UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LBRARY m PUTERBAUGH'S COMMON LAW PLEADING AND PKACTICE. 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 JUIH5E OF THE CIRCUIT COURT, AND AUTHOR OF rUXJiKBAfGH'S CHANCERY PLEAMNQ AND PBACTIC& SIXTH EDITION. CHICAGO: CALLAGHAN & COMPANY. Entered according to Act of Congress, in the year 1888, by 8ABIN D. PUTKRBAUGH, In the Oiiice of the Librarian of Congress, at Washington. Stereotyped and Printed by the Chicago Legal News Company. r o 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 b^' the courts and members of the profession throughoat the State of Illinois, and other States and Territories where the work has been used and recognized. The last revision was in 1880, prepared in 1879. Since then there have been constant, and in many instances material and radical changes in the Statutes upon subjects herein considered. 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. General 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 cor- rect pleadings and practice at common law, and statutory remedies and defenses, so far as it pretends to treat, as it exists in Illinois to-day. All the statutes to date, the decisions of the Supreme Court down to and including part of the 121st Illinois Reports, and of the Appellate Court from its organ- ization to and including the 21st volume of the reports of its opinions, have been examined, and so far as they appeared applicable to the subject under consideration, have been referred to and cited. References to the Statutes are to the latest editions. The entire work, so far as deemed necessary, has been revritten and revised. Five new chapters and over fifty new practical forms have been added. The contents of this edition, as well as the changes and additions, appear in the "Analysis of Contents," iuiraediately following this introduc- tion. 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 aiithority, where the several subjects have been separately and elaborately treated. The 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. PUTERBAUGH. Peouia, III., March 1, 1888. 1 ANALYSIS OF CONTENTS. CHAPTER I. - GENERAL PRINCIPLES OF PLEADING. CHAPTER II. COMMENCEMENT OF AN ACTION. The Praecipe 38 Security for Costs, etc 39 When required, etc 39 On official bonds, penal actions 40 By minors by next friend, etc 40 Form of security for 40 Approval and effect of bond 41 Dismissal for want of 41 Motion to dismiss for want of 41 Rule to file security A'l Cross-motion for leave to supply, etc 42 Objections to security 42 Plaintiff a poor person, may prosecute without 42 Affidavit of, in support of motion, etc 42 Bail in Civil Cases, etc 43 Actions sounding merely in damages 44 Plaintiff to give bond 44 Bail bond 44 Who may become bail 45 Sheriff may administer oath 45 Sheriff 's liability 45 Insufficient bail, etc 45 Discharge or reduction of bail 46 Capias to stand as a summons, etc 46 Surrender of defendant, etc 46 Record of 47 In vacation 47 When bail may be discharged 47 After judgment, effect of 47 VI ANALYSIS OF CONTENTS. New bail may I)e taken 48 Bail may arrest principal 48 Prosecution of bail 48 Suit on bail bond, when , etc 48 Bail may obtain judgment against principal, when 49 Death of principal, etc 49 When bail discharged, etc 50 Bankruptcy, etc., of principal 50 Form of affidavit charging fraud 51 Same, different facts stated 61 Same, in actions sounding merely in damages, etc 52 Form, qf judge's order for cnjyias, etc 53 " of bond to be given by plaintiff 53 " of bond required of defendant 54 Discharge of bail in discretion of court 54 Effect of surrender of principal after return day 55 Suits on bail bonds, how brought 55 FiUNG Affidavit of Claim with Declaration 55 Form of affidavit of claim, etc 56 CHAPTER III. ASSUMPSIT. Nature of the action, etc 57 Where it lies, etc 58 Consideration of promise 60 Privity of contract 61 COMMENCEMKNT OF THE ACTION 61 Form of praecipe in 61 Declaration in 62 Instrument or account sued on, etc •. 63 Continuance for want of 63 Dismissal at second term 64 Waiver of, etc 64 Form, indebitatus or common counts 65 " consolidated common counts 67 Money had and received 70 Form, quantum meruit count 72 •' quantum valebant count 72 Common Counts Relating to the Character in wnicn Plaint- iff Sues, or the Defendant is Sued 73 Form, by surviving partner 73 '' against surviving partner 74 " by husband and wife, etc 75 " against husband and wife, etc 76 ANALYSIS OF CONTENTS. vii Fofin, hjj executor, etc 77 " same, etc 78 " &// hushind and tvi/e, ex\v 79 " bi/ administrator, etc 79 " h>/ husband and wife, adm'x 80 Spkcial Counts. Form, on promissory note 80 " on same ivith common counts 81 " on promissory note, short form, payee vs. malrr 82 " same on six notes in one count 83 •' indorsee vs. maker 85 " indorsee of ex. vs. maker 86 " surv. p)art. vs. surv. j^art 87 *' executor vs. nuiket 89 " administrator vs. maker 89 Form, partners, payees, vs. partners, etc 90 " payee vs. husband and wife 91 " indorsee vs. indvrser 91 Measure of damages , 94 Degree of diligence, etc 95 Form, indorsee vs. indorser, etc 98 ** same, etc 99 *' payee vs. guarantor 100 " payee vs. drawer on accep)ted order 103 " payee of check vs. drawer 104 Declakations on Inland Bills op Exciianc ;■: 105 Form, drawer vs. acceptor 105 " same, etc 106 " same, etc 107 " payee vs. acceptor 108 " first, etc., indorsee vs. acceptor 109 " payee vs. drawer, etc 109 " payee vs. drawer, etc 110 " same, etc 110 Declarations on Warranties 1 12 Form, on warranty of horse, etc 112 " hops sold by sample 113 Declarations, Landlords against Tenants 116 Form, for breach of duty, etc 116 " not ki eping premises in repiair 117 Declarations on Promise to M \rry 118 Form, on promise to marry, etc 118 '• same, etc 118 " same, etc 118 " same, etc 119 Declarations against Bailees, etc 122 Form, against hirer of Jiorse, etc 122 " against carrier, etc 125 ** same, etc 127 VIII ANALYSIS OF CONTENTS. Deci.arations on Contkacts of Sale 130 ForiHffor not accepting goods 130 " same, etc 131 " for not delivering goods, etc 132 " same, etc 133 Declakations on Policies op Insurance 134 Form, on fire insurance policy 134 " same, short form 139 Defenses to the Action, etc 140 Motions to quash or dismiss '. 140 How made 140 When to be made, etc 141 When writ will be quashed, etc 141 Pleas to Jurisdiction and in Abatexiknt 144 At what time to be pleaded 144 What may be pleaded in 145 Premature action, etc 145 Amendment to cure matters of abatement 146 Death of sole plaintii? or defendant 146 Death of sole plaintiff 147 Death of sole defendant 147 Death of part of parties 148 Death of all on one side 148 When to be ^ erified 148 Requisites of pleas 149 Judgments upon 149 Form, tojuritdictinn of court 150 " misnomer of defendant 152 " re]}lication to same 155 " non-joinder of defendant .■ 156 " replication to same 156 " non-joinder of party plaintiff 157 " • misjoinder of defendant 158 " another suit pending 160 " replication to same, nul tiel record 160 " replication to same, new assignment 161 Pleas in Bar 163 Form, non assumpsit 166 Affidavit of merits 166 Form, of affidavit of merits 167 General issue, with notice, etc 167 Form, notice of set-off. 168 Special Pleas in Bar, Replications, etc 170 Pleas, etc., as to part, etc 174 Form, similiter to plea 175 ", statute of limitations 175 " replication to the same 176 " similiter to same 176 ANALYSIS OF CONTENTS. ix Foiin, replication to plea of statute of limitations, etc 177 " rejoinder to same 177 " infanaj 181 '* replication to denying, etc 182 " same, necessaries, etc 182 " rejoinder to same 182 " replication to plea of infancy, etc 183 " rejoinder to same 183 " statute of frauds, etc 186 " replication to same, etc 186 '* statute of frauds, etc 187 " replication to satAt 187 Collateral, etc., undertakings, etc 189 Form, fraud and circumvention 191 " fraud, etc 191 ** replication to same 192 Diligence required by maker on charge of fraud, etc 195 Diligence required by assignee against maker 196 Form, usury 197 " rej^Iication to 198 " set-qf 204 *' replication, nil debet 205 " release 210 •• replication to same 211 '* payment 215 " replication to same 216 *' accord and satisfaction 218 '' reiylication to same 219 " accord and satisfaction, etc 221 " arbitration and award 223 *' replication to same, etc 224 " judgment recovered 224 *' replication to same 225 " tend r, etc 228 •* replication to same, etc 231 ' same, admitting tender, etc 231 " by surety, creditor, give further time to principal 234 " by surety, that creditor tvas required to sue principal 238 " breach of warranty, etc 241 Want of consideration of note, etc 244 Form, want of consideration 245 *' total failure of consideration, etc 246 " same, etc. , etc 247 *' same, to suit by assignee, etc 248 " partial failure of consideration 251 " 7wte given for money, won at gaming 252 " discharge in bankruptcy 253 '* note given for illegal consideration, difference in options, etc 255 X a:n"alysis of contents. Forvi, denying execution of instrument sued on 257 Pleas denj-ing joint liability, etc 258 Form, denying joint linhiUty 258 " same, etc 258 " Nul tiel corporation 259 " puis darrein continuance 261 " same, etc 262 " same, etc 262 Demurkers 265 Generally 266 Form, to declaration, etc 268 *' same, special 268 ' ' joinder in 269 " short, to declaration 269 " joinder in, fihorf, etc 269 " to plea in abatement 272 " joinder to the same 272 " to pleas in bar 273 " joinder to same 274 (See, AiiSO, Miscellaneous Forms, post, for additional Forms in Assumpsit; also observations following each precedent GIVEN.) CHAPTEE lY. ACCOUNT. "Where the action lies, etc , 276 Demand for, etc 279 Time for which it is to be taken 280 Form, praecipe, commencing of suit 280 Declarations in the Action. Fortn, against bailiff 280 " against receiver 281 " tenants in common • 282 " suits between partners 283 " same, relating to land, etc 285 Pleas in the Action. Form, never bailiff 286 *• never receiver 286 *' in suits between tenants in common, etc 286 " same, fully accounted 287 (See observations following each precedent.) ANALYSIS OF CONTENTS. xi CHAPTER V. COVENANT. Where the action lies, etc 289 Covenants in deeds, breaches, etc 291 Commencement of the Action 294 Form, praecipe /or mmmons, etc 295 Declauations in Covenant 295 Form, grantee vs. grantor, etc 295 " same, etc., etc 297 '* second or remote grantee vs. grantor, etc 298 " on covenants in lease, etc 299 '* apprentice vs. mastery etc 300 " on fire insurance policy 302 Defenses to the Action 306 Pleas in abatement 306 Pleas in bar 306 Form, non est factum 306 " payment, etc 307 Pleas as to part, etc 308 Form, performance.. 309 " i» suit by apprentice, etc 309 (See OBSEiiVATiONS following each precedent.) CHAPTERS I. DEBT. ACTION OF. ^Vhere the action lies 31 J Penal actions under statute 315 Commencement of the Action 316 Form, praecipe/or summons 317 Declaration in 317 Form, indebitatus count 321 " on promissory note, etc 323 '* on bill of exchange 325 *' on atrard, etc 326 " on judgment in same court 328 " same, of another State 329 " same, of justice of the peace, etc 330 " in action for rent, etc 331 " on bill or sealed note 333 Profert, when necessary 333 xii ANALYSIS OF CONTENTS. Actions on Penal Bonds, Statutory, etc 334 Judgments, etc. in Actions on Penal Bonds 334 Declakations upon Pi:nal Bonds, etc 335 Form, on ajipea I bo»d, etc 335 " on replevin bond, etc 338 " same, etc 340 " on sheriffs'' bond, etc 343 " on guardian^ s bond 348 *' same, etc. etc 351 " on administrator's bond 353 " devastavit, Jiow alleged 355 *' on attachment bond 358 *' on injunction bond 362 " satne, etc. etc 364 " on dram shop license bond, etc 369 " on statute, dram shop, act, etc 371 " on statute, cutting trees, etc 372 " on statute, against drover, etc 375 Excep' ions and provisions in statute 377 Form, on statute, against sheriff' not admitting counsel to prisoner 378 " on statute, landlord vs. tenant, for double rent 379 Defenses to the Action 383 Pleas in Ai?.'>tement 384 Pleas in bak 384 Form, nil debet 384 " non est factum 386 " non est factum and nil debet, etc 387 " non est factum, after oyer, etc 388 Special non est factum 389 Form, escrow, etc 390 " onerari non 391 •• tender, etc ". 392 " nul tiel corporation 393 " replication to nul tiel eor2)oratio)i 395 '♦ ^j?f« of duress, etc 395 " replication to same 396 " plea of set-off, etc 396 " payment, etc 397 " failure of consideration, etc 397 '* performance generally 398 *' non damnificatus 399 " no rent in arrear, etc ; 400 " no award made 400 *• on replevin bond, merits not tried, property in defendant. . 401 " former conviction, etc 402 Demurrer after craving oyer 403 (See observations following each pkecedent.) ANALYSIS OF CONTENTS. xiii CHAPTER YII. DISTRESS FOR RENT. Nature of, etc- 405 Landlord's lien, statutory, etc 405 What may be distrained 408 Form, distress warrant 40S Return of warrant, inventory 409 Form, inventory to he filed, etc 409 Summons to be issued 409 Notice to non-residents, etc 409 Form, affidavit for j^uhVicafion 410 Judgment for plaintiff 412 Where there is no personal service 412 Judgment for defendant 412 Release of property distrained, etc 413 Perishable property 418 Rights against sub-lessees 414 Depets^ses to 411 Defendant may plead set-off, etc 411 CHAPTER YIII. CASE, ACTION ON. Nature of the action, etc 415 Where the action lies, etc 416 CojfMENCEMENT OP THE ACTION 42] Form, prascipe /or summons 422 Declarations in Case 422 Form, negligence of R. R. Co. in crossing highways, etc 422 " on Statute vs. R. R. Co. for not ringing bell, etc 427 " vs. same, for negligence in managing train, et-^ 428 " vs. same, damages from engine 429 " same, second count 430 '* vs. same, on statute for not fencing its road 432 " same, second count 4-33 " vs. same, by, administrator for cotising death, etc 437 " vs city, for neglect to keep sidewalk in repair, etc 440 " for keeping vault uncovered, etc 442 " vs. proprietor of stage coach for negligence, etc 444 " for Tceeinng vicious dog, etc 445 " for ma Vicious prosecution 446 XIV ANALYSIS OF CONTENTS. - . » Fvrvi, same second count 448 '' for criminal conversation 451 " for (hhauching plaintiff's daughter 4n3 " for deceit in sale of horse 455 " same, in sale of tvool, etc , 456 " vs. sheriff' for talcing insufficient sureties in replevin 457 " for orer-lo ding, etc., horse 458 " vs. phi/sician for malpractice 459 " vs. attorney for negligence, etc 4G0 " vs. R. R. Co. as carrier for negligence, etc .... 461 " vs. saloon-keeper under the statute, causing intoxication and death of pilnintiff's husband, etc 462 ** vs. landlord of dram shop, etc., under the statute, for injury caused by intoxicated person, etc 4^^ In' Case for Slander and Libkl 466 What amounts to slander 466 Where the action lies for, etc 466 Declarations for Slandur and Libel 477 Form, for slander, etc 477 " words charging forn ication, etc 478 " tcords charging perjury 479 " same, second count 480 " for tvords charging larceny 481 " for tcords in foreign language 482 " for u'ords imputing insolvency, etc 483 " for libel in newspaper 485 " for libel in letter, imjJuting insolvency , etc 486 Defrnsks to the Action op Case 488 Pleas in Bar, etc 489 Form, not guilty 489 General issue in actions for slander, etc 490 Special pleas in actions for slander, etc 492 Form, justification, etc 494 " replication de injuria 495 " justification, etc 495 (See observations following each precedent.) CHAPTEE IX. TROVER. Nature of the action, etc 497 Where the action lies 497 Commencement op the Action, 506 Form of, praecipe for 5O6 The Declaration 507 ANALYSIS OF CONTENTS. xv Form, genera 1 508 " hy executor, etc 509 Defences in Trover 511 PLEjis IN Bar 511 Form, not guiltij 613 What plaintiff must prove 515 (See observations following each precedent.) CHAPTER X. REPLEVIN. Nahire and history of the remedy 515 Where the action lies, etc 517 Who may maintain the action 622 Who may be made defendant- 524 CoilMENCEilEXT OP THE ACTION 525 Form, affidavit in 526 Declaration in 527 Form, gencralhj 527 " count in trorer, etc 528 Defenses to the Action 528 Pleas in, etc 528 Form, non cepit 528 " non detinuit 530 *' not guilttj to count in t rarer 531 " property in defendant 531 " replication to same 532 " propierty in stranger 533 " replication to samt 533 " justification hy officer wider execution 534 " lien on property, etc 536 " property held as pledge, etc 538 " arotcry, etc., for rent 538 " plea in bar to avowry, etc 539 " same, no rent in arrear 540 (See observations under each precedent.) CHAPTER XL TRESPASS. Nature of the action, etc 541 Distinction between trespass and case abolished 543 Injuries to the Person 543 Where the action lies for 543 XVI ANALYSIS OF CONTENTS. Injuries to Pekronal Propki:ty 548 ^Vllere the action lies for 548 WIio may maintain the action 551 Aj;:ainst whom it lies, etc 552 IxjuiiiES TO Real Property 553 Whore the action lies for 554 Com ■ r • :ncrment of the Action 558 Form of praecipe /or sitmnioiis 558 The Declaration, etc 559 Matter or thing affected 559 The plaintiff's right or interest 560 Statement of the injury 561 The damages 564 Measure of 564 Vindictive, etc 565 Joinder of counts 565 FoK Injury to the Perron 565 Form, for assaidt, etc 566 " for common assn)(It 568 " same, ivith 2>i'^fol 568 " for riding, etc., against j)Juintiff 569 " hy husband and wife, etc 569 " false i7n2jrisonment, etc 570 " sayne, etc 570 " for debauching jylaintiff's daughter 571 " for critninaJ conversation 571 For Injury to Personal Property 572 Forin de bonis asportatis 572 " for chasing cattle, etc 572 * ' for chasing mare, etc 573 " for driving carriage against plaintiff's, injury, etc 573 " for killing 2)laintij[f's horse 574 " against constable, under the statute, for taking exemjit property 575 For Injuries to real Property 576 Form, for breaking info dwelling, etc 576 '■ for common expulsion 577 " for entering close, etc 577 " for cutting and carrying aunty trees 579 •' for digging, etc., in coal mine 579 " for mining ore, etc 579 Defenses to the Action 580 Pleas in Bar, etc 580 Form, plea not guilty 582 " son assault demesne 583 " same, etc., etc 584 " rejilication de injuria, etc 585 New assignment, etc 586 ANALYSIS OF CONTENTS. xvii Form, plea, molliter manus imposuit. etc 587 " same, etc., etc 588 " justification by teacher, etc 589 " justification by J. P., etc 590 " same by officer making an arrest 591 " satne, etc. , etc 592 '• same by private person, etc 594 " by sheriff justifying talcing goods under execution 595 " replication to pleas of justification, etc., etc 597 " that injury was caused by i)laiiitiff's negligence, etc 593 " license 598 " replication to same 599 " lib^rum tenementum fiOO " replication denying, etc 602 " new assignment 602 (See OBSKKVATIOjSS following each PKECEDliNT.) CHAPTER XIL EJECTMENT. Action of 604 Nature of the action, etc 604 When the action lie?:, etc 604 Who mny maintain the action 608 Commencement of the Action ....-.,. 609 Form, prsecipe/ar summons 610 The Declaration 610 Form, generally 611 Form, by several persons, etc., etc 612 Defenses to the Action 613 Form, plea not guilty 614 Claim for Mesne Profits ■. 614 Form, suggestion of claim for mesne profits 615 Defense to ciaira for same 615 Form, i^lea non-assumpsit, thereto 616 (See OBSEEVATioiirs following each precedent.) CHAPTER XIIL ATTACHMENT. Proceedings in 618 Nature of the proceeding ^ 618 Where it lies, etc 619 XVIII ANALYSIS OF CONTENTS. COMMRNCKMENT OF THE PROCEEDING, ETC 620 By affidavit, etc 620 Foryn of affidavit 620 Where suit to be brouglit 622 Plaintiff required to give bond 622 Against joint debtors 623 Execution of the writ, etc 624 The Declaration, etc 625 Garnishees 625 Notice to Defendant by Puui.tcation 626 Defensks to the I'iiockkding 627 Form o£ plea in abatement traversing atMdavit 627 Practice and Pleading in 628 Forthcoming bonds, etc 629 Bond, etc. for return of property 629 lAahilify of sheriff for failing to fake and return bond 630 Insufficient bond, etc 630 Suit on bond 631 Feeding animals attached 631 Sale of perishable property 631 Interpleader by Third Party 632 Form, Interpleader 633 Attactimknt in aid of Sutt Pending 633 Form of affidavit in aid, etc 634 " same, in case of tort, etc 635 '* O'der of judge for 635 Judgment where there is no personal Sfrvice 636 Sale of property on execution 636 Division of proceeds, etc 636 Division by the sheriff, etc 637 Proceeds brought into court 637 Garnishment 637 Form of affidavit for, etc., on jitdgnient, etc 638 Service and return of summons 638 Interrogatories and Answers 639 Form, interrogatories to garnishee 640 " ansicer of garnishee 640 Plaintiff may contest the answer 641 Garnishee may deduct demands 642 Other claimants of effects in hands of garnishee ■ 643 Garnishee may contest proceed! ngs, etc 644 What is subject to garnishment 6.44 Non-resident garnishee 645 Conditional Judgment 646 Final Judgment ". . 646 Death of Garnishee, etc., etc 647 Effect op Judgment against Garnishee 647 When debt of garnishee is not due, etc 647 ANALYSIS OF C0:N"TENTS. xix Goods, etc., in hands of garnishee to be given up, etc 648 Costs in proceedings against garnishee 650 Attachment op Water Crafts 650 For what lien is given 650 Lion on goods for freight 651 Limitation of proceeding 651 The Petition for Enforcement of Lien 651 Form of petition for attachment, etc 652 " same, etc., etc 652 Bond to be filed, etc 653 Notice by publication 653 Intervening cr^^ditors 653 Bonding vessel 654 Appraisement — ^Restitution — Sale 654 Answer — ^Affidavit of Merits — Default 654 Judgments — Order of Sale 654a Amendments 654a Distribution, etc 654a (See observations following each precedent.) CHAPTER XIY. SCIRE FACIAS. Nature of the ^y^^t, etc 655 To Make Party to a Judgment 656 Against garnishees, etc 656 To revive a judgment 657 Form of praecipe for 658 " of,to revive jucJgment 658 On Mortgages, Statutory 659 Form of, to foreclose mortgage 661 " same, etc., etc 663 On Recognizances, Statutory 663 Form o/" scire facias ujjoh recognizance 665 Defense to scire facias, etc 667 What a defendant may plead 667 (See observations following each form.) CHAPTEE XY. MANDAMUS. Nature and purpose of the writ -. 671 In what cases awarded, etc 672 Jurisdiction given, in what courts 674 The relator, etc 675 XX ANALYSIS OF CONTEIs^TS. Demand necessary, etc 675 Petition fob, etc 675 Requisites of 675 Summons to issue, etc 676 Default, answer, etc 676 Time to plead, etc 676 Pleadings, etc 676 Judgment, etc., etc 677 False Return, Damages, etc 677 Making New Defendants, etc 677 Death op Defendant, etc 677 Effect of other Remedies, etc 677 Form, petition for writ 678 Proceedings upon 679 Defenses to, etc 681 Answer or pleas 682 Form, anstcer to petition 682 " plea to petition 683 (See observations following each precedent.) CHAPTER XYL QUO WARRANTO. Nature of the writ, etc 684 The Proceedings by Information 685 In what cases it lies, etc 685 When leave to file will be granted 686 When leave to file will not be granted 688 Statutory Proceedings, etc 691 Summons to be issued, etc 692 Service of the same 692 Defendant required to plead, etc 693 Time allowed to plead 693 Judgment in Nature of, etc 693 Appeals and Writs of Error, etc 693 By, and against, what Parties the Information may be Filed. . 694 Matters Preliminary — Practice, etc .' 695 The Information 695 Form of, hy attorney general, etc 696 " of, at instance of relator, etc , 697 Defenses to the Proceeding 699 Pleas to, etc 699 Form of plea hy corjwration, etc., etc 700 '• 0^ plea hy person, etc 700 Replications to pleas, etc 701 (Seb observations following each precedent.) ANALYSIS OF CONTENTS. xxi . CHAPTEK XYII. CERTIORARI. The Common Law Writ 703 Its nature and purposes 703 The Statutory Writ, etc 705 Its nature and purposes 705 The Petition, etc 706 Requisites of, etc 706 Form of petition for, etc 709 (See observations following each precedent.) CHAPTER XVIII. HABEAS CORPUS. History of tbe remedy, etc 712 Wlien writ will be granted, etc 715 By whom application for may be made 717 To whom it may be made 717 Petition for, etc 718 Form of pefition, etc 719 " of, same, etc., etc 720 " of parent for child, etc 721 " petitioner held hy Ca. Ros., etc 721 " ad testificandum, etc , 722 Allowing and Issuing op the Writ 723 Form of order by master in chancery 723 '* general, of the icrit 724 Service of the writ, etc 724 Expenses of, etc 724 Return of, etc 725 Form, return of writ, etc 726 " same, denying custody, etc 726 " same, by pricate person, etc 726 Examination, etc., etc 726 Denial of return, etc 727 Form, order of discharge, etc 729 ** order remanding prisoner, etc 730 " order of discharge, etc. etc 730 ** ord,er remanding, etc. etc 731 (See OBsiiRVATioNS following each precedent.) XXII ANALYSIS OF CONTENTS. CHAPTER XIX. ATTORNEYS AND COUNSELORS AT LAW. Nature of the ofBce, etc 732 How admitted 732 Qualifications 733 AuTiroiUTY OK Attorneys, etc I'-'A It cannot be delegated 737 Retainer, etc 737 Agreements made by for client, etc 737 Admissions by, etc , 7>3 Termination of employment 738 Duties and Liabilities 739 Ought not to be witness for client, etc 739 Acting in another capacity 740 Cannot act on opposite sides 740 Liability to third person 741 Dealings between attorney and client 741 Assigned by court to defend prisoners 742 Rights and Privileges 742 Privileged communications 742 Fees, etc 743 Lien of, etc 744 CHAPTER XX. SECURITY FOR COSTS. When required after suit brought 745 Form, offidamtfor rule, etc 746 When motion for rule to be made 746 Plaintiff a Poor Person, etc 747 Fo> m, a jffidavU for leave to prosecute as such, etc 748 " bond for costs after suit brought, etc 748 CHAPTER XXI. CHANGE OF VENUE. When same may be had, etc 749 Interest, etc., of judge 749 Prejudice, etc., of inhabitants, etc 749 Notice of application, etc 749 Form of notice 750 ANALYSIS OF COI^TEKTS. xxiii The Petition for, etc 750 Form, prejudice of judge, etc 750 " prejudice of inhabitants, 751 When application may be made 751 By whom made 752 Part of plaintiffs or defendants 752 Order, granting in vacation 752 Terms and conditions 753 Costs of the change 753 When to be paid 753 Transcript, Pax^ers, etc 753 To WHAT Court changed, etc 754 Docketing cause, etc 754 Irregularities waived, etc 754 CHAPTER XXIL CONTINUANCES. How and when applied for 755 For want of testimony, etc 755 Form of affidavit for, etc 7^6 By Reason op Amendment, etc 7P0 For Want op Declaration, etc 760 Defendant in Military Service 761 Party or Counsel in Legislature 762 On Remanding Cause prom Supreme or Appellate Court 762 Terms may be Imposed 762 CHAPTEE XXIII. AMENDMENTS. Reform rs the PrtACTicE, by 764 Amendments generally 765 Terms upon which allowed 766 Of executions when allowed 766 Of returns of process, when, etc 766 Of records, etc 767 Before final judgment, etc 767 Of pleadings in vacation, etc 768 Of process out of term , etc 768 Of errors in fact, after judgment 769 Writ of coram twhis abolished 769 Other statutory provisions 769 XXIV ANALYSIS OF CONTENTS. CHAPTER XXIY. EVIDENCE. Mode op Produciug, etc 771 Documentary, etc 771 Form, notice to producp. on trial 772 Oral Testimony of Witnesses, etc 773 Attendance of witness, how procured 773 Form, praecipe /or subpoena/or icitnesses 773 Tender of fees, when required 774 Haheas corpus ad test 774 Depositions 775 When they may be taken 775 Witnesses residing in another county, etc 775 Form, affidavit to he filed, etc 775 ** notice to he given, etc 776 Of witness residing in State, non-resident witnesses, etc 778 Form, of notice and interrogatories, etc 779 Of non-resident witnesses upon oral interrogatories 780 « Notice by mail, etc , 781 Instructions for Taking Depositions 781 Form, of caption, etc 781 " of certificate, etc 782 (See observations following each form.) CHAPTER XXY. JURY. Wno are Competent Jurors 786 Who are Exeacpt, as 786 Challenges op Jurors 787 To the array 787 To the polls 788 For cau«e 788 Peremptory, etc 790 Polling the Jury 791 CHAPTER XXVL TRIAL AND VERDICT. Who may Open the Case 792 Order of Proceedings in the Trial 792 ANALYSIS OF CONTENTS. xxv Deliberation of the Juky 794 Delivery of the Verdict, etc 795 Verdicts, etc 796 General verdict, etc 796 Special verdict, etc ' 797 CHAPTER XXVII. NEW TRIALS. Grounds for Granting Ne-w Trials 798 Misbehavior of party prevailing 798 Mistakes or misconduct of jury, etc 799 Verdict against the law and evidence 800 Excessive or inadequate damages 801 Admitting improper or refusing proper evidencs 801 Error in the charge to the jury 802 Newly discovered evidence 804 Absence or mistake of witnesses 805 Surprise, etc 806 Statutory provisions 807 Mode op Applying for' New Trial 808 Form of motion for 808 Setting aside Default, and Granting Trials on Merits 809 CHAPTER XXYHL aerest of judgment. Wlien it will or will not be arrested 811 Time and manner of moving in arrest 813 CHAPTER XXIX. JUDGMENTS. Nature and effect of, etc 814 Interlocutory or final, etc 814 By default, etc 815 Assessments of damages by the court 815 May be referred to clerk to assess 815 Either party may require a jury 815 Writ of inquiry, etc 816 Of non-suit, etc 818 Effect of, etc 818 • Judgment on demurrer 819 Judgment on verdict 819 Form of judgment, etc 819 XXVI ANALYSIS OF CONTENTS. CHAPTER XXX. CONFESSION" OF JUDGMENT. Nature and effect of, etc 822 May be entered in vacation 822 I\IocIe of obtaining, etc 823 Form, proof of tvarrant of attorney 823 " cognovit 824 Power of courts over judgments by, etc 825 CHAPTER XXXI. BILLS OF EXCEPTIONS. Objections to decisions of court preserved by, etc 829 When exceptions must be taken 830 Signing and sealing of the bill, etc 880 What the bill should contain, and when necessary 833 Form of hill, to evidence, instructions, etc 836 " same, refusal to grant a continuance 838 CHAPTER XXXII. REFEREES. Referring causes by agreement 839 Power of court discretionary 839 Proceedings must conform to the statute 839 Report of referee 840 Exceptions taken thereto 840 "When to be made 840 Witnesses required to attend 841 Referee may administer oaths 841 Judgment upon report 841 Referee's fees, costs, etc ." 841 Testimony taken to be reported, etc 841 Shall form p?rt of record 841 Form, agreement to refer 841 " order a]}j)ninting referee 842 " report of referee, for 2}lending 876 " same, each party to select o)ie arbitrator, and the court the third 876 " order referring snit jycnding to arbitrators 877 " oath of arbitrators .' 877 " aivard in suit j^^nding 877 '• agreement of submission of a controversy not in suit 878 " award in a controversy not in suit (statutory) under Sec. 16 878 " general agreement for subinission of all matters in contro- versy, (Com. Law . ) 879 " agreement for submission of particular matters in contro- versy, (Com. Law.) 879 " arbitration bond, given by each party to the other 880 " award on common law submission, by single arbitrator 881 *• same, by three, or more or less, arbitrators 881 ANALYSIS OF CO^s^TENTS. xxtx CnAPTER XXXYL MISCELLANEOUS FORMS. AssrjrpsiT — Dect,\t!Atio>;s in 882 Form, covinieiicetiienf and conclusion of a declarntion 882 " common counts condensed 882 " on promise to he account ahh for goods sold to a third person 883 " on promise to pay monejj as difference in exchancfe of^jrop- ertij 884 •' on written contract for employment, etc 885 " same, on verbal contract 885 Pr.EAs IN 886 Form, another action pending 886 total failure of consideration of note, given for J ecs 887 Replication to Pleas 888 Form, to plea of another action pending 888 " to plea of judgment recovered 888 " double replication 889 " of statute of limitations to 2)lea of set-off 889 " to plea of aivard 889 " to plea of arbitrament, denying the cuvard 889 " to plea that note was for money icon at gaming 890 Rejoinders to Replications 890 Form, commencement of rejoinder to replication to a sp>ecial plea. 890 " conclusion, with rerif cation 891 " to double replication 891 " to replication to a plea of award 891 " similiter to replication concludiny to the country 891 In Debt — Declaration 892 Form, to recover delinquent taxes, by the piople 892 Plea 893 Form, eviction in action by landlord vs. tenant 893 Replication — Denying eviction 893 I N Action of Case 894 Dec^.a rations 894 Form,, against commissioners of highways for flooding land by a ditch, etc 894 " for negligence in setting fire to prairie 895 " for deceit in sale of mattress infected with rerniin 896 In Trespass — Declaration 897 Form, for shooting plaintiff's dog 897 PUTERBAUGH'S COMMON LAW Pleading AND Practice. CHAPTER I. GENERAL PRINCIPLES OF PLEADING. The important object to be attained in pleading is to bring the subject matter of contention 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 simplicity, for their decision. Outside of the profession, the term -pleading is most gen- erally understood to be the forensic argument in a case ; it is, however, the statement, in a plain, logical and legal form, of those facts which, in law, show the justice of the demand made by the plaintiiT, 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, which is retained and practiced in many of the states and territories of the Union, is one of great antiquity. VOL. I 3 34 GENERAL PRINCIPLES. General principles of pleading. 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 upon the parchment roll, on which the record- used to be drawn up ; the opposite party, having access to this roll, entered his answer in the same manner, and so on, until an issue was presented ; and the roll thus formed the record of the cause. This method being attended with many inconveniences, the expedient was at length adopted of putting the pleadings first on paper, and filing them in the proper office of the court. Written pleadings are sup- posed by many writers to have been introduced in the reign of Edward III. The abandonment of the practice of oral pleading led to no departure from the ancient style of alle- gation. The pleadings have ever since continued to be framed upon the same principles, and pursue the, same forms, as when they were merely oral. The parties are made to come to issue exactly in the same manner as when really opposed to each other in verbal altercation at the bar of the court ; and all rules which the judges of former times prescribed to the actual disputants before them are, as far as possible, still enforced with respect to these paper plead- ings. Pleading is said to have been first methodically formed, and cultivated into a science, in the reign of Edward I. From that time, the judges began to prescribe and enforce certain rules of statement, of which some had been estab- lished at periods considerably more remote, and others ap- parently were then, from time to time, first introduced. The science continued to advance till the reign of Henry VI. and Edward IV., when it was "cultivated with so much industry and skill, that it was raised to a sudden perfection in the course of a few years." But Lord Coke and Sir Matthew Hale refer to the reign of Edward III. as the period when pleading had attained its highest point of excellence. Actions are either real, -personal^ or mixed. Real ac- GENERAL PRINCIPLES. 35 Division of actions, etc. tions are those where a party claims title to have any lands, tenements, rents, commons, or other hereditaments, in fee- simple, fee-tail, or for term of life; by which actions, for- merly, all disputes concerning real estate were determ- ined. Personal actions are those where a man claims a debt, or personal property, or damages in lieu thereof; where he seeks the recovery of a specific personal chattel, or a satis- faction in damages for a breach of a contract, or for some injury to person or property. Personal actions are divided into actions ex contractu, and actions ex delicto. Actions ex contractu are principally assumpsit, debt, covenant, ac- count, and detinue; and those ex delicto are case, trover, replevin, and trespass. Mixed actions are those partaking of the nature of real and personal actions, and are generally brought for tlie re- covery of real property, and, also, for damages for detention or injury thereof, as for instance the action of ejectment, or waste, or quare inipcdit. Lender these three heads may every species of remedy by suit in the courts of common law be comprised. The forms of action commonly resorted to for the redress of civil injuries are assumpsit, account, debt, covenant, detinue, case, replevin, trespass, trover, and ejectment. These remedies are drawn from the common law of Eng- land, as being the best known methods of appealing to public authority for the redress of private wrongs. By statutory enactment, many of the states have adopted the common law of England, and all statutes of the British Parliament, of a general nature, in aid thereof, prior to tlie fourth year of King James I. Many of these forms of ac- tion have been modified by subsequent legislation, and some peculiar statutory remedies have been introduced ; but in general the great leading features of the common law,« in relation to the mode of obtaining redress of private injuries by actions at law, still prevail in most of the United States. 36 GENERAL PRINCIPLES. Course of pleading. In Illinois the distinction between the actions of trespass and trespass on the case has been abolished by a recent statute, (a) The pleadings in a cause are commenced, on the part of the plaintiff, with the declaration^ which is a statement in writing of his cause of action, in legal form. This dec- laration, as every other pleading in the cause, is required to be framed agreeably to the established rules and forms of pleading, and if defective in any particular, either in substance or form, may be objected to, as insufficient in law, by deimirrer^ on the part of the defendant ; or he may al- lege some matter in abatement of the action, or may deny the declaration to be true in point of fact, or may set up matter in avoidance of it — such answer on the part of the defendant being technically denominated his ^lea. To the defense thus made, the plaintiff may again, in his turn, rc^ly^ either, in case of a demurrer, by reasserting his declaration to be sufficient in law to support his action, and referring that question to the judgment of the court, which is termed a joinder in demurrer ; or, in case of a special plea, he may on his part demur to such plea, as insuffi- cient in law to constitute a defense ; or he may deny it to be true in point of fact, or allege some new matter in avoidance of it, according to the circumstances — such answer being styled a replication. To the replication the defendant may either demur upon the law, or oppose a rejoinder as to the fact ; and to the rejoinder the plaint- iff may demur, or oppose a surrejoinder ; and so the parties may proceed, by a system of alternate allegation and ob- jection, denial or evasion, technically termed the plead- ings, until they arrive at an issue, that is, some spe- cific point of law, or fact, affirmed on one side and de- {a) Rev. Stat. 1877, p. 737; 80 111. 205; 77 111, 603; 76 111. 224. GENERAL PRINCIPLES. 37 Course of pleading. nied on the other, and presenting the exact question for the court or jury to determine. The manner of forming these issues, and the precedents to be used in each step of the pleadings in each form of action, will be considered and pointed out in the subsequent chapters. 3S COMMENCEMENT OF AN ACTION. PrcBcipe. CHAPTER II. COMMENCEMENT OF AN ACTION. The Praecipe. — In general, the issuing of the writ is the commencement of the suit {g) ; but it is usual for the attorney of the plaintiff' to iile with the clerk of the court a p)'£Bcipe, or order, directing such process to be issued against the defendant as the nature of the case may require. The prcBcipe should specify the court, the fiamcs of the ■parties, the kind of action, the kind of writ, and when it is to be made returnable ; and the amount of debt and damages, in case of debt, and of damages in other actions. The damages claimed in the prcecife should be large enough to cover the amount due ; for if the judgment ob- tained is greater than the damages claimed, it will be error, (z) Where however the verdict or finding is for more than the amount claimed, the excess may be remitted before or at the time of entering judgment. But where the ad dammim, by mistake, is made too small, as appears by computation of the sum laid in the declaration, the same may be amended, even after verdict. Where suit is brought by or against administrators, executors, guardians, and the like, they should be so de- scribed in the prcecipe ; and care should be taken to give proper descriptions to the parties to the suit, and other par- ticulars, as a variance between the writ and declaration as to the parties, cause of action, or amount of damages al- (g) I Scam. 30; 15 Mass. 359; 104 111. 71 ; 9 Bradw. 472; 15 Bradw. 236; 18 Johns. 14; 3 Black. Com. 273, 285 ; 7 Term, 4. (0 7 Dunford & East. 133; 7 East; 33 111. 388; 36 111. 373; 37 111. 24. COMMENCEMENT OF AN ACTION. 39 Bond for costs. leged, will be ground for a plea in abatement, or, in some cases, for a motion to quash. (J) 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 capacity, the court will allow the title of the cause to be amended by striking out the individual names of the directors, and substituting their corporate name, {k) 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 other- wise where a specialty is entered into by a wrong name, {m) The cautious pleader will generally file a ^rcecfpe, 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 prcecipe; (q) although it is not essential to the proper and legal issuing of the summons that a prcecipe should be filed at all. SECURITY FOR COSTS BEFORE COMMENXIXG SUIT. When required. — The statute provides, " that in all actions in any court of record on official bonds for the u>e of any per- son, actions on the bonds of executors, administrators or guardians, 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 resi- dent of this State, the plaintiff or person for whose use the action is to be commenced, shall, before he institute such suit, (y) Breese, 331, 378; 2 Wheat. 45; 4 Halst. 2S4; 5Gilm. 75; 11 111. 573; 12 111. 202; 17 111. 529; 18 111. 273; 20 III. 46; 36 111. 373; 52 111. iSo. {^k) 32 111. 290. (/) 15 111. 1S5; I Chitty PI. 256. (;«) I Mete. 359, 473; I Mass. 360; i Chit. PI. 223, 224; 3 Taunt. 504; Gould's PI. 241. 40 COMMENCEMENT OF AN ACTION. Bond for costs. file or cause to be filed, with the clerk of the court in which the action is to be comaienced, security for costs." (r) The statute applies to a writ of error sued out of the Su- preme or Appellate Courts; [s) it applies to attachment, as an attachment bond does not satisfy this statute; (^) and to non-resident landlords issuing distress warrants for rent ; (tt) if an action is brought by a non-resident for the use of a resident ; (v) or by two plaintiffs, one of whom is a resident and solvent ; {zv) or in a bastardy proceeding, {x} No security for costs is required. In an action brought in the name of the people for the use of a county to recover a penalty for obstructing a public highway no bond for costs is necessary, (y) S?dts by inbwrs by 7iext friend. — In section i8 of chapter 64, 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. Fonii 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. y {Title of Couii.) C. D. j I (E. F.) do enter myself security for all costs which may accrue in the above cause. Dated this day of- , A. D. 18 — . {Signed) E. F. {a) (r) I Starr & Curtis' An. Stat. 635; Rev. Stat. (1S77) 295 ; 13 111. 344; ii 111. 119; I Scam. 581 ; 5 Gilm. 21 ; 14 111. 7 1 ; 24 111. 626; 53 III. 306; 85 111. 336. (.v) 32 111. 474 ; 2 Gilm. 381 ; 5 Gilm. 20. (/) 36 111. 474. ()/) 16 111. 291. (v) I Scnm. 581. {w) 24 111. 226. [x] 85 111. 336. (y) 9 Bradw. 39. [z] I Starr & Curtis' An. Stat. 1241 ; Laws of 1881, page gS. [a) I Starr & Curtis' An. Stat. 635 ; Rev. Stat. (1877) 297. COMMENCEMENT OF AN ACTION. 41 Bond for costs. Surety — Approval and effect 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 person 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 ; {b) a bond for costs covers all costs without reference to the person to whom they may accrue, (f) 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, {d) Dismissal for zvant of security for co^ts. — If a suit is com- menced without filing such security, the court on motion will dismiss the suit at the costs of the attorneys, unless such se- curity shall be filed within such time as shall be allowed b}^ the court, and when so filed, it will relate back to the com- mencement of the suit ; and the right to require security for costs will not be waived by any pleading or other proceeding in the case; {e) but a lack of a bond for costs can not be ob- jected to for the first time in the Supreme or Appellate Court, (/j Motion to dismiss for want of security for costs. — To sup- port a motion to dismiss a suit for want of security for costs, on the ground that the plaintiff was a non-resident, the defendant must file an affidavit, sufficient 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 the suit, {g) (i>) Rev. Stat. (1877) 297 ; i Starr & Curtis' An. Slat. 636. (c) 53 111- 247- {d} 28 111. 112. (e) I Starr & Curtis' An. Stat. 637 ; Rev. Stat. (1S77) 297 ; 6 Bradw. 539. (/) 92 111. 395- (g) 25 111. 5S7; 36 111. 206; 51 111. 306. 42 COMMENCEMENT OF AN ACTION. Costs, 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. {Ji) Where the motion is based on the ground that the action is upon a penal statute, and that no security was 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 amotion to dismiss for want of security 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 suf- ficient. (7) Plaintiff a poor person. — If any court shall, before or after the commencement of any suit, be satisfied that the plaintiff is a poor person and unable to pay costs and the expenses thereof, the court may permit him to commence and prose- cute his action as a poor person, without costs. Allowing the plaintiff to sue as a poor person or requiring security for costs, is discretionary with the trial court. {Ji) Affidavit of poor person. — 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 {K) 13 Bradw. 539. [i) 100 111. 390; 83 111. 568. (/) 3 Gilm. 97. {k) I Starr & Curtis' An Stat. 63S; Rev. Stat. (1S77) 29S ; 30 III. 43 ; 9 Bradw. 229. COMMENCEMENT OF AN ACTION. 43 Bail in civil cases — Capias ad Respondendtim. that his cause of action is meritorious, such clerk shall issue and the sheriff shall serve all necessary process without re- quiring costs. (/) See Chapter YS^, post, pages 745, 748, entitled " Security for Costs." BAIL IN CIVIL CASES CAPIAS AD RESPONDENDUM. The first section of the Illinois statute concerning bail in civil cases, in force from and after July i, 1872, provides, that w^hen 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 assumpsits 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 defendant fraudulently contracted the debt, or incurred the obligation, respecting which the suit is about to be brought, or that he has concealed, assigned, removed, or disposed of his property 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 chancery ; and if such judge or master shall be satisfied that sufficient 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 capn'as ad re- s^ondcndtmi, 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 sucli 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. (/) I Starr & Curtis' An. Stat. 638; Rev. Stat. (1S77) 298. 44 COMMENCEMENT OF AN ACTION. Bail in civil cases — Capias ad respondendum. Actions sounding merely in damages. — ^The second sec- tion 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 judg- ment may be obtained will be in danger of being lost un- less the defendant is held to bail ; and if upon examination thereof, the judge or master shall be satisfied that sufficient 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 writ, conditioned that the plaintiff shall prosecute the capias 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 approved 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 sherifi' or other cffxer to whom the same may be directed, shall take a bail bond to himself, with sufficient security, in a penalty of double the sum for which bail is required. The form of the con- dition of such bond is given in the same section, and is substantially the same as the condition 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 COMMENCEMENT OF AN ACTION. 45 Bail in civil cases — Capias ad respondendum. officer making the arrest is required to give the person ar- rested reasonable time and opportunity to procure bail be- fore committing him to jail. WJio may become hail. — The fifth section provides that no person shall be permitted to be special bail in any action, unless he be a householder and resident within the state, and of sufficient property ; and no counselor or attor- ney at law, sheriff, under-sheriff, bailiff, constable, or other person concerned in the execution of process, shall be per- mitted to be special bail in any action. Sheriff may administer oath. — The sixth section pro- vides, that in any and all cases where the sheriff shall be by law required to take bail upon any writ or process, he shall have the power to administer oaths, and to examine the person offered as bail, touching his sufficiency, and shall require such examination to be reduced to writing, and signed by the person offered as bail. Sheriffs liability. — Section seven provides that in case the sheriff or other officer executing such process, and to whom it shall be directed, shall neglect to take such bond, or the bail be held insufficient, on exception taken and en- tered of record during the term to which such writ shall be made returnable, the sheriff or other officer, having reason- able notice of taking such exception, shall in either case be deemed and stand as special bail in the action, and the plaintiff may proceed to judgment against such sheriff or other officer, as in other cases against special bail. Insufficient bail; officer's remedy; exceptions., etc. — Section eight provides that where the bail shall be adjudged insufficient by the court, the bond shall in that case stand as a security to the sheriff or other officer executing .such process, who may, upon a forfeiture of the condition to ap- pear and perfect bail, proceed thereon in an action of debt 46 COMMENCEMENT OF AN ACTION. Bail in civil cases — Ca-tias ad resfo7idendum. or covenant, to recover the amount of whatever damages he may have sustained by reason of the non-performance of such condition ; and shall also have the same right to arrest and detain the principal in custody, in case the bail shall be adjudged insufficient by the court, and the prin- cipal shall not perfect bail within the time required by law, as the bail might have had. If he shall elect to arrest and commit the principal to prison, then his remedy on the bond shall cease, and the bond be void. The sufficiency of the bail shall be excepted to during the term to which the writ is returnable ; otherwise the same shall be con- sidered as accepted by the plaintiff. Objections to the suf- ficiency of bail shall be decided by the court in which the exception is taken, without delay, on such evidence as may be produced, and as it may deem satisfactory ; and the burden of proof shall lie on the party affn-ming the suffi- ciency, allowing the bail to be examined on oath or affir- mation touching his sufficiency. Dischai'gc; reduction of hail. — Section nine provides that the court in term-time, or the judge in vacation, may, on application, discharge the defendant from arrest for insuf- ficiency of the affidavit, or because the facts stated therein are not true, or for 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. Capias to stand as a summons when defendant or bail is discharged. — Section ten provides that in case of a dis- charge of the defendant or his bail, the capias shall stand as a summons. Surrender of defendant. — By the eleventh section, the defendant in any action, in any court of record, when bail shall have been given, may surrender himself, or his bail may surrender him, at any time before the return-day of COMMENCEMENT OF AN ACTION. 47 Bail in civil cases. the process which may have been sued out against the bail, to the court in which the. suit may be pending, during the sitting thereof, or, in vacation, to the sheriff or other officer who executed the capias. Record of stii'rcndcr of defendant. — The twelfth section requires, that in case the surrender be made during the sit- ting of the court, an entry shall be made on the records of the court, stating the surrender and the commitment of the defendant to the custody of the sheriff. Surrender in vacation. — Section thirteen provides, that if the surrender be made in vacation, the bail or principal shall obtain a certified copy of the bail-bond from the sheriff or clerk of the court, in whosesoever possession the same may be, and shall deliver himself, or be delivered by his bail, to such sheriff, who shall thereupon indorse on such copv an acknowledgment of the surrender of the body of the defendant to his custody, and the defendant shall be com- mitted to the jail of the county, there to remain until dis- charged by due course of law. Section fourteen provides that if the surrender is made pending a suit against the bail, the copy of the bond, with the acknowledgment, shall be filed in the office of the clerk of the court in which the action is pending. If before such suit, the same shall be tiled with the clerk of the court in which the original action was brought. Bail discharged, when. — By section fifteen it is pro- vided, that upon giving notice of the surrender, whether made in term-time or vacation, to the plaintiff or his at- torney, and paying the costs of the action against the bail, if any have accrued, the bail shall be discharged from all liability. Surrender after Judgment ; effect of, etc. — The six- teenth section provides, that if the surrender be after judg- 48 COMMENCEMENT OF AN ACTION. Bail in civil cases. ment, and the plaintiff shall not cause the defendant to be held on execution within five days after notice thereof, he shall be discharged out of custody. The plaintiff may, notwithstanding such discharge, have execution against the real and personal estate of the defendant. New bail may be taken. — The seventeenth section pro- vides, that any defendant surrendered into custody or com- mitted by his bail, may, at any time before final judgment shall have been rendered in the action, discharge himself from custod}^ by giving other good and sufficient special bail ; and the sheriff, or other officer authorized to take bail, shall take new bail to the same effect as before pro- vided in the act. Bail may arrest principal. — By the eighteenth section it is provided, that in all cases of bail, under this act, it shall be lawful for the bail to arrest and secure the body of the principal, until a surrender can be made to the sheriff of the county where the suit may be pending, or to the court to which the process was returnable ; and the bail may, by indorsement upon a duly certified copy of the bail- bond, authorize any other person to arrest, secure and sur- render the body of the principal. Prosecution of bail. — Section nineteen provides, that all bail taken according to the directions of the act shall be deemed and taken as special bail, and may be proceeded against by proper action, in the name of the obligee for the use of the party injured. No suit to be brought on bail-bond until return of Z2.. sa. — According to the twentieth section, hereafter no suit shall be commenced upon any bail-bond, in any civil action, until a writ of capias ad satisfaciendum shall have issued against the defendant in the original action, directed to the sheriff of the county in which such defendant was arrested, and such COMMENCEMENT OF AN ACTION. 49 Bail in civil cases. sherift^ shall have returned that the defendant was not found in his county ; and if any action shall hereafter be com- menced upon such bond, and it shall not appear upon the trial thereof that a writ of capias ad satisfacie^idum was issued and returned in the manner mentioned, a verdict shall be found for the defendant. It shall be also neces- sary, to charge the bail, that such writ be issued and deliv- ered at least ten days before the return-day thereof, to the sheriff of the county, or officer to whom it may be directed ; and such sheriff or other officer shall endeavor to serve such writ upon the defendant, any directions which he may receive from the plaintiff or his attorney to the contrary notwithstanding. Bail may obtain judgment against -principal , by motion. — The twenty-first section provides, that in all cases where judgment shall hereafter be entered in any court of record in the state, against any person as bail for another, and the amount of such judgment, or any part thereof, shall be paid or discharged by such bail, his executor, etc., it shall be lawful for such bail, his executor, etc., to obtain judg- ment, by motion, against the person for whom he was bound, for the full amount which shall have been paid by such bail, his executor, etc., in the court where judgment shall have been entered against such bail. Before judg- ment shall be entered against the principal, ten days' pre- vious notice of such motion shall be given to him, if a resi- dent of the state ; and if a non-resident, then notice of such motion shall be published, for four weeks successively, in some newspaper printed in the county in which the pro- ceeding shall be had ; and in case no newspaper shall be published in such county, then in the nearest county in which a newspaper shall be published. Death of pi'incifal. — The twenty-second section pro- vides, that in all actions against bail, it shall be lawful for tlie bail to plead, in bar of such actions, the death of the 4 50 COMMENCEMENT OF AN ACTION. Bail in civil cases. principal before the return-day of the process against the bail ; and if on the trial of any such issue, the death of the principal shall be found to have happened before such re- turn-day, judgment shall be given in favor of the defend- ant ; but he shall, notwithstanding, be liable to judgment and execution for the costs of suit, unless such death shall be found to have taken place before the commencement ot •the action. Bail discharged where -principal taken beyond limits of state, for crime, etc. — Section twenty-three provides, that if any defendant, having given special bail in any action, shall afterwards be legally arrested and delivered over to the executive authority of the United States, or of any state or territory thereof, upon a charge of having committed a crime out of the jurisdiction of the state of Illinois, and shall be thereupon carried beyond the limits thereof, such bail shall be discharged from all liability incurred as bail, if the defendant has not returned to the state, discharged from such arrest, before he (the surety) shall be liable to be charged as bail for such defendant. Banhriiptcy or insolvency of principal. — The twenty- fourth section provides, that when any defendant in any civil action shall have been discharged as an insolvent debtor, agreeably to the laws of the state of Illinois respect- ing insolvent debtors, or under any bankrupt law of the United States, and a certificate from the authority lawfully granting the same shall be produced to the court, the bail of such defendant shall, in all cases, be entitled to have an exoneretur entered upon the records of* the court, which shall thereupon operate as a discharge from his bond in the same manner as if he had surrendered his principal in court, or to the sheriff, as directed in the other sections of the act : Provided, that judgment shall not have been re- covered against him as the bail of such defendant. COAOIENCEMENT OF AN ACTION. 51 Bail in civil cases — Capias ad respondendum. Sci. fa. against bail in civil cases not allozvcd. — The twenty-fifth section provides, that proceedings by scire facias against bail, in civil cases, shall not be allowed in any court of record in this state. No. I. Affidavit for capias ad respondendum, charging fraud, in action ex contractu. State of Illinois, > County of , \ 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 the cause of action f>articnlarly) *. And this affiant further says, that the saidC. D. {here set forth facts shozving that the defendant fraudulently contracted the debt, or incurred the obligation, respecting which the suit is about to be brought.) And this affiant further says, that he verily believes the benefit of whatever judgment he may obtain in this behalf will be in danger oi being lost, unless the said C. D. be held to bail. A. B. Subscribed and sworn, etc. N'o. 2. Affidavit for capias, charging the defendant with conceating, assigning, removi)ig, or disposing of his property, with intent to defraiid the plaintiff. ( Commence as in Ko. i, inserting these words at the * ;) And this affiant further says, that the said C. D. {here set forth facts showing that the defendant has concealed, as- signed, removed, or disposed of his property, as the case may be,') with the intent to defraud this affiant. And this affiant further says, that he verily believes the benefit of whatever judgment he may obtain in this behalf w'ill be in danger of being lost, unless the said C. D. be held to bail. A. B. Subscribed, etc. 52 COMMENCEMENT OF AN ACTION. Bail in civil cases — Capias ad respondendum. No. 3. Affidavit for capias, in action sounding merely in damages, etc. State of Illinois, \ County of , 5 ^^t. A. B., of , who is about to commence his action of {trespass, or as the case may be), in the Court of the said county, against C. D., of , 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 verily believes that the ben- efit 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 affidavit, it is advisable to state them substantially as they are required to be set forth in a declaration. The above forms, Nos. i and 2, maybe varied to suit any action arising ex contracttt, and form No. 3 can be adapted to all actions ex delicto. Before the passage of the act in force July i, 1872, the statute of Illinois did not go far enough to meet the require- ments of the constitution. («) It will be seen that the affidavit fo;- a cafias 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 chan- cery ; and if such judge or master shall be satisfied that sufficient cause is shown to require bail, he shall 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 respondendum, directed to the proper officer to execute, for the arrest of the defendant in such proposed action ; and the judge or master shall in such order fix the amount of the bail. The judge or master ordering the is- (a) 16 111. 347; 20 111. 291 ; 24 111. 553; 45 111- 473. COMMENCEMENT OF AN ACTION. 53 Bail in civil cases — Capias ad respondendum. suing of such capias will 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. yttdge's order for a capias ad respondendum, to be indorsed on the affidavit. 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 the amount sued for^ dollars, con- ditioned 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 county : 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 held and firmly bound unto C. D., of , in the penal sum of dollars, for the payment of which, well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and sev- erally, 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 ihe 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 54 COMMENCEMENT OF AN ACTION. Bail in civil cases — Capias ad respondeiidum. damages that may be sustained b}^ the wrongful suing out of such cap'ias, then this obligation shall be void ; other- wise 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 , i8— . R. S., Clerk. Bond to be taken by the shc7-ifffrom the dcfcndmit. Know all men by these presents, that we, C. D. and E. F., of , are held and firml}- bound unto T. W., sheriff of the county of , in the state of Illinois, in the penal sum of (^double the amoitnt fo7' ivhich bail is re- quired) dollars, for the payment of which, well and truly to be made, we bind ourselves, our heirs, executors and admin- istrators, jointly and severally, by these presents, sealed with our seals, and dated this day of , i8 — . The condition of this obligation is such, that whereas one A. B., plaintifl', has lately sued out of the Court of the county of a certain writ of capias ad respon- dcndum/m a certain plea of , against the aljove-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 received 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 afore- said, or surrender the body of the said C. D. in execution in case the said C. D. shall not pay and satisfy the said costs and condemnation-money, or surrender himself in execution when by law such surrender is required, then this obligation shall be void ; otherwise shall remain in full force. C. D. [l. s.] E. F. [l. s.] Discharge of bail in the discretion of the court. — A mo- tion to discharge bail, and let the capias stand as a sum- COMMENCEMENT OF AN ACTION. 55 Filing affidavit of demand, with narr. inons, is addressed to the sound discretion of the court, and its decision can not be assigned for error, (^a) Surrender' of principal after irtiirn-day docs not exon- erate the bail. — A surrender of the principal by his surety in a bail-bond, on and after the return-day of the process in the suit against the surety, does not exonerate the bail. {b\ Splits on bail-bonds, hoiv brought. — The act of 1872 re- quires bail-bonds to be taken to the sheriff, and suits on them should be brought in his name. The act gives no power to assign them to the plaintiff in the action, {c) AFFIDAVIT OF PLAIXTIFP's CLAIM ON CONTRACTS FOR PAY- MENT OF MONEY. Section 36 of the Practice Act provides, that " If the plaint- iff 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 en- titled 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 affidavit stating that he verily 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, f?trther, that if the plaintiff, his agent. (ff) I Scam. 556; 2 Gilm. 259; 5 Gilm. 169; 13 III. 551; 14 111. 364. (6) 3 Gilm. 64. (f) Breese, 82. 56 COMMENCEAIENT OF AN ACTION. Affidavit of demand, with narr. 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." (d) The affidavit of the plaintiff's claim may be made by any one cognizant of the facts, (r) An affidavit of plaintiff's claim on an account is to be taken as prima 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, {(j) or a declaration on an appeal bond. {Ji) Form of affidavit to be filed ivith declaration. ( Venue and title of cause as on page /f.i, ante.) A. B. of, etc., makes oath and says that he is, etc. {Here state zi>hethet he is plaintiffs agent, etc.) ; that the demand of the plaintiff in the above entitled cause, is for. etc. [State the nature of the demamf); and tliat there is due to the plaint- iff from the defendant, after allowing to him all just credits, deductions and set-offs, the sum of dollars. A. B. Subscribed and sworn to, etc. The court, in its discretion may allow affidavit of plaint- iff's claim to be filed after plea is filed; and may then strike plea from files, unless affidavit of merits is filed. \i) And affidavit of claim may be amended. (/") The only effect of omission on part of plaintiff to file affi- davit with declaration, is that the defendant may plead with- out verifying his plea. [IS) {d) 2 Starr & Curtis' An Stat. 1801. \e) 80 111. 435; Id. 409; 84 111. 43; 71 111. 44. 226; 83 111. 597; 82 111. 49.>; 76 111. 507. (/) 2 Starr & Curtis' An. Stat 1S04; Kev. S'.at. (1877) 739; 17 Bradw. 260. {g) 87 111. 219. \h) 86 111. 57; 89 111. 3S9; 90 111. 80. (j) 100 111. 522. (/) 8SIII.34. {k) 71 111. 303- ASSUMPSIT. 57 Nature of the action, etc. CHAPTER III. ASSUMPSIT. Nature .k. 83, 92. (/) 21 111. 194 ; 15 Cal. 344. 62 ASSUMPSIT. Declaration in assump-it — Time for filing, etc. DECLARATION IN ASSUMPSIT. Time, for filing — Copy of instrument or account sued on. — By section 17 of the Practice Act, it is provided that, " If the plaintiff 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 [)Iaintiff, unless it shall appear that the suit was commenced w thin 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 judgnunt, as in case of a non-suit : Pro- vided, that in all suits by capias^ where the defc:ndant shall have been arrested, and in replevin and attachment, 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." {111) The province of the declaration is to exhibit on the record the grounds of the plaintiff's cause of action, as well for the purpose of notifying the defendant of the precise character of those grounds, as of regulating the plaiiitifif '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 adjudged insufficient; {11) but it must, in every case, con- tairj a full and explicit statement of all the material facts upon which a recovery is sought, {o) Each count in a declaration must truly set out the cause of — — — « {m) 2 Starr & Curtis' An. Stat. 1783; Kev. Stat. (1877) 736. \n) I Gilm. 333; 77 111. 6S ; 39 111. 227; 43 III. 119; 86 111. 182. (0) 43 111. 119; 77 111. 68 ; I Scam. 193 ; Breese, 26. ASSUMPSIT. 63 Instrument or account sued on — .Continuance. action, and if the evidence does not sustain it, the action as to such count fails. (/) Instrinncnt or account sued on. — If the document sued on is set out in Jiaec verba in declaration, an additional copy is not necessary to be filed, [q) If the declaration contains a special count on a promissory note or bill of e.xchange, 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, (r) In such case the defendant will be prevented from denying the execution of the instrument, except by a verified plea; {s) or from setting up a want or failure of consideration except by a special plea. (/) Copy of document sued on is no part of the declaration (//) and a variance between the copy and the original itself, offered in evidence, is no groimd for excluding the latter. {z>) If a suit is on a judgment, a copy of the record must be filed with the declaration, (zt-) Continuance. — If the declaration and instrument or account sued on is not filed ten days before tiie term, the defendant may appear and obtain a continuance at the plaintiffs costs ; but if he does not, the case will be continued, and the costs will abide the result of the suit, {x) The defendant is not compelled to appear at the first term and ask for a continu- ance, (j) (/) 2 Scam. 216; 21 III. 59S ; 41 111. 349; ^6 111. 182; 10 Bradw. 279; 13 Bradw. 362. (17) 2 Sc^im. 574 ; I Scam. 458. (r) I Scam. 473; 52 111. 2 III. 232. (m) 57 111. 132 ; 15 111. 56; but see, 97 U. S. 389. (t)) 48 111. 138; 26 111. 68. {■w) 84 111. 278; 75 III. 62. (x) 24 111. 623. (y) 31 in- 153. 64 ASSUMPSIT. Dismissal where no declaration filed. Where common counts are added to a special count, a fail- ure to file a copy of the account sued on will be a y^round for a continuance, unless the plaintiff stipulates that he relies only on the instrument sued on, or by entering a nolle prosequi as to the common counts, {z) If a suit is brought by the indorsee of a negotiable instru- ment, it is not necessary to file copy of the indorsement to prevent a continuance. The instrument sued on being the note or bill of exchange, and not the indorsement, {a) So, where the defendants are sued as guarantors of a promissory note, a copy of the note, showing the names of the defendants, as indorsers, is a sufficient copy of the instrument sued upon. The plaintiff is authorized to fill in the blank over their names at the trial, {li) Dismissal at second term, zvhere 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 case of non-suit. But the case 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, {c) Waiver of. — Either party to a suit, has the right to have the account or copy of the instrument upon which has ad- versary relies, filed with his pleadings. But this right may be waived; and the party entitled to its enforcement must not so act as to lead the other to suppose it has been waived, and until it would subject him to loss or inconvenience to have it enforced, {d) But a suit may be dismissed for the reason that no declaration has been filed prior to ten days before the sec- ond term of the court after its commencement. (^) (z) 22 111. 225; 5 Gilm. 303. ' . {a) 26 111. 185 ; 28 111. 79. (^)4oIll. 356. (c) 2 Scam. 216; I Scam. 459, 473. (r/) 117 111. 191. See 14 Bradw. 364; 17 Bradw. 219. (/) 12 Bradw. 37. ASSUMPSIT. 65 Declaration — Common counts. PRECEDENTS OF DECLARATIONS IN ASSUMPSIT. No. I. Indchitatiis assumpsit. G^--^/aX.l^ a^A^-— ^<»^ (This count may be used in an}' of the following cases, by inserting in the brackets the grounds of action.) In the Court. Term, 18 — . State of Illinois, County of , 5 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 da\' of , in the year 18 — , in tlie county aforesaid, was indebted to the plaintiff in the sum of dollars, for (*) {^Iicrc state the suhjcct-niattcr of the debt, as in the foUoxuing counts, and proceed as yollozvs :) and being so indebted, the defendant, in con- sideration 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 dclivcj'ed. {Insert in the brackets inform Ko. i, after the (*), the foUozuing:') "goods, chattels and etTects before that time sold and delivered by the plaintiff to the defendant, at his request." II. Goods bargained and sold. {Insert in form No. i :) "goods, chattels and effects before that time bargained and sold by the plaintiff lo the defendant, at his request." III. Labor and services. {Insert in form No. i :) "tiie labor and services of the plaintiff, by him before that time done and bestowed in and about the business of the defendant, at his request." 5 66 ASSUMPSIT. Common counts. IV. IFor/c and materials, {Insert in fonn No. i :) "work before that time clone, and materials for the same furnished, by the p^.aintift' for the defendant, at his request." V. Money lent. {Insert in form JVo. i :) "money before that time lent by the plaintifl' to the defendant, at his request." VI. Jlloney expended. {Insert in form No. i :) "money before that time paid and expended by the plaintiff' for the use of the defendant, at his request." VII. Money received. {Insert inform No. i :) "money before that time re- ceived by the defendant, for the use of the plaintiff." VIII. Interest. (Insert in form No. i :) "interest on divers sums of money before that time forborne by the plaintiff to the de- fendant, at his request, for divers spaces of time before then elapsed." IX. Aecount stated. {Insert in form No. i :) " money, tbund to be due from the defendant to the plaintiff, upon an account then and there stated between them." X. Board and Lodging. {Insert in form No. i :) "the use and occupation of certain rooms and furniture of the plaintitf, before that time used and enjoyed by the defendant, at his request ; and for meats, drinks and attendance, and other necessaries and goods by the plaintiff before that time found and provided for tlie defendant, at his request." XI. Hire of horses, etc. {Insert in form No. i :) "the use and hire of horses, carriages and goods by the plaintiff before that time let to ASSUMPSIT. 67 Common counts. the defendant, at his request, and by him accordingly had and used." XII. Stabling and keeping horses, etc. {Insert in form No. i :) **horsemeat, stabHng, care, a»rt attendance by the plaintiff before that time provided and bestowed in and about the feeding and keeping of divers horses, mares, geldings and cattle, for the defendant, at his request." XIII. Necessaries, {Insert in form JVo. i :) "meat, drink, washing, lodg- ing, attendance, and other necessaries and goods before that time found and provided by the plaintiff for the defend- ant, at his request." XIV. Physician'' s bill. {Insert in form No. i :) "medical attendance, advice and medicines before that time given and provided by the plaintiff to and for the defendant, at his request." XV. Attornefs bill. {Insert in form No. i :) "the work, care, diligence, journeys and attendance 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, arid for materials and neces- sary things by the plaintiff provided in and about the said work for the defendant, at his request." XVI. Warehouse roo)n, etc. {Insert in form. A'^o. 1 :) "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 plaintifT, in certain warehouses and premises of the plaintiff, for the defendant, at his request." N'o. 2. Common connts, consolidated. { Commence as in No. i , ante, -page 65 .) For that whereas the defendant, on the day of , in the year 18 — , in the county aforesaid, was indebted to the plaintiff in tlie sum 68 ASSUMPSIT. Consolidated common counts. of dollars, for goods, chattels and eflects before that time sold and delivered by the plaintiff 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 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 de- fendant, at his request ; and in the like sum for money be- fore 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 de- fendant, at his request, for divers spaces of time before then elapsed ; and in the like sum for money found to be due from tlie defendant to the plaintiff, on an account 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 the defendant, 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 there- fore he brings his suit, etc. E. F., Attorney for Plaintiff. 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, {f) Where the declaration alleges a debt for work done, and a debt for goods sold, etc., though with only one general promise 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, {q) (/) 5 Dutch. (N. J.) 367; 4 Johns. 2S4. Iq) II Meeson & Welsby, S31. ASSUMPSIT. 69 Common count — Indebitatus, etc. Several causes of action maybe joined in one count, and it will not be necessaiy to prove all the causes alleged. Recover}'^ may be had pro tanto. if) Under an indebitatus count the plaintiff' may recover what may be due to him, although no specific price or sum was agreed upon ; and therefore it has been observed that the qtiantimi mcrtiit and quantum valebant counts are un- necessary, and should in many cases be omitted, to prevent unnecessary prolixity and expense, {s) A count for goods sold and delivered, which avers that a party promised to pay on request, the declaration con- cluding with the general breach of non-payment, is good, without averring a special request, [t) Where there is a subsisting unexecuted agreement. /;.'- debitatJis assinn-psit will not lie. {ii) Indebitatus assumpsit will not lie where the agreement is not for the pavment of money, but for the doing of some other thing ; the count in such case must be special, (z') It will lie to recover the stipulated price due on a special contract, where the contract has been completely executed, so that only a duty to pay thejnoney rerpains.^ (■ze/) But it will not lie where the claim is upon a warranty of a chat- tel, {x) The purchase-money of land sold and conveyed may be recovered under the appropriate common count, {y) A promissory note may be given in evidence under the (r) 2 Saund. 122; Cro. Jac. 245; Yelv. 175; I Brownl. Ent. 74; 2 Black. 910; Bumb. 262; 4 J>;lins. 84 ; 13 John-. 284; 2 Freem. 111. Dig. 1261. (j) I Chit. PI. 301; 2 Saund. 122 a, n. 2; 20 Biadvv. 369. (/) 13 111. 674. • (m) 8 Mo. 118, 517; 7 Mo. 430; 13 Johns. 56; lo B. Mon. 2S7 ; 6 Conn. 100; 2 Shepley, 3S3; Wright, 489, 577; 26 111. 452. [xi) II Wheat. 237 ; 2 B.own, 227; 4 Cowen, 564; 12 Wend. 477 ; 16 Vt. 113; 6 Dana, 395 ; 4 Gilm. 92 ; 70 111. 19 ; 67 III. 469 ; 14 Bradw. 69. (ji<) 19 111. 169; 21 111. 108; 24 111. 263; 53 111. 369; 50 111. 138; 45 III. 193; 38 111. 40. 533 ; 80 111. 101 ; 84 III. 130; 55 III. 62; 62 111. 1S8. (or) 54 111. 147 ; 70 111. 19. ( J) 38 111-533- 70 ASSUMPSIT. Money had and received. money counts in an action by the indorsee against the maker ; (z) and in an action against the indorser ; («) so may a check on a bank in which the drawer has no funds, in an action against the drawer, without showing present- ment, (d) A coupon is proper evidence under the common money counts, (c) Bills of exchange, {d) and notes payable in specific articles, are properly admissible under the money counts, (c) An action of assumpsit for work done can not be main- tained without proof that such work was done at the re- quest of the defendant, and tor his benefit, (y*) And in some cases, although the original agreement has not been strictly performed by the plaintiff, yet if the defendant avails himself of, and derives a benefit from, the work done, he will be liable upon a common count. ( «") Money had and received. — Under this count the plaintifl may prove the receipt of bank-notes by the defendant ; (/^) or promissory notes ; (/') or credit in account, in the books of a third person ; (y ) or a mortgage assigned to the de- fendant as collateral security, and under which he has ac- quired the property ; {k) and where mone}^ has been deliv- ered to the defendant for a particular -pur fos^c, to which he has refused to apply it, he can not appl}" it to any other, but it may be recovered by the depositor, under the count for (ir) 7 Ilalst. 141. ( a ) II Pick. 316; 12 Mass. 172; 16 Pick. 395; 9 Met. 27S, 417. (*) 15 Mass. 69; 3 Pick. iS; 15 Mass. 433; 35 111. 396. (c) 24 111. 75; 45 111. 139. (- ported by evidence that the defendant obtained the plaint- iff's money by fraud, or false color or pretense, (o) And generally speaking, whenever one person has in his hands money equitably belonging to another, that other person may recover it in assumpsit under the count for money had and received ; (^) but the plaintiff must show a just as well as a legal right to the money, {q) Assumpsit for money had and received lies to recover money paid on an execution issued on a judgment (r) sub- sequently reversed. (5) Where a contract is rescinded, assumpsit for money had and received will lie to recover money paid thereon. (^) Assumpsit for money had and received lies to recover money paid under an original ignorance or a subsequent forgetfulness of facts, (u) The reader will see further, upon the subject of the com- mon counts, I Chitty's PI. 341-360. ( /) 14 East, 590. (;«) Com. Dig. 205, 206. ( « ) 14 East, 5S2 ; 17 Mass. 575 ; 3 Price, 58. (0)1 Stephen's Nisi Prius, 335 ; 4 Mass. 4S8 ; 4 Conn. 35c. {/ ) 17 Mass. 575; 21 Pick, i ; 15 Conn. 52 ; 20 111. 650; 43 III. 24, ( County of , 5 set. A. B., plaintiff, executor of the last will and testament of E. F., deceased, com- plains of C. D., defendant, 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 furnislied, by the said E. F. for the defendant, at his request {any other debt, as for goods sold, etc., is to be described in the same manner); and being so indebted, the defendant, in consid- (/) I Chit. PI. 57; 8 Johns. 149. (y) 2 Cowen, 5S1. {k) 50 111. 470. 78 ASSUMPSIT. Additional count by executor, etc. eration thereof, then and there promised the said E. F. to pay him the said sum of money, on request. Yet the de- fendant, though requested, has not paid the said sum of money, or any part thereof, either to the said E. F. in his Hfetime. or to the pkiintirt' since the death of the said E. F., but refuses to pay the same ; to the damage of the phiintifT, as executor as aforesaid, of dollars, and therefore he brings his suit, etc. 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 was held sufficient: "And the said plaintiffs bring into court here the letters showing their qualifications as executors." (/) No. lo. Additional cojint on ■promise to the -plaintiff as executor. {First count as No. 9, 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 fur.ther sum of dol- lars, fol" 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 otjier goods," etc., is to be described in like manner) ; and being so indebted, and the last-mentioned sum of money being wholly unpaid, the defendant, in consideration thereof, after the death of the said E. F., to wit, on the day of , in the year 18 — , there promised the plaintiff', as executor as aforesaid, to pay him that sum of money, on request. Yet the defend- ant, though requested, has not paid the same, or any part thereof, to the plaintiff', but refuses so to do ; to the dam- age, etc. {Add profert, as in last precedent.) (/) 33 111. 3S3. ASSUMPSIT. 79 By husband, and wife, executrix, etc. — By administrator, etc The ad dammnn and -profert are only to be once inserted, at the conclusion of the declaration. No. II. By husband and -uife^ executrix before mar- riage. A. B. and C, his wife, plaintiffs, (which said C. is exec- utrix of the last will and testament of D. E., deceased,) complain of F. G., defendant, of a plea of trespass on the case on promises : For that whereas the defendant, on, etc., was indebted, etc. {here state the debt as in case at suit of executor, ante, No. 9.) Yet the defendant, though re- quested, has not paid the said sum of monev, or any part thereof, either to the said D. E. in his lifetime, or to tlie plaintiffs, or either of them, since the death of the said D. E., but refuses to pay the same ; to the damage of the said A. B. and C, his wife, as executrix as aforesaid, of dollars, and therefore they bring their suit, etc. {Add prq/ert, as in Ao. 9, ante.) Since the passage of the act of February 21, 1861, the above precedent, and No. 13, post, are useless in Illi- nois, [ni) No. 12. J3y an administrator, on promise to the intestate. In the Court. Term, 18 — . State of Illinois, > County of , ) set. A. B., plaintiff', adminis- trator of the estate of E. F., deceased, who died intestate, complains of C. D., del'endant, of a plea of trespass on the case on promises : For that whereas {proceed as in count by exec7itor. No. 9, 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 aforesaid, (c?r whatever court or authority granted them,) which give sufficient evidence to (»«) 32 111. 493. So ASSUMPSIT. By husband, and wife, adm'x, etc. — Payee of note vs. maker. the court here of the grant of administration of the said estate to the plaintiff', etc. If deemed advisable, add a count or counts on promises to the administrator, as in the case of an executor, No. lo, ante. Where the declaration contains several counts, pro- ceed 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 afore- said, of dollars, and therefore he brings his suit, etc. (Addfrofcrt.) No. 13. By husband and wife., administratrix before marriage. A. B. and C, his wife, plaintiffs, (w^hich said C. is ad- ministratrix of the estate of D. E., deceased, who died in- testate,) complain of F. G., defendant, of a plea of trespass on the case on promises : For that whereas the defendant, on, etc., was indebted, etc. («5 in the precedent., JVo. 12, /« a suit by an administrator, and add breach as follozvs :) Yet the defendant, though requested, has not paid the said sum of money, or any part thereof, either to tlie said D. E. in his lifetime, or to the plaintiffs, or either of them, since the death of the said D. E., but refuses to pay the same ; to the damage of the said A. B., and C. his wife, as administratrix as aforesaid, of dollars, and there- fore they bring their suit, etc. (^Addprofcrt of letters &f administration., as in last prec- edent.) SPECIAL COUNTS. No. 14. On -promissory note — Payee against maker* In the Court. Term, iS — ■. State of Illinois, County of , 5 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 diat whereas ASSUMPSIT. On promissory note — Payee against maker. the defendant, on the day of , in the year i8 — , in the county aforesaid, made his promissory note, and deHvered the same to the plaintiff, and thereby then and there promised to pay to the plaintiff, after the date thereof, the sum of dollars, for value received : by means whereot the defendant then and there became liable to pay to the plaintiff the said sum of money in the said note specified, according 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 pay- ment 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. 15. On -promissory note — Payee against makef. In the Court. Term, 18 — . State of Illinois, > County of , > set. A. B., plaintiff, by F. F., his attorney, complains of C. D., defendant, ot' a iJt^v of trespass on the case on promises : For that whereas the de- fendant, 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 {by the name of ) promised to pay, on or before the ■- day of next after the date thereof, to the order of the plaindft', {styling him ,) at the Bank, in , the sum of dollars, for value received, zvith intercut on the said sum, from the date of the said note, at the rate of per centum per annum : by means whereof the defendant then and there, to zuit, at the time and place first aforesaid, became liable to pay to the plaintiff the amount of the said note, according to the tenor and efTect thereof; and being so liable, the defendant, in considera- tion thereof, then and there promised the plaintifi' to pay him the said amount, according to the tenor and effect of the said note. ( The words in italics are to be inserted or not, or varied, as the case may require. Add co)nmon counts on the con- 6 82 ASSUMPSIT. On promissory note — Payee against maker. sider ation Jor which the note zvas given ^ and the coiuuwn money counts^ interest^ and account stated, laying the day in all the common counts after the maturity of the note^ and generally very recently. The co7isolidatcd common counts, as in JVo. 2, ante, as far as the (*), may be used. Conclude zuith a general breach, as follozus :) Yet although the day of payment in the said note speci- fied has elapsed, the defendant has not paid to the plaintitT the amount of the said note, or any part thereof, but refuses so to do ; nor has the defendant, though requested, paid to the plaintiff' the several other sums of money above speci- fied, or any or either of them, or any part thereof, but re- fuses to pay him t'he 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 other- wise, would at common law be fatal. But if the execution of the note is proved, the note can be ofTered in evidence under common counts, {n) In declaring on a promissory note, it should be described as it really is ; if any omission is made of any of the con- ditions or contingencies upon which a note is payable, there will oe a variance. iVo. 1 6. On promissory note — Payee against maker. \_0live7'''s Precedents, 195.] (^Commence as in A'^o. 15, ante.) For that the defend- ant, 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 pa)' him or his order the sum of dollars, after the sa'fl date, with interest on the 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 prom- issory notes, bills of exchange and other instruments of writing for the payment of money, so as to enable the («) 33 111. 372; 43 111. 155; 88 111. 477; 52 111. 205. ASSUMPSIT. 83 On several notes, in one count. plaintiff to introduce the note, etc., in evidence under them, in case he fails under the special count, (o) If the note is pa^-able at a particular place, it must be so averred in the declaration ; (^) the omission would cause a variance, (g) Where a cause of action depends upon the happening of an uncertain event, the declaration must aver the happen- ing of such event, (r) No. 17. On six -promissory notes, in one count, [i Scam- mon, 447.] {Commence as in No. 14, ante, page 80.) For that whereas the defendants, 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 i8th day of May then next, promised to pay to the order of the plaintifl' 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 de- fendants, on or before the said iSth day of May, promised to pay to the order of the plaintiff one thousand dollars, for value received, with interest thereon, at the rate often per centum per annum, from the said i8th day of Ma}^ ; 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 re- ceived, with interest thereon, at the rate of ten per centum per annum, after the said note should become due ; and by another of the said promissory notes, the defendants, on or before the said i8th day of May, promised to pay to the order of the plamtifl' one thousand dollars, for value re- ceived, with interest thereon at the rate of ten per centum per annum, from the said i8th day of May ; and by an- other of the said promissory notes, the defendants, on or before the said i8th day of May, promised to pay to the order of the plaintifi' one thousand dollars, for value re- {o) 19 111. 167; 24 111. 51 ; 26 111. 201 ; 34 111. 529 ; S3 111. 2SS. (/) 24 111. 168. (y) 3 Camp. 247; 31 111. 306. (r) 3 Scam. 524. 84 ASSUMPSIT. On several notes, etc., in one count. ceived, with interest thereon at the rate of ten per centum per annum, from the said i8th day of May; and by anothei of the said promissory notes the defendants, on or before the said i8th 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 i8th day of May ; and by another of the said promissory notes, the defendants, on or before the said 1 8th day of Ma}^ promised to pay to the order of the plaintiff one thousand dollars, for value received, with in- terest thereon at the rate of ten per centum, from the said 1 8th day of May. Yet the defendants have not paid to the plaintiff' the amount of the said several 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 dol- lars, 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 term, 1837 ; the demurrer was overruled, and the cause taken to the Supreme Court, where the decis- ion 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 practice, it is of infinite importance to introduce precision and conciseness ; and whatever tends to dispense with prolixity and useless recapitulation should be encouraged. (5) In Chitty on Pleading, it is laid down on the authority of the case in Saunders, and several others, 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 in- debted for any one cause, it is a sufficient consideration for (5) I Scam. 447; 13 Johns. 4S4; 4 Johns. 284; 2 Black. 910; Bumb. 262; Impey's Mod. PI. 207, 234, 271; Yelv. 175; 24 111. 75. ASSUMPSIT. 85 Promissory notes — Indorsee against maker. the promise (which the law raises) of the defendant to pay the money. (/) No. 18. On promissory note — Indorsee against Quaker. {Commence as in No. 15, ante.) For th^t 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 received, zvith interest on the said sum^ from the date of the said note, at the rate of ^er centum -per annum; and the said G. H. thereupon then and there, to wit., at the time and ^lace first aforesaid, assigned the said note, by indorsement thereon under his hand, to one I. J., who thereupon then and there assigned the same, by indorsement thereon under his hand, to the plaintiff: by means whereof the defendant then and there became liable to pay to the plaintiff the amount of the said note, according to the tenor and efiect 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 said note. ( The words in italics are to be used or not, or varied, according to the requirements of the case. Add the money counts, interest, and account stated, and general breach, as follows. As there is no f)rivity of contract between in- dorsee and maker, it is not usual to add any 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 defendant, at his re- quest ; 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 intere>^t on divers sums of money before that time forborne by the plaintiff to the defendant, (/) I Chit. PI. 301 ; 2 Saund. 122 a, n. 2; 2 Cro. Jac. 245. 86 ASSUMPSIT. Promissory notes — Indorsee of executor against maker. at his request, for divers spaces of time before then elapsed ; and in the like sum for money found to be due from the de- fendant to the plaintiti', on an account then and there stated between them: and being so indebted, the defendant, in consideration thereof, then and there proniised the plaint- iff 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 several other sums of money above specified, or any or either of them, or any part thereof, but refuses to pay him the same : to the dam- age 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," con- forms to the statute of Illinois. {?c) " Indorsed and deliv- ered the said note," is, however, a sufiicient averment, (v) It has been held that a remote indorsee may declare as the iimncdiate indorsee of the first indorser, or of an}'^ inter- mediate indorser — striking out on the trial the indorsements not stated ; {zv) but it would seem that if the plaintiff wished to take the benefit of any intermediate indorser's title, this indorsement must be averred, (a*) A note made payable to the order of the maker, becomes, by his indorse- ment and delivery, like a note made to the order of any otlier person. (_y) JSfo. 19. Indorsee of an executor against maker. (^Commence as in No. 15, ante, ■page 81.) For that whereas the defendant, on the day of , in the (w) Rev. Stat. (1877) 680; 72 111. 521. (2O 2 Chit. PI. 127. (w) 4 Esp. 211 ; Bajley on Bills, 114; Chitty on Bills, 51S. {x ) I Gale, 19S. { j) 29 111. 321- ASSUMPSIT. 87 Surviving partner against surviving partner, on promissory note. year 18 — , in the county aforesaid, made his promissory note, and dehvered 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 day first aforesaid, there assigned the said note, by indorsement thereon under his hand, to one G. IL, since deceased: And the plaintiff avers that on, etc., the said G. H. there made his last will and testament in writing, and thereby then and there ap- pointed one J. K. executor thereof; and afterwards, 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, afterwards, to wit, on the day last aforesaid, as such executor as afore- said, there assigned the said note, by indorsement thereon under his hand, to the plaintiff: By means whereof, etc. {State liability and -promise., and add money counts, etc., and breach, as in last precedent.