GENERAL INDEX. TREES— Contimied. Form of declaration upon statute for cutting trees 47'i Observations upon 477 TRESPASS— Action op- Nature OF TEE Action, etc 391 Distinction between trespass and case abolished 323 May be joined with case 633 For Injuries to the Person 323 Where the action lies 327 Against an officer 328 By an officer 331 Who may maintain the action, etc 330 Against whom it lies, etc 332 For Injuries to Real Property 332 Where the action lies 332 Commencement of the action 338 The declaration, etc 338 Matter or thing affected 338 Plaintiff's right or interest 339 Statement of the injury 340 The damages 342 Measure of 343 Vindictive, etc 343 Joinder of counts, etc 344 Defenses to the Action 355 Pleas in bar 355 New assignment, etc 361 (See obsei'vations following each precedent.) (For forms of declarations, pleas, replicatiqns, etc,, see Index TO Forms, 2Mst, Trespass, Action of.) TRESPASS ON THE CASE— Distinction between and trespass 322 {See Case.) TRIAL OF RIGHT OF PROPERTY— Former statutes 828 Proceedings for 829 Present statute 829 Trial in county court 830 Notice 830 Service of summons — Continuance 830 Notice by publication 831 Entry of appearance 831 Trial— Pleading— Jury 831 Trial by jury 831 Subpoenas for witnesses 832 Judgment — Exempt property —Costs 832 Appeal — Bond — Trial de novo 832 Judgment — Indemnity 832 GENERAL INDEX. 891 TRIAL OF RIGHT OF FROPEKIY— Continued. Apportionment of costs — Fees 833 Form of notice to sheriff of claim 833 Interpleader in Attachment— The statute 834 Observations upon 834 Form of interpleader 388 TRIAL AND VERDICT— Who maj' ppen case, etc - 838 Order of proceedings at the trial, etc 838 Deliberations of the jury 841 Delivery of the verdict, etc 843 Polling of the jury 843 Verdicts, etc 843 General verdicts, etc 843 Special verdicts, etc 841 -4 Special findings 844 Trial by court 846 Propositions of law 846 Form of submission of 848 TROVER— Action of— Nature of the action, etc 283 Where the action lies 383 By tenant in common 286 Against an officer 286 By an officer 287 Conversion the gist of the action 287 What constitutes 287 Demand — Whether necessary 289 Essentials to supi)ort the action 290 Judgment 291 Commencement of the action 291 The declaration 291 Forms of declarations 292, 293 Defenses to the action 295 Pleas in bar 295 Form of plea of general issue 296 What plaintiff must prove 297 Damages 297 May be joined with case 633 Set-off can not be allowed 296 (See observations following each precedent. ) (For forms of declarations, pleas, etc., see Index to Forms. pos^, Trover — Action of.) TRUSTEES— Of Railroad— Service upon 24 892 GENERAL INDEX. USURY— Observations upon plea of 176 Form of plea of 182 Form of )-eplication to plea of 183 VACATION — (See Confession of Judgment.) VARIANCE— Between allegations and proof 27 Between summons and declaration ■ 37 VENUE— In replevin 306 In attachment 379 Where suits v. R, R. Co. may be brought 637 (See Change of Venue.) VERDICT— What defects cured by 714 Against law and evidence, ground for new trial 789 Judgment on 825 (See Trial and Verdict.) VI ET ARMIS— (See Trespass.) VINDICTIVE DAMAGES— (See Damages.) WANT OF CONSIDERxiTION— (See Consideration.) WAREHOUSE ROOM— Form of common count for 78 WARRANTY— Breach of— Forms of Declarations on — Of a horse, etc 118 Of goods sold by sample, etc 119 Of cov^enants in deeds, etc 270-1-2 Forms of Pleas of Breach of — To declaration on note, etc 225 Same, etc 228 Same, etc 229 Same, etc. , of title to land 226 (See observations preceding and following each precedent.) WATER— Case will lie for obstructing natural flow of 630 Declarations for same 652, 666 WATER-CRAFT— (See Attachment.) WITNESSES— (See EvmENCE.) WORK AND LABOR— Form of common count for 76 Same, for work and materials 84 INDEX TO FORMS. (See General Index, ante.) ABATEMENT— Forms of pleas in. No. 1. To jurisdiction of court 41 No. 2. Misnomer of defendant 43 No. 4. Non-joinder of party defendant 46 No. 6. Same, of party plaintiff 48 No. 7. Misjoinder of defendants, etc 49 No. 8. Anotiier action pending 50 No. 219. In attachment 384 Forms of replications to pleas. No. 3. .To plea of misnomer 46 No. 5. To plea of non-joinder 47 No. 9. Nul tiel record to plea of another action pending 51 No. 9a. New assignment to plea of another action pending 51 Forms of demurrer to pleas of. No. 17. General form of 67 No. 18. Joinder in 67 ACCOUNT— Action of— Forms of declarations in. No. 140. Against bailiff, to account for goods, etc 257 No. 141. Against receiver, etc 257 No. 142. Tenant in common against co-tenant 258 No. 143. Partner v. partner, etc 259 No. 144. Same, as bailiff of lands 260 Forms of pleas in. No. 145. Never bailiff, etc 261 No. 146. Never receiver, etc 261 No. 147. To suit between tenants in common 202 No. 148. That defendant has fully accounted 262 ADMINISTRATOR- NO. 249. Declaration on bond of 461 AFFIDAVITS— Forms of. No. 218. In attachment 377 No. 221. Same, in aid of assumpsit 389 (893) S94 INDEX TO FORMS. AFFIDAYITS—Contimied. No. 222. Same, in aid of trespass, etc 390 No. 224. For process of garnishment .