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REPORTS OF CASES

AT

COMMON LAW AND IN CHANCERY,

AKGUED AND DETEKMINED

IN THE

SUPREME COURT OF THE STATE

OF

ILLINOIS,

FROM ITS FIRST ORGANIZATION IN 1819, TO THE END OF DECEMBER TERM, 1831.

By SIDNEY BREESE,

COUNSELLOR AT LAW.

SECOND EDITION, WITH ADDITIONAL NOTES,

By EDWIN BEECHER.

CHICAGO : CALLAGHAN & COMPANY,

1877.

Entered according to Act of Congress, in the year 1861, by

EDWIN BEE CHER,

In the Clerk's Office of the District Court of the United States, in and

for the Southern District of Illinois.

Entered according to Act of Congress in the year 1877, by

CALLAGHAN & COMPANY,

in the Office of the Librarian of Congress at Washington, D. C.

Stereotyped and Printed

by Geo. J. Titus & Co., Chicago.

PREFACE.

This Volume of Reports is submitted to the public and the profession with great diffidence. The task of preparing it for publication was undertaken with great reluctance, and at the earnest solicitations of the members of the Bar, who had, in common with myself, long felt the want of it. I fear that I have not, in the performance of it, equaled their expectations, and without making the proper allowances for the difficulties I have had to encounter, they may attribute the defects of the work, great as they truly are, more to my incapacity, than to the real causes of them. I need not here enlarge upon the great utility, to the profession, especially, of books of Reports, nor on the necessity that exists in all countries, where the law is the rule of action, that it should be certain and known. The legislature may enact laws, but it is the courts that ex- pound them, and if their expositions remain unpublished, much mischief and litigation must be the consequence. If any apology is necessary for the court, whose decisions compose this volume, it may be found in the facts, that for the last nine years, its- sessions have been held at a place remote from the means of information, where there is not even an ordinary law library and no conveniences for examination or reflection — that for several months in each year the Judges composing it, are required by law to perform circuit duties, and that at every other term of the court, they form a part, as the Council of Revision, of the Legislature, so that they are unable to bestow upon the cases coming under their revision, that care and attention they would themselves desire, and which Judges, under other more favorable circumstances could bestow.

It might, perhaps, have been desirable, that a more skillful person had undertaken this work — one who could, from the manner in which he might give their opinions to the public, do them more ample justice. It has, however, been my earnest endeavor to omit nothing, abate nothing; but to give, in the language of the court, their decisions, in every case of importance, as made by them. It is the first publication of the kind ever attempted in this State, and my first essay; and,

IV PREFACE.

though I am convinced that it will not add to my reputation as a lawyer, that I can claim no credit for anything contained in it, that it bears no evidence in my favor of erudition, re- search, or of that share of legal knowledge, without which a work of this kind should not be attempted ; yet, I have the satisfaction to know, that the cases are faithfully and ac- curately reported. It is as such, I submit it to the candor of my professional brethern and the public, confident, that where they can not praise, they will not censure.

It is an unpretending volume — the author of it being, though at a great distance, only an humble follower of those distinguished lawyers of Europe and America, who have employed their time and talents on works of a similar kind, and from a similar motive — a desire to discharge, in some degree, that duty, which one of the sages of the law has said, every man owes to his profession.

SIDNEY BEEESE. Kaskaskia, November 15, 1831.

The following advertisement was published by Judge Breese in the first edition, and explains a note of his on page 36, at the close of the December Term, 1820.

ADYEETISEMENT.

Since the completion of this work, I have learned that the decisions made at December Term, 1821, were- consumed in the burning of the bank house, where the records of the Supreme Court were kept. For apology for any other omis- sion, I have to say, that every case is reported, that could, upon diligent search and inquiry, be found among the re- maining records of the Court.

PREFACE TO THE SECOND EDITION.

The first edition of this work has long been out of print. Very few copies are to be found either in the public offices or in the libraries of members of the bar. Seeing the necessity of a reprint, the legislature, at its last regular session, passed an act authorizing the publication of a new edition. It is in accordance with that act, that this has been prepared. All the decisions contained in the original edition, together with the notes of Judge Breese, have been retained in this. Refer- ences have been made in the notes to decisions of our courts of cases decided subsequent to those reported in the original volume, down to the 24th vol. Illinois Reports, inclusive. Also when any principle contained in the decisions reported by Judge Breese has been changed by statute, the change has been shown. A slight alteration will be found in the arrange- ment of the cases, a few having been published in the appen- dix, that properly belonged in the body of the work, but which were not discovered by the reporter in time to insert them in their proper order ; thus, the case of Naught v. Oneal, which appears on page 29 in the appendix to the first edition, will now be found at the close of the cases decided at the Decem- ber term, 1820, it having been decided at that term ; and so of several other cases in the appendix, each will now be found among the cases of the term at which it was decided. The other cases in the appendix are now published as a continua- tion, or a part of the regular volume, they following in con- secutive order. But one index, and one table of cases are inserted, instead of two, as in the first edition. !No other change in the general arrangement has been made.