^ An administrator or executor, or one of several ex- ecutors, may indorse a promissory note payable to the in- testate, or testator, so as to vest the legal interest in the as- signee. (^) JSfo. 20. Surviving partner or payee against surviving partner or maker, on a promissory note. In the Court. Term, 18 — . State of Illinois, County of , > set. A. B., plaintiff, by J. K., his attorney, complains of E. F., defendant, of a plea of trespass 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,(<^^ the name and style of E. P. & (z) 5 Gilm. 474; Williams on Ex. 796; 9 Wend. 302; 15 III. 333; iS 111, 116, 125. 88 ASSUMPSIT. Surviving partner against surviving partner, on promissory note. Co.,) and delivered the same to the plaintiff' and the said C. D., and thereby then and there promised to pay, — — alter the date thereof, to the plaintitT and the said C. T)., [styling them by the name and style of A. B. & Co,) or their order, the sum of dollars, for value received, -zv/th interest thereon, etc. : by means whereof the defend- ant and the said G. H. then and there, to zvit, at the time and -place first aforesaid, became liable to pay to the plaint- iff and the said CD. the amount of the said note, accord- ing to the tenor and effect thereof; and being so liable, the defendant and the said G. H., in consideration thereof, then and there promised the plaintiff" and the said C. D. to pay them the said amount, according to the tenor and effect of the said note. {Second count.) And whereas also - afterwards, in the lifetime of the said C. D. and G. H., both since deceased, to wit, on, etc., in, etc., the defendant and the said G. H. were indebted to the plaintiff and the said C. D. in the sum of, etc. {Proceed zviih the money counts, interest, and ac- count stated; and conclude with the general breach, asfol- lozvs :) 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 plaintiff 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 defendant 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 plaint- iff 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. («) {a) I Chit. PI. 40; I Johns. Cas. 405; i Har. & Gill, 231 ; 7 Moore, 15S; 1 B. & A. 29; 2 Chit. Rep. 406; 3 B. & B. 302. ASSUMPSIT. 89 Executor, or administrator, of payee against maker, on promissory note. No. 21. ExeciUoi' of^ayee against maker ^ on -projnissoi'y note. {Commence as in No. 9, ante, ^age 77.) 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 prom- ised to pay, months after the date thereof, to the said E. F., or his order, the sum of dollars, for value re- ceived, with interest thereon, etc.: by means whereof the defendant then and there, to wit, at the time and j}lace 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 de- ceased, and conclude with the breach, as follozus :^ Yet although the day of payment in the said note speci- fied has elapsed, the defendant has not paid the amount of the said note, or any part thereof, either to the said E. F. in his lifedme, or to the plaintiff since the death of the said E. F. ; nor has the defendant, though thereto requested, paid the several other sums of money above specified, 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 -prof ert, as in No. 9, ante, page 77.) No. 22. Administrator of payee against maker, on prom- issory note. {Comynence as in No. 12, ante, page 79.) For that whereas heretofore, m 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 sum of dollars, for value received, with interest thereon, etc.: by means go ASSUMPSIT. Partners against partners, on promissory note. whereof the defendant then and there, io wit, at the time and -place Jirst aforesaid, became Hable to pay to the said E. F. the said sura of money in the said promissory note specified, according to the tenor and effect thereof; anrl being so Hable, 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 de- ceased, and breach, as in last precedent, and prof ert as in No. 12, 2in.X.Q.,page 79.) No. 23. Partners, payees, against partners, makers, on proniissory note. In the Court. Term, 18 — . State of Illinois, ) County of , 5 set. A. B., C. D. and E. P., {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 G. 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 thereby then and there prom- ised to pay to the plaintiffs, (styling them 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 comits, etc., and general breach, as in No. 15, ante.) In a declaration by or against partners, it seems it is un- necessary to describe them as such, (b) and that part of the above form which is in itahcs might be omitted. It is well, however, to state how the parties to a note or other instru- ment are therein described. (A) I Swan's Pr. 303, note a; 4 Wend. 411 ; 2 Camp. 305. ASSUMPSIT. 91 Payee against husband and wife — Indorsee against indorser. JVo. 24. Payee against husband and zvife, ^n note given by wife while sole. [2 Chit. PI. 13^-] {Commence as in JVo. 8, ante, 'page 76.) For that whereas the said E. heretofore, and while siie was sole and unmarried, to wit, on, etc., at, etc., made her certain prom- issory note in writing, bearing date the day and year afore- said, and thereby then and there promised to pay {tvjo) months after the date thereof, to the plaintiff, or order, the sum of dollars, for value received, and then and there delivered the said promissory note to the plaintiff: b\' means whereof the said E. then and there became liable to pay to the plaintiff the said sum of money in the said promis- sory note specified, according to the tenor and effect of the said promissory note ; and being so liable, she the said E., in consideration thereof, afterwards, and while she was sole and unmarried, to wit, on the day and year aforesaid, at, etc., aloresaid, promised the plaintiff to pay him the said sum of money in the said promissory note specified, ac- cording to the tenor and effect thereof. {Add money counts., etc., ajid breach. See yVc. 8, ante, fage 76.) JVo. 25. Pidorsee against indorser of a -promissory note., alleging institution and prosecution of suit against ■maker. {Commence as in JVo. 15, ante, page 81.) For that whereas one E. F., on, etc., in, etc., made his promissory note, and delivered tiie same to the defendant, and thereby then and there promised to pay, after the date thereof, to the defendant, or his order, the sum of dol- lars, for value received, with interest thereon, etc.; and thereupon the defendant, on the day Jirst aforesaid, there indorsed and delivered the said note to the plaintiff: 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 the said note, or any part of the same. And the plaintiff 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 sucli proceedings were 92 ASSUMPSIT. On promissory note — Indorsee against indorser. thereupon had in that plea, that in the same term, to wit, on, etc., by the consideration of the same court, the plaintiff^ recovered against the said E. F. the sum of dollars, damages, as well as the costs of the plaintiff' by him about his suit in that behalf expended, whereof the said E. F. was convicted ; and the said judgment being in full force, and the said damages and costs remaining. wholly unpaid, the plaintiff, on, etc., for obtaining satisfaction thereof, sued out of the same court a writ oi Jie^'i facias, directed to the sheriff' of the said county of , by which said writ the People of the said state of Illinois commanded the said sheriff" that of the goods and chattels, lands and tenements, in his county, of the said E. F., the said sheriff' should cause to be made the damages aforesaid, and the sum of dollars, the costs aforesaid, 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 fur- ther sum of , accruing costs on the said judgment, and that the said sheriff' should have those moneys ready to render to the plaintiff", according 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 deliv- ered to the said sheriff' to be executed ; and on the return- day of the said writ, to wit, on, etc., the said sheriff' re- turned to the same court upon the said writ to the eff'ect that in his county the said E. F. had not any goods or chat- tels, lands or tenements, 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 suit he used due diligence, by the institution and prosecution of a suit against the said E. F., to make of the said E. F. the amount of the said note, but without avail. By means whereof the defendant, 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 lia- ble, 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 re- quested, has not paid the sanie, 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. ASSUMPSIT. 93 On promissory note — Indorsee against indorser. {^Fovm No. 26, following^ may be adapted and used as a second coicnt.) By the statute of Illinois, the assignor of a negotiable instrument is liable to the action of the assignee, if the lat- ter has without avail used due diligence, by the institution and prosecution of a suit, to compel the m.aker to pay the debt; but the assignee is excused from using such dili- gence, first, where the institution of a suit against the maker would have been unavailing, or, secondly, where the maker had absconded, or left the state, when the instru- ment became due. [c) Upon a note assigned after maturit}^ the assignor is chargeable if the assignee has been unable to compel pay- ment by the maker, after using due diligence by suit, or if such suit would have been unavailing, [d) An indorsement without date is presumed to have been made at the date of the note ; but this presumption may be rebutted, {e) 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 ; {g) and if an unauthorized guar- anty is written over an assignor's signature, the contract of assignment is not thereby invalidated or affected, [h) In an action by an assignee against an assignor, it is not competent for the latter to prove a verbal agreement made [c) Rev. Stat. (1877) 6S1 ; 77 111. 490, 620; 85 111. 511. (rt-) 15 III. 263. See 14 111. 144; 86 111. 165; 75 111. 452; 83 111. 540:89 111. 71. {e) 41 111. 409; 45 111. 306; 53 111. 466; 54 111. 296; 89 111. 193 ; 87 111. 115; 85 111. 523. (/) I Scam. 580; 3 Scam. 344; H HI- 144- OO 5(1 6~-^K J X'i Jfr Jet A V^l// Un (^^)3Scam. 459; 37111-286; 38 111.437- '' ^ ' ^ "-^ \ i NW 11 (/O 44 111. 321. 94 ASSUMPSIT. Indorsee against indorser of note — Measure of damages. at the time of the indorsement of the note, to the effect that he should not be liable as indorser. (/) Bat where the payee of a note sold and delivered it after it became due, and some time afterwards indorsed it, with- out 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 indorser was not liable in an action by remote indorsees of the note. {J) The indorser is liable according to the law of the place of indorsement, (/^') unless the indorsement specially pro- vides that his liability is to be governed by the law of some other state. (/) The remote assignor of a note is liable to an action by the last assignee, upon any ground upon which an assignor can in an}^ case be made liable. («z) It is unnecessary, in such action against a remote assignor, to set forth the inter- mediate indorsements, but the plaintiff may simply a\'er that the defendant indorsed the note to him. (;z) And it seems that the right of an assignee to sue a remote assignor will not be impaired by the fact that the former has obtained a judgment against an intermediate assignor, {o) Where there are several indorsements on a note, the con- secutive indorsers are liable severally only, and can not be sued jointly. (_^) Meastirc 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 (0 54 111- 349- (/) 2 Scam. 430. [k) 2 Scam. 467 ; 89 Til. 222. (/) 12 Wend. 439. (w) 2 Scam. 429 ; 3 Scam. 250 ; 20 111. 59. (m) 2 Scam. 429 ; Chit, on Bills, 10 Am. ed. 572. [0) 2 Scam. 429. (/) I Scam. 470; 85 111.442, 511. ASSUMPSIT. 95 Indorsee against indorser — Diligence required. amount, (^) with the limitation that the recovery must not exceed the sum due upon the face of the note ; (r) and it is said the plaintiff's costs in the suit against the maker are recoverable in the suit against the assignor. (5) Kind and degree of diligence required against the maker. — 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, {ii) Such suit must be brought to the lirst term of court after the note falls due. {v) 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 ; [zv') and it seems he would be excused from commencing his action at the first term, if unable by diligent effort to ascer- tain in time the residence of the maker, {x) 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, was in good time, {y) 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, iz) Suit must not only be brought, but everything in the as- signee's power must be done to obtain judgment, at tJie first term, {a) And he must proceed with diligence to enforce the judgment by execution, imless it can be clearly sliown that execution would be unavailing, (h) If a justice's {q) 2 Sc;,m. 561 ; 2 Gilm, T^S; (/-) 54 111. 337; 76 111. 245. («) 39 111- 31- (/) Breese, 39. {«) Breese, 66. (z/) Breese, 84; 22 111. 35; S: 111. 511, 535. (w) 3 Gilm. 92. (jr) 4 Gilm. 14. (y) 2 Scam. 551". (z) 20 111. 104. («) 4 Gilm. 3. (b) 2 Gilm. II : 89 111. 221. 96 ASSUMPSIT. Indorsee against indorser of note — Diligence required. judgment, execution must be sued out thereon, and re- turned "no propert}'," and then a transcript of the judg- ment 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 re- turned in like manner, (c) But the assignee is not bound to apply to a court of chancer}^ to remove obstructions in the way of an execution against the property of the maker ; (d) nor, it would seem, to have a ca. sa. issued ; [e) 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 rem- edy ; {/) nor to present his claim in the United States Dis- trict Court, in a proceeding in bankruptcy against the maker; [g) nor, it would seem, to cause goods of a non- resi4ent maker to be attached in transitu, [h) 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 continuance in the hands of the officer would have been unavailing. (/) The execution must issue to the county in which the suit was brought; {J) and the assignee is not required to seek elsewhere with an execution for property of the maker ; though if the maker has property in another county, and that fact is known to the assignee, it would seem that he ought to endeavor to make his money out of such prop- erty, {k) (c) 2 Scam. 370. (rf) 4 Scam. 3S6. (e) 2 Scam. 359. (/) 14 III. 146. {g) 54 111. 472. (/O 54 111- 349- ( X ) 22 111. 211, 362. (J) 4Gilm. 18; 22 III. 362. (/•) 4 Gilm. 3. ASSUMPSIT. 97 Indorsee asrainst indorser of note— Diligence required. 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 un- known 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, {in) 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 assignor, {n) If the maker has property worth more than any incum- brance 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 possession of the maker, the as- signee is bound to contest those claims, or take the respon- sibility of showing their validity, (o) He is not required, however, to cause his execution to be levied on property exempt by law, upon the bare possibility that the debtor will not insist on the exemption. (/) The assignor will be liable where the assignee is unable to compel payment from the maker by reason of fraud or other matter in the orig-inal contract between the maker and the payee, [q) 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. See further, as to the rights and liabilities of the parties in suits by assignees against assignors of negotiable paper, the cases noted below, ir) (I) 4Gilm. 3; 37 111. 2S6. (tn) 4 Gilm. 3. {n) 20 111. 605. (, 2 Chit. PI. 150; I Swan's Pr. 241, note; i Caines, 192; 3 Wend, 229; Bayley on Bills, 264; 10 Ohio, 184- ASSUMPSIT. 109 Declarations on inland bills of exchansre. there promised the plaintift' 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 cottnts, etc., as in No. 18, ante, _^«o-£' 85, using the word bill, instead of note, i^i the breach,^ IVo. 35. First, or subseqtient, indorsee against acceptor (Comniencc as in No. 15, ante, "page 85.) For that whereas one E. F., on, etc., in, etc., made his bill of ex- change, and delivered the same to one G. H., and thereby then and there requested the defendant to pa}', 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 Jirst aforesaid, upon sight thereof, there accepted ; and thereupon the said G. H. then and there indorsed and delivered the said bill to one y. K. , who 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 thereof, then and there prom- ised the plaintiff to pay him the said sum of money, accord- ing to the tenor and effect of the said bill and of the ac-' ceptance thereof aforesaid. (Add the money counts, etc., as in No. 18, ante, page 85, using the ivord Uill, instead of note, in the breach.^ No. 36. Payee against drawer of bill, on default of acceptance. (^Commence as in No. 15, ante, page 81.) For that whereas the defendant, on, etc., in the county aforesaid, made his bill of exchange, and delivered 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: And the plaintiff avers, that on, etc., the said bill was there presented to the said E. F., for his accept- ance thereof, and he was then and there requested to ac- cept the same ; but that the said E. F. did not nor would then, or at any time afterwards, accept the said bill, or pay no ASSUMPSIT. Declarations on inland bills of exchange. 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 plaint- ifl to pay him the said amount, on request. {If the drawer had no effects in the hands of the drawee, and notiee of non-aceeptqnce can not be -proved, add a count like the next form, and also add counts on the con- sideration of the bill, and the money counts, etc., as di- rected in No 15, ante, -page 81. 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 re- fuses so to do ; to the damage of the plaintiff of dol- lars, and therefore he brings his suit, etc. No. 37. Payee against drazver — defendant had no effects in drazver'' s hands. First count same as last precedent; second co7int same .as far as the asterisk, 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 accept- ance 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-accept- ance 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. 38. Payee against drazver, on default of payment. {Commence as in No. 15, ante, page 81.) For that whereas the defendant, on, etc.,. in the county aforesaid, ASSUMPSIT. Ill Declarations on inland bills of exchancre. made his bill of exchange, and delivered 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. P., on the day ^;'5/ aforesaid, upon sight thereof, there accepted : And the plaintiff 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 afterwards, 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 ainotmt of the bill on request. If doubtful zvhether due notice to defendant of non-fayincnt can be proved, and he had no effects in hands of drawee, insert a count like the last precedent, JVo. 37, 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 breach, as sug- gested in No. 36.) Other counts may be inserted, according to the circum- stances, viz : a count alleging that the defendant dispensed with presentment for payment ; a count alleging that the drawee could not be found ; (t^) and one averring that the drawee was dead, (w) It seems that the averment of acceptance in the above precedent, though usual, is unnecessary, and should be omitted if there is any doubt as to the proof of the accept- ance. (//.) Where sufficient notice to the drawer of non-pavment is not proved, the bill may still be admitted, and authorize a recovery, under the common money counts, if the evidence {v) 2 Chit. PI. 160; I Swan's Pr. 247, 248. (w) I Swan's Pr. 24S. {u) 2 Chit. PI. 15S; I Swan's Pr. 243. ri2 ASSUMPSIT. On warranties. shows a waiver of notice, or that the defendant had no funds in the hands of the drawee, {x) or, it is presumed, if any other matter appears, sufficient to excuse notice. The cases in the Supreme Court of Illinois, relating to bills of exchange, are noted below, (j) ON WARRANTIES. JVo. 39. On a warranty of a horse to be sound. (^Commence as in No. 18, ante, _^«^^ 85.) For that whereas on, etc., in the county aforesaid, in consideration that the plaintiff, at the request of the defendant, would bu}' 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 plaintiff, confiding in the said promise of the defendant, 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 promise of the defendant, was not sound, but on the contrary thereof was at that time unsound ; whereby the said horse 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 paid^ aver that the plaintiff '■''■p?ad him therefor the sum of dollars, part of the said price, and then and there promised the defend- ant 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 ASSUMPSIT. 113 On warranties. 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 faid that sum to the defendant for the last-men- tioned 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 plaintiti', 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 coicnt.) (A third count may be added, like the second, omitting the words in italics; and add a count for horse-keep, if there was any contract to that effect, and the money counts; an-d conclude as follows : ) Wherefore the plaintiff says that he is injured, and has sustained damag-e to the amount of dollars, and there- fore 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 Gfeneral be assigned in the negative of the words of the contract, (z) 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 described accurately, and must be co-extensive with the breach, {a) No. 40. On tvarranty of hops sold by sample. {Commence as in No. i, ante, page So.) For that whereas on, etc., in the county aforesaid, in consideration (?) Com. Dig. PI. C. 45; 2 Saund. iSi, b; 3 T. R 307; 9 Co. 60, b; I Chit. PI. 291. C«) 2 Ciiit. PI. 281, note/. 114 ASSUMPSIT. On warranties. that the plaintiff would buy of the defendant, at his re- quest, 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 con- tained in the said five pockets, respectively, 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, con- fiding in the said promise, then and there bought of the de- fendant the said five pockets of hops, at the price aforesaid ; and the defendant afterwards, to wit, on, etc., there de- livered 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 de- frauded 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 atbresaid, but on the contrary thereof the hops contained in each and every one of those five pockets were then all of greatly inferior goodness and quality to the re- spective 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 gaining large profits, etc. instate any special damage there may have been, as freight paid, insurance, etc.) {Second count. Hops sold as good, etc.) And for that whereas also, on the day first aforesaid, in the county afore- said, in consideration that the plaintiff would buy of the de- fendant, 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 thereupon he, confiding in that promise, then and there bought of the defendant the last- mentioned hops, at the price aforesaid ; and the defendant afterwards, to wit, on, etc., there delivered to the plaintiff' five pockets of hops, as and for good, sound and mer- chantable 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 ASSUMPSIT. 115 On warranties. the time of the said delivery thereof to the plaintiff, were not good, sound and merchantable hops, but on the con- trary thereof were then and there bad, damaged and un- merchantable ; whereby the plaintiff lost the benefit of sell- ing the same, etc. (as in first count.) (Add the money counts^ and conclude as in last -pi-ece- dent, No. 39.) In the case from which the above precedent is drawn, {h) it was decided that when there is a latent defect in a com- modity, unknown to the seller, and he sells with warranty of goodness equal to a sample, he is not liable on such warranty for any damage resulting from such latent de- fect; nor will the law raise an implied promise, in such case, that the commodity is sound and merchantable, though a fair price was given for the same ; since no fraud is imputable to the seller. In order to bind the seller, there should be an ex-press 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 merchandise sold. The principal Illinois cases on the subject of warranty are noted below, (c) (*) -East, 314. (c) 2 Scam. 22; 4 Scam. 4S6; 4 Gilm. 69; 5Gilm. 36; 11 111. 35; 15 111.345; 16 111. 69; iS 111. 420; 19III. 565; 20111.285; 21 111. rSo; 22 III 288,446; 24 111. 117, 455; 27 111. 3S2; 28 111. 280; 31 111. 107; 32 111. 220, 252; 36111.81; 39 111. 195,585; 41 111. 207, 295; 45 111. 496; 48 III. 75; 49 111. 88; 51 111. 225; 52 111. 486; 53 111. 245. ii6 ASSUMPSIT. By landlord against tenant. BY LANDLORD AGAINST TENANT. No. 41. Landlo7-d against tenant from year to year ^ on implied contract to iise farm in husbandlike manner ^ and according to custom of country. {^Commence as in JVo. 14, ante, ;page 80.) 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 ten- ancy, 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 contrary thereol', after the making of the said promise, and during the said tenancy, to wit, in the year 18 — {or "in the suc- cessive years 18 — and 18 — "), there wrongfully {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 con- trary thereof, the defendant 'during that time, to wit, on the day first atoresaid, and at divers other times between that day and the — — day of aforesaid, there wrongfully {here state the act done in place 0/ the act tvhich 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 count, 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 ASSUMPSIT. 117 By landlord against tenant. breach of good husbandry ^ without stating the -particulars. 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 JVo, 39, ante.) JSfo. 42. Against tenant for keeping and leaving premises out of repair. Commence as in No 14, ante, page 80.) For that whereas on, etc., in, etc., in consideration that the plaint- iff, at the request of the defendant, would let to the de- fendant 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 next, for one whole year, and so from year to year, s- ■ long as the plaintiff and the defendant should respectively please, the defendant promised the plaintiff that he, the defendant, would, during the continuance of such tenancy, keep the said messuage, with the appurtenances, in tenant- able 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 mes- suage, 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 re- pair, order and condition ; but on the contrary thereof, the defendant, during the continuance 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 messuage, with the appurtenances, to be, and the same were, during all that time, ruinous, prostrate, foul and in untenantable repair, order and condition, for want of need- ful repairing, cleansing and amending thereof; and 011 day last aforesaid the defendant there delivered up to the plaintiff the said premises, so ruinous, prostrate, broken down, foul and in bad and untenantable order, repair and condition as aforesaid, contrary to the said promise of the defendant. ii8 ASSUMPSIT. On promises to marrj. ON PROMISES TO MARRY. No. 43. On ■promise to marry on request. , iyCommence as in Ko. 14, ante, page 80.) For that whereas on, etc., in etc., in consideration that the plaintiff, being then unmarried, had then and there promised the de- fendant, at his request, to many him, when she, the plaintil!', 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 afterwards, 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. 44. Count for marrying another woman. 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, w^hen she, the plaintiff, should be thereunto requested, the de- fendant promised the plaintiff to marry her on request: And the plaintiff avers that she, confiding in the si>id prom- ise of tne defendant, has always from thence hitherto re- mained and still is unmarried. Yet the defendanc, rafter the making of his said promise, to wit, on , there wrong- fully married a certain other person, to wit, one , con- trary to his last-mentioned promise. No. 45. Count on promise to marry in a reizonable 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 hun, the defendant promised the plaintiff to marry her within h rea- ASSUT^IPSIT. 119 On promises to marry. sonable time thereafter : And the plaintiff avers, that con- fiding in the last-mentioned promise of the defendant, she has always hitherto remained 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 defendant to marry the plaintiff" has elapsed since the making of the last-mentioned promise of the de- fendant, and although the -plaintiffs after the lapse of such reasonable time, to zvit^ on, etc., there requested the defend- ant to marry her, he did not nor w^ould, within such reason- able time as aforesaid, or zvhcn 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 ivords in italics.^ j\o. 46. 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 nc'tct — 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, confiding 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 afterwards, marry the plaintiff' ; and afterwards, to wit, on, etc., he there wholly declined 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 defendant's father," it should be so declared on, with proper averments, {d) The action on a promise to marry is sustainable only when the contract is mutual, [e) And though one of the yd) 2 Peake, 103; Chitty, Jr., on Cont. 426. (e) I Rol. Ab, 2215; I Sid. iSo; 1 Lev. 147; Carth. 467; 2 Ind. 234. I20 ASSUMPSIT. On promises to marrj. parties is an infant, yet the contract is binding on the other side ; {/) and can be sustained by a man against a wo- man ; {g) but an executor can not sue. (Ji) It is not necessary that the time of marriage should be specified to make the promise binding. (/) 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 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 re- quest need not necessarily be made by the plaintiff herself. It may be made by her father, or other friend, whose au- thority 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 mar- riage, may be given in evidence in aggravation of dam- ages, {m) 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. {n) What- ever damages the plaintiff may have suffered in conse- quence of the defendant's refusal to marry her, she is legiti- mately entitled to recover in this action. And these damages (/) 2 Stra. 937; Bac. Abr. Infant; 7 Cow. 22 {g) Carth. 467; I Salk. 24; 5 Mod. 511. ( k) 2 M. & S. 40S. (/) Carth. 467. {J) 2 Chit. PI. 321, note m. ( k) 1 M. & P. 239; 2 Chit. PI. 323 (/) 32111.312. (.»?) 12 111. 446; 3 Mass. 72; 3 Mo. 318; 2 Overton, 233; 2 Blackf. 194; a Ind. 402. (w) 2 Greenl. Ev. 256; 12 111. 446. ASSUMPSIT. 121 On promises to marry. are to be estimated from the circumstances of the parties, and the situation in which the plaintiff' is left by the defend- ant's refusal to perform his contract, {o) 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 tlie terms employed, whether the contract is verbal or in writing, and their rights and liabilities determined accord- ingly. In the case of mutual and dependent promises, neither can maintain an action without first showing a will- ingness and an offer to perform on his part, or that the other party has done some act dispensing with such ofi'er. (p) If the declaration is upon a promise to marry upon re- quest, or in a reasonable time, the plaintiff' must aver and prove a special request, or an offer to perform ; a bare alle- gation of readiness and willingness is not sufficient, (y) Where there is a general promise to marry, the law will imply that it ts to be performed within a reasonable time, (a) 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, (r) The promise to marry, or the request or refusal, may be proved by circumstances. (5) In an action for a breach of promise of marriage, the defendant may prove particular acts of the plaintiff*, tending to show 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, U) except in mitiga- tion of damages ; {u) and to absolve the defendant, he must (o) 12 111. 446. (^) 3 Gilm. 202; I Saund. 33; 5 Term, 409; 12 Johns. 203; 5 Cowen, 404; 13 Wend. 2S5; 5 Hill (N. Y.), 37; i Chittj. 363; 2 Bibb, 341 (a) 85 111. 222. (g) I Littell, 234; 3 Gilm. 212. (r) 2 Car. & Payne, 631. {s) 3 Uilm. 202; 5 Littell, 234; 32 111. 312. {t) 18 111. 44. («) 24 III. 264; 2 Bradwell, 236. 122 ASSUMPSIT. Asrainst bailees. have terminated the engagement immediately upon being apprised of the facts, (v) It would seem that very slight facts and circumstances tending to prove misconduct, may be shown in mitigation of damages ; (w) but while this is true, and the defendant is entitled to offer, in mitigation^ general rumor of bad character, [x) yet he shall not bar the action without proof substantiating the charges ; nor shall he be allowed to prove either general reputation or particular acts, if such reputa- tion or acts were-the result of his own fault, {y) 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. (2^) AGAINST BAILEES. No. 47. Against hirer of horse., for using it improperly., and on a different journey, etc. {^Commence as in No. 14, ante, -page 80.) For that whereas on, etc., in tlie county aforesaid, in consideration that the plaintiff would let to hire and deliver to the de- fendant, at his request, a certain horse of the plaintiff, of the value of dollars, for the defendant to go and per- form 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 behalf, the defendant promised the plaintiff that he, the defendant, would not go or perform with the said horse any other journev than the one aforesaid, and that he would ride {or " drive") and use the said horse in a moderate, careful, and proper manner: And the plaintiff avers that thereupon he, contiding in the said promise, then and there let to hire and (r;) 24 111. 264. (w) 3 Esp. 236; 7 Cow. 22; 4 Esp. 257; Pea'.Le Ad. C, S. C. 103, 124; I Car. & Payne, 529, 546. (a;) I Holt N. P. 151; 3 Esp. 235. ( v) 3 Mass. 189. (^r) 3 Gilm. 202. ASSUMPSIT. 123 Asrainst bailees. delivered the said horse to the defendant, and the defend- ant 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 immoderately, carelessl}', 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 de- pr>ived of the use and benetit 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 im- moderately, 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 defend- ant ridden and used, he, the defendant, promised the plaintiff to ride and use the last-mentioned horse in a mod- erate, careful and proper manner. And although the de- fendant then and there received the last-mentioned horse of the plaintiff, for the purpose last aforesaid, 3^et the de- fendant, not regarding his last-mentioned promise, did not nor would ride or use the last-mentioned liorse in a mod- erate, 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 care- lessly and improperly 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. {If there is any doubt whether the injury zuas occasioned by inifroj)er riding or driving-, it is advisable to add a count nice the last, but stating the defendant's promise to 124 ASSUMPSIT. Against bailees. 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," and averring "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-men- tioned horse, on, etc., there became and was greatly dam- aged," etc. // may also he advisable to add another 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" — omitting the statement as to hire — "the de- fendant promised," etc., stating the fro7nise as in the count last suggested. If there is any demand for horse-hire, add a count therefor, as ante, under JVo. i, and the account stated, {a) Conclude as follozus :) Wherefore the plaintiff says that he is injured and has sustained damage to the amount of dollars, and there- fore he brings his suit, etc. A hirer is not bound to exercise more than ordinary care with the thing let to hire, {b) but a borrower is bound to use extraordinary care, {c) The use of domestic animals necessarily involves their keeping, and the expense in- curred by the borrower for such keeping is not a compen- sation to the lender which makes the bailment one of hiring, {d) The hirer of a horse is not liable to make compensation for his death, occasioned by error of a farrier called in, but is liable if he, the hirer, imprudently gave medicine him- self; nor is the hirer liable for a horse's falling, etc., with- out the hirer's fault, [e) He must not ride a horse after it is exhausted and refuses its feed, {f) An agister of cattle for hire is liable for the negligence {a) 2 Chit. PI. 337, 339. {b) Ld. Raym. 916; Bui. N. P. 72; Jones, 89; 14 111. 129; 44 111. 225. (c) 14 111. 84; 21 111. 259; 37 111. 250. [d) 21 111. 259; 37 111. 250. {e) 3 Camp. 5. if) I Gow C. N. P. I ; 9 Brad. 223-19; 10 Brad. 425-413; 7 Brad. 395; 93 111. 458. ASSUMPSIT. 125 Against carriers. of his servants, but not for their willful or malicious acts, committed without his knowledge, (g-) No. 48. Against carrier by land, for loss of goods. {ConiJiience as in No. 14, ante, page 80.) For that whereas the defendant, before and at tlie time of the making of his promise hereinafter next mentioned, 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 plaintiti', on, etc., at, etc., at the request of the defendant, caused to be delivered to him cer- tain goods and chattels of the plaintiff, to wit, oXf,., {describe ikon, as in trover.) of the value of dollars, to be taken care of and safely carried by the defendant, as such carrier as aforesaid, in and by the said wagon, from, etc., afore- said, to, etc., aforesaid, and at the last-named place to be safely delivered by 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., aforesaid to, etc., aforesaid, and at the last-named place safelv to deliver the same for the plaintiff. And although the defendant, as such carrier as aforesaid, then received the said goods and chattels,atthe place first aforesaid, 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 tlie 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 afterwaids, to wit, on the day aforesaid, became and were wholly lost to the plaintiff. {If only a part of the goods was lost, proceed from the asterisk in this count as follozvs : "divers of the said goods and chattels, to wit, etc., of the value of, etc., were on the Ks) 4^ 111- 225- 126 ASSUMPSIT. Asrainst carriers. 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 follozving form. No. 49.) {Second count, for not carrying within 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 defendant from, etc., aforesaid to, etc., aforesaid, and at the last-mentioned place to be by him delivered for the plaintiff, for certain reward to the defendant in that behalf, he, the defendant, promised the plaintiff to take care of the last-mentioned goods and chat- tels, and safely to carry the same from, etc., aforesaid to, etc., aforesaid, and at the last-mentioned place to deliver the same for the plaintiff, in a reasonable time then next following. And although the defendant then received the last-mentioned goods and chattels, at the place first afore- said, for the purpose aforesaid, and although a reasonable time for the carriage and delivery thereof as aforesaid has long since elapsed, yet the defendant did not nor vvould within such reasonable time, or afterwards, though often requested, safely carry the last-mentioned goods and chat- tels from, etc., aforesaid to, etc., aforesaid, or at the last- named place deliver the same for the plaintiff, but has hith- erto 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 7tfon an account stated, and conclude as in No. 39 or No. 47.) It does not appear to be necessary, in assumpsit, to commence 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 delivery to the defendant of the goods, etc., to be carried from, etc., to, etc., and his undertaking to carry them accordingly. {Ji) {h) T Wils. 281 ; Bac. A., tit. Carrier, A. ASSUMPSIT. 127 Against carriers. The places to and from which the goods were to be car- ried roust be stated accurately. (/) An exact description of the goods is not material; [J) nor is it necessary to state the amount of the reward paid, or to be paid, for the carriage of the goods, {k) In general, the consignee of the goods should be the plaintiff; //) but if the consignee had no property in the goods at the time of the delivery thereof to the carrier, the consignor must sue. (;;z) In an action on the case, however, the consignor, though 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. {11) And the consignor may control the destination of property m transitu^ and the carrier is bound to obey his directions in that regard. () But a common carrier may, by contract, limit his common law liability, except for his actual negligence, or willful mis- conduct. {(J) The mere acceptance of a bill of lading or receipt, which contains conditions restricting the carrier's liability, raises no presumption of assent to its terms, {a) A common carrier will be liable for the actual value of goods lost through its negligence, notwithstanding they may have been shipped under a special contract which in terms fixed the value at a less sum. iji) The carrier has two distinct liabilities: First, for losses by accident and mistake, where he is liable as insurer. Second, for losses by default or negligence where he is answerable as an ordinary bailee, {c) The adjudications on the subject of common carriers are (/*) 2 Starr & Curtis' An. Stat. 1945 ; Rev. Stat. (1877) 269. {q) 93 111. 523 ; 61 111. 184; 84 111. 239 ; 2 Bradw. I50; 70 U. S. 107 ; 12 Bradw. 54; 19 111. 136 ; 37 III. 485; 42 III. 474; 53 HI. 391 ; 58 111. 409 ; 60 111. 175 ; 83 111. 273 ; 85 111. 80; 91 N. Y. 32; 80 Mo. 213. (a) Lawson on Carriers, Sec. 104, p. Ill ; 81 111. 143 ; 42 III. 89 ; 55 Penn. St.' 140; 61 111. 1S6; 84 111. 239; 86 111. 71; 89 111. 43, 152; 90 111. 455 ; 91 III. 195. (fi) 9 American Reporter, 166. (c) 93 111. 524 ; 4 Sanford, 136. 9 130 ASSUMPSIT. On contracts of sale of goods. too numerous to permit even a summary of them in a work of this kind. The cases in the Supreme Court of Illinois relating to the duties and rights of carriers of goods, (r) money, (s) baggage, (/) and passengers, (//) are noted below. ON CONTRACTS OF SALE OF GOODS. JVo. 50. /^or not accenting goods sold. ( Commence as in No .14, ante , -page 80. ) For that whereas on, etc., in, etc., the defendant bargained for and bought of the plaintiff^ and the plaintifT then and there sold to the defendant, at his request, a large quantity, to wit. bushels of wheat, at the price of for each bushel thereof, to be delivered by the plaintiff to the de- fendant in a week then next following, at , and to be paid for by the defendant to the plaintiff on the deliver}- thereof as aforesaid ; and in consideration thereof, and th^^t the plaintiff had promised the defendant, at his request, ro f'- jiver the said wheat to him in the time and at the place aforesaid, the defendant thereupon, on the day /fr 5/ afore- said, in the county aforesaid, promised the plaintiff to accept the said wheat from him, and to pay him for the same on the delivery thereof as aforesaid : And although the plaintiff, within a week next after the making of the said promise of the defendant, to wit, on, etc., at, etc., aforesaid, was ready and willing, and tendered and offered, to deliver the said wheat to the defendant, and then and there requested (r) 89 111. 152 ; 90 111. 455 ; 91 III. I95. 617 ; 93 111. 524; 84 III. 239 ; 8l 111. 143; 88111. 136; 12 Bradw. 54; 83 111. 273; 85 HI. 80; 96 111. 504; 33 111. 185; 34 III. 389; 38 111. 355 ; 39 111. 312, 335 ; 40 111. 249, 281; 41 IH. 73 ; 42 111. 73, 89, 132, 474; 43 111. 424 ; 48 111. 402, 425 ; 49 111. 33 ; 52 111. 123, 249; 53 111. 391 ; 54 111. 58,' 88; 8l 111. 511 ; 8^111. 68; 86 111. 71. (s) 23 111. 197; 24 111. 332; 26 111. 504; 37 111. 465; 38 111. 503; 47 111. 26S; 90 111. 455; 91 111. 195. {t) 13 111. 746; 19 111. 556; 21 111. 620, 627; 22 111. 212, 278; 24 111. 332; 52 111. 81; 53 111. 227. (m) 17 111. 406, 509; 18 111. 416; 19 111. 5IO; 21 111. 20; 22 111. 633; 23 111. 357; 26 III. 373; 30 111. 9; 49 111. 480; 50 111. 264; 51 111. 333, 495; 54 111. 20. ASSUMPSIT. lu On contracts of sale, etc., of goods. him to accept the same, and to pay therefor as aforesaid, yet the defendant did not nor would then, or at any time before or afterwards, accept the said wheat, or any part thereof, from the plaintiff, or pay him for the same as aforesaid, but refused so to do. {If the ■plaintiff was not to deliver the goods at any -particular time and place^ then state the contraet accord- ingly ; and if the goods have been resold at a loss, or any expense has been incurred, state the special damage. Add a count for goods bargained and sold, under zvhich count the plaintiff may in general recover.^ The damages, in an action for not accepting goods at an agreed time, place and price, will be the difference be- tween that price and the market value of the goods at the time and place so fixed, {y') jSfo. 51. For not accepting goods made for defendant. [Commence as in JVo. 14, ante, page 80.) For that whereas on, etc., in, etc., in consideration that the plaintiff would make for the defendant, at his request, , at the price of , {or, if no price was 7iamed, say, " at a reasonable price for the same,") and would deliver to him the said , when the same should be made {if there were any terms as to the time or -place of delivery, state them accordingly) , he, the defendant, promised the plaintiff to accept of him the said , when the same should be so made, and to pay him the said price for the same on the delivery thereof as aforesaid : And the plaintiff avers that he did afterwards, to wit, on, etc., there make the said for the defendant, and thereupon then and there was ready and willing, and offered, to deliver the same to him, and requested him to accept and pay for the same as aforesaid. Yet the defendant did not nor would then, or at any other time, accept of the plaintiff the said , or pay him therefor the price aforesaid, or any part thereof, but refuses so to do. {Counts may be added for goods bargained and sold, work and materials, money paid, and account stated, with conclusion as in No. 39.) (r;) 9B. & C. 145; 3 Camp. 480; 12 111. 1S4; iS 111. 155; 28 111. 457; 41 III. 102; 45 111. 43, 79; 49 HI. 446. 172 ASSUMPSIT. On contracts of sale, etc., of goods. No. 52. Fo7' not delivering goods -within a specified time, etc. {Commence as in No. 14, ante, -page 80.) For that whereas on, etc., in, etc., the plaintiff, at the request of the defendant, bargained with the defendant to buy of him, and the defendant then and there sold to the plaintiff, a large quantity, to wit, bushels, of wheat, at the price of for each bushel thereof, to be delivered by the defendant to the plaintiff in a week then next following, at , and to be paid for by the plaintiff to the defendant on the delivery thereof as aforesaid ; and in consideration ' thereof, and that the plaintiff had promised the defendant, at his request, to accept and receive the said wheat, and to pay him for the same at the price aforesaid, he, the defend- ant, on the dd.y Ji?'st aforesaid, in the county aforesaid,' promised the plaintiff to deliver the said wheat to him as aforesaid : And although the said time for the deliver}'- of the said wheat has long since elapsed, and the plaintiff has always been ready and willing to accept and receive the said wheat, and to pay for the same at the price aforesaid, to wit, at, etc., aforesaid, yet the defendant did not nor would, within the time aforesaid or afterwards, deliver the said wheat, or any part thereof, to the plaintiff, at, etc., aforesaid, or elsewhere, but refused so to do ; whereby the plaintiff has been deprived of divers great gains and profits which otherwise would have accrued to him from the deliv- ery of the said wheat to him as aforesaid. ( One or more counts, varying the statement, may be added, and such common counts as the circtunstances may require.) Where the contract is to deliver generally, and not in any named time, a special request to deliver must be aver- red, {w) or else it must be shown that the defendant has put it out of his power to deliver the goods, as by his hav- ing resold them, or the like, (a-) Where two acts are to be done at the same time, as selling and delivering, and receiving and paying, in an action for (vj) 5 T. R. 409; 13 111. 72. («) 5 B. & Aid. 712; I D. & R. 361. ASSUMPSIT. 133 On contracts of sale, etc., of goods. non-delivery it is only necessary for the plaintiff to aver and prove a readiness to pay, whether the other party w^as at the place, ready to deliver, or not. (y) No. 53. For not delivering goods at a -particular ■place ^ etc. (^Commence as in IVo. 14, ante, page 80.) For that whereas on, etc., in, etc., the plaintiff, at the request of the defendant, bargained for and agreed to buy of the de- fendant a large quantity, to wit, bushels, of oats, upon the following terms, that is to say, that inhere set out the terms of t-he contract, which may be thus:) "such oat'=' should be of fair quality and color, and of the weight of pounds per bushel, and should be delivered for the plaintiff within a reasonable time thereafter, free of expense to him, on board some boat in the river , to be conveyed in such boat from thence to , at a freight not exceeding cents .per bushel, and that the plaintiff should pay the defendant for such oats at the rate of cents for each bushel thereof;" and thereupon, in consid- eration of the premises, and that the plaintiff had prom- ised the defendant, at his request, to accept a delivery and shipment of such oats as aforesaid, and to pa}' him for tlie same at the rate in that behalf aforesaid, the defendant, on the day aforesaid, in, etc., aforesaid, promised the plaintiff that he, the defendant, would within a reasonable time then next following procure to be delivered and shipped for the plaintiff, in manner aforesaid, the said quantity of oats, of such quality, color and weight as aforesaid, to be so conve3'ed as aforesaid : And although a reasonable time for that purpose has long since elapsed, and the plaintiff was always during and since that time there readv and willing to accept a delivery and shipment of such oats as aforesaid, and to pay for the same as aforesaid, whereof the defendant then had notice, yet the defendant (though often thereto requested) did not nor would, within such reasonable time or afterwards, procure to be delivered or shipped for the plaintiff, in manner aforesaid or otherwise, the said quantity of oats, of such quality, color and weight as aforesaid, or any oats whatsoever, but refused and still (j) 29 111. 14s; 17III. 58S. 134 ASSUMPSIT. On policies of insurance. refuses so to do ; by means whereof the plaintiff has been deprived of great gains and profits which he miglit and otherwise would have acquired by reselling such oats at much higher prices. {^Special and common counts juaybc added, as in A^o. 52.) It would seem safer, in a count like the above, to aver a special request, but the precedents in the books of forms do not contain that averment, [z) ON POLICIES OF INSURANCE. JVo. 54. On a fir e-insiirance policy , renewed. (^After stating the court, term, and vemie :) A. B., plaintiff, by C. D., his attorney, complains of the In- surance Company, defendant, of a plea of trespass on the case on promises : For that whereas the defendant, on, etc., in, etc., made its policy of insurance, and delivered the same to the plaintiff, and thereby then and there, in consideration of dollars, to it paid by the plaintiff', did insure the plaintiff against loss or damage by tire, to the. amount of dollars, on {here describe the property on which the insurance was effected). And the defendant, for the consideration aforesaid, did by the said policy promise and agree to make good and satisfy unto the plaintiff, his executors, administrators or assigns, all such loss or dam- age, not exceeding the said sum of dollars, as should happen by fire to the said property whereon the said insur- ance was so made as aforesaid, from, etc., at noon, until, etc., at noon, such loss or damage to be estimated accord- ing to the true and actual value of the said property at the time such loss or damage should happen, and the amount thereof to be paid within days after notice and proof of such loss or damage should be made by the plaintiff, in conformity to the conditions annexed to the said policy : Provided always, and it was by the said policy declared, that the defendant should not be liable to make good any loss or damage which might happen by means of any in- vasion, insurrection, riot or civil commotion, or of an}- military or usurped power ; and that in case the plaintiff iz) 2 Chit. PI. 270; I Swan's Pr. 327. ASSUMPSIT. 135 On policies of insurance. had effected any other insurance against loss by lire on the said property, not notified to the defendant and indorsed on the said pohc3s then the said poHcy should be void ; and that if the plaintiff, or his executors, administrators or as- signs, should thereafter effect any other insurance on the same property, and should not with all reasonable dili- gence give notice thereof to the defendant, and have the same indorsed on the said polic}', or otherwise acknowl- edged by the defendant in wridng, the said policy should cease, and be of no further effect ; and that in case of any other insurance on the same property, whether prior or subsequent to the date of the said policy, the plaintiff should not, in the event of loss or damage of the said property, be entitled to demand or recover of the defendant, on the said policy, any greater proportion of such loss or damage than the said amount by the said policy insured should bear to the whole amount of insurance on the said property ; and that in case the building in the said policy mentioned should, at any time whilst the said policy would otherwise continue in force, be appropriated, applied 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 memorandum of special rates in the conditions annexed to the said policy, or for the pur- pose of storing therein any of the articles, goods or merchan- dise in the same conditions denominated hazardous, or extra- hazardous, or included in the said memorandum of special rates, unless in the said policy otherwise speciall}' provided, or thereafter agreed to by the defendant in wrifing, added to or indorsed on the said policy, then and from thence- forth, so long as the same building should be so appro- priated, applied or used, the said policy should cease, and be of no force or efiect ; 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 tiiereto annexed, which were to be used and resorted to in order to explain the rigiits and obli- gations of the said parties to the said policy, in all cases not therein otherwise specially provided for ; and tliat the same insurance (the risk not being changed) might be continued for such further term as might be agreed upon, on payment 136 ASSUMPSIT. On policies of insurance. of the premium therefor, and indorsement of such payment on the said poHcy, or receipt given for the same ; and that the interest of the plaintiff in the said policy was not assigna- ble, 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 said 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 fol- lows, that is to say : {here insert, verbatim, the conditions, or sueh ^arts thereof as constitute a condition -precedent.) And the plaintiff further avers, that afterwards, 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 zuhereof -mas by the defendant then and there acknowledged in zuriting, 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 defendant, to wit, from the day last aforesaid, at noon, until, etc., at noon. And there- upon, 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 pertbrmed, the defend- ant there promised the plaintiff that it wcild keep and per- form 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 plaintiff of the said sum of, etc., upon the said propert}^ 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 pro^ert}" to the amount of the said sum so by the defendant insured thereon as aforesaid. And the plaintiff further avers, that on, etc., the said property was consumed and destroyed by fire, whereby the plaintifi' then and there sustained loss and damage on the said property to the amount of the sum last aforesaid, which said loss and dam- age did not happen by means of any invasion, insurrection, riot or civil commotion, or of any militar}^ 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 ASSUMPSIT. 137 On policies of insurance. defendant as particular an account of the said loss and dam- age as the nature of the case would admit ; which said account was signed by the plaintiff, and accompanied by his oath that the same was in all respects fust and true, and showed the value of the said property, and in what general manner the said building 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 pos- session of the same"), and when and how the said fire orig- inated, so far as the plaintiff knew or believed, and his in- terest 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 fire, 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 ac- quainted with the character and circumstances of the plaintiff', and verily believed that the plaintiff had by mis- fortune, and without fraud or evil practice, sustained loss and damage on the said property to the amount of dollars. 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 insurance as aforesaid") any other insurance on the said property ; and that the said building was not at or since that time appropriated, applied or used to or for the purpose of carrying on or exercising therein any trade, business or vocation denominated haz- ardous or extra-hazardous, or specified in the said memo- randum of special rates, or for the purpose of storing therein any of the articles, goods or merchandise in the said condi- tions denominated hazardous or extra-hazardous, or included in the said memorandum of special rates {except as specially provided in the said policy as aforesaid, c/c.) (*)Andthe 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 performed, and although he has sustained loss and damage by fire on the said property, in the manner and to the amount aforesaid, nevertheless the defendant, 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, the con- clusion -will be as in No. 39, ante.) I3S ASSUMPSIT. On policies of insurance. Policies of insurance vary so greatly in their forms and provisions, that the precedents given are only to be con- sidered as indicating- the general structure of the declara- lion. As to the necessity of the averment of interest in the plaintiff, see the authorities mentioned in the note, (a) Where a term of insurance about to expire is continued, and a renewal receipt given, such receipt does not consti- tute a new contract of insurance, but merel}^ continues the policy in force for another term ; and if a loss occurs during the new term, a recovery must be had, if at al^, on the original contract, (d) 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 renewing a policy that has expired, [d) A policy of insurance is not assignable, so as to enable the assignee to sue in his own name ; (e) but where the as- signee 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 express promise of the insurer to pay him for the loss. (_/") Policies of insurance are to be construed as other mer- cantile contracts, but the conditions and provisions of such policies are to be construed strictly against the under- writers, (g) The following is merely suggested as a shorter form of declaring on a policy of insurance : ( a) 2 Chit. PI., 5 Am. ed. iSi, note X', and cases cited; Id. ii Am- "d. i8i, note m, and cases cited; Ol. Prec. 223; i Gilm. 236; 32 111. 221. (^) 32 111. 221; 28 111. 235. (c) 32 111. 221. (d) 54 111. 164; 34 111. 46. (e) 32 111. 221 ; 34 111. 46, and cases cited, (y) 34 111. 46, and cases cited. is-) 49 111- 106. ASSUMPSIT. 139 On policies of insurance. No. 55. Gn a fire-insurance -policy. {Commence as in the last precedent.) For that whereas the defendant, on, etc., in, etc., made its poHcy of in- surance, and delivered the same to the plaintiff, and foi 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 : inhere insert the policy and conditions Yei'h'dhm.) And the plaintiff avers (pro- ceed as in the last precedent, from the one asterisk to the other). Nevertheless, 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. This mode of declaring — alleging that the defendant promised in the terms of a certain writing, and setting it it out in h(BC verba — is sufficient, {Ji) and has some ad- vantages where the contract is of the vexatious length and complexity usual in policies of insurance. The principal Illinois authorities on the subject of in- surance are noted below. (/) (h) 4 Man. & Gr. 709; 16 Adol. & EI., N. S. 90; l Freem. PI. 476; 119 111. 474- (/) I Gilm. 236; 13 111. 89, 676; 16 III, 236; 18 111. 553; 21 III. 513; 22 111. 278, 462; 24 III. 455; 25 III. 466; 26 III. 36J; 28 111. 235; 29 111. 38; 32 111. 221; 34 111. 46; 37 111. iiT,, 354. 465; 38 HI. 166; 40 111. 398; 41 111. 295; 43 III. 327; 45 III. 86, 301, 303.482; 46 III. 263, 394; 47 111. 86, 516; 48 111. 32. 313; 49 II'. 106, 180, 251. 259; 50 III. in, 120, 419; 51 III. 283, 342, 409; 52 III. 53, 442, 464, 518; 53 III. 151, 516; 54 111. 164, 513; 14 Bradw. aoi; 83 III. 410; 81 III. 88; 90 111. 156; 91 III. 159; 96 111. 309; 97 111. 474; 98 III. 58 324; no III. 102, 366, 603; 112 111. 68; 114 111. 108, 463; 117 111. 273; USUI. 396, 492. I40 ASSUMPSIT. Defenses to the action — Motions to dismiss. DEFENSES TO THE ACTION OF ASSUMP- SIT, ETC. The defendant in an action may make his defense in various ways, according to the circumstances : he may move to quash the 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 declaration ; or plead in bar of the action. The observations here submitted, on the subject of de- fenses, are appHcable to all the forms of action, and will be referred to under the proper heads. The subject will be considered in the following order : I. Motions to quash, or to dismiss. II. Pleas to the jurisdiction, and in abatement, REPLICATIONS THERETO, ETC., WITH PRECEDENTS. III. Pleas in bar, replications thereto, etc., with PRECEDENTS. IV. Demurrers, with precedents. As under the last head demurrers to subsequent plead- ings, as well as to declarations, are considered, the subject of demurrer is treated after that of pleas in bar. I. MOTIONS TO quash, OR TO DISMISS. Hotv made. — If sufficient ground appears from the pa- pers or record, it is not always necessary (although prefer- able) 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 ASSUMPSIT. 141 Defenses to the action — Motions to dismiss. plaintiff's being a non-resident, and not having filed secu- rity 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 must be shown to the court. («) A motion of this kind comes too late after a general appearance in the cause, {b) 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 ; (c) and it is said that if a defendant appears for a special pur- pose, such as to show that he is not properly in court, he ought to restrict his appearance accordingly in his mo- tion, as otherwise he may be held to have appeared gener- ally, id) An appearance is not withdrawn by the with- drawing of a plea by leave of the court, {e) Where there was defective notice by publication to one of the defendants, a non-resident, but the record showed that the "defend- ants" 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 ivrit^ etc., will be quashed, or suit dismissed, on viotion. — If the writ is not under seal, {g) or is returnable (a) I Scam. 266; 4 Scam. 143, 174; 5 Gilm. 559; 12 111. 154; 13 111. 344, 570; 16 111. 390; 25 III. 202; 26 111. 200; 31 111. 306; 32 111. 474; 35 III. 156, 444; 37 111. 306; 39 111. 220; 40 111. 128; so 111.439; 78 111. 208; 81 111. 61. {b) 2 Scam. 462 ; 22 111. 9 ; 25 111. 107 ; 34 111. 395 ; 35 111. 53 ; 39 111. 172; 40 111. 44; 46 111. 66; 50 111. 503. {c) 25 111. 107; 33 111. 518; 35 111.53. id) Ibid. See i Scam. 238, 395 ; 20 111. 66; 66 111. 157. \e) 34 111. 395. (/) 42 111- 315- [g) I Scam. 238, 250, 395; 12 111. 232; 19 111. 293. 142 ASSUMPSIT. Defenses to the action — Motions to dismiss. on any other day than the first day of the term, or the day fixed by law, {h) or does not show with certainty in tlie court of what county the defendant is required to appear, {i) or varies materially from the declaration, etc., (/) (but not, it seems, when the variance is in the name of the de- fendant,) (^k) such writ will be quashed on motion. The same matters maybe pleaded in abatement. (/) 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, {iii) and in replevin (in the discretion of the court) the affidavit, {71) may in Illinois be amended. Also, in the case of an attachment, (and probably now of a capias^') the writ may be quashed, or suit dismissed, for want of the bond required by law, (c) unless the plaintiff" will furnish the requisite bond ; and if the declaration is not filed on the return of the attach- ment, or at the term to which the same is returnable, the defendant may, in the discretion of the court, have the suit dismissed. (^) In Illinois, the suit may in certain cases be dismissed for want of the security for costs required by statute to be given before the commencement of the suit, as has been already mentioned (see the form of the instrument, ante, page 41) ; or for a failure to give security for costs, after the com- mencement of the suit, in compliance with a rule obtained by the defendant on a showing of insolvency, etc., of the plaintiff, {q) ill) Gould's PI. 267; 5 Mass. 100; 3 Scam. 541 ; 20 111. 331 ; 28 111. 70; 4r 111. 443- (/) 20 111. 89; 23 111. 473. (/) 20 111. 46; 52 111. iSo. (k) 36 111. 373. But see 20 111. 46; i Chit. PI. 391. (/) Gould's PI. 267, 251. (w) Rev. Stat. (1877) 737; 2 Scam. 492 {n) I Gilm. 35; 13 111. 122; 39 111. 117. {0) Rev. Stat. (1877) 147; 2 Scam. 15; 3 Scam. 577; 5 Gilm. 304. {/>) Rev. fc'tat. (1877) 150; 29 111. 291. ASSUMPSIT. 143 Defenses to the action — Motions to dismiss. The principal cases relating to this subject (besides those heretofore referred to in considering when dilatory motions must be made) are noted below, (r) Section 17 of the Illinois practice-act of 1872, after pro- viding for a continuance of the cause if the plaintiff shall not file his declaration, etc., ten days before the return- term, further provides that if no declaration shall be filed ten days before the second term, the defendant shall be en- titled to judgment as in case of a nonsuit, (5) which is the same in eft'ect as a dismissal of the cause. By section 23 of the same act it is provided, that " at any time before final judgment in a civil suit, amendments may be allowed on such terms as are just and reasonable, intro- ducing any party necessary to be joined as plaintitf or de- fendant, discontinuing as to any joint plaintiff" or defendant, changing the form of the action, and in any matter, either of form or substance, in any process, pleading or proceed- ing, which may enable the plaintiff" to maintain the action for the claim for which it was intended to be brought, or the defendant to make a legal defense." The statutes of some other states contain similar liberal provisions in rela- tion to amendments. ir) Breese, 377; i Scam. 383, 451, 551, 592; 3 Scam. 184; i Gilm. 553; 2 Gilm. 381, 69S; 3 Gilm. i, 97; 5 Gilm. 20, 559; 11 111. 19; 12 111. 27, 154; 14 111. 71 ; 16 111. 291 ; 19 111. 54; 21 111. 500; 23 111. 533; 24 111. 626; 25 111. 5S7; 27 111. 42, 332; 28 111. 112; 30 111. 43, 185; 32 111. 474; 76 111. 206,234 507; 40 111. 122; 51 III. 106; 53 III. 247. (s) Rev. Stat. (1874) 738; Rev. Stat. (1877) 736. 144 ASSUMPSIT. Pleas in abatement, etc. — Order, and time, of pleading. II. PLEAS TO THE JURISDICTION, AND IN ABATEMENT. Order of ^pleading. — "The law has prescribed and set- tled the order of pleading which the defendant is to pursue, viz : 15/. To the jurisdiction of the court, idly. To the disahilitv. etc., of the person: (is/. Ofthc'flaintiff; \ idly. Of the defendant. 2,dlv. To the count, or declaration. <; ^thly. To the writ: 1st. To the form of the writ: C 15/. Matter apparent on the face of it; \ 2dly. Alatter dehors; idly. To the action of the writ, ^thly. To the action itself in bar thereof This, it is said, is the natural prder 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 precluded from pleading any matter prior in point of order." {t) At what time dilatory pleas must he pleaded. — All pleas in abatement, (under which general name are here in- cluded pleas to the jurisdiction and all other dilatory pleas,) and objections of that nature, must be interposed at the first opportunity, in any court, whether a court of record or not. {ti) It is too late to plead in abatement after demurring to the declaration, (z') or pleading in bar of the action, {w) (/) I Chit. PI. 379. («) Breese, 135; i Scam. 266, 554; 4 Scam. 174, 561; 12 Ill._6i; 13 111. 344, 570; 17 111. 199; 22 111. 140, 197; 26 111. 200; 32 111. 446; 35 111. 156, 444; 41 111. 452; 53 111. 307; 7 Ind. 147, 447; 23 Tex. 177; 27 Geo. 172; 44 Maine, 29, 77 111. 354, 74 111. 126; 90 111. 56. {v) 13 111. 344; 23 111. 69. («;) 14 111. 277; 26 111. 200; 69 111. 665 ; 59 111. 491. ASSUMPSIT. 145 Pleas in abatement — Premature action. or joining in error (;r); or to plead to the jurisdiction after a motion seeking the same object of the plea, (jv) or after the de- fendant has appeared, and moved for a continuance. (,3-) Nor can a plea in abatement be pleaded after a similar plea has been stricken from the files, (a) But it must be under- stood, that the defendant is not bound to plead at all until the plaintiff is in a situation to compel him to plead. {/?) StaUitory, etc.^ relating to pleas in abatement. — Section 4 of the statute in relation to abatement, declares that, " When a defendant in an action upon 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 original defendant." {e) 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 viola- tion of contract to extend time of payment, it has been held, (r) 28 111. 423; 19 Bradw. 236, {y) 31 111. 306. (3) 28 111. 79; 8 Gray, (Mass.) 79; 15 Graft. (Va.) 122; 90 111. 56. (a) 41 111. 115; I Starr & v^urlis' An. Stat. 182. {b) 2 Scam. 257 ; 31 111. 306. (c) I Starr & Curtis' An. Stat. 181 ; Rev. Stat. (1877) 93; 16 Bradw. 339. (/■) 77 III. 143; Contra, i Bradw. 414; 71 111. 169. 10 146 ASSUMPSIT. Pleas in abatement — Amendments — Death of sole plaintiff or defendant. that is a defense in abatement only and can not be set up after pleading in bar. [q) A variance between a summons and the declaration may be taken advantage of by a plea in abatement ; (r) and can only be taken advantage of by such plea, or by motion to quash, {s) 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 prescribed by the court." (/■) A variance between summons and declaration, {?i) mis- joinder, non-joinder and misnomer can be cured by amend- ment. " 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, but she may continue to prosecute or defend the same in like nianucr as if she were sole." iv) The statute provides that " a married woman may, in all cases, sue and be sued without joining her husband with her, to the same extent as if she were unmarried." {zv) Death of sole plaintiff or defendant. — By the common law, the death of a sole plaintiff or sole defendant, /'tv/^/i'w/^ ///r, abates the suit ; and if one of several plaintiffs die pending the suit, it will in most cases abate; but if one of several defendants die, it is generally no cause of abatement, but the plaintiff may suggest the death upon the record, and proceed in (^) 9a 111. 91; 53 III. 307. (;-) 70 111. 281; 74 111. 126; I Chitty's PI. 389; Gould's PI. 235; 69 III. 655. {s) Breese, 331, 378; II 111. 573; 17 111. 199, 529; 20 111. 46; 52 111. i8o. (/) I Starr & Curtis' An. Stat. 181; Rev. Stat. (1877) 93- {ti) 71 111. 375; 3 Scam. 45. (i/) I Starr & Curtis' An. Stat. 182. (w) I Starr & Curtis' An. Stat. la'^g; 75 111. 159; 71 111. 475; 65 111. 129; 66 111. 154, 401; 67 UL I22j 68 111. 409; 2Q Bradw. 543; i6 Bradw' 199. ASSUMPSIT. 147 Pleas in abatement — Death of sole plaintiff or defendant. the same suit against the survivors, if the cause of action is such as would survive against them, as is almost universally the case, (-r) But by statute, however, in England, and gen- erally 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 representatives of such deceased parties, 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 complaint, 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 com- plainant, and prosecute the same as in other cases." (j) The suggestion of death, made without objection from the adverse party, and an order allowing substitution 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 necessary, {a) But entering judgment in favor of a dead person, without first reviving suit in the name of his repre- sentatives, is not such an error as requires a reversal of a judgment. (/;) Death, of so le defendant. — Section ii of the statute in rela- tion to abatement, provides that, (jtr) Gould's PI. 246, 248. (/) I Starr & Curtis' An. Stat. 182; Rev. Stat, (1S77) 94. See 48 111. 243; 79 I". 594; "o 111. 372. (z) 108 U. S. 32. (a) 17 111. 199; 66 III. 13, (6) 48 111. 243; 79 111. 594. 148 ASSUMPSIT. Pleas in abatement — Death of parlies. " When there is but one defendant in an action, proceeding or complaint, in law or equity, and he dies before final judg- ment 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 suinmons against such person or legal representa- tive, requiring him to appear and defend the action, proceed- ing or complaint, after which it may proceed as if it had been originally commenced against him." (c) The representatives of a deceased defendant will not be allowed to suggest the defendant's death, unless he submits himself to the jurisdiction of the court, {d) Section ii applies to appeals and writs of error, {v) and to attachment suits. {/) Several parties — Death of part. — Where there are several plaintiffs or defendants, and any of them die before final judg- ment, the action shall not abate, but the death miy be suggested and the cause proceed as to the survivors, {g) It would not be proper to join administrator of deceased defendant with a surviving defendant, {h) D eat Ji 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 be verified. — The first section of the Abatement Act provides, (<■) I St.uT & Curtis' An. Stat. 183; Rev. Stat. (1877) 94. {d) 102 III. 315. See III 111. 236. {e) 9 Bradw. 437. if) 19 111. 383. {g) I .-tarr & Curtis' An. Stat. 183; Rev. Stat. (1877) 94; 79 111. 400. (//) 73 III. 194. See 15 111. 13; 44 111. io8. (/) I Starr & Curtis' An. Stat. 184; Kev, Stat. (1877) 94. ASSUMPSIT. 149 Pleas in abatement — Requisites — Judgment. " That no plea in abatement, other than a plea to the juris- diction 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 of- fering the same, or of some other person for him." {J) Every pleading which sets up matter in abatement 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 {k) Where a vsummons has been issued, but not delivered to the sheriff to serve, the suit does not thereby abate. (/) Requisites of picas in abatement. — Pleas of this character are required to be full, certain and formal in every particular. Not being favored by courts, because of their dilatory nature, they are not aided by any intendment, {111) and can not be altered or amended, iji) Judginent upon a plea in ahatcnient. — 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 inter- locutory or final, according to the nature of the action. If the action be for damages in assumpsit or in tort, it is inter- locutory. But if it be in debt for a sum certain, or for a specific recovery of land or goods, it is final. {0) If the judgment is for the plaintiff on demurrer to the plea, the judgment is only interlocutory, quod respondeat ouster. (/>) (7) I Starr & Curtis' An. Stat. 177; Rev. Stat. (1877) 93- [k) 102 111. 315; 89 111. 554; 23 III. 340; 41 III. 115; 66 111. 157. (/) 104 111. 71. {fii) Tidd's Pr. 639; I Chit. PI. 395; Gould's PI. 75, 76; 22 111. 197 ; 25 Til. 284, 486; 45 III. 296 ; 47 111. 444 ; 54 III. 361 ; 8 Mich. 500 ; 44 Maine, 482 ; 57 111. 132 ; 68 111. 322 ; 90 111. 56 ; 89 111. 554 ; 93 II!. 77 ; 97 111. 620. («) I Chit. PL 405 ; Gould's PI. 236; 5 Wend. 72; 22 III. 197; 41 111. 115. See 83 111. 526. ((?) 20 Bradw. 366; 2 Tidd's Pr. 740; Gould's PI. (4th Ed.) Ch. 5, Sec. 159; (/) I Chit. PI. 405; Gould's PI. 277; 3 Scam. 201 ; i Gilm. 395; 11 111. 573; 1 Blackf. 3S8; 5 Blackf. 167. ISO ASSUMPSIT. Pleas in abatement — Plea to jurisdiction. The judgrnent for the defendant on a plea in abatement, whether on an issue of fact or in law, is that the writ be quashed ; (o) or if a temporary disability or privilege is pleaded, that the plaint remain without day, until, etc. (/) Section 23 of Illinois ■practice-act. — The law in respect to abatement and amendment, in Illinois, is altered and affected — but to what extent it is difficult to say — by the section above quoted (page 143) of the practice-act of 1872. No. 56. Plea to the jurisdiction. In the Court. Term, 18 — . C. D. ^ ats. > Assumpsit. A. B. ) And the said C. D., in his own person, 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 the said C. D. was, and from thence hitherto has been, and still is, residing in the county of , in the said state of Illinois, 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 ready to verif}^ ; wherefore he prays judgment if the court here will take cognizance of the ac- tion aforesaid. C. D. E. F., Counsel. The second section of the Illinois practice-act of 1872 provides, 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 ( Assumpsit. A. B. ) And CD., (against whom the said A. B. has sued out his said writ by the name of E. D.,) in his own person comes and says, that he is named and called C. D., and by that name and that sur- name 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. C. D. G. H., Counsel. (_y) I Chit. PI. 380; Gould's PI. 222; 22 111. 9. («•) 22 111. 197. (c) Ante, req. of pleas in ab. ; 22 111. z^T- {b) I Chit. PI. 380; Gould's PI. 222; 83 111. 526. See 71 111. 548; 88 111. 296. ASSUMPSIT. 153 Pleas in abatement — Misnomer. In the Court. C. D., sued by the name of E. D., ^ ats. V Assumpsit A. B. J C. D., the de- fendant in this cause, makes oath and says, thai tlie plea hereunto annexed is true in substance and fact. C. D. Subscribed and sworn, etc. The affidavit must be positive ; {c) it is not sufficient to say "to the best of the knowledge and belief" of the af- fiant, {d) It is said that the affidavit must be entitled in the cause ;(«?) but in Illinois it is held that this is unneces- sary 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. PL 903. It appears advisable, it is said, to plead misnomer of the defendant in person, and that coverture of the defendant should not be pleaded by attorney ; {g) 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, {h) If the right name was used in the writ, but the defend- ant 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. {J) (c) I Chit. PI. 403. {d) 23 111. 340. (c) I Chit. PI. 402, (/)4i 111. 115. isr) 3 Chit. PI. 901, o. S)9, n. {k) I Chit. PI. 391 ; Gould's PL 340. (0 20 111. 46. (/) 32 111. 446; 69 111. 341 ; 71 111. 287. See 6S 111. 322. 154 ASSUMPSIT. Pleas in abatement — Misnomer. A county which has adopted township organization can in Illinois only be sued by the name of the board of super- visors, and, if sued otherwise, it is not necessary to plead the matter in abatement. The capacity of a county to be sued is only given by special statute, and the statute must be followed, (k) 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, (w) If the misstatement of a name, in suing on a written contract, causes a variance, advantage may be taken of it under the general issue, (n) A defendant can not plead in abatement because of an alias dictiis added to his name, (t?) 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 following instances it was held that the rule oi idem sonans applied: Sinclair, {or St. Clair; {q) Samuel Headley, for Samtiel Headly, yr.; (r) Little, for Lytle; (5) and McDonald, for McDonnell, {t) But Schoonover and Schoonhoven are not the same ; iiC) and it will not be pre- sumed, without averment, that Bart is an abbreviation of Bartholo7new. (v) Where the name appears to be a foreign one, and there (k) 31 111. 543; 4GiIm. 20. (/) 5 Mass. 97. (m) I Chit. PI. 391 ; 30 111. 151. (w) 4 T. R. 6n ; Chit, on Bills, 6th ed., 353; i Chit. PI. 391, ». ( Assumj>sit. A. B. ) And the said E. F., by G. H., his attorney, comes and defends, etc., and prays judgment of (0 I Chit. PI. 8-392 . (;■) I Chit. PI. 392, 393; Gould's PI. 257. (^k) 1 Chit. PI. 7, 8; Gould's PI. 256. (/) Gould's PI. 257, 258; I Chit. PI. 393; II 111. 22; 17 111. 302. (tn) II 111. 22. («) I Chit. PI. 32, 393; Gould's PI. 255; I Scam. 557; 16 111. 369; 18 111. 37 ; 50 111. 132 ; 67 111. 207, 317. (o) I Chit. PI. 32; 16 [11. 369. -^5 to fresumj)., see Gould's PI. 260. iP) I Chit. PI. 75, 393; Gould's PI. 261. ASSUMPSIT. 159 Pleas in abatement — Misjoinder. 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 KIF. jointly with the said C. D. : And this he the said E. F. is ready to verify ; where- fore 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. 57.) As to a misjoinder of plaintiffs or defendants, in actions on contracts, at common law advantage may be taken of the mistake as well under the general issue as by plea in abatement; {q) and this is the law in Illinois, as regards ■plaintiffs, (r) 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 part- ners or joint obligors or payors, -whether 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, unless such proof shall be rendered necessary by pleading in abate- ment, or unless the defendant shall file a plea in bar deny- ing the -partnership or joint liability or the execution of the instrument sued upon, verified by affidavit." (5) This enactment differs, in the respects indicated by the words in italics, from the former law, under which all the cases on this subject heretofore adjudged were decided, {t) 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 abate- ment — since though a party may well by his sworn plea deny that he made the alleged promises jointly with an- other, it may often be impossible for him to say on oath . {q) Gould's PI. 255, 260; as to nonsuit, I Chit. PL 8, 34; 78 111. 234. (r) Rev. Stat. (1877) 130; 43 111. 323; 32 111. 489. {s) Rev. Stat. (1874) 779; Rev. Stat. (1877) 738; 78 111. 205. (/) 2 Gilm. 715 ; 12 111. 124; 21 111. 524; 23 111. 340; 37 111. 76. i6o ASSUMPSIT. Pleas in abatement — Another action pending, etc. — Replication. who did make them, and thus to give the plaintiff a better writ — it is presumed that such misjoinder will seldom be pleaded in abatement. In actions for torts ^ advantage of a misjoinder of flaint- iffs may also be taken either by plea in abatement or under the general issue ; {ii) but if several persons are sued for a lort committed by one of them only, no advantage can be taken of it, as a misjoinder, in any way. {y) No. 61^. Pica of another actioti fending for same cause. In the Court. Term, 18 — . CD. ^ ats. > Assumpsit. A. B ) And the said C. D., by G. H., his attorney, comes and defends, etc., and prays judgment of the said writ, because he says, that before the commencement of this suit, to wit, on the day of , in the year 18 — , the said A. B. impleaded the said C. D. in the said Court of the said county of , in the state of Illinois aforesaid, in a certain plea of trespass on the case on the very same promises in the said declaration in this present suit mentioned ; as by the record thereof remaining in the court last aforesaid more fully appears : And the said C. D. further says, that the parties in this and the said former suit are the same, and not other or different persons, and that the said former suit is still pending in the court last aforesaid. And this he the said C. D. is ready to verify; wherefore he prays judgment of the said writ in this suit, and that the same may be quashed, etc. G. H., Attorney for Defendant. (Add affidavit, as ante. No. 57.) No. 64. Replication to No. 6"^^ — Nul tiel record. {As in No. 58, 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 («) Gould's PI. 258; see i Chit. PI. 55; 32 111. 4S9. (v) I Chit. PI. 74; Gould's PI. 261; 42 111. 73; 45 111. 145. ASSUMPSIT. i6i Pleas in abatement — Another action pending, etc. — New assignment. plea alleged : And this the plaintiff is read}- to verify, when, where and in such manner as the court here shall order, etc. L. M., Attorney for Plaintiff. The plaintiff may reply mil ticl 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, [w) A^o. 65. Rcflication to No. 63 — Kezv assignment^ that suit is for different causes of action. {As in JVo. 58, ante, to the asterisk:^ because he says, that he sued out his said writ, against the defendant, and declared thereon, not for the non-performance of the prom- i.ses in the said plea mentioned, and in respect whereof the supposed former suit therein also mentioned is so pending as atbresaid, but for the non-performance of other and dif- ferent promises made by the defendant to the plaintiff in manner and form as he has above thereof complained against the defendant : And this the plaintiff is ready to \ crify ; wherefore, etc., he prays judgment, etc. L. M., Attorney for Plaintiff. The pendency of a proceeding under the mechanic's lien law of Illinois, («) or of a prior suit by 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 de- fendant was personally a party to the suit ; {b) 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, {c) In England, the pendency of a prior action in an inferior (w) 2 Swan's Pr. 652, a. See i Esp. 452. {a) 3 Scam. 201 ; 75 111. 385. (^b) 3 Gilm. 128; 7 Verm. 123; 8 Mass. 456. (ending between the same parties, {ii) The plaintiff can not, after a plea of a prior action pend- ing, avoid the effect of the plea by discontinuing the prior action. (^ Assumpsit. A. B. } And the defendant, by E. F., his attorney, comes and defends the wrong and injury, when, etc., and says that he did not promise in manner and form as the plaintiti' has above thereof compLained against him ; and of this he puts himself upon the country, etc. Affidavit of merits. In llhnois, where the plaintiff files with his declaration an affidavit of his claim, the defendant must file with his plea an affidavit of merits ; (■) Steph. PI. 334; Com. Dig. PI. C. 22, 17, E, 5, F. 17; 30 III. 404. \k) Steph. PI. 342; 25 Barb. 457; 8 Barb. 569; 4 Sanf. 6S1. (/) Steph. PI. 346; 8 Ohio, 293; 15 Texas, 437. (»0 Steph. PI. 349. g ja oh^- 67 %~ [S^^^^v^xfofc^y («) Steph. PI. 353. (o) Steph. PI. 354: 3 Diier, (N. Y.) 614. (/) Steph. PI. 377; 20 Mo. 229; 10 Ind. 485; 2 E. D. Smith, (N. Y.) 50. 172 ASSUMPSIT. Special pleas in bar. selves, that construction should be adopted which is most unfavorable to the party pleading, {q) 6th. Pleadings must not be by way of recital, but must be positive in form, (r) 7th. Things are to be pleaded according to their legal effect or operation. (5) 8th. There must be no departure in pleading. (^) 9th. Surplusage is to be avoided, {ti) 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, {v) A special plea in bar, which commences as an answer to the whole declaration, and answers only one count, is bad. [2v) Every plea must answer all that it assumes to answer, and no more, (a-) Pleadings must not be double. Du- plicity consists in alleging two or more disdnct matters, each of which would be as effectual an answer as all. [y) The introducdon of matter of inducement or surplusage, not a defense of itself, will not constitute duplicity, {z) A special plea admits every material allegation except (y) Staph. PI. 378; I Gilra. 654; 15 111. 55S; 10 Cal. 317; 2 Met. (Ky.) 227; 16 Ala. 742; 5 Cal. 49; 36 111. 49; 45 111. 246; 51 111. 373- (rj Steph. PI. 388, and cases cited; 17 Texas, 41 ; 9 Cal. 33, 59. (5) Steph. PI. 3S9, and cases there cited. (/) Steph. PI. 410; I Hemp. 221 ; 32 Miss. 359. (uj Steph. PI. 442; 20 Mo. 229; 33 111. 30S. (v) 3 Scam. 423 ; 5 Clarke, 460 ; 5 McLean, 267 ; 4 Zabr. 333 ; 2 Ind. 126 ; 32 111. 325; 75 111. 285. (w) 3 Scam. 1S7; 4 Gilm. 443; 13 Ind. 151; 28 Ala. 668; 30 Ala. 562; 31 Ala. 542; II Ind. 268, 327, 509, 527; 10 Humph. 151; 5 Md. 376; 31 111. 490. See 32 111. 505 ; 76 111. 488 ; 73 III. 574 ; 81 111. 353 ; 68 111. 226 ; 88 111. 66. {x) 3 Scam. 38, 91, 144, 187; 2 Gilm. 378: 4 Ind. 45; 31 111. 490; 32 111. 211 ; 37 111. 484; I Chit. PI. 453. (jK 14 Pick. 156; 14 Mass. 157; 4 Ind. 409; 33 Miss. 474; 13 Pick. 222; 34 Miss. 688; 2 Hilton, (N. Y.) 389; 20 Ark. 495; 23 Conn. 134; 4 Zabr. 333> 697; I Chit PI. 456; Gould's PI. 389. bo 111. 529. {z) ld.;4 Zabr. (N. J.) 333; Gould's PI. 395, 397; i Chit. PI. 456, 465. ASSUMPSIT. 173 Special pleas in bar. the one put in issue, (a) A distinct averment, which can be stricken out without injuring the other averments, will not vitiate a pleading, (d) unless it renders the pleading double. The allegations of the plea and the proof must correspond, (c) Almost anything which goes in discharge of a promise is admissible in evidence under the general issue, (d) So any matter which shows that the plaintiff never had a cause of action may be given in evidence under the plea of non assumpsit ; and most matters in discharge of the action, which show that at the commencement of the suit there was no subsisting cause of action, may be taken advan- tage of under this issue, [e] Where assumpsit is brought for the non-performance of a contract, the defendant may show under the general issue that he offered to perform his part of the contract, but was prevented by the act of the plaintiff, (y) A valid agree- ment to enlarge the time of performing a contract may be given in evidence under the general issue, {g) Payment may be given in evidence under the general is- sue ; but if it is intended as matter of set-off, it must be pleaded specially, or notice must be given with the general issue, {h) A plea is defective 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) 10 Mass. So; 56 111. 42; 65 111. 390; Gould's PL 317; 72 111. 343. {b) 17 Pick. 87; 14 Pick. 156; 12 Mass. 434. (c) 36 Miss. 458; 23 Texas, 621 ; 21 III. 85; 24 III. 347. {d) 7 Cowen, 27S. (c) 13 Johns. 56; I Chit. PI. 419; Gould's PI. 304; 83 III. 232. (/I 13 Johns. 56, 57. {g) 5 Cowen, 497. (A) I Johns. 531. («•) 50 111. 88. 174 ASSUMPSIT. Special pleas in bar — Pleas, etc., as to part — Similiter. When a law of another slate is relied on for a defense, it must be pleaded, (y) (See the observations under the head of the general is- sue, ante, and the additional cases {k) mentioned in the note below.) Pleas, etc., as to a -part, etc. — It is to be observed, that a plea which only contains an answer to a part of the dec- laration must be qualified accordingly in the commence- ment ; 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 ex- cept 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 dec- laration mentioned," (or as the case may be,) "the defend- ant says that the plaintiff' ought not to have his aforesaid action," etc. In like manner, a replication may commence : "And as to the said plea of the defendant 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 decla- ration 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 -pleas, etc. — When the defendant pleads only one plea, concluding to the country, the issue is made up by adding, at the end of the plea, the common similiter, in these words : "And the plaintiff does the like." When however there are several pleas, some concluding 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," "thirdl3s" etc., "above pleaded," etc. This applies also to the mak- (/) 24 111. 293 ; 35 111. 424. (>&) 33 III. 476; 36 111. 174; 37 111- 260; 3S 111. 303; 39 111- 79; 43 111- 155, 207; 46 III. 25; 4S III. 13S; 52 111. 343. ASSUMPSIT. 175 Special pleas in bar — Statute of limitaticns. ing up of issues on replications, rejoinders, etc., concluding to the country. JVo. 69. Special similiter to -plea. In the Court. Term, 18 — . A. B. ^ vs. > Assumpsit. C. D. ) And the plaintiff, as to the plea of the defend- ant by him first above pleaded, and whereof he has put himself upon the country, does the like. No. 70. Pica 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 suhseqiieni pica., commence as follows :) 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, be- cause he says, (*) that the several supposed causes of action in the said declaration mentioned did not, nor did any or either of them, accrue to the plaintiff 2X any time within five years next before the conmiencement of this suit, in manner and form as the plaintiff has above 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 action 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 in- jury, 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 {actio non accrevit, etc.,) is necessary whenever it is desired to plead that defense to a declaration containing a count on a cause of action which did not accrue until after the mak- ing of the contract — as on a promissory note, for example ; and it will sutlice in all cases, though in indebitatus as- sumpsit, and in other instances where the statute begins to run trom the time of the promise, it is proper to plead that 176 ASSUMPSIT. Special pleas — Statute of limitations — Replications, etc. the defendant did not at any time within live 3'ears, etc., promise, etc. {iioti assumpsit iiifra, etc.) {a) The italicized words, to the -plaint iff .^ are to be omitted in actions at the suit of executors, etc. JVo. 71. Replication to No. 70 — Causes of action did accrue -within jive years. (Similiter to general issjie, if pleaded, as ante, No. 69 ; if not, entitle first replication as in that form.) And the plaintiff, as to the plea of the defendant by him secondly above pleaded, says that he, the plaintift", by reason of any- thing in that plea alleged, ought not to be barred from hav- ing his aforesaid 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 commence- ment ol this suit, in manner and form as he has above com- plained 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 original cause of action, and within the time limited by the statute ; {p) though it is said a special repli- cation is in general advisable, because it reduces the proof to be adduced by the plaintiff' on the trial, (c) No. 72. Special similiter, to replication concluding to the country, [cc) In the Court. • Term, 18 — . Assumpsit. And the defendant, as to the said replication of the plaii.jtfto the ^-dXd^ second plea of the defendant, and which the plaintiff' has prayed may be inquired of by the country, does the like. (a) 3 Chit. PI. 940, 941, notes; i Saund. t,-}^., n. 2, 2S3, n. 2; Id. 63 d\ 1 Saund. 63 c, n. 6; 16 East, 421. (Z*) I Cliit. PI. 502; 3 Swan's PI. 699, C. (c) I Chit. PI. 503. {cc) Auie, page 174. ASSUMPSIT. 177 Special pleas — Statute of limitations — Replications, etc. No. 73. Bcflication to No. 70 — Defendant was out of the state zvhen causes of action accrued. {As in No. 71, to the asterisk, a7id 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, afterwards, to wit, on, etc., returned to this state ; w^hich said return of the defendant was his first return to this state after the ac- cruing of the several causes of action aforesaid : And the plaintiff further says, that he commenced his said action within five years next after the defendant's first return as aforesaid to this state after the accruing of the said seveial causes of action. And this the plaintifl is ready to verify; wherefore he prays judgment, 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. {d) No. 74. Rejoinder to No. 73, denying that action was commenced within five years after defendanfs rcttirn, etc. (Similiter, as ante, No. 72, to any replication or replica- tions there may be concluding to the country. If none, en- title 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 afore- said 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 tliis state after the accruing of the said several supposed causes of action, in manner and form as the plaintifY has above in that replication alleged : And of this the defendant puts himself upon the country, etc. Under the former law of Illinois, in respect to personal actions, if a person against whom there was a cause of () 8 Watts, 39, 9 Watts, 179 ; 2 Camp. 594; 5 Taunt. 148; I Scnm. 213. (/) 3 Scam. 538; 2 Stephen's N. P. 538; 15 111. 230; 16 111. 28; 87 111. 570; 117 111. 458. (w) I Gilm. 15 ; I Scam. 462 ; 3 Scam. 298 ; 16 Ind. 365 ; 70 111. 91. (n) 5 Gilm. 273; 3 Gilm. 227 ; 16 Bradw. 555 ; Ii8 111. 613; 32 111. 207 ; 42 111. 500; 48 111. 408. (o) I Chit. PI. 571 ; 15 111. 28; II 111. 28, 644; ID Iowa, 23; 5 Min. 155. (/) II 111. 28, 644; 16 111. 28, 269, 489; 4 Gilm. 136; 5 Gilm. 273; Breese, 143; 36 111. 49, 53; 105 111. 470; 92 a. S. 362. {,/) 16 111. 269 ; 15 111. 231. See 85 111. 503. ASSUMPSIT. 207 Special pleas — Set-ofF — Observations. 