•> 393 Of claim with declaration 12 No. 83. Of merits with plea 149 No. 326. For publication, in distress for rent 621 No. 161. In replevin 307 For ca, ad res. charging fraud, etc 8 Same, concealing property, etc 9 Same, in actions sounding mei'ely in damages, etc 9 For rale for security for costs 16 For leave to prosecute as poor person 19 No. 363. For continuance 717 No. 322. Of proof of warrant of attorney to confess judgment. . 607 No. 374. Of good faith 756 No. 387. To be filed before taking deposition of witness residing in another county 808 AGREED CEASES— QUESTIONS OF LAW CERTIFIED— Forms in. No. 367. Agreement to submit between parties in suit pending. 750 No. 368. Decision of court upon agreed cases 750 No. 369. Agreement that judge may certify questions of law. . . 751 No. 370. Agreement of parties as to questions of law 752 No. 371. Certificate of judge as to questions of law, etc 752 No. 372. Agreement as to questions of law 753 No. 373. Decision of judge upon questions of law, etc 755 No. 374. Affidavit as to good faith 756 ARBITRATION AND AWARD— Forms relating to. No. 310. Submission, in suit pending 601 No. 311. Same, each party to select one arbitrator and the court the third 602 No. 312. Order referring suit pending 602 No. 313. Oath of arbitrators 602 No. 314. Award, in suit pending 602 No. 315. Submission of controversies not in suit 603 No. 316. Award in controversies not in suit 603 No. 317. Submission of all matters in controversy 604 No. 318. Same, on common law submission, by one arbitrator. . 604 No. 321. Award, same, by several arbitrators 605 No. 319. Form of arbitrators' bond, given by each party to the other 605 No. 237. Form of declaration on an award 438 No. 277. Form of plea of no award 501 No. 115. Form of plea of award 204 Forms of replications to pleas of. No. 116. To plea of arbitrament 204 No. 117. To plea of award 205 INDEX TO FORMS. 895 ARBITRATION AND AW ARD—Coniinned. Order Referring Suit Pending. No. 313. Form of 602 Forms of mcards. No. 314. In suit pending 602 No. 316. In controversies not in suit 603 No. 320. On common law submission, one arbitrator 605 No. 321. Same by three, or more or less arbitrators 605 Arbitration Bond. No. 319. Form of, given by each party to the other 605 ASSUMPSIT— Action of— (See Defenses to the Action of)— Forms of Declarations in. No. 24. Commencement and conclusion of 75 No. 25. Common indebitatus counts 76 1. Goods sold and delivered 76 2. Goods bargained and sold 76 3. Labor and services 76 4. Work and material 76 5. Money lent 77 6. Money expended 77 7. Money received 77 8. Interest 77 9. Account stated 77 10. Board and lodging 77 11. Hire of horses, etc 77 12. Stabling and keeping horses, etc 77 13. Necessaries, etc 77 14. Physician's bill 77 15. Attorney's bill 78 16. Warehouse room 78 No. 26. Common counts consolidated 78 No. 27. Same, condensed 78 No. 28. Quantum meruit count 85 No. 29. Quantum valebant count 85 Common Counts relating to the character in ivhich the plaintiff sues, or defendant is sued. No. 30. By surviving partner on promise to both partners 86 No. 31. Against surviving partner for work done 87 No. 31. Husband and wife for work, etc., by wife before mar- riage* 87 No. 33. Against husband and wife for work done, etc., for wife before marriage* 88 No. 34. By executor for work, etc. , on promise to testator 89 No. 35. By same, on promise to the plaintiff as executor 90 No. 35a. By administrator, on promise to intestate 90 Special Counts. On promissory notes. No. 36. Paj'ee v. maker 91 * Not necessary iu Illinois. 