VI PREFACE.

It was intended that the notes of Judge Breese to the first edition should precede those of this edition; but on putting the work in type it was found that to do so, would frequently separate the notes and references, placing the references on one page, and the notes on a subsequent one ; this, it was believed, would be a greater defect than in some instances to allow the notes to this edition to precede those of the former one, but whenever this could consistently be avoided it has been done; and as an apology for this defect, or apparent disrespect of Judge Breese, I would ask the reader to remember that in every case the notes referred to by letters are those of Judge Breese and were published with the first edition; while those referred to by figures have been prepared for the present edition.

EDWIN BEECHEK.

Fairfield, Illinois, Aug. 1, 1861.

TABLE OF CASES.

A.

Ackless v. Seekright, . 76 Ackless, Johnson v. . . 92 Adams & others v. Smith, 283 Allen, Ingalls, v. . . . 300 Allison & others v. Clark, 348 Ankeny v. Pierce, . . 262 Ankeny v. Pierce, . .289 Ankney, Flack & John- son v 187

Ankeny, Finley, & Creath

v. 250

Armstrong, Wright v. . 172 Armstrong, Thompson v. 48 Atchison, Green v. . . 291 Auditor, Blackwellv. . 196 Auditor v. Hall, ... 392 Aydelott,Bell^. ... 45

B.

Bagley, and others, More

and Bates v. ... 94 Baker, v. Whiteside, . 174 Bank of 111,, Hargrave v. 122 Bank of Illinois, Jones v. 124 Barret and wife t>. Gaston's

ex'r ..... 255 Bartleson, Whiteside v. 71 Bates v. Jenkins, . . . 411 Beaird, Pankin v. . .163 Beaird v. Foreman and

others, 385

Beaird, Edwards -v. ... 70 Beaugenon v Turcott &

Yalois, 167

Beaumont v. Yantz, . . 26 Beebe v. Boyer, . . . 406 Beer and others v. Philips, 44 Bell v. Aydelott, ... 45 Bennet & Judy v Scher-

mer & Co., ... 352 Betts, Bond & Menard v. 205 Betts v. Menard. ... 395 Biggs and others v. Pos-

tlewait, ..... 198 Blackwell v. The Auditor, 196

Blair and wife v. Sharp, 30 Bloom v. Goodner. . . 63 Bloom, E"owlin v. . . . 138

Blue, Street v 261

Blue v. Weir ■& Yanland-

ingham, ... 372 Bond, Jones' adm'r v. .287 Bond & Menard v. Betts, 205 Bond, Owen and others v. 128 Boucher, Cornelius v. . 32 Boyer, Beebe v. . . . 406

Bradshaw v. Newman, . 133 Brazle & Hawkins v. Usher 35 Bridges, Smith v. . . . 18

Brinkley v. Going, . .366 Brinkley v. Going, . .367 Bryan & Morrison v. Prim, 59 Bryans v. Buckmaster, . 405 Browder v. Johnson, . 96 Brown, Greenup & Con- way v. . . . . . 252

Buckmaster v. Eddy, . 381 Buckmaster, Mason v. . 27 Buckmaster, State Bank v. 176 Buckmaster, Bryans v. . 408

a

Cairns, Gilliam <k others-v. 164 Caldwell, Gill v. . . . 53 Chandler v. Gay, ... 88 Chenoweth, Mayo v. . . 200 Chipps v. Yancey, ... 19 Clark, Allison & others v. 348 Clark v. Cornelius, . . 46 Clark v. The People, . 340 Clark v. Eoberts, ... 285 Clark v. Boss, .... 334 Clary v. Cox and others, 235 Claypole, Collins v. . . 212 Clemerson v. Kruper . . 210 Cobb v. Ingalls, ... 233 Cohen, Cornelius v. . . 131 Cohen & Claypole v. Fig- gins, 19

Coles v. Co. of Madison, . 154 Collier & Powell, Hum- phreys v 297

Vlll

TABLE OF CASES.

PAGE.