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 assignment, such demand, or so much thereof as may be necessary, should be pleaded specially, under the stat- ute, and not as a set-ofT. (5) The words "claims or demands," as used in the 17th section of the Illinois . practice-act of 1827, embrace all claims or demands arising out of contracts, whether ex- press or implied. (/) Section 29 of the act now in force is substantially the same. (?^) Mutual demands arising out of the same subject-matter, and capable of being balanced against each other, may be adjusted in one action, by recoti^mcnt. It is not necessary that the opposing claims should be of the same character. A claim originating 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, iv) 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 plaintitT, or to any former holder of the note, which is a legitimate svibjcct of set-off; and the ex- (r) 85 111. 435 ; 8 N, H. 539; 33 N. H. 310; I Chapman, 180. See Water man on Set-offs, § 237 ; 18 Br.idw. 4S5 ; I4 Bradw. 490. {s) 35 111. 142. [t) 3 Scam. 299 ; I Scam. 462. {ti) Rev. Stat. (1S77) 73S ; 2 Starr & Curtis' An. Stat. 1791. (v) 14 111. 424; 115 111. 544; 20 Bradw. 113. 2o8 ASSUMPSIT. Special pleas — Set-off — Observations. cess only of the defendant's claim shall go in bar of the action, (zf) An amount not due, claimed as a set-off to a former suit, and not allowed, may, after it becomes due, be recov- ered, (.y) A court has discretion to allow items of set-off that have been withdrawn to be again filed, (y) A judgment recovered after action brought, and after plea pleaded, can not be set off against the plaintiff's de- mand, {z) A defendant is not bound to set off his debt against the plaintiff's demand, except in suits before a justice of the peace. (a) The personal debt of an executor or administrator can not be set off against a debt due to the estate, (d) In an action to recover a debt accruing to an adminis- trator after the death of the intestate, the defendant can not set off a debt which was owing to him from the intestate in his life-time, (c) 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, (d) A note payable in mason-work is not assignable 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. ( e) Where the plaintiff brought an action of assumpsit against (w) 12 Ind. 413 (*; 19 111. 55; i4Pick. 315, 318. (j) 22 111. 9. {z) I Scam. 135. (a) I Scam. 214. See 11 111. 563. (3) 52 111- 342- ((■) 14 111. 338 ; 107 111. 264. (d) I Scam. 214; II Iowa, 8l. (e) I Scam. 291 ASSUMPSIT. 209 Special pleas — Set-oflf — Observations. 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 no- tice, either by way of set-off or in reduction of damages, that a part of the goods, had been lost or destroyed on tlie voyage by the carelessness or negligence of the plaintiff. (_/) The defendant can not be allowed a set-off, nor can ac- counts between the parties be adjusted, in an action of trover. ( g-) In pleading a set-off, the defendant assumes the attitude of a plaintiff, and is bound to prove the same facts in rela- tion to his demand as if he had instituted an action upon it. (A) Where bank-notes were introduced by way of set-off, in a suit where the bank was plaintiff, it was held that the de- fendant must prove that he held them when the suit was commenced, (z) A banker can not set off a demand he holds against the presenter of a check on such banker, (j) A claim against a plaintiff in a representative capacity, can not be set off in a suit brought in his individual capac- 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 payee. (/) In a suit on a note assigned after maturity, a set-off against the assignor is allowed, (m) But the demand of the maker against the payee should in such case be pleaded specially, and not as a set-off. («) (/) I Scam. 462. iff) 12 111. 99. (/i) I Gilm, 649; 117 111. 45S. (i) I Gilm. 649. (7)43111.497; 105 111. 470. (i) 9 Pick. 265. (/) 3 Ind. 412. (w) II Wend. 504; 19 Wend. 397. («) 35 111. 142. 14 2IO ASSUMPSIT Special pleas — Release. In an action by a surviving dormant partner, the defend- ant may set off a debt due from the partnership, (o) Courts of equity will sometimes interfere to set off one judgment against another, if a party is unable to enforce his judgment at law. {p) An order drawn by the mayor of a city on its treasurer, commonly 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, (g) A set-off is not allowable in a proceeding by scire facias for foreclosure, (r) or in debt on a judgment. (/) But as to suits on judgments, etc., in Illinois, see section i8, above referred to, of the practice-act of 1872. The defendant may plead a set-off in a proceeding by dis- tress for rent, [v) The additional Illinois cases noted below may be con- sulted on the subject of set-off. {u) No. 92. Pica of release. (As in No. 70, ante, to the asterisk^ and then ■proceed :) that after the making of the several promises in the said declaration mentioned, and before 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 plaint- iff^ then had against the defendant, or might thereafter liave 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 zvilh a verification., as in No. 70, ante.) (o) 10 Ohio, 455. (/) 3 Gilm. 626; 12 111. 89. See 39 111. 172; 33 111. 465; 35 111. 512; 38 111. 27. ((7) 2 Gilm. 241. (r) Hill- 213. (5) 14 111. 75- (0 17-111- 572- {v) Rev. Stat. (1874) 660; Rev. Stat. (1S77) 629; 86 111. 560. (m) 3 Scam. 367; 16 111. 269; 19 111. 631; 20 111. 65, 497; 21 111. 180: 22 111. 257; 27 111. 29.S; 3^111- 505. 538; 34 111- 494; 37 111. 317; 39 111. 3SS; 44 111- 339. 342; 86 111. 26S; 81 111. 381. ASSUMPSIT. 21 1 Special pleas — Release — Observations — Replication. In debt on simple contract, say " 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 partic- ular form of action. (In any pleading where it is meant to dispute the valir* ity of the contract or promise set up on the other side, it is proper to refer to such contract or promise by the term ^'■supposed,'" e. g., "the said supposed promise," etc. ; or a deed or other instrument maybe referred to as "the said writing ;" and in like manner alleged trespasses or griev- ances may be referred to as "the said supposed trespasses,'' etc.) A release may be given in evidence under non assjcmpstt, or pleaded with it ; [a) but in debt on a specialty it must be pleaded, {b) Where a release has actually been given, it is sometimes 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, ma}' be proved under the general issue, although there is also a special plea in which the ground of defense may not have been correctly set forth, {c) For a form of general release, at full length, see the prec- edent of a plea of release in 3 Chitty's Pleading. JVo. 93. RefUcation to No. 92 — non est factum, (^As in No. 71, 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 country, etc. (a) I Chit. PI. 418; 3 lb. 931, o. (*) I Chit. PI. 426. (c) I Chit. PI. 419. 212 ASSUMPSIT. Special pleas — Release — Observations. 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. 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, (fi?) But in the case reported in vol. 44, Illinois Reports, p. 405, the court, after observing that there are facts in that case which v Mely dis- tinguish it from two former cases in which the court had adhered to the above rule, {e) 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 several obligors shows upon its face, and in connection with the circumstances, that it was 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 instrument shall be construed as a covenant not to sue ;" and the court quotes from Parsons on Contracts, vol. I, p. 24, that " though the word release be used, even un- der seal, yet if the parties (the instrument being considered as a whole, and in connection with all the circumstances of the case and the relations of the parties) can not reason- ably be supposed to have intended a release, it will be con- strued as only an agreement not to charge the person or party to whom the release is given, and will not be per- mitted to have the effect of a technical release ; for a gen- eral 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 obliga- (rf) 4 Gilm. 536; 18 111. 331 ; 5 Bac. Abr. 702 G; 2 Salk. 574; 6 Vesey, Jr. 146. Ce) 4 Gilm. 536; 18 111. 331. ASSUMPSIT. 213 Special pleas — Release — Observations. tion. (y) 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 reserved, the release should be construed as a simple covenant not to sue, leav- ing the liability of the co-obligors unimpaired. "The rea- son of the rule failing, the rule itself should cease, the more especially when its application would work injustice." One of several joint pa^-ees or obligees may receive pay- ment 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 exe- cuted by one of several joint obligees, it must be the inten- tion 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, {g) A release is to be construed according to the particular purpose for which it was made, and a particular recital in such an instrument will restrain its general words, {h) A release under seal may be pleaded in bar of a demand for a larger sum than was paid to obtain the release. (/) When made for a sufficient consideration, a release not under seal is binding, ij) An agreement to extend the time of payment ot a debt, without an agreement not to sue, does not bar a suit for the (/) 66 Eng. C. L. 536; 93 id. 215; 2 B. & B. 46; 6 Johns. Ch. 242; 5 Gill & Johns. 351; 5 Duer, 116; 23 Pick. 444; R. M. Charlton, (Geo.) 267. iff) 50 III- 332- (//I 8 Clark (Iowa), 304. (/■) 20 111. 203; Com. Dig. Release, E, 2, > 0')4Gilm. 536; 37 111- 484- 214 ASSUMPSIT. Special pleas — Release — Observations. debt, commenced before the expiration of the extended time, (k) but such agreement is pleadable in abatement of the suit. (/) A covenant not to sue is in equity a re- lease, (m) In a case where the defendant, a railroad company, re- lied upon a release under seal, it was held that if the plaint- iff executed the release under the belief, induced by the representations, words or acts of the defendant's agents, that it merely covered a month's time, or wages, such re- lease 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 re- leased; (o) and such former recovery may be given in evidence under the general issue, (p) But where the con- tract is several as well as joint, separate actions may be prosecuted upon it against the several parties liable, until satisfaction is obtained, {g) The additional Illinois cases noted below may be con- sulted on the subject of release generally, (r) and on the particular subject of the release of sureties. (5) (k) 9 Iowa, 140. (/) 53 111. 307. See I Chit. PI. 393. (;«) 29 Conn. 25; 20 Tex. 310. («) 52 111. 183. (o) 2 Gilm. 355; 15 111. 415; 19 111. 347; 28 111. 163; 15 Mass. 148; il Gill & Johns. 11 ; 5 Blackf. 558. (/) 2 Gilm. 355; 5 Monroe, 236; 6 lb. 284; 2 Hill, 580; 6 id. 124; 7 Cranch, 565. (^) 19 111. 347; 1 Chit. PI. ^^; i Greenl. Ev., sec. 439, a. (r) 3 Gilm. 243 ; "14 111. 447 ; 17 111. 40 ; 20 111. 165 ; 31 111. 422, 437 ; 42 111. 261; 43 111. 134; 44 111. 339; 46 III. 160; 47 111. 350; 48 111. 164; 54 111. 193. (5) 3 Scam. 177; I Gilm. 409; 2 Gilm. 570, 638, 731; 11 111. 341, 352; 13 111. 347, 376; 16 111. 166; 17 111. 278, 404, 565 ;*I9 111. 103; 20 111. loi ; 22 111. 525) 533; 23 111- 64; 24 111. 97, 206; 26 111. 282, 469; 27 111. 29, 173, 215, 323; 28 111. 481 ; 31 111. 250, 25S, 400; 32 111. 399; 34 111. 424, 488, 504; iS ^11- 40; 36 111. 306; 39 111. 79, 251 ; 43 111. 134; 44 111. 499; 46 111. 42S; 48 111. 329; 49 111- 370, 409; 52 111- 210; 53 111. 126; 54 111. 159. ASSUMPSIT. 215 Special pleas — Payment — Observations. No. 94. Pica of fayment. {^First flca^ non assumpsit, as ante, JSfo. 66 ; second flea as in Ho. 70, ante, to ike asterisk., and then proceed :^ that after the making of the several promises in the said decla- ration 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 declaration mentioned, in full satisfaction and discharge of the said several promises and of the sums of money last aforesaid : And this, etc. {conclude -with a verijication, as in No. 70, ante.) In order to adapt this plea to an action of debt on simple contract, it will be sufficient to substitute the word contracts for the wovd 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 commencement that the plaintiff "ought not further to maintain his aforesaid action," etc. (^) The above form, substantially, of the plea of payment is believed to be the one generally used, but it seems rather to be a plea of accord and satisfaction than of payment. No precedent of a plea of payment in assumpsit, or in debt on simple contract, is found in Chitty on Pleading, proba- bly for the reason that it was not usual in England to plead this defense specially 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 defend- ant" — substituting these words for those between the aster- isk and the conclusion in the above precedent. (/) See forms, 2 Swan's Pr. 702-706. 2i6 ASSUMPSIT. Special pleas — Payment — Replication — Observations. No. 95. Replication to No. 94, denying the -payment. (As in No. 71, 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 man- ner and form as the defendant has above in that plea al- leged : 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 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.) Payment may be given in evidence under the general issue in assumpsit, and in debt on simple contract, {u) but in debt on a specialty it must be pleaded, {y) Under the plea of payment, the defendant may, by prov- ing payment in full, defeat a recovery altogether ; and by showing pardal payment he may defeat it -pro tanto. (w) A payment to a nominal plaintiff is not a satisfaction of the debt, {pc) Where a person makes a payment of money, he is bound to know whether the person to whom the payment is made is authorized to receive it. If he who has paid money could have successfully resisted a suit brought by the per- son to whom he has paid it, then such payment is not good ; and tliis is the true test of the validity of a payment, (jy) A receipt in full of all demands is evidence prima facie {tc) 1 Chit. PI. 417, 418, 421, 422; Gould's PI. 304-306; Greenl. Ev., sec. 516; 16 111. 21 ; 6 Blackf. 319; 12 Ohio, 12a {v) I Chit. PI. 426; Gould's PI. 303. («') 3 Scam. 427; 9 Bradw. 528. (x) 12 111. 137- ( V) 12 111. 424; 43 111. 220; 45 III- 460; 92 Til. 192; 45 III- 213; "o III. 542; 112 111. 572. ASSUMPSIT. 217 Special pleas — Payment — Observations. of the payment of all notes and claims existing at the time the receipt is given, (z) 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, {a) Where notes of third persons are placed in the hands of a creditor as collateral security, but are not paid, the per- son depositing them can claim no credit for the amount due by such notes, (d) A payment to one of several partners is a payment to all, unless such payment to the one is strictly forbidden by the others, (c) The giving of a bond in satisfaction of a judgment is in law a payment of such judgment, (d) A payment in good faith to an agent of the creditor, au- thorized to receive it, is a payment to the creditor, even though the agent misapplies the amount received, (e) A payment may be in goods as well as in money. {/") The giving of a new note is a payment of a former one. ig) When a debtor gives a note to his creditor for a debt due on simple contract, the presumption is that the note is re- ceived in payment, though this presumption may be con- trolled by evidence that this was not the intent of the parties, {/i) {z) I Scam. 270; 4 Gilm. 354; 12 111. 281 ; 14 111. 37, 198. (a) 2 Scam. 347; 5 Gilm. 449; I Scam. 196; 7 Bradvv. 47; 103 111. 605; 29 111. 308; 32 111. 382. See 2 Greenl. Ev.. sees. 530, 533; 12 111. 159; 4 Scam. 136; 30 111. 276; 3i'Ill. 350; 39 111. 313; 53 111. 419; 60 111. 380. {i>) 27 111. 105. See 84 111, 183. (c) Brcese, 143. See 24 111. 154; 114 111. 388. (rf) 27 111. 434; 15 111. 159. See 115 111. 427. {e) 3 Ind. 407 ; 3 Ohio, 275 ; 8b 111. 446. (/) 2 M. & W. 467 ; 14 Ohio, 497. See 17 111. 40; 22 111. 244. iff) 4 Pick. 444;'2 Metcalf, 147; 19 III. 207. See i Scam. 154; 24 111. 154; 16 III. 161 ; 33 111. 344; I Bradwell, 280; 71 111. 463 ; 68 111, 604. (A) 2 Metcalf, 76; 10 Pick. 522; 11 Pick. 125; 8 Pick. 122, 522; 2 Met- calf, 168, 173; 12 Pick. 268; 6 Mass. 143; 81 111. 221 ; 8 Bradw. 534; 98 111. 27 ; 112 111. 105. 2i8 ASSUMPSIT. special pleas — Accord and satisfaction. Under the plea of pa3'ment, evidence of set-off, or of matter in recoupment, is inadmissible. (?') See fm-ther, on the subject of payment, the additional Illinois cases noted below. {J) JVo. 96. Pica of accord and satisfaction — Delivery and acceptance of goods. {As in JVo. 70, ante, to the asterisk, and then proceed :) that after the making of the several promises in the said declaration mentioned, and before the commencement of this suit, to wit, on, etc., in, etc., he delivered to the plaint- iff, and the plaintiff accepted of him, the defendant, two thousand bushels of wheat, of the value of dollars, in full satisfaction and discharge of the said several promises and of all the sums of money in the said declaration men- tioned : And this, etc. {conclude with a verification, as in No. 70, ante.) Some of the precedents of this plea omit the statement as to the value of the property delivered, {k) It is not required that the chattels delivered should be of a value equal to the debt, for, as it is said, " tiie party re- ceiving them is always taken to be the best judge of that, in matters of uncertain value. (/) See the observations under forms No. 92 and No. 94, ante, as to adapting the plea to the action of debt on simple contract, or other action. The defense of accord and satisfaction may be given in evidence under the general issue in assumpsit, debt on (/) 19 Ark. 230. See 32 111. 505, 53S. (y) I Gilm. 475; 4Gilm. 521; 13 111. 289; 17 111. 259; 18 111. 483; 20 111. 558; 22 111. 528; 32 111. 344; 34 111. 9; 40'in. 171, 514; 42 111. 336; 43 ill- 372; 48 111. 420; 52 111- 491 ; 53 111- 57> 84; 54 111- 306. (/t) Staph. PI. 218; 2 Swan's Pr. 604. See 3 Chit. PI. 92 f. ( t) Dyer 72, a; 5 B. & Ad. 932 ; 3 N. & M. 167, S. C. ASSUMPSIT. 219 Special pleas — Accord and satisfaction — Replication — Observations. simple contract, {in) and case, {n) but in debt on a spe- cialty, [o] and in trespass, it must be pleaded. ( ;p) No. 97. Replication to No. 96, denying delivery oj ^ro^ei'ty, etc. {As in No. 71, ante, to the asterisk, and then proceed:) that the defendant did not deliver to the plaintili the said two thousand bushels 0/ wheat in the said second plea men- tioned, in full satisfaction and discharge of the several promises and sums of money in the said declaration men- tioned, in manner and form as the defendant has above in that plea alleged : And this the plaintili' prays may be in- quired of by the country, etc. "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." {q) In order to make a good accord it is essential : i. That it be legal. An agreement to drop a criminal prosecution as a satisfaction for an assault and imprisonment, is void, (r) 2. It must be advantageous to the party accepting ; hence restoring to the plaintili' his property, of which the defendant has wrongfully dispossessed him, will not be any consid- eration to support a promise by the plaintiff not to sue him for the injury. (5) 3. It must be certain; hence an agree- ment 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, {t) 4. The (w) I Chit. PI. 417, 421, 422 ; Gould's PI. 304-307. (w) I Chit. PI. 432 ; Gould's PI. 308. (o) I Chit. PI. 426. (/) I Chit. PI. 441 ; 3 Gilm. 99. (q) 3 Black. Com. 15; Bacon's Abr., Accord; 2 Greenl. Ev. 28; 48 111. 32. (/-) 5 East, 294. See 2 Wils. 341 ; Cro. Eliz. 541 ; i Bouv. L. D. 47. (5) I Bouv. L. D. 47; Dyer, 75; 5 East, 230; Str. R. 426; 2 Term R. 24; II East, 390; 3 Hawks, 580; 2 Litt. R. 49; i Stew. R. 476; 5 Day R. 363; I Root, 426; 3 Wend. 66; i Wend. 164; 14 Wend. 116; 3 J. J. Marsh. R. 497- \,t) Yelv. 125; 4 Mod. 88; 2 Johns. 342; 3 Lev. 189; i Bouv. L. D. 1S9. 220 ASSUMPSIT. Special pleas — Accord and satisfaction — Observations. defendant must be privy to the contract. If therefore the consideration for the promise not to sue proceeds from an- other, the defendant is a stranger to the agreement, and the circumstance that the promise has been made to him will be of no avail. {71) 5. The accord must be executed, {e) Accord with satisfaction when completed has two' effects ; it is a payment of the debt, and it is a species of sale of the thing given by the debtor to the creditor in satisfaction ; but it differs from a sale in this, that it is not valid until the de- livery of the article, and there is no warranty of the thing thus sold, except perhaps as to the title, (v) A plea of accord and satisfaction must show an accept- ance of the property alleged to have been delivered in sat- isfaction of the demand, (w) An item of account canvassed and disallowed at a settle- ment of accounts, upon which settlement a note is given, may afterwards be made the foundation of an action or set- off, in the absence of fraudulent representations or practices at the settlement, (x) It seems that an attachment of sufBcient property is, like an execution levied, a satisfaction ot the debt, and may be so pleaded, (y) Where a sum of money is paid in settlement of a disputed claim, in which a greater amount is claimed, it is a good accord and satisfaction, and a bar to a subsequent suit for the balance claimed, (s) Where a party relies on an accord and satisfaction, in (u) Str. R. 592 ; 6 Johns. R. 37; 3 Modern, 302. ((?) 5 Johns. R. 386; 15 Texas, 198; 44 Maine, 121; 3 Johns. Cas. 243; 16 Johns. 86; 2 Wash. C. C. R. 180; 6 Wend. 390; 5 N. H. R. 136. See 4 Scam. 51. (v) I Bouv. L. D. 47, and cases there cited ; 48 111. 32. (to) 3 East, 256; 38 Penn. State R. 147; 4 Scam. 51. (x) IS Ind, 371. (y) 24 111. 326 ; 40 Penn. State R. 490. (2) 89 111. 215; 45 111. 213; 78 111. 44; 4 Bradw. 661; 44 111. 425; i Greenl. on Ev., 305 ; 116 111. 418; 51 111. 373; 8 Iowa, 463; 6 Wis. 175; 22 How, (U. S.) 270; III 111. 328. ASSUMrSIT. 221 Special pleas — Accord and satisfaction — Observations. bar of an action, he must show that the accord has been fully executed, {b) A plea of accord without satisfaction is not a good plea to an action of trespass, [c) 1^0. 98. Pica of accord and satisfaction — Account stated.^ and delivery of defendant^ s -pro^nissory note in satisfac- tion . {First flea, non assumpsit, as ante, A^o. 66.) And for a further plea in this behalf, as to the sum of dollars, {the sum for which the note was given,) parcel of the sev- eral sums of money in the said declaration mentioned, the . defendant says that the plaintiff ought not to have his afore- said action against him, the defendant, because he saj^s, that after the making of the several promises in the said declaration mentioned, and before the commencement of this suit, to wit, on, etc., in, etc., an account was stated between the plaintiff and the defendant, concerning the said several sums of money in the said declaration men- tioned, and upon that accounting the defendant was then and there found to be indebted to the plaintiff in the said sum of dollars ; for which said sum of money the de- fendant then and there made, and delivered to the plaintif!', his promissory note, bearing date of that day, whereby he, the defendant, promised to pay that sum of money to the plaintiff, or his order, after the date of the said i^te ; and the plaintiff then and there accepted the said note for and on account of the said sum of dollars, parcel, etc. ; and by reason thereof the defendant then and there became, and still is, liable to pay that sum of money, according to the tenor and effect of the said note. And this, etc. {conclude with a verification, as in Ho.^o, ante.) In general the payment of a smaller sum can not be pleaded as a satisfaction of a larger. The plea should therefore be pleaded only to the amount of the sum men- tioned in the note or bill, as in the above form, or else it should aver that the defendant was not indebted to the (*) 15 Texas, 198; 44 Maine, 121. See 4 Scam. 51. (c) 28 Mo. (7 Jones,) 397. 222 ASSUMPSIT. Special pleas — Accord and satisfaction — Observations. plaintiff more than that sum. (d) See a precedent in the latter form, 3 Chit. PL, 5th Am. ed. 926. (e) Where the defendant, in his plea, alleged that on stating a balance of accounts he delivered certain negotiable paper to one C, on account and in behalf of the plaintiffs, but did not aver that C. was the agent of the plaintiffs, nor that the paper was accepted in full satisfaction and discharge of the debt due to the plaintiffs, the plea was held bad. (_/") In 3 Chitty on Pleading, p. 1157, note, it is said that "where a note or bill has in fact been given in payment, and is so pleaded, the replication must not traverse the de- livery or acceptance in satisfaction, but must state the dis- honor of such bill when the same became due, and if the defendant were drawer or indorser, should aver that he had notice thereof." See the precedent there given. The replication sometimes -protests the delivery of the goods, etc., and traverses the acceptance, and this is proper where there has in fact been a delivery, but no acceptance in satisfaction. (^) The commencement of a replication with a protestation is as follows : "And the plaintiff, as to the plea of the defendant by him secondly above pleaded, • says that he, the plaintifl^, ought not, by reason of anything in that plea alleged, to be barred from having his aforesaid action, because, protesting that the defendant did not de- liver to him, the plaintifl\ the horses in the said second plea mentioned, as the defendant has above in that plea alleged, — for replication, nevertheless, in this behalf, the plaintifl' says," etc. The only use or effect of a protestation in a pleading is to enable the party making it — in case he succeeds in the point to be tried — to dispute in any other action the matter so protested, {k) {d) 3 Chit. PI., II Am. ed. 926, t. (g) 2 B. & Cres. 477. (/) 2 Johns. 342. See 5 Term R. 513. \g) 3 Chit. PI. 1 156, note. {k) Steph. PI. 218, note; Com. Dig. PI. (N.) ; 2 Saund. 103, a, n. (i); 1 Chit. PI. 533. ASSUMPSIT. 223 Special pleas — Arbitrament and awarJ. JVo. 99. Plea of arbitrament and award, {As in JVo. 70. ante, to the asterisk, and then -proceed:^) that after the making of the several promises in the said declaration mentioned, and before the commencement of this suit, to wit, on, etc., in, etc., the plaintiff and the de- fendant submitted themselves, {here state the mode of sub- mission, -which max have been thiis :) by two mutual bonds of arbitration, bearing date of that day, to the arbitration, and engaged in all things to abide and perform the award and arbitrament, of G. H. and L. M., arbitrators indifTer- ently chosen as well on the part of the plaintiff as of the defendant, to arbitrate and award concerning all actions, causes of action, controversies and demands whatsoever theretofore or then had or existing between the said parties, or by either of them against the other, so as the said award should be made by the said arbitrators, under their hands, and ready to be delivered to the said parties in difference, or such of them as should desire the same, on or before, etc., then next: {If the time for malcing the award was enlarged, here aver tlie enlargement, by consent, etc.) And the defendant further says, that the said arbitrators, before the expiration of the said time limited for making their award, to wit, on, etc., in, etc., took upon themselves the burden of the said arbitration, and having duh^ examined and considered the subject-matter in dispute between the plaintiff' and the defendant, they the said arbitrators did make their award in writintj under their hands, concerninor the premises, and concerning the said promises in the said declaration mentioned, ready to be delivered to the said parties in difference, and did thereby then and there award that, etc., {here set forth the award;) as by the said award, bearing date, etc., reference being thereunto had, will more fully appear. And this the defendant is ready to verify ; wherefore he prays judgment, etc Arbitrament and award may be given in evidence under the general issue ; but it is frequently advisable to plead it, in order to compel the plaintiff' in his replication to take issue on some particular part of the plea, and thereby ad- 224 ASSUMPSIT. Special pleas — Judgment recovered. mit the residue. In debt on a specialty, covenant or tres- pass it must be pleaded specially, (a) The above form can be varied to correspond with the arbitration-bond — or the submission, written or verbal — the facts in relation to the submission and award, and the form of action, {b) No. lOO. Rcflicatioji to No. 99, denying the azvard. {As in No. 71, ante, to the asterisk^ and then proceed :) that the said arbitrators did not make any such award con- cerning the premises, and concerning the several promises aforesaid, 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. See the Illinois statute of arbitrations and awards, and the cases noted below, (c) No. loi. Plea of judgment 7'ecove?-ed. (^As in No. 70, 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 after- wards in that same term, {or in whatever term the judg- ment was rendered,) by the consideration and judgment of the same court, the plaintiff recovered against the defend- ant the sum of dollars, damages, as well as the costs (rt) Bac. Abr., Arbit., G. ; 3 Chit. PI. 927, note; i Chit. PI. 41S, 426, 428, 441. ib) See precedent, 3 Chit. PI. 927. (c) Gross' Stat. 25; Breese, SS, 295, 323; 2 Scam. 34, 4SS; 3 Scam. 245, 322, 429, 453; I Gilm. 92; 2 Gilm. 252, 37S; 11 III. 565; 13 111. 293, 454; 14 111. 58, 370, 392, 466; 15 111- 297, 368, 461; 16 111. 34, 99, 475; 17 III. iii^ 477,53s; 18 111. 437; 20111.111,301,383; 21111.259,553; 22111.300,411; 25 111. 48, 67, 361, 522; 26 111. 216, 295, 305, 460; 27 111. 138, 158, 374; 28 in. 56; 29 111. 90, 433; 30 111. 333, 482; 33 III- 299, 375; 36 111. 100, 439 i 40 111. 267 ; 48 111. 31 ; 50 111. 232 ; 52 111. 427 ; S3 HI- 252 ; 54 111. 205. ASSUMPSIT. 225 Special pleas — ^Judgment recovered — Replication. of the plaintiff' in that behalf, whereof the defendant was convicted ; as by the record thereof still remaining in the same court more full}^ appears ; which said judgment still remains in full force. And this the defendant is ready to v(^rity by the said record ; wherefore he prays 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 trespass," etc. See the observations under the pre- cedents 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 tres- pass, it must be pleaded, {d) If a judgment has in fact been recovered, it is advisable to plead it specially, {e) J\'o. 102. , Replication to JVo. lOi, denying that the causes of action were the same, etc. {As in ]Vo. 71, ante, to the asterisk, and then proceed:) that the several promises in the said declaration mentioned were not, nor were any, nor was either of them, the same or an}^ of or any one of the same promises as those or any or either of those in the said second plea mentioned, and in respect whereof the supposed judgment in the same plea mentioned was recovered, in manner and form as the de- fendant has above in that plea alleged : And this the plaint- iff prays may be inquired of by the country, etc. It would seem that whenever the plaintiff has in truth recovered a judgment, for a cause of action similar to that mentioned in the declaration, and the defendant pleads such recovery in bar, a new assignment is necessary ; (_/') but according to the authority of some cases, the plaintilf {d) I Chit. PI. 418, 422, 426, 429, 432, 441 ; Gould's Pi. 303-311 ; 2 Gilm 355; 6 Monroe, 2S4; 6 Hill, 124. (e) 3 Chit. PI. 929, note, (y) I Esp. 452; 3 Chit. PI. 1213, note. See i Chit. PI. 542, ei sea. 226 ASSUMPSIT. Special pleas — ^Judgment recovered — Observations. may take issue on the allegation that the promises are the same, by a replication denying it, as in the above form, (g-) for which see a precedent, 3 Chit. PI. 1213. A case in 3 Lcvinz's Reports, p. 92, is cited, in which it was held that to a justification in trespass, concluding with a statement that the trespasses mentioned in the plea were those men- tioned in the declaration, the plaintiff could not reply thai they were not the same, without showing some other tres- pass, (/i) See a form of new assignment to a plea in abatement, ajite, No, 63. If the plaintiff wishes to deny the alleged former recov- ery, the replication wall be nul tiel reco7'd, which can be framed from the precedent No. 64, ante. A former adjudication upon the same matters, between the same parties, is a bar to another suit ; (/) but not where there has been fraud in obtaining such adjudication, if the party defrauded is not estopped by want of diligence. (/ ) A judgment on demurrer for defect in the pleadings, or on a nonsuit for want of proof or for a variance, or on a nonsuit by agreement after trial on the merits, will not be a bar to another action for the same cause ; {k) and if such a judgment is 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. {in) 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 ig) 3 B. & Cres. 235 ; 6 T. R. 607 ; 3 Wils. 3-4, [k) 3 Chit. PI. 1213, note. {i) L3 111. 301 ; 14 111. 167; 15 111. 84 ; 16 111. 352; 17 111. 25 ; 39 III. 205; 50 111. 176; 54 111. 79; 102 111. 115; 105 111. 224; 94 111. 52I; 80 111. 25: 14 r.radvv. 55S ; 115 111- 29, (/) 47 111. 2I6. [k) 17 111. 25 ; 19 111. 207; 35 111. 396 ; ID Pet. 301 : 21 Pick. 253; 5 Main , 1S5; I Chit. PI. i79;3Greenl. Fv., sees. 35,36; 85 lil. 420; 105 111. 300; in 111. 53,342. (/j I Chit. PI. 179; I Mod. 207; Vin. Ab. Judgt., O. 4; Bl. Rep. 831. [m) 17 111. 25 ; 74 111. 306, ASSUMPSIT. 227 Special pleas — ^Judgment recovered — Observations. parties ; («) thus a judgment against one member, for a debt due from the partnership, is a bar to a recovery against the other members. (y 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 de- livery of the said note as aforesaid, there had notice; (*j and that when {or "before," or '• after," «5 //^6? case may be,) the said note became due, to wit, on, etc., the plaintiff, at the request of the said C. D., and in consideration {here 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, urrtil the day of then next ensuing, with- out the knowledge or consent ot him the said E. F. ; by reason whereof he the said E. F. became discharcjed from (c) 4 Ind. loi. See 22 III. 127. {d) 36 111. 513. (e) 9 Pick. 539; 13 Mass. 235, 236. (/) 2 Scam. 61 ; 4 Scam. 186, 202, 305; z Gilm. 679; 11 111. 241, 254; 18 111. 333; 21 111. 4S1; 22 111. 130; 26 111. 396; 27 111. 93; 28 111. 304; 35 111. SS, 452, 455; 39 111. 87, 228, 354, 36S; 40 111. 171, 368, 371; 41 111. 19, iSo, 207; 42 111. 78; 43 111. 372,462; 44 111. 135, 264; 46 111. 173, 35 1, 392; 47 111- 354; 48 111. 3«S; 50 111. 290. ASSUMPSIT. 235 Special pleas — Plea«bj surety — ODserrations. all liability upon the said note. And this he the said E. F etc. {conclude with a vcrijication, as in JVo. 70, ante.) It seems this defense may be proved under the general issue, {a) Matters afTecting the surety only, should be pleaded by him alone, {b) To the above plea the plaintiff may reply that the de- fendant did not execute the note as surety ; or that there was no such agreement as therein alleged ; or that the giv- ing of lurther day of payment was with the knowledge and consent of the surety, or was ratified by him. In England the rule is said to have prevailed, that the remedy of the surety, where further day of pavment 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 fol- lowed the same rule. But the weight of authority, in this country, 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 h : appears as a prin- cipal in the contract, [c) A person who signs a bond as surety with another, who appears to have signed the bond, but whose name thereto has been forged, will not be liable on suclf bond, (d) Where a note is taken, with personal security, and at the same time other security therefor — as for in^ance a mortgage 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, [e) The contract of a surety is to be construed strictly, both (a) 20 111. 148. {b) 50 111. 88. (c) 27 111. 323 ; 32 111. 399 ; 46 111. 428 ; 21 Pick. 195 ; 9 Met. 511:5 Denio, 509; 5 Ham. 207; Pars, on Notes, 233. (rf) 27 111. 173. Ke) 46 111. 428. 236 ASSUMPSIT. Special pleas — Plea by surety — Observations. at law and in equity, and his liability is not to be extended by implication beyond the terms of his undertaking, as un- derstood when the contract was made. {/) It is a general rule that mere delay to sue does not dis- charge the surety ; [g) but where a creditor, without the assent of the surety, gives farther time of payment to the principal, the surety is discharged, both at law and in equity, [h) A promise to delay the collection of a debt for an uncer- tain 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. {J) But an equitable estoppel may sometimes result, which will pre- vent a recovery against a guarantor, where an agreement has been executed, although there was no consideration for such agreement, {k) 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 sub- sequently ratifies it. (/) To enable a surety to interpose the defense to a note that further time was given to the principal, it is not necessary that his name should appear upon the note as surety. It will be sufficienfif he was actually a surety, and this was known to the payee when the note was given ; {m) and the (/) I Scam. 35; 3 Scam. 123; I Gilm. 5S1; 2 Gilm. 570; 14 111. 20; 27 111. 323; 10 Braclw. 318; 14 Bradw. 439. (g) Breese, 203;. II 111. 341, 352; 15 Ind. 45 ; 2 Pick. 581, See 26 111. 469; 10 Bradw. 330; 72 111. 301. {h) I Gdm. 409; 21 111. 129; 32 111. 399; 24 Texas, 383; 49 111. 370. See 35 111. 40; 53 111. 126, (?) 13 III. 347; 34 Miss. 655; 4 Leigh, 622; 67 111. 204. [j) 13 111. 347; 2 Gilm. 570; 34 111. 424; 6 Ind. 461, 4 Blackf. 241; 3 Blnckf. 92; I Blackf. 392; 8 Bradw. 256; 78 111. 257. [k) 31 111. 422. (/) 27 111. 323; 21 111. 129; 31 111. 400; 34 111. 424; 102 111. 428. (;«) 27 111. 323; 32 III. 399; 21 Pick. 195; 5 Deni'j, 509; 46 111. 428. ASSUMPSIT. 237 Special pleas — Plea by surety — Observations. fact that he was a surety may be proved b}^ verbal testi- mony. The payee of a note is presumed to know the re- lation which the parties thereto sustain to each other, and to accept the note with that knowledge, (n) The payment of interest upon a note in advance, is a sufficient consideration to support an agreement with the principal for an extension of time, so as to discharge the surety. (0) An agreement, after the maturity of a note, to pay the interest thereon at the rate therein specified, and also one hundred 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, (p) Any operative agreement, founded upon a valuable con- sideration, 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 ma- turity of the note, (q) The agreement must however be a binding one, and not unlawful by reason of usury or other matter, (r) Any change in an agreement, without the assent of the surety, releases him ; (s) 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, {u) («) 32 111. 399. (0) 26 111. 2S2 ; 27 111. 323 ; 28 111. 4S1 ; 34 111. 424. iP) 34 111. 424. See 13 111. 347- (^) 20 111. 148; 26 111. 282. See 35 111. 40. (r) 53 111. 126. (5) 23 111. 64; 21 111. 129; 5 B. & C. 269; 7 M. & W. 55; 6 Wend. 236. (/) 21 111. 129; 31 111. 400. (u) 20 111. loi. But see 31 111. 422. 238 ASSUMPSIT. Special pleas — Plea, by surety, of notice to holder to sue. Any consideration which is sufficient to support the promise of the principal will sustain the promise of the suret}'. {v) The undertaking of a surety is absolute in its terms, and he is not permitted to discharge himself by requesting the creditor to proceed against his principal, (za) The rights of the creditor against tiie surety are not impaired by mere delay, except where the surety has the right to require the creditor to prosecute the principal, and insists on the right by giving notice in writing to prosecute, (x) If the holder of a note, by agreement with the maker, for a good consideration, extends the time of payment, a suret}^ in such note is thereby discharged ; and if a judg- ment is entered against such surety, without notice to him, upon a cognovit, he may obtain relief in equity, (j) We will next consider when a surety may discharge him- self by giving the creditor written notice to prosecute the principal. No. 107. Plea by stirety, {to declaration on -pi-omissory note, with common counts,) that cf'cditor was required in writing to put note in sjiit, but did not. As in the last precedent, to the asterisk, and then pro- ceed:) and that after the said note became due, to wit, on, etc., he the saidE. 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 com- mence suit on the said note, and proceed with due dili- gence, in the ordinary course of law, to recover a judgment (f) I Gilm. 525; 15 Peters, 290; 8 Johns. 29. (w) 13 111. 376; 8 Blackf. 190. (*) II 111. 341, 352; 34 Miss. 655. 00 28 111. 481:31 111. 258. ASSUMPSIT. 239 Special pleas — Plea, by surety, of notice to holder to sue — Observations. 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 forfeited all right to demand that amount of him the said E. F. And this he, etc. {conclude with a verification, as in No. 70, ante.) 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 discharging 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 shall be discharged ; but no such discharge shall in any case affect the rights of the creditor against the principal debtor." {z) To release the surety there must be a written notice by him to the holder of the obligation to bring suit, served per- sonally, and a neglect to comply therewith. {iad\v. 475; 79 111. 328; 83 111. 33; 4 Bradvv. 594; 7 Bradw. 560; 8 Bradw- 493. 549; 4 Bradw. 594; 105 111. 49 ; 95 111. 99; 107 111. 141; 102 111. 523. {q) 2 Starr & Curtis' An. Slat. 1797; Rev. Stat. (1877) 738. (;•) 13 Bradw. 385; 87 111. 49; 105 U. S, 416 ; 3 Scam. 187; 16 111, 269. See 2 Scam. 263; 21 111. 129; 48 III. 138. (j-) I Scam. 3^9; 3 Scam. 433; 92 111. 549; 96 111. 430. ASSUMPSIT. 257 Special pleas — Denying execution of instrument — Observations. the following form may be used, and it will answer in any action at law on a written instrument. 1^0. 117. Plea denying execution of instrument. {As in No. 70, ante, to the asterisk, and then -proceed:^ that he did not make and deliver the writing in the said declaration mentioned, in manner and form as the plaintiff has above in that behalf alleged : And of this the defend- ant puts himself upon the country, etc. In the Court. C. D. ^ at s . > Assumpsit. A. B. 3 The said C. D., deienaant, makes oath and says, (*) that the foregoing plea is true in substance and in fact. C. D. Subscribed and sworn, etc. Wlitere a firm name is improperly used for the private pur- poses of one of the partners, the piT)per practice would be for the other to file a plea denying the execution of the instru- ment, verified by affidavit, (x) The affidavit must be made by the person pleading the plea ; and if it is pleaded b}' 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 oi an instrument is not the person alleged to have made or as- signed the same, the words " upon his iniormation and belief" are to be inserted in the aflidavit, where the asterisk is placed in the above form. Replications and rejoinders, denying the execution of written contracts pleaded or replied, can be framed from the above form of plea ; or ?ion est factum can be replied or rejoined, when the execution of a specialty is to be denied. (X) 78 111. 234. See 17 111. 202; 18 111. 262; 71 111. 148; 88 U. S. 105,; 9 Br.idw. 174. (/) 2 Gilm. 715 ; 68 111. 165; 23 III. 340. 258 ASSUMPSIT. Pleas denying joint liability, etc. See the additional Illinois cases noted below, {u) and those noted under the next two forms. Pleas denying joint liability^ etc. — Section 35 of the Illinois practice-act is as follows: "In actions upon con- tracts, express or implied, against two or more defendants, as partners or joint obligors or payors, zvhethcr so alleged or not., proof of the joint liability of the defendants, or theii christian or surnames, shall not in the first instance be re- quired, to entitle the plaintiff 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 partnership, or joint liability, or the execution of the in- strument sued on, verified by affidavit." (z') This differs, in the respects indicated by the words in italics, from the law as it existed before July ist, 1872. No, 118. Plea by one dejendant, denying joint liability. [See form No. 70, 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.) No. 119. Plea denying joint liability. (^As in No. 70, 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 declara- tion mentioned, or any or either of them, in manner and form as the plaintiff has above in that behalf alleged : And of this the defendants put themselves upon the country, etc. {Add affidavit, as in Al?. 117, ante.; {ii) I Scam. 451 ; 2 Scam. 575; 3 Scam. 526; 15 III. 333, 339; 16 Til. 169; 87 111. 49; 8 Bradw. 69; 105 U. S. 416; 13 Bradw. 3S5. {v) 2 Starr & Curtis' An. Stat. 1800; 75X11.48; 2 Bradw. 386; 3 Bradw. 324; Rev. Stat. (1877) 738; 78 111. 234; 71 111. 148. ASSUMPSIT. 259 Pleas denying joint liability, etc. — Nul tiel corporation. In a case under the former law, the court said that where several defendants, sued on an instrument in writing, de- nied the execution of the instrument, b}^ plea verified by- affidavit, such plea also put in issue the joint liabilit}' ; 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 in abatement, {w) In another case, however, which was an action on a promissory note, where one of the defendants pleaded non assujtipsif, verified by affidavit, it was said that this did not put in issue the joint liabilit}^ which could only be done by plea in abatement ; (.r) and the same thing was said, as to the necessity of a plea in abatement, in another case, (which was not, however, an action on a writing,) where non assumpsit., verified by affi- davit, was pleaded by one of two defendants. ( j) Where several persons are oued as joint makers of a promissory note, the production of a note signed at the foot by two of the defendants, the name ot the other appearino- on the back, W\\\, ;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, {z) See the observations, (especially as to the affidavit,) and the cases noted, under the head of "Pleas, etc., denying execution of written instruments," a7ite, and the additional cases noted below; {a) also the remarks under the head of Pleas in Abatement, ante. JVo. 120. Pica ^nul tiel corporation. (^As in No. 70, ante, to the asterisk, and thence as fol- Iozus :) that there is not, nor was at the time of the com- mencement of this suit, any such corporation as the {w) 12 111. 124; 78 111. 234. (*) 21 111. 524- (y) 28 111. 174. {z) 51 111. 435. (a) 13 111. 647; 18 III. 262; 28 111. 423; 37 111. 76; 43 111. 134; 52 111. 367. 26o ASSUMPSIT. Plea of nul ttel corporation — Observations. Company, as by the said declaration is above sup- posed : And of this the defendant puts himself upon the country, etc. The plea of mil tiel corporation appears to be of mod- ern 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 corporation, or be nonsuited ; 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, {b) Where the plaintiff' sues as a corporation, no further allegation that it is such is necessary, {c) But where a chartered company 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, [d) A plea of nul tiel corporation is a plea in bar, and m.ay be interposed with other pleas. Where a corporation sues by a wrong name, the defendant can only take advantage of it by a plea in abatement ; but where there there is no misnomer, he can only plead mil tiel corporation in bar. (^) In an action of replevin, where the defendant justified the taking of the property as collector of taxes for a mu- nicipal corporation, and the plaintiff replied that there was no such corporation as that for which the defendant claimed {h) 5 Gilm. 48; 21 111. 277; 30 111. 151; 16 Conn. 421; 9 Ala. 113; 7 Mon. 5S4; 6 N. H. 197; 3 Pick. 245; 4 Blackf. 202; 2 Wms. (Vt.) 93; 4 Peters, 4S0. / \S\ tl}u> 3^ 3^ (c) 5 Gilm. 332 ; 4 Blackf. 267. See 5 Gilm. 48. ^l, ( 2JUb» ^^ C () Where a demurrer of a plaintiff to a plea is overruled, and he abides his demurrer, the court will render a judgment for the defendant. {Ji) A demurrer may be general or special. A general demurrer is one which excepts to the sufficiency of a previous pleading in general terms, without pointing out specifically the nature of the objection; and such demurrer is sufficient when the objection 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, (in) And under a special demurrer the party may, on the argu- ment, not only take advantage of the particular faults which his demurrer specifies, but also all objections in substance. (//) It is not enough that the special demurrer objects in gen- eral terms that the pleading is " uncertain, defective and informal," or the like, but it is necessary to show in what respect it is uncertain, defective and informal. {0) [i) 17 Bradw. 306; Breese, 44; I Scam. 447, 471 ; 20 1)1. 509; 8 Ind. 254; 4 Iowa, 321; 13 Ind. 382; 3 Iowa, 150; 6 Florida, 516; 3 Scam. 91; 42 111. 291 ; 44 111. 37; 4 Scam. 8 ; 3 Gilm. 299; 20 Texas, 211; 9^60.418; 114 111. 118; 14 Bradw. 579; 107 111. 317; 106 111. 216. {j) 18 Bradw. 573; I Scam. 471; 3 Scam. 91; 42 111. 291; 72 111. 161; 20 111. 515; 44 111. 37. {k) 2 Scam. 253; 32 III. 399; 37 111. 156; 53 III. 177; 90 111. 604. {/) I Chit. PI. 574, 639; 5 Greeul. R. 415; 2 Hen. & Mun. 600; Co. Litt. 72 a; I Dutch. 506; li Ark. 12; 2 Iowa, 532; 2 Barb. 160. (w) 5 Mass. 451; 2 Mass. 283; 31 Vt. 337; 2 Greene, (Iowa), 582; 52 111. y^il ; 18 Ark. 347; 6 Md. 210; 20 Ohio, loo; 94 111. 439. («) I Chit. PI. 576 ; 8 Cow. 709. (0) I Scam. 63; 1 Chiity PI, 642; Steph. PI. 159, 161. 268 ASSUMPSIT. Demurrer to declaration. If an unanswered demurrer is on record, and the party demurring goes to trial by consent, it will not be cause for reversal of the judgment, (s) Taking leave to amend a plea demurred to, will be held as equivalent to a confession of the demurrer, (i) The rule that, on demurrer, judgment shall be given against the party who commits the first fault, applies only where the previous pleading is bad in substance, and not defective merely in form, [tt) JVo. 122. Demurrer to a declaration. In the Court; Term, 18—. Assumpsit. And the defendant, by E. F., his attorney, comes and defends, etc., when, etc., and says, that the said declaration, and each count thereof, {or "the said first count of the said declaration,") and the matters therein contained, in manner and form as the same are above set forth, are not sufficient in law for the plaintiff* to maintain his aforesaid action, and that he, the defendant, is not bound by law to answer the same ; and this he is ready to verify : Wherefore, for want of a sufficient declaration [or "first count," etc.,) in this behalf, the defendant prays judgment, and that the plaintiff" may be barred from main- taining his aforesaid action, etc. When the demurrer is designed to be special, add to the above form as follows : And the defendant shows to the court here the following causes of demurrer to the said declaration, and each count thereof, {or, "first count,") that is to say, that {here set forth the particular causes, and conclude thus:) And also that the said declaration, and each count thereof, [or, "first count,") is in other respects uncertain, informal and insuffi- cient, etc. (5) 22 111. 489; 26 111. 100. (0 26 111. 252. (ji) 8 Wend. 129 ; 6 Florida, 351 ; 2S Ala. 618 : 2 Mich. 2t ASSUMPSIT. 269 Demurrer to declaration — Joinder in demurrer. If desired, the several causes of demurrer can be set forth in separate paragraphs, and numbered. No. 123. joinder in a demurrer to a declaration orrcf- Heat ion. In the Court. Term, 18 — . A. B. ^ vs. > Assumpsit. C. D. 3 And the plaintiff says, that the said declara- tion {or "first count," or "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 verif}'^ the same, as the court here shall direct : Wherefore, inasmuch as the de- fendant has not denied the said 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 of court of Hil. T. 4 Will. IV, are given in Stephen on Pleading, pages 45 and 56 respectively. 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. Joinder in demurrer. {Title of court., etc.) And the plaintiff says that tne declaration is sufficient in law. It will be observed that these forms contain no prayer of judgment. 270 ASSUMPSIT. Demurrer to declaration, etc. Observations. A general demurrer to a declaration containing several counts, one of which is good, and the others bad, can not be sustained, (v) On demurrer to a declaration reciting a written contract, and the circumstances under which it was made, the writ- ing must be construed in the light in which it is presented by the declaration, (w) Where there are several counts in a declaration, and the defendant demurs to the whole declaration, and says that the several counts are not sufficient in law, " nor is either of them," etc., his demurrer will be regarded as separate to each count, and may be sustained as to such counts as are bad, and overruled as to the others ; {x) but it is other- wise where the demurrer is to " both counts." (y) If r. defendant wishes to avail himself of a defective averment in a declaration, he must demur to it ; if he elects to plead to the declaration and go to trial, he has no right to insist upon the exclusion of evidence because some nec- essary averment is omitted or defectively set forth, (z) In order to take advantage on demurrer of a variance between the bond sued on and the declaration, the bond should be set out on oyer, {a) By pleading to a declaration after the overruling of a demurrer, a party waives his right to assign the decision of the court for error, (d) A plea to the merits is a waiver of a demurrer, but a demurrer does not waive a plea of that kind, (c) If it appears on the face of the declaration that the (v) Breese, 84; 11 III. 218; 12 111. 14, 21S; 14 111. 77, 416; i Scam. 417; 2 Scam. 356; 4 Gilm. 41 ; 16 111. 79; 23 III. 429; 21 111. 194; 15 Ohio, 333; 14 Ohio, 220; 7 Cal. 463; 29 111. 439; I Chand. (Wis.) 21; 33 111. 372. (w) 12 111. 218; 4 Florida, 382. (*) 13 111. 329. (j) 21 111. 194. (r) 3 Scam. 7; 24 Vermont, 114; 6 Eng. 12. (a) 15 111. 56; Breese, 91. (3) 20 111. 509; 14 111. 277; 42 111. 366; 3 Scam. 49; 27 111. iqS. (c) 3 Scam. 67; 17 Ark. 90. See 29 111. 392. ASSUMPSIT. 271 Demurrer to declaration, etc. — Observations. plaintiff has neglected to sue a joint contractor, a defend- ant may demur for that cause, (d) It is error to take judgment on a demurrer to special counts, while a plea to other counts remains undisposed of. (c) Counts in debt and assumpsit can not be joined ; and a demurrer to a plea in such a case should be carried back to the declaration. {/') 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, [g") If a declaration for goods sold and delivered alleges the goods to have been sold for a stipulated price, and then avers a promise to pay the worth of the goods, alleging them to be worth the sum previously stated, it is bad on special demurrer. (//) In assumpsit upon a collateral undertaking, the declara- tion should state the consideration for the promise, or i* will be bad on demurrer, (i) A judgment upon a demurrer for defect in pleading will not bar another action for the same cause, (j) A demurrer for matter of form should in all cases be special, {k) 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, (m) (d) 5 Ohio, 514; 20 N. H. 150; 7 Cal. 330. (e) 24 111. 149. (/) 19 111. 273; 30 Ala. 562; 12 Geo. 189; i Cal. 393. {g) 8 Ind. 198; 34 Miss. 385; 11 Cush. 348; 28 Miss. 56; 15 B. Men. (Ky.) 168; II Ind. 458; 33 111. 299 (//) 4 Blackf. 126. (/) 5 Blackf. 564. O") 17 m- 25. (^k) 10 East, 359; I Chit.Pl.574; 4 Mass. 451 ; 2 Mass. 283 ; 20 Ohio, 100; 2 Greene, (Iowa) 582. (/) I Scam. 63 ; 5 Clarke, 521 ; 86 111. 587. (m) 2 Johns. 428; 52 111. 333. 272 ASSUMPSIT. 1 Demurrer to plea in abatement — ^Joinder. Duplicity can be taken advantage of only by special de- « murrer, {a) stating in what the duplicity consists, (l?) The objection that a pleading is argumentative can only be made by special demurrer, showing wherein the plead- ing is argumentative, (c) A declaration upon a note or other instrument, though the instrument is without date, should allege a time when it was made, or the declaration will be bad on special de- murrer, (d) No. 124. Demurrer to a flea in abatement. {Title of court., etc., as in No. 123, ante.) And the plaintiff sa3^s, 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 : Where- fore, for want of a sufficient plea in this behalf, the plaintifl" prays judgment, and that the defendant may answer further to the said declaration, etc. Special causes of demurrer may be added, as suggested under form No. 122, 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, 125. yoinder in a demurrer to a flea in abatement. {Title of court, etc., as in No. 122, ante.) And the defendant says, that his said 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 {a) 2 Root, 146; I Blackf. 291 ; 26 111. 184; 20 Pick. 356; 86 111. 577; 2 Hilton, (N. Y.) 3S9; 34 Miss. 688; 10 Gratt. (Va.) 255; i Chit. PI. 574. {b) 86 III. 577. {c) 6 Ind. 263; 2 Sandf. 306; 32 Vermont, 337; 8 Foster, 250; 66 111. 267. \d) 3 Blackf. 484. (4)46m. 145 548 111. 492. • (/) 2 Scam. 256. (/) 86 111. 230. ^76 ACCOUNT. Where the action lies, etc. CHAPTER IV. ACCOUNT. The action of account has fallen into disuse in most of the states of the Union, even where it has not been abol- ished. It is however recognized by the statutes of Illinois, and of some other states ; and though it is very seldom resorted to, a small space in this work will be given to the consideration of this remedy. Where the action lies, etc. — "By the common law, ac- compt lay only against a guardian in socage, bailiff, or receiver, or by one in favor of trade and commerce, nam- ing himself merchant, against another, naming him mer- chant, and for the executors of a merchant ; for between these there was such a privity, that the law presumed them conusant of each other's disbursements, receipts and ac- quittances." («) If two guardians were in common, and one took the entire profits to his own use, account lay. One joint lessee for years might have account against the other, if he took the issues and profits to his own use ; but not so of tenants in common (before the statute of Anne), {b) This was also a proper action to compel a settlement of accounts between partners, (c) If a receiver appoinis a deputy, account lies by the re- ceiver against the deputy, {d) So the action lies by a (a) Bac. Abr. Acct. A. (^») Ibid., note. (c) Ibid., note. {d) I Rol. ii8, I, 20; I Com. Dig. 191. ACCOUNT. 277 Where the action lies, etc. sheriff against his deputy ; (e) and against an attorney for money received for his client ; (y) and by a cestui que trust against a trustee appointed by will, {g) Where there is a running account between a merchant and a broker, the proper remedy is an action of account, to recover the amount due. {h) A landlord may have this action against his tenant, to recover that part of the profits of the property leased which by his contract he was bound to render as rent. (/) It will lie against one as receiver, if without di- rection he receives rents or debts due to another. {J) In order to charge a man as receiver, it is not necessary that he should have any specific appointment as such, {k) "The statute of 13 Edw. i, cap. 23, gives an action oi accompt to executors ; the 25 Edw. 3, st. 5, cap. 5, to ex- ecutors of executors; the 31 Edw. 3, c. 11, to administra- tors; and by the statute of 4 Ann., c. 16, sect. 27, (/) actions of accompt may be brought against the executors and administrators of every guardian, bailiff, and receiver, and by one joint-tenant, tenant in common, his executors and administrators, against the other as bailiff for receiv- ing more than his share, and against his executors and administrators." {m) The provisions of the Illinois statute of account, in re- spect to when this action may be maintained, are as fol- lows : "Sec. I. When one or more joint tenants, tenants in common, or co-parceners in real estate, or any interest therein, shall take and use the profits or benefits thereof, in greater proportion than his, her or their interest, such (c) I Com. Dig. 191; I Rol. ii8, i, 25. (/) 4 Watts, 420. {g) 2 Watts, 95. (/;) I Wheat. Selw. 3 ; 2 Camp. 238. (0 I Watts & Serg. 530; iS Verm. 347. {j) 1 Com. Dig. 190; 6 Mod. 92. {k) 3 Barb. Sup. C. R. (N. Y.) 423. (/) See this stat., i Freem. Pr. 294, note. (»i) Bac. Abr. Acct. A. 273 ACCOUNT. Where the action lies, etc. person or persons, his, her or their executors and admin- istrators, shall account therefor to his or their co-tenant, jointly or severally. "Sec. 2. Joint tenants, tenants in common, and co- parceners in any estate real or personal, may maintain actions of account against their co-tenants, who receive as bailiffs more than their due proportion of the profits and benefits of such estate. "Sec. 3. Any executor, being a residuary legatee, may bring and maintain an action of account against his co- executor ; and any other residuary legatee; shall have the same remedy against executors and administrators. " Sec. 4. Actions of account may be maintained by and against executors and administrators, in all cases in which the same might have been maintained by and against their testator or intestate. "Sec. 6. When any person is or shall be liable to ac- count, as guardian, bailiff", or receiver, or otherwise, to an- other, and will not give an account willingly, the party to whom such account ought to be made may bring his action of account, and it the person against whom such action may be brought, being summoned, does not appear at the return of the writ, then the defendant shall be attached by his body to appear and render his account." (n) Also, by section 119 of the statute of wills, it is provided, that "where there are two or more executors or adminis- trators of an estate, and one of them takes all or a greater part of such estate, and refuses to pay the debts of the de- cedent, or refuses to account with the other executor or administrator, in such case the executor or administrator so aggrieved may have his action of account,, or suit in equity, against such delinquent executor or administraitor, and re- cover 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, (n) I Starr & Curtis' An, Stat. 187-188; Rev. Stat. (1877) 96-97. ACCOUNT. <279 Where the action lies — Demand. against his co-executor or co-executors, and recover his part of the estate in his or their hands. Any other legatee may have the Hke remedy against the executors: Provided, that before any action shall be commenced for legacies, as afore- said, the court shall order them to be paid." ( Account. — Damages $ . CD.) The clerk of the said court will issue a summons, {or '^'■capias ad respondendum^'') as above, directed to the sheriff of the county of , and returnable to the > term, i8 — . {Date.) To G. H., Clerk, etc. E. F., Attorney for Plaintiff. No. 128. 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 ad- ministration of divers goods of the plaintiff, to wit, sixty barrels of sugar, twenty sacks of coffee and fifty sacks of (a) 12 Verm. 501. See 18 Verm. 347; 21 Verm. 173. (f) I Freem. Pr. 246. ACCOUNT. 281 Declarations — against receiver, etc. salt, of the value of dollars, to merchandize 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 after- wards, 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 ad- ministration or charge of lands, goods or chattels, (or even moneys,) to make the best benefit thereof for the owner, (w) 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 reasonably raised or made, his reasonable charges and expenses being deducted, (x) Where the defendant is charged as bailiff, the declara- tion should specify the particular goods of which he had the care and management, (y) JVo. 129. 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., until, etc., during which time the defendant there received, of the moneys of 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, 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 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. (w) I Humph. Pr. 184; Co. Litt. 271 ; i Leon. 245. (*) 12 Mass. 149. (j'; 3 Hill, (N. Y.)59. 282 ACCOUNT. Declarations — Tenant in common against co-tenant. A person is chargeable as receiver where he receives money for the owner ; (z) but not where he receives prop- erty to sell for the owner, and retains the money arising from the sales — there he is chargeable as bailiff. He is also chargeable as receiver of goods, when such receiving is not coupled with an authority to sell, (a) A receiver is answerable only for the precise sum of money, or goods, received ; (d) and he can only claim such charges and expenses as are agreed upon, (c) It seems a defendant may be charged both as bailiff and receiver, in the same count, (d) In declaring against one as receiver, it is necessary to set forth by whose hands he received ; bi\t where he is charged as bailiff it is not necessary, (e) nor, it is said, when the action is between merchants. (_/*) Particularity with regard to the exact amount of the money, or the pre- cise time of receiving it, is not required, (g-) "., Al^o. 130. By one tenant in cojnmon against his co-tenant. {Title of court, etc.) A. B., plaintiff, by E. F., his attorney, complains of C. D., defendant, of a plea of ac- count 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 seised 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 of the whole of the said (z) Co. Litt. 271. (a) I Humph. Prec. 184. ' (*) 01. Prec- 96. (c) Co. Litt. i7i ; 6 Penn. 284- {d) I Humph. Prec. 1S4, 186. (e) Co. Litt. 172, a; 3 Keb. 425; 11 Mod. 186; 2 Wash. C. C. R. 482. (/) 2 Chipm. 91. See 11 Mod. 1S6; 3 Ver. 243. (^) 2 Lev. 126. ACCOUNT. 283 Declarations — Partner against partner. uarcels of land, to receive and take the profits and benefits thereof, and as bailifl^' ot the plaintiff of what he, the de- fendant, received more than his due proportion of the same, to render a reasonable account thereof to the plaintifl', and his share thereof, when he, the defendant, 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 plaintifT'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, contrar}^ 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 de- fendant 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 disclosing that he was tenant in common. No, 131. Partner against partner, as receiver. {Commence as in last precedent.) For that whereas on, etc., and from thence until, etc., in the count}^ afore- said, the plaintiff' and the defendant were partners in trade, equal in interest, under the 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 the 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 284 ACCOUNT. Declarations— Partner against partner. plaintiff so to da, has not rendered to him a reasonable ac- count 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. (§g") In another count the defendant may be charged, in like manner, with receiving divers goods, etc., describing them generally ; and other counts may charge him as bailiff of money and goods, to merchandize, etc., for the common benefit of the partners ; and others as receiver, and as bailiff, of the plaintiff'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 received, and by whose hands ; but it is said that " where the ground of liability is a privity or connection as a partner, or as prmcipal 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." [/i) From the language 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 persons mentioned in the declaration, the plaintiff is entitled to a general ver- dict under an issue upon the plea of ne unques receiver, (z) 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 precedents partners are sometimes charged as bailiffs, (^^) See 3 Verm. 243; i Dall. 340; 2 S. & R. 317; 10 S. & R. 219; 3 "Wash. C. C. R. 482 ; Ol. Prec. 103. (k) I Freem. Pr. 244; 3 Verm. 243. See 2 Chip. 91; 11 Mod. 1S6; 01. Prec. 104. (/) ID Serg. & R. 219. (j') 3 Hill, N. Y., 59; 6 Wharton, 615, 621. ACCOUNT. 285 Declarations — Partner against partners. ai«d sometimes as receivers ; and in some cases they are charged as receivers in one count, and as bailiffs in another count, of the same declaration, {k) No. 132. Partner against pai-tncrs^ as bailiffs of lands and goods. {Cormtience as in No. 130, ante.) For that whereas on, etc., and from thence until, etc., in the county afore- said, 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 de- fendants there had the care and management of the said parcels of land, with the appurtenances, 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, 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 quan- tities 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 ac- count thereof, when they, the defendants, should be thereto requested. Yet the defendants, though they were after- wards, 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 liability to account must be shown, {in) It has been held that the action would not lie where there were more than two partners; («) but this is denied, () 72 111. 267 ; 5 Barn. & Cress. 589. 19 2c,o COVENANT. Where the action lies. etc. Il is the peailiar remedy upon contracts under seal, where the damages are unliquidated and depend in amount on the opinion of the jury, in which case neither debt nor assumpsit can be supported. {J) Covenant, not debt, lies on a writing obligatory for the payment of a certain sum in land-office money, {k) or in United States bank-notes, (/) or in "banking money," [vi) or in "lumber." {n) So covenant, not debt, lies for instalments of a sealed note, due and sued for before the coming due of the last instalment. ( Covenant. Damages $ . CD.) The clerk of the said court will issue a summons, {or '■'-capias ad resfondendum^^^) as above, directed to the sheriff of the county of , and returnable to the term, 18 — . {Date.) ^ E. P., Attorney for Plaintiff. To G. H., Clerk, etc. DECLARATIONS IN COVENANT. Ho. 137. Grantee against grantor, on covenants in a deed of conveyance of land. In the Court. Term, 18 — . State of Illinois, County of , 5 set. A. B., plaintiff, by E. F., his attorne^y , 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 aforesaid, 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 thi)igs, that at the time of the making and dcHvery of the said deed he, the defendant, was lawful!}' seised 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 (*) Ant'., 39-41. 296 COVENANT. Declarations — Grantee against grantor, on warranty-deed. to the plaintiff, his heirs and assigns, the quiet and peace- able 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 de- fendant was not, at the time of the making and delivery of the said deed, lawfully seised 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 same : And the plaintiff further avers, that he could not, by force of the said deed, quietly and peaceably possess the said real estate, nor did nor would the defendant, though often re- quested, 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 deliv- ery 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 plaintiff out of the possession thereof ( — any special dam- ages may be here alleged, in this manner : "by reason of which premises the plaintiff has not only been deprived of the said real estate, and lost a large amount of money, to wit, dollars, by him expended in repairing and im- proving the same, but has also been compelled to pay, and has paid, the costs sustained by the said G. H. in prose- cuting 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 endeav- oring to defend the said action of ejectment" — ). And so the plaintiff says, that the defendant has not kept his cov- enants 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 seised, and had no right to convey, it is sufficient to simply negative the cove- nants, (jv) But with regard to the covenants for quiet en- (^) 2 Chit. PI. 546, c; 9 Rep. 260, b; see 2 Saund. iSi, by c. COVENANT. 297 Declarations — Grantee against grantor, en warranty-deed. joyment, and against incumbrances, and to warrant and defend, it is necessary to assign the breach, by showing the interruption or incumbrance complained of, or by show- ing an ouster by an elder title, (z) 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. (a) No. 138. 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 con- sideration therein mentioned did grant, bargain and sell to the plaintiff, his heirs and assigns, a certain parcel of land ill 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 other 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, bargains, 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 incumbrances, 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 mone}', with interest as aforesaid, is still unpaid, and the said parcel of land is still chargeable with the payment thereof. And so the plaintiff says, that the defendant has not kept his covenant aforesaid, but has broken the same ; to the damage of the plaintiir of dollars, and therefore he brings his suit, etc. (*) 2 Chit. PI. 546, c; Com. Rep. 228; 2 Saund. 181, */ 2 Mass. 433. (a) 9 Wend. 416. 298 COVENANT. Declarations — Remote grantee against grantor, on warranty-deed. If the plaintiff has paid off the mortgage-debt, then, in lieu of the averment following the asterisk in the above form, say, "which said sum of money, with such interest thereon, being still unpaid, and the said deed of mortgage being still an incumbrance on the said parcel 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 re- quested, 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, {b) JVo. 139. Second or remote grantee against grantor^ on covenant of warranty in a deed of conveyance. {Commence as in No. 137.) For that whereas the de- fendant, on, etc., in, etc., by liis deed bearing date of that day, and now to the court here shown, for the considera- tion therein mentioned did grant, bargain, sell and convey to one G. H., his heirs and assigns, a certain parcel of land, with the appurtenances, 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 de- fendant did b}^ 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 afterwards, to wit, on, etc., the said G. H., b}^ his deed bearing date of that day, and now to the court here shown, for the consideration therein mentiur.ed 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 {b) 2 Chit. PI. 550, // I Saund. 233, «; i Swan's Pr. 403, ^ ; 14 Johns. 372, COVENANT 2^9 Declarations — Lessor aErainst lessee. 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 whatso- ever ; but on the contrar}" 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 para- mount 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. i^Hi ^'^'^^•, for averment of special dam- age.) The covenant of warranty is prospective, and runs with the land to all those to whom it may come by pur- chase or descent. But the covenants of seisin and power to sell are in froesenti, 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 assign- able so as to enable the assignee to sue thereon at law, in his own name, (c) No. 140. On a covenant, in a lease, to -pay rent. {Commence as in No. 137, 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, {the coun- terpart of which said indenture the plaintiff now brings here into court,) the plaintiff did demise and to farm let unto the defendant, his executors, administrators and (c) 27 111. 478. See 33 111. 339 ; 51 111. 373; 54 111. 489; 10 Wend. iSo; 5 Cow, 137, 143; 89 111. 412; 104 111. Ill, 160. 300 COVENANT. Declarations — Apprentice against master, on indenture. assigns, a certain parcel of land in the county aforesaid, to wit, {here describe the property ;) to have and to hold the same to the defendant, his executors, administrators and assigns, from, etc., to, etc. ; yielding and paying therefor yearly and every year, to the plaintiff', his heirs or assigns, the clear yearly rent or sum of dollars, pay- able 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 de- fendant, 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 several days and times afore- said. 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 defend- ant 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. 146 If both parts of the deed are originals, that is, signed by all the contracting parties, instead of " counterpart," in the j)rq/ert, say '■^ one part of which said indenture," etc. In Illinois, by statute, frofert is unnecessary, {d) An allegation that a party covenanted "by indenture" imports that the covenant was under seal, {e) JVo. 141. Apprentice against master, for breach of cov- enants in indenture. {^Commence as in No. 137, ante.) For that whereas on, etc., in, etc., by a certain indenture 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 other part, and bearing date of that day, (one part of which said indenture, sealed with the seals of the plaintiff, the said {d) Rev. Stat. (1874) 777 J Rev. Stat. (1877)736. \e) 4 Hurl. & Nor. i68. COVENANT. • 301 Declarations — Apprentice against master, on indenture. G . H., and the defendant, is now to the court here shown, the plaintiff did place and bind himself apprentice to the defendant, to learn his art and calling of a blacksmith with him, and to remain with and serve him from 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 suffi- cient meat, drink, lodging, washing, and apparel, both linen and woolen, and all other necessaries, both in sick- ness 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 arithmetic ; 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 con- dition 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 aforesaid, there entered into the service of the defendant, as such appren- tice 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 al- ways, 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 plaintitT was always there ready and willing, from the dav last aforesaid until the expiration of the said term, to continue well and faithfully to serve the defendant, and keep and perform all things in the said indenture contained, on the part of the plaintilT to 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 defend- ant, during the said residue of the said term, find and allow to the plamtiff 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 tiaie, cause the phiint- ift to be taught to read and write, and the ground rules of 302 COVENANT. Declarations — On fire-insurance policy. arithmetic ; nor did nor would tlie defendant give to him, the plaintiff, a new bible, and two new suits of clothes suit- able 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 appren- tice, in Illinois, it would seem that the declaration should sufficiently show an indenture in conformity with the stat- ute, (which see,) as all indentures, etc., for the taking of any apprentice, etc., not in conformity with the statute, are utterly void, as against such apprentice, etc. {y ) No. 142. On a fire-insurance policy. (^See JVos. 54 atid 55, ante.) {Title 0/ court, etc.) A. B., plaintiff, by E. F., his at- torney, complains of the Insurance Company, defend- ant, 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 policy 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 tlie conditions in the said deed or policy men- tioned are as lollows, that is to say :" and theji insert the conditions, or proposals, verbatim, or such parts thereof as constitute a condition precedent.) And the plaintiff further avers, {proceeding as in No. 54, ante, pages 136, ly] , from the one asterisk 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 pertbrmed, yet the defendant, though often (/) Rev. Stat. (1874) 147; Rev. Stat. (1877) 140. See 55 111. 119. A COVENANT. 303 Declarations — On fire-insurance policy — Observations. thereto requested, has not paid to the plaintitl' the amount of the said loss and damage so by him sustained as afore- said, or any part thereof, but refuses so to do. And so the plaintiff says, that the defendant has not kept its covenant aforesaid, but has broken the same ; to the damage of the plaintiff of dollars, and therefore he brings his suit, etc. See the forms of declarations on policies of insurance, in assumpsit, ante, pages 134-139, 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, {g) 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 certificate formed a part of the preliminary proof of loss, was the nearest notary to the place of the fire, if the cer- tificate is received 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. iji) Under an averment of a total loss, a party may recover for a partial loss, in an action of debt on an insurance policy. (/) Insurance companies have a right to limit by their pol- icies the time within which an action shall be brought upon them, {j) In an action on an insurance policy which contains a condition that,.in the event of a loss, the company may, at its option, restore the building, it is unnecessary to nega- tive the performance of this condition in the declaration. (^) 28 111. 235. (//) 2S 111. 235; 25 111. 466; 26 111. 360; tS 111. 553. (/■) 25 111. 466; 13 111 676; 2 Bin row, ./34. (>) 25 111. 466. 304 COVENANT. Declarations — On fire-insurance policy — Observations. It is a condition subsequent, and if performed, the com- pany should allege it in defense of the action, (k) Where one of three partners, who have effected an in- surance, afterwards, 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. (/) 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, (m) The plaintiff's in- terest should be alleged. («) A general averment of in- terest is sufficient, (o) At common law, the assignee of an insurance policy could not maintain an action thereon in his own name ; (^) and he can not do so in any case unless it is authorized by the act incorporating the company, or by some general statute, (g) The insured must generally have an interest in the property at the time of the loss, to entitle him to re- cover ; but this is not true in every case, for the insured may have assigned his interest with the consent of the in- surers, and in that event, the suit should be brought in the name of the insured, for the benefit of his assignee, (r) No act of the party insured, after the assignment of the (k) 27 111. 71. (/) 22 II!. 272; 32 ni. 221. (;«) 1 Gilm. 236; 22 111. 272; 4 Hill, 187; 16 Peters, 503; 3 Fairf. 44; 26 Conn. 165. («) 3 Taunt. 513. (o) 5 Wend. 200; I Hall, 84; Conn. 490. (/) 32 111. 221 ; 13 Gray, (Mass.) 79; i Seld. (N. Y.) 405; i Smeed, 444; 3 Hill, (N. Y.) 88. See 34 111. 46. (g) 4 Hill, (N. Y.) 187; 2 Comst. (N. Y.) 53; 3 Denio, 254; 10 Foster, (N. H.) 231; 20 Barb. (N. Y.) 339; 38 N. H. 232. (r) 32 111. 221 ; 16 Md. 47. See 43 III. 327. COVENANT. 305 Declarations — On fire-insurance policj' — Observations. policy with the assent of the insurers, can impair the rights of the assignee. (5) Where tlie 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 express promise of the insurer to pay him for the loss, (t) Policies of insurance are within the purview of the 33rd section of the practice-act, and may be read in evidence without proof of their execution, unless denied by plea, properly verified by affidavit, {ti) Where by the charter of an insurance company, the charter itself is made a part of the contract of insurance, and the insured 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 applica- ble 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 which the plaintiff intends to rely, [w) Stipulations and conditions indorsed upon the policy are parts of it, and must be set forth so far as they are mate- rial, {x) If the policy has been altered, by consent, after execution, the alteration must be set forth. ( y) If the declaration consists of several counts, the policy is not re- peated, but reference is made to the first count in the sub- sequent ones, {z) {$) 32 111. 221; 29 Maine, 97; i Duer, 371; 31 Maine, 219; 3 R. I. 102. (0 34 III. 46. («) I Gilm. 236 {v) I Gilm. 236. {iv) 6 East, 554; 4 Taunt. 285; 8 East, 7. • (*) SBing. 304; Id. 315. ( v) I Stark. R. 336; 2 Chit. PI. 188. {z) 7 East, 505; 2 H. Bl. 131. 20 So6 COVENANT. Defenses to the action — Plea of non esi/acium — Observations. DEFENSES TO THE ACTION OF COVENANT. Picas in abatement. — For pleas in abatement, and ob- servations thereon, see pleas in abatement in assumpsit, ante., chapter III. Pleas in bar. — For general observations upon pleas in bar, see pleas in bar in assumpsit, ante, chapter III. No. 143. Plea <9/"non est factum. In the Court. Term, 18 — . C. D. ^ ats. > Covenant. A. B. ) And the defendant, by G. H., his attorney, comes and defends the wrong and injur}^, when, etc., and says, that the said supposed indenture {or "deed," of "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 is- sue, (/f) and admits all the other material averments of the declaration, {i) The defendant must therefore plead specially every mat- ter which it would be necessary to plead in debt on a bond or other specialty. Under the plea of non est factum, however, the defendant 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 (/;) I Chit. PI. 428; I Scam. 3S9; 17 Wend. 136; 3 Hill, 187; 9 Cow. 307 ; 6 Ohio, 35. (/) 7 Cow. 474; loWend. 202; 14 Johns. 89; 10 N. Y. 371; 5 Ohio, 169. I COVENANT. 307 Pleas — Payment . demur. (/) And the plea of non est factum is 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 affida vit. (/) See the form of the affidavit, ante, No. 117. Where several defendants 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, {m) See the observations under the plea of non est factum, in debt, -post, chap. VI. A plea of non inf-egit conventionem is bad on demur- rer, though it would be aided after verdict ; {n) at least, it is not a good plea where the breach is in the negative, {0) 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 con- stitute a breach. (^) It is not a general issue, {q) No. 144. Plea of payment — to action on covenant for -payment of money . {If pleaded as a first plea, coinmence as indicated in the observation under this form; if as a second or subse- quent plea, commence as follows:) 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 on the said day of, etc., in the county aforesaid, he did pay to the plaintiff the said (_/■) I Chit. PI. 428. See Com. Uig. 2, V. 3, 4, 5; 11 East; 639; 1 Campb. 70; 2 Stark. 35; 7 Dowl. & Ryl. 249. (^) I Ohio, 330; 6 Ohio, 35. See i Scam. 389. (/) Rev. Stat. (ICS77) 738. See i Scam. 389; 43 111 134; 72 111. 340; 75 111. 638. (>«) I How. (U. S.) 104. (w) 1 Chit. PI. 428; 8 T. R. 278; I Lev. 183-, 3 Lev. 19; i Sid. 289; Com. Dig. Pleader, 2, V. 5; 7 Cov*r. 71. {0) Bac. Ab. Cor. L; 3 Lev. 19; 2 Taunt. 27S; 1 Aik. 150; 4 Dall. 436; 7 Cow. 71 ; Com. Dig. Pi. 2, V. 5; Story's PI. 213; 2 Swan's Pr. 750 1. (/) 7 Cow. 71. (y; 1 Aik. 170. 3o8 COVENANT. Pteas as to part, etc sum of dollars, in the said indenture mentioned : And oi this the defendant puts himself upon the countiy, etc. The commencement of a ^rst plea Cexcept non est factuni) is, 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. Pleas as to a -pa^'t, 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 in the commencement, thus : "And for a fur- ther plea in this behalf, as to the supposed breach of cov- enant first above assigned, the defendant says," etc. ; or, "as to so much of the supposed breach of covenant 5^c- ondly above assigned as relates to," etc. ; or, "as to the third 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 174.) 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, parcel of the said sum of dollars in the said declara- tion mentioned, says that the plaintiff' ought not to have his aforesaid action against him, the defendant, to recover any greater damages than the said sum of, etc., {the sum tendered^) on occasion of the said supposed breach of cov- enant 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 covenant first above assigned, etc." And in any plea concluding with a verification, if the conclusion is written out in full, the prayer of judgment ought to correspond with, and be founded upon, the premises in the plea. In a plea of set-off" to any one of several breaches, the COVENANT. 309 Pleas — To several counts, etc. — Performance — To action by apprentice. defendant 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 suffi- cient 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 J ilea is intended to apply to all such counts, it may allege, ia the proper case, "that the supposed indenture in the said first count of the said declaration mentioned, and the supposed indenture in the said second count of the said (declaration mentioned, were and are one and the same in ienture, and not other or different." ]Vo. 145. Plea of performance. {As in the last -precedent, to the asterisk, and then -pro- Meed:) that he, the defendant, did [here state the perform- ance, in the words of the covenant, if in the afjinnative, and conclude as follows :) according to the form and effect (>f the said indenture, and of the said covenant by the de- fendant in that behalf made as aforesaid : And of this the •lefendant puts himself upon the country, etc. The plea of covenant performed, where it is not sus- tained, admits nothing more than the plaintitT's right to lecover nominal damages, {r) JVo. 146. Plea, to declaration by apprentice on indenture, that plaintiff deserted defendanfs service. {First plea, non est factum ; second plea as in IVo. 144, ante, to the asterisk, 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 (r) 2 Scam. 297; 5 Wend. 113. 3IO COVENANT. Pleas — Plea to action by apprentice. return thereto : And the defendant further says, that he did continually, iVom the. making of the said indenture until the piaintifll' so deserted and left the service of tlie defendant as aforesaid, well and truly keep and perform all things in the said indenture contained, on his part to be kept and performed within that time ; and that during 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 con- tained, 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 prays judgment if the plaintiff' ought to have his aforesaid action, etc. For other pleas in covenant, see the special pleas in as- sumpsit and debt, which may readily be adapted to this form of action. The plaintiff" may, as we have seen, plead noil est facUim, 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 prac- ticable, in a concise work like this, to give more than a few general forms. For replications, demurrers, etc., see the same subjects in assumpsit, ante, chapter III. DEBT. 311 Where the action lies, etc. CHAPTER VI. DEBT. Where the action lies, etc. — The action of debt lies to recover money due upon simple contracts, express or implied, whether verbal or written ; upon contracts under seal, or of record; and upon legal liabilities, (a) 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, (d) It lies on statutes, by a party aggrieved, (c) or by a common informer ; and whenever the demand is for a sum certain, or is capable of being readily reduced to a cer- tainty, (d) On simple contracts and legal liabilities, debt lies for money lent, paid, had and received, and due on an ac- count stated ; for interest due, for work and labor, for fees, for goods sold, and for use and occupation ; (e) and it is laid down as a general rule, that debt lies upon every con- tract in deed or in law. (_/") Debt lies upon simple contracts wherever indebitatits assumpsit will lie, and is a concurrent remedy there- (a) I Chit. PI. 97; 2 Dall. 123; i Head, (Tenn.) 71; 3 Sneed, (Tenn.) 145- (i) 4 Humphrey, 332 : 12 Gratt. (Va.) 520. (c) See 2 Scam. 461. (rf) I Chit. PI. 98; I Peters, 147; i Hill, 507; S Leigh, 479; 3 McLean, 150; I Barb. 325; 44 111. 469. (e) I Chit. PI. 98; I Rawle, 135; 3 Denio, 452; i Hemp. 279, 290. (/) I Chit. PI., II Am. ed. no; 15 Wend. 220. ;i2 DEBT. Where the action lies, etc. with ; ( 0-) and it may be supported on a quantum mer- uit, [h) This action also lies to recover money due on any spe- cialty, 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 performance of any other act ; it) on leases, for rent or penalties ; on mortgage-deeds ; and on annuity-deeds. (/) Where however a gross sum is payable by instalments, debt will not lie until the last instalment falls due ; {k) though for rent payable quarterly, or otherwise, or for an annuit}^ 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 £um is payable by instalments, if the payment is secured by a penalty, debt is sustainable for such penalty on any default. (/) The statute of wills, in Illinois, authorizes several suc- cessive suits on an executor's or administrator's bond, for the use of any person or persons injured, until the whole penalty shall be recovered, {m) Debt is the proper form of action for a violation of an ordinance of an incorporated town, in) It lies upon a bond made to a coroner in an action of replevin, {o) It always lies on a judgment of a court of record ; and may be brought although the plaintiff, at the time of bring- ing the suit, may be entitled to an execution on his judg- ment, [oo) (^)4 Gilm. 193; I Pet. C. C. R. 145; 8 Pick. 178; 7° 111. 549- {h) 8 Pick. 178; iS Pick. 229, 231 ; 10 Yerger, 452 ; i Kelly, 261 ; i Chit. PI. 97- * («■) I Chit. PI. 99. See 86 111. 185. (;■) Ibid. ; 44 111. 460- {k) 2 Saund. 306, n. 6; i Chit. PI. 102. See 44 111. 469 (/) I Chit. PI. 102; I Binn. 152. {in) Rev. Stat. (1877) 104; 24 111. 324. (w) 1 Scam. 290; 36 111. 507. (o) 2 Scam. 6. See 35 111- 2S2. {00) 3 Scam. 541 ; 12 Cal. n ; 43 111- 19*). DEBT. 313 Where the action lies, etc. An action of debt may be brought on an appeal-bond by the appellee, the moment judgment is rendered in the cause appealed, unless the money is paid immediately. (/) Where the property of another has been taken and con- verted, the tort may be waived, and assumpsit or debt brought for its value, {q) Where one party takes undue advantage of another, and compels him to pay money contrar}' to equity and good conscience, he may recover it again in an action of debt, {r) It lies on a decree in chancery which has the effect of a judgment at law, (5) such as a decree for a sum of money as alimony, (^) or a decree fixing the balance of an ac- count between partners ; {u) though there is some conflict of authorities on this question, {v) 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, {w) Debt lies on the judgment of a justice of the peace of another state, {x) It has been held that this action may be maintained by the assignee against the maker of a promissory note ; {y) but in Hilborn v. Artiis, 3 Scam. 344, a doubt was ex- pressed 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 (/) 3 Scam. 612. {q) 3 Sneed, (Tenn.) 454. See i Conn. 132; 3 Cow. 393. {r) 5 Gilm. 513. (s) J. J. Marsh, 600; 2 Blackf. 31 ; 25 111. 95. {t) 15 Mass. 196. See 2 Blackf. ^z; 4 Blackf. 52. («) 13 Vermont, 231. (v) 25 111. 95. See 8 Wheat. 697. (w) 25 111. 95 ; 3 Caine, 22 ; 9 Serg. & Rawle, 252. («) I Blackf. 16; 7 Wend. 435; 6 Wend. 267, 438. See i Scam. 558. (j) 1 Blackf. 378; 36 Penn. 538. See Gross' Stat. 461; i Swan's Pr. 37S; 2 Chit. PI. 388, n. 314 DEBT. Where the action lies, etc. a certain time, without alleging or proving the considera- tion for which, or the transaction in which, the instrument was made, although it contains a statement or explanation of such consideration or transaction. Such statement does not change the character of the instrument, (z) ^ Debt lies also on an award for the payment of money, {a) and that without regard to the penalty of the bond ; {d) and on by-laws, for fines and amercements, {c) Debt can not be sustained in any case, unless the demand is for a sum certain, or for a pecuniary demand which can readily be reduced to a certainty, {d ) An action of debt will not lie upon an obligation which says " due one thousand and fifty dollars, payable in county orders, of such size and dimensions as the promiser ma}?^ be able to furnish ;" such an obligation not being for the money named, but for the thing to be furnished, (e) A joint action of debt will not lie against a lessee, in a lease under seal, and a surety who by a writing, 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 speciall}^ on the contract of sale, which was under seal, and alleging that the vendor could not convey, by reason of incum- brances, it was held that the action would not lie, but that the remedy was in covenant, (g-) Where a constable has collected money otherwise than (^) 16 111. 79. (a) 8 Cowen, 235; 11 Cush. (Mass.) 429; i Chit. PI. 99. (d) 7 Cowen, 522. (c) 14 Johns. 479; 2 Hall, 471; i Chit. PI. 99. {d) 9Missouri, 218; I Chit. PI. 102; 29 111. 245; i Dutch. (N.J.) 509; 50 111. 436- (e) 29 111. 245. (/) 16 111. 485. (^) 50 111- 436. DEBT. 315 Actions on statutes. by virtue of process, an action will not lie on his bond for a lailure to pay over the money, {h) 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 will be liable thereon. (J) Actions of debt on statutes, in Illinois. — The statute of Illi- nois provides that any person who shall cut, fell, box, bore or destroy, or carry away any of the trees or saplings there- in enumerated without permission of the owner of the land, shall forfeit and pay for each tree or sapling so cut, etc., the sum of eight 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 action qui tani^ in the name of any person who will first sue' for and recover the same; the one-half for the use of the person so suing, and the other half for the use of the owner of the land, {k) If any drover drives off, or knowingly and willingly per- mits to be driven off, from the premises of any citizen, or from the range in which the stock of any such cidzen may run, to any distance exceeding five miles from such prem- ises or range, any horses, mules, neat cattle, hogs or sheep, belonging to such citizen, or permits any such stock to re- main 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 (70 27 111. 