896 INDEX TO FORMS. ASSTJMPSIT— Continued. No. 37. Same, with common counts 91 No. 38. Same, short form 92 No. 39. On six notes in one count 93 No. 40. Indorsee v. maker 94 No. 41. Indorsee of executor v. maker 96 No. 42. Surviving partner as payee v. surviving partner or maker 96 No. 43. Executor of payee V. maker 97 No. 44. Administrator of payee V. maker 98 No. 45. Partners payees v. partners makers 98 No. 46. Payee against husband and wife, note given by wife while sole* 99 No. 47. Indorsee against indorser, alleging prosecution of suit against maker 99 No. 48. Same, suit against maker unavailing 105 No. 49. Same, maker having left the state, etc 106 No. 50. Payee v. guarantor 108 On order. No. 51. Payee v. drawer, on order not accepted Ill On a Chech. No. 52. Payee v. drawer, etc Ill On inland bills of exchange. No. 53. Drawer v. acceptor, on bill accepted, generally 112 No. 54. Same, etc 113 No. 55. Same, on bill payable to a third person, and returned to, etc. , drawer 114 No. 56. Payee v. acceptor, on bill accepted generally 115 No. 57. First or subsequent indorsee against acceptor 115 No. 58. Payee v. drawer of bill, on default of acceptance 116 No. 59. Same, defendants had no effects in drawee's hands. . . 116 No. 60. Same, on default of payments 116 On tvarranties. No. 61. On a warranty of a horse to be sound 118 No. 62. Same, of hops sold by sample 119 On leases. No. 63. Landlord v. tenant from year to year, on implied con- tract, etc 121 No. 64. Same, for leaving premises out of repair, etc 123 On 2)romises to marry. No. 65. On promise to marry on request 123 No. 66. Count for marrying another woman 123 No. 67. On promise to marry in a reasonable time 123 No. 68. On promise to marry at a particular time 124 Against bailees. No. 69. Against hirer of horse for using it improperly, etc 127 No. 70. Against carrier by land, for loss of goods 129 * Not necessary in Illinois, INDEX TO FORMS. 897 ASSUMPSIT- Continued. No. 71. Against captain of ship, on his bill of lading, for loss of goods 130 On contracts of sale of goods, etc. No. 72, For not accepting goods sold 134 No. 73. For not accepting goods made for defendant 135 No. 74. For not delivering goods within a specified time 135 No. 75. For not delivering goods at a particular place, etc 136 No. 78. On promise to be accountable for goods sold to a third person 142 No. 79. On promise to pay money as difference in exchange of property 143 On contracts for employment. No. 80. On written contract for employment, etc 143 No. 81. Same, on verbal contract 144 On policies of insurance. No. 76. On fire insurance policy, etc 137 No. 77. Same ." 140 ATTACHMENT — Proceeding in. Forms in, miscellaneous. No. 218. Affidavit for 377 No. 219. Plea in abatement in 384 No. 220. Plea by third party claiming property — interpleader. . 388 No. 221. Affidavit for, in aid of assumpsit, etc 389 No. 222. Same, in aid of trespass, etc 390 No. 223. Judge's order for 390 No. 224. Affidavit for garnishment 393 No. 225. Interrogatories to garnishee 394 No. 226. Answer of garnishee 395 Forms in Attachment of Water Craft, etc. No. 227. Form of petition for 404 No. 228. Same, where name of owner is unknown 405 attorney- No. 348. Declaration against for negligence 670 AWARD— (5ee Forms in Arbitration and Award, ante.) BAIL IN CIVIL CASES— Forms in, viiscellaneous. Affidavit for ca. ad res. charging fraud, in actions ex contractu 8 Same, charging concealment of property, etc 9 Same, in actions sounding merely in damages 9 Judge's order for ca. ad res 10 Bond by plaintiff 10 Bond by defendant 11 BILLS OF EXCEPTIONS— Forms in. No. 365. To evidence, instructions, etc 746 No. 366. On refusal of continuance 747 57 898 INDEX TO FOKMS. BOND— For costs H By non-residents 14 Same, after action brought 18 CAPIAS AD RESPONDENDUM-(See Bail in Civil Cases.) CARRIERS — {See Common Carriers.) CASE— Actions on the— Forms of declaration in. No. 327. Against R. R. Co. for negligently running train across highway, whei'eby plaintiff was injured 633 No. 328. On statute, against R. R. Co. for not rmging bell, etc.. 637 No. 329. Against street railway company for improperly man- aging cable motor 638 No. 330. Against R. R. Co. for negligence in management of train, etc 639 No. 331. Same, for damage caused by fire from engine, etc 640 No. 332. Same, for damages resultmg from not fencing road, etc 642 No. 333. Same, by administrator, for causing death of person. . 647 No. 334. Against a city, permitting sidewalk to remain out of repair, whereby plaintiff was injured 649 No. 335. Against defendants for keeping uncovered vault in sti'eet, whereby plaintiff was injured 651 No. 335a. Against defendant for obstructing the natural flow of water, etc 652 No. 336. Against proprietor of stage-coach for negligence, etc . . 