Collins v. Claypole, . . 212 Collins v. Waggoner, . 51 Collins v. Waggoner, . 186 Conley v. Good, . . . 135 Connolly v. Cottle, . . 364

Cook, Luskin 84

Coons & Jarvis, Corne- lius v 37

Cornelius v. Boucher,

32

Cornelius, Clark v. . . 46

Cornelius v. Cohen, . . 331 Cornelius v. Coons &

Jarvis, ..... 37

Cornelius v. Yanorsdall, 23

Cornelius v. Wash,

98

Cottle, Connolly v. . . 364 Co. Com'rs of Gallatin

Co., Streets. . . ' . 50 KandolphCo. .

v. Jones, .... 237 Co. of Madison, Coles v. 154 Cox and others, Clary v. 235 Cox v. McFerron, . . 28 Crane v. Graves, . . . 66 Creath, French v. . . . 31 Cromwell v. March, . . 295 Cromwell v. March, . . 326 Cromwell, Scott v. . . 25 Crow's ex'rs v. Prevo, . 216 Curtis 'y. Doe, ex dem., . 139 Curtis v. The People, . 256 Curtis v. Swearingen, . 207

D.

Derrick, Maurer v. . .197 DeSeelhorstjMellicktf. . 221 Doe, ex de?n., Curtis v. . 139 Doe v. Hill, .... 304 Duncan v. Fletcher, . .323 Duncan v. Ingles & Burr, 277 Duncan v. Morrison &

Duncan, .... 151 E.

Eads, Kyan v 217

Eakle, Mason v. . . . 83 Eddy, Buckmaster v. . 381 Edwards v. Beaird, . . 70 Edwards,Ladd& Taylors. 182

PAGE.

Ellis v. Snider, . . . 336 Emerson, McLean v. . . 320 Ernst's adm'rs v. Ernst, 316 Ernst v. State Bank, . 86 Everett v. Morrison, . . 79

F. Fail & JSTabb v. Good- title, 201

Fanny v. Montgomery,

et d 247

Figgins, Cohen & Clay- pole v .19

Finley and Creath v.

Ankeny, .... 250 Flack and Johnson v.

Ankeny, .... 187 Flack v. Harrington, . .213 Fletcher, Duncan v. . . 323 Foley v. The People, . . 57 Foreman and others,

Beaird v 385

Forester et ml. v. Guard,

Siddall & Co.,. . . 74 Forquer, The People v. . 104 Francis and others, Jones'

adm'rs v 165

French v. Creath, ... 31 Frothingham and Fort,

Bust v 331

G. Garner v. Willis, . . . 368 Gaston's ex'r, Barret and

wife v 255

Gay, Chandler v. . . . 88 Giles v. Shaw, .... 125 Giles v. Shaw, .... 219 Gilliam, Hunter v. . . 82 Gilliam & others 'y.Cairns, 164 Gill v. Caldwell. ... 53 Going, Brinkley v. . .366 Going, Brinkley v. . . 367 Good, Conley v. . . . 135 Goodner, Bloom v. . . 63 Goodtitle, Fail & Nabb v. 201 Gore v. Smith, .... 267 Graves, Crane v. . . . 6Q Gregg v. James & Philips, 143

TABLE OF CASES.

IX

Greenup and Conway v.

Woodworth, ... 232 Greenup and Conway v.

Woodworth, ... 254 Greenup and Conway v.

Brown, .... 252 Green v. McConnell, . . 236 Green v. Atchison, . . 291 Guard, Siddall & Co., For- ester V 74

H.

Hall, Auditor v. . . . 392 Hargrave v. Bank of 111., 122 Hargrave v. Penrod, . .401 Harrington, Flack v. . . 213 Hays, Morgan v. . . . 126 Hays, adm'r v. Thomas

and others, . . . 180 Herbert and others v.

Herbert, .... 354 Hill, Doe, ex dem,., v. . 304 Hobson, Hubbard v. .190 Hogan> Wells v. . . 337 Howard, Nance v. . . 242 Hubbard v. Hobson, . . 190 Hugsby, Sims v. . . . 413 Humphreys v.- Collier &

Powell,

297 82

Hunter v. Gilham, . I.

Ingalls v. Allen, . . . 300 Ingalls, Cobb v. . . . 233 Ingles & Burr, Duncan v. 277

James & Phillips, Gregg v. 142

292 278 411 92 96 357 124

James, Smith v. Jay, Phoebe v. . . Jenkins, Bates v. . Johnson v. Ackless, Johnson, Browder v. Johnson v. The People, Jones v. Bank of Illinois Jones v. Co. Com'rs of

Kandolph ... 237 Jones v. Llovd, Serrill and •

Oakford, .... 225 Jones adm'rs v. Bond, . 287 2

Jones v. Francis & others, 165

K. Kain, State Bank v. . . 75 Kennedy,Taylor and Par- ker v. 91

Kerr & Bell v. Whitesides, 390 Kimmel v. Shultz <feothers,169 Kimmel v. Schwartz, . 278 Klein, Sims v. . . . 302 Klein, Sims v. . . . 371 Kruper^ Clemson v. . . 210

JL. Ladd & Taylor v. Edwards, 182 Laframboise, Snidery. . 343 Lamb, Prince v. . . . 378 Lattin v. Smith, . . . 361 Littletons v. Moses, . . 393 Lock, Semple v. . . . 389 Lloyd, Serrill & Oakford,

Jones v 225

Lusk v. Cook,

84

M.