39. (z) 89 111. 243; 85 111. 218; 51 Maine, 509. (X-) Rev. Stat. (1S77) 999; 23 111. 397 ; 35 ^I'^s- 231. (/) Rev. Stat. (1874) 441 j Rev. Stat. (1877) 435. 3i6 DEBT. Commencement of the action. in an action of debt in the name of the People of the State of Illinois, and such corporation shall also forfeit a like sum, to be recovered in the same manner, [in) 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 j^lain sight of the same, before such draw, intersection or crossing is passed by any such train, shall, for each offense, forfeit 5100, 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, {n) If any public officer, having in custody any person re- strained of his liberty, etc., refuses (except in case of immi- nent danger of escape,) to admit any practicing attorney, whom such person may desire to see or consult, to see and consult such person alone and in private, at the jail or other place of confinement, such officer is liable to forfeit and pay to the person aggrieved one hundred dollars, to be recovered by an action of debt, (o) The statutes provide for numerous qui tarn actions, not particularly 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 the action. — It has already been shown in what cases security for costs is required to be filed before the commencement of an action, [ante^ pages m) Rev. Stat. (1874) 809; Rev. Stat. (1S77) 77i- («) Id. ■ \o) Rev. Stat. (1874) 387; Rev. Stat. (1877) iZt,. (/) I Head, (Tenn.) 71 ; 15 111. 39. DEBT. 317 Pi-cecipe — Declaration. 39—42). The pmcipe for a summons, or capias ad re- spondendum, may be in the following form . Prascipe_/br 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 % . The clerk of the said court will issue a summons, (or, ca-pias ad respondendum,) as above, directed to the sheriff of the county of , and returnable to the term, 18—. {Date. ) E. F., Attorney for Plaintiff. To J. K., Clerk, etc. In debt qui tam, omit the damages. The sum demanded as the debt should be specified in the prcecipe, as a sum- mons in debt is defective if it does not demand a particular sum as the debt, {q) The declaration. — As in other actions, the declara- tion ought to pursue the writ, as to the character of the action, the parties, and the extent of the demand, (r) 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 consideration is necessary, the declaration should show such consideration, and may in general be framed like a declaration 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 .reH:arded as a count in assumpsit merely because the word " promised" is used instead of "agreed." {u) (?) II 111- 573- (r) n 111. 573; 17 111. 199, 529. (/) 2 McLean, 363; i Chit. PI. 11 Am. ed. 362. («) 5 Gilm. 75, 101 ; 16 111. 105 ; 2 Bos. & Pul. 78; I Blackf. 503. 3i8 DEBT. Declaration. In declaring upon a writing not under seal, no profert is made ; (v) and in Illinois, by statute, it is not necessary, in any pleading, to make profert of the instrument alleged, (w) Oyer can not be claimed of a deed which appears from the pleading to be lost, or in the possession of the adverse party, [x) A count on a specialty and one on simple contract may be joined in the same declaration, (y) But counts in debt and in assumpsit can not be joined, (z) In a declaration on a judgment 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 assign- ment, take a verdict for even nominal damages, (d) A general assignment of a breach, which is sufficient to show on what account the suit is brought, is sufficient, (c) 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 neces- sary, or the declaration may contain as many counts as there are breaches 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 over- ruled as to others, the same as if the breaches were set forth in separate counts, {d) {v) I Chit. PI. 313. (w) Rev. Stat. (1874) 777; Rev. Stat. (1877) 736. I^x) I Chit. PI. 314; 2 Root, 126, 482; I Yeates, 2; 3 Bibb, 8; A. K. Marsh. 93. {y) I Chit. PI. 181 ; 13 Johns. 462; 3 Blackf. 167. {z) 19 111. 273. (a) 7 V^end. 435 ; i Scam. 558 ; 4 Parker, (N. Y.) 226. {d) II Wend. 30. (c) 12 111. 15; 5 Johns. 168. (d) 28 111. 240. See 27 111. 478 ; 11 Bradw. 370 ; 8 Bradw. 279; 9 Bradu'. 71; 15 Bradw. 189. DEBT. 319 Declaration. Assignments of breaches of the condition of a bond must be specific enough to inform the defendants of what par- ticular acts they have been guiUy. (e) In a declaration on a bond conditioned that the defend- ant would not suffer any unlawful assemblies about his house, an assignment of a breach that he did suffer un- lawful assemblies in and about his house during the con- tinuance of his license is not sufficient, (y") So, in a suit on a constable's bond, the declaration should set out the particular breach of duty in the officer. ( g-) It is not necessary for the plaintiff, in declaring in debt on a recognizance of bail, to allege that z.ji. fa. had been issued against the principal before the return of the ca. sa. {h) A breach of the condition of a bond " to free the land from all legal incumbrances, either by deed or mortgage, now in existence, and binding on the premises, by the 20th of February," is not well assigned by following and nega- tiving the words of the condition, and such assignment does not necessarily amount to a breach. The plaintiff ought to show some incumbrance existing at the date of the bond and on the 20th of February, or at the commence- ment of the suit, ij) In an action on a bond which was conditioned for the payment of a certain sum whenever the obligor should be released from another penal bond previousl}^ executed, it was not averred that the obligor had been released or dis- charged. The declaration was held bad. {j) In a suit on an official bond, an assignment of breaches in the declaration is held necessary. (^) Where the con- (e) 6 Ohio, 150, 153. {/) 6 Blackf. 42S. (^)6B!ackf. 32; 8 Blackf. 71 i^h) 16 Johns. 117. (0 II Johns. 6. (/) I Gilm. i; 17 Ohio, 554. (-i) 6 Ohio, 150, 153; 6 Blackf. 428. 320 DEBl- Declaration. dition of a bond may be broken by the omission or com- mission of a single act, the breach may be assigned in the words of the condition, but if it ma}^ 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 con- ditioned 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, {m) \Vhere a penal bond is executed by two parties, in which they mutually bind themselves to desist from all interfer- ence with a certain tract of land, to which each has previ- ously 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, {n) Where a declaration describes an appeal-bond to be pay- able on demand, and then proceeds to set out the condition at large, so that the true character of the bond appears, the bond ma)- be offered in evidence, although it is not payable on demand, but on the affirmance of the judgment, {o) A declaration upon an appeal-bond is sufficient, which avers that the appeal was not prosecuted, and that the judg- ment appealed 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 (/) 12 111. 267; 6 Blackf. 32; 8 Blackf. 71. \m) 48 111. 445 („) 3 Gilm. 475. (0) 14 111. 277. DEBT. 321 Declarations — Common itidebitatus count. final, or that the judge of the court from which the appeal was taken approved the bond, is unnecessar3^ (^^ PRECEDENTS OF DECLARATIONS IN DEBT. Isfo. 147. Common indebitatus couni. In the Court. Term, iS — . State of Illinois, ) ' County of , 5 set. A. B., plaintiff, by E. F., his attorney, complains ot 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 dollars, for {here state the Subject-matter of the debt, precisely as in assumpsit, ante, pages 6^-6y, and then proeeed:) 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 theretore he brings his 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 m 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 declara- tion, 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 v.-as to be the aggregate of all the sums demanded in the different counts, {q) Whether strictly necessary or (/) 22 ill. 91. {_q) I Chit. PI. 309, 325 a; 2 Id. 3S5-3S7 ; 4 Wend. 387. 21 DEBT. Declarations — Remarks. II not, ,{r) it would seem to be well to state the aggregate of the sums claimed in the several counts ; and this should be tlae debt demanded by the summons, which must demand a particular sum as the debt; (s) but this statement of the debt may be made in the breach, as in the forms here o'iven . "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, whether 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 ozces to and (the debet) should regularly be omitted in actions by or against exec- utors or administrators, who in general are to be sued in the dctinet ovA.y. {ii) But it seems this distinction is no longer strictly observed ; {v) and where the action is simply described in the commencement as " a plea of debt," which is sufKcient, [zu) 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 remaining unpaid, an action hath accrued to the plaintiff to demand and- have of the defendant the said sum of money last mentioned, parcel {or "other parcel," or "res- idue") of the said sum of dollars above demanded;" but this allegation is unnecessary, and the usual breach at the end of the declaration will suffice. "The distmction (r) See same author.; i Swan's Pr. 1S5 /', 349 «, b ; \\ East, 62 ; i Saund. 2S8, n. I. W II 111.573- (J.) I Chit. PL 309; II East, 62; i Saund. 28S, n. I. (k) i Chit. PI. 310; 2 Id. 3S5/. {v) I Swan's Pr. 1S5 i ; 3 Dowl. P. C. 211 ; 5 Dane's Ab. 102; 2 Chit. PI., 8 Am. ed. 383/. (w) I Swan's Pr. 1S5 i ; Wil. Pr. 82, 83, n. See i Chit. PI., 11 Am. ed. 361. DEBT. 323 Declarations — Payee against maker of note. is said to be, that whenever the debt arises merely by the judgment or obligation, etc., and not from anything dehors^ a non-performance of the obligation is to be laid, and the conclusion is to be with the breach ad damnum; but that where the debt arises, not by the obligation 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." (x) The clause "whereby," etc., is not, it seems, in the old entries, e.xcept in cases where the debt arises from some misfeasance, as on a penal stat- ute, or against a sheriff for an escape, or on leases, awards, etc. {y) Ko. 148. Payee against maker of -promissory note. Special con, it on note, and consolidated common counts. In the Court. Term, 18—. State of Illinois, County of , 5 set. 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, 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 dd^y Jirst 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 delivered by the plaintiff to the detendant, 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 liive sum lor work and services before that time done (*) I Chit. PI. 310. Gilb. tit. Debt, 414, 415. See i Swan's Pr. 385 a. ( v) 2 Chit. PI. 3S5 /•; Gilb. tit. Dobt, 413; i Swan's Pr. 385 a. 324 DEBT. Declarations — Payee against maker of note. 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 bis request ; and in the like sum for money before that time paid and expended by the plaintiff for the use of the detendant, 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 : 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 payment 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 agg?'egate of all the sums de- manded in the several counts), or any part thereof, but refuses so to do ; to the damage of the plaintiff of dol- lars, and therefore he brings his suit, etc. The damages, in this action, are in general merely nom- inal ; but if there is a demand for interest, the damages laid should be sufficient to cover it. Interest, whether expressly reserved in the contract, or given by law, is an incident to the debt, and is recovered in the form of damages, without being specially claimed in the declaration ; {z) though where given by a statute, as a penalty, it must be specially claimed, {a) It is unusual to bring debt on notes not under seal, ex- cept where counts on such notes are joined with counts on specialties or records, for the purpose of saving multiplicity ol actions. (ar) 2 Scam. 313. (_«) I Scam. 415. DEBT. 325 Declaration on bill of exchange. Where an instrument provides for the payment of in- terest — 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 u^ to the maturity of the instrument ought to be considered a part of the debt, and that only the interest which has ac- crued after the maturity of the instrument should be con- (.■>idered as damages. In Marsh v. Wright, 14 111. 248, where the plaintiff declared in debt, for work and labor done, the court said : "As interest was not specifically claimed in the declara- tion, it could not be considered as part of the debt. If recoverable at all, it was onlv as damages for the detention of the debt. Judgment should have been entered for the amount of the indebtedness established by the evidence, as the debt, and for the amount of the interest due thereon, as the damajjes." 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 received, four months after the date of the said note, ■promised the plaintiffs to pa}' them, or their order, without detalcation, the sum of four hundred dollars," etc., and the rount concluded with a request and refusal to pa}^ The r.ourt held this to be a sufficient count in debt, the word promised not being used by way of averment to show the liability of the defendant, but as descriptive of the instru- ment, {b) No. 149. On a bill of exchange — pyayce against drazvcr, on default of payment. ( Conunence as in last precedent.^ For that whereas the detendant, on, etc., in, 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 ^iiereof, to the plaintiff, or his order, the sum of dol- (3) 3 Gilm. loi. Id. 75; 16 111. lo-;. 326 DEBT. Declawtion on an award. lars, for value received, zvith interest thereon, etc. ; which said bill the said G. H., on the day j^rst aforesaid, upon sight thereof, there accepted : And the plaintiff avers, that when 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, according 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 de- fendant then and there had notice : By means whereof the detendant then and there became liable to pay to the plaintiff, on request, the said amount of the said bill ; and being so liable, the defendant, in consideration thereof, then and there agreed to pay the said amount to the plaintiff', on request. {Add coiints on the consideration of the bill betiuecn the ■plaintiff and the defendant , the money counts, interest, and account stated — the consolidated coniinon counts, as in the last -precedent, may be used — and the follozving breach :) Yet the defendant, though requested, has not paid to the plaintiff' the said amount of the said bill and the several other sums ot money above specified, 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. See forms No. 36 and No. 38, (ante, pages 109, 110,) and the observations thereunder. JVo. 150. Oil a?i aivard, where the submission ivas by arbitration-bonds. {Commence as in No. 147, ante.) For that whereas, certain differences having arisen and being depending be- tween 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 [Jiere set oat DEBT. 327 Declaration on an award. the substance of the condition, which maybe thus — ) abide the award and determination of E. F., an arbitrator indif- ferently elected and named, as well by and on the behalf of the defendant as by and on the behalf of the plaintiti', to arbitrate and award concerning all actions, causes of action, controversies and demands whatsoever, theretofore had, brought, or depending by and between 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 parties in difference, or whichever ot them should desire the same, on or before, etc. And the plaintiff' fur- ther savs, that the said E. F., having taken upon himself the burden of the said arbitration, did in due tnanner, 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 matters in difference be- tween the said parties, ready to be delivered to the said parties in difference, or whichever of them should desire the same, and did thereby award that the defendant should pay to the plaintiff' the sum of dollars, {^set out the award so far as relates to the payment of the mon-ey,) which, Vvhen paid, should be in full satisfaction of all claims and demands of the plaintiff' upon or agamst the defend- ant, for or in respect of the said matters m difference ; and the said E. F. did thereby further award, that the plaintiff should pay dollars as and lor 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 parties respectively should bear their own costs of that reference ; as by the said award, rel'erence being thereunto had, will more fully appear; of which said award the defendant, on the day last albresaid, there had notice. And although the defendant did after- wards, to wit, on, etc., pay to the plaintiff' the said sum of dollars in the said award mentioned, 3-et the defend- ant has not paid to the plaintitf the said sum of dol- lars in the said award mentioned, or any part thereof, although to pay the last-mentioned sum of money the de- fendant 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 money paid, interest, and on an account 328 DEBT. Declaration on judgment of same court. stated, in debt, as in No. 148, ante, and convnon conclu- sion, as under ISfo. 147. Where the submission is by bond, the plaintiff has an election 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, [c) 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, {d^ But if there is any condition precedent, etc., to be performed by the plaintiff, it should be stated, and perlormance, or a tender and refusal, averred. A verbal award may be set forth substantially, {e) In setting forth an award, it seems hardly safe to say that *' among other things" it was awarded; but there are au- thorities which hold this good, {f) In an action of debt on an arbitration-bond, it is only necessary 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. (^*) ]Vo. 151. On a judgment of the same cow't. {Commence as in No. 147, ante.) For that whereas the plaintiff, in the term of the said Court, in the year 18 — , to wit, on, etc., in the same year, by the considera- tion and judgment of the said court recovered against the defendant, 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," ac- cording to the record,) and also the costs of the plaintiff in (c) 2 Saimd. 62, n. 5. (^) I Ld. Raym. 115; Bur. 278. (e) 2 Vent. 242. (/) I Mod. 36: 01. Prec. 506. {g) 2 Scam. 35. DEBT. 329 Declaration on judgment of court of another state. that behalf, taxed at the sum of dollars, whereof the defendant was convicted ; as by the record thereof, remain- ing in the said court, more fully appears ; which said judg- ment still remain? in full force : Yet the defendant has not paid to the plaintiff the said sums of money so by him re- covered 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 the interest.) In an action on a judgment for the defendant, for costs, the recovery may be described as being for "the costs of the plaintiff, taxed at the sum of dollars, by him ex- pended in and about his defense of a certain action of, etc., then lately prosecuted 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. (Ji) The allegation that the judgment remains in full force, though usually inserted, is not necessary, {i) No. 152. On a Judgment 0/ a court 0/ another state. {Commence as in No. 147, ante.) For that whereas the plaintitr, in the term, in the year 18 — , of the Courtof the county of , in the state of , to wit, on, etc., in the same year, by the consideration and judn-ment of the same court recovered against the defendant, in a certain action of , the sum of dollars, damao^es, {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 de- fendant was convicted ; as by the record thereof, remaining in the same court, more fully appears ; which said jud(»-- (Ji) 2 Chit. PI. 483, notes; Com. Dig. PI. 2 W. 12; 2 Str. 1171; 4 Wend. 207; 4 Ohio, 397. See 2i 111. 85. f; ) 2 Chit. PI. 484, n. ; i Saund. 330, n. 4. 330 DEBT. Declaration on judgment of justice of another state. ment still remains in full force : Yet, etc. {concluding as in last pj-c cedent.) By the constitution of the United States, and the acts of Congress, judgments in -personam in the various states are placed on the same footing as domestic judgments, and are to have the same force and credit, when sought to be en- forced in other states, as the}^ have by law or usage in the particular states where rendered, {j) The settled construction ot 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 ana effect, in every other court in the United States, wdrich 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, {k) The legal presumption, in the absence of evidence to the contrary, is in favor of the jurisdiction of a court of record of another state, which has assumed to exercise jurisdiction over a subject-matter in controversy between parties re- siding there. (/) A judgment which by the laws of the state where ren- dered is conclusive on the parties, is equally so when suit is brought thereon in another state. (;;z) No. 153. On a jtidgment of a justice of the peace of an- other state. {^Commence as in JVo. 147, ante.) For that whereas the plaintiff, on, etc., before one F. G., Esquire, one of the justices of the peace within and for the count}'^ 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 plaintiff in O) 3 Gilm- 198; 4 Scam. 539; Breese, 169; 14 III. 249. {k) 3 Wheat. 234; 7 Cranch, 481 ; 32 III. 304. (/) 4 Cowen, 292; 6 Wend. 447; 19 Johns. 33; 12 Ohio, 253; i Day, 163; I Hall, 155 ; 13 Peters, 312 ; 34 111. 169 ; 44 111. 202. (w) 44 111. 32. DEBT. 331 Declaration for rent, on a demise. 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 detendant, 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 imich of the 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, 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 there- fore 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, [n) 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 judg- ment was rendered, that the justice had jurisdiction of the subject-matter upon which he attempted to adjudicate. {0) JVo. 154. Declaration in action for rent, on a demise. [Commence as in No. 147, ante.) For that whereas the plaintitr, on, etc., in, etc., demised to the defendant a cer- tain parcel of land, with the appurtenances, 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 therefor, during the said term, to the plainlilT, the yearly rent of dollars, payable quarterly, that is to say, on, etc., etc., by equal portions; by virtue of which said demise, the defendant, on the day first aforesaid, en- tered into the said demised propert}^, and was possessed thereof from thenceforth until the day of, etc., wlien («) 7 Wend. 435; 3 Wend. 367. See 6 Wend. 438; 2 Cow. & Hill's Notes to Phil. Ev. 103, no. (o) I Scam. 558; see elaborate note, by reporter, to this case. 332 DEBT. Declaration for rent, on a demise. 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 the defendant, on, etc., in, etc., w^as indebted to the plaintiff in the further sum of dollars, tor the use and occupation of a certain other parcel of land of the plaintiff, H'ith the appurtenances-, by the defendant held, used and \.:ccupied, at his request, and by the sufferance and permis- ision of the plaintitf, for a long space of time before then iilapsed; which last-mentioned sum of money was to be I aid by the defendant to the plaintiff, on request.. {Breach.) Yet the defendant, though requested, has not (.•aid to the plaintiff the said sums of money so due -to him fjs aforesaid, together amounting to the sum of dollars, or any part thereof, but refuses so to do ; to the damage of llie plaintiff of dollars, and therefore he brings his sjit, etc. The first count of the above form may be used, whether ihe demise was by deed or by parol. It is settled that in debt for rent reserved by deed, (except of incorporeal her- editaments,) the plaintiff may declare without stating the uieed. This is the only case in which the plaintiff is allowed lo declare generally, and to produce a deed in evidence in ^.upport of such declaration. (_^) When the declaration jets out the lease, it is similar to the declaration in covenant br rent, {ante. No. 140,) except in the commencement and conclusion, {q) It is not necessary to show the local situation of the de- mised property, (r) 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, {s) (/ ) 2 Chit. PI. 430, n. ; i Saund. 276, n. i, 202, 325, n. 4; i New R. 104, 109. (<7) 2 Chit. PI. 0.7.0, n. ^/'; iDia. ; 3 M. & 5>. 380; 4 Taunt. 25; 6 East, 348. (5) 2 Chit. PI. 431, n. ; 6 T. R. 62; 5 Taunt. 25. DEBT. 333 Declaration on single bill — Observations — Profert. No. 155. On a single bt'll, or sealed note. {Commence as in JVo. 147, ante.) For that whereas the defendant, on, etc., in, etc., by his writing obHgatorv, bearing date of that day, and now to the court here shown, bound himself to pay to the plaintiff, after the said date thereof, the sum of dollars : Yet the detend- ant has not paid to the plaintiff the said sum of tnonev, 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 may be inserted, with the general breach; as in No. 148. Where a sealed instrument is declared upon, and de- scribed as such, or a word of art used which imports that it is sealed, such as "writing obligator}^," " deed," or "in- denture," a delivery is never averred ; and the sealing and delivery, without an averment thereof, will be implied. (/) An instrument tinder seal is not a ^promissory note, though like one in form, (u) 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, some- times called a single bill, and differs in nothing from a promissory note but in the seal which is affixed to it." {v) Profert. — The omission of a -profert^ when necessary, can be taken advantage of only by special demurrer, {w) If however a bond or other deed is pleaded with a -pro- fert., (where necessary,) and the defendant pleads non est factum., and the plaintiff can not produce the deed at the trial, he will be nonsuited. It is therefore sometimes neces- sary 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 ac- (/) I Saiind. 291, n. i. («) 2 Bouv. Die. 392. See 16 111. 105. (f) 2 Bouv. Die. 179; 2 Serg. & Rawle, 115. (w) I Chit. PI. 315; Com. Dig., tit. PI. S. 17; See Rev. Stat. (1S77) 736. ^34 DEBT. Actions on penal bonds — Judgment therein, etc. cident,' or 'by the defendant,' or 'being in the possession of the defendant,') the plaintiff can not produce the same to the court here." (.r) But in lUinois, by statute, it is not necessary, in any pleading, to make -profert of any instru- ment, (jy) Actions 071 penal bonds for the performance of cove- nants — Statute. — Section 20 of the Illinois practice-act provides, that "in actions brought on penal bonds, condi- tioned for the performance of covenants, the plaintiff shall set out the conditions thereof, and may assign in his decla- ration as many breaches as he may think fit ; and the jury, whether on trial of the issue or of inquir}?-, 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 afterwards, sue out a writ of in- quir}?-, 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 only collect the amount so indorsed : 'Provided, 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 defend- ant, or his agent or attorney, shall have at least ten days' notice, in writing, of the time of executing the same." {z^ yudgjjient, 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 ntpnero, to be discharged by the payment of the damages assessed, which are to be found separately. The execution issues for the debt, with (*) 2 Chit. PI. 439; 4 East, 585; 2 Campb. 557. (r) Rev. Stat. (I^74) 777; Rev. Stat. (1S77) 736. {Z) lb. DEBT. 335 Declaration on an appeal-bond. an indorsement, by the clerk, of the amount of the dam- ages, which amount only the officer is to collect, (a) JVo. 156. On a bond given on an appeal to the Supreme Court. {Title 0/ court, etc.) A. B., plaintiff, b}^ E. F., his attorney, complains of C. D. and G. H., defendants, of a plea that they render to the plaintiff the sum of dol- lars, [the penalty,) which they owe to and unjustly detain Irom him : 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 hrmly bound unto the plaintitf in the said sum of dollars, to be paid to the plaintiff; which said writing ob- ligatory was and is subject to a certain condition there- under written, whereby, after reciting to the effect that in the term, in the year 18 — , of the said Q\yc\x\\Co\\ii of the county of aforesaid, on the da}- 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, dam- ages {or "the sum of dollars, debt, and the further sum of dollars, damages for the detention thereof," jccording 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 Su- preme 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 the 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 remain in full force ; as by the said writing obligatory, and the said condition thereol, re- maining affiled in the said Cncuit 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 consideration of the same court (*) the said judgment in the said writing obligatory (rt) 2 Scam. 571 ; i Gilm. 347 ; 4 Gihn. 136; 11111.452,562.36111.458; 54III. i^t; 69 111. 253; 72 III. 71.' 336 DEBT. Declaration on an appeal-bond. 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 convicted ; nev- ertheless 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 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 defendants, though requested, have not paid that sum of money, or any part thereof, to the plaintiff, but re- fuse so to do ; to the damage of the plainuff of dol- lars, and therefore he brings his suit, elc. {Lay the damages at a sum sufficient to cover the judgment., interest and costs.) If the appeal was dismissed, then in lieu of the words between the two asterisks, say : "the said appeal was dis- missed for want of prosecution, {or 'for a failure to lile 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 behalf, 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 writ- ing obligatory mentioned, and the interest thereon, and the damages and costs last aforesaid, or any part of the same." The dismissal ot an appeal or certiorari is held to be equivalent to an affirmance of the judgment of the court below, so as to entitle the obligee to claim a forfeiture of the bond, and to have his action thereon, {b) 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 i^b) 2 Scam. 571; 22 111. 91. DEBT. 337 Declaration on an appeal-bond. the Supreme Court a transcript of the record, (c) it would seem th;.t 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 judg- ment appealed from w^as final, or that the appeal-bond was approved by the court, (d) 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, (e) But where an appeal-bond contains conditions which are not required by the statute, such conditions are not obligatory on the makers. ( /) The obligors in an appeal bond are estopped by their bond to deny the existence of a valid, unsatisfied judgment, at the time. the bond was 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 statu tor}- 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. {/i) {c) Rev. Stat. (1877) 74",- (a-) 22 111. 91 ; 78 111. 208. (e) 3 Scam. 347; 3 Gilm. 55. (/) 39 111- 225. {£■) I Bradwell, 171. (A) 36 111. 458; Gilpin's R. 178; 2 Green, (N.J.) 480; 7 Men. 317. See 48 III. 445- 22 338 DEBT. Declaration on a replevin-bond. No. 157. On a replevin-bond {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 render 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 described, 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 re- plevin, 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 chattels, if return thereof 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 sheritT should have that writ, together with such bond, before the said court, on the first day of the then next term thereof; which said writ, on the day first aforesaid, was there delivered, for execution thereof, to the plaintiff, who then and from thence until and at and after the time of the making of the writing obliga- tory hereinafter mentioned, and the replevying of the said goods and chattels as hereinafter mentioned, was sheriff of the county aforesaid : And thereupon the plaintifl^, so being DEBT. 339 Declaration on a replevin-bond. 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 vahie of the said goods and chattels so about to be replevied; 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 tirst aforesaid, did jointly and severally acknowledge them- selves to be held and firmly bound unto the plamtiff, so being such sheriff as aforesaid, in the sum of dollars above demanded, to be paid to the plaintiff; which said writing obligator}' was and is subject to a certain condition thereunder written, to the effect that if the said E. F. should prosecute his said suit to effect, and Mathout 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 replev34ng the said goods and chattels, then the said writing obligatory was to be void, otherwise to remain in full torce ; as by the said writing obligatory and the said condition thereof, remaining affiled in the said court, will appear : And thereupon the plaintiff, so being such sheriff as aforesaid, b}' virtue of the said writ then and there re- plevied and made deliverance of the said goods and chat- tels to the said E. F., as by the said writ the plaintiff was commanded: (*) And thereupon afterwards, in the said court, as of the said term thereof, in the year i8 — , the said E. F. declared against the said C. D. in the said plea of taking and detainmg the said goods and chattels, and by the said declaration complained that the said C. D., on, etc., aforesaid, in, etc., aforesaid, took the goods and cliattels 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 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. 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 re- fused, and still refuses, so to do ; whereby an action has accrued to the plaintiff to demand of the defendants, for 340 DEBT. Declaration on a replevin-bond. the use aforesaid, the said sum of dollars above de- manded. Yet the defendants, though requested, have not paid to the plaintiff the said sum of money above demanded, or any part thereof, but refuse so to do ; to the damage of the plaintitT, 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 re- plevin, then proceed, from the asterisk in the atove form, as follows : And the plaintiff in fact says, that the said E. F. did not prosecute his said suit to etlect, 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 re- turn of the said goods and chattels, but has hitherto refused, and still refuses, so to do : Whereby, etc. {as in the above precedent^ to the end.) The following is suggested as a shorter, and probably sufficient, form of declaration on a replevin-bond, {i) JVo. 158. Another form of declaration on a replevin- bond. iyCommence 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 acknowl- edge themselves to be held and firmly bouiid 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 writing 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 C. D., for the recovery of certain goods and chattels in the said (/) See I Swan's Pr. 364 b; 5 Mass. 314; i Met. 508; Wil. Dig., tit. Bond. DEBT. 341 Declaration on a replevin-bond. condition described, and that the plaintiff, so being such sheriff, was about to execute the said writ, it was provided that if the said E. F. should prosecute his suit in that be- half 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 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, remain- ing 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 part thereof, 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, etc. {^concluding as in last ^?'ecedent.) 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. (J) An averment of the issuing of a writ of retorjw habendo is unnecessary in an action on replevin-bond, {k) 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. (/) The breach need not be set out in broader terms than those used in the condition, nor need the proof be more (>) 5 B & C. 284; 2 Chit. PI. II Am. Ed. 462, n ; 2 Scam. 539. {k) 2 Scam. 539; 2 Chit. PI. 462. n. ; Willis, 6. {/; 22 111, 205; 21 111. 656; 7 Bradw. 215; 10 Bradw. 216. 342 DEBT. Declaration on a replevin-bond. extensive than the breach, (in) The declaration concisely states the proceedings in replevin, and the failure to fultill the condition of the bond, and need not set out the goods replevied, (n) The condition of the bond should be cor- rectly stated. (remises the said A. B. has been and is deprived of the means of obtaining the said moneys so commanded to be levied as aloresaid, and which are still wholly unpaid ; and thereby an action has accrued to the plaintiff to demand ot the defendants, for the use aforesaid, the said sum often thousand dollars above demanded : Yet the defendants, though requested, have not paid that sum, or an}^ 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 property," 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 atbresaid, afterwards, to wit, on, etc., there 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 deceittuU}' returned," etc. In an action (on the case) against a sheriff, for failing to make the amount of an execution, the declaration con- 346 DEBT. Declaration on a sheriff's bond. tained two counts, the first averring in substance that the sheriti' took certain personal property in execution, but did not make the money out of the same, and "wrongfully, falsely and deceitfully" returned upon the writ that the suit having been appealed, 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 substarfce 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 "wrongfully, 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 tailing to seize prop- erty, or, having seized property, in failing to sell it and make the money ; and that the matter of the return was not essential, (v) It is perhaps unnecessary to allege the taking ol the oaths by the sheriff, (za) In an action on an appeal-bond, it is held, the approval of the bond need not be aver- red, (x) Where a person was elected a justice of the peace, and within the required time gave a bond, which was detective in its condition, and alter the expiration of the required time he gave another bond, which was good, — it was held that the former bond being in.sufficient, and the latter not having been given in time, the olhce became vacant, [y) The fact that the oflicial 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 iv) 48 111. 525. (w) 1 Swan's Pr. 368/5. (a;) 22 111. 91. (j) 3 Gilm. 59. DEBT. 347 Declaration on a sheriff's bond. given, it is not necessary to set out the order of the proper authority requiring the same, (z) If an officer, in whose hands an execution is placed, so dehiys making a proper seizure of property, without the consent of the creditor, that the rights of other parties in- tervene, the creditor has his remedy against die officer, (a) In an action against a sheriff lor laiHng to make the money on an execution, the damages are not necessarilv the amount of the execution, but only such damages as the plaintiff actually suffers by the sheriff's neglect, (d) Where a sheriff accepts an assignment of a chattel mort- gage as collateral security for the payment of a judgment, upon which he has an execution in his hands, the plaintiff in execution, 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, (c) An officer having an execution must use due dilio-ence to make the amount thereof out of the property of the de- fendant in his county, {d}' In determining the amount of property necessary to be taken to satisfy an execution, the officer should make an allowance for the sacrifice usualh^ 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 manao-e- m.ent of their own business. And while he ought to take property enough, at the same dme he should not make a seizure so excessive as to bear on its face the appearance of oppression and unnecessary rigor, (e) (z) 54 III. 163. (a) 31 111. 120. (*) 30 111- 339- (c) 28 111. 48. (d) 4 Scam. 328; Breese. 401 ; 31 III. 120: 48 111. 525. (e) 30 111. 339; 37 Penn. State R. 1S7; 10 N. Y. (6 Selden,) 39S; 3 Bibb 359; 7 C. Men. 29S; 5 Eng. (Ark.j 28. 348 DEBT. Declarations on guardians' bonds. An officer who should refuse to proceed upon a second execution, where the first had been stayed by an agree- ment between the parties to it, would be liable for a false return. {/) A fee-bill is "process,'' and has the effect of an execu- tion ; ( »■) 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 sheriff for not levying a fi- fa. is not taken away b}^ a dis- charge of the debtor, by the creditor, from a ca. sa. issued at his instance, (although such a discharge might be a sat- isfaction of the judgment,) where the creditor's right of action against the sheriff w-as perfect before such dis- charge, (yi) On the subject of the liabilit}- of sheriffs, see the addi- tional Illinois cases noted below. (/) No. i6o. On a gtiardiaii's bond— for the use of the zvard^ after coming of age. ( Commence as in last ^precedent.) For that whereas in the term, in the year i8 — , 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 3-ears, per- sonally appeared before that court, and made choice of the said C. D. as his guardian ; and thereupon the said C. D. was b}^ the same court then and there approved and ap~ pointed as guardian of the person and estate of the said A. B. ; and the same court then and there took and ap- proved a bond of the said C. D., with the said E. F. and G. H. as two sufficient sureties, in double the amount ot the real and personal estate of the said A. B., according to the form of the statute, etc. : And on that occasion they (/) Breese, 401 ; 26 111. ?2i ; 15 Ind. 43. See 31 111, 2\ 'g-) 2 Cilm.678; 5 Gilm. 96; 17 111. 344. (h) 4 Scam. 360; 3 Met. (Ky.) 1S4; 24 Texas, 12. (/) Breese, 401. {/) 4 Scam. 560; 2 Gilm. 731 ; 4 Gilm. 99; 5 Gilm. 321 ; 20 111. 133; 24 111. 570; 46 111. 398; 50 111. 195. DEBT. 349 Declarations on guardians" bonds. the said C. D., E. F. and G. H., defendants, then and there, by their writing obligatory, bearing date of that da}', jointly and severally acknowledged themselves to be held and firmly bound unto the plaintiff in the sum of dol- lars above demanded, to be paid to the plaintiff; which said writing obligatory was and is subject to a certain con- dition thereunder written, to the effect that if the said C. D. should faithfully discharge the office and trust 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 tor the best interest of the said A. B., and should faithfully discharge his the said C. D.'s 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 said C. 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 representa- tives, 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 law- fully entitled thereto, then the said writing obligatory should be void, and otherwise should remain in full force and vir- tue ; as by the said writing obligatory and the said condi- tion thereof, remaining 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 guard; an 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 ot tlie said writing obligator}-, the plaintifT says, that after 350 DEBT. Declarations on guardians' bonds. the said appointment of the said C. D. as such guardian, and the making of the said writing obligatory, as aforesaid, and before the da}^ 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 such 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 re- fuses, 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 the day last aforesaid, was there lawfully entitled thereto, and the said CD. was then and there requested to pay over the same to him the said A. B. And for assigning a further breach of the said condition of the said writing ob- ligator}', 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 ac- crued to the plaintiff to demand of the defendants, for the use aforesaid, the said sum of dollars above demanded : Yet the defendants, though 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 afore- said, of dollars, and therefore, for the use aforesaid, the plaintiff brings suit, etc. It is suggested that the declaration might be somewhat more concisely framed, as follows : For that whereas the defendants, on, etc., in, etc., by iheir writing obligatory, bearing date of that day, jointly and severally acknowledged themselves to be held and lirml}' bound unto the plaintiff in the sum 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 C. D., who had been appointed guardian of the said A. B., should faithfully discharge tlie office and trust, etc. {setting out the condition, as in the above precedent) ; as by the said writing obligatory and the said condition thereof, remain- ing affiled m the same court, will appear : And although the said C. D. then and there took upon himself the said office and trust of guardian of the said A. B., as in the said DEBT. 351 Declarations on guardians' bonds. condition mentioned, and thenceforth was sucli guardian nr;.til the day of, etc., when the said A. B. became of full age ; nevertheless the plaintiff in fact sa^'S, that the said C. D. did not faithfully discharge his said office and trust, etc. {proceeding as in the above -precedent.) JSfo. 161. On a guardian's bond — -for the use of the suc- cessor of a guardian who has been removed. (^Title of coiirt., etc., as in JVo. 147, ante.) The Peo- ple of the state of Illinois, plaintiff, which sues in this behalf for the use of J. K., complaixs 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 A^o. 160, to the aster- isk) : 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 he the said C. D. was b}" 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 the said A. B., according to law, but neg- lected 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 sa3's, that {here set out any particular act or omission constituting a breach). And for assigning a further breach of the said condition of the said writing obligatory, the plaintiff says, that {here set out any other breach). By reason of which said breaches the said writing obligatory became forfeited, and thereby an action has accrued, etc. {concluding as in JVo. 160.) In the case of Bond v. Lockzuood, 33 111. 212, (186-1,) the coi.rt says that the etatute 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. 35 -i DEBT. On guardians' bonds — Observations. 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 conferred, 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 powders, rights, duties and liabilities of guardians. If a guardian buys land with the ward's money, the w^ard ma}^ elect to take the land, or consider it as a security for the money. (/;) 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 wdth in- terest upon any money which he wrongfully or negligently allows to remain in his hands uninvested after the same might have been invested. (;;/) Guardianship of a female ward determines on her mar- riage ; otherwise of males, (n) 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, [o) See the statute of Illinois concerning guardians and wards, and the additional cases noted below, (p) (A-) Dana, 223; 15 Ohio, 655. (/) 14 111. I ; I J. C. 620; 10 Pick. 78; 5 Dana, 77; ! Am. Lead. Cas. 36.^. (m) Rev. Stat. (1874) 561; 2 Rev. Stat. (1877) 539. («) I Ves. Sen. 159, note. {o).Rev. Stat. (1874) 562; Rev. Stat. (1877) 541. (/) Rev. Stat. (1S77) 537;4 Scam. 127; i Gilm. 173; 3 Gilm. 435 ; 5 Gilm. 196; 11111.625,642; 12 III. 424; 15 111.10,62. 187,444,481; 19111.29,; 21 111.443; 23 111. 43; 27 111. 148,387; 29 111. 165,482; 34 111. 112; 41 Hi. 391 ; 43 111. 18; 46 111. 303; 47 111. 25; 49 111. 473; 82 111. 84. DEBT. 353 Dech ration on an administrator's bond. No. 162. On an administrator'' s hand. [Commence as in No. 159, ante.) For that whereas in the term, in the 3'ear 18 — , of the County Court of the county aforesaid, to wit, on, etc., in that year, the said C. D. was by the same court appointed administrator of the estate of one J. K., deceased, and w^as 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 double the value of the said estate, according to the form of the statute, etc. : And on that occasion the defendants then and there, b}^ their writinn- obligatory, bearing date of that day, jointly and severally acknowledged themselves to be held and firmly bound unio the plaintifl' in the penal sum of dollars, current money of the United States, 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., ad- ministrator 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 administrator, or to the hands of any person or persons for him, — and the same zo made should exhibit or cause to be exhibited in the said County Court, agreeably to law, — and such goods and chattels, rights and credits should well and trul}' adminis- ter according to law, — and all the rest of the said goods and chattels, rights and credits which should be found re- maining 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 thereunto required by the same court, — and if it siiould appear that any last will and testament was made by the said deceased, and the same should be proved in court, and letters testamentar}' or of administration be obtained thereon, the said C. D. in such case, on being required thereto, should render and deliver up the letters of admin- 354 DEBT. On administrator's bond — Observations. istratiofi granted to him as aforesaid, — and should in gen- eral do and perform all other acts which might at any time be required of him b}"^ law, — then the said obligation was to be void, and otherwise to remain in full force and virtue ; as by the said writing obligator}^ and the said condition thereof, remaining affiled in the same court, will appear : And thereupon the said C. D. then and there took upon himself the administration of the said estate, and thence- forth 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 admin- istrator, according to the said condition of the said writing obligatory, but has neglected and reiused 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 i8 — , of the said County Court, to wit, en, etc., in that year, by the consideration of the same court the said A. B. recovered against the said estate of the said J. K., deceased, the sum of dollars, to be paid in due course of administration, as a debt of the class ; (*) and although at and since that time divers moneys and ef- fects 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 monej's and effects, and con- verted and disposed of the same to his the said C. D.'s own use. And for assigning a further breach of the said con- dition 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 obliga- tory has become forfeited, and thereby an action has ac- crued, etc. {concluding as in No. i6o, ante.) 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 No. i6o, ante; after which the declaration might proceed; "Anr. although the said C. D. thereupon then and there took upon himself the administration of the said estate, as in DEBT. 355 On administrator's bond — Observations — Devastavit, etc. the said condition mentioned, and thenceforth has been, and still is, such administrator as aforesaid ; nevertheless the plaintiff in fact sa3's, that the said CD. has not faith- fully discharged his- duties as such administrator, accord- ing to the said condition, but has neglected and refused so to do, to the injury," etc. Section 132 of the statute of wills of 1829, (Revised Laws of Illinois, 653, R. S. 564, sec. 137, Gross' Stat. 825,) provided that a failure on the part of any executor or admmistrator to comply with the statute, or his bond, should be a sufficient breach to authorize a recovery against him or his sureties, or botli, "in the same manner as though a devastavit had been previously established against such executor or administrator." {q) This section, and the 121st of the same act, (providing that a failure by an executor or administrator to pay over moneys, when oi"dered, should be deemed a devastavit — R. L. 650, R. S. 562, sec. 126, Gross' Stat. 823 — ) are repealed by the act of 1872, and are not re-enacted or embodied in that act. {r) Bet'ore the act of 1829, ^t was held that an action could not be maintained on an administrator's bond until a devastavit had been first established, by judgment or decree, against the adminis- trator. (5) It is not essential to a right of recovery that a devastavit shall have first been established against the administrator. Since the case of Briggs v. Postlewaite , Breese, 198, a statute has been passed which dispenses with proof. If a devastavit, in all actions on bonds of execution and administrators, {x) A devastavit may be alleged in the following manner — pro- ceeding thus from the asterisks in the above form : And the said judgment still remaining whollv unsatis- fied, the said A. B. afterwards impleaded the said C. D. in {jj) I Scam. 83. (r) Rev. Stat. (1S77) 690. \s) Breese, 19S, 252, 254; i Mumf. i; 2 Munf. 24; i Wash. 31. (.»■) 87 111. 76. 35<5 DEBT. On administrator's bond — Observations — Devastavit^ etc. the said Court, to the term thereof, in uie same year, and declared against him in a plea of debt, alleging the said judgment ; and in and by his declaration in that behalf the said A. B. averred, that at the time of the re- covery aforesaid divers goods, chattels and mone3^s which were of the said J. K., at the time of his death, of great value, to wit, of the value of the sum of money so recov- ered as aforesaid, had come to the hands of the said C. D., as administrator as aforesaid, to be administered, which said goods, chattels and moneys the said C. D. afterwards, to wit, on, etc., there eloigned, wasted, and disposed of and converted to his own use, etc. ; and such proceedings were thereupon had in that plea, that in the same term, to wit, on, etc., by the consideration of the same court the said A. B. recovered against the said C. D. as well the said sum of dollars, the debt in that plea demanded, as the further sum of dollars, damages for the detaming of thc.t debt, and the costs of the said A. B. in that behalf, taxed at the sum of dollars ; and the same debt, dam- ages and costs still remain wholly unpaid to him the said A. B. By means of which premises, etc. A failure to collect debts which might be collected is waste b}^ an administrator, and he is chargeable with the loss, [t) An averment that the administrator has not complied with an order of the County Court directing the payment of a claim against the estate, is a sufficient averment that the money or- dered to be paid had not, in fact, been paid to the party enti- tled to the same, {ii) In an action upon an administrator's bond, at the instance of a creditor, a right of recover}^ exists, -prima facie^ if it appears that the person for whose use the suit is brought holds a claim against the estate, and that the administrator has been guilty of a devastavit to the extent of such claim. It is not essential to such right of recovery that the creditor- should prove there were no assets to which he could resort {t) 17 Md. 1550. (?.<) 87 111. 76. DEBT. 357 On administrator's bond — Observations — Devastavit, e.c. for the satisfaction of his claim. Even if it should appear that there were assets sufficient to satisfy the creditor, the right of recovery on the bond would perhaps not thereby be defeated. (54 111. 263.) This case was decided before the passage of the act of 1872, above mentioned. Creditors, heirs and distributees only, and not an admin- istrator de bonis non, can charge a former administratoi with a devastavit, {v) In Ralston v. Wood, 15 111. 159, the court says that a suit upon an administrator's bond, for a failure by the ad- ministrator to pay over money adjudged by a probate court to be paid, is a collateral action, founded as well upon that judgment as upon the bond ; and in such action the judg- ment can not be inquired into by those affected by it — neither by the administrator nor his sureties — except for fraud. For a breach of the condition of an executor's or admin- istrator's bond, an action may, in Illinois, be maintained against any one or more of the obligors ; (w) and the bond may be described as the bond of those of the obligors who are sued, without noticing the others, {x) The statute in that rejjard is as follows: "All bonds which may at any time be given by any executor or ad- ministrator, either with or without the will annexed, or dc bonis non, to collect, or public administrator, may be put in suit and prosecuted agamst all or any one or more ot the obligors named therein, in the name of the people of the state of Illinois, for the use of any person who may have been injured by reason of the neglect or improper conduct of any such executor or administrator, and such bonds shall not become void on the first recovery thereon, but may be sued upon, from time to time, until the Avhole (v) 14 111. 8, 33S; 25111. 4S9, 600; 5 Randolph, 51; 9 Leigh, 580; 7 Bibb, t47; SBlackf. 167; 3 Rawle, 361; Bac. Abr. Ex'r. B, 2. See 15 111. 2S4; 48 111. 17. (w) I Scam. S3; 27 111. 215. C*) 54 111- 263: 50 111. 132. 358 DEBT, Declaration on an attachment-bond. penalty shall be recovered : Provided^ that the person for whose use the same is prosecuted shall be liable for all costs which ma}^ accrue in the prosecution of the same ; and certified copies of all such bonds, under the seal of the clerk of the county court, shall be received as evidence to authorize such recovery in any court of law or equity of competent jurisdiction." (jy) In Illinois, when a new bond is given by an executor or administrator, under the statute, the sureties in the former bond are released from all liability for past as well as sub- sequent acts, {z) If the executor or administrator fails to give new bond, when required, and his letters are revoked, then the sureties are released from all future liability, {a) The adjudged cases in Illinois, relating to executors and administrators, are very numerous, almost every volume of the reports containing one or more cases of this kind. No. 163. On an attachnicnt-hond {given in a suit in the same court). ( Title of court., etc., as in JVo. 147, ante.) A. B., plaint- ift", by L. M., his attorney, complains of C. D., E. F. and G. H., defendants, of a plea that they render to the said A. B. the sum of dollars, which they owe to and un- justly detain from him : For that whereas the said C. D., on, etc., in, etc., pra3'ed a writ of attachment out of the said Court of the said count}'', against the estate of the said A. B. ; and on that occasion the said C. D., E. F. and G. H. then and there, by their writing obligator}', bearing date of that day, did jointly and severally ac- knowledge themselves to be held and firmly bound unto the said A. B. in the sum of dollars, to be paid to him the said A. B. ; which said writing obligatory w'as and is subject to a certain condition thereunder written, whereby, after reciting to the efi'ect that the said C. D. had on the day aforesaid pra3'ed an attachment out of the said court, at the suit of hiinelf, against the estate of the said i\. B., {y) Rev. Stat. (1874) 109; Rev. Stat. (1877) 104; 24 111. 325. See 27 111. 215; 16 111. 173. (z) Rev. Stat. (1874) no; Rev. Stat. (1877) 106; 27 111. 215. [a) 27 111. 215. DEBT. ' 359 Declaration on an attachment-bond. for the sum of dollars, which attachment was then about to be sued out of the said court, returnable on the day of then next, to the term of the said court then to be holden, it was provided that if the said C. D. should prosecute his said suit with effect, or in case of fail- ure therein should well and truly pay and satisfy the said A. B. all such costs in the said suit, and such damages as should be awarded against the said C. D., his heirs, exec- utors or administrators, in any suit or suits which might thereafter be brought for wrongfully suing out the said at- tachment, then the said writing obri.(]^atory was to be void, otherwise to remain in full force and effect ; as by the said writing obligatory and the said condition thereof, remaining affiled in the said court, will appear: And thereupon, on the day first aforesaid, there issued from the said court the writ of attachment aforesaid, returnable as in the said con- dition mentioned, by which said writ the People of the said state of Illinois commanded the sheriff of the said county that he should attach so much of the estate, real or personal, of the said A. B., to be found in the said county, as should be of value sufficient to satisfy the said debt and the costs, according to the complaint in that behalf,' and such estate so attached in his the said sheriff's hands to secure, or so to provide that the same might be liable to further proceed- ings thereupon, according to law, etc. : And thereupon the said sherifT, to -whom the said writ was then and there delivered for execution, by virtue of the said writ then and there attached and took divers goods and chattels of the said A. B., of the value of dollars. And the said A. B. in fact says, that the said C. D. did not prosecute his said suit with effect, but that such proceedings were there- upon had in that suit that afterwards, in the said term of the said court, to wit, on, etc., it was considered by the said court that the said writ should be quashed, and that the said A. B. should recover his costs in that behalf against the said C. D. ; which said costs were and are taxed in the said court at the sum of dollars, and still remain unpaid to him the said A. B. And the said A. B. further in fact says, that by reason of the wrongful suing out of the said writ he was there obliged to and did expend di\ers sums of money, amounting to dollars, in and about his defense of that suit, and has thereby sustained damage to that amount ; yet the said C. D. (although he 36o DEBT. On an attachment-bond — Observations, etc. was on the day last aforesaid there requested by the said A. B. so to do) has not pa d to him the said A. B. the last- mentioned sum of money, or any part of the same. By means of which premises an action has accrued to the said A. B. to demand of the said C. D., E. F. and G. H. the said sum of dollars above demanded : Yet though requested, they have not paid to the said A. B. that sum of money, or any part thereof, but refuse so to do ; to the damage of the said A. B. of dollars, and therefore he brings his suit, etc. From the wording of the condition of the bond prescribed by the 5th section of the Illinois attachment-act, and from the 4th section of the same act, {b) it would seem that the obligors would only be liable for such damages as might be awarded against the principal in any suit which might af- terwards be brought against him for wrongfully suing out the writ — that is, if the defendant in the attachment-suit should, in an action brought by him, recover damages against the principal for wrongfully suing out the attach- ment, and the latter should not pay such damages, then the obligors would be liable on their bond. But in the case of Churchill V. Abraham ^ 22 111. 455, the court says, "it has never been held that the obligee could not recover the amount of the damages actually sustained by the wrongful suins" out of the attachment, until he has brou£{ht an action for maliciously suing out the writ, and recovered a judg- ment for the damages sustained. Our statute intends to afford a remedy to the defendant in attachment, if the at- tachment is not sustained, although it may have been sued out in good faith, and upon probable cause. If the party could only sue upon the bond after he had recovered a judgment for a malicious attachment, he might sustain the most serious loss by the wrongful act of the plaintiff even when it was not malicious. The plaintiff in attachment can not excuse himself because he acted in good faith. If he \d) Rev. Stat. (1874) ij3; Rev. Stat. (1S77) 150. DEBT. 361 On an attachment-bond — Observations, etc. occasions damages b}* an attachment which he can not siis- tain, he and his sureties should and must be responsible for those damages. Although the \\'ording of the bond, as prescribed by the statute, does not express the liability in language as clear as might have been selected, its meaning has been long and well settled in this state, and we should not, w^ere the language even more doubtful, feel at liberty to disturb it." {c) Although the goods may have been sold under an execu- tion after they were seized under the attachment, that does not alter the measure of the liability arising by reason of the wrongful suing out of the attachment. (^) A proceeding "in attachment was held invalid by reason of the insufficiency of the bond, which described no court from wdiich the writ issued, nor any court or term to which it was to be returned ; and the court said the bond was so wholly uncertain that it might well be doubted whether an action could ever be maintained on it, in case of a breach of its condition, (e) In another case, w^here the onl}' men- tion of the court, in the bond, was in the condition, wherein the writ was described as " returnable on the 2d day of November next, to the term of the court then to be holden," the bond was held sufficient, as it complied wath the form given by the statute then in force. (/) Where the condition of an attachment-bond recited that A. and B. had prayed an attachment at the suit of C, to their use, and provided that if A. and B. should prosecute their suit, etc. — following the form given in the 5th section of the Illinois attachment-act — the bond was held sufficient, although the 4th section of the act requires the bond to be " conditioned for satisfying all costs which may be aw^arded (c) See 28 III. 240. (rf) 22 111. 455. (e> 2 Scam. 15. \,y ) 3 Scam. 576. 362 DEBT. Declaration on an injunction-bond. to such defendant, or to any others interested in said pro- ceedings.^'' [g) No. 164. On an injunction-bond {given in a suit in the same court). {Commence as in the last precedent.^ For that whereas on, etc., the said C. D. exhibited in the said Circuit Court of the count}'- aforesaid, on the chancery side thereof, his bill of complaint against the said A. B., and theieby prayed, amongst other things, that the said A. B. might be enjoined from doing certain acts in the said bill mentioned ; and upon examination thereof, the Judge of ih.Q said court then and there ordered that a writ of injunction should issue, according to the prayer of the said bill, upon the said C. D.'s giving bond, conditioned according to law, {or "as required by the said order,") with the said E. F. and G. H. as sureties : And thereupon, in pursuance of the said order, the said C. D. gave bond, with the said E. F. and G. H. as sureties therein as aforesaid ; and on that occasion they the said C. D., E. F, and G. H., by their writing obligatory, bearing date of that day, jointly and severally acknowledged themselves to be held and firmly bound unto the said A. B. in the sum of dollars above demanded, to be paid to him the said A. B., upon the con- dition, nevertheless, that if the said C. D. should well and truly pay to the said A. B. all such costs and damages as should be awarded against him the said C. D. in case the said injunction should be dissolved, then the said writing obligatory was to be void, and otherwise to remain in full force ; as by the said writing obligatory, remaining affiled in the said court, will more fully appear; (*) And there- upon there issued then and there, from the said court, a writ of injunction in that behalf, whereby the People of the said state of Illinois commanded and strictly enjoined the said A, B. that he should absolutel}' desist and refrain from doing the acts therein and in the said bill mentioned, until the further order of the said court in the premises ; which said writ was then and there directed and delivered to the sheritr of the county aforesaid to be executed, and to be by him returned into the said court at the then next term I {g) 5 Gilm. 303; Rev. Stat. (1874) I53; Rev. Stat. (1S77) 15. DEBT. 363 Declaration on an injunction-bond. thereof, in due form of law : And thereupon the said t=heriff, on the day first aforesaid, there duly served the said writ on the said A. B., by delivering to him a true copy of the same. And the said A. B. in fact sa3S, that such proceedings were thereupon had in that cause that afterwards, in the term of the said court, in the year 18 — , to wit, on, etc., in that year, it was adjudged and decreed b}' the said court that the said injunction should be dissolved, and that the said C. D. should pay to the said A. B. his costs in that behalf, which said costs were and are taxed in the said court at the sum of dollars, and should pay to him the said A. B. the sum of dollars, whir.h by the said court was then and there adjudged to him for his damages by him in that behalf sustained : Nev- ertheless the said C. D. has not paid to the said A. B. the costs and damages aforesaid, or any part thereof, but the same remain wholly unpaid. Whereby an action has ac- crued to the said A. B. to demand of the said C. D., E. F. and G. H. the said sum of dollars above demanded : Yet they have not paid to the said A. B. that sum of money, or any part thereof, but refuse so to do ; tu the damage of the said A. B. of dollars, and therefore he brings his suit, etc. Section 12 of the Injunction Act, provides, that "in all cases where an injunction is dissolved by any court of chan- cery in this state, the court, after dissolving such injunction, and before finally disposing of the suit, upon the party claim- ing damages, by reason of such injunction, suggesting in writing the nature and amount thereof, shall hear evidence, and assess such damages as the nature of the case may re- quire, and to equity appertain, to the party damnified by such injunction, and may award execution to collect the same, provided, a failure so to assess damages shall not operate as a bar to an action upon the injunction bond." (//) Damages may be assessed either on the dissolution of the injunction, or in a suit on the bond. (/) And a failure to assess (A) I Starr & Curlis' An. Stat. 1285; Rev. Stat. (1S77) 556; 2S Hi. 240; 31 111. 416; 43 111. 470; 45 111. 100, 103; 48 111, 301; 49 111. 506; SO 111. 21; 51 111. 328; 54 111. 192, 210; 80 III. 564; 78 111. loi; 77 111. 573; 75 111. 621. (i) 4 Bradw. 94; i Bradvv. 315. 364 DEBT. Declaration on an injunction bond. damages on the dissolution, is no bar to an action on the injunction bond therefor. («) A recovery in an action on bond is an award of damages within the usual conditions of such bonds. And it is not necessary that a separate recovery should be had against the complainant before the liability attaches against the secu- rities. When a judgment is recovered against him and the other obligors, the condition is answered, as the damages are then awarded against him. {b) The act of 1861 was the same as the above section with the exception of the proviso. In the revision of 1874, that act was amended by adding, " Provided, a failure to assess damages shall not operate as a bar to an action upon the in- junction bond." Under the act of 1861, it was held that un- less the obligees had their damages assessed upon the dissolution they could not have them assessed in a suit on the bond, {c) If the damages were not assessed on dissolution, the dec- laration may proceed, from the asterisk in the above form, in this manner: And thereupon there issued then and there, from the said court, a writ of injunction in that behalf, whereby the Peo- ple of the said state of Illinois commanded and strictly enjoined the said A. B. that he should absolutely desist and refrain from removing, selling, or in any manner disposing of or interfering with a certain stock of dry-goods and gro- ceries then in a certain store-house then occupied by the said A. B., in the town of , in the county aforesaid, until the further order of the said court in the premises ; which said writ was then and there directed and delivered to the sheriff' of the count}^ aforesaid to be executed, and to be by him returned into the said court, at the then next term thereof, in due form of law : And thereupon the said sheriff^ on the day first aforesaid, there duly served the said writ on the said A. B., by delivering to him a true copy of the same. And the said A. B. in fact says, that such proceedings were thereupon had in that cause that afterwards, in the term of the said court, in the year [a) 8 Bradw. 384. {!>) 28 111. 28; 31 111. 416; 45 111. 103. [c) 56 111. 176; 58 111. 152; 81 111. 314. 1 DEBT. 365 On an injunction-bond — Observations, etc. 18 — , to wit, on, etc., in that year, it was adjudged and decreed by the said court that the said injunction should be dissoh'ed, and tliat the said C. D. should pay to the said A. B. his costs in that behalf; which said costs were and are taxed in the said court at the sum of dollars, and sdll remain wholl}^ unpaid to the said A. B. And the said A. B. further in tact says, that by reason of the said in- junction he was, during all the time the same remained in force as aforesaid, there prevented from merchandizing and making profit of the said stock of dry-goods and gro- ceries, (whereof he was then the owner, and which was, at the time of the issuing of the said writ, of the value of dollars,) and from carrying on his business of a merchant, and thereby he the said A. B. there lost and was deprived of great gains and profits which he otherwise would have made, amounting to the sum of dollars ; and also, during the time the said injunction remained in force as aforesaid, the said A. B. was there compelled to and did pay out and expend divers sums of money, amounting to the sum of dollars, for rent of the store-house above mentioned, and for other expenses of his said business, without deriving any benefit therefrom ; and also, by rea- son of the said injunction, the said A. B. was there com- pelled to and did pay out and expend divers sums of money, amounting to the sum of dollars, for the fees and charges of solicitors and counsel, and for other charges and expenses, in and about his defense in that behalf; and also, (atiy other special damage may be here alleged in like manner): by means of which premises the said A. B. has sustained damages to the amount of dollars, and the said damages remain wholly unpaid to him tha said A. B. Whereby an action has accrued, etc. {concluding as in tlie above -precedent. ) The act of 1861 does not repeal the act of iS|5, but pro- vides for cases not embraced within the last- named act. Upon the dissolution of an injunction "to stop the collec- tion of a judgment at law," the assessment of damages is governed by the act of 1845, and no suggestion of damages is necessary. The extent of the liability, in such a case, appears on the face of the bill. (/) (y) 49 111. 506; 50 111. 21; 36 111. 268; Rev. Stat. (1877) 556. 366 DEBT. On an injunction-bond — Observations, etc. But an injunction to restrain the sale of certain property, on grounds entirely independent of the validity of the judg- ment, is not an injunction against the judgment, (k) And upon the dissolution of an injunction to restrain an incor- porated town from instituting and prosecuting actions at law against the complainant, for alleged violations of an ordi- nance, there must be a suggestion of damages, in order to authorize a decree therefor. (/) A statutory bond, the form of which is prescribed, will be construed to have the effect given by the statute, which enters into, and forms a part of, the instrument, (ifi) An injunction-bond is designed to indemnify against im- mediate and actual loss, but not remote injuries, such as a damage to credit, resulting from the injunction. The con- dition of such a bond includes the right of recovery of costs, if such are in effect aAvarded against the complain- ant on a dissolution of the injunction, [n) It is immaterial what was the motive, or whether or not there was probable cause, for suing out an injunction ; nor is it any defense, to an action on the bond, that the writ was unauthorized, because broader in its commands than was warranted by the order, it being the duty of the party suing out the writ to see that it is correct, (o) It is sufficient if the Avrit is shown to have been the same in substance and effect as alleged in the declaration, (p) The dissolution of an existing injunction, for want of a proper bond, followed by an immediate order for a new in- junction upon the filing of a new bond, w^ould not — such new bond being filed — be such a dissolution as is contem- plated b}'- the statute in relation to damages, (g) (>{■) 54 111. 192. (/) 54 111. 210. (;«) 28 III. 240. («) 28 111. 240. (o) 45 111. 103. (/)45 111. 10,^ (?) 45 111- 274. d DEBT. 367 On an injunction-bond— Observations, etc. Where the original injunction-bond in a cause was insuf- ficient, and a motion was made to dissolve the injunction on that ground, and thereupon the complainant moved for leave to file an amended bond, and such a bond was filed, — it was held, that from the order of the court refusing the motion to dissolve the injunction, the" amended bond would be presumed to be properly on file, even in the absence of an order expressly granting leave for it to be filed ; and it could not be alleged, in an action on sucli bond, that it was filed without leave of the court, (r) In a proceeding to enjoin the collection of a promissory note, the statute (of Illinois) does not prescribe the condi- tions to be inserted in the injunction-bond ; and in such cases the judge or master may require the complainant to give security for the payment of the note if he fails to main- tain his suit. And where a bond is so conditioned for the pa3'ment of the debt, the liability of the surety therefor be- comes fixed when the injunction is dissolved, and a recov- ery may be had against him in an action on the bond. (5) On the occasion of the issuing of an injunction to restrain the collection of a school-tax, the bond was conditioned for the payment of " all moneys and costs due or to become diic^ and such damages as shall be awarded," etc. In an action brought on this bond, the court, after remarking that this was not a bond given in any such case as is specified in the statute, held that the obligors were liable for the costs and expenses, including counsel fees, incurred by the defend- ants in the injunction, in litigating that matter, but not for the amount of the tax in controversy, {t) In the case of Sttirges v. Hart, 45 111. 103, above mentioned, it is said that if the averments of damages, in the declaration, are not sufliciently specific, the objec- tion must be taken by demurrer. Also, that upon proof ot {r) 51 111. 393. (s) 49 111- 509. See 86 Til. 236. (0 25 111. 372. See 77 111. 533. 368 DEBT. On an injnnctiou-bond — Observations, etc. a loss of a sale of lands, by reason of an injunction, tlie extent of the damages may be shown b}^ evidence of the deterioration in the market price or value of the lands ; but the loss of sales must be shown by proving applications made by persons, in good faith, to purchase, and that the failure to sell was fairl}^ attributable to the injunction. Slight, indefinite evidence on that subject is not sufficient. In cases of the assessment of damages, under the act of 1861, requiring a suggestion in writing, the court is required to hear evidence in respect thereof; and such evidence must be preserved in the record, in order to support a decree awarding damages. (?/) And there must be a suggestion in writing, in such case ; and it is of no avail to file the sucrgestion after the assessment is made. The suggestion is designed to take the place of a declaration, and should be so framed as to inform the opposite party of the nature and amount of the damages claimed, {z') Where a temporar}^ restraining order is granted, until a formal application for an injunction can be made, and on the making of such application the injunction is denied, there can be no assessment of damages, the restraining order not requiring the action of a court to dissolve it. (w) Solicitors' fees, and other expenses of the litigation, may be allowed as damages, on the dissolution of an injunc- tion, (x) The sum of $176 was held to be an unreasonable allow- ance for solicitors' fees, in a case only involving two thirds of twenty acres of rye, and attended with no special diffi- culty ; and the court said that the fact that three different coimsel were employed did not alTect the question, as a de- fendant in an injunction can not be permitted to lay the foundation for large damages by employing an unnecessary (u) 54 111. 210; 78 111. loi ; 75 111. 457. 1S5 ; 12 Brarlw. 655. (v) 40 111. 179 ; 54 111. 210; 80 111. 564. {w) 46 111. 447; 85 111. 349 ; 99 H'- 600; 19 Bradw. 38. (x) 43 111. 470; 25 111. 372; 71 111. 25; 78 111. loi, 281. DEBT. 369 Declaration on a license-bond. number of counsel. In the same case, it was held that the allowance to the defendant of $50, for his own expenses, was improper, (r) ■ On tlie dissolution of an injunction against the trustees of a state institution, the expenses of the trustees, and their loss of time, while in attendance at court on the hearing of the motion to dissolve, can not be considered as an element of damages, their attendance for that purpose not appear- ing to be necessary ; and even if necessary, being employed in the discharge of their duty, and charging the state for their time and expenses, neither the trustees nor the state could sustain damages for their time so expended, (z) In a case where a sale under a judgment had been en- joined, and afterwards the judgment was reversed, the court said that such reversal might have an important bear- ing on the question of damages, in an action on the injunc- tion-bond, or on a motion to assess damages upon a disso- lution of the injunction, (a) A'o. 165. On a liccnsc-bond — Action fo7' use of ivife of j)cj'son to zv/ioin intoxicating liquors vjcj'C sold. {Title of court, etc., as in JVo. 147, ante.) The People of the state of Illinois, plaintifl', which sues in this behalf for the use of A. B., complains of C. D., E. F. andG. H., defendants, of a plea that they render to the plaintiff, for the use aforesaid, the sum of three thousand dollars, which they owe to and unjustly detain from the plaintiff: For that whereas the said C. D., on, etc., in, etc., applied for and obtained from the mayor and common council of the city of , in the county aforesaid, a license to keep a gro- cery, and sell or give away intoxicating liquors, at number , street, in the said city, Irom the day aforesaid until the day of, etc. ; and on that occasion the de- lendants, on the day first aforesaid, in the county aforesaid, 0') 5' in. 32S. (=) 54 111. 334. {a) 54 111. 192. See Puterbaugh's Ch. TI. and P. (3d Ed.) title " Injunctions." 24 370 DEBT. Declaration on a license-bond. by their n'xting obligatory, bearing date of that day, and now to t]\e court here shown, did jointly and severally ac- knowledge themselves to be held and firmly bound unto the plaintiff in the sum of three thousand dollars above demanded, to be paid to the plaintiff, upon the condition, nevertheless, Ihat if the defendants should pay all damages to any perscr*. cr persons which might be inflicted upon them, either In person or property, or means of support, by reason of th',- raid C. D.'s selling or giving away intoxi- cating liquor j, ihen the said writing obligatory was to be void, and otherwise to remain in full force. And tlic plaintift' in fact says, that the said C. D., after the making of the said v/riting obligatory, to wit, on the day first afore- said, and on divers other days between that day and the said day of, etc., {or "the commencement of this suit," if the license has not expired,) at the above-mentioned place in the said city, did sell and give away, to one L. M., intoxicating liquors to be drank in, upon and about the building and premises where the same were so sold and given away as aforesaid, and in divers adjoining rooms, buildings and premises, and other places of public resort connected with the said building : And by reason of such selling and giving away of intoxicating liquors to the said L. M. by the said C. D., as aforesaid, he the said L. M. during that time became an habitual drunkard, and wasted and squandered his moneys and property, and became greatly impoverished, reduced, degraded and ruined, as well in his mind and body as in his estate, and neglected and ceased to pursue his business and calling of a , which he had theretofore used, or in any manner to earn or provide a livelihood for the said A. B., who was during all that time, and still is, the wife of the said L. M., to wit, in the county aforesaid ; and thereby the said A. B., so being the wile of the said L. M. as aforesaid, has there lost and been deprived of her means of support : And also by rea- son of such selling and giving away of intoxicating liquors to the said L. M. by the said C. D., as aforesaid, he the said L. M., on the day first aforesaid, and on the other days above mentioned, there became intoxicated, and being so intoxicated, and in consequence thereof, there assaulted, beat, wounded and ill-treated the said A. B., and other wrongs to her then and there did : By means of which premises the said A. B. has sustained damages to the I DEBT. 371 Narr. in suit on statute, against liquor-seller, etc. amount of dollars ; yet the defendants have not paid the same, or any part thereof, to her the said A. B. Whereby an action has accrued to the plaintiff to demand of the defendants, for the use aforesaid, the said sum of three thousand dollars above demanded : Yet the defend- ants 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 there- fore the plaintiff, for the use aforesaid, brings suit, etc. See the "act to provide against the evils resulting from the sale of intoxicating liquors in the state of Illinois." An action may be brought on the bond " for the use of any person or persons, or their legal representatives, who may be injured by the selling of intoxicating liquors by the per- son" obtaining the license, {b) No. 166. On the statute., (<:) against seller of intoxicating liquors., by one iv/io has taken charge of person intoxi- cated. [Title of court, etc., as in No. 147, ante.) A. B., plaintiff, by E. F., his attorney, complains of C. D., de- fendant, of a plea that he render to the plaintiff the sum of dollars, which he owes to and unjustly detained from him: For that whereas the defendant, on, etc., in, etc., by the sale of intoxicating liquors did cause the intox- ication of one G. H. ; and thereupon the plaintiff there took charge of and provided for the said G. H., he being so intoxicated as aforesaid, and kept him the said G. H., in consequence of such intoxication, for the space of days from and including the day aforesaid : By means whereof, and by force of the statute in such case made and provided, an action has accrued to the plaintiff to demand of the defendant a reasonable compensation for so taking charge of and providing for the said G. H. as aforesaid, which said reasonable compensation amounts to the sum of dollars, parcel of the said sum of 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, [b) I Starr & Curtis' An Stat. 969; 84 111. 511 ; 93 111. 180; 13 Bradw. 206; loilll. 126; 109 111. 499; 15 Bradw. 164; 16 Bradw, 641,659; Rev. Stat. (1877) 433. (c) I Starr & Curtis' An. Stat. 971 ; Rev. Stat. (1S77) 433. 372 DEBT. Declaration in debt on statute, for cutting trees, etc. amounting to the further sum of doHars, residue of the said sum of money above demanded. Yet the defend- ant, though requested, has not paid to the pLiintiffthe 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 in- .oxicated person shall be kept in consequence of such intox- .oation, which sums may be recovered in an action of debt jefore any court having competent jurisdiction." (c) jVo. 167. On the statute, [d^ for cutting trees, etc. [Title of court, etc., as in No. 147, ante.) A. B., olaintiff, by E. F., his attorney, complains of C. D., de- fendant, of a plea of debt : For that whereas the defend- ant, on the day of , in the year 18 — , in the county aforesaid, ten black-walnut trees, ten black-walnut sap- lings, ten black-oak trees, ten black-oak saplings, ten elm trees, ten elm saplings, ten cottonwood trees and ten Cot- tonwood 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 finst obtained permission so to do from the plaintiff, then the owner of the said land as atbresaid ; 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, cottonwood trees and cottonwood saplings, to- gether amounting to the sum oi four hundred and forty (c) I Starr & Curtis' An. Stat. 971 ; 73 111. 1S7, 59; 13 Bradw. 206; Kev ', Stat. (1877)433; 76 111. 331. See 81 111. 444- () No. 176. Plea that bond was delivered as an escrow. {First -plea, non est factum, as ante. No. 173 ; secondplea, onerari non, etc., as in next form, to the asterisk, and then proceed:^ that the said writing in the said declaration men- tioned was made by the defendant, on, etc., aforesaid, to secure the repayment of a certain sum of money then lent by the plaintiff to one E. P., and was delivered by the de- fendant to one G. H., as an escrow, to be kept by him on this special condition, that is to say, that {Jierc 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 mortgage 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 re-delivered to the defendant ; but that in de- fault of the said E. F.'s so securing 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 the said G. H. as afore- said, to wit, on, etc., in, etc., the said E. F. did secure the repayment of the said sum of money to the plaintiff, by a mortgage upon the said parcel of land, which said moi;t- gage 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 an- nulled. And so the defendant says, that the said writing is not his deed ; and of this he puts himself upon the coun- tr}^, etc. (o) Gould's PI. 314; 3 Chit. PI. 962, n. ; i id. 475; 3 Scam. iSS. (/) Gould's Pi. 315. See 43 HI- i34- DEBT. 391 Onerari non. It seems that the plea must show to whom the bond was delivered ; [q) and it is no escrow if delivered to the obligee, {r) 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 de- livered to the obligee or grantee. Until the condition is performed, and the deed delivered over, it does not take effect. (5) A relation 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 •^feme sole makes a deed, and delivers it as an escrow, and then marries before the second delivery, {f) As has been already observed, the delivery of a deed as an escrow may be given in evidence under the plea of non estfacittm, though it is more usual to plead it. {iC) No. 177. Onerari non. ( When -pleaded as a second or siibseqiient -plea, com- mence tlms :) And for a further 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 obligatory, (or " indenture," <:/c., or "the said writing,") because he says, (*) that {here state the stibject-niatter of the defense, and conclude as follows — ') : And tliis 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 sup- posed writing obligatory {or "indenture," etc^ Where the validity of the deed is disputed, or where an heir pleads rien per descent, the defendant should say onerari non debet, (as above,) and not actionem non; and ( q) 5 Bac. Abr. 160, Oblig. C. (r) Hob, 246; Ventr. 9; 2 Stark. Ev. 271 ; 5 Blnckf. iS ; 8 Mass. 230; 5 Gilm. 31. See 5 Gilm. 31 ; 77 111. 475. («) 2 Johns, 248; Perk, 137; 8 Johns. 520 ; II III. 229; 31 111. 55S ; 34 111. 13. (/) 2 Bl. Com. 307; 2 Bouv. Inst. n. 2024; 4 Kent Com. 446. (m I Chit. PI. 424. See 43 111. 134. 592 DEBT. Plea of tender, etc. the plea should describe the deed as a writings or supposed writing obligatory, (or "indenture," etc.,) and should not admit that it is a deed, iy) No. 178. Pica of tender^ to debt on simple contract — Nil. DEBET as to -part, and tender as to residue. {Title of court, etc., as in No. 172, ante.) And the de- fendant, 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 stun 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 coun- try, etc. And as to the said sum of dollars, parcel, etc., the defendant says that the plaintiff ought not to have his afore- said action against him, the defendant, to recover any dam- ages 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 dollars, parcel, etc., to wit, in the county aforesaid ; and that after the same be- came 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 defend- ant he, the plaintiff, then and there wholly refused; and the defendant now brings the said sum of money, so ten- dered, 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 judgment if the plaintiff ought to have his aforesaid action to recover any damages by reason of the non-payment of the said sum of dol- lars, parcel, etc. If the money has already been paid into court, then m- -stead of alleging the bringing in thereof, as in the above {v) 1 Chit. PI. 471 ; 3 Chit. PI. 955, n. DEBT. 393 Plea of nul tiel record. 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. 103, ante, and the observations there- under. No. 179. Pica of NUL TIEL RECORD. {Title of court, etc., as in No. 172, ante.) And the de- fendant, by G. H., his attorney, comes and defends the wrong and injury, when, etc., and sa3^s that there is not any record of the supposed recovery in the said declaration mentioned, remaining in the s^id Court of, etc., in manner and form as the plaintiff has above in his said dec- laration alleged : And this the defendant is ready to ver- ify ; wherefore he pra3^s judgment if the plaintiff ought to have his aforesaid action against him, etc. It seems the words "and this the defendant is ready to verify," are not necessary, (w) 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, {oc) The plea of mil tiel record draws nothing in question but the existence of the record, {y) 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 attorney. (^) But where the record shows an appearance by attorney, the defendant may plead and prove that the attorney had no authority to appear for him. {a\ It is held that the defense that a judgment of another state, on which an action is brought, was obtained by (w)3 Chit. PI. 995, n; Com. Dig. PI. E. 33. (x) 20 Ark. 12; I Saund. 92, n. 3; i Spencer, 114, (j) 8 Ohio, 43. {z) 10 Ohio, 100; 2 McLean, 511; 6 Pick. 232; 6 Wend. 447; 3 Gilm, 197; Breese, 331. («) I Gilm. 197; 4 Scam. 536; 6 Pick. 232; 6 Wend. 447. 394 DEBT. Plea of jiiil tiel record. 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 ; {h) but this doctrine is denied, (c) A variance between the record declared on and the one produced in evidence, can be taken advantage of by a plea of mil tiel record, {d) The plea of mil tiel record, in scire facias on a mort- gage, only puts in issue the execution and registry of such mortgage, [e] This plea is improper in an action of debt on an appeal- bond. (/) In general, the conclusion of a plea of mil tiel record to the country, is wrong ; but such defect can only be taken advantage of by a special demurrer, {g) It was held in England, that the plea of mil tiel record^ pleaded to an Irish judgment, must conclude to the coun- try ; for though since the union of England and Ireland such judgment was a record, yet it was only provable by an examined copy on oath, the verity of which was only triable by a jury, iji) 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 government, and its records, therefore, must be considered as foreign records, and their verity must be tried by a jury. But under the act of Congress which pro- vides for the manner of proving the records of the courts of the various states, by the attestation of the clerk, and the (*) 8 Ohio, 108; Story's Eq. PI. sec. 426. (c) 4 Scam. 536, and cases cited; i Gilm. 197; 15 Johns. 121 ; 19 Johns. 162. ((f) 2 Paine C. C R. 209; 21 Missouri, 557; 8 Johns. S3; Stra. 1721; i Saund. 92, n. 3 ; 2 Mod. 41; Breese, 125, 219. (c) 14 111. 213. (/'jSoIU. 174; 72 111. 340, {g) SBlackf. 326; Co. lit. 117, b. See i Chit. PI. 475, 476. (A) 5 East, 473 ; 2 Smith, 25. See i Chit. Tl. 475. DEBT. 395 Replication to plea of nul tiel record — Plea of duress. seal of the court annexed, with the certificate of the judge, {i) the proving of such records by examined copy is not necessary, and the issue of mil tiel record is tried by the court, by an inspection of the record. No. i8o. Rcflication to flea of nul tiel record. In the Court. Term, i8 — . A. B. ^ vs. > Debt. C. D. 3 And the plaintiff, as to the plea of the defend- ant 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 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 dec- laration alleged : And this 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. ]Vo. i8i. Plea of duress — menace to kill. {First -pica, non est factum, as ante, No. 173 ; second flea, onerari non, etc., as in No. 177, ante, to the asterisk, andthcn 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 aforesaid ; 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. 177, ante.) The plea may allege a battery, and menace of further battery — or a battery, and fear of mayhem — or duress of imprisonment, etc. See the precedents, 3 Chit. PI. 964, 965 . Fear of unlawful imprisonment will constitute a case of duress -per minas, and avoid a contract, {j) (?) Rev. Stat. (1877) 84. See 7 Cranch,48i; 3 Wheat. 