653 No. 337. Against defendant for keeping dog which bit plaintiff, etc 654 No. 338. For malicious prosecution 655 No. 340. For criminal conversation 660 No. 341. For debauching plaintiff's daughter 661 No. 342. For deceit in obtaining goods on credit 663 No. 343. For deceit in warranty of a horse 664 No. 344. Same, in sale of wood deceitfully packed, etc 665 No. 344a. Agamst commissioners of highways for flooding land by a ditch 666 No. 344b. For negligence in setting fire to prame 667 No. 345. Against sheriff for taking insufficient sureties in re- plevin 667 ,No. 346. For overloading and immoderately driving a horse, etc 668 No. 347. Against physician for neglect, etc., in treatment of plaintiff 669 No. 348. Against an attorney for negligence in prosecuting an action 670 No. 349. Against R. R. Co. , as common carrier, for not deliver- ing goods, etc 671 INDEX TO FORMS. 899 CASE- Continued. No. 350. Against seller of intoxicating liquors, on statute, etc. , etc 672 No. 351. Against same, and his landlord, on statute, for in jury- by intoxicated person 673 For Slander. No. 353. General form for 690 No. 353. For words charging an immarried woman with forni- cation 691 No. 354. For words charging perjury 691 No. 355. For words charging larceny 693 No. 356. For words spoken in foreign language 693 No. 357. By a tradesman, for words imputing insolvency, etc . . 694 For Libel. No. 358. In newspaper 695 No. 359. By letter imputing insolvency, etc 696 Forms of Pleas in. No. 360. General issue, not guilty 699 No. 361. Justification of words imputing perjury 703 No. 363. Justification for words imputing larceny 705 Form of Replication to Plea. No. 362. Of justification, in action of slander, etc., de injuria. . 704 certificate- No. 391. To deposition 815 CERTIORARI— Form of Petition for. No. 305. To justice of the peace 562 CHANGE OF VENUE— No. 380. Form of notice of application for 777 No. 381. Form of petition on account of prejudice of judge 778 No. 382. Same, on account of prejudice of inhabitants 778 COMMENCEMENT OF AN ACTION— Prcecipe for summons or capias 6 Affidavit to be filed with declaration 12 Bond for costs by non-resident 14 Affidavit for rule for 16 Security for costs after action brought 18 Affidavit for lease to prosecute as poor person 19 (See Bail in Crv'iL Cases.) COMMON carriers- No. 70. Declaration in assumpsit, against carrier by land for loss of goods 129 No. 71. Form of declaration in assumpsit against captain of a ship on bill of lading for loss of goods 130 No. 336. Form of declaration against proprietor of stage coach in case, for negligence, etc 653 No. 349. Against R. R. Co. in case, for not delivering goods, etc. 671 900 ' INDEX TO FORMS. COI\IMON COUNTS— (See Forms of Declarations in Assumpsit.) CONFESSION OF JUDGMENT— Forms in. No. 332. Proof of warrant of attorney 607 No. 323. Cognovit 608 CONTINUANCES- Forms in application for. No. 363. Affidavit for, on account of absence of witness 717 COSTS, SECURITY FOR— Form of bond for, by non-residents, etc 14 Form of affidavit for rule 16 Foi-m of bond 18 Form of affidavit for leave to prosecute as poor person. 19 COVENANT— Action of— Forms of declarations in. No. 149. Grantee v. grantor, on covenants in deed, etc 270 No. 150. Same, on covenants in deed against incumbrances 271 No. 151. Second or remote grantee against grantor, on covenants of wai'ranty, etc 272 No. 152. On covenants in lease to pay rent 273 No. 153. Apprentice against master for breach of covenants in indenture (Plea No. 158.) 274 No. 154. On fire insurance policy 275 Forms of pleas in. No. 155. Non est factum 278 No. 156. Plea of payment to action, etc., for payment of money. 279 No. 157. Performance .♦ 280 No. 158. To declaration in suit by apprentice, plaintifif deserted service, etc. (Dec. No. 153) 281 CRIMINAL conversation- No. 340. Declaration in case for 660 DEBT — Action of — Forms of Declarations in. No. 234. Common indebitatus count 434 No. 235. Payee v. maker on promissory note, etc 436 No. 236. On bill of exchange, payee v. drawer, etc 438 No. 237. On an award, etc 43S No. 238. On judgment in same court 440 No. 239. Same, in court of another state 440 No. 240. Same, of justice of the peace, etc 442 No. 241. In action for rent, on a demise 442 No. 242. On a single bill, or sealed note 443 No. 243. On appeal bond, on appeal to supreme court 445 No. 244. On replevin bond, etc. (Plea No. 280) 448 No. 245. Same, etc. (Plea No. 280) 450 No. 246. On sheriff's bond, on failure to make amount due on execution, etc 453 INDEX TO FORMS. 