Marsh, Cromwell v. . .295 Marsh, Cromwell v. . .326 Mason v. Buckmaster, . 27 Masons. Eakle, ... 83 Mason v. State Bank, . . 183 Mason v Wash, . . . . 39 Maurer v, Derrick, . .197 Mayo v. Chenoweth, . . 200 May, Yernon, Blake &

Co. ^ 294

McConnell, Green v. . . 236 Mc Ferron, Cox v. . . 28 Mc Lean v. Emerson, . 320 Mears' ex'r v. Morrison, 223 Mellick v. DeSeelhorst, . 221

Menard, Betts v.

395

Miller, Tarlton v. . . 68 Mitchell, Pankey v. . .383 Mitchell and others, Rey- nolds v 177

Montgomery et al. Fanny

v .247

Moore v. Watts and others, 42 More & Bates v. Bagley

and others. ... 94 Moreland, State Bank v. . 282

TABLE OF CASES.

Moreland & Willis v.

State Bank, ... 263 Morgan v. Hays, . . .126 Morrison & Duncan, Dun- can v 151

Morrison, Everett v. . 79 Morrison, Yincent & Ber- .

trand v 227

Morrison, Mears' ex'r v. 223 Moses, Littletons v. . . 393

N. Nance v. Howard, . . 242 Naught v. Oneal, . . . . 35 Newman, Bradshaw v, . 133 Noble v. The People, . 54 Nomaque v. The People, 145 Nowlin v. Bloom, . .138

O. Oneal, Naught v. ... 36 Owen and others v. Bond, 128

P. Paine's adm'rs, "Wood- worth v 374

Pankey v. Mitchell, . . 383 Parker, Rolette v. . . 350 Penrod, Pargrave v. .401 People, Clark v. . .. . 340 People, Curtis v. . . . 256 People, Foley v. ... 57 People, v. Forquer, . . 104 People, Johnson v. . . 351 People, Noble v. ... 54 People, Nomaque v. . 145 People v. Slayton, . . 329 People, Tyler v. ... 293 People, Wrights. . . 102 People, Whitesides v. . 21 Phelps v. Young, . . . 327 Philips, Beer& others v. 44 Phoebe v. Jay, .... 268 Pierce, Ankenyy. . . . 262 Pierce, Ankeny v. . .389 Poole v. Yanlandingham, 47 Postlewait & others, Biggs

& others v. . . .198 Prevo, Crow's ex's v. . 216 Primm, Bryan & Morri- son v 59

Prince v. Lamb, . -

R Pager v. Tilford, . . Rankin v. Beaird, . Reynolds v. Mitchell an<

others, .... Rice, Tufts v. . . . Roberts, Clark v. . . Rolette v. Parker, . Ross, Clark v. . . . Rountree v. Stuart, Rust v. Frothingham 6

Fort, .

Ryan v. Eads,

407 163

177 . 64 . 385 . 350 . 334 . 73

. 331

'. 217

S.

Sawyer v. Stephenson, . 24 Schermer & Co., Bennet

& Judy, v. . . . 352 Schwartz, Kimmel v. . 278 Scott v. Cromwell, . . 25 Seekright, Ackless v. . 70 Semple v. Lock, . . .389 Sharp, Blair & wife v. . 30 Shuitz & others, Kimmel

v 169

Shaw, Giles v 125

Shaw, Giles v 219

Sims v. Hugsby, . . 413 Sims v. Klein, . . . 302 Sims v. Klein, . . . 371 Slayton, The People v. . 329 Smiley & Bradshaw,Thorn-

ton & others v. . 34 Smith, Adams & others v. 283 Smith v. Bridges ... 18 Smith, Gore v. ' . , . 267 Smith v. James, . . .292 Smith, Lattin v. . . . 361 Snider, Ellis v. . . . 336 Snyder v. Laframboise, . 343 Snyder v. State Bank, . 161 Sprinkle, Taylor v. . . 17 Stafford, White v. ... 67 State Bank v. Buckmaster, 176 State Bank,Ernst's adm'rs v. 86 State Bank v. Kain, . . 75 State Bank, Mason v. . 183 State Bank v. Moreland, 2S2

TABLE OF CASES.