234; 4 Scam. 536. (7) Co. Lit. 253, 6; 2 Inst. 4S3; 5 Hill, (N. Y.) 154. 396 DEBT. Replication to plea of duress — Plea of set-off, etc. 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 imprisonment, (k) See the Illinois cases noted below, on this subject. (/) JVo. 182. Replication to flea of duress, No. 179. (Similiter to non est factum, as ante. No. 69.) And the plaintiff, as to the plea of the defendant by him secondly above pleaded, says that he, the plaintiff, by reason of any- thing in that plea alleged, ought not to be barred from having his aforesaid action, because he says, that the de- fendant 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 mentioned, 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. No. 183. Plea of set-off , to debt on a money bond with a ■penalty, {If -pleaded as a first plea, commence — after the enti- tling — "And the defendant, by G. H., his attorney, comes and defends, etc., when, etc., and says that the plaintiff ought not," etc. If as a second or subsequent plea, com- mence 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 defendant, 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 writing obligatory, by the said condition thereof, for the principal and interest in the said condition mentioned, the sum of dollars : And the defendant further says, that the plaintiff was before and at the time of the com- mencement of this suit, and still is, .ndebted to him, the defendant, in a much larger sum of money than the said (k) 2 Kent Com. 565 ; i Aik. 409; 15 John=;. 259 ; 6 Ma<:s. 511 ; 16 111. 93. See 16 111. 358; 34 111. 448; 39 111. 242; 41 111. 197; 45 111. 213. (/) 16 111. 93, 358; 52 III. 20; 53 111. 129; 34 111. 448; 39 III. 242: 41 111, 197; 45 111. 213; 56 111. 542; 63 111. 165; 83 111. 331; 85 111. 464; 96 111, 301; 104 111. 122; 105 111. 88, DEBT. 397 Plea of paj-ment — Failure of consideration. sum SO due from the defendant to the plaintiff upon the said writing obligatory, that is to say, in the sum of dol- lars, for {Jiei'e state the subject-matter of the set-off); which said sum of money so due from the plaintiff to the defend- ant, 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, according 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 ac- tion, etc. See form No. go^ ante, and the observations thereunder. In the above plea, and the next following, oyer should be craved, (as in No. 175,) if the declaration does not set forth the condition and breach. But if non est factum, craving oyer, (No. 174?) is pleaded, then it is not necessary to again demand oyer in a subsequent plea. Ko. 184. Pica 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 mentioned, he, the defendant, paid to the plaintiff the said sum of dollars, in the said condition mentioned, together with all interest then due tliereon, 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 precedent.^ If payment after the day is pleaded, {solvit post diem,) then say that " after the said day of, etc., in the said condition 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. iVb. 185. Plea of failure of consideration — to debt on specialty. — [30 ///. 329.] {First plea, non est factum, as ante, IVo. 173.) And for a further plea in this behalf, the defendants say that the 398 DEBT. Plea of performance. 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 ac- tion 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 writ- ing mentioned, and in and by their deed of conveyance for that purpose would covenant to warrant the title so to be conveyed 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 plaint- iffs been the owners of the patent title to the said land, or had any right or title to the same whatever : And the de- fendants 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 : Wherelbre, by reason of the plaintiffs' not having any title to the said land, the said covenant in the said writing men- tioned was then and there worthless, and the consideration of the said writing has wholly failed. And this the de- fendants are ready to verify ; wherefore they pray judg- ment, etc. If in the cause in which this plea was pleaded, the dec- laration fully set out the contract, then it was unnecessary to allege in the plea that the contract contained a certain cov- enant, 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. JVo. i86. Plea of ^erfoi'inance generally. {As in No. 183, ante, to the asterisk, and then -pro- ceed — ) that the defendant 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 condidon specified, on his part to be kept and performed, according DEBT. 399 Plea of non damnijicatus. to the tenor and effect of the said condition : And this, etc. {concluding with a verification^ as in No. 183, ante.) 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 in hcBC verba, (n) But where the condition is already set out in the declara- tion, or in a previous plea craving oyer, it is unnecessary to again demand oyer, and set it out. A plea of performance generally, to a declaration making negative averments in assigning breaches, is not good. (0) No. 187. Plea o/"non damnificatus. {As in No. 183, ante, to the asterisk, and then 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. 183, ante.) (As to craving oyer, see the remark under the preceding form.) It would seem that performance generally, and non dam- nificatus, should, properl}^ 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 cov- enants, the plaintiff shall set out the conditions thereof, and may assign as many breaches as he may think fit ;" (^) and it is the practice, in all actions on bonds with condi- tions, to set out the condition, and assign the breaches, in the declaration, instead of making such assignment in the replication, as was the practice in England in many c.ises. {q^ («) 2 Saund. 409. n. 2 ; 3 Chit. PI. 986, n. {o\ 3 Blackf. 117 ; 86 III. 329; 92 Til. 549. (>) Rev. Stat. (1877) 736. .See 19 III. 428; 51 111. 180. ((/) See 3 Chit. Fl, 1177-1179. 400 DEBT. Pica, no rent in arrear — Plea of no award. A plea of non damnijicatiis is good only when, the action is upon an indemnity-bond, (r) It is sujfficient when the con dition 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. (5) ]Vo. 188. Plea — to debt on a demise^ for rent — no rent in arrear. {See No. 154, ante.) {As in lYo. 183, ante, to the asterisk, and then proceed — ) that no part of the said rent in the said declaration men- tioned 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, [f) But as nil debet may be pleaded, which puts in issue the whole declaration, there would seem to be no advantage in pleading rien en arrere. It was formerly held that this plea should conclude "and so the defendant does not owe," etc. {nil debet.) An eviction may either be pleaded, or given in evidence upon nil debet, in debt, but in covenant it must be pleaded, {u) JVo. 189. Plea — to declaration on arbitration-bond — no azvard made. {As in No. 183, 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 them, {this must be according to the avei'ment 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 (r) I Ind. 190 ; l8 Bradw. 547 ; 4 Blackf. 120. {s) I Saund. 117, n. i ; 3 Chit. PI. 985, n. ; 20 Johns. 153. {t) I Chit. PI. 423; Cowp. 588; I Rich. C. P. 500. {u) I Chit. PI. 423; 3 Chit. PI. 993; I Saund. 204, n. 2. i DEBT. 401 riea — to deljt on replevin-bond — merits not tried, etc. defendant is ready to verify; wherefore he prays judg- ment, etc. See observation as to oyer, under No. 183, ante. No. 190. Plea — to declaration on replevin-bond — that merits were not determined in replevin-suit, etc. {First plea, non est factum, as ante. No. 173.) And for a further plea in this behalf, as to any damages by reason of the said supposed breach {or " breaches") of the said con- dition of the writing aforesaid, except as to the sum of one cent, the defendants say that the plaintiff ought not to have his aforesaid action against them, the defendants, to recover any greater damages than that sum, because they say, that [Jiej'e state enough of the 'pj'ocecdings in the replevin- suit to shoiv that the merits were not determined in the trial thereof — for example, as follozvs — ) the said judgment in the 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 irpleviu) denying the ju- risdiction of the said court in that behalf, (which said issue was then and there 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 action of replevin. And the defendants further say, that the said goods and chattels in the said writ of replevin men- tioned, 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 pray judg- ment 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 26 402 DEBT. Plea of former conviction — to debt on statute. above facts, and also his or her title to the property in dispute in said action of replevin." (v) In /i'///^ V. Raynsey, 13 111. 619, the court says : " Enough of the proceedings in the former action should be set forth to enable the court to decide on demurrer whether the right of property has already been determined. If the suit was dismissed, 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 answer 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. 191. Plea — to debt on statute — former conviction for same offense. {First plea, nil debet, as ante, No. 172.) 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 after the committing 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 before G. H., Esq., then .and still being one of the justices of the peace in and for the said county, and informed the said G. H. that the de- fendant, 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 form of the statute in such case made and provided; which said judg- ment of conviction is yet in full force and effect : And the defendant avers that he, the defendant, who is sued by the {v) 2 Starr & Curtis' An. Stat 2018; Rev. Stat. (1877) 8ll ; 3 Bradw, 24; 7 Bradw. 87; 13 111. 619; 19 111. 604; 59 111. 115; 80 111. 513; 10 Bradw. 263. DEBT. 403 Demurrer, after craving oyer. 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 m.entioned, and the said offense in the said complaint charged, and whereof the defendant was so convicted as aforesaid, 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 judg- ment, etc. In an action for a penalty, where any person may prosecute, a judgment in a suit by A. may be pleaded in bar to a prose- cution by B. for the same cause or offense, (zu) 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 oyer by the plaintiff,' becomes part of the plea, and if it thereby appear that the plea, is false, the plaintiff need not show any matter of /act in his replication, to main- tain his action, but may demur; for it is a general rule that an indenture set out upon oyer becomes part of the preceding plea." {x) When it is desired to crave oyer and demur to a declara- tion, proceed as in form No. 175, ante, or in the remark thereunder, setting out the indenture, etc., and then say: " Which being read and heard, the defendant says that the (a/) 16 111. 352. See 39 111. 205 ; 46 111. 90; 50 111. 176: (x) I Chit. PI. 57S ; Gould's PL 409, 419. See I Chit. PI. 424, 425 ; i Saund. 295, b; i B. & C. 358; 2 D. & R. 662. 404 DEBT. Replications, etc. — Reference. said declaration, and the matters therein contained, in man- ner and form as the same are above pleaded and set forth, are not sufficient in law," — and so on, as in an ordinary demurrer. Oyer is craved and granted by the court, where some writing is in possession of the opposite party; {y) but not of an instrument not under seal ; {2) or of a record, (a) For replications, rejoinders and demurrers, the pleader is referred to the forms in assumpsit, anU, Chapter III. (y) 16 111.307; 17111.388- (s) 27 111. 400; 48 111. 313. (a) Breese, 219; 17 111. 3S7 ; 46 111. 69. See 5 Gilm. 80; 33 111. 388; 36 111. 125; 41 111. 203. DISTRESS FOR RENT. 405 Landlord's lien. CHAPTER VII. DISTRESS FOR RENT. The provisions of the statute of Illinois, relating to the action of detinue, having been repealed by the statute of 1874, that portion of this work, in the former editions, devoted to detinue will be occupied in the present edition in considering the proceedings of Distress for Rent. This remedy 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 cJiarta 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 condusive to the security of the landlord and to the welfare of society. Landlord's lien. — The statute of Illinois provides that " every 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 premi- ses were demised." [b) {a) Bouv. L. D. 485. (/') 2 Starr & Curtis' An. Stat. 1504; Rev. Slat. (1877) 630. See 77 111. 206; 112 111. 247; 70 111. 677; 16 Braflw. 214; 78 111. 62; 76 111. 261; 67 111. 395; 46 111. 2S8; 86 111. 591, 497; 104 111. 160. 4o6 DISTRESS FOR RENT. What property may be distrained. The lien of the landlord, upon crops growing or grown, does not depend upon the levy of a distress warrant, but is given by the statute, so that an attaching creditor cannot, by bringing an attachment before the issuing of the distress war- rant, gain any precedence, {c) A purchaser of grain raised by a tenant, upon which a landlord 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. [d) The lien attaches upon the crops grown upon the demised premises in any given year, for the rent of such year, from the . ame of the commencement of their growth, whether the rent is then due or not. {e) What property may be distrained. — " In all cases of distress 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 ca"se shall the property of any other person, although 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 landlord will be liable to the owner for its value. ( g) " The same articles of personal property which are, by law, exempt from execution, except the crops grown or growing upon the demised premises, shall also be exempt from dis- tress for rent." {li) " When a tenant abandons or removes from the premises, or any part thereof, the landlord, or his agent or attorney may, (c) 78 111. 62. (d) 77 111. 211. (e) 76 111. 261. (/") 2 Starr & Curtis' An. ?tat. 1500; II Bradvv. 206; Rev. Stat. (1877)628; 75 111, 167. See 112 111. 247. ■(^) 67111. 481. (A) 2 lb. See 4 Bradw. 575; Rev. Stat. (1877) 630, 485; 67 111. 244. See 53 111. 460; 47 111. 331; 15 111 290; 17 111. 18; I Gilm. 233', 3 Gilm. 578. See II Bradw. 206. DISTRESS FOR RENT. 407 What property may be distrained. 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 there- of 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." (z) " 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 -jhall 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 nov/ provided by law, in case of the removal of the tenant from the demised premises ; and there- after the proceedings shall be conducted in the same manner as is now provided bylaw 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." Qt) " 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." (/) (j) Rev. Stat. (1S74) 661 ; Rev. Stat. (1877) 630; 60 111. 380. (/) Laws of 1877, p. 129; Rev. Stat. (1S77) 630. {k) Rev Stat. (1874) 661 ; Rev. Stat. (1877) 630. (/) Id. 4o8 DISTRESS FOR RENT. What property may be distrained. A distress warrant issued after six months from the time of the termination of the lease, is nuH and void. (;/^) No. ig2. Warrant of distress by landlord. State of Illinois. County of ^ To the Sheriff or any constable of said county: (or E. F., agent or attorney). Distrain the goods and chattels of C. D. which are liable to be destrained, wherever they may be found in the county of , where the said C. D. resides, for the sum of dol- lars, being instating the time for zvhich rent is due), rent due me on the — day of i8 — , for*the premises now in his possession, demised to him by me, and situated in said county. , Dated this — day of i8 — . 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 ol 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, cannot render him a trespasser, [o) 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 (w) 44 111. 522. («) 33 111- 452. {0) 79 111. 460. DISTRESS FOR RENT. 409 Notice to non-residents, etc. goods taken, or otherwise is irregular, the remedy must be by an action of case, {p) • Return of Distress Warrant — Inventory.- — " The person mak- ing 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." [q] No. 193. Inventory to be filed ivith copy of distress zvarrant. State of Illinois, County of '^ 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 the premises in the warrant mentioned, to wit: [Here describe the property distrained.) E. F., Sheriff of County. Sunnnons 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, {f) Notice to non-residents, etc. — " When it shall appear, by affi- davit 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 cannot be found, or is concealed within this State, and the affiant shall state the place of resi- (p) 60 Til. 380; 67 111. 244; see 35 111. 282. {q) Rev. Stat. (1874) 659; Rev Sla'. (1877) 628. (r) Rev. Stat. (1874) 659; Rev. Stat. (1877) 628. 4IO DISTRESS FOR RENT.. Notice to non-residents, etc. 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, {s) No. 194. Affidavit for publication against no7i-rc side nts, etc. In the of the County of in the State of Illinois. A. B. I vs. \ Distress for Rent. C. D. j 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 cannot be found" or " is concealed within this State" as the case may be), and that the place of resi- dence of the said C. D. is (or " is not knoiun, and jipon diligent inquiry affiant has 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 coui"t or justice of the peace : Provided, that it shall not be necessary for the plain- tiff in any case to file a declaration, but the distress warrant shall stand for a declaration, and shall be amendable, as other declarations, provided, that no such amendment shall in any way affect any liabilities that may have accrued in the execu- tion of such warrant." {t) Where a plaintiff files an affidavit of claim with the distress warrant, the defendant is bound to file with his pleas an affi- davit of merits, [u) {s) 2 Starr & Curtis' An. Stat. 1502; Rev. Stat. (1877) 629. (/) lb.; Rev. Stat. (1877) 629; 12 Bradw. 141. See 10 Bradw, 40; n Bradw. 72; 33 111. 452; 87 111. 219. (u) 87 III. 219. DISTRESS FOR RENT. 411 Defenses — Set-off, etc. 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, (v) A distress warrant is not a Hen 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 which would have been proper if the suit had been for the rent in any form of action, and with like effect." {w) In a distress for rent, where the defendant pleads no rent in arrears 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 investigation 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 defense, such as a set-off, the same as if he were sued as defendant; 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 declaration, {x) 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 (w) 12 Bradw. 141. See 33 111. 452; 68 111. 188; 44 III. 123. (a) 19 Bradw. 450; 112 111. 247. {w) 2 Starr & Curtis' An. Stat. 1502; Rev. Stat. (1877) 629. See 14 111. 75; 67 111. 244; 69 111. 210. {x) 86 111. 560, 564. See 26 111. 115. DISTRESS FOR RENT. Judgment. landlord will be indebted to the tenant, and in such case gives the tenant the benefit of his claim on such balance, {j') jfiidgment — for plaintiff. — By the statute, "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 ap- pears to the action, the judgment shall have the same force and effect as in suits commenced by summons, 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 re- leased 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 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, [z) Where there is no perso7ial service, etc. — " Where publication of notice shall have been made, as provided by this act, but the defendant is not served with process, and does not appear, judgment by default may be entered, and the plaintiff may recover the amount due him for rent at the time of issuing 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." {a) Judgment for defendant., etc. — The statute provides that " If the judgment is in favor of the 'defendant, he shall re- cover costs and have judgment for the return of the property distrained, unless the same has been replevied or released {y) lb. see 69 111. 210; 69 111. 430; 67 111. 244; 24 111. 280. [z) Rev. Stat. (1874) 660; Rev. Stat. (1877) 629; 84 111. 367; 68 111. 1S8; I Hiadwell App. Ct. R. 188. (=) 84 1.1. 367. {a) Rev. Stat. (1874) 660; Rev. Stat. (1877) 629. DISTRESS FOR RENT. ' 413 Perishable property. from such distress. And if a set-off is interposed, and it ap- pears that a balance is due from the plaintiff to the defend- ant, judgment shall be rendered for the defendant for the amount thereof {b) Release of property distrained — Bojid. — " When any distress warrant has been levied, the person whose property is dis- trained 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 landlord 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." {c\ 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 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 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, master 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 does not appear, that he cannot be found in the county, he may issue an order to the person hav- (b) Rev. Stat. (1874) 660; Rev. Stat. (1877) 629. {c) Rev. Stat. (1874) 660; Rev. Stat. (1S77) 629; i Bradwell App. Ct. R. 18S. 414 DISTRESS FOR RENT. Rights against sub-lessees, etc. ing 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 concerned. 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." {d) 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 against the tenant to whom the premises were de- mised." {e) There can be no distress, unless there has been an actuul 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. [g) A person not occupying the position of lessor, grantee or assignee, or heir, cannot maintain a distress, {h) ((/} 2 Stan- & Curtis' An. Stat. 1505; Rev. Stat. (1877) 629. {c) lb.; Rev. Stat. (1S77) 630. (/) 4 Bi-advv. 575. [g) 9 Bradw. 267. (A) 10 Bradw. 40 ; Taylor's Landlord and Tenant, sections 561-4. See 24 111. 278; 16 Johns. 289; 84 111. 179. CASE. 415 Where the action lies, etc. CHAPTER VIII. 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 trespass or trespass on the case liave been heretofore the appropriate form of action, either of said forms may be used, as the party bringing the action may elect." {a) 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 correspond with the pleadings, {b) 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. An action on the case for negligence will lie against a muni- (a) 2 Starr & Curtis An, Stat. 1787; 77 111. 603; 80 111. 205. (b) 17 Bradw. 417; 76 111. 224; 3Bradw. 155, 160. 4i6 CASE. Where the action lies, etc. cipal corporation, from damages arising from a breach of duty imposed by law. {d) 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 result through such use or enjoyment to other per- sons, [e) 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 by the defendants, in pursuance of a combination or conspiracy for that pur- pose, {g) This action lies also against one who knowingly sells un- wholesome meat; {h) and against a public officer, for refusing the plaintiff's vote at a town meeting ; (?) and for withdraw- ing a deed from a public office, where it had been left for record, whereby the plaintiff's title was subjected to em- barrassment, (y) An officer who negligently permits the escape of a pris- oner, is liable to any person injured by such neglect of ofilcial duty, {k) A constable, having the custody of a person on a bastardy warrant, is liable to the mother of the illegitimate child, for negligently suffering such prisoner to escape, (/) Case lies against a magistrate for a corrupt refusal to al- [a) 25 111. 535; 35 111,58; 42 III. 503; 49 111. 476; 44 III. 295; 48 111. 499; SZ 111- 91 > 407; 52 111- 190- () And case lies also against a person who has neglected to attend and give evidence in a cause, after service of sud- pcena. [q) Case lies for an infringement of a copyright, (r) It lies for not repairing fences, whereby cattle got into the plaintiff's field, {s) Where goods are deposited with a party, to be sold at not less than a certain fixed price, and the depository sells them at a less price, case, not trover, is the proper rem- edy. (/) An action on the case may be sustained against an inn- keeper, for goods lost or stolen out of his inn, without prov- ing negligence. {21) Case lies by a husband against his wife's father, for enticing her away. {%>) Ministerial officers may be sued in case, for any breach of duty, whether intentional, or malicious, or not. {w) An action on the case may be brought in the name of the principal, for a false representation made to the agent, {x) {m) 8 Wend. 462. (w) 22 111. 100. (o)vRev. Stat. (1877) 810; 89 111. 159; 85 111. 248. (/) 15 Johns. 74. (q) Doug. 556; 13 East. 17, n. ; 2 Chit. V\. 757. (r) II East. 244; I Camp. 94. {s) I Salk. 335 ; 31 Vermont, 540. (/) 16 Johns. 74. («) 14 Johns. 175; 94 111. 349; 95 111. 519. {v) 5 Johns. 196. (w) 24 Pick. 292; 23 rick, 224, 308; 19 Vermont, 55I; II Met. 339. {x) 12 Wend. 176; 80 111. 35. 27 41 8 CASE. Where the action lies, etc. Case will lie for the assertion of a falsehood, with a fraudulent intent, as to an existing fact, where a direct, posi- tive and material injury results from such assertion, (j) And it will lie for a deceit, as where a person is induced to purchase land by a false representation that a certain privi- lege is annexed to the land, but which is not included in the deed, [a) 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, (d) Fraud or deceit, wherefrom damage results, is a good cause of action, (c) Where a person makes a false representation to another, with a design to deceive and defraud him, and the latter enters into a contract with a third person,. relying upon the representations, and sustains an injury 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 rep- resentations, although he was not a party to the contract by which the plaintiff was injured, (d) 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, (c) 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 infringe- ment of that right as will sustain an action on the case against the wrong doer. (/") ( r) 2 Wend. 384; 6 Cowen, 346; 37 111. 260. (a) 13 Johns. 395. See 28 111. 280. (d) 32 111. 532. (c) 6 Johns. 181 ; 13 Johns. 224; 32 111. 532; 37 111. 260. (d) 3 Scam. 173. See 18 111. 290; 37 111. 260. (e) 28 111. 280. (/) 33 111- 175. CASE. 419 Where the action lies, etc. Where a person borrows a horse of another, for use, with- out compensation, he becomes a gratuitous bailee, and is lia- ble for any injury to the horse while in his custody, unless he has exercised extraordinary care, (g) An action on the case for seduction may be sustained, not only by a parent, but by a guardian, master, brother-in law, or other person standing in loco parentis to the person seduced. {Ji) A party is liable in an action on the case for damage done to the property of another by setting fire to a prairie, {i) Case lies for criminal conversation with the plaintiff's wife, (7) or he may sue in trespass, at his election, [k) An action on the case will not lie for improperly causing a writ of injunctiton to be issued. The remedy is on- the injunction-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, {ill) though 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 of a want of proba- ble cause. {ii) What is such probable cause as will justify the prosecution of a person for a criminal offense, is a ques- tion of law. An honest belief that the accused 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. () 7 Blackf. 578. {k) 41 111.9; I Chit. PI. 128. (/) 27 111. 489. (w) 23 \\\. 425. («) I Scam. 274; 13 111. 701 ; 23 111. 425; i Wend. 140 ; 13 La An. 214; 8 Cal. 217 ; 70 111. 408 ; 69 111. 376 ; 72 111. 262 ; 81 111. 478. {0) 13 111. 701 ; 33 Penn. St. 501 ; 4 E. D. Smith (N. Y.), 9; 8 Cal. 217; 77 111. 32; 70 111. 544; 83 111. 291. 420 CASE. Where the action lies, etc. be brought before the former suit l)as been legally deter- mined, and it must be averred that the former suit terminated in the present plaintiff's favor, [p) Causing water to flow back upon the land of another is such an act as entitles the person injured to his action. Al- though the act may be in itself lawful, yet, if in its conse- quences it necessarily damages the property of another, the person occasioning the damage may be compelled to make reparation commensurate with the injury he has caused, {q) One can not recover for any injury, even from the gross negligence of another, unless he is free from culpaple negli- gence on his own part, {r) If the negligence of both parties is equal, the plaintiff can not recover, {s) Although the plaintiff may have been guilty of some degree of negligence, yet if it was but slight as compared with that of the defendant, the plaintiff can re- cover; and this rule holds even where the slight negligence of the plaintiff in some degree contributed to the injury. (/) If a person negligently allows his cattle to run in a high- way near a railway crossing, he cannot recover for injuries caused to such cattle by a train on such railway, although the servants of the railway company may also have been guilty of negligence, [n) It is negligence for a deaf person to drive an unmanage- able horse across a railroad track when a train is approach- ing. It is his duty to keep a lookout, and avoid the danger ; and it is no excuse- that the horse rushed upon the track (/) X Scam. 30; 2 Chit. PI. 610, n. [q] 2 Scam. 67; 41 111. 502; 49 111. 484. See 50 III. 325; 40 111. 349. (r) 98 111. 4S1 ; 96 111. 42; 93 111. 290; 95 111. 25; 91 111. 35; .110 111. 114, 294; 118 111. 41, 174, 572; 119 111. 51, 232, 399; 107 111. 512; 105 lil. 554, 37 111. 338. - ' {s) 42 111. 288; 47 111. 497, 514; 49 111. 499. See 43 111. 64; 45 III. 469; 46 111. 74; 53 111. 115; 52 111. 452; 51 IH- 495; 55 111- 379- {t) 38 111. 370, 482 ; 49 111. 499 ; 46 111. 74; 36 111. 409; 54 111. 528 ; 51 IH 333; 55 111- 380. See 38 111. 242 ; 42 111. 288 ; 47 111. 408. 514. («) 28 111. 513. See 54 111. 528. CASE. 421 Commencement of the action. near a crossing, or was driven there, to avoid the en- gine, {v) It is said that it would be negligence in a railroad com- pany to permit vegetation to grow along its road, to such a height and density as to conceal from view cattle which might be upon it. (w) And though it is not negligence per se, in such company, to permit dry grass and weeds to ac- cumulate and remain along its road, in such quantity as to increase the danger of fire from sparks or brands escaping from engines, yet the jury may find negligence from such fact; but a railroad company is held to no higher degree of care in this respect than are the persons occupying the land adjoining the road, (.v) Railroad companies should, in the exercises of their func- tions, adopt such precautions as will prevent damage to the property of persons by the escaping of fire from locomo- tives ; and they may be guilty of negligence, and answer- able therefor, if injury ensues from fire so escaping, (j) When the death of a person is occasioned by the wrong- ful act, default or negligence of another, and the act or neglect is such as would have entitled the former to main- tain an action, if death had not ensued, the wrong doer is liable for damages, in an action to be brought in the name of the personal representatives of the deceased. Suit must be brought within two years. {2) COMMENCEMENT OF THE ACTION. The action is commenced by suing out a summons, or a capias ad respondendum; and if the plaintiff is a non-resi- dent, security for costs must be filed, {a) The prcecipe may be as follows : {v) 28 111. 299. («;) 28 111. 9; 53 111. 447. {x) 47 111. 497/505; 54 111- 504; 42 111. 407; 53 111- 447; 51 111- 78. (;') Cases last cited; 28 111. 9; 23 N. Y. (9 Smith,) 158, 465; 40 Penn. St. 95; 31 Miss. 574. {z) Rev. Stat. (1877) 558; 26 111. 400; 18 111. 349; 54 111. 133; So 111. 8S ; 77 III. 109-391 ; 76 111. 25, 278, 395; 75 111. 93, 46S. {a) Ante, 39-43, 422 CASE. Precipe — Declarations in case. Precipe yi?r summons or capias in case. In the Court of the County of , in the slate of Illinois. A. B. "I vs. y Case. Damages $ , C. D.J The clerk of the said court will issue a summons, {or "capias ad respondendum','^ as above, directed to the sheriff of the county of, and returnable to the term, 18 — . {Date.) To L. M., Clerk, etc. E. F., Attorney for plaintiff. 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 consequential damages resulting therefrom to the plaintiff, {b) Counts in trover may be joined with counts in case, {c) see trespass and case may also be joined, {d) No. 197. Against a railroad company, for negligently running 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, de- {b) I Chit. PI. 327. \c) I Chit. PL 181. See i Gilm. 46; 27 111. 479. \d) 77 111. 603 ; 80 III. 205. CASE. 423 Declaration against R. R, Co. for injury to person. fendant, of a plea of a trespass on the case : For that where- as the plaintiff, on, etc., in, etc., was riding in a certain car- riage, 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 locomo- tive 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 witJi all due care and diligence, was then and there riding in the said carriage across the said railroad, at the said crossing, upon the said public highway there, the defendant then and there, by it 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 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 greatly 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 trans- acting 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 run- ning and striking of the said train upon and against the said carriage as aforesaid, at the time and place in that be- half aforesaid, the said carriage, then of the value of dollars, and whereof the plaintiff was then and there law- fully possessed, was crushed and destroyed, and then and 424 CASE. Against R. R. Co. for negligence, etc. — Observations,- etc. there became and was rendered of no use or value to the plaintiff. [A count on the statute, {e) for not ringing a bell., etc., may be added, if deemed expedient, — see next form — co/icluding the dec- laration asfolloivs .•) Wherefore the plaintiff says that he is injured, and has sus- tained 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 HazzanVs case, 26 111. 373, the court says that " his (theplcwntiff's) exercise of proper care, as well as the negligence of the defendant, should be alleged in the declara- 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. 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. (/) 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 will 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. (^) 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 expected from one in his situation, that is, reasonable care ; {e) Rev. Stat. (1877) 771. See i Gilm. 46. See also form No. 171. (/) 22 111. 265; 22 Texas, 55; 27 Barb. (N. Y.) 221. See 33 111. 304. \g) 19 Conn. 566; 2 American R. R. Cases, 114; 31 Barb. (N. Y.) 385. See 52 111. 290 J 55 111. 380. i CASE. 425 Against R. R. Co. for negligence, etc. — Observations, etc. and if thisdegree of care be exercised by him, the want of a less degree will not preclude him from a recovery for the negligence of ihe defendant. And what will be deemed rea- sonable care in any case will depend on the peculiar circum- stances of the particular case. {Ii) Although the plaintiff may be chargeable with some degree of negligence, yet if it is but slight as compared with that of the defendant, the plamtiff can recover ; and this rule holds even where the slight negligence of the plaintiff in some degree contributed to the injury, {i) There is no distinction between railroads and ordinary highways in regard to the degree of care which the law re- quires on the part of those who have the direction or man- agement of vehicles upon them. (7) A railroad company is responsible for an injury occasioned by want of proper care and prudence on the part of its servants in the management of a train which is under their exclusive care, direction and control, although the train belongs to another company. It has been held in Massa- chusetts 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, (k) In Illinois it is held, that a railroad com- pany cannot release itself from liability by leasing its road to other parties ; and that contractors for the construction of a railroad are the servants of the company, and for their [h) 19 Conn. 566; 2 Amer. R. R. Cas. 114; 4 Bing. 628; 15 Eng. Com L. R.91; I Adol. & Ellis, N. S. 30 ; 26 111. 373 ; 16 111. 558 ; 11 East, 60; 19 N. Y. (5 Smith,) 341 ; 37 111. 338. (0 37 111. 338; 38 111. 370, 482; 49 Til. 499; 46 111. 74; 36 111. 409; 54 III. 528; 51 111.333; 55111-379; 87 III. 529- (/) 19 Conn. 566; 2 Amer. R. R. Cas. 114. {k) I Allen, 9. 426 CASE. Against R. R. Co. for negligence, etc. — Observations, etc. tortious acts, while about the company's business, the com- pany 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, (w) 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. {71) 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. {0)' 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- 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 ob- (/) 22 111. 106; 20 III. 385, 623. See 15 111. 72; 14 111. 85 ; 39 111. 272; 40 111. 143. (w) 28 111. 299; 8 Ohio, 570; 72 111. 567 ; 70 111. lo?. (n) 38 111. 482. See 40 111, 218; 80 111. 86; 107 111. 199, 644. (0) 46 111. 74; 53 111- "5 ; 52 111. 325- See 43 HI- 64; 55 HI- 380. (/) 47 111. 514. See 8 Wright, 175 ; 13 Wiight, 60; 2 P. E. Smith, 255 ; 20 Eng. L. & E. 267; 18 N. Y. 422 ; 25 Barb. (N. Y.) 600; 47 111. 408. (jr) loi 111. 93 ; 107 111. 44. CASE. 427 Declaration against R. R. Co, for injury to person. ligation to use reasonable care and diligence in other re- spects, when running their engines over crossings, if the cir- cumstances of the case render the use of other precautions reasonable, (r) An omission to ring a bell or sound a whistle at a cross- ing of a public road, as required by the statute, is negligence prima facie on the part of a railroad company, is) For a case where suit was brought against a railroad com- pany for injuries received by the plaintiff from the explosion of the boiler of one of the company's engines — such explosion being held evidence prima facie of negligence — see 49 111. 234, and 55 111. 194. In what county suit may he 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." {f) No. 198. On the statute, {u) against railroad company, for not ringing bell, etc., at crossing, tvhereby plaintiff was injured, etc. {Commence as in last precedent^ For that whereas the defendant, on, etc., in, etc., was the owner of and used and operated a certain railroad extending through a part of the county aforesaid, which said railroad then crossed a certain public highway there, to wit {liere describe the high- way, by name, location or tej'mini^ at a certain place in the said public highway, (Jiere describe the place, as 7iearly as may be) ; and so being the owner of and using and op- erating 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 high- way, at the said crossing of the same and the said railroad; and in so doing no bell of at least thirty pounds' weight, or (r) 2 Cush. (Mass.) 539; i Am. R. W. Cas. 457; 37 Barb; 221 ; 55 111. 379. (j) 50 111. 151. {t) 2 Starr & Curtis' An. Stat. 1773 ; Rev. Stat. (1877) 734. See 33 111. 290 ; 77 111. 354. (m) 2 Starr & Curtis' An. Stat. 1935; Rev. Stat. (1S77) 771; 81 111. 450 ; 83 111. 529. 423 CASE. Declaration against R. R. Co. for injury to person. 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 con- sequence of which default and neglect of the defendant, as aforesaid, the said locomotive 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 zvitli all due care and diligence riding upon the said public highway, at the said crossing ; {^proceed in the same maimer as iii the last precedent, from the asterisk)) No. 199. Against a railroad company, for negligence in ■management of train zvherehy plaintiff, a passenger, was injured. {Commence as in No. 197, 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 carried, and was thereupon accordingly then carried, in the said train, from thence to, etc., aforesaid, for certain reward to the defend- ant in that behalf: 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 re- gard its duty, or use due care, in that behalf, but on the con- trary thereof, upon the arrival of the said train at, etc., aforesaid, on the day aforesaid, and while the plaintiff, with all due care and diligence, was then and there about to alight therefrom, 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 CASE. 429 Declaration against R. R. Co. for damage by fire. 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 dislocated, and he was otherwise greatly bruised, hurt and wounded ; and thereby the plain- tiff 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 plain- tiff then and there became and was sick, lame and disor- dered, and so remained for a long time, to wit, hitherto, during all which time the plaintiff suffered great pain, and was hindered and prevented from transacting and attend- ing to his business and affairs, and lost and was deprived of divers great gains and profits which he might and otherwise would have made and acquired : To the damage of the plaintiff of dollars, and therefore he brings his suit, etc. (c;) As to the averment of due care and diligence on the part of the plaintiff, see the remarks under form No. 197, ante. Getting off a train in motion, not at a station, in spite of the conductor's warning, is negligence on the part of a passenger, and he cannot recover for any injury occasioned thereby, {w) No. 200. Against a railroad cojupany, for damage caused 'by fire from engine, (a) {Commence as in No. 197, ante.) For 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 countv aforesaid ; and the defendant was before that time and then possessed of and using and operating a certain railroad leading from, etc., to, etc., and running through the plain- tiff's said farm, and was also possessed of the land to the said railroad there appertaining, the same being a strip of {v) See 26 111. 373; 38 111. 242 ; 73 1". 394; 83 111. 354. (-u) 44 111. 460. See 50 111. 264. [a) 71 111. 493. •SfA 430 CASE. Declaration a;:;ainst R. R. Co. for damage by fire. land of about the width of ore hundred feet, to wit, of the width of fifty feet on each side of the middle of the said rail- road, 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 dry grass and weeds, so that fire from the locomotive engines and trains of the defendant, on the said railroad, Avould not by means of such dry grass and weeds spread and be communicated therefrom to the said farm of the plaintiff; yet the defend- ant, not regarding its duty, or using due care, in that behalf, did not nor would keep the said strip of land free from dry grass and weeds as aforesaid, but on the contrary thereof before that time negligently suffered large quanti- ties of such dry grass and weeds to accumulate, and then negligently suffered the same to remain on the said strip of land ; by means whereof fire then and there 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 communi- cated 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 there 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, to-wit, bushels 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 extend- ing along and adjoining the said close, and was then and there running divers locomotive engines on the last-men- tioned 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 engine, by and through the mere carelessness and negligence of the defendant, 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, CASE. 431 Against R. R. Co. for damage by fire — Observations. were then and there consumed, and wholly lost to the plain- tiff. Wherefore the plaintiff says that he is injured, and has sus- tained damage to the amount of dollars, and there- fore he brings his suit, etc. 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, (x) Railroad companies, in the exercise of their functions, should adopt such precautions as will prevent damage to the property of individuals by the escaping of fire from locomo- tives ; and they may be guilty of negligence, and answerable therefor, if injury results from fire so escaping, (r) A railroad company is required to use the same diligence in removing dry grass and Aveeds, 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 materials {2) Even with the use of the best appliances to prevent the escape of fire, if through the overloading of the engine the escape of sparks is caused to a dangerous extent, the com- pany will be deemed guilty of gross negligence, (a) 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, (d) It is the duty of all railroad corporations to keep their right of way clear from all dead grass, dry weeds, or other combustible material, and for neglect they are liable to the person injured, {c) It is not negligence pef se for a railroad company to (x) 42 111. 407. (/) 28 111. 9 ; 39 111. 455; 42 111. 355 ; 53 III. 447 ; 3 C. B. 229 ; 71 111. 493. (2) 42 111. 407 ; 86 111. 443. (a) 53 111. 447. (i) 53 111- 447- (<•) Rev. Stat. (1 874) S07; Rev. Stat. (1S77) 770. 432 " CASE. DeclaiMtion against K. R. Co. for killing cattle. 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 rail- roads 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 negli- gence 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 cannot recover for injuries thus arising, {c) No. 201. Against a railroad company, on the statute, {d) for damages resulting from notfc7icing its road, etc. [Commence as in No. 197, 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 ajid using and operating a certain 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 before 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 there 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 plaintiff then and there strayed and went upon the said railroad, at a certain place where such fence was then necessary to pre- vent hoises from getting upon the said railroad from the lands adjoining the same, and not where the said railroad 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. dcfenda7it so to do, nor at the crossing of any public road (c) 47 111. 497, 505; 42 111. 407 ; 51 111. 78; S3 111. 447; 54 HI- S04. [ii) 2 Starr & Curtis' An, Stat. 1927; Rev. Stat. (i.'-'77) 769. CASE. 433 Declaration against R. R. Co. for killing cattle. or highway, nor within the limits of any town, city or vil- lage ; 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 and governed by divers then agents of the defendant, on the said railroad, then and there ran and struck upon and against the said hones, and thereby of the said horses, each of the value of dollars, were then and there killed, and wholly lost to the plaintiff, and the others of the said horses, each of the value of dollars, were then and there great- ly 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 afore- said, in the county aforesaid, was a railroad corporation, and was possessed of and Jising and operating a certain other railroad extending through a part of the county afo'.esaid, 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 defendant, not regarding the statute in such case made and provided, did not before that time there construct and then and there maintain cattle-guards, suitable and sufficient to prevent horses from getting upon the same railroad, 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 tcnnini, and if it crosses the railroad more than once, state the partictdar place); by means 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 mentioned horses so being on the same railroad as aforesaid, a certain other engine 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 othersof the same horses, each of the value of dollars, were then and there 28 434 CASE. Against R. R. Co., for killing cattle — Observations, etc. greatly hurt, wounded and lamed, and became of no use or value to the plaintift". [A comit at common law may be mserted, charging the in- jury to have been negligently and wilfully done, and omitting all allegations in respect to fences and cattle- gliards. ) Wherefore the plaintiff says that he is injured, and has sus- tained damage to the amount of dollars, and therefore he brings his suit, etc. {e) 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 cat- tle-guards. (/") In an action against a railroad company,, under this stat- ute, the plaintiff must show that the railroad had been open for use six months before the occurrence of the injury; {g) and that such injury was occasioned by the omission of the company to maintain a fence or cattle-guards at some place where the statute requires the same to be maintained. {It) 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 Avere left down or open by some one, without the fault of the company, and thereby the animals got upon the track, and were injured, that is a matter of defense, (z) Although the declaration must negative all the excep- tions 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 (t!) See 25 111. 529; 27 III. iqS; 30 111. 452; 55 111. 230. (/) 13 Bradw. 3S7; SS 111. 36S; 107 111. 577; 12 Bradw. 304; 25 111. 529; So 111. 72; 82 111. 632; 85 111. 370. [S) 27 111- 30. 41; 26 111. 631; 30 111. 347; 55 111. 230. {h) 27 III. 207, 48; 85 111. 2S8. (?'J 27 111. 198; 33 111. 2S9 ; 14 Cr.adw. 394; 13 Bradw. 261. CASE. 435 Against R. R. Co., for killing cattle. — Observations, etc. build the fence at the place where the animal went upon the railroad. (/) A town or village, within the meaning of the statuts, is any a.ssemblage 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 these gates or bars securely closed, so as to prevent cattle from getting upon their roads at such places as well as at other points. And while these com- panies are not required to keep such a force of men on their roads that a breach in a fence would be seen and repaired as soon as made, still the law requires them to keep a force sufficient to discover and close such a breach within a reason- able time. (/) Where a servant of the company went ove'r the road at 4 p. m. Saturday, and found the fences in repair, and the next Monday morning hj 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 injury 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 U) 40 111. 347. {i) 27 111. 48. (/) 54 111. 528; 55 111. 226; 85 111. 2S8. (w) 47 111- 206; see 55 111. 226; 88 111. 368. 436 CASE. Against R. R. Co., for killing cattle — Observations, etc. ordinary circumstances, then the company will not be obliged to prove an absence of negligence in running the train, and will not be liable unless shown to have been guilty of carelessness or a wilful commission of the in- jury, in) 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 unruly, {o) 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, to- wards a crossing at the end of the cut, without sounding the bell or whistle continuously for the distance required by the statute {g) If an animal is suddenly driven on the track by a dog, and there is no fault on the part of the en- gine driver, the company will not be held liable, (r) While the failure of a railroad company to fence its road is neg- ligence, 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, is) If a railroad company has erected and maintains sufficient fences and cattle-guards, then it is not liable for injuries («) 38 III. 410 {o) Ibid. {p) 38 111. 424; 43 I"- 77; 55 111- 226. {q) 38 111. 482. (r) 43 111. 77. {s) 36 111. 409; see 55 111. 379. CASE. 437 Declaration against R. R. Co. for killing persons, etc. caused to cattle on its road, unless such injuries are caused by the negligent or wilful act of the company, [t] An omission to ring a bell, or sound a whistle, 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 ani- mals through wantonness or gross negligence, {z/) 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 transacting business under that name, (z') A railroad company can not free itself from liability by leasing its road to other parties. Contractors for the con- struction of a railroad are the servants of the company, and for their tortious acts, while about the company's business, the company is liable, (w) The company owning a railroad not fenced as required by lav/, and also the company using it, are liable for injuries done to cattle by the trains of the latter company, (x) No. 202. Against a railroad company, for causing death of person — Snit by administrator. {Title of court, etc., as in No. 197, ante.) A. B. plaintiff, administrator of the estate of G. H., deceased, who died intestate, complains of the Railroad Com- pany, defendant, of a plea of trespass on the case: For that whereas the defendant, in the life-time 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 attached thereto, which said locomotive en- (/) 25 111. 529. See 30 III. 117, 451 ; ^ 111. 304 ; 46 111. 494. {u) 29 111. 447; 47 111. 295. (v) 30 111. 353. {xo) 22 111. 106; 2 111. 585, 623. See 15 111. 72; 14 111. S5. (jt) 39 111, 272; 40 111. 143. But see i Allen (Mass.) 9. 438 CASE. Declaration against R. R. Co. for killing person, etc. gine and train were then and there under the care and man- agement of divers then servants of the defendant, who were then and there driving the same upon and along the said railroad, near and towards a certain crossing of the said railroad and a certain public highway there, (to wit, a cer- tain public highway then leading from to ;) And while .the said G. H., zvitJi all due care a)id diligence, was tlien riding across the said railroad, at the said crossing, upon the said public highway there, in a certain wagon drawn by two horses, the defendant then and there, by its said servants, so carelessly and improperly drove and man- aged the said locomotive engine and train, that by and through the negligence and improper conduct of the de- fendant, by its said servants, in that behalf, the said loco- motive 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 ed- ucation, {y) [A count may be inserted, charging neglect to ring a bell, etc., like N'o. 198, ante.) To the damage of the plaintiff, as administrator as afore- said, of dollars, and therefore he brings his suit, etc. And the plaintiff brings into the court here the letters of ad- ministration to him granted by the County Court of the coun- ty aforesaid, which give sufficient evidence to the court here of the grant of administration of the said estate to the plain- tiff, etc. This action is given, in Illinois, by the act of February 12th, 1853. (.s-) In order to recover, the plaintiff must allege in his declaration, and prove, that the deceased left a widow or next of kin, to whom the damages can be dis (j) See 26 111. 400; 10 Law & Eq. 439; 3 Duer, 635. {z) I Starr & Curtis' An. Stat. 1290; Rev. Stat, (1877) 55S. See 15 Biaclw. 347; 106 111. 131 ; 107 111. 644. CASE, 439 Against R. R. Co. for killing person — Observations, etc. tributed. 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 continu- ance of their lives would have brought no pecuniary benefit to their kindred. The sole measure of damages is the pecun- iary loss ; nothing is to be allowed, by way of solace, for the bereavement, {a) The action, under the statute, is to be brought by the ex- ecutor or administrator of the deceased ; and it is not limited to those cases where the deceased leaves a widow. Any mo- ney recovered by such action is not to be treated as a part of the estate of the deceased ; Creditors do not get any benefit from it. It is to be distributed among those to whom the per- sonal estate would go by law, in the absence of a will. Or- phans may have redress, under this statute, where both pa- rents are killed, and a husband for the loss of a wife, {d) (But the husband is not in any sense next of kin to the wife, nor the wife to the husband.) {c) The fact that the person killed by a railroad train, at a crossing, was partially deaf, would not excuse the continuous sounding of the whistle, or ringing of the bell, from the point required by the statute, [d) But while every traveler on a highway crossed by a railroad, is entitled to the benefit of the signal required by the statute, at the same time it is the duty of such traveler, on approaching a crossing, to make use of all his faculties to discover a train — not only to listen for a bell or whistle, but to look out and see whether a train is coming, {e). {a) 80 111. 88; 4 Biss. C. C. 430, 448; 91 111. 302; 108 111. 28S; 107 111. 44; 26 111. 400;" 55 111. 381; 77 111. 68; 81 111. 245; 75 HI- 468; 69 111. 426. (6) 18 111. 349; 42 111. 174; 47 III. 66; 54 III. 482; 19 Bradw. Ii6, 591: 72 U. S. 90; 115 111. 115; 10 Bradw. 404; S. C. 105 111. 364. {c) 44 ill. 446 ; 2 Kent's Com. 136. See 2 Biss. C. C. 282. (d) 38 111. 482. See40 111. 21S; 108 111. 213. (<«) 40 111. 218; 46 111. 74; S3 111. 115; 55 111. 379. See 42 111. 288; 4'. 111. 64; 45 111. 469; 49 III. 499; 47 111. 408. 514; 52 111. 325; 51 111. 495: 55 111. 367; 80 III. 52S; Si 111. 245, 292; 83 111. 427. 440 CASE. Declaration against a city for negligence, etc. In an action against a railroad company, to recover dam- ages for the death of a passenger, alleged to have been occa- sioned by the wrongful or negligent conduct of the agents of the company, it appeared that the train, upon which the de- ceased was a passenger, had stopped at a station and remained a sufficient length of time to enable passengers to leave it in safety ; but the deceased, not availing himself of that oppor- tunity, waited until the train was again in motion, and then, without the interference or suggestion of any of the servants of the company, attempted to leave the train, and, while so doing, was thrown under the cars, and received injuries of which he died. There appearing to have been no misman- agement of the train on the part of the company, it was held that it was not liable. {/) In determining the degree of negligence of a person, the jury should take into consideration his capacity. A child can not be required 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 negli- gence as to a child. (^) 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 an- other, ill). No. 203. Against a city, for permitting a sidewalk to remain ont of repair, whereby plaintiff zvas injured. ( Title of courts etc., as in No. 197, 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 possessed (/) 54 111. 133 ; 52 111. 290. See 77 111. 109. (^) 54 111. 482 ; 26 111. 255 ; 22Vt. 213; 19 Conn 507. iji) 18 111. 349; 42 111. 174. See 47 111. 66; 54 111. 482; 55 111. 367. 1 CASE. 441 Against a city, for negligence — Observations, etc. and had control of a certain public sidewalk on a certain public street, called street, in the said city, in the county 'aforesaid, and oug-ht to have kept the same in good and safe repair and condition : Yet the defendant, not re- garding its duty in that behalf, while it was so possessed and had the control of the said sidewalk, to wit, on the day aforesaid, there wrongfully and negligently suffered the same to be and remain in bad and unsafe repair and condition, and divers of the planks wherewith the said sidewalk was laid to be and remain broken and unfast- ened ; 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 again.st 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 hindered from transacting his business and affairs, and also, by means of the premises, was there obliged to and did lay out 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 corpor- ation of keeping its streets in a safe condition for the use of the public, an action on the case will lie to recover damages occasioned by a neglect of such duty, (i) And such duty can not be shifted by the corporation upon a person who may be employed to perform it. (j) If an individual constructs a hatchway in a sidewalk, he musl respond for any damages resulting from his negli- gence to render it safe and free from danger. It is also (?) 49 111. 479 ; 14 111. 85 ; 15 111. 72 ; 20 111. 385 ; 17 111. 143 ; 25 111. 424 ; 42 ^^'- 503; 52 III. 189; 53 111. 407; Ang. & Ames on Corp., sec. 10; 17 N. Y. 104; 3 Seld. (N. Y.) 493; 2 Black, (U. S.) 418. See 46 Penn. 221 con/ra. U) Ibid. 442 CASE. Declaration for negligence, etc. 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 neg- lect of duty caused the injury will be liable over to the city therefor, (k) The measure of damages in an action against a munici- pal corporation, for negligence in not keeping its streets and sidewalks 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 descrip- tion. (/) JVo. 204. Agaitist defendant, for keeping uncovered a vault- hole in street^ adjoviing his premises ^ whereby plauitiff fell down^ and was injured. [Title of court, etc., as in No. 197, ante,) A. B., plaint- iff, by E. F., his attorney, complains of C. D., defendant, of a plea of trespass on the case : For that whereas the de- fendant, before and on, etc., was the possessor and occu- pier of a certain messuage and premises, with the appur- tenances, situate in the county aforesaid, and near to a cer- tain common and public highway there, in which said high- way 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 defend- ant, well knowing the matters aforesaid, while he was so the possessor and occupier of the said messuage and prem- ises, with the appurtenances, and while there was • such hole as aforesaid, to wit, on the day aforesaid, there wrong- fully and unjustly permitted the said hole to be and con- tinue, and the same then and there was so badly, insuf- ficiently 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 highway, then and there necessarily and unavoidably slipped and fell into the said hole, {k) 53 111. 1S9. See 53 111. 212; 44 111. 295; 105 III. 554; 107 111, 186; 104 111. 268, 641. [I) 49 111. 241 ; 53 111. 407. CASE. 443 For negligence — Observations, etc. and thereby the left leg of the plaintiff was then and there broken, and he became and was sick, sore, lame and disor- dered, 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 endeavor- ing to be healed of the said wounds, sickness and disorder : To the damage of the plaintiff of dollars, and therefore he brings his suit, ete. 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, (w) So where the defendant had employed a bricklayer to make a sewer, who left it open, in consequence of which the plaintiff fell m, and broke his leg, the defendant was held liable, (n) Where a clerk of a retail merchant went down into a cellar, that was being excavated by the landlord of the merchant, to recover a lady customer's hat, and while there was injured by the falling of a wall, it was held that he could maintain an action against the person doing the work, for the injury received, [o) Every person must so use his own property as not to in- jure 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 surren- ders the premises for the use of the contractor, is not during the erection of the building answerable in damages for an (m) 4 Taunt. 649; 2 H. Black. 349. («) 6 Esp. 6; 5 B. & C. 559. See 18 111 349; 20 111. 544; 26 111. 320; 52 111. 190. {0) 45 111. 444. ^ (/) 45 111- 455 ; 46 111. 494; 49 HI- 234, 476- 444 CASE. Declaration against proprietors of stage-coach for negligence. accident occurring to a stranger passing by. If the sufferer has any recourse, it is against the contractor, or the corpor- ation within which the property is situated. The persons wh^ may be accused of negh"gence, under such circumstances, are not the servants of the owner of the premises, but of the con- tractor. (^) No. 205. Against propiietors of stage-coach for negligence. Commence as in last precedent}^ For that whereas the defendant, before and at the time of committing the griev- ances hereinafter mentioned, was the owner of a certain common stage-coach, by him used and employed in carry- ing 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., afore- said, to, etc., aforesaid, for a certain fare and reward to the defendant in that behalf; and by reason thereof the defend- ant ought carefully to have conveyed the plaintiff, by the said coach, on the said journey : Yet the defendant, not regarding his duty in that behalf, so carelessly and unskill- fully 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 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 was 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 pre- vented 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, {q) 2\ 111. 224. See 54 III. 397, CASE. 445 Declaration for keeping a dog used to bite, etc. dollars, in and about endeavoring 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 in- curred great expenses, amounting to dollars, in and about his necessary support and maintenance : To the dam- age, etc. Where a traveler in a public coach is injured by the care- lessness of the driver, such carelessness is to be deemed neg- ligence on the part of the owner, in a suit brought against him for damages, {r) As regards passengers, a. stage-coach 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. ; {s) but the breaking down or upset- ting of the coach is said to be prima facie evidence of neg- lect, {t) No. 206. Against defendant, for keeping a dog zvhich bit plaintiff. [Commence as in No. 204, 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, wrongfully, 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 defendant 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, (r) 31 Barb. (N. Y.) 385. {s) II Moor, 133; 3 Bing. 319, S. C. ; 2 Campb. 79; I C. & P. 636, 414; 9 Bing. 457; 2 M. & Sc. 610, S. C. ; Chit. Jr. Cont. 2 ed. 385, 386. [t) 2 Campb. 79; 10 Ohio, 145; 13 Pet. 181 j I McLean, 540; 2 McLean, 157; II Eng. Com. Law, 119. 446 CASE. Declaration for malicious proseculion, etc. lame and disordered, and so remained for the space of six months then next following, during all which 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 prem- ises, 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. Tf a person negligently keeps dogs, or other animals, which are known to him to be of a savage and ferocious disposition, he. is accountable for all injury which they 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 doipestic 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, {v) No. 207. For malicious prosecution. {Commence as in No. 204, 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 {u) I Scam. 338; Id. 492; 22 111. 140; 30 Barb. (N. Y.) 147; I.d. Raym. no. {v) I Chit. PI. 70. CASE. 447 Declaration for malicious prosecution. the committing of the said grievances, had deservedly ob- tained 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 in- tending to injure the plaintiff in his aforesaid good name, fame and credit, and to bring him into public scandal, in- famy and disgrace, and to cause the plaintiff to be impris- oned for a long space of time, and thereby to impoverish, oppress and ruin him, on, etc., in, etc., went and appeared before one E. P., Esq., then and there 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 rea- sonable or probable cause whatsoever, charged the plaintiff with having feloniously stolen a certain gold zvatcJi of the 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, the said E. P., or some other justice of the peace in and for the said county, to be dealt v/ith according to law for the said 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 probable cause whatsoever, caused and procured the plaintiff to be carried in custody before the said E. E., so being such justice as aforesaid, to be examined before the said justice, touching the said supposed offense ; which said justice having heard and considered all that the defendant could say or allege against the plaintiff touching and concerning the said sup- posed offense, tliereupon then and there adjudged and determined that the plaintiff was not guilty of the said supposed offense, and then and there caused the plaintiff to be discharged out of custody, fully acquitted and dis- charged of the said supposed offense ; and the defendant 448 CASE. Declaration for malicious prosecution. has not further prosecuted his said complaint, but has aban- doned the same, and the said complaint and prosecution are wholly ended and determined. {Second cou)it.) And whereas also the defendant, fur- ther contriving and maliciously and wickedly intending as aforesaid, on, etc., aforesaid, in, etc., aforesaid, falsely and maliciously, and without any reasonable or probable cause w^hatsoever, 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 procured 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 expiration of which time he, the plaintiff, was there duly dis- charged 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 premises 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 larcc/iy ; and also the plaintiff has, by means of the premises, suftered 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 about the procuring of his discharge from the said im- prisonment, and the defending of himself in the premises, and the manifestation of his 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 in- jured 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 maliciously, and without probable cause. If there is no CASE. 449 Malicious prosecution — Observations. malice, or if there is probable cause, the action will not lie. (tv) Probable cause is defined to be a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense charged, {x) 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, {y) Good faith is always an important subject of inquiry in an action of this kind, (z) To enable a party to maintain this action, it is not essen- tial that there should have been a trial by jury, and a ver- dict of acquittal rendered, upon the charge preferred against him, {a) but it is essential to aver and prove that the charge upon Avhich the plaintiff was arrested has been legally de- termined, in his favor, either by a trial or otherwise, [b) And where the plaintiff showed a discharge under a habeas cor^iis^ it was held that it should also have been made to appear 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, {c) 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, {d) Although a want of probable cause may raise the pre- sumption of malice, the existence of malice is not sufficient (-?ft' CASE. 481 Declaration for slander — Words charging larceny. "He" (meaning the plaintiff) "perjured himself." "He" (meaning the plaintiff) "committed perjury." "You" (meaning tiie 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 defend- ant) "can prove it.** By means of the speaking and pub- lishing of which said several false, scandalous and mali- cious words by the defendant, 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 otherwise injvu'ed : To the damage of the plaintiff of dollars, and therefore he brings his suit, etc. {k) IVo. 222. I^or -words charging larceny. [Conunencc as in No. 204, ante.) For that whereas the plaintiff, before and at the time of the committing by the defendant of the several grievances hereinafter mentioned, was a person of good name, credit and reputation, and de- servedly enjoyed the esteem and good opinion 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, 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 divers persons, falsely and maliciously, in the presence and hearing of the said persons, spoke and published, of and concerning the plaintiff, the false, scan- dalous, malicious and defamatory words lollowing, that is to say, "He" (meaning the plaintiff) "stole my corn." "He" (meaning the plamtiff) "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. (//) 26 III. 291. 31 482 CASE. Declaiation for slander — Words spoken in a foreign language. {A second count may be here inserted, if deemed neces- sary, concluding the declaration as folloivs :) By means of the committing of which said several griev- ances by the defendant, 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. 11'^. For zvords spoken in a foreign language. {^Commence as in No. 204, ante.) For that whereas the plaintiff, before and at the time of the committing by the defendant of the several grievances hereinafter mentioned, was a person of good name and reputation, and deservedly enjo3^ed 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 in- tending to injure the plaintiff, and to bring him into public scandal and disgrace, on, etc., in, etc., in a certain dis- course which the defendant then and there had, of and con- cerning the plaintiff", in the presence and hearing of divers persons, falsely and maliciously, in the presence and hear- ing of the said divers persons, who then and there under- stood the German language, spoke and published, of and concerning the plaintiff, the false, scandalous, malicious and defamatory words following, in the said German lan- guage, that is to say, {here set forth the zvords in the German language) ; which said words signified, and meant, in the English language, as follows, that is to say, {here set forth a correct translation of the words in English, with innuendoes, as in Nos. 221 and 222, ante.) ( Here insert a second count, if deemed necessary , and conclude as follows : ) By means of the committing of which said several griev- ances by the defendant, the plaintiff has been and is gready 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 otherwise injured ; To the damage of the plaintifi of dollars, and therefore he brings his suit, etc. (/) 27 111. 411. CASE. 483 Declaration for slander — Words imputing insolvency, etc. Where the words were spoken or published in a foreign language, the foreign words must be set forth, {J) together with a translation into English. To set forth the words alone, or the translation alone, would not be sufficient, {k) 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, {m.) ]\o. 224. By a tradesman, for tvords imputing insolv- ency, etc. — alleging special damage. ( Commence as in JVo. 204, 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 engagements 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 ti ade 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 rnali- ciously 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 circum-, stances, on, etc., in the county aforesaid, in a certain dis- course which the defendant then and there had, of and concerning the plaintiff, and his circumstances, and his said trade and business, in the presence and hearing of divers persons, falsely and maliciously, in the presence (J) 6 Term, 162. {k) 3 Wend. 394; 3 Sanf. 734; 3 Chand. 26; 12 Ind. 453; 6 BL; :kf. 351: 3 Watts, 28; 3 Denio, 346; Heard on Lib. & Slan., sec. 210. (/) 6 Term, 162 ; 3 Watts, 28; 9 C. & P. 766. {m) 6 Blackf. 351 ; Townshend on Slan. & Lib-, sec. 330. >^ 484 CASE. Declaration for slander — Words imputing insolvency, etc. and hearing of the said persons, spoke and pubhshed of and concerning the plaintiff, and his circumstances, and his said trade and business, the false, slanderous, mali- cious and defamatory words following, that is to say, "The property of B." (meaning the plaintiff) "will be in the hands of the sheriff' b}^ 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 slock of goods which the plaintiff" then had in his store,) "to avoid paying his" (meaning the plaint- iff'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 griev- ances by the defendant, the plaintiff has been greatly in- jured 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 publish- ing of the said false, scandalous, malicious and defama- tory 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 plaint- iff', 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 satisf}' 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 prevented from carr3ang on his said trade and business ; and he was thereby also com- pelled to and did then and there pay out divers sums of money, amounting to dollars, in and about the said attachment-suit, and for costs in that behalf, and in obtain- ing the release of his said goods and merchandise from the attachment atoresaid ; and divers persons who had, before the speaking of the said false, scandalous, malicious and defamatory words by the defendant as aforesaid, been ac- customed 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 accomit, respectively refused to do so; and particularly one E. F., by reason of the speaking and publishing of the said false, CASE. 485 General form of a declaration for libel in a newspaper. scandalous, malicious and defamatory words by the defend- ant as aforesaid, then refused, and thence hitherto has re- fused to liave any dealings or transactions with the plaintiff in his said trade and business, as he the said E. F. other- wise might and would have had ; and by means of the sev- eral premises the plaintiff has there lost and been deprived of divers great gains and profits which otherwise 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 the facts) : To the damage of the plaintiff of dollars, and there- fore he brings his suit, etc. No. 225. For libel in a nezvsfafer. {Commence as in No. 204, ante.) For that whereas the plaintiff, before and at the time of the committing by the defendant of the several grievances hereinafter mentioned, was a person of good name, credit and reputation, and de- servedly enjoyed the esteem and good opinion of his neigh- bors and other worthy citizens of this state : Yet the defend- antjwell 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 newspaper called the , whereof the defend- ant was then and there the editor and proprietor, a certain false, scandalous, malicious and defamatory libel, contain- ing (among other things) the false, scandalous, malicious, defamatory and libelous matters following, of and concern- ing the plaintiff, that is to say, "He, (meaning the plaint- 'If,) etc. {setting out the libelous matter in h^ec 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 mali- ciously did compose and publish, and cause to be composed and published, of and concerning the plaintiff, in the said newspaper called the , whereof the defendant was then and there the editor and proprietor, a certain other false, scandalous, malicious and detamator}^ libel, contain- ing (among other things) the false, scandalous, malicious, 486 CASE. Declaration for libel hy letter, ; tc. defamatory and libelous matters following, of and conceri • ing the plaintiff, that is to say, etc. {Here set out th ' libelous matter^ with proper innuendoes^ as in next form. By means of the committing of which said several griev- ances by the defendant, the plaintiff has been and is greatl} 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. Ko. 226. For libel by letter^ imputing insolvency ; claim- ing special damages, etc. {Commence as in No. 204, 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 engagements, 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 fortune : 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 sub- stance, and in insolvent circumstances, and to prejudice and injure the plaintiff with one E. F., a trader and mer- chant doing business at , who for a long time before 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 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 business, circumstances and credit, in the form of a letter addressed to the said E. F., containing the false, scandalous, malicious, defamatory and libelous matters fol- \ CASE. 487 Declaration for libel, by letter, etc. lowing, that is to say : "Sir, you (meaning the said E. F.) will be surprised to see a stranger write to you, (mean- ing 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) believe 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 the plaintiff,) and he (meaning the plaintiff) was"a bankrupt some years before, (meaning before the writing and publishing of the said libel,) and never could get his (meaning the plaintiff's) cer- tificate ; so all that he (meaning the plaintiff) has or deals for is his (meaning the plaintiff's) former creditors' rights, and he (meaning the plaintiff) has not been in business above three quarters of a year, and now is joined with his (meaning the plaintiff'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) recom- mending 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 (meaning his, the defendant's,) part, and if you (mean- ing 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." Ard the defendant then and there falsely and maliciously sent the said letter, containing the false, scandalous, malicious, defamatory and libelous matters aforesaid, b}^ mail to the said E. F., and the same was then received and read by the said E. F., as thereby pub- lished by the defendant to the said E. F. 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, reputation, credit, trade and business, and has fallen into great discredit among his creditors, and other worthy persons with whom he had dealt and traded in his said trade and business, and of whom he was accus- 488 CASE. Defenses to the action. tomed to buy goods and merchandise o.. credit, and espe- cially the said E. F. ; insomuch that those creditors, and other persons, and especiiilly the said E. F., wholly on account of the writing and publishing of the said false, scandalous, malicious and defamatory libel by the defend- ant 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 the facts may justify ;) and also by means of the premises the plaintiff has been and is otherwise injured : To the dam- age of the plaintiff of dollars, and therefore he brings his suit, etc. A publication, to be a libel, must tend to injure the plaintiff's reputation, or expose him to public hatred, con- tempt or ridicule, {o) but it need not charge a crime, (j^) 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, {q) Where a member of a school district wrote a letter to a school committee, accusing a teacher of a want of chas- tity, 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, if) DEFENSES TO THE ACTION. For pleas in abatement, and observations on the princi- ples governing the same, see "Pleas to the Jurisdiction and in Abatement," in assumpsit, arite, pages 144-161. {o) 8 B'ackf. 426; 32 Penn St. 273. (/) 5 Ind. 364. {q) I Starr & Curtis' An. Stat. 804; Rev. Stat. (1S77) 374 See 86 111. 147 (r) 3 Pick. 379. i CASE. 489 Plea of not guilty — Observa ons, etc. Pleas in bar. — In an action on the case, the \ lea of not guilty is the general issue. No. 227. Plea of not guilty. In the Court. Term, 18 — C. D. ) ats. >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 man- ner and form as the plaintiff has above thereof complained against him : And of this the defendant puts himself upon the cou;itry, etc. The plea of not gtulty^'m. 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 thisis put in issue by this plea. It compels the plaint- iff to prove every essential allegation in his declaration that goes to make up the liability of the defendant. The facts stated in the inducement, however, are not put in issue by it. (5) 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 possession 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 surviving, as well as the commission of the act com- plained of. iji) (s) I Bing. N. C. 5S8, 3 Dowl. 619, S. C ; S Jur 9S6; 2 Greenl. Ev., sec 231. (/) 3 M. & Rob. 260; 2 Steph. N. P. 1025. [u) 48 111. 410. 490 CASE. Special pleas generally — General issue in actions for slander, etc. Special ^leas generally. — As an action on the case is founded upon the mere justice and conscience of the plaint- iff's case, and is in the nature of a bill in equity, and is in effect so, the defendant may under the general issue intro- duce in evidence any matters which show that the cause of action has been discharged, or that in equity and good con- science the plaintiff ought not to recover, {y) Thus a re- lease, former recovery, or satisfaction need not be plead- ed. (Zi^) 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 words, which must be speciall}'' pleaded, {x) 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. (j/) General 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 decla- ration ; 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 mali- cious sense imputed by the declaration, but in an innocent {v) I Chit. PI. (5 Am. ed.) 432; Greenl. on Ev., sec. 231 ; 2 Burr. 1353; 10 Johns. 291. See 6 Hill, 114. (w) lb.; Yelv. 174, «, n. i ; Steph. PI. 182, 183; 2 Bing. 377; i Cum. R. 273; 2 Greenl. on Ev., sec. 231. («) I Chit. PI. (5 Am. ed.) 434-436; 2 Greenl. on Ev., sec. 232. (j) 19 Wend. 463; 6 Hill, (N. Y.) 114. See i Chit. PI. 43-2-435 CASE. 491 General issue in actions for slander, etc. sense, or upon a justifiable occasion, this matter may be given in evidence under the general issue, (z) The defendant can not prove under the general issue the truth of the words, either in bar of the action, or in mit- igation of damages, (a) But proof of the general bad character of the plaintiff is admissible in order to reduce the damages ; (d) but wit- nesses should not be allowed to give in detail all the reports in circulation derogatory to the plaintiff's character, as it would lead to endless investigation, and burden the case with immaterial circumstances, without any beneficial re- sults, (c) It may also be shown, in mitigation of damages, that the words were spoken in the heat of passion; (d) but anger is not a justification of the use of slanderous words, or even a mitigation of the offense, unless provoked by the person against whom such words are used, (e) And it may be proved that the defendant was insane at the time he spoke the words. {/") The defendant is allowed to prove, that at the time and place of uttering the words, he offered an explanation of them, (g) (z) 109 111. 26; 16 Bradw. 478; 15 Bradw. 209; 17 Bradw. 76, 561 ; 18 Bradw. 87; I Chit j PI, (ii Am, ed.) 491; Townshend on Slan. & Lib., sec. 350; 2 Gi-eenl. Ev., sec. 421 ; 7 Cow, 633, 634; 2 Hill, 515; 3 Johns, 181 ; 9 Penn. 313 ; 14 111. 461 ; 8 Blackf, 95. (a) 2 Greenl. E,v., sec. 424 ; Heard on Lib, & Slan., sec, 239 ; Townshend on Slan. & Lib., sec. 211, and cases there cited; 20 111. 325; 29 Maine, 323 ; 4 Sneed, 520; 22 Ala. 617, [i) 4 Scam. 39; 2 Greenl. Ev., sec. 424; 2 Cow. 811 ; 14 Mass. 275 ; 7 Met. 86; 2 Stnrk Ev., 216, 470; 2 Gilm. 34; 20 111. 325 ; 6 Blackf. 155 ; 4 E. D. Smith, (N. Y,) 644; 4 Mich, 409 ; 10 Iowa, 557. But see i Chit. PI. (11 Am. el.) 493, II Price, 235, (c) 20 111, 325 ; 6 Barr, 170 ; 6 Allen, 406 ; Townshend on Slan. & Lib,, sec. 407. (d) 3 Ind. 518 ; 8 Blackf. 462 ; 7 Ind. 440; 4 Iowa, 453; 3 Mass. 546. (e) 50 111. 497, See 20 111. 115; 10 Bradw. 627; 86 111. 461, (/) 4 Blackf. 463, See 4 Bradw. 364; I Bradw. 130; 15 Bradw. 30. {g) 17 111. 597; 18 Md, 177. See 2 Gilm. 725; 14 III, 459; 15 La. An. 48. y^ 492 CASE. Special pleas in actions for slander, etc. It is not admissible, under the general issue, to prove in mitigation of damages that there were rumors in the plaint- iff's neighborhood that he had been guilty of the offense charged, [h) In short, the defendant, where he does not justify, can mitigate damages in two wa3^s only : ist, by showing the general bad character of the plaintiff; 2d, by showing an}' circumstances which tend to disprove malice, but do not tend to prove the truth of the charge. (/) Special ^leas in actions for slander. — As we have just seen, a defendant can not under the general issue, in an action for libel or slander, give in evidence the truth of the matter, or any part of it, even in mitigation of damages, but he must justify specially, {j) or give notice of matter in justification with tlie general issue. {Ji) In framing a plea of justification, care must be taken to observe the following rules : ist, it is necessary, although the libel contains a general imputation upon the plaintiff's character, that the plea should state s-pecijic facts , showing in what particular instances, and in what manner, he has misconducted himself; 2dly, the matter sQt up by way of justification should be strictl}^ conformable with the slander laid in the declaration, and must be proved as laid, at least in substance ; and, 3dly, if the matter of justification can be extended to the whole of the libel or slander, the plea (Ji) 4 Scam. 46; 14 111. 460; 45 111. 23; 3 Pick. 1 ; 3 lb. 376; 3 Mass. 546; 6 lb. 514; I Root, 346; 4 Conn. 408:32 Barb. (N. Y.) 315. (/) 2 Gilm. 34; 4 Scam. 43; 20 N. H. 561 ; 31 Ala. 654. See i Chit. PI. 433' 434- ^ j') I Chit. PI. (11 Am. ed.) 494; 13 Johns. 475; i Blackf. 520; 4 Sneed, 520; 18 Md. 177; 17 Iowa, 290; Townsend on Slan. & Lib., sec. 409; 13 Wend. 9; 15 Ala. 662; 8 Blackf. 134; Heard on Lib. & Slan., sec. 239; 2 Strange, 1200. {k) 14 111. 46: Townsend on Slan. & Lib., sec. 251; 21 Pick. 404; \ Johns. 475; 8 Wend. 550; 24 Wend. 354. i CASE. 493 Special pleas in actions for slander, etc. should not be confined to part only, leaving the rest unjus- tified. (/) It is no objection to a plea, however, that it does not justify the speaking of all the words ; if the charge is divisi- ble, a justification of part will be good^r*? ianto. {iri) But in such case the plea, in the introductory part, must not profess to answer the whole of the declaration or count, but only such part or parts as it really does answer, [li) To support a special plea in justification, where crime is imputed, the same evidence must be adduced as would be necessary to convict the plaintitT upon an indictment for the crime charged ; {o) and it is conceived, that he would be entitled to the benefit of any reasonable doubt of his guilt in the minds of the jury, in the same manner as in a crim- inal trial. If the evidence falls short of proving the com- mission of the crime, the jury may still consider the cir- cumstances, as tending to show that the defendant had probable cause to believe the charge to be true, and to lessen the character of the plaintiff', and therefore to reduce the amount of the damages, {-p) The statute provides that " it shall be competent for the defendant to establish the truth of the matter charged by a preponderance of the testimony." {q) (/) I Chit. PI. (ii Am. ed.) 494; Cro. Jac. 676, 578: Cro. Eliz. 623; 13 East, 554: 2 B. & C. 678; 4D. & R. 230, S. C. ; 1 Stark, on Slander, (2ed.) 480; 3 Blackf. 298; Heard on Lib. & Slan., sec. 240, 242; 12 Ired. 348; 20 Johns. 204. im) 6 Bing. 587. See i Stark. Slan. (2 ed.) 484. (») I Chit. PI. (11 Am. ed.) 497. {o) 24 111. 566 ; 32 Penn. 95 ; 41 111. 141 ; 14 111- 46 ; i Gilm. 556 ; 40 111. 477; I Carter, (Ind.) 42, 554; 35 Maine, 315; 2 Tyler, 75; Wright, 6S3 ; 6 Barr, 170; 6 Cow. 118. (j?>) 2 Greenl. Ev., sec. 426; 2 Stark, on Slan. S3-94, and notes by Wen- dell. See also 7 Law Reporter, 533; 4 Esp. 248; 2 C. & P. 570; i M. & M 46, S. C; I C. & K. 616 ; I Gilm. 556 ; 71 111. 209. {q) 2 S'arr & Curtis' An. Stat. 2286; Rev. Stat. (1S77) 933; 78 111. 412 ; 17 Bradw. 76, 561. 494 CASE. Plea justifying words charging perjury. No. 228. Plea Justifying zvords tmputmg ;perjury. {First -pica not guilty — No. 227, ante.) And for a fur- ther plea in this behalf, the defendant says that the plaintitT ought not to have his aforesaid action against him, the de- fendant, because he says, that before the committing of the said supposed grievances in the said declaration men- tioned, to wit, on, etc., in, etc., at a term of the Court of the said county, begun and held at , within and for the said county, on, etc., before the Honorable E. F., then being judge of the same court, a certain issue duly joined in the said court, between one G. H. and one L. M., in a certain plea of trespass, came on to be tried in due foi'm of law, and was then and there tried by a certain jury of the country, dul}'' summoned, empanneled and sworn between the parties aforesaid ; and that upon the said trial the plaintiff appeared as a witness on the part of the said L. M., and was duly sworn, and took his oath befofe the said court, to speak the truth, the whole truth, and nothing but the truth, touching the matters in issue on the said trial ; and that at and upon the said trial, certain questions became and were material, in substance as fol- lows, that is to say, {here state the material questions) ; and that the plaintiff, being so sworn as aforesaid, and be- ing then and there lawfully required to depose the truth in a proceeding in a course of justice, at and upon the said trial, in the court aforesaid, then and there falsely, wilfully, voluntarily aud corruptly did sa}^ depose and swear, among other things, in substance and to the efJect following, that is to say, {here state the evidence^as fully as the words in the declaration^; whereas, in truth and in fact, {here neg- ative the plain ti^^s cvidence^as in an indictment for -pcr- j'nry) : And the plaintiff did thereby in the said court, so held as aforesaid, upon his said oath upon the trial as afore- said, in manner and form as aforesaid, commit wilful and corrupt perjury : Wherefore the defendant, at the time men- tioned in the said declaration, in, etc., spoke and published of and concerning the plaintiff the said several words in the said declaration mentioned, as it was lawful for him to do for the cause aforesaid. And this the defendant is ready to verify ; wherefore he prays judgment if the plaintiff' ought to have his aforesaid action against him, etc. (r) (r) Whart. Prec. of Indict. & Pleas. 294; 3 Chit. PI. 1033. CASE. 495 Replication de injuria — Plea justifying words invputing larceny. It is said that the plea of justification must be direct and explicit. It must in every respect correspond with, and be as extensive as, the charge in the declaration. " It must he as broad as that charge is ; if it go beside it, or fall short of it, it is naught ; it must be, in point of law, identical with it." (5) JVo. 229. General 7-cplicatton, de injuria. In the Court. Term, iS — . A. B. ^ vs. >Case. C. D. 3 And the plaintiff, as to the plea of the defend- ant 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, at the said time when, etc., in the said declaration mentioned, of his own wrong, and without the cause by him in that plea mentioned, did com- mit the said several grievances in the said plea mentioned, in manner and form as the plaintiff has in his said declara- tion above thereof complained against him, the defendant : And this the plaintiff prays may be inquired of by the country, etc. The general replication, de injti7'ia, is the proper replica- tion to a plea of justification, in actions for oral and written slander. (/) A^o. 230. Plea justifying words inifitiiiig larceny. {First plea not guilty — JVo. 227, ante.) And for a fur- ther 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 plaintiff, before the (5) 1 Iredel, 348; 5 Man. & Rjl. 251 ; 10 Barn. & Cress. 263; 2 Barn. & Ad. 773: 10 Bing. 519; 4 Moore & Scott, 307; 5 Scott, N. R. Soi : Heard on Lib. & Slan., sec. 242. (/) I Chit. PI. (11 Am. ed.) 590; 7 Cow. 4; i Saund. 244, c, (6 ed.) Heard on Lib. & Slan., sec. 252. Sec 7 Price, 670; 13 III. 80. 496 CASE. Reference. committing of the said supposed grievances in the said declaration mentioned, to wit, on, etc., in, etc., one horse, of the vahie of dollars, of the goods and chattels of one E. F,, then and there being found, feloniously did steal, take, lead and drive away, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the People of the said state of Illinois : Wherefore the defendant, at the time mentioned in the said declaration, there spoke and published, of and concerning the plaintiff, the said several words in the said declaration mentioned, as it was lawful for him to do, for the cause aforesaid. And this the defendant is ready to verify ; wherefore he prays judgment if the plaint- it^' ought to have his aforesaid action against him, etc. [iC) Reply de injii7'ia, as in No. 229, ante. Other forms of pleas of justification can readily be framed from the above precedent, by setting out the matter of the plea as in an indictment for the offense charged. For demurrers, see demurrers in assumpsit ; and for pleas of statute of limitations, release, former recover3s accord and satisfaction, etc., see titles of those pleas in assumpsit. (w) Whart. Prec. of Indict. & Pleas, 190; Saund 244, c 1 TROVER. 497 Where the action lies, etc. CHAPTER IX. 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 property wrongfully converted by another to his own use. The plaintiff declares, in sub- stance, 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 in action — as a promis- sory note, bank-bill, bond, deed or mortgage; for coins, medals, plants in boxes ; for animals valuable as merchan- dise, whether reclaimed or not ; and for animals fcrcB natni-cB^ if reclaimed, but otherwise not. Trover lies for manure, lying upon the ground, and not incorporated with the soil, [a] («) 3N. H. 284; 2 Chip. 116. 32 498 TROVER. Where the action lies, etc. Trover may be maintained for a promissory note which lias been paid, and b}^ a mistake left with the holder, (b) It lies for a promissory note, or a title-deed, or certificate of stock ; (c) but no person can maintain trover for a chose in action but the legal owner, (d) It lies for a book of records ; {e) for a dog ; (y) and for wild animals which have strayed away without gaining their natural liberty, (g) Trover lies for a building removed from the freehold, if it had been erected under an agreement that it should be treated as personal property ; [/i) but it will not lie for a fix- ture. (/'). The possession dona jlde of goods gives a sufficient right to enable the possessor to maintain trover against a wrong-doer, (y) If the possession of property is fraudu- lently obtained from a bailee by the general owner, the bailee may maintain trover for the property, against either the owner or his subsequent vendee. {Ji) Trover can not be supported by one joint tenant, tenant in common or 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 de- stroys {m^ or sells the property, («) or assumes exclusive ( J) 9 Vt. 216; 20 N. Y. (6 Smith,) 76; 2 Kernan, (N, Y.) 313. (c) 95 111. 