901 DEBT— Continued. No. 247. On guardian's bond, for use of ward, etc 457 Same, more concise 458 No. 248, Same, for use of successor of guardian, removed 459 No. 249. On administi'ator's bond 461 No. 250. On attachment bond, etc 466 No. 251. On injunction bond, etc 469 Another form, etc 471 No. 253. On license bond, action for use of wife of pei^son to whom intoxicating liquors were sold 475 No. 254. On statute, against seller of intoxicating liquors, by one who has taken care of person intoxicated 476 No. 255. On statute, for cutting trees, etc 477 No. 256. On statute, against drover, for driving off horses, cat- tle, etc 480 No. 257. On statute, against sheriff, for not admitting attorney to see prisoner 482 No. 258. On statute, by landlord against tenant, for double rent, etc 488 No. 259. By the People, to recover delinquent taxes 484 Form of pleas to declaration. No. 260. Nil debet 487 No. 261. Non est factum 489 No. 262. Non est factum and nil debet, to debt on bond, and simple contract 490 No. 263. No)i est factum, after craving oyer, etc 490 No. 264. That bond was delivered as an escrow 492 No. 265. Onerari non 493 No. 266, Tender, to debt on simple contract — nil debet as to pai-t, and tender as to residue 494 No. 267. Nul tiel record 494 No. 269. Duress, menace to kill 497 No. 271. Set-off, to debt on money bond, etc 498 No. 272. Payment, to debt on bond 498 No. 273, Failure of consideration to debt on specialty 499 No. 274. Performance, generally 499 No. 275. Non damnijicatiis 500 No. 276. To debt on demise for rent, no rent in arrear 501 No. 277. To declaration on arbitration bond, no award made. . . 501 No. 278. Eviction, inaction by landlord v. tenant (Rep. No, 279). 501 No, 280. To declaration on replevin bond, that merits were not determined in replevin suit, etc 502 No. 281. To debt on statute, former conviction for same of- fense 503 Forms of replications to x>lcas. No. 268. To plea of nul tiel record (No. 267) 496 No. 270. To plea of duress (No. 269) 497 No. 279. Denying eviction 502 902 INDEX TO FORMS. deceit- No. 342. Form of declaration for obtaining goods on credit 663 No. 343. Same, in warranty of house 664 No. 344. Same, in sale of wool 665 DEFENSES TO AN ACTION— Pleas in Abatement. Forms of. No. 1. Plea to the jurisdiction 41 No. 2. Plea of misnomer of defendant, in Christian name 45 No. 3. Replication to No. 2 46 No. 4. Plea of non-joinder of party as defendant 46 No. 5. Replication to No. 4 47 No. 6. Plea of non- joinder of pai'ty as plaintiff 48 No. 7. Plea of misjoinder of defendant 49 No. 8. Plea of another action pending 50 No. 9. Replication to same, nul tiel record 51 No. 9a. A replication to same, that suit is for different causes of action 54 No. 10. Special similiter to plea 58 No. 11. Double replication 59 No. 12. Similiter to replication concluding to country 59 No. 13. Commencement to a rejoinder to replication to a special plea 59 No. 15. Conclusion of a rejoinder with a verification 60 No. 16. Rejoinder to a double replication 60 Forms of demurrers. No. 17. Demurrer to replication 67 No. 19. Short form of 68 No. 20. To plea in abatement 68 No. 22. To plea in bar 68 Forms of joinder in demurrer. No. 18. To declaration or a replication 67 Short form of 69 No. 21. To demurrer to plea in abatement 68 No. 23. To demurrer to plea in bar 69 DEFENSES TO THE ACTION OF ASSUMPSIT— Forms of Pleas in Abatement in. {See Defenses to an Action.) Forms of Pleas in Bar in general issue. No. 82. Non-assumpsit 148 No. 84. Notice of set-off under 151 Special pleas in bar. No. 85. Statute of limitations (Rep. No. 86, 88) 157 No. 90. Infancy (Rep. No. 91, 92, 94) 163 No. 96. Statute of frauds, agreement to be performed within one year, etc. (Rep. 97) 169 No. 98. Same, promise was to answer for debt of another, not in writing (Rep. 99) 169 I^SDEX TO FOKMS. 903 DEFENSES TO THE ACTION OF ASSUMPSIT— Co?i finned No. 100. Fraud and circumTention in obtaining execution of in- strument (Rep. 102) 174 No. 101. Fraud, in action by assignee of notes by surety that note was obtained by fraud, etc. (Rep. No. 175) 175 No. 103. Usury (Rep. 104) 182 No. 105. Set-oflf (Rep. 107) 189 No. 108. Release (Rep. 109) 194 No. 110. Payment (Rep. Ill) 197 No. 113. Accord and satisfaction, delivery, etc., of goods, etc. (Rep. 113) 201 No. 114. Same, account stated and delivery of note in satisfac- tion 202 No. 115. Arbitration and award (Rep. 116) 204 No. 119. Judgment recovered (Rep. 120) 208 No. 121. Tender, etc. (Rep. 122, 123) 213 No. 124. By surety on note, that creditor gave further time to principal, without his assent 223 No. 125. By same, on note, creditor was requested, in writing, to sue, etc 222 No. 126. Breach of warranty, suit on note, etc 225 No. 127. Want of consideration, suit on note, etc 227 No. 128. Total failure of consideration, suit on note, etc 328 No. 129. Same, bi-each of warranty of horse, etc 229 No. 