XI

State Bank, Moreland &

Willis v 263

State Bank, Snyder v. .161 Stephenson, Sawyer v. . 24 Street v. Bine, .... 261 Streets. Co. Comr's of Gal- latin, 50

Stuart, Rountree v. . . 73 Swearingen, Curtis v. .207

T.

Tarlton v. Miller, . . 68 Taylor v. Sprinkle, . . 17 Taylor v. Winters, . . 130 Taylor & Parker v. Ken- nedy, 91

Teague v. Wells, . . . 377 Thomas and others, Hays,

adm'r v 180

Thompson v. Armstrong, 48 Thompson, White v. . 72 Thornton and others v.

Smiley & Bradshaw, 34 Tilford, Pager v. . . 407 Tufts v. Bice, .... 64 Turcotte & Yalois, Beau-

genon, v. ... 167 Tyler v. The" People, . 293

U

Usher, Brazzle & Haw-

kins,

35

Yernon, Blake & Co. v.

May, 294

Yincent & Bertram! v.

Morrison, .... 227 W. Waggoner, Collins, v. . 51 Waggoner, Collins, v. . 186 Wash, Cornelius, v. . . 98 Wash, Mason, v. . . . 39 Watts and others, Moore, v. 42 Weir & Yanlandingham,

372

337

377

67

72

174

71

Blue, v. Wells v. Hogan, Wells, Teaome,

v.

Yanlandingham, Poole, v. 47 Yanorsdall, Cornelius, v. 23

White v. Stafford, . White v. Thompson, Whiteside Baker, v. Whiteside v. Bartleson Whiteside, Kerr & Bell, 'v. 390 Whiteside v. The People, 21 Willis, Garner, v. . . 368 Winters, Taylor, v. - . 130 Woodworth, Greenup &

Conway, v. . . . 232 Woodworth, Greenup &

Conway, v. . . . 254 Woodworth v. Paine's

Administrators, . 374 Wright v. Armstrong, . 172 Wright v. The People, . 102

Y. Yancey v. Chipps, . . 19 Yantz, Beaumont, v. . 26 Young, Phelps, v. . - 327

RULES

SUPREME COURT

STATE OF ILLINOIS.

MOTIONS.

Rule I. Motions may be made immediately after the orders of the preceding day are read, and the opinion of the court delivered in; but at no other time, unless in case of necessity, or in relation to a cause when called in course.

Rule II. They are to be made by the attorneys, in the fol- lowing order : first, by the attorney-general ; next, by the oldest practitioner at the bar, and so on to the youngest; but no attor- ney to make a second motion until each has had an oppor- tunity to make his motion.

Rule III. Affidavits must be made when a motion is bot- tomed on a matter of fact; which, according to the practice of the court, should be sworn to.

SUPERSEDEAS.

Rule IY. No supersedeas will be granted unless a tran- script of the record on which the application is made, be com- plete, and so certified by the clerk, and the necessary bonds be entered into according to law.

Rule Y. When a writ of error shall be made a superse- deas, the clerk shall indorse on the writ that it shall be so obeyed accordingly.

♦During the time the decisions reported in this volume were made, the following rules of the court were in force.

RULES OF THE 8UPEET.IE COUUT. XI 11

WRITS OF ERROR.

Rule VI. Writs of error shall be directed to the clerk, or keeper of the records of the county in which the judgment, or order complained of is entered, commanding him to certify a transcript of the record to this court.

Rule VII. When a plaintiff in error shall file in this office a record duly certified to be full and complete before a writ of error issues, it shall not be necessary to send such writ to the clerk of the inferior court ; but such writ shall be made out, and filed by the clerk of this court, with the said record; which record shall be taken and considered as a due return to said writ.

PROCESS ON" WRITS OF ERROR.

Rule VIII. The process on writs of error shall be a sub- poena, issued on the application of the party to the clerk, directed to the sheriff of the proper county: or in case of in- terest, to the coroner, commanding him to summon the defendant in error to appear in court, and show cause, if any, why the judgment or decree, mentioned in said writ of error, should not be reversed.

Rule IX. If the subpoena be not returned executed, an alias, pluries, &c, may issue without an order of court, on the application of the party.

Rule X. When it shall appear to the satisfaction of the court, that a defendant is not an inhabitant of the state, there shall be a day fixed for his appearance, and an order to adver- tise; which order shall be advertised once a week, for four weeks successively, in some paper printed at the seat of govern- ment; the last publication shall be at least four weeks before the appearance day. After publication, as aforesaid, and affidavit thereof filed with the clerk, the said cause shall stand for hearing as if the party had been served with a subpoena.