124; 15 Mas^. 389; 19 Ala. 130; 5 Blackf. 419; i Piclc. 503; 13 Ired. 431, 392; 3 Johns. 432; 12 Johns. 347 ; I Root, 125; 41 N. H. 290; 25 Iowa, 56 ; 75 111, 85 ; 83 III. 215. {d) l\ Mo. 428. () To support the action of trover, the plaintiff must prove a right of possession in himself, and a conversion of the property by the defendant at a time when the right of pos- session existed in the plaintifl'; {q) but it is not necessary that the plainlifl"'s interest in the goods should have condn- ued until the commencement of the suit ; (r) and to show a conversion, it must be made to appear that the defendant has had actual or virlual possession of the goods. (^) Wliere a siierilf sells the property of a partnership, as the individual properly of one partner, on a writ of execudon against such partner individually, he is liable in trover to (/) 1 Dlackf. 94; iS Vt. 590; z Blatch. C C. 552; 4 Foster, 237; 16 Ala. 698542 N. 11. 3S6. {m) Rev. Stat. (1877) 369; 85 111. 491 ; 55 111. 451. («) 6 Mass. 20; 14 Pick. 376; 2 Hair, i ; 23 Wend. 462. 'o) 6 Mo. 583. (/) 31 III. 120; 4 Minn. 242; 14 Cal. 250; 10 Mich. 433; 2 Bradwell, 602. {q) 4 Blackf. 317; 2 Blackf. 395, 465 ; 7 Blackf. 361 ; 68 lU. 297; 31 III. 120; 82 111. 125, 152, 409. (r) 6 Blackf. 209; 13 Barl). 641. {s) 4 Blackf. 317; 6 Barb. 436. So6 TROVER. Commencement of the action — Prascife. the other partner therefor ; and plaintiff is entitled to recover the value of his individual share in the property so sold, without regard to the state of the partnership accounts, {ti) Trespass may also be maintained in such case, {v) In an action of trover by the bailee of a chattel, or one having a special property therein, against the real owner, the plaintiff can recover his special property only ; but if the action is against a stranger, the bailee is entitled to re- cover the full value of the article, and he holds the sum re- covered, less the amount of his special interest, in trust for the general owner, to whom he is responsible, {w) The judgment for the plaintiff, in an action of trover, is for the full value of the property at the time of the conver- sion, {x) and for interest from that time, {y) When prop- erty is restored, not depreciated in value, it goes in mitiga- tion of damages, (z) COMMENCEMENT OF THE ACTION. An action of trover is commenced, like most other ac- tions at law, by suing out a summons, or capias; and in certain cases security for costs is required, {a) K praecipe may be filed, in the following form : In the Court of the County of , in the State of Illinois. A. B. ^ vs. > Trespass on the case (trover). — Damages $ — -. C. D. ) The clerk of the said court will issue a summons {or ^^ capias ad respondendum^^) ^ as above, directed to the sher- («) 3 Denio, (N. Y.) 125. (v) 20 Ala. 212 ; 12 Cal. 275 ; 3 Duer, (N. Y.) 45. (w) 13 111. 466; 5 Binn. 457 ; 7 Cow. 670; 15 Conn. 302 ; iS Pick. 278. («) 12 111. 99; 17 Pick. I ; 29 Maine, 419. (^) 12 111.99; 17 Pick, i; 29 Maine, 419; 4 Pick. 466; io Ala. 694; 3 Steph. N. P. 271 1 ; 30 Vt. 307 ; 19 Mo. 467 ; 21 Mo. 294. (^r) 4 Pick. 466; I Hilton, (N. Y.) 207. id) Ante, 39. I TROVER. 507 The declaration. iff of the county of , and returnable to the term, 18—. {Date) . E. F.,' Attorney for Plaintiff. To , Clerk, etc. The declaration. — The declaration in this action al- leges that the plaintiff was possessed of certain goods, (describing them,) as oi his own property, and that they came to the possession of the defendant by finding, and that he converted them to his own use. The conversion is the gist of the action. The finding is not traversable, {b) and it would probably be sufficient to allege generally that the goods came to the hands of the defendant, [c) In actions for injuring, taking away or converting goods, it is in general necessary that the species, the quantity or number, and the value of the goods should be alleged. It is however sufficient in trover (as in trespass and case) to describe the goods as " twenty chairs," "two ricks of ha}^" etc., without specifying them more particularly, (d) But a declaration in trover for " divers goods and chattels" would be substantially bad ; {e) and a declaration for ' ' ten articles of household furniture," or "ten articles of wearing ap- parel," is also bad on general demurrer, {y) Care should be taken not to include in the declaration articles of prop- erty which can not be recovered in this form of action, lest after a general verdict for the full amount claimed, and judgment thereon, such judgment should be reversed on error, {g) If the plaintiff desires to claim for special damage, that {b) 1 Chit. PI. (II Am. ed.) 161. (c) 01. Prec. 467. id) I Cliit. PI. (11 Am. ed.) 37S. See 2 Saund. 333, n. 7; 2 Saund. 74, n. I ; 46 N. H. 160. (e) I Chit. PI. (II Am. ed.) 377; 7 Taunt. 642; i Moor, S. C. 3S4. (/) S Moore, 379. (^) 30 111. 43. 5o8 TROVER. General form of declaration. is, damage not necessarily consequent to the conversion, he must charge such special damage in his declaration, [h) A declaration in trover will be sustained, although no amount is expressed in the ad damnum clause, [t) But in Maryland it has been decided that damages must be claimed, or the judgment will not be supported in the court of appeals. {J) Counts in case and trover may be joined in the same ac- tion, {k) And by statute in Illinois, counts in trover and jeplevin may be joined. (/) ]Vo. 231. General /"orm of declaration in trover. In the Court. Term, 18 — . State of Illinois, County of , 5 set. 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 plaintiff, on, etc., in the county aforesaid, was lawfully possessed, as of his own property, of certain goods and chattels, to wit, {here describe the -profcrty,) of the value of dollars ; and being so possessed thereof, the plaintiff afterwards, to wit, on the day aforesaid, there casually lost the said goods and chattels out of his possession, and the same afterwards, to wit, on the same day, there came to the possession of the defendant by finding : Yet the defendant, well knowing the said goods and chattels to be the property of the plaint- iff, has not as yet delivered the same, or any or either of them, or any part thereof, to the plaintiff, although often thereto requested, but has hitherto refused so to do, and afterwards, to wit, on the same day, there converted and disposed of the said goods and chattels to his own use : To the damage of the plaintiff' of dollars, and there- fore he brings his suit, etc. (//) 2 Bing. N. C. 310; 7 C. & p. 804. (/) 23 III. 618. See Breese, 401. (/) 18 Md. 468. {k) I Chit. PI. 181; 9 Pick. 156, 161; I Humph. 199; i Term, 277 Saund. 117, b ; 30 Ala. 562. (/) Rev. Stat. (1874) 853; Rev. Stat. (1877) 811. See 20 111. 286. i TROVER. 509 Declaration by executor. In trespass for taking "goods, chattels and effects,^' it has been held, the plaintiff may recover the value of sev- ered fixtures, but not so if for taking " goods and chattels" only, {in) If the action is brought for a note, bill of exchange, bond or other writing, describe it by its date, amount, the time when payable, parties, etc., as nearly as may be. {n) But it seems it is not necessary to state the date of a writing. ( Trover. 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 man- ner and form as the plaintiff has above thereof complained against him : And of this the defendant puts himself upon the country, etc. Under the plea of " not guiltjs" the plaintiff must prove : (» 3 Eng. C. L. & Eq. 540. (*) 4 Ind. 146; 31 111. 120; 10 Mich. 433; 14 Cal. 250. (/) Cro. Eliz. 147: Hob. 127; Winch. zo\ i Frcem. 39; 2 Day, 431 ; Yelv. 174, b, 4 Scam. 411. (w) ID Johns. 289; 5 Cow. 466; 13 111. 133; 14 III. 237; 4 Scam. 411; 4 Blackf. 395; 36 Miss. 53; 20 111. 557; 25 111. 317; 6 McLean, 401 ; 15 Pick. 317, 219; 8 Ind. 256; 6 Mass. 342; 7 Ind. 526. («) 12 111. 99. See 2 Caine's Cas. 200. ip) Tidd's N. P. 330; 3 Geo. 4; 2 Bing. N. C. 755. 33 514 TROVER. Reference to forms. (i) Property in himself, either general or special, {f) 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 goodj 11 the time of the conversion, [q) In trover, if the plaintiff recover, he is entitled to the full value of the property converted, with interest from the time ot the conversion, (r) 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, {s) and interest from its maturity to the time of conversion, and interest on the aggregate from that time to the time of the verdict. (/) For pleas of the statute of limitations, release, accord and satisfaction, etc., and for demurrers, see the same subjects in Assumpsit. (/) I Term, 56 ; 2 Saund. 47 a, 1047 k, n. (l); 2 Blackf. 865 ; 2 N. H. 66 5 7 J. J. Marsh. 410 ; 7 I'ort. 279 ; 4 Blackf. 317; 31 Hi. 120. (17) 5 Eng. 211 , 2 Hill, fS. C.) 792. As to conversion, see 42 111. 34. (;-) 12 111. 9y; 21 111. I iS ; 69 111. 32- 57 111. 451 ; 2 Greenl. Ev. sections 276, 649; ^^2, ^f'^ss- 154. {s) I Co wen, 240. (/) 7 l\.rter, 466. See also 2 Rawle, 241. REPLEVIN. 515 Nature of action. CHAPTER X. REPLEVIN. The institution of the action of replevin is ascribed to Glanvil, Chief Justice to Henry H, 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 ex- cessively distrained by the landlord, lest, as Littleton ob- serves, "the husbandry of the realm and men's other trades might thereby be overthrown or hindered." At the com- mon law, a distress was considered merel}^ as a pledo-e 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 com- pelled 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. 1691,) which authorized the distrainor, with the assistance of the sheriff, to have the distress appraised by competent ap- praisers, and sold for the highest price which it would bring, unless regularly 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 rcplcgiarf facras, 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 SiC REPLEVIN. Nature of action. 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 wrong- fully withheld, the sheriff should, upon complaint made to him thereof, deliver them to the owner "without let or gain- saying of him who took the beasts." The owner was re- quired to first give security, (in pursuance of the statute of Westm. 2,) similar to the bond required by statute in Illi- nois and other states. The original writ of reflcgiari fa- cias was thus dispensed with ; and the proceeding upon a complaint made to the sheriff, under the statute, was called a proceeding by "plaint." The statute of Illinois provides that the proceedings in an action of replevin shall be com- menced by -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 are wrong- fully 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 attachment against the goods and chat- tels of such plaintiff, liable to execution or attachment, [a) It has been usual to file an affidavit, and to allege therein that the goods and chattels were wrongfully taken, or wrongfully detained ; and in that manner the plaint men- tioned in the statute has been usually made, ip) The primary purpose of the action is to recover property in specie — not its value, {e) (a) Rev. Stat. (1874) 851; Rev. Stat. (1877) 809. {b) 34 111. 436. (c) 55 Penn. St. 176. REPLEVIN. 517 Where the action lies, etc. Where the action lies, etc. — The action of replevin lies for the recover}^, 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 detention can be justified or excused, or the right of action is suspended or discharged, id) It lies at common law, not only for goods distrained, but for goods taken and unjustly detained for any other cause whatever ; except that, where goods are taken b}^ process of law, the party against whom the process issued can not replevy them ; but if the goods of a sti^anger to the process are taken, he may replevy them from the sheriff, {e) By statute in most of the states of the Union, replevin may be brought whenever goods or chattels have been wrongfully distrained, or otherwise wrongfully taken, or are wrongfully detained. If a chattel is sold by a borrower of it, the owner may recover it, in an action of replevin, of whomsoever he may find in possession of it. {f) 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, {g) without any previous demand. {Ji) Where a person operating a ferry unlawfully seizes a boat belonging to a rival ferry, for an alleged encroach- ment upon his franchise, the person aggrieved may recover his boat by an action of replevin. (?) Where a person had agreed to make three wagons for another, within a limited time, it was held that it was a general contract, and that no title passed on the completion (a') 2 Greenl. Ev., sec, 560; 14 Bradw. 480. ie) 76 111. 479; So Hi. 553; 89 111. 161 ; Gilb. on Rep. 141 ; 20 Johns. 470; 2 Gieenl. Ev., sec. 560. (/) 5 Ohio, 202; 17 Ark. 154; lo Mich. 357. {g) 35 111- 222; 76 111. 345; 79 111, 92; 60 111. 190; 19 Bradw. 620. (/«) 40 Maine, 578; 15 Bradw. 493; 115 111. 490. (0 34 111. 74. 5i8 REPLEVIN. Where the action lies, etc. of the wagons, without a delivery, and therefore an action of replevin would not lie to recover them. [J) Where a minor makes an exchancre of a horse belonijinij i-o his father, and the father apparently acquiesces in the bargain for a considerable time after it has been made, he can not recover the horse his son has exchanged, in an action of replevin, {k) If a person seeks to maintain an action of replevin for a steam saw-mill building, with all the machinery, etc. , belong- ing to the same, he should at least aver in his plaint and declaration that the property in question is personal estate. The statute of Illinois gives the remedy of replevin where goods or chattels are wrongfully taken or detained from the owner, or the person entitled to their possession. Pj-hna facie, a building is real estate, and belongs to the owner of the land on which it stands ; and such is the presump- tion, even where a building is erected by one man upon the land of another. The legal effect of putting it upon another's land is to make it part of the realty. But a build- ing may be personal estate, and the property of another than the owner of the freehold : as where it is erected by the builder, with his own means, and for his exclusive use, in pursuance of an understanding between him and the owner of the inheritance ; and so where it is erected by a tenant on demised premises, for purposes of trade or man- ufacture. In such cases the building is regarded as per- sonal property, and may be removed by the owner thereof, or sold on execution against him, and at his death it passes to his personal representatives. (/) 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 (/) 14 111. 378 ; 31 Ala. 495; 47 Maine, 109; 71 111. 105. {k) 17 111. 83. (/) .16 111. 150; 4 Zeb. (N. J.) 2S7. See 34 III. 522; SS 111. 107. REPLEVIN. 519 Where the action lies, etc. his title to the land in that manner, {in) Consistently with this rule, a landlord may bring replevin for chattels wrong- fully severed from the freehold by a tenant, as the title to the land is not thereby drawn in question, (w) A purchaser of a city lot, holding it under a contract of purchase, with clauses of forfeiture, erected a house thereon, placed upon blocks lying on the ground ; and having failed to make his payments on the contract, he sold the house to a person who removed it from the lot. The vendor of the lot then replevied the house. Held, that the vendee, while occupying the premises under his contract, had no right to erect a building thereon with intent to remove it ; that such intent would be in fraud of his vendor's rights ; that the purchaser of the building stood in no better position, and when he severed the house from the freehold the right of possession attached to the owner of the freehold, who could maintain replevin so long as the house could be identified, and was not permanently annexed to other realty, (i?) Replevin can only be supported for taking personal chat- tels, and not for taking things attached to the freehold, and which are in law considered fixtures, and can not be de- livered to the plaintiff, or to the defendant upon a writ of rctorno habendo. (_^) 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 main- tained, {q) Where the property is left with a person who has ad- vanced money upon it, and is to keep it until he shall be reimbursed, he may replevy it from one who attaches it as (w) 34 111.436; 13 111. 192; I Smith's Lead. Cas. 4S5; Willes, 131; 2 McCord, 329; S Cow. 220. («) 22 Vt. 205; 10 Cal. 258; 12 N. H. 558; 34 111. 436, 522. (o) 34 111. 522. See 13 III. 192 ; 16 111. 1^.9. (/) 8 Cowen, 220; 17 Johns. 116. Sec 34 III. 436. 'q) 2 Rawle, 423; 2 Watt. 126; 11 Wend. 137; 34 111. 436; 35 Barb. (N. 7.) 58; I Chit. PI. 146. 520 REPLEVIN. Where the action lies, etc. a creditor of the pledgor; (r) and unless it is made to ap- pear that the attaching party was really a creditor, he can not complain that it was a design to protect the property of the debtor. The writ of attachment does not of itself show that the party in it was debtor of the plaintiff. It only shows that the officer who made the attachment acted in behalf of an assumed creditor. (5) A person who consents that grain left in a warehouse may be 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 otherv/ise. (/) 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. Replevin lies for specific property, capable of identification and an actual return, not for an undivided interest or share, (u) If a person sells goods to another, and delivers them, although the purchaser is to give a note with security for the goods, at a future day, a sale by the purchaser will be good, and the buyer from him in good faith will hold the goods against the first vendor, (v) Warehousemen have a lien on property stored with them, for proper charges, and may retain possession of the prop- ert}'- to secure paj'^ment of such charges, (w) It has been held in Indiana, that if the plaintiff in an action of replevin is nonsuited, he is not thereby barred from bringing another action, the statute of Westm. 2, c. 2, {r) 26 111. 188. (s; 26 111. 488; 6 Mich. 397. (/) 18 111. 2S6. See 31 111. 283. («) iS 111. 286; 2 Mass. 511. (f) 21 111. 330. (w) 18 111. 286. See 34 111. 508. REPLEVIN. 521 \\'here the action lies, etc. prohibiting a second replevin after a nonsuit, being local to England, and not in force in that state, {x) In Illinois <-^e plaintiff may plead, to a suit brought upon the replevin lond, that the merits were not tried in the replevin-suit, {y) Where one wrongfully sues out a writ of replevin, and dismisses the suit, he illegally takes and assumes owner- ship of the property ; and in such a case the owner may maintain replevin for the property, and is not confined to the lemedy on the bond. The first replevin- suit does not change the ownership of the property, (z) The general ownership of property is not necessarily de- termined in replevin, but the right of possession is. {a) Replevin lies for books of records, (d) and to recover the books of a corporation which are wrongfully detained, (c) 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, (d) In general, it lies for any tortious or unlawful taking of the property of another, or whenever trespass de bom's as- ■portatis can be sustained, (e) Replevin lies for a swarm of bees ; (_/") and for the in- crease of an animal, though the increase was after the taking, (o-) It will not lie for animals ferce naiuroe, and unreclaimed, {k) Money in a box, or leather made into shoes, if sufficiently identified, may no doubt be recovered in replevin. When (*) 3 Blackf. 415. See 7 Cush. 560. (y) Gross Stat. 570. (z) 42 l\\. 34. («) 18 111. 83 ; 4 Iowa, 557 ; 5 Ohio, 92. {b) II Pick. 492; 21 Pick. 148. (c) 5 Ind. 165 ; 35 Barb. (N. Y.) 502. id) 32 111. 34S. (e) ID Wend. 322, 349; 12 Wend. 32; 10 Johns. 369; 15 Mass. 156; 3 Serg & Rawle, 562. (/") F. N. B. 68; Morris on Replevin, 54: {g} F. N. B. 69; Sid. 82; Morris on Replevin, 54. (//) 2 Roll. Abr. 430; Morris on Replevin, 54. <;22 REPLEVIN. Whcmaj maintain the action, etc. property has undergone an alteration, a new right of ac- tion 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, {i) A person may maintain replevin for boards made from trees wrongfully cut on his land, and taken away. And it is a general principle that the owner of property wrong- fully 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 a house. (/ ) If property or choses in action have been pledged to se- cure a debt, the owner must pay, or at least tender, the amount due, before he can claim the right to resume pos- session of the property, or bring replevin for its recov- ery, {k) Where property is sold and delivered to the purchaser, a part of the price being 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 refunding the money already paid. (/) The question of the validity of a tax can not be consid- ered in an action of replevin. (/«) Who 7nay maintain the 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 general property in the goods taken or detained, or a (/) 7 Cowen, 95 ; 5 Johns. 348 ; 20 Maine, 287. (7) 13 111. 192 ; 29 Penn. 522 ; 2 Barb. 613 ; 7 Shep. 2S7 ; 11 Iowa, 533 ; 34 111. 436- (/(■) 34 111. 50S; 2 Greenl. Ev., sec. 64 8;4 Mees. & Wels. 270; 15 111. 362, 365- (/) 54 111. 370. (w) 53 III. 177; 39 111. 117; 21 Iowa, 56; Rev. Stat. (1877) 809. REPLEVIN. 523 Who maj maintain the action, etc. special property therein, (n) And it makes no difference whether the claimant's propert}^ in the goods is absolute or qualified, (0) or whether he has ever had the possession or not, {;p) if he has the right of possessic^n. He must how- ever have at least a special property in the goods claimed, (g) Thus a mere custodian, (r) or receiptor to an officer or any other bailee for safe keeping, (5) or a m.ere servant, who has charge of goods as such only, (/) can not maintain re- plevin. The plaintiff" must have had a right to the possession of the propert}^ at the time of the taking or detention, (tc) If he has not the immediate right of possession, the action can not be supported, (v) but he must proceed by an action on the case, (w) One joint owner of a chattel can not maintain replevin against the other, (x) A father, as the natmal guardian of his children, where they have no other guardian, may maintain the action for their property, {y) If it was understood and intended that the title to the prop- («) 20 Wend. 234; 6 Binn. 3; i Hemp. 10; 23 Penn. 16S; 2 Pike, 315; 4 Blackf. 304; ID Mo. 277; 1 Chit. PI. (11 Am. ed.) 163. (o) Gilb. 119; 15 Pick. 63; id. i68; 3 Pick. 255; 12 Wend. 30; 24 Pick- 25 ; 6 Wis. 343 ; 6 Clarke, 223 ; 18 Penn. 91 ; 43 Mo. 13S. (/) 24 Pick. 25 ; 9 id. 441 ; 7 Term, 9; 11 Wend. 137; 12 td. 30; 2 BlackC 172; 2 Ohio, 82; 3 Eng. 510; 25 Ark. 4S2. (^) 5 Dane's Dig. 516; 7 Hill, 126. (r) 3 S. & R. 20; 9 Mass. 109; i Johns. 3S0. (5) 5 Mass. 303 ; 18 Pick. 427. {i^ 3 Serg. & Rawie, 20. (a) 15 Mass. 310; 15 Pick. 63; 2 Blackf. 174; 4 Blackf. 304; 3 Shep. 373; 24 Pick. 42; I Chit. PI. (11 Am. ed.) 163; 2 Pike, 315; 10 Mo. 277; 28 I'd^ 95 ; 4 Duer, (N. Y.) 201 ; 7 Jones' Law, (N. C.) 251 ; 44 Maine, 374. (w) I Chit. PI. (11 Am. ed.) 163, a; 3 Pick. 255; 15 Pick. 63; 3 Shepley, 373- (w) I Chit. PI. (ii Am. ed.) 263, a; 7 Term, 9. (x) I Har. & Gill, 308; 12 Conn. 331 ; 12 Pick. 324; 35 Penn. 432; 12 Allen, 30; 37 III. 2S1; 4 Ind. 169; 92 111. 315; 14 Bradw. 441, 4S0. (j) I Har. & Johns. 147. 524 REPLEVIN. Against whom may be brought, etc. ert}' should pass without any further action of the parties purchasing and selhng, then the purchaser may maintain replevin, whether the goods had been delivered to htm or not. [z) 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 pos- session 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, {b) or assignee of a chattel mortgage, (c) upon condition 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, {d) One who has bought and receipted for goods, at a sheriff's sale, is the owner of such goods, and may replevy them, {e) An officer may maintain replevin against a custodian who refuses to deliver goods entrusted to him by the officer ; and the 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, {g) even against her husband, iji) Who may be made defendant. — In general, any one in possession of goods may be made defendant. If goods are {z) 21 111. 526. fa) 13 III: 467. See 14 111. 37S; 31 Ala. 495; i Ind. 551 ; 24 Penn. 14. {b) I Hill, 473; 8 Dana, 26S; 17 Barb. 446; 11 Wis 375; 12 id. 243. See 47 Maine, 520. (c) 37 III. 164. {d) 3 Shepley, 373. (e) 20 111. 429; 4 Harr. 62; 2 Browne, 160. (/) 3 Ilill, 215 ; 6 Harr. 388; 10 Ohio, (N. S.) 4S8. See 8 Wis. 315. {J) 50 111. 481 ; II Penn. 272; 13 Penn. 4S0; 16 Penn. 134; 5 J. J. Marsh. ^3o; 15 Texas, 278. (//) 32 III. 493 ; 50 111. 481. See 44 111. 58; 47 111. 22 ; 51 111. 5^5 ; 53 HI- [63. REPLEVIN. ^^D Demand, when necessary, etc. — Commencement of the action. taken hy one person at the request of another, the action may be maintained against either or both. (?) Demand, when necessary . — If the possession of the property claimed has been obtained by delivery, or other- wise lawfully, a demand and refusal are necessary before bringing suit. (_/') The demand may be made by one who stands in loco parentis to the claimant. {Jc) Where the possession of goods has been wrongfully ob- tained, no demand is necessary. (/) COMMENCEMENT OF THE ACTION. The statute of Illinois provides, that " The person bring- ing such action shall, before the writ issues, file with the clerk of the court in which the action is brought, * - * an affidavit showing that the plaintiff in such action is the owner of the property described in the writ, and about to be_ replevied, or that he is then lawfully entitled to the possession thereof, and that the property is wrongfully detained by the defendant ; 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 attachment against tlie goods and chatties of such plaintiff, liable to execution or attachment, nor held by virtue of any writ of replevin against such plaintiff." (;«) It is usual to file an affidavit in writing. The affidavit may be in the following form : \^i) Gilb. 162; 6 En Replevin. A. B. ) And the defendant, by G. H., his attorney, comes and defends the wrong and injur}'', w len, etc., and (w) 35 111- 567- («) 38 111. 282 ; Wilk. 49; I Gilm. 365 ; 4 Scam. 440. REPLEVIN. 529 Plea of non cepi't, etc. says that he did not take the goods and chattels in the said declaration mentioned, or any or either of them, or any part thereof, in manner and form as the plaintiff has above thereof complained against him : And of this the defend- ant puts himself upon the country, etc. The plea of non ccp/t, at common law, where the gist of the action consists in the tortious taking of the plaintiff's goods by the defendant, is said to be the general issue in replevin, {y) It merely puts in issue the taking of the goods, and admits the property to be in the plaintiff; and if the defendant succeeds thereon, he will not be entitled to a return of the goods, {z) A finding for him, on that issue, merely protects him from damages. To entitle the defendant to a return of the goods re- plevied, he must contest the plaintiff's right to the property ; and this he may do by pleading specially property in him- self, or in a stranger, or in the plaintiff and himself, as bailor and bailee, or that he took the cattle damage feasant, or the goods for tolls, customs, or services, as w^ell as for many other causes ; and he may have a return until his de- mands are satisfied, {a) To a declaration or count charging only a wrongful de- tention of the goods of the plaintiff, the plea of non cefit is inapplicable, and would be declared bad on demurrer, or might be stricken out, or disregarded, at the plaintifi^'s election, as presenting an immaterial issue, {b) If therefore there are several counts in the declaration, (j) 2 Greenl. Ev., sec. 562 ; 4 Scam. 440. (z) 18 Pick. 427; 24 id. 425; 4 Wend. 217; 3 id. 667; 7 Cow. 30; 6 Ired. 3S; 25 Maine, 464; 19 Ark. 237; 2 Flor. 42 ; i Eng. 43; 2 Scam. 227; i Gilm. 365; 12 111. 37S; 38 111. 320, 493; 2 Greenl. Ev., sec. 562; 45 111. 437. See 49 111. 146; 5 Brachv. 102; 76 III. 479. {a) 4 Scam. 440, 445 ; 16 Mass. 155 ; I Gilm. 365 ; 12 111. 378 ; 2 Pike 315 ; 3 Mon. 31 ; 5 Blackf. 431 ; 2 App. 34; 56 Barb. 652; I Chit. PI. (11 Am. ed.) 499; I Johns. 380; 3 Wend. 667; i Mass. 152; 21 111. App. Ct. 309. {h) 4 Scam. 440, 445 ; 4 Blackf. 304; 17 Ark. 85. 3i 530 REPLEVIN. Plea of 71071 dcimuii, etc. and a talcing is not charged in all of them, the plea is to be limited accordingl}^ in this manner : And the defendant, etc., comes, etc., and, as to ih^Jirst count of the said declaration, says that he did not take the goods and chattels in the said Jirst count mentioned, or any, etc., in manner and form as the plaintiff has above in that count complained against him : And of this, etc. JVo. 238. Plea of NON detinuit. {This -plea is the same in form as non cepit, only sub- ■ stituting the words wrongfully detain for the word take. When -pleaded to one of several counts^ and after non cepit, or other plea-, to another county this plea may be as follozvs :) And as to the second count of the said decla- ration, the defendant says that he did not wrongfulh' detain the o-oods and chattels in the said second count mentioned, or any or either of them, or any part thereof, in manner and form as the plaintiff has above in that count com- plained against him : And of this the defendant puts him- self upon the country, etc. The declaration in replevin charges that the defendant detained the goods "until, etc.," that is, until replevied. The plea should therefore be that he did not detain the goods, {non detinuit, etc.,) and not that he does not detain them {non detinet, etc.) The action of replevin in the dctinet — now obsolete — was to recover the value of the goods, and damages, where the goods were still detained by the defendant, {c) In the present action in the detimiit, the plaintiff can only recover damages for the taking of the goods, and for the detention till the time of the replevy, and not the value of the goods themselves, {d) Where the declaration is for the wrongful detention of the goods of the pja.intiff, the plea of non detinuit is said to be the general issue ; {e) and under it the plaintiff must prove, (c) I Chit. PI. 145. See 2 Bouv. Die. 417; 6 Hill, 613. ( Replevin. C. D. ^ And the plaintiff, as to the plea of the defend- ant by him secondly above pleaded, says that he, the plaintiff, by reason of anything in that plea alleged, ougiit not to be barred from having his aforesaid action, because he says, that the said goods and chattels in the said decla- ration mentioned, at the said time when, etc., (*) were the property of him, the plaintiff, 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 defend- ant, 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 omis pro- handi of this issue being on him. (/) And under such plea the defendant may show any legal title to the property, no matter how derived. (?;z) {k) Rev. Stat. (1877) 811. (/) 5 Harr. 10; i Sanf. 292; i Salk. 5; 3 Wen-!. 667; 12 Wend. 161, 30; 13 Wend. 425; 5 Binn. 399; 6 Watts, 301 ; 6 Penn. Law Jour. 82; x N. J. 620 ; 2 Greenl. Ev., Sec. 563. But see 4 Scam. 440 ; 7 Dana, 285 ; 69 111. 29. {m) 31 III. 230; 37 111. 281. See 61 111. 126. REPLEVIN. 533 Plea of property in a stranger, etc. — Replication. If the issue on such plea is found for the defendant, he will be entitled to a return of the propert}'', and to dam- ages, (n) JVo. 242. Plea offro^erty in a stranger. {As in No. 240, ante, to the asterisk, and then -proceed:) that the said goods and chattels in the said declaration mentioned, at the said time when, etc., were the property of one E. P., and not of the plaintiff, as by the said decla- ration is above supposed : And this the defendant is ready to verify ; wherefore he prays judgment, etc. JVo. 243. Replication to plea of property in a stranger. [As in No. 241, ante, to the asterisk, and then proceed:) were the property of the plaintiff, and not of the said E. F., as the defendant has above in that plea alleged : And this the plaintiff prays ma}' 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 plaintiff, (o) 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, {p) Where the defendant pleads property in himself, or a third preson, he must in the same plea traverse the plaintiff's alle- gation of right. It is held that in such case the allegation ol property in the defendant, or a third person, is only to be considered as inducement to the traverse of the plaintiff's right, and the plaintiff must take issue on the traverse, and («) 45 111. 437; 38 111. 320; I Gilm. 365. See 37 111. 281 ; 13 111. 496; 49 111.146; Rev. Stat. (1877)811; 72111.358,495; 69 III. 533. (0) I Gilm. 365 371; I Johns. 380; i Black (U.S.) 96; 69 111. 299; 71 111. 19; 5 Bradw. 396; 3 Bradw. 295; II 111. 567. (/) 56 Barb. (N. Y.) 652. See 21 111. App. Ct. (E. B. Smith), 309. 534 REPLEVIN. Plea of justification by a sheriff, etc. 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 sustain his right, 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. (^) Where a defendant pleads propert}' in a stranger, and the issue on the plea is found for him, such finding is con- clusive between the plaintiff and the defendant in another suit for the same property ; and a title acquired from the stranger, after such finding, precludes the party pleading such plea from showing a prior title in himself, (r) But such stranger is not bound by the verdict in such case, un- less he is in some way directly connected in interest with the party pleading the plea. (5) JVo. 244. I-'/ca of justijication, by a sheriff, under a fi. fa. against a third person. {First flea, non cepit, No. 2^7, or non detinuit. No. 238 — or both mav be pleaded., if necessary ; next, -property in defendant, No. 240; next, property in a stranger, No. 242.) And for a further plea in this behalf, the de- fendant says that the plaintiff ought not to have his afore- said action against him, the defendant, because he saj^s, (*) that one J. K., before the said time when, etc., to wit, on, etc., sued out of the Court of the county aforesaid a certain writ oi 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 chattels, 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 ot dollars, costs of suit, which by the consideration of {q) I Gilm. 365, 371 ; 71 III. 326; 83 111. 463; 62 111. 412; 21 Wend. 205, and the numerous cases there cited ; I N. J. 267 ; 3 Har. 339 ; 6 Blackf. 2O1. See 2 Greenl. Ev., Sec. 563. Liui see 4 Scam. 440 ; 7 Dana, 2S5. (r) I Miss. 774. (5) 13 111. 496. REPLEVIN. 535 Plea of justification by a sheriff, etc. 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 , accru- ing costs on the said judgment, and that such sheriff should have the said moneys ready to render to the said J. K. ac- cording 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 deliv- ered to the defendant, who then and from thenceforth, until and at and ^fter tlie 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 men- tioned, 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 detained the same, in execution of the said writ; which are the same taking and detention in the said declaration above supposed, etc. : And the defendant further says, that the said goods and chattels in the said declaration mentioned, at the said time when, etc., were the property of the said L. M., and not of the plaintiff, as by the said declaration is above supposed, and were subject to execution, to wit, in the county aforesaid. And this the defendant is read}'" to verify ; wherefore he prays judgment, etc. The plaintiff' may reply as in No. 243, ante^ reasserting his own right, and denying that of the defendant. See the remarks under the two forms 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 justi- fication by a constable, or other oflicer. See pleas of justi- fication, etc., in trespass, _^^5/. The plea must aver the property to be in the defendant in the execution; {f) and traverse the plaintifi''s right ; {ji (/) 6 Blackf. 261. Sod 76 m. 479 ; 83 111. 463. («) 3 Wend. 667; 13 Wend. 30; 21 Wend. 205. See 2 Greenl. Ev., sec. 563; I Gilm. 365, 371. 536 REPLEVIN. Plea of lien on property, etc. and allege that the defendant took the property by virtue of the execution, and that it was subject thereto, {v) And the general rule is, that where an officer himself attempts to justify his acts done by virtue of his office, he must al- lege and prove himself an officer de jure, {w) An officer, when sued in trespass or replevin for taking property on execution, can justif}'' 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 vir- tue 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. {x) The production of the writ under which the officer acts is for him a sufficient justification. The rule is that a mere ministerial 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 W'ithin the jurisdiction of the court issuing the same, (jy) JVo. 245. Pica of lien on -property, etc. i^As in the last -precedent^ to the asterisk^ and then -pro- ceed:^ that before the said time, when, etc., to wit, on, etc., in, etc., the plaintiff, being possessed of the said car- riage in the said declaration mentioned, as of his own prop- erty, delivered the same to the defendant, he then and still being a carriage-maker , for the purpose of having the de- fendant put the said carriage 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 or- der and repair for the plaintiff; and thereby the plaintiff then and there became and was indebted to the detendant {v) 44 J. J. Marsh. 254; 4 Bradw. 275, 575, 566; 7 Bradw. 612; 24 111. 40; 29 111. 525. (w) 21 111. 632, 635 ; 3 Scam. 483 ; 3 Wis. 404. {x) 4 Scam. 411 ; 12 Johns. 395 ; 2 Mon. 250. See 2 Pick. 413. (;') 4 Scam. 411; 16 Wend. 517; 2 Mon. 250. REPLEVIN, 537 Plea of lien, etc. in the sum of dollars, for the work by the defendant done, and materials by him furnished, in and about the putting of the said ca7'riage in good order and repair for the plaintiff' as aforesaid : And the said sum of money re- maining 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 mone}^ so due from the plaintiff' to the defendant as aforesaid ; wherefore the de- fendant did then and there detain the said carriage^ as he lawfully might for the cause aforesaid ; which is the same detention in the said declaration above supposed. And this the defendant is ready to verify ; whereupon he prays judg- ment, etc. By a little alteration, the above form may be adapted to other cases of lien, as those of warehousemen, innkeepers, attorneys, etc. By implication of law, every workman has a lien for work done in respect of chattels, for the price of such work and necessary materials, if due and unpaid ; {z) but a lien may be lost by parting with the possession of the propertv, or claiming to hold it upon another and inconsistent ground, ia) An innkeeper, {U) consignee of merchandise, banker, (c) attorneys, {d) and warehousemen, [e) etc., may retain the property in respect to which the lien attaches, until their charges are paid. But a manufacturer who makes a con- tract to deliver the things to be manufactured, without re- quiring prepayment, relinquishes his lien thereon. {J^) (z) 5 M. & S. i8o; 5 Bing. 130; 2 M. & P. 201 ; 28 Barb. 157. (a) I East, 4; I Stark. 408; 9 Moor, 41; 2 Bing. 23; i Camp. 410; 4 Blackf. 396; 3 Steph. N. P. 2694; 7 Ind. 21 ; ilnd.276; 5 Blackf. 179. See 34 111. 508; 4 Scam. 495. {b) 5 Dana, 310; 23 Penn. St. 193. (c) 3 Gilm. 233. (f/) Tidd's Pr. 337; Chit. Arch. 36; 3 Term, 275; 4 Term, 123. («?) 24 111. 99. (/) 24 111. 483. 53S REPLEVIN. Plea tliat property was held as a pledge — Avowry or cognizance for rent. JVo. 246. Pica that the -property zuas held by defendant as a pledge, {g-) {As in No. 244, ante, to the asterisk, and then proceed:^ that the plaintiff, before the said time when, etc., to wit, on, etc., in, etc., delivered to the defendant 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 de- fendant 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 aforesaid, as he lawfully might do, for the cause aforesaid ; which is the same detention in the said declara- tion above supposed. And this the defendant is ready to verify ; wherefore 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. {Ji) No. 247. Avowry or cognizance for rent. {First pica., non cepit. No. 237, ante ; seco7id plea, property in the defendant. No. 239, ante; etc.) And the defendant well avows {or, in a cognizance, " as bailiff of E. F. well acknowledges") the taking of said goods and chattels in the said declaration mentioned, in the said dwelling-house in which, etc., and justly, etc., be- cause 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 from thence until and at the said time when, etc., held and enjoyed the said dwelling-house in which, etc., with the appurtenances, as tenant thereof to the defendant, {or "the said E. F.,") by virtue of a certain demise thereof to him, the plaintiff, ((?r "the said G. H.*') therefor made, at and under a certain yearly rent of dollars, pa3^able, etc., in every year, by even and equal {ff) See 4 Scam. 440; 16 Mass. 155; Com. Dig. Replev. A. ih) 34 111. 50S. REPLEVIN. 539 Plea in bar to avowry, etc. portions ; and because the sum of dollars 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 cognizance,) he, the detendant, well avows {or, in a cognizance, "as bailiff of the said E. F. well 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. (/) No. 248. Plea in bar to an avowry or cognizance for rent — Traverse of the demise. {Similiter to non cepit, as ante. No. 69.) 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 ac- knowledge") 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 appurtenances, as tenant thereof to the defendant, {or "the said E. F.,") under the said supposed demise thereof in the said avowry {or " cognizance") mentioned, in manner and form as the defendant has above in his said avowry {or "cognizance") in that behalf alleged: And this the plaintiff prays may be inquired of by the country, etc. {j) Under the issue non demisit, or "no rent in arrear," in replevin, the plaintiff may show that at the time he exe- cuted the lease he was owner of the land himself, but was induced to sign the lease by fraud and misrepresentation of the defendant, {k) {i) Morris on Replevin, 239. See 73 111. 450; 67 111. 244. (y ) Morris on Replevin, 240. {k) S Watts, 390. S40 REPLEVIN. Plea to an avowry, no rent in arrear — Reference to forms. No. 249. Plea in bar — to an avowry or cognizance for rent — '"'■no rent in arrear" [As in the last precedent, to the asterisk, and then pro- ceed:) that no part of the said rent in the said avowry {or "cognizance") mentioned, at the said time when, etc., was in arrear from the plaintiff' to the defendant, [or "the said E. F.,") in manner and form as the defendant has in his said avowry {or "cognizance") in that behalf alleged: And this the plaintiff prays may be inquired 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 cognizance, {ni) 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 possession, where he has, since the commencement of the suit, acquired 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 assumpsit, ante. (I) Morris on Replevin, 241. {in) 4 Cranch, 299; 5 Serg. & Rawle, 255; 10 Serg, & Rawle, 255. {n) 21 111. App. Ct. (E. B. Smith), 309. See 89 111. 229; 78 111. 62; 91 111. 497; 77 111. 206. TRESPASS. 541 Nature of the action, etc. CHAPTER XI. TRESPASS. Trespass, in its most extensive sense, means any trans- gression or offense against another's person or property ; and therefore all actions for such transgressions or offenses, though variously named, are, in fact, actions of trespass ; but technically trespass signifies a wrong committed with violence. At common law, where the act is wilful, and the injury immediate, trespass is the only remedy. But where the act is not wilful, but the result of negligence, either tres- ■pass or case will lie, at the option of the plaintiff, even though the injury may be immediate, {a) A familiar example of trespass may be found in an as- sault and battery, or a carrying away of goods, or a forci- ble 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 ct ai-ims, or, in the English phrase now used in pleadings, a trespass with force and arms. Early in the history of the law, a ver}' slight degree of violence was sulKcient 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 construc- tion the force necessary to make it a trespass vi ct aj-mis, if the act was unlawful. Thus, for example, a peaceable entry into a house or land, with intent to take possession and oust the true owner, was regarded as a trespass vi ct armis. And as there grew up a large and very important (a) 4 B. & C. 223 ; 3 Stephen's N. P. 2629. 542 TRESPASS. Nature of the action, etc. class of trespasses, in which there was neither actual nor constructive force, and to which the law of trespass with force and arms could not be made applicable by any con- struction, writs were devised whereby remedies might be given for such wrongs. These writs were called, in law Latin, hrcvia dc h'ansgressione stiver 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 diflicult}', to determine whether the action, by which re- dress 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 defendant ; while trespass on the case lies when the injury was consequential upon the wrong done, and flowed from it indirectly. For example, tres- pass on the case lies for an injury sustained by the plaintiff from the defendant'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 b}^ the want of skill of any person in the exercise of his profession, as a ph3^sician or attorney. There are many very nice and subtle distinctions in the law 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 wa}^. In many of these cases, such person thus subsequently trespassing is regarded by the law as a trespasser ab initio, or as having been a tres- passer 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 TRESPASS. 543 Injuries to the person — Where the action '.ies, etc. with intent to do an illegal thing, and that all of his con- duct 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 an}" man can be made a trespasser ab initio by a subse- quent wrongful 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, by the best authorities, to the cases of an officer of the law acting under a legal warrant, and a guest of an inn. It is extended to the latter, because a licensed innkeeper, being bound b}' 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 purpose, and therefore to be a trespasser from his entrance. The Illinois practice-act, in force July i, 1872, abolishes the distinction between the actions of trespass and trespass on the case ; and provides that in all cases where trespass or trespass on the case was theretofore the appropriate Ibrm of action, either of those forms may be used, at the option of the plaintiff, {b) The subject of trespass will be further considered under the following heads : I. Injuries to the person. II. Injuries to personal property. III. Injuries to real property. I. injuries to the person. Trespass is the proper remedy for an assault .md battery, wounding, imprisonment, and the like ; and it also lies for an injury to the relative rights, when occasioned by force, as for beating, wounding or imprisoning a wife or servant, (i) ^n/^ page 415; Rev. Stat. (1877) 737. See 17 Bradw. 417; 76 111. 224; 77 111. 603; 80 111. 205. 544 TRESPASS. Injuries to the person — Where the action lies, etc. by which the plaintiff has sustained a loss, (c) though the damage, the loss of service, etc., were consequential. It is the only remedy for a menace to the plaintiff, at- tended with consequent damage, (d) and for an illegal assault, battery, wounding, or imprisonment, when not under color of process, {e) It lies for an assault with an attempt to commit a battery ; (y) and also when the bat- tery, imprisonment, etc., were in the first instance lawful, but the party, by an unnecessary degree of violence.became a trespasser ad initio, {g) In the case of an assault and batter}-, 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, 3'et if the plaintiff not only used more force than was neces- sary for self-defense, but unnecessarily abused the defend- ant, he can not recover damages, but must pay damages, {h) Trespass lies for criminal conversation ; (/) and the right to sue is not defeated by the death of the wife before the action is brought, {j) It may be maintained by a father for a forcible injury to his son ; (^) and it lies for seducing away a wife, (/) or servant, {in) or for debauching the lat- ter, (w) force being implied, and the wife and servant being considered as having no power to consent ; and a count for beating the plaintiff's servant, ^€7' quod servitium amisit, (c) 9 Co. 113; 10 Co. 130; I Chit. PI. (11 Am. ed.) 167. {d) 3 Black. Com. 120; i Chit. PI. (11 Am. ed.) 167. («) n Mod. 180, 181 ; 36 Barb. (N. Y.) 495; i Chit. PI. (11 Am. ed.) 167. I/) 3 Penn. 176. {ff) I Chit. PI. (II Am. ed.) 167; 3 Day, 485; 2 Wend. 497; i Day, 351; 15 Mass. 347, 465 ; 25 Wend. 371 ; 7 Dana, 453 ; 62 111. 354. {h) 2 Wend. 497. But see 35 N. H. 503. (i) 7 Mod. 81 ; 2 Salk, 552; 6 East, 387; 41 111. 9; 62 111. 47. (/) 41 111. 9. {k) 5 Harring. (Del.) 171. (/) 6 East, 387; 41 111. 9. See 62 111. 47. {vi) 5 Term, 361 ; 7 Mod. 81 ; 2 Salk, 552. \n) Bac. Abr. Trespass, C. l; 3 Wils. 562; 71 111. 400. TRESPASS. 545 Injuries to the person — Where the action lies, etc. may be joined with other counts in trespass ; [o) and though it has been usual to declare in case for debauching a daugh- ter, it is now considered to be preferable to declare in trespass. (^) Trespass will lie against a plaintiff suing out, or a magis- trate issuing, void process, although not maliciously, [q) If a justice of the peace officiously, and without any com- plaint on oath, or personal knowledge, issues his warrant to apprehend a person, (r) or issues process in a cause where he has not jurisdiction, his proceedings are void, and he becomes a trespasser, (s) Where a cap/as has been issued by a justice of the peace, without a sufficient oatii, the person who has sued out the writ is not answerable in trespass vi et arniis, the magis- trate being the proper person to pass upon the sufficiency of the oath ; nor would the magistrate be liable in trespass, if he had jurisdiction to issue the process. {£) Direct and immediate force, employed by one person against another without permission, with malice, constitutes a trespass, however slight the injury produced ; but it is otherwise if force is used with permission. [tC) A person who directs or invites the commission of a trespass is guilty as a principal, and, when sued for the act, can not be permitted to show that the trespass would have been committed without his interference, {v) Where the defendant drove his carriage against the car- riage of the plaintiff, on the public highway, by means whereof the plaintiff was thrown out and injured, it was () 23 Wend. 354; 6 Barr, 318; 66 111. 309. (c) 7 Porter, 106. {d) 2 Hill. Torts, 74; i Chit. PI. (11 Am. ed.) 130, 166; 3 Sneed, 20; 6 Blackf. 258. (.') 2 Hill. Torts, 74; 44 N. H. 211 ; 6 Wis. 319. See 67 III. 132. (/) I Chit. PI. (11 Am. ed.) 130, 77; 6 Taunt. 29; 2 Bing. 156; 4 M. & Sel. 27; 2 B. & C. 703, 707, 710; 4 D. & R. 195, S. C. {g) I Chit. PI. (11 Am. ed.) 130; i Term, 4S0; i Lev. 1S3. See \ Burr. 20. (A) 24 111. 580. (/)39lll. 117. ty) 16 111. 277. TRESPASS. 551 Injuries to personal property — Who may maintain the action, etc. If a trespasser cuts wheat, he can not deduct from its value his labor while trespassing, but the plaintiff may re- cover the same as if he himself had performed the whole labor of harvesting. (^) Who may maintain the action. — Possession, actual or constructive, with property in the chattel, general or qual- ified, is necessary to sustain trespass. (/) But a .person who has the absolute 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 propert}^. {in) And executors and administrators may support trespass for an injury to personal property, committed after the death of the testator or intestate, and before the probate or ad- ministration was granted ; and so may a legatee, after the executor has assented to the legacy, for an injury done be- fore such assent. («) The general property in goods and chattels, priiiiajacie, for all civil purposes, draws to it the possession ; [o) but if the general owner parts with his possession, and the bailee, at the time when the injury is committed, has the exclusive right to use the property, the inference of possession is re- butted, and the right of possession being in reversion, the {k) 19 111. 631. (/) 5 Vt. 97; II Pick. 382; 21 Pick. 367; 13 Johns. 141, 561 ; i N. H. no; 10 Wend, no; 6 Blackf. 136; 4 J- J. Marsh. iS; 3 Scam. 10. See 47 Maine, 416. (7«) I Chit. PI. (11 Am. ed.) 169; 7 Term, 12; 16 East, 33 ; 9 Johns. 43:5; 30 Vt. 221; 15 Ark. 459; 3 Day, 49S; 11 Johns. 2S5 ; 34 Ala. 159; 2 Head, 39S; 14 La. An. 732. («) Bac. Abr. E.x'r, h, 1 ; 2 Saund. 47, a; i Chit. PI. (11 Am. ed.) 169. (0) 3 Day, 272; 7 Conn. 235; 2 Saund. 47, a, b, d; 27 111. 134; 2 Pick. 121 ; 9 Pick. 156; 27 Conn. 538. 552 TRESPASS. ' Injuries to personal property — Against w horn it will lie, etc. general owner can not support trespass. (^) If however property is loaned for an indefinite time, the owner may maintain the action against a person w^ho takes it torti- ously. {q) Possession of personal propert}^ is evidence of ownership, and the possessor may recover in trespass against any per- son who may take it from him, unless such person has a paramount right to the possession of such property, (r) Where standing crops are sold, th\e possession is con- structively 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. (5) And in such case the pur- chaser is not only entitled to a reasonable time after ihe crop matures, to gather it, but before the vendor can right- fully 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 at- tachment, sufficient property in the goods seized to main- tain trespass; {tc) but the plaintiff' in execution or attach- ment, or the officer's custodian or receiptor, has not. [v) Against whom it -will lie, etc. — This action will lie not only against individuals, but municipal corporations, (w) So a railroad company is liable if its servants, or lessees, (/) 8 Johns. 4S2; II Id. 385; 7 Conn. 235; 5 Vt. 274, 328; 30 Vt. 221: 3 Scam. 10; 9 Cow. 6S7 ; i Shepley, 236; 9 Met. 233; 38 N. H. 171; 35 Ala. 725; I Chit. PI. (11 Am. ed.) 169. {q) 3 Scam. 10; 2 Pick. 121. (r) 20 111. 37 ; 34 111. 173 ; 14 La. An. 732 ; 47 Maine, 416 ; 1 1 Johns. 132 ; 13 Johns. 275; 2 Wend. 466; 13 Wend. 143; 13 Vt. 558; 2 Head, 398; 5 Flor. 472 ; I Dutch. (N. J.) 443; 24 Maine, 230; 34 Ala. 156; 35 Barb. 298. (5)19111.631. (^) 48 111. 493. (?«) I Pick. 232; 13 Mass. 394; 4 Zabr. (N. J.) 351 ; 14 Bradvv, 324. (t>) 2 Mass. 514; 13 Mass. 394. (zc^) 23 III. 332; 5 Ind. 252; 12 Rich. (S. C.) L. 82. TRESPASS. 553 Injuries to real property — Where the action lies, etc. or the contractors for the construction of the road, in using or building such road commit a trespass, (x) Where several persons commit a trespass, they are jointly and severally liable ; and the acts, declarations and knowl- edge of any one of them may be chargeable upon all, if they are shown to have acted in concert, (y) In this action there are no accessories. The person who commands or approves, is equally guilty with the one who performs the act; (z) and if the evidence authorizes exemplary damages against one, the other, if he is shown to have acted in con- cert with him, is liable to the same extent, (a) The jury can not discriminate between joint trespassers, and assess damages against them severally, according to the relative enormity of their offenses; (d) but the jury ma}^ find one defendant guilty, and acquit the other, (c) III. INJURIES TO REAL PROPERTY. Trespass is the proper remedy for a wrong done by break- ing through an inclosure, and coming into contact with any corporeal hereditament of which another is the owner and in possession, 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 consti- tutes by itself a right of action. There must have been some injury, however, to entitle the plaintitfto 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 C??) 22 111. 105. See 23 III. 332 ; 20 111. 335, 623 ; 15 111. 72 ; 5 Ind. 252. (jk) 23 111. 403; 28 Ala. 236; 21 Mo. 3S7; 7 Jones (N. C.) L.64. (2) I Scam. 253; 20 III. 37; i Chit. I'l. 67; 69 HI. 273; S3 111. 390. (a) 28 Ala. 236; 15 Ark. 452. See I Scam. 253; 69 111. 478. (d) I Com. B. iS; 3 Hill. Torts, 315; 11 Ind. 417; 15 Ark. 552; i Ala. 212. But see cases cited cotitra, 2 Hill. Torts, 316. (c) 2 Hill. Torts, 312; 7 Cal. 152; 14 Ind. 317; 15 Ind. 74; S Clarke, (Iowa,) 74; 45 Maine, 17. 554 TRES'PASS. Injuries to real property — Where the action lies, etc. the wind, but as the owner's possession is not by that act incommoded, trespass could not probabl}' 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, {d) But the slightest inj\ny, as treading down the grass, is sufficient, (e) It is not requisite, to maintain the action, that there should have been a wrongful intent in committing the injurious act. (/)_;. 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, (g-) An action for entering upon the close of the plaintiff is sustained by proof of a trespass upon any part of the close described, {/i) A person who enters upon land without any claim or color of right or title, and keeps possession, is a trespasser, (i) Any person may remove a fence erected across a high- way, without being guilty of a trespass, (j) "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 remove his fence, neither the commissioners nor any other person can remove the fence without becoming trespassers, (k) {d) 2 Bouv. Law Die. 6oi ; 19 Johns. 3S1. {e) 2 Johns. 357 ; 9 Johns. 1 13 ; 2 Mass. 127 ; 4 Mass. 266. See i Chit. PI. 159; 15 III. 53. {/) 3 Lev. 37; I Cainpb. 497; 2 Campb. 465; i Chit. PI. 150; 29 111. 135; 5 Wis. 55; 2 Sneed, 20; 2 Greenl. Ev., sec. 623; 5 Mass. 341 ; ii Mass. 500, 507. See 15 111. 53 ; 20 Miss. 322. iff) 40 111. 349. {k) 7 Gray, 441 ; 20 N. H. 35. See 2 Greenl. Ev., sec. 618, a. (/) 2 Johns. 22. (y) 19 111. 634; Bac. Abr. Highways, E. ik) 25 111. 51S; 9 Ind. 103. See 25 111. 153. TRESPASS. 555 Injuries to real property — Where the action lies, etc. The nature of the real property affected must in general be something tangible and fixed, such as a house, a room, an outhouse 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, (w/) 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. (c») Any person in the actual possession of land, though with- out any other title, may maintain the action against a stran- ger, (^) but not against a person having concurrent posses- sion, {q) In Illinois, it is held that he ma}^ 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 torcible entry and detainer) has given him a remedy, and he must resort to it. (5) The possession, where that is alone relied on, must be an actual and not a constructive possession. (/) Yet while it is true that the action can only be maintained for any injury to the possession, it is not necessary that such possession should be visible and actual, for unless (»0 7 East, 207; 6 East, ii;4; Str. 1004; 1 Burr. 133. («) 8 Blackf. 575 ; 38 N. H. 212 ; 32 111. 173 ; 2 Gieenl. Ev., Sec. 614. See 38 Maine, 80; 17 Bradvv. 409; II5 111. 177; II8 111. 306; I Scam. iSl; 85 III. 370; 74 111. 242. ^ {o) 4 Blackf. 455; 39 N. H. 196; 32 111. 173 ; 91 111. 179; 1 16 111. 488. (/) 3 Met. 239; 14 Pick. 297; 4 id. 305;^ 11 Cal. 104; 39 N. H. 196; 23 Geo. 590; 32 111. 173; 6 Gray, 552; 11 Lid. 417; 54 111. 175. {q) 3 Met. 239. (r) 42 111. 399 ; 68 111. 53. (i) 51 111. 467; 41 111. 279; 40 111. 506 ; 48 111. 261. But see 23 111. 81 j 29 Penn. St. -26; 67 111. 446; 90 111. 208. (/) I Scam. 181 ; 31 Penn. St. 304; 5 Cal. 164. See 40 111. 349. 556 TRESPASS. Injuries to real property — Where the action lies. there is an adverse occupancy, the ownership in fee draws to it the legal possession, {it) , If the premises are actually occupied, the action must he brought by the person in possession ; if they are vacant and unoccupied, the person having the legal title has the right of possession, and must bring the action, [v) In the latter case, the real owner has the constructive posses- sion, (w) But if the plaintiff fails to show paramount title, or possession, at the time the injuries were committed, he can not recover, {x) A tenant at sufferance can not, by the common law, have trespass qtiare clausiim f regit against his landlord, (y) And a lessor can not maintain trespass against a stranger, while there is a tenant in possession, {z) Trespass being a possessory action, it is not necessary that the right should come in question. But if it does come in question, as under a plea of libcrum tcnancntiun, and the plaintiff' has neither a right to the property nor to the possession, but has a naked 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, {a) Where a person who has entered upon land, under a parol agreement for the purchase of the same, cuts trees, and afterwards rescinds the agreement, he is a trespasser, {b) Where the owner of land agrees with another that he may sow the land on shares, they may maintain a joint («) 51 111. 396. See 19 Johns. 3S5; 12 id. 408; 42 Maine, 565. (v) 32 111. 173; 15 111. 560; I Johns. 511 ; 12 id. 1S3 ; 9 Cow. 39; 11 Conn. 60; 4 Pick. 305; 15 id. 32^ 5 Harr. 320; 21 Ala. 556. (w) 2 Gilm. 652; S Clarke, 74: 4 Mich. 406; 27 111. 134; 2 Scam. 224; 8 Cow. 115; 10 Wend. 630; 29 Barb. 9; 10 Foster, 379. {x) 21 111. 279; 2 Dutch. (N. J.) 525, (j) 13 Pick. 36; 4 Johns. 150. See 51 111. 467. {z) I Johns. 511 ; 8 Pick. 235; 3 Jones' Law (N. C.) 283 ; 39 Maine, 28. ((?) 32 111. 173; 3 Scam. 218; 2 Gilm. 652. {b) 9jo]ms. 23; 35 N. H. 563. TRESPASS. 557 Injuries to real property — Where the action lies, etc. action of trespass against a third person, who cuts and car- ries away the crop, (c) The owner of real estate in the possession of a lessee, other than at will, can not maintain trespass for an injur}- to his reversionary interest ; {d) but he can where the lease is at will only, (e) Trespass wdll lie, by the owner of real estate, against a person committing waste by permission of the tenant at will. {J~) But it will not lie for the reversioner, against a person committing waste under the authority of a tenant in dower, {g) After an entry on a tenant at sufferance, the owner may have trespass quare clausum /regit against him, iji) bul not before. (^) A person disseized can not, until entry, maintain tres- pass, (y ) 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. {k) The rule of the common law, which requires the owner of cattle to keep them on his own land, is not in force in Illinois, Indiana, Missouri, Iowa and Ohio; and in order to maintain an action for a trespass by cattle, the owner of the close must show that it was protected by a good and sufficient fence. (/) But where a township, under the township organization (c) 3 Johns. 216. ( Trespass. Damages $ . CD.) m m The clerk of the said court will issue a summons {or '■'■capias ad respondendum'''), as above, directed to the sheriff of the county of , and returnable to the term, i8 . {Date.) E. F., Attorney for Plaintiff. To J. K.,Cleik, etc. For a form of affidavit for a capias ad respondendum^ see No. 3, ante, page 52. {m) 43111-450; 76 111. 338. i^n) 41 111. 261. (o) Ante, 43-45. (/) A,Ue, 39. I TRESPASS. 559 The declaration, etc. The declaration. — The declaration should state, ist. The matter or thing affected ; 2dly. The plaintiff's right thereto; 3dly. The injury; and 4thly, the damage sus- tained by the plaintiff. (^) 15^. The matter or thing affected. — In actions brought for injuries to real property, the qualit}'^ of the realty, as whether it consists of houses, lands, or other corporeal hereditaments, should be shown, {r) In trespass to lands, the term close is proper, although the ground is not in- closed, as it imports the exclusive right of possession and interest in the soil. (5) In actions for injuring or taking away goods and chat- tels, it is generally necessary to state their qualit}^ quan- tity or number, and value ; {t) 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 properly defend himself, {li) Therefore it is in general insufficient, even after judgment by default or verdict, to allege tha-t the defendant injured or took, etc., " divers goods and chattels" of the plaintiff,, without giv- ing any description of them, iv) 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 tlie plaintiff can claim or recover the goods themselves, {w) In the three former actions, damages only are recovera- ble, and the specification of quality and quantity in a gen- {q) I Chit. PI. (11 Am. ed.) 376. (r)Id.;3C. &P. 331- (5) I Chit. Pi. (11 Am. ed.) 376; 7 East, 204; Vin. Abr. Fences. (/) I Chit. PI. (11 Am. ed.) 377; 2 Saund. 74, n. i ; 8 Moore, 379 See 13 Johns. 446. («) M'Cl. 27S; II East, 576. (f) 7 Taunt. 642 ; i Moore, 3S6, S. C. ; S Id. 379. (w) 2 Saund. 74, n. i ; i Chit. PI. (11 Am. ed.) 377. 56o TRESPASS. The declaration — Plaintiff's right or interest. eral way is allowed; as "four horses," "two packs of flax," "two ricks of hay," a "library of books," etc. (x) Perhaps less particularity may be required where the gravamen or gist of the action is the breaking and injuring of a house, etc., and the injury to goods is laid chiefly as aggravation; as trespass for breaking, etc., a house, and taking " several keys" belonging to the doors thereof, {y) or damaging "the goods and chattels therein," and wrench- ing open and injuring "the doors thereof." {z) With respect to the quality or species of the goods, the plaintiff is perhaps bound to prove the fact as laid ; {a) but with regard to the quantity or number, and value, of the goods, he may prove less than he charges in his declara- tion, 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 adequate to cover the largest possible amount, but at the same time according to the facts, {c) 2dly. The ■plaintiff^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 hav- ing no color or right, mere possession suffices, and a special statement of title is unnecessary, {d) In trespass, trover, detinue, case or replevin, for injuring or taking away goods, etc., the plaintiff'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 (») Breese, 26; 4 Munf. 251 ; 2 Saund. 74, n. i ; Steph. 349, 350. (j*) Salk. 643; 2 Saund. 74 b, n. i ; Stephen, (2 ed.) 350. iz) I Chit. PI. (11 Am. ed.) 378; 3 Wils. 292. (a) See Stephen, (2 ed.) 352; i Chit. PI. (11 Am. ed.) 378. ((5) See 8 'i'aunt. 107; M'Clel. 270; Breese, 26; 4 Munf. 251. (c) I Chit. PI. (II Am. ed.) 378. id) I Chit. PI. (ii Am. ed.) 379; Com. Dig. Plead. C. 39, 41; Tidd, (9 ed.)'443: Steph. (2 ed.) 356; i East, 212. TRESPASS. S6i The declaration — Statement of injury, etc. by the averment that they were the goods "of the plaintiff," 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, {e) Upon the same principle, in trespass for a M^rong 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 reference 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, (y) If no property or interest in the subject-matter of the suit is alleged to have existed or been vested in the plaint- iff at the time the injury was committed, the declaration is substantially defective ; the objection being the total omis- sion, not the defective statement, of a title, (g) But the error in the declaration may be cured, if the plea adinits the plaintiff's property, (/i) Sdly. Statement of the injury. — In declarations 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 therefore a declaration charging " for that whereas," (<) I Chit. PI. (II Am.ed.) 380; 2 Saund. 279, n. 13; Steph. (2 ed.) 355. •e 14 Serg. & Ravvle, 99; i Met. 26. (/) I Chit. PI. I II Am. ed.) 3S0; 2 Saund. 113 a, n. i ; Com. Dig. Plead. See 14 Serg. & Ravvle, 99; i Met. 26. (/) I Chit. PI. Ill 3. M. 9; 6 Rand. 457 C jT) - Saund. 379, n. 13 ; Com. Dig Plead. 3, M. 9. {h) I Chit. PI.- ([I Am. ed.) 379; i Sid. 1S4. 36 S62 TRESPASS. The declaration — Statement of injury, etc. or "wherefore," the defendant committed the trespass, is bad on special demurrer. (/) In the statement of the trespasses, tlire words "with force and arms" {vi ct armis) should be adopted; and the con- clusion of the declaration should be "against the peace," etc., [contra -paccm, etc.); {J) but an omission in either respect is onl}'- cause of special demurrer, and is aided by verdict, {k) It is usually sufficient to describe the tortious act or injury generally, (/) without setting out the particulars of the de- fendant's misconduct. And it will in general sliffice that the tort is correctly laid in substance, though the statement is not literally true, provided there is no material misstate- ment. Thus, when the declaration charged that the de- fendant struck the plaintiff's cow, etc., whereof she died, ' it was held, after verdict, 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 de- fendant's violence, (w) In an action ex delicto, upon proof of part only of the inj\ny charged, or of one of several injuries laid in the same count, the plaintiff will be entitled to recover ;pro tan to, provided the part which is proved affords pe?' se a sufficient cause of action ; for torts are, generally speak- ing, divisible, {n) The statement of the time of committing the injury is seldom material ; [o) and though a time ought to be al- (/) 2 Salk. 637; I Stra. 621; Andr. 2S2 ; 7 Johns, in; 2 Mass. 364; 4 Hen. & Munf. 277. See 7 Cranch, 158. (/) 2 Chit. PI. (11 Am. ed.) 387, 38S. (/•) Id. Stat. 4 & 5 Anne, c. 16, s. i ; Gross' Stat. 12, 13. See 14 Serg. & Rawle, 403; 5 Vt. 73; 14 Johns. 134; 2 McC. 386; i Blackf. 56. (/) I Chit. PI. (11 Am. ed.) 391. See Id. 232; 11 Price, 235. (m) 1 Chit. PI. (11 Am. ed.) 391 ; 4 D. & R. 202 ; 4 Barn. & Cres. 255. («) 1 Chit. PI (II Am. ed. ) 293; 2 East, 438; 2 Bla. 790; 3 Term, 645; 5 Taunt. 27; 4 M. & Sel. 349; 45 111. 6. ((?) I Chit. PI. fii Am. ed.) 393. TRESPASS. 563 The declaration — Statement of injury, etc. IcCTed, {f) the injury maybe proved to have been committed either on a day anterior or subsequent to that laid in the declaration, iq) And it seems an omission to allege a time would be aided even after a judgment by default, [r) Where the injury was capable of being committed on several days, as in trespass to land, etc., it maybe described as having been committed on such a day, "and on divers other days and times between that da}" ^nd the commence- ment of this suit ; " and in such case the first day should be laid anterior to the first injurious act, because the plaint iff" would not be permitted to give in evidence repeated acts of trespass, unless committed during the space of time laid in his declaration ; though he might recover as to a single trespass committed before the first day. (5) Where a particular space of time is assigned by a con- tinuando for the torts, it seems to become matter of descrip- tion, and not a mere formal allegation of time; but the continuando may be waived, and one trespass even before the first day laid may be proved, for a continuando ought not to place the plaintiff" in a worse situation than if one trespass only was laid, {f) But where the act complained of was single in its nature, as an assault, it would be de- murrable to state that it was committed ' ' on divers days and times." {ii) The -place is only material in local actions, as for inju- ries to real property, etc. ; {v) and as a general rule, it is injudicious to give, when not necessary to do so, a partic- (^) 2 Harr. i. See 5 Taunt. 2, 15. (7) Co. Lit. 2S3, a ; i Saund. 24, n. i ; 2 Id. 295, n. 2. (r) 13 East, 407. {s) I Chit. PI. (II Am. ed.) 393; 1 McC. 165; Stra. 1095; Salk. 639; i Stark. 351 ; Co. Lit. 283. See 33 111. 176; 5 Mass. 266. (0 I Chit. PI. (11 Am. ed.) 394. See 2 Id. 847, n. ; Gould's PI., cap. 3, sec. 83, et seq. (m) Id. ; 6 East, 395, 391. But see 2 Bos. & Pul. 425 ; Phillips' Ev. 134; also 2 Mass. 50. (f) I Chit. PI. (11 Am. ed.) 394, 26S. See iS 111. 403; i Caine, 167; 15 Mass. 2S4; 2 Humph. 425; 2 Denio, 639; 10 Serg. & Rawle, 114. 564 TRESPASS. The declaration — Damages, etc. ular local description, lest there should be a variance be- tween the declaration and the proof, (w) dfthly. The damages. — The general rule is well settled, that the plaintiff can recover no greater damages than are laid in his declaration ; {x) they 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 necessarily result from the injury are termed general dam- ages, being shown under the ad dajnmini, or general alle- gation 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 alwavs presumed to follow from the violation of an}/- right or duty implied by law; and therefore the law will in such cases award nominal damages, if none greater are proved. But where the damages, though the natural con- sequences of the act complained of, are not the necessary result of it, they are termed special damages^ which the law does not impl}^; and therefore, in order to prevent 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, {y) Measure of damages. — Damages are given as a com- pensation, recompense, or satisfaction to the plaintiff, for an injury actually received by him from the defendant. They should be precisely commensurate with the injury ; (w) I Chit. PI. (II Am. ed.) 395. (*) 2 Gilm. 375 ; 3 Scam. 347 ; Tidd, (9 ed. ) 896. iy) 2 Greenl. Ev., sec 254; i Chit. PI. (11 Am. ed.) 395, 396; 4 Bing. 317; 2 East, 154; 5 Wend. 538, 539; 17 Pick. 78; 4 Gray, 333; 25 111. 86; 16 111. 283. TRESPASS, 56: Damages — Joinder of counts for various trespasses, etc. neither more nor less ; (^) and this whether for an injury to his person or estate, {a) In actions of trespass for taking personal propert3S the measure of damages is in general the value of the property when taken ; {b) and interest may be allowed from the time of the taking until the trial, [c) Vindictive damages. — But wherever the elements of fraud, malice, gross negligence, or oppression mingle in the controversy, the law, instead of adhering to the rule of exact compensation, adopts a wholly different rule. It permits the jury to give what it terms punitory, vindictive or exemplary damages ; 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, {d) In actions for assaults, etc., evidence may be given of the pecuniary condition of the plaintiff and the defend- ant, {e) yoiiidet- of counts. — In an action of trespass, the plaint- iff may join counts for trespass to land, to the person, and to personal property ; and each cause showing an inde- pendent cause of action, he may recover upon such counts as are sustained by proof, although he tails as to the others. {/) {z) Greenl. Ev., sec. 253; Co. Lit. 257, a; 2 Bla. Com. 43S; 7 Mass. 256; 4 Dall. 207 ; 3 Am. Jur. 257. See. 37 III. 341 ; 20 111. 237. {a) Id. See Sedw. on Dam. 39; 87 111. 125; 70 III. 251. (/') 20 111. 37 J 21 Mo. 289; 74 111. 242. (c) 22 111. 494; 37 III. 341. ((/) Sedgw. Dam. 39; 3 Scam. 373; 2 Gilm. 432; 16 111. 2S3 ; 19 111. 631 ; 20 111. 237; 28 111. 4S6; 30 111. 30; S N. Y. 460; 19 N. Y. 174; 36 N. H. 9. See 6 Hill, 466; iS Miss. 71; 6 Tex. 266 S Rich. (S. C.) 144; 4 Harr. 321; 2 Cal. 54; 51 111.92. But see 2 Greenl. Ev., sec. 253, n. 2, and cases there cited; 77 111. 280. (e) 16 111. 316; ; 2 Gilm. 432 ; 3 Scam. 372 ; i Jones' Law Cas. 9S. (/) I Chit. PI. (11 Am. ed.) 201 ; iS 111. 403; 19 Pick. 517; 6 Blackf. 187. 566 TRESPASS. Declaration for an assault, etc. Ko. 250. For an assaicli, 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 tres- pass : 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 violently 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 became and was sick, sore, lame and dis- ordered, and so remained for a long space of time, to wit, hitherto; during all which time the plaintiff thereby suf- fered great pain, and was hindered and prevented from performing and transacting iiis affairs and business by him during that time to be performed and transacted ; and also thereby the plaintiff was obliged to and did necessarily lay out divers sums of money, amounting to dollars, in and aboul endeavoring to be healed of the said bruises, wounds, sickness, soreness, lameness and disorder so by the defendant occasioned as aforesaid. {Second count, for another assault, etc.) And also for that tiie defendant, on, etc., with force and arms, etc., in the county aforesaid, again assaulted the plaintiff, and then and there again (liere set forth the injuries, and the conse- quent 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 TRESPASS. 567 Declaration for an assault, etc. plaintiff, and against the peace of the People of this state. Wherefore the plaintitT says that he is injured, and has sus- tained damage to the amount of dollars, and therefore he brings his suit, etc. 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 con- form, as nearly as ma}^ 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 distinct count for each assault ; but otherwise it is not nec- essary, though usual, to insert a count (like the next form) for a common assault, for if the plaintiff proves any part of a special count he will be entitled to a verdict -pro tanto^ though he fails to prove the residue. { g^ Under the allegation of "other wrongs" {alia cnortnia)^ damages and matters which naturally arise from the act complained 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 aggravation of damages, give in evidence the de- bauching of his daughter, or the battery of his servants, under the general allegation of alia enormia, (Ji) and yet this matter ma}^ 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 /regit, the plaintiff would not, under the allegation of alia enormia, be per- mitted to give evidence of the defendant's taking away a horse, etc. ; and in the other cases, the evidence is allowed ig) 2 Chit. PI. 85 1, n. ih) I Chit. PI. (11 Am. ed ) 397. But see Peake Ev. S7 (3 ed.) ; 2 Phil. Ev. 134. 568 TRESPASS. Declaration for a common assault — An assault, etc., with pistol. to be giv^en, 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. 251. For a coninion assault. {Commence as in last precedent.) For that the defend- ant, on, etc., \v\Xh. force and arms, etc., in the county afore- said, made an assault on the plaintiff, and then and there beat, bruised, wounded and ill-treited him ; 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. ]Vo. 252. For an assault xuith a -pistol, and zvounding, etc. {Comiuence as in ]Vo. 250, ante.) For that the defend- ant, on, etc., with force and arms, etc., in the county afore- said, made an assault upon the plaintiff, and shot off a cer- tain pistol, then and there loaded with gunpowder 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 b}^ 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 b}' 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 plaintilT ot 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. 250, ante. (zj I Cba. ri. (II Am. ed.) 398; 17 Bradw. 326. TRESPASS. 569 Riding, etc., against plaintiff — Husband and wife v. hu.band and wife. No. 253. For riding or driving against the plaintiff. ( Commence as in No. 250, ante.) P'or that the defend- ant, on, etc., with force and arms, etc., in the county aforesaid, assauhed the plaintiff, and with great force and violence rode {drove) a certain horse {drazving a certain carriage) against, upon and over the plaintiff, and then and there, with the said horse {and carriage) ., violently knocked and threw the plaintiff down to and upon the ground there, and grievously hurt, bruised and wounded him, {any par- ticular serious injury may be here alleged^) and 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 ; and by reason of such hurling, wounding and bruising, the plaintiff then and there became [proceed in like manner as in the last precedent, to the end. — See No. 250, ante.) No. 254. JBy husband ana xuife against husband and ivife., for a battery of one wife by the other. [2 Chit. PI. 854.] {Title of court., etc.) A. B. and C. D., his wife, com- plain of E. F. and G. H., his wile, 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., zvounded and ill-treated her, so that her life was 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 dollars, and therefore they bring their suit, etc. 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 al- legation of an injury which, in point of law, onl}^ 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, {j) {J) 52 111. 260; Rev. S'-at. (1877) 552; 77 ill. 346; 75 111. 566. 570 TRESPASS. False imprisonment — Assault and false imprisonment. ISfo. 255. Common co2int for a fahc hnpn'sonmcni. {Commence as in No. 250, ante.) For that the defend- ant, on, etc., 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 imprisoned him, and detained him in prison there, without any reason- able or probable cause whatsoever, for the space of hours tlien 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 tlie peace of the People of this state, and to the damage of the plaintiff of dollars, and therefore he brings his suit, etc. JVo. 256. For an assault, etc., and false Imprisonment. {Commence as in JSfo. 250, ante.) For that the defend- ant, 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 and out of a certain dwell in gr-hoiise, in the cit}" of , in the county aforesaid, into the public street there, and compelled him to go in and along divers 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 reasonable 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 wrongs 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, etc. {k) If deemed expedient, the common count for a false im- prisonment, and a count for a common assault, may be inserted, concluding the declaration as in No. 250, ante. (Ji) See 25 111. 70 ; 27 111. 467 ; 41 111. 126 ; 54 111. 431. TRESPASS. 571 Debauching plaintiff's daughter, etc — Criminal conversation. 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 counselled, advised or procured the false imprisonment of another, is liable as a principal, although he did not participate actively in the commission of the act. (vi) No. 257. For debauching the flai7itiff''s daughter and servant, [Cofnmence as in No. 250, ante.) For that the defend- ant, 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. 209, ante, 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 plaintiff of dollars, and tlierefore he brings his suit, etc. See the form No. 209, ante^ and the observations there- under. The first count maybe for trespass in entering the plaint- tiff's dwelling-house, and there debauching his daughter, with a second count as above. (;/) No. 258. For criminal conversation. {Commence as in No. 250, ante.) For that the defend- ant, 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., (»■ ) 33 111. 473. See Bac. Abr. Tres. D. 3 ; 2 Bouv. Inst. 5S9 ; i Chit. Prac. 47, 4S; 77 il^- 103- \m) 41 111. 314. («) 2 Chit. PI. 856, n. . 572 TRESPASS. Declaration for taking goods, etc. — Chasing cattle, etc. 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 his suit, etc. See the form No. 208, ante, and the observations there- under. JSfo. 259. For taking goods — Common count de bonis ASPORTATIS. ( Commence as in No. 250, ante.) For that the defend- ant, on, etc., with force and arms, etc., in the county afore- said, seized, took and carried {or " drove," or "led ") away the goods and chattels, to wit, {Jiere 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 propert}^ and the allegation of the value, and of the plaintiff's right or interest, see the observations under the head of "The Declaration," ante. No. 260. For chasing cattle — alleging special damage. {Commence as in No. 250, ante.) For that the defend- ant, 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 plaint- iff, of' the value of dollars, then depasturing and be- ing 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 plaint- TRESPASS. 573 Declaration for chasing mare — For injuries to carriage, etc. iff was not onl}'- 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 wholl}' lost to the plaintiff; and the resi- due 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. (o) A'^o. 261. J^or chasing a mare., whereby she dropped a dead foal. {Commence as in JVo. 250, ante.) For that the defend- ant, on, etc., with force and arms, etc., in the county afore- said, drove and chased a certain mare of the plaintiff, of the value of dollars, whereby the said mare then and there slipped and dropped a dead foal ; by means whereof the said mare was then and there greatly hurt and dam- aged, and the plaintiff 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 the plaintiff of dollars, and therefore he brings his suit, etc. -A'V?. 262. J^or driving a carriage against the plaint- iff's, whereby he -was throivn oid^and his carriage dajii- aged, etc. {Commence as in No. 250, ante.) For that the defend- ant, on, etc., with force and arms, etc., in the count}- afore- said, drove a certain carriage with great force and violence against a certain carriage of the plaindff, 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 and (£>) 2 Chit. PI. 858. 574 TRESPASS. Declaration for killins: horse. 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 obliged 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 con- tinued 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 the cure of his said bruises, hurts, wounds and disorder, occasioned as aforesaid ; 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 the plaintiff of dollars, and therefore he brings his suit, etc. By statute in Illinois, the owner "of any carriage inin- ning upon any turnpike-road or public highway, for the conveyance of passengers," is liable, in an action of tres- pass, for any injury or damage occasioned by the wilful act of the driver. (_^) No. 263. Fo7' killing plaintiff's horse. {Commence as in No. 250, ante.) For that the defend- ant, on, etc., with force and arms, etc., in the county afore- said, beat, bruised, wounded and ill-treated a certain geld- ing 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 lollowing, during which time the plaintiff was thereby obliged to and did lay out divers sums of money, amount- ing to dollars, in endeavoring to cure the said gelding ; and afterwards, to wit, on, etc., by reason of the said bruises and wounds, the said gelding there died ; 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. {f) Gross' Stat. 2S6; 13 111. 277. See 5 Gilm. 425. TRESPASS. 575 Declaration against constable, on the statute, etc. No. 264. Against a constable, on the statute, {-f) for treble valtic^ for taking exempted property in execution. {Commence as in No. 250, ante.) For that before and at the time of the issuing of the writ hereinafter mentioned, and from thence until 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 sajs 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 consta- bles in and for the county aforesaid, not regarding the said statute, with force and arms, etc., there took and seized the 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 recover 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, {q) {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. {Conclusion.) Wherefore the plaintiff says that he is injured, and has sustained damage to the amount of dollars, and therefore he brings his suit, etc. (/) Rev. Stat. (1877) 485. See 88 111 402. {q) See I Gilm, 333 ; Id. 30. 576 TRESPASS. Declaration for breaking and entering house, etc. If the plaintiff declares in the common form of a decla- ration in trespass, without any reference to the statute, he can only recover simple damages for t he trespass. If he desires to claim the penalt}', he should declare specially on the statute, (r) No. 265. For trespass in dwelling-house., hj'cahing open doors, and seizing goods therein. [Commence as in A''o. 250, ante.) For that the defend- ant, 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 disturbance 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, {describe the goods,) of the plaintiff, then found and being in the said dwelling-house, and being of the value of dollars, and carried awa}' 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 afore- said, not only greatly annoyed and disturbed m the peace- able possession of his said dwelHng-house, but also the plaintitYwas during all that time hindered and prevented from carrying on and transacdng therein his necessary affairs and business. {A count may be added for an ex- pulsion, as belozu, if applicable to the facts, and also a count de bonis asportalis, for zvhich see No. 259, ante — concluding the declaration as in No. 250, ante.) The above declaration in substance charges the defend- er) I Gilm. 30. See 5 Cal. 239. TRESPASS. 577 Count for common expulsion — Declaration for trespass to land, etc. ant with breaking open an outer door, and if he pleads a justification, it must be framed accordingly, (s) ]Sfo. 266. Count for a common expulsion. And also for that the defendant, on, etc., with force and arms, etc., broke and entered a certain other dwelling- house of the 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 con- tinued 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 dvvellincr-house. o No. 267. For trespass to land — entering close ^ breaking oj)cn gates, destroying crops, etc. [Commence as in No. 250, ante.) For that the defend- ant, 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, sit- uate 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 aflixed 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 dol- lars, then and there growing and being ; and with horses, cows, oxen and sheep, depastured 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, dam- aged and spoiled other the grass and corn of the plaintill", of the value of dollars, then and there also growing and being; and with the feet of the said horses, and with {s) 2 Chit. Pi. S64, n.; II Moore, 40. 37 578 TRESPASS. Declaration for trespass to land, etc. the wheels of the said carts, wagons and other carnages, 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 dollars, off and from the said close, and converted and dis- posed 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 trees, and acres of underwood, of the plaintiff, of the value of dol- lars ; and the timber, wood, branches and bushes thereof coming afld 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 dis- posed of the 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 in- cumbered the 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. {Sec note at end of N'o. 265, ante.) A declaration in trespass qaare clatisiini f regit must set forth a trespass committed to real property in the county where the action is brought. It is sufficient to describe the close or house generally, as in the above precedents ; (/) but if the description is general, and the defendant pleads Ubcruni tenenientum, the plaintiff must make a new assign- ment ; and to avoid this necessity it may sometimes be ad- visable to give a precise description of the property in the declaration. When this is done, care should be taken to avoid an}'' mistake in the description. {tC) {f) 2 Chit. PI. S63, n. (a) 01. Prec. 564; 2 Chit. PI. S6S. TRESPASS. 579 Cutting down trees, etc. — Digging mines, etc. No. 268. For cutting down and carrying away trees, etc. {^Commence as in No. 250, ante,) For that the defend- ant, 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 de- stroyed 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 be- ing 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 wrong 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 may be inserted lor carrying away trees gener- ally. The above count — not alleging any trespass on the close — is 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 ad- joining woodland, though uninclosed. (^') No. 269. For digging in a coal-mine, and carrying azvay coal therefrom. {^Commence as in No. 250, ante.) For that the defend- ant, 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 quantites of coal, to wit, tons of coal, of the plaintiff, of the value of dollars, and took and carried away the same, and converted and disposed of the same to his own use. {^Conclude as in the last precedent ; or a count de bonis asportatis may be added, with conclusion as in No. 250, ante.) No. 270. For digging mines, raising ore, and taking and converting it. {Commence as in No. 250, ante.) For that the defend- ant, on, etc., with force and arms, etc., broke and entered {v) 2 Rawle, 14; i Wend. 456. 58o TRESPASS, Defenses to the action — Pleas in bar. 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 awa3',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 Assumpsit, ante. Pleas in bar. — In trespass, the general issue is "not guilty." On this issue the plaintiff must prove, ist, that the [>i-operty was actually or constructively in his possession at the time of the injury, and this rightfully, as against the defendant ; and 2dly, that the injury was committed by the defendant w^th force ; {w) and the defendant may give in evidence any matter tending to disprove either of these propositions. \x) Every defense which admits the defend- ant to have been ■prima facie a trespasser, must be specially pleaded ; but any matters which go to show that he never did the acts complained of, may be given in evidence under the general issue. Thus, for exampl.e, 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 (w) 2 Greenl. Ev., sec. 613. («) 2 Greenl. Ev., sec. 635; i Chit. PI. (11 Am. ed.) 500. TRESPx\SS. 5S1 Defenses to the action — Pleas in bar. did not enter the plaintiff's close, (y) But if he acted by license, even from the plaintiff, without claiming title in himself; (z) or if he would justify under a custom to en- ter ; (a) or under a right of way ; (6) or if the injur}^ was occasioned by the plaintiff's own negligence, or was done bv 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, (c) All matters in discharge or justification must be speciall}' pleaded, (d) Thus a former recover}-, (e) accord and sat- isfaction, (y) the statute of limitations, (g-) or a license, {/i) must be specially pleaded. So an ofEcer wishing to justify under legal process must plead it specially. (2) But where, in trespass for taking goods, the defense is that the goods were seized by the defendant 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, {j) 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. {JS) And it {y) 2 Greenl. Ev., sec. 625; i Chit. PI. (ir Am. ed.) 500, 501; 2 Hill, on Torts, Si- (z) 2 Camp. 378; I Peake, 67; 24 Pick. 1S7; 26 Vt. 17S; 2 Rich. 93; 2 Hill, on Torts, 81-83. (a) 4 Pick. 145. ((5) But see 7 Mass. 3S5. (c) 2 Greenl. Ev., sec. 625; i Chit. PI. (11 Am. ed.) 501 ; 2 Ca'mp. qoo. (d) Id.; 12 111. 80; 31 Vt. 433; 19 N. H. 562; 3 Hurl. & Nor. 276; 32 Barb. 293. («) I Chit. PI. (II Am. ed.) 506,501; 12 111. 8o; i Blackf. 169; 6 Cow. 691. (/) I Chit. PI. (11 Am. ed.) 506. Sec 2 Gilm. 252. (g-) I Chit. PI. (11 Am. ed.) 506. See 23 111. 399. (A) I Chit. PI. (11 Am. ed.) 491, 502, 505; 7 Blackf. 373; 7 Term, 166; 2 Taunt. 156; 24 Pipk. 1S7. See 18 111. 261. (/) I Chit. PI. (II Am. ed.) 501, 506, 534. See i Gilm. 401 ; 11 III. 610; 13 111- 22, 602; 35 111. 417; 43 111. 337; Hurl. & Nor. 276. (./) 4 Scam. 411. (^•) 2 Greenl. Ev., sec. 625; 3 Hurl. & Nor. 276; 31 Vt. 433, 624. See 6 Adol. & El. 174, N. S. 582 TRESPASS. Plea of not guilty, etc. seems that a variance in the description of the locus in quo is available to the defendant under this issue, as the alle- gation of place, in trespass quare clausumf regit, is essen- tially descriptive of the particular trespass complained of. (/) But the variance, to be available, must be in some essential part of the description, (w) The plea of "not guilty," in an action of trespass for taking 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 ; ip) 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. 271. Plea — Not guilty. In the Court. Term, iS — . C. D. ^ ats. > Trespass. A. B. 3 And the defendant, by E. F., his attorney, comes and defends the force and injury, when, etc., and says that he is not guilty of the said supposed trespasses above laid to his charge, or any or either of them, in man- ner and form as the plaintiff has above thereof complained against him : And of this the defendant puts himself upon the country, etc. (/) 2 Greenl. Ev., sec. 625; 3 Stephen's N. P. 2642; 10 Law Jour. 203; i Salk. 452 ; I Moore, 161 ; 8 Taunt. 539. (w) Id. ; 1 Taunt. 495, 501. See 13 East, 9; S Bing. 75; 2 Bing. 49. («) 28 111. 135. {p) 28 Vt. (2 Wms.) 537; Z Hill, on Torts, 317. (/) 2 Hill, on Torts, 317; 14 Johns. 156; 2 Scam. 448; 8 Geo. 201. TRESPASS. 583 Pica of son assault demesne. No. 272. Plea of SON assault demesne. {First -pica, not guilty., as ante, last -precedent.