130. Total failure of consideration, note given for fees, etc. 230 No. 131. Same, to suit by assignee of note given on purchase of real estate, etc 231 No. 132. Partial failure of consideration, etc 233 No. 133. Promises were for money won at gaming (Rep. No. 134) 235 No. 135. Illegal consideration, note given for difference in op- tions, etc 235 No. 136. Discharge in bankruptcy 238 No. 137. Denying execution of instrument sued on 239 No. 138. By one defendant, denying joint liabihty 241 No. 139. Denying joint liabihty 341 No. 140. Nul tiel corporation 344 No. 141. Puis darrein continuance 347 Same, another form 347 Same, etc 247 Forms of Replications to Pleas in Bar. No. 10. Special similiter to non assumpsit, No. 82 58 No. 86. To plea of statute of limitations, No. 85, cause of action did accrue within, etc 158 No. 88. Same, defendant was out of state, etc 159 No. 91. To plea of infancy. No. 90. denying infancy 163 No. 92. Same, goods, etc., were necessaries, etc. (Rej. No. 93.) 164 No. 94. Same, defendant confirmed promises after becoming of age (Rej. No. 95) 164 904 INDEX TO FORMS. DEFENSES TO THE ACTION OF ASSUMPSIT— Confrnwed. No. 97. To No. 96, statute of frauds, that agreement was to be performed within a year 169 No. 99. To No. 98, statute of frauds, promise was not to answer for debt of another 170 No. 103. To Nos. 100, 101, denying that execution of instrument was obtained by fraud 175 No. 104. To No. 103, plea of usury that note was given on legal contract, etc 183 No. 106. Same, statute of limitations to plea of set-off 190 No. 107. To No. 105, set-off, nil debet 190 No. 109. To No. 108, plea of release non est facttim 195 No. 111. To No. 110, plea of payment denying payment 198 No. 113. To No. 112, plea of accord and satisfaction, denying delivery of property, etc 202 No. 116. To No. 115, plea of arbitration and award, denying the award 204 No. 117. Same • 205 No. 118. Same 205 No. 120. To No. 119, plea of judgment recovered, denying that causes of action were the same 209 No. 122. To No. 121, plea of tender, denying tender, etc 215 No. 123. Same, admitting tender 216 No. 134. To No. 133, plea of gammg, etc., that note was not for money won at gaming 235 Forms of Rejoinders to Eeplications. No. 89. To No. 86, replication to plea No. 85, statute of lim- itations, denying that action was commenced within, etc 159 No. 93. To No. 92, replication that goods sold to infant were necessaries, denymg the same 164 No. 95. To No. 94, to replication to plea of infancy, that de- fendant confirmed promise, etc., denying the same. 164 No. 117. To replication to plea of award 205 DEMURRERS— (See Defenses to the Action of Assumpsit.) DEPOSITIONS— Forms in taking. No. 387. Affidavit to be filed before taking depositions of wit- nesses residing in another county, etc 808 No. 388. Notice to take, etc 809 No. 389. Notice and interrogatories for taking, etc., upon in- terrogatories in writing 811 No. 390. Caption of , etc 814 No. 391. Certificate, etc 815 DISTRESS FOR RENT—Proceedings by— Forms relating to. No. 324. Warrant of, by landlord G19 INDEX TO rOEMS. 905 DISTRESS FOR -RE^T—Continned . No. 325. Inventor}^ to be filed with copy of distress warrant 620 No. 326. Affidavit for publication, etc 621 DRAM SHOP— (See Intoxicating Liquors.) duress- No. 869. Plea of, in debt 497 No. 270. Replication, to same 497 EJECTMENT— Action of— Forms of declaration in. No. 229. General form 417 No. 230. By several persons, naming them, as plaintiffs, jointly in one count, and separately in others 417 Form of plea to declaration. No. 231. Not guilty 419 Mesne profits. No. 232. Form of suggestion of claim for 421 Noi 233. Form of plea, non-assumpsit, to suggestion of claim for 422 No. 298. Form of scire facias to revive judgment in 527 eviction- No. 278. Plea denying 501 No. 279. Replication to same 502 evidence— (Sfee Depositions, ante.) Production of documentary. No. 385. Notice to opposite party to produce written instrument, etc., on the trial 802 EXCEPTIONS— (See Bill of Exceptions.) FORMER recovery- No. 119. Plea of 208 No. 281. Plea of former conviction, in debt 503 GARNISHMENT— (See Attachment, ante.) Forms in. No. 224. Affidavit for process of 393 No. 225. Interrogatories to garnishee 394 No. 226. Answer of 395 guardian- No. 247. Declaration on bond of 457 Same 458 HA.BEAS CORPUS— Forms in, generally. No. 282. Petition for, where petitioner is detained without war- rant 512 No. 283. Same, where petitioner is detained under warrant of commitment 513 No. 284. Same, by parent for child 513 No. 285. Same, where petitioner is held under ca. ad res 513 906 INDEX TO FOKMS. HABEAS CORPUS— Conh'wied. No. 286. Petition for ad testificandum 514 No. 287. Master's order allowing same in absence of judge 515 No. 288. General form of writ of 515 No. 289. Return of writ of, where prisoner is in custody. 