DOCKETING SUITS FOR HEARING.

Rule XL The clerk shall set the causes for trial in the order they come into the court, except the causes for or against the people, which shall be set in order at the end of the civil

causes.

ASSIGNMENT OF ERROR. Rule XII. In writs of error not operating as supersedeas,

Xiv RULES OF THE SUPREME COURT.

the plaintiff shall, within eight days after the filing of the record, assign in writing, and file with the clerk, the particular error or errors, of which he complains ; no other error or errors shall be alledged or enquired into by the court.

Eule XIII. If the party fail to assign errors, as aforesaid, a rule shall be given — and if the errors be not assigned at the expiration of the rule, the case may, on motion, be dismissed.

Eule XIY. In all cases of appeals from any court to this court, the appellant shall tile in open court, on or before the third day of the term succeeding the appeal, if there be thirty days between the sitting of the Supreme Court and the grant- ing of the appeal, a copy of the record; and at the same time assign his errors, so that the appellee may, should he think proper, enter his appearance, and go to trial. Should there not be thirty days, then to tile the record, and assign errors on the first day of the second term.

Eule XY. When the court grants a writ of error with supersedeas, at the same time the plaintiff shall file a copy of the record and assign his errors, so that the defendant may join in error, and go to trial at the same term of the court.

Eule XYI. When a writ of error is made a supersedeas in vacation, the plaintiff shall file in open court, on or before the third day of the next term thereafter, if there be thirty days between the granting of said writ and the sitting of the court, if not, on the first day of the succeeding term, a copy of the record duly certified, and an assignment of errors, so that the defendant may join in error, and have a trial at the same court.

EEIIEAEINQ.

Eule XYII. On a petition to the court briefly stating the grounds of rehearing of a cause, and the law to support it, signed by an attorney or attorneys of the court, the court may, when there is reason for it, grant a new trial, on giving the prevailing party notice, both of the motion for a re-hearing, and the time of such new trial, if granted.

Eule XYIII. The counsel for the plaintiff in every writ of error, and the appellant in every appeal, shall furnish to each of the Justices of this court, before the argument of every such writ of error or appeal shall commence, an abstract or abridg- ment of such parts of the pleadings and proceedings in such case, as said counsel shall deem necessary to a full understand- ing of the errors relied on for a reversal of the judgment or

RULES OF THE SUPREME COURT. XV

decree complained of, together with the points intended to be relied on in the argument of the cause, and the authorities intended to be used in support of them.

Rule XIX. It shall also be the duty of the counsel for the plaintiff in error, or appeal, to file in the clerk's office, for the use of the defendant's counsel, a copy of said abstract or abridg- ment, at least one day previous to the argument, when the cause is not argued on the first day of the term ; and if the two fore- going rules shall not' be complied with, the cause shall be either discontinued or dismissed, at the discretion of the court.

Rule XX. The defendant's counsel shall be permitted, in case he is not satisfied with the abstracts or abridgments by the plaintiffs counsel, to furnish each of the Judges with such other abstracts as he shall deem necessary to a full understanding of the merits of the cause : and it shall also be the duty of the defendant's counsel to furnish each of the Justices of the court, at the commencement of the argument, with the authorities he

intends to cite on the argument.

t>

Rule XXI. All special motions shall be entered with the clerk at least one day before the same shall be argued; and the counsel entering said motion shall, at the same time, file the reasons on which the motion shall be predicated.

Rule XXII. JSTo certiorari for diminution of the record shall be hereafter awarded in any case, unless a motion there- for shall be made in writing, and the facts on which the same is founded, shall, if not admitted by the other party, be veri- fied by affidavit. All motions for such certiorari shall be made at the first term of the entering the cause or appearance of the defendant in errOr, otherwise the same shall not be granted, unless upon special cause shown to the court, accounting sat- isfactorily for the delay.

Rule XXIII. After the present term, no original record, or other paper on the files of this court, shall be taken from the Supreme Court room, or from the office of the clerk of this court.

JUDGES

OF THE

SUPREME COURT OF ILLINOIS,

DURING THE TIME OF THESE REPORTS.

JOSEPH PHILIPS, Chief Justice, appointed Oct. 9, 1818, resigned July 4, 1822.

THOMAS REYNOLDS, Chief Justice, appointed August

31, 1822.

THOMAS C. BROWNE, ) A . . , A . . T .. JOHN REYNOLDS, I Appointed fssocrn^ Justices,

WILLIAM P. FOSTER * ) uct. y, i«i».