^ And for a further plea in this behah', the defendant says that the plaintilf ought not to have his at'oresaid 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 mentioned, with force and arms, etc., in the county aforesaid, made an assault upon the defend- ant, and would then and there have beaten, bruised and ill-treated him, if he had not immediately defended him- self against the plaintiff'; wherefore the defendant did then and there defend himself against the plaintiff, as he lawfully mifjht for the cause aforesaid, and in so doing- did commit the supposed trespasses m the said dechiration 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 plaintilT upon him, the defendant, and in his necessary 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 charged in a declaration or count, are intended to be justified, such particular trespasses should be enumerated, in the manner indicated in the plea next following, {q) In a plea of son assault demesne., a tuoiinding may be justified in self-defense, in the above form ; but where the \'d\\ prima yacie only authorizes an arrest, or touching a person, if a wounding also is attempted to be justified, the occasion thereof roust be specially alleged — as in the case of an arrest under process, a resistance, or attempt to res- cue, must be averred, (r) In defense of the person, an assault and battery, etc., may be justified ; {s) but in defense of the possession of personal or real property, the defend- er) See remarks, ante, 174. {r) I Saund. 296, 297; Id. n. i ; S T. R. 7S, 299. (5) 2 Salk. 649; I Ld. Raym. 177; Bui. N. P. (7 ed. iS) ; 7 Moore, 35. 5S4 TRESPASS. Plea of son assault demesne — Defense of child. ant must plead molUter mantes t'mposuit. (/) It seems clear that the defendant can not in any case justify an actual beating 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 battery, by way of molliter manus impostiit. (it) The following is a somewhat different form of the plea of son assault demesne, (v) No. 273. Plea ^ SON assault demesne — defense of child, etc. {First -plea, not guilty, as ante, N'o. 271.) And for a further plea in this behalf, as to the assaulting, beating, bruising, wounding and ill-treating of the plainiiff, and as to the tearing, spoiling and damaging of the clothes of the plaintiff, {etc., enumerating the trespasses charged, or, if it /s' only intended to justify apart, t/ien such part,) as in the said declaration, {or "first count") mentioned, the defend- ant 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") men- tioned, 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 had not immediately 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 a little beat, bruise, {etc., as in the introductory part of the plea ^ doing no unnecessary damage to the plaintiff on that occasion; and so the defend- ant says, that ff any hurt or damage then and there hap- pened 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 (0 I Salk. 407; S T. R. 78; Com. Dig. Plead. 3, M. 15. {it) 6 T. R. 562 ; 7 Taunt. 6S9; i Moore, 420, S. C ; 3 Chit. PI. 106S, n. (t*) See 3 Chit. PI. 1068-1070, and notes. TRESPASS. 585 General replication dc injuria, etc. plaintiff; which are the same supposed trespasses in the introductory part of this plea mentioned, etc. And this the defendant is ready to verify ; wherefore he praysjudgment, 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. i*j^. General replication, de injuria, etc. (Similiter to general issue, if -pleaded as ante, No. 69; if not, entitle frst rc-plicatio,n as in that for mi) 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, at the 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 men- tioned, in manner and form as the plaintiff has above com- plained against the defendant : And this the plaintiff prays may be inquired of by the countr}', etc. {w) The above form will suffice in all cases in trespass where this replication is proper, though where replied to the plea oi son assault demesne, a form slightly different is used, ix) The general replication, de injuria sua^absque tali causa, is adapted to the denial of matter of excuse or justification ; and where the excuse or justification consists exclusively of mere matter of fact, as distinguished from matter of record, title, authority, etc., (which involves matter of lazv,) 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 capias di- {-v) See I Chit. PI. (ii Am. ed.)63+-6n; 3 id. 1202; 2 Swan's Pr. 770, n. ; Gould's PI., cap. 7, sees. 26-30. (*) 3 Chit. PI. 1202. 586 TRESPASS. General replication de injuria, etc. rected to him as sherifl^) this general traverse would be ill ; but the plaintiff, in a case like this, may traverse sepai'ately any one material point in the plea, which point may con- sist either of the record, etc., or of the matter of mere fact pleaded in connection with it. For example, he may traverse the capias, hy replying nultiel record; or he may admit the capias, and traverse 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 matter 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, {y) When in fact the plaintiff made the first assault, in de- fense of -his possession, etc., or whenever, in answer to the defendant's plea of son assault demesne, he relies upon new matter, he should not reply generally, de injuria., etc., but should allege such new matter, {z) But it is now held, that \ison assault demesne is pleaded, the plaintiff may, under this general replication, show that the defendant's battery of him was excessive, without a special replication, or new assign- ment; ia) though formerly it was held otherwise, {b) New assignments. — It is a general rule, thai where the defendant has committed several trespasses, some of which were justifiable, and others not, and the action is brougiit for those trespasses which were not justifiable, but the de- fendant 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 assign. Thus in an action of trespass for an assault, if /there have been two assaults, one justifiable, on the ground (j') Gould's PL, cap. 7, sees. 26-30. (^z) I Chit. PI. (11 Am. ed.) 592; 3 Id. 1203, n. (a) I Chit. PI. (11 Am. ed.) 627; i Steph. N. P. 216; 11 111. 17; 35 N. H 503; 4 Ind. 442; 4 Blackf. 518; 11 Md. 536; 15 Mass. 347; 25 Wend. 371. {J>) I Chit. PI. (11 Am. ed.) 593, and cases cited. TRESPASS. 5S7 Molliter mantis imposuit. of self-defense, and the other not, and the declaration con- tains only one count for an assault, and the defendant pleads son 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 occasion — or, in tres- pass 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 defendant can not prove all the matters which constitute the substance of his plea, (c) For the law in respect to new assignments, see i Chit. PL (11 Am. ed.) 62410 640; and for forms, see 3 id. 1213 to 1218 ; and see also a form of new assignment to a plea in' abatement, ante. No. 65, and a form of new assignment to a plea oilibe^-uni tencmcntam, No. 289, ^ost. No. 275. Pica — MOLLITER MANUS IMPOSUIT, to -pre- serve the peace — plaintiff and a third person Jighting together. [Pirst plea, not guilty, as ante,iVb. 2/1 ; second plea as in No. 272, ante, to the asterisk, and thence as Jollozvs :) that the plaintiff and one O. P., at 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 then and there present, for the preser- vation of the peace of the said People, and that the plaint- iff 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 supposed trespasses in the said de.claration mentioned, and whereof the plaintiff has above thereof complained against the detendant : And this the defendant is ready 10 verify ; wherefore he pravs judgment, etc. (c) 4 N. & M. 470; I H. & W. 15, S. C. ; 17 Ohio, 456; 2 Swan's Pr. 772, 774, notes. 588 TRESPASS. Plea of justification in defense of dwelling, etc. In trespass for a simple assault, a plea of mollitcr maims iijiposiiit, 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, id) This plea is not a full answer to a declaration charging an assault and ivoimding; and if, when pleaded to sucli a declaration, issue is taken on the plea, and found for the defendant, judgment must be rendered for the plaintiff, noil obstante veredicto, for the plea leaves a part of the declaration unanswered, {c) The plea in such case should either deny the beating, wounding, etc., or state facts and circumstances of resistance, etc., to justify it. (_/) No. 276. Plea MOLLITER MANUS IMPOSUIT, tO -pZlt -plaintiff out of defeiidanC s dwelling-house. {First -plea, not guilty, as ante. No. 271 ; second plea as in No. 272, ante, to the asterisk, and thence as follows :^ 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 sam_e day in the said declaration mentioned, w\is 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 disquieted the defendant and his family in the peaceable and quiet pos- session 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-house, which the plaintiff then and there wholly refused to do ; whereupon the defendant, in defense of the possession of his said dwelling-house, at the said time when, etc., gently (rf) 32 Vt. (3 Shaw,) 407. See 3 Chit. PI. 1068, n. (<;) 17 Ohio, 456. See 3 Chit. PI. 1068, n. (_/) 2 Swan's Pr. 773, n. a. TRESPASS. 589 Plea cjf justification by a school-master, etc. 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 de- fendant is ready to verify ; wherefore he prays judgment, etc. . If there was an actual resistance on the part of the plaint- iff, and in consequence thereof any tvounding, or a greater degree of violence on the defendant's part than would other- wise have been justifiable, the facts should be alleged ac- cordingly, 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 de- fendant in that behalf, and assaulted him, and used viclenl 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 dec- laration,) doing no unnecessary damage to the plaintiff on that occasion ; which are the same," etc. The plaintiff may reply de injuria, etc., as ante. No. 274. See the observations under that form and No. 273. No. 277. Plea by a school-master, justifying a battery, etc. [12 Ohio, 191.] {First ^lea, not guilty, as ante, iVb. 271 ; second plea as in No. 272, 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 plaintifT was then a scholar in and at- tending the said school, and then behaved and conducted himself in an improper and disorderly manner, in the said school, and then and there refused to obey the reasonable 590 TRESPASS. Plea of justification bj a justice of the peace. and necessary rules prescribed for the government of the said school ; wherefore the defendant then and there mod- erately chastised the plaintiff for his said misbehavior, as he lawfully might for the cause aforesaid ; which is the same supposed assaulting, etc., in the said declaration mentioned : And this the defendant is ready to verify ; wherefore he prays judgment, etc. • The plaintiff may reply de injuria, etc. See the obser- vations under Nos. 272 and 273, ante. JVo. 278. Plea by a justice of the peace — iti an action against him and another — justifying the issuing of a capias, under zvhich f)laintiff was arrested and ini- ■prisoned. (g) (Thirst plea, general issue, as ante, JVo. 271.) 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 having 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 apprehend 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 iff) 27 111- 469- TRESPASS. 591 Plea by officer, justifying arrest without process. to appear before the said C. D., as such justice as afore- said, at, etc., on, etc., at — o'cfock, — . i\i., to answer the complaint of the said E. F. for a failure to pay him a cer- tain 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, there- upon, 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 obe- dience to the said writ, afterwards, to wit, on the day afore- said, there gently laid his hands upon the plaintiff, and arrested 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 afore- said, at, etc., aforesaid, for trial; whereupon 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 released 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 judg- ment, etc. No. 279. Plea justifying an arrest., as a constable, zvith- out process, on suspicion of felony. {First plea, not guilty, as ante, ISFo. 271 ; second plea as in No. 272, ante, to the asterisk, and thence as follows:) that before the said time when, etc., to wit, on, etc., in the county aforesaid, five -ivatches, 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 reasonable and probable cause to suspect, and did suspect, that the plaintitF had felo- niously stolen and carried away the said ivatches, in this, to wit, that the plaintiff' was then and there found lurking about, in a suspicious manner, 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 plaintift^'s being then and there searched, one zuatch, resembling one of the said 592 TRESPASS. Plea bj officer, justifying arrest without process. watches so stolen and carried 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 zuatch, so found in the possession and on the person of the plaintiff, the defend- ant then and there had reasonable and probable cause to suspect and believe, and did suspect and believe, to be one of the said watches so stolen and carried awa}^ from the said J. K. as aforesaid ; whereupon, it being then neces- sary that the plaintiff should be arrested, in order to pre- vent his escape, the defendant, who was then one of the constables in and for the county aforesaid, for the causes aforesaid then and there gently laid his hands on the plaint- iff, 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 examined 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 sev- eral 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 trespasses in the said declaration mentioned, etc. And this the defendant is ready to verify ; wherefore he prays judg- ment, etc. No. 280. Another form o/plea by an officer, justifying an arrest without process, on suspicion of felony. (Ji) {First plea, not guilty, as ante. No. 271 ; second plea as in No. I'ji, ante, to the asterisk, and thence asfollozus:) 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 felo- niously stolen, taken and carried away ; and before and at the said time of the committing of the said larcen}^ the plaintifi' was an idle person, dwelling and sta3ang in- the (//) 43 111. 95; 51 111. 401. TRESPASS. 593 Plea by officer, justifying arrest without process. neighborhood where the said larceny was committed, and consorting 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 defendant was informed that tlie plaintitf feloniously aided and abetted in the com- mitdng of the said larceny : by reason of which premises the defendant, at the said time when, etc., had good and probable cause to suspect, and did strongly suspect, the plaintiff to have been guilty of, or concerned in, the committing of the said larceny ; wherefore the defendant, who was then a constable of the count}^ 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. 274, 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 ac- cused was guilty, and there was danger of his escape, (y') In case of a 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 scrupulously into the causes of the sus- picion ; and he will be justified in making the arrest, should it afterwards appear that no felony had been committed, provided he had reasonable grounds to suspect the person arrested — such grounds as should influence a prudent and cautious man under the circumstances. A constable,. hav- ing reasonable ground to suspect that a felony has been committed, is authorized to detain the suspected person until inquiry can be made by the proper authorities ; and whether or not there was such reasonable ground for sus- picion, is a mixed question of law and fact — the circum- (?) 5t III. 401. See S6 111. .75 ; 76 III. 224. U) 43 111- 95- 38 594 TRESPASS. Plea justifying arrest by private person, etc. Stances to show it reasonable being the fact, but whether, admitting them to be truly alleged, the circumstances amount to a justification, being a question of law. (k) In a plea justifying the apprehension of the plaintiff on suspicion of felony, the cause of suspicion must be shown. (/) JVo. 281. Pica justifying an arrest^ etc.^ by a private person, on a charge of felony. {Fii'st^lca^ not guilty, as ante, No. 271 ; second pica as in JVo. 272, ante, to the asterisk, and thence as follozvs:) that the plaintiff, before the said time when, etc., to wit, on, etc., in the county aforesaid, ten bank-hills, each of the denomination and value of dollars, the property of the defendant, feloniously did steal, take and carry away ; and thereupon the defendant, 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 plaint- iff, 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 exam- ined before the said justice touching the said larcenjs and to be further dealt with according to law ; and b}^ means of the premises the plaintiff was imprisoned, and detained in prison, for the space of time in the said declaration men- tioned, the same being a reasonable imprisonment, 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 injuria, etc., No. 274, ante. {k) 51 111. 401. See I Hill. Torts, 195, a; 5 Cush. 2S1 ; 15 Eng. C L. 618; 5 Bing. 554. (/) 4 Taunt. 34; Holt C. N. P. 47S; 3 Chit. PI. 1081, n. TRESPASS. 595 Plea by officer, justifying taking property under execution, etc 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 individual may arrest a person guilty of crime, when it is necessary to prevent the escape of the accused, and have him taken before a proper officer for examina- tion. But such private individual can not justify such ar- rest on the ground of a suspicion of guilt only — guilt in such case must be shown, {in) There is however some conflict of authorities on this point. See precedents of pleas by private individuals, justifying arrests on suspicion of felony, (w) JVo. 282. Pica by a sheriffs justify ing the taking of goods ^ etc., under a fieri facias. {First plea, not guilty, as ante, A^o. 271 ; second plea as in iVo. 272, ante, to the asterisk, and thence as follozvs :) that one J. K., before the said time when, etc., to wit, on, etc., sued out of the Court of the said county of a certain writ of iicri facias, of that date, directed to the sheriff of the county aforesaid, by which said writ the Peo- ple of the state of Illinois commanded 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 six per centum per annum from the time of the re- covery 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 should make re- turn of the said writ in ninety days after the said date thereof; which said writ afterwards, 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 (/) 3 Chit. PI. loSo, n. (w) 43 111. 95; 51 111. 401. (m) 3 Chit. PI. 1081 ; 2 Swan's Pr. 780. 596 TRESPASS. Plea by officer, justifying taking property under execution, etc. thenceforth until and at and after the said time wiien, 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 chattels of the plaintiff, 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 pur- pose of levjnng the moneys in the said writ mentioned; [and in so doing, the defendant 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 unnecessary 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 sup- posed 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 unnec- essary, and should of course be omitted if there has been no sale. A plea of justification under any other form of process can readily be framed from the above precedent. It is said that an officer justifying under mesne (not final) pro- cess, must show a return, {p) 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 {o) Tidd, (9 ed.) 1033, a; 3 Chit. PI. 1135, n. ; 10 East, 82 ; 5 B. & C. 48S. TRESPASS. 597 Replication to a plea justifying under process. 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 latter brings an action of trespass ; in which case the justification must be confined to the entry into the house, and the plaintiff's property in the goods disputed under the general issue. The plea in such case is similar to the above form, but ailleging an execution against "one Li. M.," and at the asterisk inserting this averment : "And the defendant further says, that before and at the said time when, etc., divers goods and chattels of the said L. M., liable to be taken in execution by virtue of the said writ, were in the said dwelling-house in which, etc. ; and that thereupon, by virtue of the said writ, the defendant," etc., — alleging the entr}-^ into the plaintifT's dwelling-house, and the seizure of the goods of L. M. therein, and omitting what relates to the sale of the goods, (g) See the observations under forms No. 272 and 274, No. 283. Replication — to a -pica of j'ustijication under ■process — protesting or admitting the process, and de INJURIA, ETC., as to the residue. [As in JVo. 274, ante, to the asterisk, and thence as fol- lows:') because protesting that the said writ of was not issued, or delivered {or, "although true it is that the said writ of was issued, and delivered ") to the defend- ant as such sheriff, in manner and form as the defendant has above in his said second plea alleged, nevertheless, for replication in this behalf, the plaintifT says, that the de- fendant, at the said time when, etc., of his own wrong, and without the residue of the cause in that plea alleged, committed the trespasses in the said declaration mentioned, in manner ana form as the plaintiff has therein above corn- er) Com. Dig. Plead. 3, M. 24; 3 Chit. PI. 1133, n. See 4 Scam. 411. () 8 M. & W. 3S1 ; 2 B. & C. 91S; 2 Greenl. Ev., sees. 61S, 626. 602 TRESPASS. Replication to plea of liberum tenementum — New assignment, etc. 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 per- mitted to enter against the w^ill 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 with- hold it, has been taken away by the statute of forcible entry and detainer, {g) The common bar is rarely of any other utility than to compel a nezv assignment^ describing the close, when it has not been particularly described in the declaration ; {Ji) 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 tcncmcnttim, and Gould's Pleading, cap. 6, §§ 91, 92, 93. JVo. 288. Replication to -plea of liberum tenementum, denying it. i^As in No. 274, ante, to the asterisk, and thence as fol- lows {) because he says, that the said close in which, etc., is not noiv^ 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 seco7id plea alleged : And this the plaintiff prays may be inquired of by the country, etc. No. 289. Netv assignment. {As in No. 274, ante, to the asterisk, and thence as fol- lows :) because he says, that the said close in which, etc., now is, and ditXhe said time (c>r " several times") when, etc., was a certain close in the county aforesaid, known and described as {/lere describe the land) ; which said close now is, and at the said time {or "several times") when, etc., was another and different close from the close in the (/) I Chit. PI. (11 Am. ed.) 503. Ig) 41 111. 279; 4O 111. 261 ; 40 111. 506. Ui) I Chit. PL, (11 Am. ed.) 503; Gould's PL, c. 6, sees. 91-93. (,/) I Chit. PL (11 Am. ed.) 505; 3 Id., 109S, n. TRESPASS. 603 Reference to other forms. said second plea of the defendant mentioned, and therein alleged to be the close, soil and freehold of the defendant. And this the plaintiff is ready to verify ; wherefore, inas- much 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 judgment, and his dam- ages on occasion of the committing of the said trespasser>, above newly assigned, to be adjudged to him, etc. To the plea of liberum tenementum, the plaintiff may reply, according to the facts, in either of four ways ; Firsts if the close has been so minutely described in the declaration that there can be no question what close is meant, and the plaintiff's title is inconsistent with that of the defendant, then the replication should deny that the close is the defend- ant's freehold, and should conclude to the country ; secondly^ if the plaintiff derives title und"er the defendant, then the plaintiff, confessing the defendant's title, must reply the lease, or some other title, under him, concluding with a verification ; thii'dly^ if the plaintiff neither derives title under the defendant, nor has a title inconsistent with the defendant's, he ma}^ I'eply that before the defendant had anything in the premises, another 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 ; ox ^ fourthly, if the declaration does not specify the locus in quo, and there is any reason to appre- hend that the defendant has any land in the same county, the plaintiff must new assign, setting out the locus in quo with more particularity, (y) The plea of liberum tenevievtiim is a good plea to an action of trespass quare claiisuni fregit in Illinois, {k) (J) I Chit. PI. (n Am. ed.) 595. See 3 Chit. PI. 1209, n., 1216; Gould's PI., cap. 6, sec. 93; 4 Johns. 150; 8 Wend. 477; 6 Watts, 516. {k) 115 111. 177; 108 111. 646; 51 111. 467; 67 111. 446; 68 111. 53; 94 III. 55. 6o4 EJECTMENT. When the action lies, etc. CHAPTER 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 judi- cial contrivance, and partly, in later times, by statutes ; and it is now a mixed action, for the recovery of land and dam- ages, the latter, however, being usually merely nominal. Its history is curious, and well worth}^ of study, as afford- ing perhaps the most remarkable instance of the adaptation of form to new exigencies to be found in tlie 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 Commentaries, {a) 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, {b) It is also held, however, that where the statute is silent, the practice and rules of the common law are to govern, (c) When the action lies, etc. — The general rule is, that ejectment will lie only for real propert}', as land, or some- thing annexed to land, upon which an entry might in fact be made, and of which the sheriff could deliver actual pos- session, (d) It is therefore not in general sustainable for (rt) 2 Bia. Com. 19S-205. See i Chit. PL (11 Am. ed.) iS7-i9'5; .' Green). Ev., sees. 303-337- {b) 18 111. 536. (c) 3 Gilm. 600. (d) Ad.Eject. 16; 16 Johns. i84;,B.N. P.99; 2Yeates,32i; 3 Green, 19?.. EJECTMENr. 605 When the action lies, etc. property which ir legal contemplation is not tangible ; as for common in gross, or other incorporeal hereditament; or for a water-course — though it will lie for the ground over which the water passes. ( Ejectment. — Damages $ . CD.) The clerk of the said court will issue a summons, as above, directed to the sheriff of the county of , and re- turnable to the term, i8 . {Date.) E. F. Attorney, for Plaintiff. ^ To , Clerk, etc. 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 be- fore the term to which the summons is made returnable, etc. {k) 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 speci- fied, 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,) en- tered into such premises, and that he unlawfully withholds from the plaintiff the possession thereof, to his damage any nominal sum the plaintiff shall think proper to state. "The premises so claimed shall be described in suo. declaration with convenient certainty, so that, from such description, possession of the premises claimed may be de- livered. If such plaintiff claims any undivided share or interest in any premises, he shall state the same particu- (/) Rev. Stat. (1874) 444; Rev. Stat. (1877) 437- (i) -lb EJECTMENT. 6ii Declaration in ejectment. larly in such declaration. But the plaintiff, in any case, ma}^ 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 another, or for a term of years, specifying such life or the duration of such term." " The declaration may contain several counts, and sev- eral parties may be named as plaintiffs, jointly in one count and separately in others." {vi) 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, [n) No. 290. Declaration in ejectment. In the Circuit Court. Term, iS — . State of Illinois, County of , > set. A. B., plaintiff, by E. F., his attorney, complains of C. D., defendant, of a plea of eject- ment : 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, (^Jiere describe the land;) which said tenements the plainriff claims in fee: And the plaintiff being so thereof possessed, the defendant afterwards, to wit, on, etc., en- tered into the said tenements, and now unlawfull}^ with- holds 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 (/) See Wat. Ad. Eject. 233; 76 111. 536; 108 111. 591. (w) I Starr & Curtis' An. Stat. 983; Rev. Stat. (1877) 437; 12 111. 420; 15 111. 178, 540; 32 111. 489 ; 41 111. 228; 47 111. 25; 49 111. 153. («) 19 111. 47. 6i2 EJECTMENT. Declaration hy several plaintiffs. fee is claimed, say, "which said tenements the plaintitT claims for the term of his life," or "for the term of the life of one J. K.., who is still living," or " for the term of 3^ears from the day of ," etc. JVo. 291. Declaration by several persons ^ naming them as ■plaintiffs jointly in one count and separately in others. {Title 0/ court, etc.) A. B., G. H. and J. K., plaintiffs, by E. F., their attorney-, 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 appurte- nances, lying in the county aforesaid, to wit, {here describe the land;) which said tenements the 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 pos- session of the same. {Second count.) And also for that the said A B., on,. etc. , was possessed of the one undivided third part of a certain other parcel of land, with the appurtenances, lying in the county aforesaid, to wit, {here describe the land;) which last-mentioned tenements the said A. B. claims in fee : And he being 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, suh- stiiuting G. H. for A. B. throughout.) {Fourth count.) And also for that the said J. K., on, etc., was possessed {and so on, as in the second count, sub- stituting f. K.for A. B. throughout.) {Conclusion.) Wherefore the plaintiffs say that they are injured, and have sustained damage to the ampu,nt of dollars, and therefore they bring suit, etc..-/.,^ See the section of the statute above quoted, allowing several counts, by different plaintiffs. Before the fiction of a nominal plaintiff was abolished, the declaration might in- clude several counts, on the demises of different persons. {0) (o) 1 Chit. PI. [x\ Am.ed.^ 187. EJECTMENT. 613 Defenses to the action. — Plea of "not guilty," etc. The 27th section of the Illinois ejectment-act provides, that "it shall not be an objection to a recovery, in any ac- tion of ejectment, that any one of several plaintiffs do not prove any interest in the premises claimed, but those en- titled 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." {j)) DEFENSES TO THE ACTION. The statute of Illinois provides as follows: "The de- fendant 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 declaration ; and the filing of such plea or demurrer shall be deemed an appearance in the cause ; and upon such plea the defendant may give in evidence any matter that may tend to defeat the plaintifl^'s action, except as here- inafter 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 premises." {q) The plea for which the statute provides only purports to deny the unlawful withholding of the premises. In the absence of any statute on the subject, the real plaintiff must prove, on the general issue, ist, that he had the legal estate in the premises, at the time of the demise laid in the declaration ; 2dly, that he also had the riglit of entry ; and sdly, that the defendant, or some one claim- ing under him, was in possession of the premises at the time when the suit was commenced, [r) (/) I Starr & Curtis' An. Stat. 987; Rev. Stat. (1877)438. ((/) lb. ; 106 III. 45 ; no 111. 16, 595 ; 92 111. 279, 377. [r) 2 Greenl. Ev. Sec. 304; Tilling. Ad. Eject. 247. 6i4 EJECTMENT. Plea, not guilty — Claim for mesne profits. No. 292. Pica — not guilty. In the Court. Term, 18—. Ejectment. And the defendant, by G. H., his attorney, comes and defends the wrong and injury, when, etc., and says that he is not guihy 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 this the defend- ant puts himself upon the country, etc. The statute of Illinois 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 de- fendant shall deny that he was -in such possession, or claims title or interest therein, or that demand of possession was made, by special plea, verified by affidavit." (5) Claim /"or mesne profits. — On this subject, the statute of Illinois provides as follows : ' ' Instead of the action of trespass for mesne profits, the plaintiff seeking to recover such damages, shall, within one year after the entering of the judgment, 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 continuance of the same. "Such suggestion 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 pleading thereto shall be observed as upon declarations in personal actions." (^) {s) I Starr & Curtis' An. Stat. 986; Rev. Stat. (1877) 438 ! 85 HI. 149) ^^ 111. 66; no 111. 16; 119 111. 606. {t) lb. 992 ; Rev. btat. (1877) 440; 63 111, 230. EJECTMENT. 6i; Suggestion of claim for mesne profits — Defenses to claim for mesne profits. No. 293. Suggestion of claim for mesne -prGJits, In the Court. Term, 18—. A. B. ^ vs. > Ejectment. Claim for mesne profits. • C. D. 3 And now on this day of, etc., comes the plaintiff, by E. F., his attorney, and, according to the form of the statute in such 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 dec- laration and judgment 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 defendant, in consideration thereof, on the day last aforesaid 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, etc. Upon the filing of such suggestion, the defendant is to be summoned in the same manner as in an orifjinal ac- tion. {u) Defenses to the claim for mesne ^rofits^ etc. — The stat- ute 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 person, of the same prem- ises, or of part thereof, subsequent to the verdict of 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 («) 1 Starr & Curtis' An. Stat. 992 ; Rev. Stat. (1S77) 44°; loS III. 464. 6i6 EJECTMENT. Plea of non assumpsit to suggestion — Forms. 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 entered into possession of the premises, subject to the restrictions hereinafter contained. " On the trial of such issue, the plaintiff shall be 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 rec- ord 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 defend- ant of any improvements made by him shall not be allowed to the plaintiff." (■t^) iVo. 294. Plea a/No's assumpsit, ^0 suggestion of claim for mesne -projits. In the Court. Term, 18 — . C. D. ^ ats. > Ejectment. Claim for mesne profits. A. B. 3 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 manner and form as the plaintiff has above in his said suggestion in that behalf alleged against him : And of this the defendant puts him- self upon the country, etc. For a form of notice of special matter, and forms of special pleas, see the precedents in assumpsit, ante, chap- ter III. The proceedings in the action of ejectment, in Illinois {v) I Starr & Curtis' An. Stat. 992; Rev. Stat. (1877) 441. EJECTMENT. 617 Remarks. and in most of the other states, are in a great measure reg- ulated by statute ; and it is not deemed necessary to occupy much space with the subject in this work. For a full un- derstanding of the nature of the action, and the general principles of law governing it, the text books, where the subject is specially treated, should be consulted, {-w) Neiv trial — Under the 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 p^rty against whom it is rendered shall be entitled to have the judgment vacated and a new trial granted in the cause, {x) 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. (j) Where a plaintiff in ejectment, after a judgment against him, obtains a new trial under the statute, and by amend- ment makes a new party defendant, and before his second trial dismisses 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 inoperative the prior judgment and leaves the parties as they stood before the trial, except that the plaintiff cannot claim a second new trial under the statute in the same suit, {z) {w) See Adams on Eject. ; 2 Cooley's Blackstone, 198-206; 2 Greenl. Ev., Sees. 303-337, {x) See I Starr & Curtis' An. Stat. 989; Rev. Stat. (1S77) 439; 63 111. 262; 107 111. 440; 103 111. 58; 104 111. 520; 121 111. 30. {y) I Gilm. i6oj 4 Gilm. 129; 14 111. 152; 35 111, 387; 63 111. 262; 103 111. 58. (2) 106 III. 45; 22 111. 121. 6i8 ATTACHMENT. Nature of the action, etc. CHAPTER Xni. ATTACHMENT. The writ of attachment, in civil actions at law, is a spe- cies 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 enactments 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 proceedings 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 defend- ant, or an appearance entered by him, the court has no jurisdiction to proceed to judgment, {a) In an action commenced by attacfiment, where there has been constructive notice only, by publication, if the de- fendant 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. (<5) "When the defendant has been served with the writ, or appears to the action, the judgment shall have 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." {c) [a) I Gilm. l88; 60 III. 528; 54 111. 523; 2 Gilm. 46S ; 77 111. 618; 7^ 111. 81. (6) 21 111. 379; I Gilm. 531, 187; 65 111. 336. (<:) I Starr & Curtis' An. Stat. 324; Rev. Stat. (1877) 151; I Gilm. 531 ; 5 Gilm. 80; 33 111, 379. ATTACHMENT. 619 In what cases it lies, etc. The benefit of the remedy is not confined to any partic- ular form of action. Any creditor is authorized, under certain circumstances, to sue out an attachment ; and, an action of account maybe commenced in this manner, (d) A creditor may proceed by attachment and by petition for a mechanic's lien, as concurrent remedies, (e) Proceedings by attachment, being in derogation of the common law, and deriving all their validity from statutes, must in all essential particulars conform to the requirements of such statutes. (/*) In what cases attachjuent lies, etc. — 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 ex- ceeds twenty dollars, in any of the following cases : 1st. Where the debtor is not a resident of the state. 2nd. Where the debtor conceals himself, or stands in defiance of an officer, so that process can not be served upon him, 3rd. 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, withm two years precedino' the filing of the affidavit required, fraudulently conveyed or assigned 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. {d) II 111, 471. (e) 18 111. 248 ; 3 Scam. 201 ; 99 111. 641 ; 73 111. 536. (/) 2 Gilm. 429; 83 111. 188; 77 111. 518; 60 111. 32S. See 102 111. 249. 620 ATTACHMENT. How proceeding commenced, etc. — Affidavit for attachment, etc. assign 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 have been reduced to writing, and his signature at- tached thereto by himself or his agent or attorney, {g) "This act shall be construed in all courts in the most lib- eral manner for the detection of fraud." {gg) Comniencement of p7'oc ceding — Affidavit^ etc. — To entitle a creditor to a writ of attachment, the statute requires that " 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 nine causes mentioned in the pre- ceding section, and also stating the place of residence of the defendant, if known, and if not known, that upon diligent in- quiry the affiant has not been able to ascertain the same." The statute further provides, that " it shall be sufificient, in all cases of attachment, to designate defendants by their re- puted names, by surnames, and joint defendants by their sep- arate or partnership names, or by such names, styles or titles as they are usually known ; " and heirs, executors and ad- ministrators of deceased defendants are subject to the provis- ions of the statute, in all cases in which it may be applicable to them. (Ji) No. 295, Affidavit for attachment. State of Illinois, \ County of , j set. A. B., of, etc., makes oath and says, that C D. is indebted to him, the said A. B., in the ((/) I Starr & Curds' An. Stat. 310; Rev. Stat. (1S77) 146. See 23 111. 66 ; 25 111. 565; 52 111. 432; 51 III. 324; 9 Bradw. 256; 6 Bradw. in. [gg) S arr & Curtis' An. Stat. 327; 102 111. 249; 28 111. 429; 21 111. App. Ct. (E. B. Smith) 547. (/^) lb.; 77 111. 518; 17 Bradw. 153; 6 Bradw. 25 ; 93 111. 77 ; loS 111. 317. A ATTACHMENT. 621 Affidavit for attachment, etc. sum of dollars, (after allowing all just credits 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. When made by an agent or attorney, the affidavit 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. D. 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." {j) 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, {k) or master in chancery, (/) in their respective districts, circuits or counties. The affidavit must be positive and unequivocal in its terms ; statements upon information and belief are insuffi- cient ; {ill) but if it is defective it may be amended, {n) The statute 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 dis- (/) 2 Starr & Curlis' An. Stat. 1677 ; Rev. Stat, (1S77) 686, {k) lb. (/) lb. See 18 Bradw. 491. (w) 21 111, 80; 26 111. 48; 31 111. 306 ; 17 Bradw. 153. («) 3 Scam. 21, 361 ; 31 111. 306; 79 111. 391. 622 ATTACHMENT. Where suit is to be brought, etc. — Plaintiff to give bond, etc. charged, on account of any insufficiency of the original affidavit, writ of attachment or attachment-bond, if the plaintiff', or some credible person for him, shall cause a le- gal and sufficient affidavit or attachment-bond to be filed, or the 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 suffi- cient." (o) The affidavit should state the full amount due, as a judgment can not be rendered, where there is no personal service, or appearance, for a greater sum than that claimed in the affidavit, with the accrued interest, (p) Nor should the judgment exceed the amount laid in the ad damnum clause of the declaration, {cj) Where the suit is to be brought. — Proceedings in attach- ment are required to be commenced in the count}' where the defendant may be found, or where he has property or funds liable to garnishment ; and service must be had upon him or his property, etc., in order to give the court juris- diction, (r) But "the creditor may, at the same time, or at any time before judgment, cause an attachment-writ to be issued to any other county in the state, where the debtor may have property liable to be attached, which shall be levied as other attachment-writs : provided, that if no prop- erty, rights or credits of the debtor are found in the county in which the suit is brought, and no defendant is served with summons or makes appearance, the creditor shall not be entitled to judgment." (5) Plaintiff required to give bond. — "Before granting an attachment, as aforesaid, the clerk shall take bond and sufficient security, payable to the defendant against whom {0) I Starr & Curtis' An. Stat. 322; Rev. Stat. (1877) 151; 7' ^"- 46; 13 Bradw. 572. (/) 12 111. 198; 21 111. 108; 35 111. 150; 42 111. 306, [q) 35 111. 150. See 10 Bradw. 275. (r) 27 111. 509; 31 111. 248; 43 111. 185 ; 54 111. 523. (/) I Starr & Curtis' An. Stat. 316; Rev, Stat, (1877) 148. See ^2> H^- 460; 85 111. 138; 6 Bradw. 25, 445, 454, ATTACHMENT. 623 Against joint debtors, etc. 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 pro- ceedings, 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, [tc) Objections to a defective bond must be made in apt time. It is too late to object to such bond after the cause is re- moved to the supreme court, {v) The statute gives the form of the plaintiff's bond, as well of the writ of attachment, {w) Attachment against joint debtors. — " In all cases where two or more persons are jointly indebted, either as part- ners or otherwise, and an affidavit shall be filed as pro- vided in the first section of this act, so as to bring one or more of such joint debtors within its provisions, and ame- nable to the process of attachment, then the writ of attach- ment shall issue against the property and effects of such as are so brought within 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." (.v) In a proceeding by attachment, against H. and S., the affidavit alleged two grounds for suing out the writ — ist, that H. was about to depart the state, with the intent to re- {l) I Starr & Curtfs' An. Stat. 31 1 ; Rev. Stat. (1877) 147. (?<) lb. 151. See 3 Scam. 577; 9 Bradw. 24, [v) 15 111. 266; 3 Scam. 21 ; 85 111. 138. {■w) I Starr & Curtis' An. Stat. 312; Rev. Stat. (1877) 147. Ix) I Starr & Curtis' An. Stat. 313; Rev. Stat. (1877) 148. 624 ATTACHMENT. Execution of the writ, etc. move his effects, to the injury of his creditors ; and 2nd, that H. and S. were about fraudulently to sell and assign their property and effects, so as to hinder and delay their creditors. The defendants pleaded separately, traversing the affidavit. It was held, that the proof having failed to sustain the cause alleged against S., a recovery could not be had against both defendants, by proving the first alle- gation against H. (y) Execution of the writ — service on the defendant^ etc. — The oihicer "shall without delay execute such writ of at- tachment upon the lands, tenements, goods, chattels, rights, credits, moneys and effects of the debtor, or upon any lands or tenements in and to which such debtor has or may claim any equitable interest or title, of sufficient value to satisfy the claim sworn to, with costs of suit as commanded in such writ." {a) "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 file a certificate 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 bona fide purchasers, without notice, and not before." (/;) "The officer shall also serve said writ upon the defend- ant therein, if he can be found, by reading the same to him or delivering a copy thereof. The return to such wrif shall state the particular manner in which the same was served." {c) "If it shall appear, by the affidavit, that a debtor is ac- tually absconding, or concealed, or stands in defiance of an officer duly authorized to arrest him on civil process, as aforesaid, or has departed this state with the intention ol {y) 49 111- 270. (a) I Starr & Curtis' An. Stat. 313; Rev. Stat. (1877) 148. See 15 111. 89, 95, 205 ; 54 111. 523 ; 77 111 618; 103 111. 425 ; 7 Bradw. 442 ; 6 Bradw. 598. {}>) lb. See I Gilm. 187 ; 3 Gilm. 311 ; 16 111. 117. (0 I Starr & Curtis' An. Stat. 315 ; Rev. Stat. (1S77) ^8; 77 HI. S^S. ATTACHMENT. 625 The declaration, etc. — Garnishees, etc. having his effects and personal estate removed out of the state, or intends to. depart with such intention, it shall be lawful for the clerk to issue, and sheriff or other officer to serve, an attachment against such debtor, on a Sunday as on any other day." (d) " 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.'" (c) 1 The declaration, etc. — The declaration is to be in form to correspond with the nature of the action in which the attachment has issued. It must be filed on the return of the attachment, 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 declaration. The defendant may however obtain a rule on the plaintiff to file a declaration within 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, {g) The declaration must be limited to the cause of action specified in the affidavit. If the plaintifl' 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. iji) Garnishees. — The statute provides, that "when the sheriff or other officer is unable to find property of any (rf) I Starr & Curtis' An. Stat, 316; Rev. Stat. (1877) 148; 78 ID. 259. {e) lb. See 43 111. 185. (/) I Starr & Curtis' An. Stat, 320; Rev. Stat. (1877) 150 ; 12 Bradw. 302. (,ir) 29 111. 291 ; 18 111. 150, 273. See 25 111. 324; 85 111. 13S; 87 III. 219. (/^ 21 111. 108. See 18 111. 273. 40 626 ATTACHMENT. Publication, etc. defendant, sufficient to satisfy any attachment issued under the provisions of this act, he shall summon the persons men- tioned in such writ as garnishees, and all other persons within his county whom the creditor shall designate as having any property, effects, choses in action or credits, in their possession or power, belonging to the defendant, or who are in anywise indebted to such defendant, the same as if their names had been inserted in such writ ; the per- sons so summoned shall be considered as garnishees, and the sheriff shall state, in his return, the names of all per- sons so summoned, and the date of such service on each." (/) Notice to the defendant hy ■publication. — "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 iti 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 appear, 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 pur- suance of this section, shall be evidence of that fact." (7) Where there is no personal service upon the defendant, (?) I Slarr & Curtis' An. Slat. 319; Rev. Stat. (1877) 150. (7) lb. See 12 III. 358; 83 III. 188; 85 111. 138; 13 liradw, 572; 60 II!' 3^8. ATTACHMENT. 627 Defenses to the proceeding, etc. — Plea in abatement, etc. the record must show affirmatively that the requirements of the statute, in regard to notice by pubHcation, have been fulfilled, {k) " No default or proceeding shall be taken against any defendant not served with summons, unless he shall ap- pear, until the expiration of ten days after the last publica- tion as aforesaid. " If for want of due publication or service, the cause is continued, the same proceedings shall be had, at a subse- quent 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 " 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 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 attach- ment shall be adjudged against the plaintiff, but the suit shall proceed to final judgment as though commenced by summons." {m) No. 296. Plea in abatement of the writ. In the Court. Term, iS— . C. D. ^ ats. > Attachment. A. B. 3 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, (k) 33 111. 460; 27 III. 35S; 85 111. 138; 60 111. 328. (/) I Starr & Curtis' An. Stat. 320; Rev. Stat. (1877) 150; 63 111. 81. (/«) lb. See Breese, 411 ; 23 111. 67; 49 III. 270. See 70 111. 8S; 81 111. 310. 628 ATTACHMEINT. Practice and pleading, etc. that {here traverse the allegations of the affidavit . And of this the defendant puts himself upon the country, etc. {ii) At cohimon law, the filing of a plea in bar, before a plea in abatement was disposed of, was a waiver of the plea in abatement. 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 by 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, [s) A plea in abatement of an attachment-writ should con- clude to the country, and issue is joined thereon by adding the common similiter. The burden of proof is on the plaintiff, to maintain the allegations of his affidavit ; and if the finding on such issue is for the defendant, the writ is to be quashed, {d) 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- resident at the time the writ issued, is sufficiently certain, when it appears that the affidavit was made the same day the writ issued, {q) Practice and pleadings. — The practice and pleadings in attachment-suits, except as otherwise provided by the stat- ute in relation to attachments, are to conform, as nearly as may be, to the practice and pleadings in other suits at law. {r) («) See Breese, 411; 5 Gilm. 21; 13 111. 674,675; 16 111. 306; 17 111. 33; 23 111.66; 28 III. 113. (j) 70 111. 87. (0) 17 111. 33; 49 111. 270. See 5 Gihn. 21 ; 13 111. 675; 16 111. 306; 28 111. 113; 70 111. 88. (/) 49 111. 270. See 23 111. 67; Bieese, 411. ^5^) 45 111. 296. (r) I Starr & Curtis' An. Stat. 320; Rev. Stat, (1877) 150. ATTACHMENT. 629 Forthcoming bond, etc. — Bond or recognizance to cover judgment, etc. A defendant may avail himself of any set-ofF properly pleadable by the laws of the state. (5) By simply appearing and pleading, a defendant can not have an attachment dissolved. This can only be effected by giving bond and securit}^ as required by the statute. (/) Forthcoming bond, etc. — The statute provides, that "the officer serving the writ shall take and retain the custod}" 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 security 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 return such bond to the court in which the suit is brought, on the first day of the term to which such attachment is returnable." (ic) Bona or recognizance to cover the judgment, etc. — The statute further provides, that " any defendant in attach- mentj 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 sum 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 defendant will pay the plaintiff the amount of the judgment and costs which may be rendered against him in th it suit, on a final trial, within ninety days after such judgment shall be rendered. In term time, a recognizance, in substance as aforesaid, may be taken in open court, and entered of record, in which case the court shall approve of the security and the recognizance made to the plaintiff, and upon a for- {s) I Starr & Curtis' An. Stat. 323; Rev. Stat. (1877) 151. (/■) I Gilm. 187, 531. (") I Starr & Curtis' An. Stat. 316; Rev. Stat. (1877) 148. See 46 111. 504; 71 111. 46; 9 Bradw. 24. 630 ATTACHMENT. Liability of sheriff, etc. — Insufficient bond, etc. feiture of such recognizance, judgment may be rendered and execution issued as in other cases of recognizance. In either case, the attachment shall be dissolved, and the prop- erty 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 season- ably served w^ith a writ of summons." (v) Liability of sheriff for failing to take or return bond. — "If the sheriff shall fail to return a bond taken by virtue of the provisions of this act, or shall have neglected to take one when he ought to have done so, in any attachment issued under any provisions of this act, the plaintiff in the attachment may cause a rule to be entered at any time during the first ten days of the term to which the writ is returnable, requiring the said sheriff to return the said bond ; in case no bond has been taken, to show cause why such bond was not taken. If the said sheriff shall not re- turn the said bond within one day thereafter, or show legal and sufficient cause why the said bond had not been taken, judgment shall be entered up against him for the amount of the plaintiff's demand, with costs of suit; execution may thereupon issue for the same, whenever judgment shall have been entered against the defendant in the attach- ment." {w) Insufficient bond, etc. — "The plaintiff may, at the first term after the return of such bond, except to the sufficiency thereof, reasonable notice of such exception having been given to the sheriff or other officer who took the same, and if, upon Hearing, the court shall adjudge such security in- sufficient, such sheriff shall be subject to the same judg- ment and recoveiy and have the same liberty of defense as if he had been made defendant in the attachment, unless [v) 1 Starr & Curtis' An. Stat. 317; Rev. Stat. (1877) 149. See 2 Gilm. 468 ; 25 111. 2S9 ; 93 111. 77. {w) lb,; Rev. Stat. (1877) 149. ATTACHMENT. 631 Suit on bond, etc. — Feeding animals attached, etc. good and sufficient security shall be given, within such time as may be directed by the court, and execution may issue thereupon, as in other cases of judgment. And whenever the judgment of the plaintiff, or any part thereof, shall be paid or satisfied by any such sheriff, he shall have the same remedy against the defendant for the amount so paid by him as is now provided by law for bail against their principal, where a judgment is paid or satisfied b}^ them." (x) Suit on bond, etc. — "If the plaintiff shall not except to the bond taken by the sheriff, as aforesaid, or the excep- tions are not sustained, and such bond shall be forfeited, the plaintiff in the attachment may bring suit thereon in his own name, the same as if such bond had been assigned to him, and judgment shall be given for the plaintiff' against the obligors in the bond for the value of the property, or if the property is greater than the amount due upon the execution, then for the amount due and costs of suit." (j) Feeding animals attached. — "When any sheriff' or other officer shall serve an attachment on horses, cattle or live stock, and the same shall not be immediately replevied or restored to the debtor, such officer shall provide sufficient sustenance for the support of such live stock until the same shall be sold or discharged from such attachment. He shall receive therefor a reasonable compensation, to be ascertained and determined by the court out of which the attachment issued, and charged in the fee bill of such officer, and shall be collectible as part of the costs." {z) Sale of -perishable property, etc. — "When any goods and chattels shall be levied on by virtue of any attachment, and the sheriff' or other officer, in whose custody such {x) I Starr & Curtis' An. Stat. 317-8 ; Rev. Stat. (1877) 149. ( y) lb.; 5 Gilm. 80, (=) lb. 6^2 ATTACHMENT. ^o Interpleader, etc. goods and chattels are, shall be of opinion that the same are of a perishable nature and in o>anger of immediate waste or decay, such sheriff or other officer shall summon three respectable freeholders of his county, who shall ex- amine the goods and chattels so levied on ; and if the said freeholders shall, on oath or affirmation, certify that in their opinion they are of a perishable nature, and in danger of immediate waste and decay, then such goods and chat- tels shall be sold at public vendue, by the sheriff or other officer, he having first advertised such sale at the court house and two other public places in his county at least ten days before the sale : Provided^ such property may be sold upon such notice, less than ten days, as the examiners shall certify will be for the best interest of the parties con- cerned. The money arising from such sale shall be liable to the judgment obtained upon such attachment, and de- posited in the hands of the clerk of the court to which the process shall be returnable, there to abide the event of such suit." {a) Interpleader by a third farty, claiming the -property attached. — "In all cases of attachment, any person, other than the defendant, claiming the property attached, may interplead, verifying his plea by affidavit, without giving bail, but the property attached shall not thereby be re- plevied ; and the court shall immediately (unless good cause be shown by either party for a continuance) direct a jury to be impanneled to inquire into the right of property ; in all cases where the jury find for a claimant, such claim- ant shall be entitled to his costs ; and where the jury find for the plaintiff in the attachment, such plaintiff shall re- cover his costs against such claimant. If such claimant is a non-resident of the $tate he shall file security for costs as in case of non-resident plaintiff." {b) [d] I St.irr & Curtis' An. Stat. 318; Rev. Stat. (1877) 149; I17 111. 330. (/;) I Starr & Curtis' An. Slat. 322; Rev. Stat. (1877) 151. See 12 111. 93; 68 111. 348; 89 111, 469; 113 111. 654; 18 Bradw. 430, 491. ATTACHMENT. 633 Iiitci'pleader, etc. — Attachments in aid of suits, etc. No. 297. Pica by a third person ^ claiming the ^ro^e7'ty. In the Court. Term, 18—. A. B. ^ vs, > Attachment. C. D. 3 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," de- scribing them,) attached and seized by virtue of the said writ of attachment, 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.) Attachments in aid of suits. — "The plaintiff in any action of debt, covenant or trespass, or on the case upon promises, having commenced an action by summons or capias, may, at any time pending such suit, and before judgment therein, on filing in the ofiice of the clerk v%' here such action is pending a sufficient bond and affidavit show- in Trespass. C. D. 3 The said A. B., plaintiff, makes oath and sa3'S, that {here set forth the nature and cause of the action., -with the substantial facts in relation thereto^. And this affiant further says, that the amount of his damages can not be definitely stated, but he believes he has sus- tained damages in this behalf to the amount of dollars. And this affiant fui-ther says, that the said C. D. {here set forth the cause for the attachment.^ And this affiant further says, that the place of residence of the said C. D. is {or "is unknown to this affiant, and upon dil- igent 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. fudge's or masters 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 at- tachment issue for the sum of dollars. {Date.) R. S., 'Jads;e. To L. M., Clerk, etc. 676 ATTACHMENT. Judgment when there is no personal service, etc. — Division of proceeds, etc. 'Judgment when the defendant is not personally served, etc. — "When the defendant shall be notified as aforesaid," (by advertisement,) " but not served with process, and shall not appear and answer the action, judgment 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 sum than appears, by the affidavit of the plaintiff, to have been due at the time of obtaining the attachment, with in- terest, 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 defend- ant in any subsequent suit." {d) Sale of property on execution. — "The property attached ma}^ be levied upon by execution issued in the attachment- suit, whether in tiie hands of the officer or secured by bond as provided in this act, and shall be sold as other property levied upon by execution." {e) Division of proceeds, etc. — "All judgments in attach- ments against the same defendant, returnable at the same term, and all judgments in suits by summons, capias or attachment against such defendant, recovered at that term or at the term when the judgment in the first attachment upon which judgment shall be recovered is rendered, shall share pro 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 re- moving 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 {d) I Starr & Curtis' An. Stat. 324; Rev. Stat. (1877) 152; 35 111. 150. {e) lb. See 77 111. 618. ATTACHMENT. 637 Division bj sheriff — Proceeds brought into court — Garnishment, etc. of his hands, for the pm-pose of defrauding his creditors, the court may allow the creditor or creditors through whose diligence the same shall have been secured a prior- ity over other attachment or judgment creditors." {f) Division by the sheriff, etc. — "Upon issuing execu- tions 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 pro- ceeds 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." {g) Proceeds brought into court. — "The court may, at any time before the proceeds of any attached property have been paid over to the judgment creditors, 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 provides, that "whenever a judgment shall be rendered by any court of record, 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, "No 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 (/) I Starr & Curtis' An. Stat. 335; Rev Stat. (1877) 152, 82 111. 157, 19 111 608; 13 Bradw. 573; 114 111. 483: 113 III. 47; 21 111. App. Ct. 277. (g) I Starr & Curtis' An. Stat. 327; 2 Giim. 464; loS 111. 3S5; 115 111. 390. [h) lb.; 19 Bradw. 581 ; 92 111. 221 ; 117 111. 330. 638 ATTACHMENT. Affidavit for process of garnishment — Service and return of summons, etc property within the knowledge of such affiant, in his pos- session, 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 appear before said court or justice, as a garnishee ; and said court or justice of the peace shall examine and proceed against such garnishee or garnishees, in the same manner as is required by law against gar- nishees in original attachments." (i) No. 300. Affidavit for process of garnishment. {Vemie, and title of cause as in No. 2gy, ante, page 6jj.) 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 dollars and costs of suit; that on, etc., an execution was issued on said judg- ment, and delivered to the sheriff of said county, it being 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 affiant's knowledge, liable to ex- ecution; and affiant has just reason to believe 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 siimmov.s. — "Such garnishee-sum- mons, 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 (?) Rev. Slat. (1877) 529 J 72 HI. 487 ; ^9 B»-advv. 185 ; 20 Bradvv. 297. ATTACHMENT. 6sg Interrogatories and answers, etc.. 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." (j) Interrogatories and answers. — "When any person is summoned as a garnishee upon any process of attachment or garnishee-summons issued out of a court r>f record, the plaintiff shall, at or before the term at which the garnishee is bound to appear, or within such further time as the court shall allow, exhibit and file all and singular such allega- tions 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, custody 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 jecome due ; and it shall be the duty of every garnishee to exhibit and file, under his oath or affirmation, 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 suc- ceeding 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 ex- hibited and filed ; but in no case shall the garnishee be compelled to answer before the third day of the return term of the garnishee process." {k) Until interrogatories are filed, and an opportunity is (/) Rev. St.i:. (1877) 529; 64 111. 106; 72 111. 598; 115 111. 294, 350; 18 Bradw. 430. {k) lb.; 78 111.598; 75111. 544, lb. II , 72 111. 81; 70 111. l68; 87 111. lo;. » 640 ATTACHMENT. 1 Interrogatories to garnishees, etc. — Answers of garnishee, etc. 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. 301. Interrogatories io garnishees. In the Court. Term, 18 — . A. B. ^ vs. > Assumpsit. C. D. 3 Interrogatories to be answ^ered by G. H., J. K. and N. O., respectively, as garnishees in this be- half: 1 . Are 3'^ou acquainted with the parties plaintiff and de- fendant 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, 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 3'ou 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. ? If yea, set forth fully and particularly for what, how, and to what amount you were or are so in- debted to him. {Add such interrogatories as the circumstances may require.^ E. F., Attorney for Plaintiff. No. 302. Answers of garnishee. In the Court. Term, 18— A. B. ^ vs. > Assumpsit. C. D. ) The answers of G. H. to the interrogatories propounded to him, as garnishee in this behalf, by the said A. B., plaintiff: I. To the first interrogatory, the said G. H. answering says, that {Jiere insert the matter of the answer.) (/) 19 111. 293 ; 31 III. 141 ; 115 ill- 63 ; 20 Bradw. 133. 11 ATTACHMENT. 641 Plaintiff may contest answer, etc. 2. To the second interrogatory, the said G. H. answer- ing sa3's, that, etc. [Ansivcr all the interrogatories in succession^ and add affidavit asfollozvs:) In the Court. A. B.^ vs. y Asstwipsit. C. D. j 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, (w) Plaintiff may contest the answer. — "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 due, the court or justice of the peace shall im- mediately (unless the case shall for good cause be con- tinued) proceed to try such cause, as against such gar- nishee, without the formality 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 if 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 osts against the plaintiff. And in case the garnishee (w) 17 111. 45y, 587 ; 115 l!l. 63, 390 ; II Bradw. 525. 41 642 ATTACHMENT.. Garnishee may deduct demands, etc. admits indebtedness to the judgment debtor, he shall not be liable for costs." {n) The answer of a garnishee will be considered as true until it is contradicted or disproved, (o) It however only makes a case prima yacic for the garnishee, and may be overcome by preponderating testimony, (p) If it is vague and evasive it will be construed most st'-ongly against the garnishee ; {(/) but although it may not be strictly sufficient, it will prevail, unless exceptions are taken to it by demurrer or otherwise, (r) 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. (5) Garnishee may deduct demands^ etc. — The statute pro- vides, 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 the time due or not,) and whether by way of set-off on a trial, or by the set-off of judgments or executions be- tween 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 unliquidated damages for wrongs and injuries : Provided, that the verdict or finding, as well as the record of the judgment, shall show in all cases, against which party, and the amount thereof, any set-off shall be allowed, if any such shall be allowed." (/) (n) I Starr & Curtis' An. Stat. 1223; Rev. Stat. (1877) 530; 10 Bradw. 525. {0) 12 111. 358; 1 Gilm. 584; 40 111. 402. See 70 111. 168; 61 III. 26; 85 lU. '521 ; 82 111. 295 ; 88 111. 43; 92 111. 229. (/) I Gilm. 86; 13 111. 697; 12 111 358; 115 111. 390. {(]) 46 111. 293 ; 96 111. 580. (r) 48 111. 402. {s) 40 111. 150. (/) I Starr & Curtis' An. Stat. 1225; Rev. Stat, (1877) 530; 27 111. 352; I Bradw. 399. ATTACHMENT. 643 Other claimants to effects in hands of garnishee, etc. 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 property be3'ond their reach, by depositing it with another person, to be held nominally for future services or advances, (u) Where property has been placed in the hands of a per- son, to secure him against loss by reason of his becoming surety for another, such property is a pledge, and the per- son to whom it is pledged may retain it until his liability as a surety is extinguished, (v) A garnishee can not protect himself by merely answer- ing that whatever debt he owes, or may owe, was assigned before the service of process on him. The good faith of the assignment 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 garnishee would be a defense to any suit brought against him by such assignee, {w) Other claimants of effects in the hands of garnishees. — "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 assignment from the defendant, or otherwise, the court or justice of the peace shall permit such claimant to appear and maintain his right. If he does not voluntarily appear, notice for that purpose shall be issued and served on him in such manner as the court or justice shall direct. "If such claimant apjiears, he may be admitted as a ]xirty to the suit, so far as respects his title to the property. (u) 46 111. 293. (r) 1 Gilm. 86. See 52 111. 370, 96 III. 389. (w) 24 111. 320. See 2 Bradw. 162; 86 111, 233; 73 111. 469. 644 ATTACHMENT. Garnishee may contest proceeding — What is subject to garnishment, etc. in question, and may allege and prove any facts not stated or denied by the garnishee, and such allegations shall be tried and determined in the manner hereinbefore provided. If such person shall fail to appear after having been served with notice in the manner directed, he shall nevertheless be concluded by the judgment in regard to his claim." (a-) Garnishee 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, (j) What IS subject to garnishment. — Equitable interests in choses in action can not be reached by process of garnish- ment ; {z) nor can there properly be such process against a debtor of a garnishee against whom an execution has been returned "no property." {a) 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. {IS) Thus money in the hands of a sheriff, which has been made on execution, or received in redemption of land sold on execution ; [c] or money in the hands of a school-treasurer, and due to a school- teacher ; {d) or money in the hands of the clerk of a court, (^) or an administrator, — (/*) can not be reached by process of garnishment. But whenever 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 (jc) I Starr & Curtis' An. Stat. 1225 ; Rev. Stat. (1877) 531 ; 86 III. 233; 6 Biadw. 216. {y) 12 111. 358, See 25 111. 63 ; 29 111. 9; 19 Bradw. 185. (s) 15 III. 89. See 12 111. 170; 16 111. 385; 49 111. 522. (a) 54 111. 319; 19 Ala. 135. See 87 111. 107. [U) 43 111. 112 ; 59 111. 21 ; 64 111. 376. (c) 12 111. 358; 33 111. 510; 47 111. 235; 3 Scam. 4575 17 VU 193; 8 Mass. 246 ; 3 Cal. 363 ; I Ohio, 275 ; 89 111. 469. {d) 43 111. 112; 10 N. H. 96; 59 111. 21. (e) 7 Humph. 132. (/; 10 Miss. 374; 2 Bradw. 162. '^g) 47 111. 235; 38 111. 510; 43 111. 112; 12 111. 35S. ATTACHMENT. 645 Non-resident garnishees, etc. surplus in a sheriff's hands, after satisfying an execu- tion ; {h) or where a special master holds funds which have been ordered by the court to be paid to the debtor. (/) A municipal corporation is not liable to the process of garnishment, no matter what may be the character of the debt ; and where such a corporation is summoned as a gar- nishee, it may be discharged on mere motion, and without answer, at any time after process served. (/) But a pri- vate corporation, unlike a municipal corporation, being created lor private purposes, assumes the same duties and liabilities as a private individual, {k) The wages of a defendant, being the head of a family, to an amount not exceeding fifty dollars, is exempt from garnish- ment. "No person shall be liable as a garnishee by reason of having drawn, accepted, made or indorsed 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." {m) A stockholder in an incorporated company, who owes the company unpaid stock, upon which a call has been made and notice given, is liable to be garnisheed on a judgment recov- ered against the company. («) Non-resident garnishee. — " If any garnishee shall be- come a non-resident, or shall have gone out of this state, or is concealed within this state so that the scire facias can not be served upon him, upon the plaintiff or his agent filing affidavit, as in cases of non-resident defendants in attach- ment, such garnishee may be notified in the same manner (/z) 12 III. 358 J 12 Bradw. 450. (0 47 HI. 23s. (y) 45 111. iii\ 25 111. 595; 8 Md. 102 ; II Mo. 59; 64 Til. 376; 12 Bradw. 450 ; I Bradw. 399. {k) 45 111. 133; 2 Bradwell, 360 ; 81 111. 534. (/) Laws 1879, p. 176; Bradwell's Ed. 135. (w) 1 Starr & Curtis' An. Stat. 1226; Rev. Stai. (1S77) 531 ; 78 11'. 598. (n) 89 111. 48. 646 ATTACHMENT. Conditional judgment, etc. — Final judgment, etc. as such non-resident defendants, and upon such notice being given he may be proceeded against in the same manner as if he had been personally served with such scire facias.^'' {n) Conditional Judgment. — "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 jus- tice of the peace, and shall fail to appear or make dis- covery, as by this act required, the court or justice of the peace may enter a conditional judgment against such gar- nishee for the amount of the plaintift''s demand, or judg- ment 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 judg- ment 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 judg- ment, to the amount of the judgment against the original defendant, and award execution for ihe same and costs. If such garnishee shall appear and answer, the same proceed- ings may be had as in other cases." [o) Pinal judgment . — " No final judgment shall be entered against a garnishee in any attachment proceeding until the plaintifl" shall have recovered a judgment against the de- fendant in such attachment." (^) In a case whe^-e service had been had on the garnishee, a conditional judgment rendered, interrogatories filed, a scire facias serwed^ and, the garnishee failing to answer, (;?) I Starr & Curtis' An. Stat. 1224; Rev. Stat. (1S77) 530. [0) lb. See 75 111. 544 ; 72 111. 487 ; 59 111. 139 ; 85 111. 521. (/) I Starr & Curtis' An. Stat. 1225 ; Rev. Stat. (1S77) 531 ; 9 Bradw. 362. ATTACHMENT. 647 Death of garnishee — Effect of judgment — When debt is not due, etc. final judgment was rendered, it was held that it was dis- cretionary in the court to set aside the judgment, and a re- fusal to do so could not be assigned for error, {q) The proper practice, in respect to garnishees, is to enter a judgment against the garnishee, in favor of the defend- ant in the attachment or execution, for the benefit of such attaching and judgment creditors as are entitled to share in the proceeds. If the judgment exceeds what is due to such creditors, the excess will be for the benefit of the defendant in the attachment or execution, (r) Death of garnishee — representative made -party. — "In case of the death of a person served as garnishee, his ex- ecutor or administrator may be made a party, and notified, unless his appearance is entered, as in the case of the death of a defendant, and the cause may proceed against him as personal representative of the deceased." (s) Effect 0/ judgment against garnishee. — "The judgment against a garnishee shall acquit him of all demands bj^ the defendant for all gopds, effects ^nd credits paid, delivered or accounted for by the garnishee by force of such judg- ment. " If the person summoned as garnishee is discharged, the judgment shall be no bar to an action brought against him by the defendant for the same demand." (/) When debt is not due, execution stayed. — " When judg- ment is rendered against any garnishee, and it shall ap- pear that the debt from him to the defendant is not yet due, execution shall not issue against him until twent}' days after the same shall become due, unless the party asking the same, or his agent, shall make oath that he believes [q] 34 111. 459. {r) II III. 511 ; 26 111. 50; 75 111. 544; 78 111. 598; 86 III. 233. {s) I Starr & Curtis' An. Stat. 1226; Rev. Stat. (1877) 531 ; 6 Bradw. 216 (/) lb.; 79 111. 2S4; 81 111, 446. See 21 111. App. Ct. 277, 648 ATTACHMENT. Goods in garnishee's hands to be given up, etc. the debt will be lost unless execution issue forthwith, in which case execution shall issue as soon as said debt to de- fendant is due ; but no sale of property, under such execu- tion, shall take place until after the expiration of twenty- days from date of judgment." (?^) Goods, etc., in garnishee's hands to be given up, and sold, etc. — " When any garnishee has any goods, chattels, choses in action, or effects other than money, belonging to the defendant, or which he is bound to deliver to him, he shall deliver the same, or so much thereof as may be necessary, to the officer who shall hold the execution in favor of the plaintiff in the attachment suit or judgment, which shall be sold by the officer, and the proceeds ap- plied and accounted for in the same manner as other goods and chattels taken on execution. "When it shall appear that such goods, chattels, choses in action or effects in the hands of a garnishee are mortgaged, or pledged, or in any wa}^ liable for the payment of a debt to him, the plaintiff may Ije allowed, under an order of the court or justice of the peace for that purpose, to pay or tender the amount due to the garnishee ; and he shall thereupon deliver the goods, chattels, choses in action and effects, in the manner before provided, to the officer who holds the execution. "If the goods, chattels, choses in action or effects are held for any purpose other than to secure the paj^ment of money, and if the contract, condition, or other thing to be performed, is such as can be performed by the plaintiff without damage to the other parties, the court or justice of the peace may make an order for the performance thereof by him. Upon such performance or a tender, the gar- nishee shall deliver the goods, chattels and effects in the manner before provided, to the officer who holds the exe- cution. [it) I Starr & Curtis' An. Stat. 1226; Rev. Stat. (1877) 531 ; 12 Bradw. 450. ATTACHMENT. 6^9 Goods in garnishee's hands to be given up, etc. "All goods, chattels, choses in action and effects re- ceived by the officer under either of the two preceding sections, shall be sold and disposed of in the same manner as if they had been taken on an execution in any other mfinner, except that from the proceeds of the sale the officer shall repay the plaintiff" the amount paid by him to the garnishee for the redemption of the same, with interest thereon, or shall indemnify the plaintiff" for any other act or thing by him done or performed pursuant to the order of the court or justice of the peace for the redemption of the same. "When it shall appear that any garnishee has in his hands, or under his control, any goods, chattels, choses in action or effects, belonging to or which he is bound to de- liver to ihe defendant, with or without condition, the court or justice of the peace ma}^ make an}^ and all proper or- ders in regard to the deliver}'" thereof to the proper officer, and the sale or disposition of the same, and the discharging of any lien thereon, and may authorize the garnishee to sell any sujh property, or collect any choses in action, and account for the proceeds thereof; or, if the proceeding be in a court of record, the court may appoint a receiver to take possession of and sell, collect, or otherwise dispose of the same, and make all orders in regard thereto which may be necessary or equitable between the parties. "If any ga»*nishee refuses or neglects to deliver any goods, chattels, choses in action or effects in his hands, when thereto lawfully required by the court or justice of the peace, or officer having an execution upon which the same may be received, he shall, if the proceeding be in a court of record, be liable to be attached and punished as for a contempt, or the court may enter up judgment for the amount of the plaintiff"'s judgment, and award execution thereon against the garnishee ; or, if the proceeding be before a justice of the peace, be liable to the plaintitV for 650 ATTACHMENT OF WATER CRAFTS. For what liens given. the full amount of his judgment against the defendant, and judgment may be entered against him therefor. " Nothing contained in this chapter shall prevent the garnishee from receiving [selling] anj'- goods, chattels, choses in action or effects in his hands for the payment of any • demand for which they are mortgaged, pledged, or otherwise liable, at any time before the amount due to him is paid or tendered, if such sale would be authorized as between him and the defendant." {v) Costs in proceedings against garnishees. — "The court or justice of the peace may order the costs of the proceed- ings in any garnishment to be paid by the plaintiff, or out of the effects and credits garnisheed, or by the garnislree, or may apportion the same as shall appear to be just and equitable. The garnishee shall be entitled to fees, the same as witnesses before the same courts in civil cases." [tv) Attachment of Water Crafts. For zuhat liens given. — The statute of Illinois {a) provides (§ i), "That every sail vessel, steamboat, steam dredge, tug boat, scow, canal boat, barge, lighter, and other water crafts of above five tons burthen, used or intended to be used in navigating the waters or canals of this State, or used in trade and commerce between ports and places within this State, or having their home port in this State, shall be subject to a Hen thereon, which lien shall extend to the tackle, apparel and furniture of such craft, as follows : First — For all debts contracted by the owner or part OAvner, master, clerk, steward, agent or shipshusband of such craft, on account of supplies and provisions furnished for the use of such water craft, on account of work done or services ren- dered on board of such craft by any seaman, master, or other employee thereof, or on account of work done or materials furnished by mecnanics, tradesmen or others, in and about the («) I Starr & Curtis' An, Stat. 334; Rev. Stat. (1S77) 155; 34 III. 4S1; 102 111. 249; 105 111. 462; 107 III. 606. ATTACHMENT OF WATER CRAFTS. 651 Lien — Limitation — Petition. building, repairing, fitting, furnishing or equipping such craft. Second — For all sums due for wharfage, anchorage or dock hire, including the use of dry docks. Third — For sums due for towage, labor at pumping out or raising, when sunk or disabled, and to shipshusband or agent of such water craft, for disbursements due by the owner on account of such water craft. Fourth — For all damages arising for the non-performance of any contract of affreightment or of any contract touching the transportation of property entered into by the master, owner, agent or consignee of such water craft, where any such contract is made in this State. Fifth — For all damages arising from injuries done to per- sons or property by such water craft, whether the same are aboard said vessel or not, where the same shall have occurred through the negligence or misconduct of the owner, agent, master or employee thereon ; but said craft shall not be liable for any injury or damage received by one of the crew from another member of the crew." Lien on goods for freight. — The statute (§ 2) gives a lien upon the goods, etc., shipped upon any such water craft for sums due for freight, advanced charges and demurrage, which may be collected by attachment. (§ 3.) Limitation. — The lien may be enforced at any time within five years ; Provided, no creditor shall be allowed to enforce such lien as against, or to the prejudice of any other creditor or subsequent incumbrancer, or boiia fide purchaser, unless the lien is enforced within nine months. (§ 4.) Petition. — " The person claiming to have a lien may file with the clerk of any court of record of competent juris- diction in the county where any such water craft may be found, a petition setting forth the nature of his claim, the amount due, after allowing all payments and just off-sets, the name of the water craft, the name and residence of each owner known to the petitioner ; and when any owner or his place ot 652 ATTACHMENT OF WATER CRAFTS. Forms of Petitions. residence is not known to the petitioner, he shall so state, and that he has made inquiry and is unable to ascertain the same ; which petition shall be verified by affidavit of the petitioner or his agent or attorney. If the claim is upon an account or instrument in writing, a copy of the same shall be attached to the petition," ^<^' 303- Petition for an attachment against a water craft, {b) In the ■ Court. Term, A. D. 18—. Court of the county of , in To the Honorable the State of Illinois: The Petitioner, A. B., of, etc., respectfully represents — That C. D., who resides at, etc. {^giving the residence), is the owner of a certain water craft of above five tons burthen, called the " ;" is justly indebted to the petitioner in the sum of dollars, after allowing all payments and just off-sets, on account of, etc. {liere ijtsert the nature of the claini)\ for which the petitioner claims a lien upon such water craft, pur- suant to the provisions of the statute of this State. He there- fore prays for an attachment of such water craft. A. B. ss. State of Illinois, County of A. B., on oath states, that the foregoing subscribed, is true in substance and in fact. Subscribed and sworn, etc. petition by him A. B. If the owner or his place of residence is not known to the petitioner, and he has been unable, upon inquiry, to ascertain the same, the following form may be sufficient : No. 304. Petition for attachment against a water craft where the name of the owner is unknown, {Title of court, and address, as in last precedent^ — The petitioner A. B,, of, etc., respectfully represents — That he performed services as an engineer on board of a water craft, named the " Water Witch," from the day of 18—, until the — day of 18—; {or stating any {i>) See I Scam. 150; 55 111. 425; 52 111. 373; 45 111. 504. ATTACHMENT OF WATER CRAFTS. 653 Notice — Intervening creditors. other claim); for which he is justly entitled to the sum of- dollars, after allowing all payments and just off-sets ; that the name of the owner or owners of such water craft, or his or their place of residence is or are unknown to the petitioner; that he has made inquiry and is unable to ascertain the same. That the petitioner claims a lien upon said water craft, and prays for an attachment of such water craft, in pursuance of the statute of this State. ' A. B. {Add affidavit?) (§ 5.) The petitioner, or his agent or attorney, is required to file with the petition a bond in at least double the amount of the claim, as required by the statute. The 6th section of the statute provides for the issuing of attachment. The 7th section prescribes the form of the writ, and the 8th section directs how the writ shall be executed and returned. (§ 9.) " Whenever any such writ shall be issued and served, no other attachment shall issue against the said water craft, unless the first attachment is discharged, or the vessel is bonded." Notice by publication. (§ 10.) " Upon return being made to such court, unless the vessel has been bonded, as hereinafter provided, the clerk shall immediately cause notice to be given, in the same manner as required in other cases of attach- ment." [b) The notice shall contain, in addition to that required in other cases of attachment, a notice to all persons to intervene for their interests on a day certain, or that said claim will be heard ex parte,'" Intervening creditors. (§ ii.) "Any person having alien upon or any interest in the water craft attached, may inter- vene to protect such interest, by filing a petition as herein- after provided, entitled an intervening petition ; and any per- son interested may be made a defendant at the request of (b) See ante 626. 654 ATTACHMENT OF WATER CRAFTS. Bonding vessel — Answer, etc. — Default. himself, or any party to the suit, and may defend any petition by filing an answer as hereinafter provided, and giving secur- ity satisfactory to the court, to pay any costs arising from such defense; and upon the filing of any intervening petition, a summons, as hereinafter provided, shall issue ; and if the same shall be returned not served, notice by publication may be given as aforesaid ; and several intervening petitioners rnay be united with each other, or the original, in one notice." By section 12, an intervening petitioner is required to file a bond, as in case of an original attachment. Section 13 pro- vides that intervening petitions may be filed at any time be- fore the vessel is bonded, or if not bonded, before order of distribution. And by section 14, all liens which shall not be filed before sale under decree or judgment, shall cease. Bonding vessel. — Under section 15, the owner, or his agent or attorney, or any person mterested in the craft, desiring a return thereof, by giving proper notice, etc., may bond said vessel and have the same returned. Appraiseinefit — Restitution — Sale. — The owner, etc., may have the vessel appraised under section 16, and by depositing the appraised value, or giving bond, may have restitution, and if such claimant shall decline any such application, or neglect within twenty days to accept the appraisement and make de- posit, or give bond, or if the property seized shall be liable to decay, depreciation or injury from delay, the court may order the same sold, and the proceeds brought into court to abide the event of the suit. By section 17, the clerk is required, upon receiving a bond or deposit, to issue an order of restitution, and under the i8th section additional security may be required from the claimant, if that already given is insufficient, etc., upon proper showing a.nd notice. And the court is authorized to enforce all orders made in reference thereto by attachment for contempt, etc. Anszver — Affidavit of merits — Default. — (§ 19.) " Within three days after the return day of such summons — if person- ATTACHMENT OF WATER CRAFTS. 654.1 Amendments — Judgments, etc. — Distribution. ally served ten days before the first day of the term to which it is returnable, or if not personally served, then within the time prescribed in the published notice — the owner or any person interested adversely to the claims mentioned in the notice, unless on cause shown, further time shall be allowed by the court, shall except demur or file his answer upon oath or afifirmation. The answer shall be full and distinct to each alleo^ation of the petition, but such answer shall not have the effect of a sworn answer in chancery as evidence. At the time of filing an exception, demurrer or answer, an affidavit of the claimant, or his agent or attorney, shall be filed, stating that the claimant has a good defense upon the merits. And in case no such exception, demurrer or answer, together with such affidavit of merits, be filed ivithin the time above specified, the petition- er shall be entitled to a default, and the demand may beproved and judgment rendered as in other cases." Amendments. — (§ 20. Amendments are allowed as in other cases. judgments — Order of sale. — Sections 21 and 22 provide the manner in which judgments shall be rendered. Section 23 and 24 for an order of sale, and the proceedings thereon. And section 25 for the making of a bill of sale and what it shall recite, and its effect as evidence. Distribution. — Sections 26, 27 and 28, relate to the distribu- tion of the money realized by the proceeding : I St. To pay all costs ; 2d, to pay seaman's wages due upon the last two voyages, or if shipped by the month, the last two months ; and 3d, all other claims filed prior to the order of distribution on which decree of judgment has been rendered in favor of complainants, together with whatever balance may be due seamen. The disposition of any surplus or remnants is provided for. As to the constitutionality of the statute, see the authori- ties noted below, [i) (i) 4 Wall. 41 X, 555 ; 46 111. 504; 4 Wheat. 438; 10 lb. 42S; li Pet. 175; 12 How. 457; 20 lb. 296; 119 U. S. 3^8. 654b ATTACHE ENT OF WATER CRAFTS. Conflict of jurisdiction, etc. — Prior liens. Co7iflict of jurisdiction, etc. — Prior Liens. yitrisdiction of State and Federal Courts. — The jurisdiction of the United States District Courts on the lakes and navigable waters connecting the same, is governed by the act of Congress of February 3, 1845, and ^^ not exclusive, but is concurrent with such remedies as may be given by the State laws. A mari- time lien does not arise on a contract for materials and sup- plies furnished to a vessel in her home port ; and in respect to such contracts, it is competent for the State legislatures to create such liens as they may deem just and expedient, not amounting to a regulation of commerce, and to enact rea- sonable rules and regulations for their enforcement. The proceedings by attachment given by the statutes of Illinois against water crafts to enforce liens as provided, have no resemblance to libels in the courts of admiralty, but are of the same character as ordinary suits in attachment. (7) Prior liens. — An attaching or judgment creditor cannot ac- quire any interest or right in the property seized, against the interests of a bona fide lien holder, such lien being prior in time to the levy of the attachment or rendition of the judg- ment. A prior mortgage on a water craft, duly recorded, has precedence of a lien of a material man or an employee, sub- sequently acquired, iji) (J) 62 111. 221 ; 47 111. 335; 46 111. 504; 7 Wall. 624; 57 111. 168; 119 U. S. 388. , [/:■) 62 111. 230; lb. 221 ; 57 111. 168. SCIRE FACIAS. 6:,s Nature of the writ, etc. CHAPTER XIV. SCIRE FACIAS. A scire facias is a writ founded upon some record ; and its office is to make known to the defendant some matter, of which he has a right to be informed, and to afford nim an opportunity to show cause why a certain step should not be taken against him. "The scire facias against a bail, against pledges in re- plevin, to repeal letters patent, or the like, is an original proceeding : but when brought to revive a judgment after a year and a day, or upon the death or marriage of the parties, when in the latter case one of them is a woman, or when brought on a judgment quando, etc., against an executor, it is but a continuation of the original action." [a] In Illinois, the writ is considered both as process and declaration, and defects therein can be reached by demur- rer, {b) Like all other process, it should run in the name of " the People of the state of Illinois," and if it does not it is void on its face : and the objection can be raised by general demurrer, though the more proper mode is by motion to quash the writ, (c) A dissolution of a corporation, for cause of forfeiture, may be effected by scire facias, where such corporation i* a legal, existing body, but has been guilty of an abuse of the power intrusted to it. {d) {a) 2 Bouv. Die. 499. See i T. R. 3S8; Bac. Abr. Ex. H. {l>) I Scam. 231 ; 20 111. 509. See Rev. Stat. (1S77J 737; 16 III. 171 ; 17 111. 172; 78 111. 78; 86 111. 176. (,<:) 20 HI. 509. See 2 Gilm. 670; 5 Gilm. 96. (d) 3 T. R. 132. See 32 111. 110. 42 656 SCIRE FACIAS. To make party to judgment — Against garnishees. To make farty to judgment. — The statute of Illinois provides, that " if a summons or ca-pias is served on one or more, but not on all the defendants, the plaintiff may- proceed to trial and judgment against the defendant or de- fendants on whom the process is served, and the plaintiff may, at any time afterwards, have a summons in the nature of scire facias, against the defendant not served with the first process, to cause him to appear in said court, and show cause why he should not be made a party to such judg- ment; and upon such defendant being duly served with such process, the court shall hear and determine the mat- ter in the same manner as if such defendant had been orig- inally summoned or brought into court, and such defendant shall also be allowed the benefit of any payment or satis- faction which may have been made on the judgment before recovered, and the judgment of the court against such de- fendant shall be that the plaintiff recover against such defendant, together with the defendant in the former judg- ment, the amount of his debt or damages, as the case may be." {c) In Illinois, a writ of attachment may issue in aid of a sci7'c facias to make a person party to a judgment, upon the same terms as in other cases mentioned in the attach- ment-act. {f) A scire facias to make a party to a judgment is not an original action. Such writ may issue at any time, without an order of court, (^g) The plaintiff may wait until -it is found that the amount of the judgment can not be made of the defendant against whom judgment has been ren- dered, {h Scire facias against garnishees. — The statute of Illinois provides, that when any person shall have been summoned {e) 2 Starr & Curtis' An. Stat. 1779; Rev. Stat. (1877) 735; 78 111. 