517 No. 290. Same, denying detention 517 No. 291. Same, by party not an officer 518 No. 292. Judge's order of discharge, in vacation 520 No. 293. Judge's order, in vacation, remanding prisoner 521 No. 294. Order of discharge, by court, in term 521 No. 295. Order of court, in term, remanding prisoner 521 interpleader- No. 220. Form of, in attachment 388 interrogatories- No. 225. Form of interrogatories to garnishee 394 No. 226. Form of answer of garnishee 395 No. 389. Form of, in taking depositions 811 INTOXICATING LIQUORS— No. 350. Declaration in case for sale, etc 672 No. 351. Same v. seller and landlord 673 No. 253. Same, in debt, on license bond — For use of wife, etc. . . 475 No. 254. Same, for care of intoxicated person 476 JUDGMENTS— Form of declarations, on, etc. No. 238. On judgment in same court 440 No. 239. Same, of court of another state 440 No. 240. Same, of justice of the peace 442 No. 297. Form of sci.fa. to revive 526 No. 298. Same, in ejectment 527 No. 119. Foi-m, plea of former judgment recovered 208 No. 120. Replication to No. 119, denying that causes of action were the same 209 LIBEL— (See Case.) LIBERUM TENEMENTUM— No. 215. Plea of 372 license- No. 213. Plea of 370 MALICIOUS prosecution- No. 338. Declaration in case, for 655 mandamus- No. 302. Form of petition for 549 No. 303. Form of answer to petition 553 No. 304. Plea to petition for 554 MERITS— Affidavit of— No. 83. Form of 149 INDEX TO FORMS. 907 mining- No. 197. Declaration for wrongfully mining coal 355 No. 198. Same, for wrongfully mining ore 355 MOLLITER IHANUS IMPOSUIT— No. 203. Plea of 361 NEW assignment- No. 202. In trespass 374 NEW trials- No. 384. Form of motion for 797 NIL DEBET— No. 260. Plea of 487 NON DAMNIFICATUS— No. 275. Plea of 500 NON EST FACTUM— No. 261. Plea of 489 No. 262. Same, and nil debet 490 No. 263. Same, after craving oyer 490 notice- No. 385. To produce written instrument on trial 802 No. 388. To take deposition of witness residing in another county 809 No. 389. To take deposition upon interrogatories in writing 811 No. 392. To sheriff, of claim to property taken by him 833 NUL TiEL corporation- No. 140. Plea of 244 NUL TIEL record- No. 267. Plea of 494 onerari non- No. 265. Plea of 493 oyer— Form of 504 partner- No. 143. Declaration by, in account against partner 259 PAYMENT- No. 110. Plea of, in assumpsit 197 No. 272. Same, in debt 493 performance- No. 274. Plea of 499 physician- No. 347. Declaration against, for neglect, etc 669 PLEAS— (Sf-e Assumpsit and Pleas in each Form of Action.) poor person— Affidavit for leave to prosecute as 19 908 INDEX TO FOEMS. PRECIPE— Form of, for summons or capias 6 No. 386. Same in debt 430 Form of, for subpoena 806 No. 296. Form of, for scire facias 526 PROPOSITIONS OF LAW— No. 393. Form of submission of 848 PUIS DARREIN CONTINUANCE— No. 141. Pleaof 247 QUESTIONS OF LAW CERTIFIED— (See Agreed Cases.) QUO WARRANTO— No. 306. Form of information by attorney-general, against a cor- poration. (Plea No. 308.) 576 No. 307. Same, at instance of relator, etc. (Plea No. 309.) 577 No. 308. Form of plea by corporation to information by attorney- general 580 No. 809, Same, at instance of relator i 580 RAILROADS— (See Common Carriers.) referees- No. 375. Form of agreement to refer cause to 759 No. 376. Form, order appointing 760 No. 377. Form of report of, in favor of plaintiff 760 No. 378. Same, in favor of defendant 760 No. 379. Form of exceptions to report of 760 REJOINDERS— To Replications— Forms of. No. 13. Commencement of a rejoinder to a special plea 59 No. 15. Conclusion of a rejoinder with a verification 60 No. 16. Rejoinder to a double replication 61 (See Defenses to Action of Assumpsit.) REPLEVIN— Action of— No. 161a. Form of affidavit in 307 No. 162. Form of declaration in 309 No. 163. Count in trover to be attached, where part of goods can not be found 309 No. 345. Declaration against sheriff for taking insufficient sure- ties in 667 Foi'm of pleas in. No. 164. Non cepit 310 No. 165. Non detinuit 311 No, 166. Not guilty to count in trover 312 No. 167. Property in defendant 313 No. 169. Property in stranger 314 No. 171. Justification by sheriff, under a fi. fa., against a third person 315 No. 172. Lien on property, etc 317 No. 173. Property held as pledge 317 INDEX TO FORMS. 