WILLIAM WILSON, appointed 7th August, 1819, in place of William P. Foster, resigned.

Note. — The tenure of office of the above named Judges waf fixed by the Constitution, "until the end of the first session oi the General Assembly, which shall be begun and held after the 1st day of January, 1824." At that session, the following named Judges were elected, the tenure of whose office is, dur- ing good behavior, and whose commissions bear date, January 19th, 1825, viz.:

WILLIAM WILSON, Chief Justice

THOMAS 0. BROWNE, ' )

SAMUEL D. LOCKWOOD, I Associate Justices.

THEOPHILUS W. SMITH, )

ATTORNEYS GENERAL.

DANIEL P. COOK, elected by the Legislature, March 5, 1819, resigned on being elected to Congress, Oct. 19, 1819.

WILLIAM MEARS, appointed by the Governor, in the recess of the Legislature, 14th December, 1819.

SAMUEL' D. LOCKWOOD, elected by the Legislature, Feb. 6, 1821, resigned December 28, 1822.

JAMES TURNEY, elected by the Legislature, and commis- sioned, 14th January, 1823, resigned Dec, 1828.

GEORGE FORQUER, elected by the Legislature, January

23, 1829.

*Besigned 22d June, 1819, never having taker his seat on the Bench.

!

DECISIONS

OF

THE SUPREME COURT

OF THE

STATE OF ILLINOIS.

DECEMBER TERM, 1819, AT KASKASKIA.

Present, THOMAS C. BROWNE, )

JOHN REYNOLDS, [ Associate Justices.. WILLIAM WILSON, J

JOSEPH PHILIPS, Chief Justice, absent. Jonathan Taylor, Appellant, v. Michael Sprinkle, Appellee..

APPEAL FROM GALLATIN.

In all special pleas to the consideration of a note, the manner of avoiding the obligation ought to be shown ; a failure to do it is error.

Opinion of the Court* This was an action o£ covenant. The fifth plea states, that the consideration failed. This plea- was demurred to, and the demurrer sustained by the court. The validity of the fifth, plea, is the only point before the court. The plea was filed under the statute,-)- which introduces a new- remedy contrary to the common law, and ought not to be extended too far ; and in all special pleas, the manner of avoiding the obligation ought to be shown. As the precise manner is not shown by this plea, it is insufficient, and the demurrer to it was properly sustained. The judgment of the circuit court is affirmed, with Hve per cent, damages and costs. (1)

Judgment affirmed.

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

+Laws of 1819, page 59.

(1) The principle asserted in this case has been repeated in numerous cases since this decision was made. A reference only to them is necessary. Cor- nelius v. Varwrsdale, post. Pool v. Vanlatidinyliam, id. Bradshaw v

3 >-5 Al

18 KASKASKIA.

Smith v. Bridges.

Elijah Smith who sues foe the use of William Johnson-, Appellant, v. "William Bridges, Appellee.

APPEAL FROM MADISON.

Although no particular form is necessary to make a note, yet the writing must show an undertaking or engagement to pay, and to a person named in it, or to bearer or holder of the instrument.

Opinion of the Court* The plaintiff below, states in his petition, that he "holds notes on, &c." and the instrument on which suit is brought, has not a single feature of a note, inas- much as it does not appear there was any undertaking by the defendant to pay any person at all.

Although no particular form is necessary to make a note, yet the writing must show an undertaking or engagement to pay, and to a person named in it, or to bearer or holder of the instrument. The judgment of the court below is reversed, and the cause remanded to the court below. (1)

Judgment reversed.

y+y1? Neivman, id. Sims v. Klein, id. Swain v. Cawood, 2 Scammon, 505. Van- landingham v. Ryan, 17 Illinois Rep., 25.

A plea of failure of consideration to an action upon a note, should state particularly in what the failure consisted. General allegations are not suf- ficient. Parks v. Holmes, 22 Illinois Rep., 522.

Under the general issue it is not competent to show a total or partial failure of consideration of a promissory note. Rose v. Mortimer, 17 Illinois Rep., 475.

Under a plea of a total failure of consideration, a partial failure can not be given in evidence. Sims v. Klein, post. Swain v. Cawood, 2 Scam., 505.

* Justice Reynolds having been counsel in this cause, in the court below, gave no opinion.

(1) A promissory note is defined to be " a promise or agreement in writing to pay a specified sum, at a time therein limited, or on demand, or at sight, to a person therein named or his order, or to hearer." Chitty on Bills, 516. Walters v. Short, 5 Gilm., 259. All notes must contain the name of the payee, unless payable to bearer. Bailey on Bills, 22.

No action can be maintained on an instrument in writing for the payment of money, unless the instrument sho ,vs on its face to whom it is payable. Mayo v. Chenoweth, post.

Bills of exchange and promissory notes should be made payable to some person specified, but this may be done without inserting the name, if the payee be so certainly specified or referred to, as to be ascertained by allegations and proofs. Adams et al. v. King el al., 16 Ills. Rep., 169.

An instrument purporting to be a promissory note, payable to one of two persons in the alternative, can not be sued on as such. Musselman v. Oakes, 19 Ills. Rep., 81.

DECEMBER TERM, 1819. 19

Coleen and Claypole, v. Figgins. Amos Chipps, Appellant, v. Thomas Yancey, Appellee.

APPEAL FROM POPE. The plea of nil debet is not a good plea to an action of debt upon a record.

Opinion of the Court* This was an action of debt on a judgment rendered in the State of Kentucky. The defend- ant pleaded nil debet, to which there was a demurrer, which the court sustained. To reverse this opinion, this appeal was taken. It is considered by the court, that the judgment of the court below, sustaining the plaintiff's demurrer, to the defendant's plea, be affirmed with costs, (a) (1)

Judgment affirmed.

Francois Coleen and Abraham Claypole, Appellants, v. Daniel Figgins, Appellee.

APPEAL FKOM MADISON.

The act of the General Assembly creating circuit courts, was approved on the 31st of March, 1819, and on the same day a writ issued out of the clerk's office of the circuit court of Madison county, returnable to the May term following.

The writ is void, as the act had no operation until the 1st day of April.

Appearance can not make the writ good, that and pleading, will cure voidable, but not void process.

Opinion of the Court. ,f It appears from the record in this cause, that the writ issued by the Madison circuit court, on the 31st day of March, 1819, and made returnable to May term following, and that the act creating circuit courts, passed on the same day the writ issued. Although it appears, that the

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

(a) Nil debet is a bad plea in an action of debt brought on a judgment ob- tained in another State. Armstrong v. Carsars, exr., 2 Dall., 302. Mills v. Duryee, 7 Cranch,480.

Nil debet is not a good plea to an action of debt on a recognizance, nor to any action founded on a record or specialty. Bullis v. Giddins, 8 Johns., 82.

(1) In an action of debt brought on a sheriff's bond, the plea of nil debet is bad on demurrer. Where a bond is the foundation of an action of debt, nil debet is not a good plea. It is otherwise where the instrument is but the inducement to the action. Davis v. Burton et al., 3 Scam., 12. King v. Ram- sey, 13 Ills. R., 622.

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

20 KASKASKIA.

Coleen and Claypole v. Figgins.

act establisliing circuit courts, passed on the 31st day of March, yet the court are clearly of opinion, that it did not take effect until the first day of April, and that the process is therefore void, as the clerk had no authority to issue the writ, and make it returnable to a court not in existence, at the time the writ issued. E"o appearance could make the writ good. The court below was bound to have quashed it, it differing materially, from process that is voidable merely where appearing and pleading might cure the defect.

It is unnecessary for the court, to notice any other error assigned, as the point already decided, determines the case. The judgment of the court is reversed, (a) (1)

Judgment reversed.

Kane, for appellants.

Winchester, for appellee.

(a) An appearance of the defendant by attorney, cures any antecedent irregularity of process. Knox et al. v. Summers et al., 3 Cranch, 496.

Process returnable out of term is void, and can not be amended. Cramer v Van Alstyne, 9 Johns., 386.

(1) It can hardly admit of a doubt that an appearance cures all defects as to the manner in which a party is brought into court. If a party, without process, pleads to an action, it is too late for him then to say that no process was issued or served on him. He is then in court, and it is immaterial whether he appears in compliance with the mandates of the law, or whether he waives a right which he might have insisted on, and voluntarily places himself in a position in which he is required to make his defense. The decis- ions on this question are uniform. In Eastern et al. Y.Altum,l Scam., 250, the court said : " The authorities are numerous and explicit, that irregularity of process, whether the process be void or voidable, is cured by appearance without objection." And in Mitchell v. Jacobs et al., 17 Ills. Rep., 236: "A defendant appearing without objection waives all objections thereto, although the process may be void, or there may have been no service." To the same effect is Mineral Point R. R. Co. v. Keep, 22 Ills. Rep., 9. The following- cases have also been passed upon by the Supreme Court of this State, in each of which this question arose, and received substantially the same solution. Pearce et al v. Swan, 1 Scam., 269. Vance et al v. Funk, 2 Scam., 263. Beecher et al v. James et al. id.,