909 REF-LEYIN— Continued. Form, avowry, etc., for rent. No. 174. Avowry or cognizance for rent 318 Forms of pleas in bar to avoicry, etc. No. 175. Traversing of demise 318 No. 176. No rent in arrear 319 Forms of replications to pleas. No. 168. Property in defendant, denying (Plea 167) 313 No. 170. Property in stranger, denying (Plea 169) 314 SCIRE FACIAS— Forms in. No. 296. Prcecipe for scire facias 526 No. 297. To revive judgment 526 No. 298. To revive judgment in ejectment 527 No. 299. On mortgage to foreclose 530 No. 300. Same, etc 531 No. 301. On a recognizance taken in open court, etc 533 SEDUCTION— (See Case.) set-off- No. 105. Plea of, in assumpsit 189 No. 271. Plea of, in debt 498 sheriff- No. 345. Declaration in case against, for taking insufficient bond 667 No. 257. Same, in debt for refusing to permit prisoner to see attorney 482 No. 246. Same, on bond of, for failure to make execution 453 SIMILITER— To Plea. No. 10. Form of 82 SLANDER AND LIBEL— (See Case, Actions on the, as to forms, etc.) SON ASSAULT DEMESNE— No. 200. Plea of 358 STREET railway- No. 329. Declaration against, for injury to person 638 SUBMISSION TO JUDGE— No. 383. Form of agreement to submit controversies to judge. . 783 TAXES- No. 259. Declaration for recovery of 484 TENANT IN COMMON— No. 142. Declaration by, against co-tenant in account 258 tender- No. 121. Plea of 213 No. 122. Replication to 215 No. 123. Same 216 No. 266. Same, in debt 494 '910 INDEX TO FORMS. TRESPASS— Action of— Foi^ms of declarations in. For Injuries to the Person, etc. No. 177. For an assault, alleging special damages 344 No. 178. For a common assault 3^ " No. 179. For assault with pistol, wounding, etc 38(j No. 180. For riding or driving against plaintiff 346 No. 181. By husband and wife, against husband and wife, for a battery on wife by the other 346 No. 182. Common count for false imprisonment 347 No. 183. For an assault, etc., and false imprisonment 347 No. 184. For debauching plaintiff's daughter, etc 348 No. 185. For criminal conversation 348 For Injuries to Personal Property. No. 186. For taking goods, common count, de bonis asporta- tis 349 No. 187. For chasing cattle, etc 849 No. 188. For chasing mare, etc 349 No. 189. For driving carriage against plaintiff's whereby he was thrown out and his carriage damaged 350 No. 190. For killing plaintiff's horse.. 350 No. 191. For shooting plaintiff's dog 351 No. 192. Against constable on the statute, for taking exempt property in execution 351 For Injuries to Real Estate. No. 193. For trespass in dwelling house, breaking open doors and seizing goods, etc 352 No. 194. Count for common expulsion 353 No. 195. For trespass to land, entering close, etc 353 No. 196. For cutting down and carrying away trees, etc 354 No. 197. For digging in coal mine, and carrying away coal therefrom 355 No. 198. For digging mines, raising ore, taking and converting it 355 Forins of pleas in bar. No. 199. Not guilty 357 No. 200. Son assaidt demesne 358 No. 201. Same, defense of child, etc 359 No. 203. Molliter manus imposuit, to preserve the peace, etc. . . 361 No. 204. Same, to put defendant out of plaintiff's dwelling house 362 No. 205. By schoolmaster, justifying a battery 363 No. 206. By justice of the peace, in an action against him and another, justifying the issuing of a capias, under which plaintiff was arrested and imprisoned 364 No. 207. Pleas justifying an arrest, as constable without process. 364 No. 208. Same, etc 365 No. 209. Same, by private person 367 INDEX TO FORMS. 911 'TRESF ASS— Co7itinued. No. 210. By sheriff, justifying taking of goods under a fieri facias 367 No. 212. Injury caused by plaintiff's own negligence 370 No. 213. License 370 No. 215. Liberum tenementum 372 Fonn of replications to pleas. No. 202. General replication, de injuria, etc 359 No. 211. To plea of justification under process, etc 369 No. 214. To plea of license 370 No. 216. To plea of liberum tenementum, denying the plea 873 No. 217. New assignment 374 TROVER— Action of— Forms of declarations in. No. 159. General form 292 No. 160. By executor, for conversion in lifetime of testator 293 Form of plea in bar. No. 161. Not guilty 296 WARRANTY— Breach of— Declarations for. No. 61. Of a horse 118 No. 62. Of goods sold by sample 119 No. 149. Of covenants in deed 270 No. 150. Same 271 No. 151. Same 272 Pleas of. No. 126. To declaration on note 225 No. 128. Same 228 No. 129. Same 229 water- No. 335a. Form of declaration in case for obstructing natural flow of 652 i^^^ ^ '^ ^^ LAW LIBRARY UNIVERSITY OF CALIFORNU LOS ANGELES UC SOUTHERN REGIONAL UBRARY FACIUT^^ AA 000 834 201 6 ^'"^^m