339- (/) I Starr & Curtis' An. Stat. 323; Rev. Stat. (1S77) IS^S 3 Scam, 547- \g) 3 Scam. 499, 547 ; 78 111. 339 ; 9 Bradvv. 383. {h) 26 111. 66. SCIRE FACIAS. 657 To revive judgment. as a garnishee upon any attachment, or other writ issued out of a court of record, and shall fail to appear or make discovery, as required by the statute, the court may enter a conditional judgment against such garnishee for the amount of the plaintiff's demand, or of the judgment against the original defendant ; and thereupon a scire facias shall issue against such garnishee, returnable at the next term of court, commanding such garnishee to show cause why such judgment should not be made final. (/) Scire facias to revive judgment. — A judgment of a court of record may be revived by scire facias^ or an ac- tion of debt may be brought thereon. (/) " Judgment in any court of record in this State may be revived by scire fa- cias, or an action of debt may be brought thereon within twenty years next after the date of such judgment, and not after." {Jc) The act of February 14, 1855, which provided that an administrator de bonis tion, or with the will annexed, might revive, in his own name, a judgment recovered by a deceased executor or administrator, [in) is repealed by the present statute of wills, {n) When a judgment debtor dies after the expiration of the seven years' lien provided by the statute of Illinois, his heirs, to whom his real estate descends, can not be divested thereof except in the mode provided by law, by a proceed- ing to which they are parties. In such case, the creditor may obtain satisfaction of the judgment, out of such real es- tate, in the hands of the heiis, by ^i-oce&dixnghy scire facias 10 revive the judgment, making the heirs parties, and then (?) I Starr & Curtis' An. Stat. 1224; Rev. Stat. (1877) 530- See 75 111. 544; 72 111. 4S7; 9 Bradw. 362 ; 85 111. 521. (7) 3 Bla. Com. 421. See 2 Gilm. 117; 35 111. 326; 3 Biadw. 590. {k) 2 Starr & Curtis' An. Stat. 1559 ; Rev. Stat. (1877) 644; 82 111. 435. (w) Gross' Stat. 811. (n) Rev. Stat. (1877) 969. 653 SCIRE FACIAS. Prcecipe — Writ o? set. fa. to revive judgment. suing out an execution upon the judgment of revival, and having the realty sold, {o) Precipe ^o?' a scire facias to revive a judgment. In the Court. "'■ A. B. ^ vs. /■ Assumpsit. C. D. ) The clerk of the said court will issue a scire facias, against the said C. D., to revive the judgment ren- dered in this behalf against him, in the said court, in ths 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., Attornev for Plaintiff. To L. M., Clerk, etc. No. 305. Scire facias to revive a judgment. The People of the state of Illinois, to the sheriff of the county of , greeting : 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, (^r " the sum of dollars, debt, and the further sum of dollars, damages for the detention thereof," ac- cording to the record^) and also the costs of the said A. B. in that behalf, taxed at the sum of dollars, whereof the said CD. was convicted, as appears to us of record : And now on the behalf of the said A. B. we have been in- formed, that although judgment be 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 besought us to provide him a proper remedy in this behalf We do therefore command you, that you make known to the said CD. that he be before our "said.. Court, at the court-house in -r , in the county afore- said, on the Monda}^ of next, to show cause, if any he have, why the said A. B. ought not to have execu- (o) 35 111. 326; 2 Gilm. 117. SCIRE FACIAS. 659 On mortgages. tion against him the said C. D. of the damages {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 r -, thereof, at aforesaid, this day of , ^ -■ m the year 18 — . R. S. See a scire facias against heirs and terre-tenants, 35 111. 377- It is not necessary that a scire facias to revive a judg- ment should show that no execution issued within one year after the rendition of the judgment, {-p) Where a judgment has been obtained by the People, it is not essential that execution should issue within the year, in order to authorize the issuing of execution after that time, {q) But a scire facias \v\W. lie on such judgment, notwithstanding execution could issue thereon at the same time, ir) Foreclosure of moiigage. — It is provided in section 18 of the chapter entitled "Mortgages," that " If default be made in the payment of any sum of money secured by mortgage on lands and tenements, duly executed ftnd 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 administra- tors, to sue out a writ o{ scire facias from the clerk's office of the circuit court of the county in which the said mortgaged premises 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 (/) 46III. 372. [q) 4 Scam 404 ; 46 111. 372. (T) 46 III. 372. o6o SCIRE FACIAS. On mortgages. 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- fendant in said writ of scire facias the court may proceed to judgment as in other cases, but if sd,\d scire facias be returned nihil, or that the defendant is not found, an alias scire facias may be issued." {s) 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 ; {t) 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 a mortgage duly executed and recorded ; and is not impaired by a destruction of the record, {u) The relation of a mortgagor and mortgagee is not termi- nated by such proceedings until the time of redemption ex- pires and the foreclosure is complete ; nor can the purchaser maintain a possessory action until the expiration of the period for redemption, {v) 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, {vv) The wife of the mortgagor, if she joined in the mortgage, {s) 2 Starr cS: Curtis' An. Stat. 1642; Rev. Stat. (1877J 677. {t) 31 111. 18S ; 44 111. 37; 57 111. 45; 55 111. 376. (?/) 63 111. 181. (z/) 63 111. 424. {vv) 109 111, 103. See I02 111. 14S ; 31 Penn. St. 143. SCIRE FACIAS. 66i Writ of set. fa. on mortgage. should be made a party defendant, in order to bar her equity of redemption and right of dower, {tv) 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. As- signees in bankruptcy, subsequent purchasers and mort- gagees, etc., are bound to take notice of the proceeding, and failing to do so, their rights are not protected, (a:) Two returns of nihil are in general equivalent to a serv- ice ; ( y) and this rule applies in scire facias on a mort- gage, {z) 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 Hen, and is not for the purpose of obtaining a judgment in -personam. The judgment only directs the sale of the mortgaged prop- erty, to satisfy the debt and costs, and is not a lien on an}- other property. (<5) No. 306. Scire facias on a mortgage, {c) The People of the state of Illinois, 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 heirs and assigns, a certain parcel of land, situate in the county aforesaid, to wit, {Jicre (ty) 44 111. 37; I Scam. 475- (*) 26 111. 507 ; 4 Gilm. 57. (j) Yelv. 112; I Cow. 70; 4 Blackf. iSS; 2 Binn. 40; 3 Gilm. 327; 15 111. 440; 19 111. 63; 26 111. 507. See 47 111. 422. {z) Breese, 2S. (rt) 13 111. 543. (c) 14 111. 213; 26 111. 162. See 25 111. 89; 23 111. 4Sa (c) See I J 111. 213; 2 Sc«iii. iS; 20 111. 509. 662 SCIRE FACIAS. Writ of set. fa- on mortgage. describe the land) ; to hav^ and to hold the same, with its appurtenances, unto him the said A. B., his heirs and as- signs, forever ; and did thereby also release unto him and his heirs and assigns all right of homestead of them the said C. D. and E. D, in the said parcel of land ; 3'et 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 the dRte ^rs^ aforesaid, 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 aforesaid, (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 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 nexi, 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 virtue of the said deed : And have you there then this writ. Witness, R. S., clerk of our said court, and the seal P -, thereof, at aforesaid, this day of , '-*'-' in the year 18 — . „ R. o. If the scire fucias is against the heirs, etc., of the mort- gagor, insert, at the asterisk in the above precedent, an averment like the following : "And whereas we are fur- ther informed by the said A. B. that afterwards, to wit, on, etc., the said C. D. departed this life, intestate, leaving him surviving the said E. D., his widow, and F. D. and G. D-, his children and heirs at law; and that O. S. was there- SCIRE FACIAS. 66 o On recosrnizances. upon, by the County Court of the county aforesaid, ap- pointed 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, witliout any direct allegation that the mortgage was ac- knowledged or recorded, {d) If the mortgage-debt is pay- able by instalments, the writ must show that the last instal- ment has become due. {e) 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 obnoxious to a demurrer. [/) No. 307. Another form of scire facias on a mortgage. The People of the state of Illinois, to the sheriff of the county of , greeting ; Whereas on, etc., a certain deed of mortgage was duly recorded in the office of our recorder of deeds for the county aforesaid, which said deed, as appears to us by the record thereof, remaining in the said office, is in these words and figures, that is to say : (^Here insert a copy of the mort- gage-) And whereas we are informed by the said A. B. that de- fault has 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 eflectof the said deed. We do therefore, according to the form of the statute in such case made and provided, command you, [as in the last ■prcccdetit, to the end). On recognizances. — The statute of Illinois provides, that *'in all cases of bail for the appearance of any person or persons charged with any criminal offense, the security or {d) 2 Scam. 17. (e) I Scam. 475 ; 25 111. 89. See 2 Scam. 17. (/) 25 III. 89. See 2 Scam. 17; 14 HI. 213. 664 SCIRE FACIAS. On recognizances. any of them may, at any time before default upon the bond or recognizance, surrender the principal in their exoneration or the principal may surrender himself to the proper 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 by 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 which the same is returnable, and, in case the person aforesaid cannot 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 shall appear and defend such cause ; and if the defendant shall appearand 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 forfeit- ure, upon the accused being brought or coming into court, and showing to the court, by affidavit, that he was unable to appear in court according to the terms of the recognizance, by 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." {a) 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 («) I Starr & Curtis' An. Stat. 837; Rev. Stat. (1877) 393. See 76 111. lOO, 516; 77 111. 493 ; 12 Bradw. 380 ; II Bradw. 346. SlIRE facias. 665 Writ of sci. fa. on recognizance. 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, [b) 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 from 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, (c) No. 308. Scire facias 011 a recognizance made in open court, after indictment found. The People of the state of Illinois, to the sheriff of the county of , greeting : Whereas heretofore, in the term of our Court of the said county of , in the year 18 — , C. D., J. K. and L. M. personally came into our said court, and then and there jointly and severally acknowledged themselves 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 appear 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 the same in the premises, then the said recognizance was to be void, and otherwise to re- main in full force : as by the record of the said recognizance, remaining in our said court, more fully appears. And whereas afterwards, in the term of our said court, in the same year, [being the term next after the making 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 (i) 88 111. 335 ; 9 Bradw. 275. (c) 88 111. 335. 666 SCIRE FACIAS. On recognizances — Observations. 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 bring 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 adjudged by our said court that the said recognizance should be taken 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 b}^ the record and proceedings thereof, remaining in our said court, more fully appears. We therefore command you, 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 for- feited as aforesaid, for the sum of money therein mentioned ; And have 3'ou there then this writ. Witness, R. S., clerk of our said court, and the seal P -| thereof, at aforesaid, this day of , ^ ■ 'J in the year 18 — . R. S. See the cases of Vancilv. The People, 16 111. 120, scire facias on a recognizance taken by a sheriff; Van Blari- cum V. The Peofle^ 11 111. 86, scire facias on a recogni- zance taken by a sheriff on the granting of a supersedeas ; and Gingrich v. The Peo-ple, 34 111. 448, scire facias on a recognizance taken by a justice 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 the surety, where the former had not been served, unless there had been two returns of nihil, or his appearance had been entered, ij) A writ of scire facias upon a recognizance should clearly in 3 Gilm. 337; 15 111. 440; 19 III. 63; 26 111. 507. U) 47 111- 422. SCIRE FACIAS. < 667 Defenses. show before what court the recognizance was entered into, and for what offense the principal in the recognizance was indicted ; also, that a judgment of forfeiture was entered, (k) It must be sufficient on its face to entitle the People to re- cover the amount of the recognizance, or it will be obnox- ious to a demurrer. (/) An indictment need not be set out in such writ, (m) The recognizance may be stated accord- ing to its legal effect, or it may be set out verbatim, leaving the court to decide on its effect. («) Where the recogni- zance 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, [o) 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 principal, {■p) The writ should issue against the principal and the sure- ties, and not against the sureties alone, {q) 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, on demurrer, that the charge was regularly preferred and examined, and the proper adjudication made b}' the justices, before the recognizance was acknowl- edged, if) Defenses to scire facias. — A scire facias is considered, in Illinois, both as a process and a declaration ; and if de- {k) 13 111. 696. See 14 III. 312; 15 111. 418; 20 III. 381 ; 50 111. 196. (0 16 111. 171. {m) 18 111. 405. («) 17 111. 172. (o) 17 111. 252. See 13 111. 9. (/) 39 111. 430; 41 111. 303, 456. But see 10 Bradw. 219. (7) I Gilm. 109; 53 111. 434. See 18 111. 405. (r) 13 111.9. See 15 III. 223. 668' SCIRE FACIAS. Defenses. fect.ive,the defendant may demur, (;) or move to quash the writ, (s) The defendant may plead nul ticl record, which 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 writj/) See the form of this plea in debt, ante. No. 179, and the remarks thereunder. In a plea in bar to a scire facias, (except on a mortgage,) instead of actionem non, etc., the defendant says that the plaintiff ought not to have execution against him, etc. ; and the plea concludes with a prayer of judgment if the plaint- iff 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, {ii) nor anything contrary to the title on which the recovery was obtained, or which shows only that the judg- ment was erroneous or voidable ; (z;) nor can the defendant plead the pendency of a writ of error on the same judg- ment, (w) To a scire facias on a mortgage, the defendant can not plead usury, {x) or a total or partial failure of consideration, or a want of consideration, {y) or fraud, as it is said, {z) or a set-off. {a) So a plea alleging the assignment of the note and mort- gage to a third person, before the issuing of the writ, is not a good plea in bar. {b) "The mortgage, being recorded, is (r) I Scam. 231 ; 20 III. 509. (s) 20 111. 509. See 2 Gilm. 670 ; 5 Gilm. 96. \t) 86 111. 176; 58 111. 26; 21 111. 28; 81 III. 134. («) Cowp. 728; I S.-ilk. 315; 4 Mass. 21S; 12 Mass. 268; 8 Johns. 77. See I Chit. PI. 427; 2 Ohio, 240; 4 Ohio, 397; i Paine, 652. iv) Com. Dig. Plead. 3, L. 10. (w) 4 Mod 247. See, cottlra, Show. S6; Skin. 590. (*) 44 111. 47; 26 111. 162. [y) I Scam. 140; 14 111. 213; 23 111. 4S0; 48 111. 228, {z) 23 111. 480. See 6 ISi^unf. 358; 13 Johns. 430; 5 Cow. e,a6. (a) 14 111. 213. (*) .S5 111- M^- SCIRE FACIAS. 669 Defenses. treated as a record, importing absolute verity, against which nothing in the shape of a defense can be averred, except that it was void ab initio^ and never a valid lien, or that it has been discharged or released." (c) A sch-e facias on a mortgage is not an action, {d) The plea of 11011 est factum is not a good plea to a scire facias^ which is always founded on a record, {e) It may be shown, in defense to a scire facias on a recog- 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 (i) 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 was ordered into another state, where he still remained, under military authority, not at liberty to surrender himself, nor could his sureties arrest and surrender him, in satisfac- tion of the recognizance, and that they could not procure his custody by habeas cor-pus or otherwise ; and (2) that at the time of the taking of the forfeiture, and for a long time before, the principal was, and at all times since had been, in another state, an(J was sick and disabled, insomuch that he could not be removed, or brought and surrendered to the court or any officer by his sureties, without great dan- ger of the loss of his life ; the pleas were regarded as not presenting any good defense. It was held, however, that the same matters, substantially, set forth in an affidavit, showed good grounds for a continuance. (^) In another case, the surety pleaded that the principal was in the service of the United States at the time he was ar- (c) 26 III. 162 ; 21 111 4S0; 44 111. 37. {d) 26 111. 162; 14 111. 213. (c) 31 111. 469; 44 111. 37. (/) Co. Lit. 206, a; Bac Abr., tit. Cond. 2; 12 III. 9; 2 Kelly, 331; 3 Cow. 297; 10 B/adw. 219; ti9 ill. JG4. \s) 34 ni. 44S. 670 SCIRE FACIAS. Defenses. rested; 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. (Ji) But in Illinois, the death of the principal in any recogni- zance, after forfeiture thereof, but before judgment rendered upon the scire facias issued thereon, may be pleaded by the sureties, in discharge of such recognizance, (z*) A plea that the sureties in the recognizance surrendered their principal after the forfeiture thereof, and before the issu- ing of the sire facias thereon, is bad on demurrer. (7) The plea of mil 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, if) {Ji) 39 III. 241 ; 34 III. 448. (/) 12 III. 9; I Starr & Curtis' An. Stat. 84!; Rev. Stat. (1877) 394; 74 I.l. 292. (7) 89 111. 164. {k) Si 111. 134. TilANDAMUS. 671 Nature of the writ — In what cases awarded, etc. CHAPTER XV. MANDAMUS. A WRIT of mandamus is a command issuing in the name of the sovereign authority, from a superior court having jurisdiction, and is directed to some person, corporation or inferior court, within the jurisdiction of such superior court, requiring them to do some particular thing therein specified, whicli appertains to their office and duty, and which the superior court has previously determined, or at least sup- poses, to be consonant to right and justice, (a) 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 dis- cretion is not exercised in favor of the applicant, unless some just and useful purpose may be answered by the writ, ib) 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 justice and good government there ought to be one. (c) It is not generally granted for the purpose of giving an easier or more expeditious remed}^ ; but where (a) 2 Bouv. L. D. lOD; 20 Pick, 4S4; 21 Pick. 25S ; Dudley, 3754 Humph. 437 ; 85 111. 484. [b) 93 111. 133; 100 III. 137; 33 111. 9; 90 111. 150; 51 111. 39. See Tap. on Mand. 165, l66 ; 31 111. 97; 55 111. 178; 15 111. 501 ; 16 111. 547; 120 111. 200; no 111. 180. (0 3 Burr, 1267; I Term, 148; i Pick. 414; 4 Pick. 68; 10 Pick. 235; 7 Mass. 340; 3 Binn. 273; 5 HaUt. 57; Cooke, 160 ; i Wend. 31S; 5 Pet. 190; iCaines, 511; 12 Wend. 1S3 ; 8 Pet. 291 ; 12 Pet. 524; 7 Wheat. 534; 5 Walts, 152; 3 Conn. 243; 3 Bla. Com. iio; 12 East, 429. 43 i 672 MANDAMUS. In what cases awarded, etc. there is no other remedy, (^) being both legal and specific, (n) 735; S6 111. 283. MANDAMUS. 679 Petition. upon transmitted by the said secretar}^ of state to the clerk of the said Circuit Court of the county aforesaid, and was on or about the da}^ of, etc., received by C. D., who then was, and from thence hitherto has been, and still is, clerk of the said court ; and that thereupon the said C. p., as such clerk, on the same day gave notice to the petitioner of the receipt of his said commission. And the petitioner further shows, that within thirty days after receiving the said notice, to wit, on, etc., he entered into a bond, bearing date of that day, with the People of the said state of Illi- nois, with good and sufficient security, in the penal sum of ten thousand dollars, conditioned for the faithful discharge of all the duties required or to be required of him by law, as such sheriff; and that at the term of the said Circuit Court next after the date of the said bond, and within thirty daN's after the petitioner received notice of his said commis- sion as aforesaid, to wit, on, etc., the said bond was [in the said court] duly approved by the Honorable L. M., then judge of the said court ; [as by the record of the said ap- proval, remaining in the said court, more fully appears;] a true copy of which said bond [and of the said approval thereof by the said judge, thereon written,] is hereto annexed, marked Exhibit B, and made a part of this peti- tion. And the petitioner further shows, that afterwards, on the same day, but after the adjournment of that term of the said court, he tendered to the said C. D., so being such clerk as aforesaid, at his office in , in the county afore- said, the bond above mentioned, [with the said approval thereon written,] and offered to take and subscribe before him the oath of office ret[uired by law of sheriffs, and then and there requested the said C. D., as such clerk, to re- ceive the said bond, and to administer to the petitioner the said oath of office, and to file and record the said oath and bond, and to certify the taking and subscribing of the said oath on the back of the said commission, and to deliver the said commission to the petitioner: Yet the said C. D., so being such clerk as aforesaid, then and there wholly re- fused, and still refuses, to receive the said bond, or to administer to the petitioner the said oath of office, or to file and record the said oath and bond, or to certify the taking and subscribing of the said oath on the back of the said commission, or to deliver the said commission to the peti- tioner : By means whereof, the petitioner is prevented 6S'o MANDAMUS. Petition. from entering upon and exercising the duties of the said office of sheriff, and is kept out of the said office, to which he is justly and lawfully entitled. Wherefore the petitioner prays a w\-\i oi mandamus , directed to the said C. D., com- manding him forthwith to receive the said bond, and to administer to the petitioner the said oath of office, and to tile and record the said oath and bond, and to certify the taking and subscribing of the said oath on the back of the said commission, and to deliver the said commission to the petitioner ; and that such further order may be made in the premises as justice may require, etc. (^) A. B. State of Illinois, > County of , 5 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 be- lief.(^) A. B. Subscribed and sworn, etc. See the substance of a petition for a mandamus to com- pel a municipal corporation to pay the amount of a judg- ment obtained against it, 50 111. 160 ; the substance of a petition for a manda^mis to compel a county clerk to make out and deliver a certificate of election, 29 111. 413 ; a pe- tition for a writ to compel a municipal corporation to com- plete 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 proportion of taxes to be paid to the city, 25 III. 187 ; to compel the auditor to allow damages on protested bank-bills, out of the proceeds of stocks sold on the wind- ing 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 the entering of special bail, Moses on Man- (^) 2 Scam. 483. (jjr) Mos. Mand. 23S, 241 ; 14 How. U. S. 3. i MANDAMUS. 6Si Proceedings, etc. — Defenses. damus, 237 ; to compel a city council to pass an order on the treasurer, Id. 239. Proceedings^ etc. — By the tenth section (above quoted) of the Illinois practice-act of 1872, the issuing of an alter- native writ of mandamus, setting out the cause of action, is in effect dispensed with ; and it is sufficient "to summon the defendant in a summons in the usual form, command- ing the defendant to appear and answer the plaintiff in an action of inandainus ;''' and the issues are to be made up " by answering, pleading or demurring to the petition as in other cases." (r) Before this statute, the petitioner was required to give notice of the application ; and if the petition 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 ; (5) and if the defendant neglected to make any answer or return to the alternative writ, a per- emptory writ would issue, without any rule against him \.o return the alternative writ. (/) DEFENSES. The Illinois practice-act, as above mentioned, provides that the issues in "an action of mandamus^^ shall be made up "by answering, pleading or demurring to the petition as in other cases." {ti) For demurrers, see the forms in Assumpsit, anic., P^^g'- 268. (r) 2 Starr & Curtis' An. Stat. 17S0; Rev. Stnt. (1877) 735 ; 7 Ciadw. 231. («) See 12 111. 248; 33 111. 9; 15 111. 492; 93 111. 133. [t) 2 Scam. 203 ; 3 Scam. 283. («) 2 Starr & Curtis' An. Stat. 1780; Rev. Stat. (1S77) 657. 682 MANDAMUS. Answer. AnsTvc?' or -pleas. — The answer or pleas to the petition, under the practice in Illinois, take the place of the return to the alternative writ of mandamus formerly required ; and the same general rules governing a return are applicable to answers or pleas. The answer or 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 dis- tinctly ; and if instead of stating facts, the pleading merely sets out or refers to matters of evidence from which these facts are inferred, it is objectionable, {y) And every in- tendment will be made against an answer or plea which is not responsive to the important allegations of fact contained in the petition, {w) It is not sufficient to aver conclusions of law. {x) If an answer or plea is insufficient, the relator may de- mur ; (j) but a demurrer admits the truth of the matters set forth in the answer or plea, {z) No. 310. Answer 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 writ 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 answering, says, that {here deny, or confess and avoid, or admit, some other matertal allegation of the petition; and proceed in this manner until the whole petition is answered). (v) Moses on Mand. 210; 10 Wend. 20; 35 Barb. 105; 37 Penn. S. R 237; 7 Clarke, (Iowa,) 390; i Serg. & Rawle, 254. (xy) 15 111. 492; 51 111. 191; Tap. Mand. 349, et seq. {x) 51 111. 191. (y) Moses on Mand. 214; 14 Ohio, 252. (^r) 47 111. 256. MANDAMUS. 68' Plea. Wherefore the defendant prays the judgment of the court here, whether the petitioner ought to have a writ of man- damus in this behalf; and that he, the defendant, may be hence dismissed, with his costs, etc. m C. D. IV 0. 311. Plea to a petition for a mandamus. In the Circuit Court. Term, 18—. C. D. I ats. ^Proceeding for mandamus. The People, etc., ex rel. \ A. B. j And the defendant, by E. F., his attorney, comes and defends, etc., and says that the petitioner ought not to have a writ of mandamus against him, the defendant, in this behalf, because he says, that [here set forth the subject-matter of the defense. If the -plea merely denies an allegation of the petition, conclude to the country. If it sets tip nezv matter, conclude — "And this the defendant is ready to verify ; wherefore he prays judgment if the petitioner ought to have a writ of manda- mus 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 tiaversed, or defenses to be pr'-'iented. 684 0]JO WARRANTO. Nature of the writ, etc. CHAPTER XVI. QUO WARRANTO. Quo WARRANTO is the name of a writ issued n the name of the people or government, against any person or corporation that usurps any franchise or office, command- ing 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 war- rant" he claims the franchise or office mentioned in the writ, (a) By the fiction of the feudal law, the king, as the head and visible representative of the community, was consid- ered not only as the ultimate proprietor of all the land in the kingdom, but the 'fountain from whence all public fran- chises were derived ; 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 prerogative ; and if a fran- chise 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 in- formations in the nature of a (/no zvarranto at the common law. ib) {a) 3 Bla. Com. 262, 263 ; 4 Term R. 381 ; 2 Bouv. L. D. 417 ; 5 Wheat 291; 15 Mass. 125; 5 Ham. 35S; i Miss. 115; Ang. & Ames on Corp., sec. 731. (3) Ang. & Ames on Corp. sec. 731; 2 Bouv. L. D. 417. Sec 3 Bla, Com. 262, 263 QUO WARRANTO. 685 Proceeding by information — In what cases it lies, etc THE PROCEEDING BY INFORMATION. An information in the nature of a quo ivarranto is under- stood to be in form a criminal proceeding, {c) and can be resorted to only in cases where the public, in theory at least, has some interest, {d) Though a criminal proceeding in form, yet in substance it is but a civil one. (^) In -what cases this information lies, etc. — The usual object of an information of this nature is to call in question the title to an office or franchise claimed and exercised by the defendant, because of some alleged defect in such title ; as for instance, that at the time of the election of the de- fendant to an office, he was disqualified to be elected ; or that the election itself was void or irregular ; or that the defendant was not duly elected, or not duly appointed ; or that he has not been duly sworn in, or has been otherwise unlawfully admitted ; or that he has since become disqual- ified, 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, {g) Where a person is in office by color of right, the remedy is not b}' mandamus to admit another having lawful claim, but by information in the nature of a qtco warranto. (Ji) This information will lie against a corporation or an indi- [c) II III. 552; 13 111. 66; 15 111. 417; 21 111, 65; 116 111. 493. ((/) 21 111. 65; 17 111. 191 ; 114 III. 34 ; 100 Hi. 464, {e) 2 Term R. 484; 2 Kyd on Corp. 439 ; I Serg. & Rawle, 385 ; 13 111. 66. (/) 21 111. 65; 55 III. 33; 70 111. 25; 47 III- 3S4; 4 Seld. (N. Y.) 671 ; 77 111. 52 ; 92 111, 406, {g) 21 111. 65. See 15 111, 217; 20 La, An. 114; i Aik. 513, 552; 15 Johns. 358; 18 Bradw. 588. {h) Breese, 104; 2 Scam. 487 ; I Gilm. 671 ; 17 111. 167; 3 Johns. Cas. 79; 2 johns. 190; 4 Cow, loi, n. See I team. 215; 55 111. 172; 2 Ilalst. 101. 636 QUO WARRANTO. When the information will be granted. vidual ; (/) and against officers appouited by the executive, as well as those holding corporate offices or franchises. {J) Where an incorporated company carries on banking opera- lions, without authority from the legislature, this informa- tion lies ; {k) and it is a proper mode of testing the question of the forfeiture 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 bv information in the nature of a quo warranto, {in) Where a part is attempted to be taken from a school dis- trict and added to another, the legality of the change can be tested by quo zvarranto. (a) When leave to file this information will he granted. — It is not granted of course, but depends on the sound dis- cretion of the court upon the circumstances of the case. (;/) It will usually be granted, where the right, or the fact on which the right depends, is disputed and doubtful ; [p] or where the right turns upon a point of new or doubtful law ; {f) or where there is no o:her remedy, {q) It does not seem to be a reason for refusing an informa- tion, that the objection to the defendant's title arises from a defect in the title of some other person, through whom he claims, provided the application is made within proper time ; (r) for it is admitted that where judgment of ouster has been given against a person through whom a title i'-. claimed, that may be a reason for granting an information to impeach the derivative title ; and that the title of the de- fendant may be impeached by an issue introduced on th<3 (/ ) Cas. K. B. 225 ; Bull. N. P. 212. See 5 Mass. 230. (/) 10 Mxss. 290; 21 Mass. 339; 84 111. 162; 61 111. 405; 18 Bradvv. 627. {k) 15 Johns. 358; lOI 111. 308. (/) 32 111. 82; 15 Wend. 113; 23 Wend. 222; 3 Term R. 132. See 6 B. Mon. 397 ; I Zahr. 9 ; 6 Cow. 217. {ni) 22 Iowa, 75. See 20 Bradw. 56S. [a) 87 111. 41 ; 75 111. 561 ; 84 111. 162 ; loi 111. 30S. («) 70 111, 25; 83 111. 128; 88 111. 537; 114 111. 34. {o) 3 Burr. 1485 ; I Bl. Rep. 46S. (/) Cowp. 58 ; Doug. 397 ; 4 Cow. 102. \q) Cas. K, B. 225 ; Bull. N. P. 212. {r) 8 Mod. 216. QUO WARRANTO. 6S7 When the information will be granted. record, respecting the title of the person under whom he claims, though the latter has not been ousted on an infor- mation filed against him. (5) It may, or may not, be pos- sible to impeach the original right on which the derivative title depends, by an information filed against the person who claimed to exercise that right. Whatever may be the case, where that may be done, but in fact has not been done, it has been decided that where it can not be done, the original right may be impeached in an information against the person whose derivative title depends upon it. (i) It is no objection to an information against an alder- man, that the relators who opposed the election afterwards made no opposition to his election to the principal office of magistracy, which required that the defendant should be an alderman, as a qualification for the higher office ; or that they attended at, and concurred in, corporate meetings, whereat he presided or attended in his official capacity, (zt) Nor is it an objection, that the relators in an information which would operate, in its effect, to dissolve the corpora- tion, attended corporate meetings at which the mayor was elected, whose election they impeach on the ground that the corporation was dissolved by the loss of an integral part ; and that they voted for another candidate, and after- wards attended other corporate meetings at which such mayor presided, (v) So a previous knowledge of the fact, in the person on whose affidavit the motion is made, will not be a ground for refusing the information, if he was under no obligation of remonstrating against the proceed- ings — if he is in fact merely a witness, not relator ; as in the case of an application on the affidavit of the town clerk, (w) Nor will the relator's concurrence in the elei:tion of the de- fendant be any ground for refusal, if the objection was (s) 2 Str. 1 109; Andr. 3S9; 5 Burr. 2601 ; Cowp. 500. (n 3 T. R. 596 ; 2 Kyd on Corp. 435, 436. (k) I East, 3S. • r) 3 East, 213. (w) Cowp. 75. 44 QIJO WARRANTO. When the information will not be scranted. matter of substance, not of form in the election, (.v) And where the application is made on the affidavit of several persons, all of whom, but one, concurred in the election of the defendant, if that one will avow himself the relator, and render himself responsible for the costs, his being joined with others who concurred in the election will be no reason for refusing the information, (y) Where the appli- cation is made for the purpose of enforcing a general act of parliament, which interests all the corporations in the kingdom, it is no objection that the person applying is not a member of the corporation, (z) The abandonment of a former information, for the same cause, is of itself no reason for refusing an information, as that may have been by col- lusion, {a) The court will make the rule absolute for an information in the nature of a g?to warranto^ though the party has, since the rule obtained, resigned his office, and his resignation has been accepted. {l>) See various cases, in 8 Mod. Rep., at pages 132, 135, 165, 166, 35, 36, 215, 216, 234, in which rules or informations were granted. When leave will not he granted. — If the defendant can show that his right has already been determined by man- damus; or that it depends on the right of those who voted for him, which has not been tried ; {c) 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. (J) So if the defendant's right has been acquiesced in for a length of time, {e) (*) 3 T. R. 573. {y) 4 T. R. 223. (^)3T. R. 574, n- («) 2 T. R. 771. (A) 2 M. & S. 75. See 15 III. 223. (c) 2 Hawk., P. C, ch. 26, sec. 9. ( County of , 3 set. A. B., Attorney-General of the said state of Illinois, 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 war- rant, 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 ma}'" and do transact by virtue of their respective acts of incorporation, and also that of actually issuing notes, receiving deposits, making dis- counts, and carrying on bamking operations and other moneyed transactions which are usually performed by in- corporated banks, and which they alone have a right to do ;]I all which said liberties, privileges and franchises the said" Company, during all the time aforesaid, in the county aforesaid, upon the said People has usurped, 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 People, and in the name and by the authority thereof, prays the consideration of the court here in tlie premises, and due {s) II 111. 552; 13 111. 67; 15 111. 417. 59 "'• 94, "6 111. 493. (/) 15 111. no; 68 111. 252; 6 Bradvv. 127, 129. (m) 15 Johns. 362. d QUO WARRANTO. 697 Information at instance of relator, 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 war- rant for exercising such franchise ; and if the title set up is mcomplete, the People is entitled to judgment, (v) See the cases reported in 6 Cow. R. 196, 211, 217. In these cases, the informations charged the corporations gen- erally with usurpations ; and on the defendants' setting out their charters, and justifying under them, the attorney-gen- eral replied the causes of forfeiture. specially ; and this was held to be no departure. In Illinois, by the statute of 1S45, concerning academies, (Gross' Stat. 107,) the attorney-general is required, when he shall have knowledsfe of a violation of the statute bv any corporation created thereunder, to file an information for the purpose of dissolving such corporation. And by statutes in force July i, iS^i, (2 Gross' Stat. 304, 305,) the state's attorneys may proceed by information against rail- road companies, for forfeitures of their charters by reason of violations of those statutes. JVo. 313. Information at the instance of a relator., under the statute, {zv) {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 this day, and for the said People, and in the name and by the authority thereof, at the rela- tion of E. F., (according to the form of the statute in such case inade and provided,) gives the court here to under- stand and be informed, that C. D., for the space of {v) 15 Johns, 358 ; 2 Kyd on Corp. 399; 21 111. 65 ; 18 Bradw. 588. {w) 2 Slarr ft Curtis' An. Stat. p. 1871 j Rev. Stat. (1877) 747. 69S QUO WARRANTO. Information at instance of relator — Observations, now last past, and more, in the county aforesaid, un- lawfully 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," c/c.,) the said C. D., durin^y all the time aforesaid, in the county aforesaid, upon the said People has usurped, 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 State's Attorney, for the said People, and in the name and by the authority 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," ctc.^ aforesaid. A. B., State's Attorney. If deemed expedient, another count, or counts, may be inserted, at the asterisk in the above form. The information should describe the office 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. {x) The appearance of the defendant to a rule to show cause, etc., is not an appearance to the information; and there- fore, on filing the information, the prosecutor is not entitled to a rule to plead, but there must be a service of process, or an appearance. The rule to show cause is for the purpose of obtaining leave to institute the proceeding, but it is com- menced by the information, (j) It is stiid that "in this country it seems to be not an unusual practice for the information, whether it be for an intrusion into or usurpation of an office, or for an assump- tion or continued 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 defend- {x) 21 111. 65 ; 68 111. 252. {y) Ang, & Ames on Corp., sec. 751; 5 Binn- 353; 44 III. 458. See Rev. Stat. (1877) 748. i QXJO WARRANTO. 699 Defenses — Pleas. ant." (z) And it appears that in New York, when the relator is claimant of the office, he is considered as a co- plaintiff with the People, in whose name the information runs ; and judgment may be rendered to oust the defendant » and induct the relator, or mereh' to oust the defendant, (a) But this practice would seem to be inconsistent with the theor}' of the proceeding, and to involve a material change in the rules of pleading and evidence in informations of this kind. See the substance of an information against certain per- sons exercising the office of bridge-commissioners, 14 111. 476. DEFENSES. For pleas in abatement, see the forms in assumpsit, ajifc, chapter III. Picas 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 insufficient, {h) Not guilty, and nan usur^avit, are not good pleas, for they do not answer to the nature of the charge, which is to show by what warrant or authority the defendant uses the franchise, etc. (c) The People, in this proceeding, is not required to show anything, at least in the first instance, but the entire bur- den 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 franchise. 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 judg- ment of ouster, {d) (z) Ang. & Ames on Corp. sec, 756. See I Scam. 215 ; 15 111. 213. (rt) 16 Barb. 370; Ang, & Ames on Corp. sec. 756. {b) 15 111. 213; 4 Cow. 118; 84 111, 426; 90 111. 434, (c) Bull, N. r. 211 ; 4 Gow, 118; 106 111. 237. {d) 21 111. 65 ; IS Johns. 358; 3 Pike, 572; 90 111, 434. ;00 QUO WARRANTO. Plea by corporation, etc. — To information at instance of relator. ]Vo. 314. Pica by a corporation, to an information by the attorney-general. In the Circuit Court. Term, 18—. The Company ^ Information in nature of quo ats. > warranto. The People, etc. ) And now on this day comes the said Company, by J. K., its attorne}^ and having heard the said information read, for plea in this behalf sa3'^s, that [kcre set forth the title to the franchises, etc.) : And by this warrant the said Company has used during all the time in the said information men- tioned, 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 liber- ties, privileges and franchises 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 judg- ment, etc. jSfo. 315. Plea to an information at the instance of a relator. In the Circuit Court. Term, 18—. C. D. ^ ats. 1 Information in nature of ^?^) 27 111. 143; 38 111. 104; 22 111. 333; 100 111. 94; 20 Bradw. 631 ; loS 111 137; 109 111. 379, {c) 22 111. loS ; 14 111. 381 ; 13 111. 660 ; 25 111. 43 ; 66 111. 256 , SS 111. 26; IC9 111. 142; 113 111. 154, (d) 2 Hill, 9; Green's Pr. 497; 107 111, 95. (e) 25 Wend. 168. See 88 111. 26, loo; 10 Bradw. 204. (/) 2 Hill, 9; I How. Pr. 141 ; no 111. 78. ( .,") I Scam. 567; 2 Scam. 361 ; 40 111. 63, 66; 3 Johns. 23; 7 Cranch, 2SS; I Blackf. 22. See no 111. 78; 104 111. g^- CERTIORARI. /^o The statutory writ — Statutes of Illinois. II. THE STATUTORY WRIT. The statute of Illinois provides as follows : "The judges of the courts, to which appeals ma}^ be taken, shall have power, within their respective jurisdic- tion, and it shall be their duty, upon petition made as here- inafter mentioned, to grant writs of certiorari., to remove causes from before 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 con- formity to the provisions of this act. " The petition for a writ oi 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 negligence in the party pra3'ing 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 part}'' to take an appeal in the ordinary way, setting forth the particular circumstances which prevented him from so doing. '*No writ oi certiorari shall issue after the expiration of six months from the time of the rendition of judgment. "Before any writ oi certiorari shall issue, the party ap- plying 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 oi 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 re- quired 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." (^) {K) 2 Starr & Curtis' An. Stat. 1461-2 ; Rev. Stat. (1S77) 618. See I Scam 264, 566; 4 Gilm. 363 ; 14 111. 35 ; 16 111 275. 294; 17 111. 31 ; 23 111. 337; 25 111. 575; 26 111. 243; 68 111. 64; 17 Bradw. 285. '7o6 CERTIORARI. The statutory writ — Requisites of petition, etc. The Statute also provides, that one or more of several plaintiffs or defendants may sue out a certiorari^ without the consent of the others ; and all further proceedings are thereupon to be stayed, the same as if all had united in such certiorari, (i) A writ of certiorari is also given in cases arising under chapter 64 of the Revised Statutes of Illinois, entitled Licenses ; (j?) and in cases of the trial of the right of prop- erty, before justices of the peace. (Jc) Masters in chancery, in their respective counties, may order the issuing of 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- tiorari 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, iiii) 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 guilt}^ 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. {11) Where a party permits a judgment to go by default, be- fore a justice of the peace, with the intention of taking an appeal to the circuit court, and contesting the merits in ()■) 2 Starr & Curtis' An. Stat. 1454; RevJ Stat. (1877)617; 16 111. 39. [j) Gross' Stat. 422. (k) 2 Starr & Curtis' An. Stat. 1469; Rev. Stat. (ICS77) 621. (/) 2 Starr & Curtis' An. Stat. 1599; Rev. Stat. (1877J 660, \m) 25 111. 575; 26 111. 243; 16 111. 275 ; 9 Mich, in ; 9 Iowa, 583; 78 HI- 391 ; 6 Bradw. 353. (n) 23 111. 337; 17 111. 31; 25 111. 579; 61 111. 4S5; 88 111. 579. CERTIORARI. 707 The stPtutory writ — Requisites of petition, etc. that court, a petition for a certiorari will not be sustained. Diligence must be used to prevent the judgment in the justice's court, io) It is not sufficient to aver that the justice, in receiving 01 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. {j>) Where a petition is based on the ground that the peti- tioner did not know of the rendering of a judgment against him, until the twent}' days in which the appeal might have been taken had elapsed, by reason of his being misled by the opposite party, he should state how and by what he was misled ; and he should show diligence, by an inspec- tion of the justice's docket or otherwise, to ascertain what order had been made in the suit, or some reason why this was not done, [q) 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, (r) Where a petition alleged that the petitioner was a poor man, and that it took him several days after the rendition of judgment 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 diligent 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 {0) l6 111. 276; 4 Bradw. 154. (/) 16 111, 293; S8 111. 579. (-7) 26 111. 243. See 86 111. 396; 78 111. 391 ; 4 Bradw. 154. (/•) I Scam. 565. See 4 Gilm. 363; 26 III. 243; 25 111. 575 ; 14 111. 144; 85 111. 290; 17 Bradw. 285. ■08 CERTIORARI. The statutory writ — Requisites of petition, etc. sufficient diligence was not shown. No reason appeared why the petitioner did not enter his appeal with the clerk of the court. (5) 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 examina- tion, by the justice, and had no knowledge that a judgment was rendered 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. {J) Where a petition of a guardiaa, lor a writ of certiorari^ stated that he was taken sick shortly after the service of process upon him, an-^ continued unable to transact busi- ness until after the trial ; that as soon as he was able to at- tend to business, 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, [ji) A petition for a certiorari^ to bring up the proceedings had before a justice of the peace, must stand on its merits ; atiidavits in support of it, or against it, can not be read, iv) 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 necessarily 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. {vj) Where a statute gives an appeal from an assessment of damages for a right of way, a certiorari will be sustained, (s) 2 Gilm. 65 ; 17 Bradvv. 285. {t) 27 111. 9I; 19 Bradw. 185. (m) 14 111. 35; 68 111. 64. (y) 26 111. 243 ; 25 111. 575 ; 86 111. 396. (w) 13 111. 144; 14 111. 35 ; 2 Gilm. 65. CERTIORARI. 709 Petition for certiorari to J. P. it appearing that the petitioner 'liad no notice of the assess- ment, 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, {x) No. 316. 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., on the day of, etc., commenced an action against your petitioner, before 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, al- leged to bg 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 afore- said appear to your petitioner from the docket of the said justice, and the papers in that behalf tiled and remaining in his office. And 3'our petitioner further shows, that at the time of the commencement of the said action, and from thence continually 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 commence- ment of the said action as aforesaid, nor is now, in any manner indebted to the said C. D. ; and that the said judg- ment is therefore wholly unjust and erroneous. Your peti- tioner therefore prays a writ of certiorari, to remove the said cause fVom before the said justice into the said Court, according to the form of the statute in such case made and provided. A. B. ^r) 24 111. 562; 5S III. 422; 99 III. 171. 7IO CERTIORARI. The statutory writ — Observations. State of Illinois, > County of , > 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 r *'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 III. R. 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." ( r) 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 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, [a) Where the papers and a transcript of the proceedings are filed in the court, the issuing of a certiorari to the justice is unnec- essary, [b) The dismissal of an appeal, or a certiorari, is equivalent to an affirmance of the judgment, so a;^ to entitle the party (f) 2 Starr & Curtis' An. Stat. 1462; Rev. Stat. ^1877) 619; 99 111. 587. (s) 12 111. 143; 26 111. 562; loS 111. 137, loy 111. 379. [a) 12 111. 143; 4 Bradw. 180. (6) 12 111. 162, 143. CERTIORARI. "jii The statutory writ — Observations. to claim a forfeiture of the bond, and to have his action thereon, {c) By 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 judg- ment to be entered or a deduction made therefor." In case of a partial reversal of the judgment, the costs may be ap- portioned, {d) (r) 2 Scam. 571 ; 6l 111. 485; 6 Bradw. 593. {d) 2 Starr & Curtis' An. Stat. 1463; Rev. Stat. (1S77) 619; 43 111. 447; 72 111. 464. 712 HABEAS CORPUS. History of the remedy, etc. CHAPTER XVHI. HABEAS CORPUS. The writ of habeas corpus is an ancient English writ, used lor 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. Per- sonal liberty was always asserted by the common law, from its earliest ages ; and it was always assailed by kings who would be tyrants, and with an earnestness proportioned to their t3'ranny. Plence it became necessary to declare thi? principle in the most solemn manner in Magna Charta, (a. d. 1215.) But before the 31st year of the reign of Charles H, (a. d. 1679,) its benefits were in a great de- gree eluded by time-serving judges, who awarded it only in term-time, and who assumed a discretionary power of awarding or refusing it. The writ was evaded by courts and sheriffs who were disposed to support royal and minis- terial usurpations ; and it became 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 assigned, if he was impris- oned 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 per- sonal libertv was still violated ; and by 16 Charles I, chap. HABEAS CORPUS. 713 History of the remedy, etc. 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, and sheriffs and jailers refused to obey it; or if the person imprisoned was brought before an examining court, his liberty 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, devised with so much skill, and so well adapted to give each other mutual support, that it may safely be asserted that personal 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 interposi- tion. The enactment of this great " palladium" of English liberty was secured after persistent efforts on the part of Lord Shaftesbury and other friends of liberty in Parlia- ment. 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 foolish 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 (a) Bishop Burnet's History of His Own Times. 714 HABEAS CORPUS. Constitutional provisions, etc. — Statute of Illinois. reported to the house, and declared that they who were for the bill were in a majority, 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 Campbell, in his life of Lord Shaftesbury, says that "there must have been some mistake in the return of the votes upon the bill, because the journal of the House of Lords . shows that the whole number of lords present was one hundred and seven, while the bill was declared passed 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 important era in the history of constitutional liberty. The habeas corpus act has been substantially incorpo- rated into the jurisprudence of every state in the Union ; {h) and the right to the writ has been secured by the constitu- tions of most of the states, and by that of the United States. The constitution of the United States, art. i, sec. 9, par. 2, provides, that "the privilege of the writ oi habeas corpus shall not be suspended, unless when, in cases of rebelliop or invasion, the public safety may require it." By the statute of Illinois, the benefit of the writ of habeas corf us is given in all cases where "any person shall be committed or detained for any criminal or supposed crim- inal matter," 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 whatever." And in order to still further secure to the citizen the benefit of this writ, a heavy penalty is imposed upon any judge, empowered to grant such writ, if he corruptly refuses, or unreasonably delays, so to do ; {b) See 33 111. 446 HABEAS CORPUS. 715 When it is to be granted. and upon any sheriff, jailer or other person who refuses or evades obedience to such writ, (c) The statute of IlHnois will be understood as referred to, when any statutory provision is hereafter quoted or men- tioned in this chapter. When it is to be granted. — The writ is to be granted whenever a person is in actual confinement, or restrained of his liberty, 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, in which the restraint is efTected. (c/) Words may constitute an imprisonment, if they impose a restraint upon the person, and he is accordingly restrained and submits, {e) It may be on the public street, and though the part}- 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 liberty, and has a right to inquire if that restraint, whether by a sherifT, constable, or private individual, is illegal and wrongful. It is not necessary that the degradation of be- ing 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, {g) A mere moral restraint, however, is not such an impris- onment as will entitle the party to the writ. {Ji) Persons discharged on bail will not be considered as restrained of their liberty, so as to be entitled to a writ of habeas cor- ■pus. {i) It is immaterial whether the imprisonment is under crim- (c) I Starr & Curtis' An. Stat. 1253; Rev. Stat. (1S77) 543, 545. ( County of , 5 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 truj, 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 by the statute, where the de- tention 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. (Ji) No. 318. Petition for a habeas corpus, where ■peti- tioner is detained under a warrant of commitment. (Address, as in last -precedent.^ The petitioner, A. B., of, etc., complaining shows, that. he is detained and im- prisoned, in the jail of the said county of , by C. D., sheriff' and jailer of the said county, on a charge of larceny^ by virtue of a certain warrant for the commitment of the petitioner, a copy whereof is hereto annexed ; which de- tention 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 : (Here give the substance of the evi- dence. Any other matters, or grounds of discharge, may be likewise set forth.) To be relieved from which said detention and imprison- ment the petitioner now applies, praying that a writ of habeas corpus, to be directed to the said C. D., may issue [h) See Hurd Hub. Cor. 21S; i Starr & Curtis' An. Stat. 1253; Rev, Stat. (1877) 543. HABEAS CORPUS. 721 Forms of petitions. 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 he added, as in last -precedent; and annex copy of warrant S) No. 319. Petition for a habeas corpus, by a parent for a child. {Address., as in No. 317, ante.) The petitioner, A. B., of, etc., complaining shows, that E. F., aged years, the daughter of the petitioner, is restrained 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 con- cerning the detention, and xvherein the illegality thereof consists, etc.) The petitioner therefore prays a writ of habeas corpus, pursuant to the statute in such case made and provided, 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. 317, ante.) No. 320. Petition for a habeas corpus, -where peti- tioner is held under a capias ad respondendum. {Address, as in No. 317, ante.) The petitioner, A. B., of, etc., complaining shows, 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 respondcndtim, 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 imprisonment and restraint are unlawful, for the reason that the affidavit on which the said writ of capias issued was wholly insufficient to authorize the issuing of such writ ; as will fully appear 72^ HABEAS CORPUS. Forms of petitions. 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 habeas corona in this behalf, to be directed to the said C. D., and return- able forthwith, according to the form of the statute in such case made and provided. A. B. {Add affidavits, as in No. 317, ante.) By the "act concerning bail in civil cases," (1S72,) It is provided, 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 because the facts stated therein are not iriie^ or other good cause which would entitle him to be discharged upon habeas cor;pus; or in case he has given bail may discharge the same, or reduce the amount thereof, upon good cause shown." (/) lio. 321. Petition for a habeas corpus ad testifican- dum. {Address, as in No. 317, ante.) The petitioner, A. B., respectfully shows, that he is the party defendant in a cer- tain cause now pending in the said court, {or " in the Court of the county of ,") to wit, a certain action of , wherein one C. D. is plaintiff; that the said cause is set lor 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 ordinary process of law. Wherefore the petitioner prays a writ of habeas corfus ad testificandum, according to the form of the statute in such case made and provided, to be directed to the said G. H., and commanding him that he have the said E. F. (z) I Starr & Curtis' An. Stat. 360; Rev. Stat. (1877; 169; I Scam, 556, HABEAS CORPUS. 72,1 Allowing and issuing of the writ — Master's order. 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. 3i7> ante.) The statute also provides for a habeas corf)us for the pur- pose of bringing in a prisoner to be surrendered in dis- charge of bail ; and also for the purpose of discharging a person committed for a contempt in not performing an order or decree for the payment of money, where such person is unable to comply with the order or decree, or is unable to endure the confinement. {J) Allowing and issuing of the ivrit. — If issued by the court, the writ is to be under the seal of the court ; if by a judge, under his hand, {k) Where the writ is allowed by a master, his order, to be indorsed on the application, may be as follows : Master^ s order for a habeas corpus, in absence of judge. In the absence of the Honorable J. K., judge of this judi- cial 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 jtidge is absent from the circiiit, "before the Honorable L. INI., fudge 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. {!■) (/) I Starr & Curtis' An. Stat. 1260; Rev. Stat. (1877) 548. {k) I Starr & Curtis' An Stat. 1254; Rev. Stat. (1^77) 544. (/) See 3 Scam. 19. 724 HABEAS CORPUS. General form Writ of habeas corpus — Indorsement — Service — Expenses, etc. No. 322. General form of a writ of habeas corpus. The People of the State of Illinois: To the sheriff of 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 imprisonment and detention, by whatever name said C. D. shall be called or charged, before Court of county (or before E. P., 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 person to whom such writ is directed, may pretend ignorance there- of, every such writ shall be indorsed with these words ; " By the Habeas Corpus Act." " Service of writ. — The habeas corpus may be served by the sheriff, coroner, or any constable or other person appointed for that purpose by the court or judge by whom it is issued or allowed. If served by a person not an officer, he shall have the same power, and be liable to the same penalty for non-performance of his duty as though he were 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 where the prisoner is detained ; or if he cannot be found, or has not the person imprisoned 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 sum 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 HABEAS CORPUS. 725 Relurn of writ. bound to obey it unless the sum so certified is paid or ten- dered to him, and security is given to pay the charges of car- rying him back, if he should be remanded : Provided, that if such court or judge shall be satisfied that the person so con- fined or restrained is a poor person, and unable to pay such exjpenses, 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 restraint 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 authority 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 or other written authority, a copy thereof shall be annexed to the return, and the original shall be produced and exhibi- ted 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." (/«) {m) I Starr & Curtis' An. Sta\ 1255; Rev. Stnt. {\^^^) 546; 96 111. 6S. 726 HABEAS CORPUS. Forms of returns. — Examination. >IS, 1 No. 323. RcHnn to a writ of Habeas Corpus, where the prisoner is in custody. State of Illinoi County of- I, F. H., SJieriff of said county , to n'hom the within writ is directed, for return thereto, say that I have the within named C. D. in my custody, and now bri^g his body in court here as commanded ; that the cause of his option and detention is, etc., {Jiere set forth the cause of the detention at large, and if in custody by virtue of process ^ attach a copy.) [Date.) F. H., Sheriff of, etc. No. 3 24. Return to a Habeas Corpus denying detention^ etc. State of Illinois, County of- I have not now, and have not had at any time prior or subse- quent to the date of the within writ, the custody or control of the within named C. D., wherefore I cannot hav his body Defore the court (or " judge "] as I am therein commanded. {Date) F. H., Sheriff of, etc. No. 325. Return to a Habfas Corpus by a party not an officer. State of Illinois, 1 County of / I, F. K., to whom the within writ is directed, have now be- fore the court here the body of C. D., therein named, as thereby commanded. And for cause of his detention I aver that, etc., (here setfortli the grcund of detention at large.) {Date) F. K. Add affidavit as follows : State of Illinois,! County of ■ / * F. K. makes oath and says that the above return by him made is true to the best of his knowledge, information and belief. Subscribed, etc. F. K. Examination. — " Upon the return of a writ o'i habeas corpus., the court or judge shall, without delay, proceed to examine the HABEAS CORPUS. 72^ Denial of return, etc. cause of tlie imprisonment or restraint, but the examination may be adjourned from time to time, as circumstances re- quire." Denial of retJirn, etc. — " The party imprisoned or restrained may deny any of the material facts set forth in the return, and may allege any other fact that may be material in the case, which denial or allegation shall be on oath ; and the court or judge shall proceed in a summary way to examine the cause of the imprisonment or restraint, hear the evidence produced by any person interested or authorized to appear, both in sup- port of such imprisonment or restraint and against it, and thereupon shall dispose of the party as the case may require. " The return, as well as any denial or allegation, may be amended at any time by leave of the court or judge." (r) If it appears that the prisoner is in custody by virtue of process from any court, legally constituted, he can be dis- charged only for some of the following causes : ist. Where the court has exceeded the limits of its jurisdiction, either as to the matter, place, sum or person. 2d. Where, though the original imprisonment was lawful, yet by some act, omission or event, which has subsequently taken place, the party has become entitled to his discharge. 3d. Where the process is defective in some substantial form required by law. 4th. Where the process though in proper form, has been issued in a case, or under circumstances, where the law does not allow process, or orders for imprisoninent or arrest to issue. 5th. Where, although in proper form, the process has been issued or executed by a person either unauthorized to issue or execute the same, or where the person having the custody of the prisoner under such pro- (r) I Starr & Cunis' An. Stat. 1256; Rev. Stat. (1S77) 54j-S4S. 728 HABEAS CORPUS. The hearing, etc. cess is not the person empowered by law to detain liim. 6th. Wliere the process appears to have been obtained by false pretense or bribery. 7th. Where there is no general law, nor any judgment, order or decree of a court, to authorize the process, if in a civil suit, nor any conviction, if in a criminal proceeding. "No court, or judge, on the return of a habeas corpus^ shall, in any other matter, in- quire into the legality or justice of a judgment or decree of a court legally constituted. In all cases where the impris- onment is for a criminal or supposed criminal matter, if it shall appear to the said court, or judge, that there is suffi- cient legal cause for the commitment of the prisoner, al- though such commitment may have been informally made, or without due authority, or the process may have been ex- ecuted by a person not duly authorized, the court, or judge, shall make a new commitment, in proper form, and di- rected to the proper officer, or admit the party to baii, d the case be bailable." {t) Where the affidavit for a capias ad satisfaciendum^ in a civil action, conforms to all the requirements of the consti- tution and statute, the court will not go behind the capias and affidavit, and inquire into the facts charged in the latter. {iC) And the court has no power, on habeas corpus^ to discharge a person who is imprisoned under a capias ad satis/acicndum, upon the mere ground that he was not sued by his right name, {v) In the cases of wives, children and wards, all the court does is to see that they are under no illegal restraint, (iv) The object in such cases is not to enforce the right of cus- tody, but to remove unlawful restraint. The person inter- ested in the custody will be presumed to represent the wishes of the person restrained, so far as to enable him to [t) I Starr & Curtis' An. Stat. 1257; Rev, Stat. (1S77) 545 ; 104 111. 156. (m) 16 111. 350. See 32 111. 446; 117 111. 63. {v) 32 111. 446. {w) I Strange, 445 ; 2 Strange, 982 ; Wilmot's Op. 120; 4 Johns. Ch. K. .80 ; 19 Bradvv. 332 ; 103 111. 367. HABEAS CORPUS. 729 Forms of orders. set the remedial power of the court in motion. But the right, properly speaking, extends no further than that, (x) In the case of infants, an unauthorized absence from the legal custod}'^ has been treated, at least for the purpose of allowing a writ of habeas corpus to issue, as equivalent tc imprisonment ; and the duty of returning to such custody as equivalent to a wish to be free. And for all legal purposes a child is in the custody of those with whom it lives, (jy) A father may obtain the custody of his children, by the writ of habeas cor^pus, where they are improperly detained from him ; but the courts, both of law and equity, will in- vestigate the circumstances, and, according to sound dis- cretion, do with the child as its interests may require. Although, in general, parents are intrusted with the cus' tody of the persons, and with the education, of their chil' dren, 3^et this is done upon the natural presumption that the children will be properly taken care of, and will be brought up with a due education in literature and morals, and that they will be treated with kindness and affection ; but when- ever this presumption is removed, whenever, for example, it is found that a father is guilty of gross ill-treatment or cruelty towards his child, or that he is in constant habits of drunkenness and blasphemy, or low and gross debauch- ery, or that his domestic associations are such as tend to the corruption and contamination of his children ; in every such case the court will interfere, and deprive him of the custody of his children, [z) JVo. 326. yudgc^s order of discharge^ in vacaiioti. In the matter of the application of ) A. B. for a writ of habeas, corpus. 5 Be it remembered, that on this day of, etc., in obedience to the writ of (*) Hurd on Hab. Corp. 450; 4 Johns. Ch. R. So; 8 Paige Ch. R. 47. iy) 25 Wend. 64; S Paige Ch. R. 47. («) 2 Kent, 194; Story's Eq. Juris., sec. 1345; Ambler, 302; 2 Hill, 363 Bligh, (N. S.) 126; 8 Paige Ch. R. 47; 4 Johns. Ch. R. 80. HABEAS CORPUS. Forms of orders. habeas corpus heretofore allowed by me in this behalf, C. D., skeriff^ etc., to whom the said writ was directed, ap- peared before me, at, etc., having with him the body of the said A. B., together with the said writ and the return of him the said C. D. thereon. And thereupon, the allega- tions and proofs of the respective parties in this matter having been heard, and fully understood, (*) and it appear- ing that the said A. B., at the time of the issuing and serving of the said writ, was unlawfully detained by the said C. D., and ought not to be remanded to his custody : I do there- fore order, that the said A. B. be forthwith discharged and set at liberty, and go hence without day, etc. J. K., Judge. JVo. 327. yudge's order i in vacation, rematiding pris- ofier. {As in the last -precedent, to the asterisk, and thence as folloivs:) and it appearing that the said A. B., at the time of the issuing and serving of the said writ, was lawfully de- tained by the said C. D., for the cause set forth in the said return ; and it further appearing that the said A. B. ought not to be discharged, but ought to be remanded to the cus- tody of the said C D., for the reason that [the said A. B. is probably guilty of feloniously stealing, taking and carrying away, on, etc., in, etc., one -watch, of the value of dollars, the property of one G. H.] : I do there- fore order, that the said A. B. be remanded to the custody of the said C. D., sheriff as aforesaid {if admitted to bail, add,) unless bail be given by the said A. B. in the sum of dollars, at which sum the bail in this behalf is fixed. J. K., Judge. No. 328. Order of discharge, by the court, in term. {Title of cause, as in No. 326, ante.) And now on this day here comes the said C. D., sheriff, etc., to whom the said writ of habeas corpus in this behalf was directed, and has now here in court the body of the said A. B., together with the said writ and the -return of him the said C. D. thereon. And thereupon, the allegations and proofs of the HABEAS CORPUS. 731 Forms of orders. respective parties in this matter being heard and exam ined, and the court being fully advised in the premises ; (*) and it appearing to the court that the said A. B., at the time of the issuing and serving of the said writ, was unlaw- fully detained by the said C. D., and ought not to be re- manded to his custody : It is therefore ordered by the court that the said A. B. be forthwith discharged and set at lib- erty, and go hence without day, etc. JYo. 329. Order of court, in term^ remanding pris- oner, etc. {As in the last -precedent, to the asterisk, and thence as folloivs :) and it appearing to the court that the said A. B., at the time of the issuing and serving of the said writ, was lawfully detained by the said C. D., for the cause in the said return mentioned ; and it further appearing to the court that the said A. B. ought not to be discharged, but ought to be remanded to the custody of the said C. D., for the reason that {Jiei'e set forth the cause or causes for re- manding the -prisoner^ : It is therefore ordered by the court, that the said A. B. be remanded to the custody of the said C. D., sheriff as aforesaid {if admitted to bail, add,) un- less bail be given by the said A. B. in the sum of dol- lars, at which sum the bail in this behalf is fixed. (//" bail is thereupon given, proceed:) And thereupon the said A. B., as principal, and O. P., as surety, in open court jointly and severally acknowledge themselves to be in- debted to the People, etc., etc. It might be profitable to consider the subject of habeas corpus more at length and in detail, but it would be foreign to the plan and purpose of the work. The subject is very fully and learnedly treated in the valuable work of Rollin C. Hurd, Esq., usually cited as Hard on Habeas Corpus 73^ ATTORNEYS AND COUNSELORS AT LAW. Attorneys and counselors at law — How admitted. CHAPTER XIX. 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 liim. 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, Brac- ton, Fleta and Britton ; and a case turning upon a party's right to appear by attorney is reported in the Year Book, 17 Edw. Ill, 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, {b) The name of attorney is given to those officers who prac- tice in courts of common law ; solicitors in courts of equity ; and proctors in courts of admiralty, and in the English ecclesiastical courts, (c) 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 conferred. The right to admission in no sense depends upon (a) I Bouv. L, D. 140. (6) Farresly, 47. See Bac. Abr. tit. Attorneys, c ; 7 Mod. 47; 15 Cal. 387; 16 Ind. 392; 15 Barb. 650; 18 Ind. 137. {c) I Bouv. L. D. 140; 3 Dall. (U. S.) 410; 4 Id. ZIZ- ATTORNEYS AND COUNSELORS AT LAW. 733 Qualifications. citizenship of the United States, {d) But a citizen of one state is not entitled, as a matter of right, to admisbion to the bar of another state. (/) 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 attending 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, {g) Rule 2 of the Supreme Court of the United States provides, that " It shall be requisite to the admission of attorneys or counselors, 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 pri- vate and professional character shall appear to be tair." 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 applicant 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, () iS 111. 499. See 83 111. 60; 113 111. 662; 119 III. 159. 744 ATTORNEYS AND COUNSELORS AT LAW. Rights, etc. — Lien. Where a note contains a stipulation on the part of the maker, that in case suit is brought on the note he will pay ten dollars as attorney's fees, that sum is not due until after the suit is instituted, and can not be included in the judg- ment, (k) If an attorney is employed, for a stipulated fee, to pros- ecute 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 w'hich through his own neglect proved to be of no value to his client, (ni) A client can not, at his ow^n option, by the employment of additional counsel, reduce the amount of the compensa- tion or fee which he had stipulated to pay to the original attorney, (n) Lien. — At common law, an attorney has a lien for his fees upon any papers of his client which may come into his hands ; {p) and this is not confined to any particular case, but extends to his whole account. ( -f) As to the rule in relation to the lien of an attorney upon a judgment recovered by his client, there is great conflict in the authorities.. In Illinois, {q) Vermont, New Hamp- shire, Pennsylvania, Texas, Indiana and Missouri, no such lien exists ; while in New York, Alabama, Georgia and Florida, the contrary rule seems to prevail, (r) {k) 39 Geo. 5, 20, 310; 4 Nev. 304; 5 Bush, (Ky.) 601 ; 2 Dal/, (N. Y.) 138. (/) 14 Texas, 257. [m) 3 Wms. (29 Vt. ) 198. («) 5 Florida, 43S. (0) 3 T. R. 275 ; 4 T. R. 123 ; Tidd's Pr. 337. See 88 111. 447. (/) Maule & S. 535 ; 2 Bar. & Cr. 616; 62 111. 210. {q) 52 111. 268; 46 111. 476. See 41 111. 136; 56 111. 197. (r) I E. D. Smith, (N. Y.) 593; 29 Geo. 185; 8 Flor. 183; 38 Ala. 527; 30 Tex. 180. SECURITY FOR COSTS. 745 Statute. CHAPTER XX. SECURITY FOR COSTS IN ILLINOIS. It has already been shown when the plaintiff must give security for costs before the commencement of the action, (a) In regard to security for costs after action brought, the statute provides, that "if at any time after the commence- ment 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 pa}'' 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 pa3'ment 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 responsible 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. Provided, that the defendant or officer makin$^ 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." {b). 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 : (rt) A,ite, 39, 42. i^b) I Starr & Curtis' An. Slat. 63S; Rev. Stat. (1S77) 296. See Si 111. 61. 746 SECURITY FOR COSTS. Affidavit for rule to give security for costs, etc. No. 330. Affidavit foi' rule to give security for coits. In the Court. C. D. ^ ats. > Assumpsit. A. B. 3 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 prosecuted to a conclusion, a judgment will be rendered against the plaintiff for such cost. C. D. Subscribed and sworn, etc. The plaintiff may file a counter affidavit, denying the insolvency, or other matter ; and in that case, it seems, the rule will be discharged, (c) Such motions are addressed to t|ie discretion of the courts, and their decisions thereon can not in general be assigned for error ; {d) 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 decision may be reviewed in the Supreme Court, {e) Motions of this kind, it is said, are not regarded very favorably by the courts, and slight evioence has usually been held sufficient to discharge the rulp.. {/) Upon a motion for a rule upon the plaintiff '.o file addi- tional 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 circumst'inces of the principal or surety have changed since the approval of the former security, {g) On an appeal by the defendant from ?. judgment of a (C) 22 111. 259; 81 111. 61. {d) 4Glm. 319; 2 Gilm. 698; 30 III. 43; 43 111. 176; 51 111. 306. (e) 27 111. 332. See Breese, 377; 9 Bradw. 229. (/ 22 111. 259; 65 III. 157. i g) 27 111. 332. SECURITY FOR COSTS. 7^7 Leave to prosecute as a poor person. justice of the peace, the appellate court will not grant a rule on the plaintiff to give security for costs, {k) 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, (y) The statute also 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 or her suit, and pay the costs thereof, they may, in their discretion, permit him or her to commence and prosecute his or her action, as a poor person ; and thereupon such person shall have all the necessary writs, process and proceedings, as in other cases, without fees 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 without any fees, charge or reward ; if judgment be entered for the plaintiff, there shall be judg- ment for his costs, which costs shall be collected for the use of the said officers." {k) A motion for leave to prosecute as a poor person, under this section, should be supported by an affidavit, which may be as follows : (k) Breese, (Beecher's Ed.) 377 ; 19 111, 54. See 12 111. 27. (i) 43 111. 176, See 4 Scam. 2S3 ; 25 111. 202. {;) I Scam. 581; 51 111. 306. {k) I Starr & Curtis' An. Stat, 638; Rev, Stat. (1S77) 296. 748 SECURITY FOR COSTS. Affidavit of poor jieisoii — Form of security. Nor 331. Affidavit on motion for leave to prosecute as a poor person. ( 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 showing the plaintiff'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, '^nd that he will recover a judgment against the defendant. A. B. Subscribed and sworn to, etc. Permitting a plaintiffto sue as a poor person is generally a matter within the discretion of the court. (/) If security for costs is given, the form of the instrument may be as follows : No. 332. Security for costs. In the Court. A. B. ^ vs. \ Assumpsit. C. D, j 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. If the security is objected to, it is incumbent on the party tendering it to satisfy the court that it is sufficient. (;/z) (/) 30 111. 43; 9 Bradw. 229; 80 lil. 251; 81 III. 6l. {m) 3 Gilm. 98. CHANGE OF VENUE. 749 Causes. CHAPTER XXI. CHANGE OF VENUE IN CIVIL CASES. Causes. — The statute of Illinois provides, "That a change of venue in any civil suit or proceeding in law or equity, including proceedings for the exercise 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 receive a fair trial in the court in which the suit or proceed- ing 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 application, as hereinafter provided, or by consent of the parties." {a) A change of venue in proceedings by information in the nature of a quo warrayito, {d) and for mandamus against a county, {c) and in any suit where a county is a party may be taken, [d) When the reasons for a change of venue cease to exist, the necessity and the right to a change also cease, {e) " Neither party shall have more than one change of venue." (/) Notice. — A party desiring a change of venue must give notice of his intention at the earliest period. If the cause [a) 2 Starr k Curtis' An. Stat. 2448-9; Rev. Stat. \l^TJ) 1032; 37 111. 29; 43 III. 408; 79 111. 112; So 111. 106; 20 Biadw. 183. (6) 13 111. 582; 47 111. 384. (c) 50 111. 503. W) 53 111- 440. W 31 111. 353. (/) 2 Starr & Curtis' An. Stat. 2452; Rev. Stat. (1S77) 1033. CHANGE OF VENUE. Notice — Form of Notice — Petition. for the change is known in vacation notice should be given, and the application made to the judge at chambers. The requirement of the statute as to notice is positive. {Ji) The notice to be given to the opposite party, or his attor- ney, may be in the following form : In the C. D. No. 333. Form of Notice. Court. ats. V 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 {Jiere state the ground of the appli- cation) : and you can appear and resist such application if you see fit so to do. {Date.) A tfy for Deft. The petition. The statute of 1874 requires that " Every application for a change of venue shall be by petition, set- ting 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 tlie inhabitants of the county, or the undue influence of tlic adverse party over their minds, the petition shall set forth the facts upon which the petitioner founds his belief, and must be supported by the affidavits of at least two other reputable persons, residents of the county. The adverse party may controvert the petition by counter affidavits, and the judge may grant or deny the petition, as shall appear to be according to the right of the case." (z) No. 334. Form of Petition on account of the Prejudice of a Judge. {Title of Court, etc., as in N'o. 333.) The petitioner, C. D., defendant, in this cause, respectfully (h) lb. See 68 111. 362; 60 111. 462; 51 III. 108; 35 111. loS; 29 111. 741 70 111. 162; 72 111. 45, 138; 88 111. 103. (/) 2 Starr & Curtis' An. Stat. 2450 ; Rev. Stat. (1S77) 1S33. See 82 111. 228. CHANGE OF VENUE. 751 Form of petition — Prejudice of judge — Prejudice of inhabitants. shows to the (judge of the) said court that he, the peti- tioner, 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 preju- dice 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. 333, ante.) C. D., defendant in this cause, makes oath and says, that the foregoing petition is true in substance and in fact. Subscribed and sworn to, etc. C. D. No. 335. Form of Petition on account of Prejudice of Inhabit- ants, etc. {Title of Court, etc., as in No. 333, ante.) 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., plaintiff 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 pre- judice (^r 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 whicJi 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 tzvo 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 attor- ney." " 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 intention to make such application, except where the causes 48 1 752 ■ CHANGE OF VENUE When application may be made — By whom application shall be made. 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 is asked has arisen or come to his knowledge since the term at which the application might have been made." {j) By whom application shall be mad,e. — An application for a change of venue must be made by a party to the record. {Jz) But when a corporation applies any recognized officer thereof may make the requisites 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 : Provided, that in proceedings for the con- demnation of property, when the application is by or against all the owners of any parcel of property to be condenmed, 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 defendants 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 defendants after- wards served were held not bound by such order, [p) 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 which the cause is pending, who shall file the same in his office, and make a entry of such order on the records of the court." (7) 2 Starr & Curtis' An. Stat. 2451-2; F.ev. Stat. (1877) 1033 ; 59 III. 203: 72 III. 178. See 6i 111. 362 ; 74 111. 394; 75 111. 198 ; 78 111. 525 ; 83 III. 501 ; 71 111. 250. (/•) 2 Gilm. 419. (/) 48III.313. {m) 2 Starr & Curtis' An. Stat. 2452 ; Rev, Stat. (1S77) 1033; 84 III. 195- (n) 13 111. 592'; 4 Scam. 360. (0) 46 111. 424. CHAN.GE OF VENUE. ' " 753 Terms — Cost of change — When to be paid. 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." 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 be 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 changes grianted shall immediately make out a full transcript of the record and proceedings 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 necessary 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." {(f) All objections to the transcript should be made at the earliest period, (r) and all exceptions will be waived if parties proceed to trial. {/) (/) 2 Starr & Curtis' An. Stat. 2453; Rev. Stat. (1877) 1033 ; 58 111. 266. [q) lb. See 38 III. 528; 4 Scam. 339; 58 111. 266; 38 111. 528; 109 111. 245. (r; 3 Gilm. 299, 305. {s) 13 111. 592; 70 111. 171 ; 60 111. 63. 754 CHANGE OF VENUE. Change of venue. — Observations. To what court. — " When a change of venue is granted it may be to some other court of record of competent juris- diction in the same county, or in some other convenient county, to wliich there is no vah'd objection : Provided, that when the action is pending in either the circuit or superior court of Cook county, 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." {t) 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 v/as sent, and if his motion is overruled take an exception and embody the motion and ruling of the court in a bill of exceptions, (w) Criminal cases. — For proceedings for a change of venue in criminal cases, see Rev. Stat. 1877, p. 1034, and 2 Starr & Curtis' An. Stat. 2454-S ; also cases cited below. (,r) {t) 2 Starr & Curtis' An. Stat. 2454-5; Kcv. Sut. (1877) 1034; 91 111. 182. («) lb.; 75 111. 548. (v) lb.; 3 Scam. 87; 13 111. 592; 15 111. 515; 66 111. 63; 3 Gilm. 295, 395; 70 111. 171 ; 66 111. 63; 67 111. 485 ; 94 111. 521, [w) 66 111. 63. {x) 65 III. 230; 66 111. 118; 91 111. 182; 93 111. 253; U 111. 121; 26 111. 345 ; 36 111. 290; 50 111. 503; 100 HI 45S. CONTINUANCES. 755 How and when applied for — Want of testimony. CHAPTER XXII. CONTINU AN CE S IN ILLINOIS. It is in the power of the court, generally, to grant a con- tinuance to either party, upon sufficient cause shown. How and when a-pf lied for. — An application for a con- tinuance is made by motion, based on the affidavit of the party, or of some other person acting for him. The motion is often rrade orally, though the better practice is to make all motions in writing. If the application is granted, the fact is minuted on the docket. The motion should be made as soon as possible after the commencement of the term, or after the cause of continuance is known to exist, {a) For want of testimony. — The want of material testi- mony, which the party has used due diligence to obtain, and which he can probably procure at a future term, is a good cause for a continuance of the suit. The practice-act provides, in this regard, as follows : "When either party shall apply for a continuance of a cause on account of the absence of testimony, the motion shall be grounded on the affidavit of the party so applying, or his authorized agent, showing that due diligence has been used to obtain such testimony, or the want of time to obtain it, and what particular fact or facts the party expects to prove by such evidence ; and if the evidence is the testi- mony of a witness, his place of residence, or if his place of residence is not known, showing that due diligence has (a) See 41 111. 300; 36 111. i;2' 756 CONTINUANCES. Form of affidavit — absence of witness. been used to ascertain the same, and that if further time is given his place of residence can be ascertained, {a) "Should the court be satisfied that such evidence would not be material on the trial of the cause, or if the other party will admit the affidavit in evidence, the cause shall not be continued. "When the affidavit is concerning the evidence of a wit- ness, the party admitting such affidavit shall be held to ad- mit only that if the absent witness was present, he would testify as alleged in the affidavit, and such admission shall have no greater force or effect than if such absent witness were present and testified as alleged in the affidavit, leav- ing it to the party admitting such affidavit to controvert the statements contained therein, or to impeach said witness, the same as if such witness were present and examined in open court." {d) The form of the affidavit for a continuance, on account of the absence of a witness, may be as follows : ^^^' 33^' Affidavit by defendant for continuance^ on ac- count of absence of witness, {c) In the Court. Term, iS — C. D. ^ ats. > Assum-psit. A. B. ) C. D., the above-named defendant, makes oath and says, that he can not safely proceed to the trial of this cause at the present term of this court, on account of the ab- sence of one J. K., xvJio resides in , and is a material witness on the part of this affiant. And this affiant further saj^s, that he expects to prove by the said J. K., that [here set forth what is expected to be -proved by the witness). And this affiant further says, that (here set forth what dili- gence has been used to procure the attendance or testimony of the witness, and to ascertain his place of residence, if (a) 2 Starr & Curtis' An. Stat. 1809; Rev. Stat, (1877) 739; 75 III. 236; 76 111. 319; 78 III. 212 ; 80 111. 236 ; 82 111. 37. (6) 2 Starr & Curlis' An. Stat. 181 1; Rev. Stat. (1S77) 740; 85 111. 89, 174; 70 111. 276 ; 94 111. 96. {c) See I Scam. 528; 2 Scam. 71, 454; 16 111. 50S; 32 111. 59; 34 111. 449; 38 111. 449. CONTINUANCES. 757 Continuance for want of testimony. alleged to be unkno-wti). And this affiant further says, that he knows of no other person or persons by whom he can so fully prove the matters above set forth ; [that if fur- ther time is given, the place of residence of the said J. K. can be ascertained ;] that this affiant expects to procure the testimony of the said J. K. at the next term of this court ; and that this application is not made for delay, but that justice may be done. C. D. Subscribed and sworn, etc. Where a party moves for a continuance, on the ground of the absence of material testimony, he should show in his affidavit what the testimony would be ; and if the court thinks it material, a continuance will be granted, (t/) If an affidavit is merely filed, and no motion is founded thereon, it is not the duty of the court to grant the continu- ance, ic) A motion for a continuance, founded upon the absence of witnesses, will be refused, if the facts to be proved are not material to the issue in the cause, (y) An affidavit for a continuance, which does not show the residence of a witness, is insufficient. This is indispensa- ble, as connected with his identification and the dilio-ence used to obtain his attendance, {g) A person desiring a continuance of a cause is bound to show that he has made reasonable exertions to prepare for the trial, without success, or some good reason for not making such exertions, {li) But each case depends upon the particular circumstances shown. A party does not show diligence if he relies upon making his proof by the deposition of a witness who, upon examination, disappoints him. It is his duty to inform himself as to tlie knowledge ((/) 15 Ind. 257. See 45 111. 228. ( Covenant. CD.) To the above-named C. D., defendant : You will please produce, on the trial of this cause, a cer- tain {here describe the instrument, with such particularity as to affrise the, ^arty of what is required). Otherwise {V) 3 Wash. Cir. Ct. Rep. 48:!. (c) 3 Camp. 94; 8 East, 54S, 549; l Arch. 109. (rf) 3 Taunt. 62; 7 Eng. Com. Law Rep. 382; 12 Johns. 323; 17 Johns. 158; 12 Eng. Cora. Law Rep. 327; 13 id. 99. («;) 7 Wend. 216. (/) 55 111- 357- EVIDENCE. 773 Witnesses, etc. the -plaintiff will offer secondary evidence of the contents of the said instrument. {Daie.^ E. F., Attorney for Plaintiff. Where notice was given the day before a trial, to pro- duce a paper which 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 secondary evidence, {g) If a person who is not a party to the cause has in his pos- session an}'' written instrument, etc., which a party desires to use in evidence, a siihpccna duces tecum should be served upon him, commanding him to bring with him and produce at the trial the instrument named. This siihpcena may be framed from the common one, by adding the command to bring the required instrument. Oral, testimony of witnesses. — The attendance of witnesses at a trial is compelled b}' a subpccna, which is a judicial v,rit 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 generally directed to the sheriff. It is usual for the party desiring the attendance of witnesses, to file with the clerk of the court a preecipc, which may be in tiie following form : In the Court. A. B. ^ vs. > A ss u mps it . C. D. } The clerk of the said court will issue a stih- porna for J. K. and L. INI., as witnesses for the plaintiff, 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. {g) 20 III. 43. See 28 111. 204. 774 EVIDENCE. Witnesses, etc. There is no time limited within which a subpoena must be served. It ought, of course, to be served so as to give the witnesses a reaaenable time to come to the place speci- fied, if they reside at a distance ; but when they are at hand, the subpoena 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 subpceiia, 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 ma}'^ deem just and proper, and order him to pay the costs of such attachment ; and such witness is furtlier 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 bring- ing him into court to give evidence, is by a writ of habeas corpus ad tcstijicandum. 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 delivered 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 testificandum^ 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. {Ji) 2 Tidd, 724. EVIDENCE. 775 Depositions — Witnesses in another county, etc. — Affidavit. DEPOSITIONS (in ILLINOIS). Cases til ivhieh they may be taken. — ^When any person whose testimony is required in any suit at law, pending in any court in the slate, is a non-resider^t, or resides in a different county from that in which the court is held, or is about to depart 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 infirmity, his deposition may be taken, in the manner pointed out by the statute. (/) Of witnesses residing in another county^ injirm "wit- nesses^ etc. — In all cases where the witness resides in a different county from that in which the court is held, or is about to depart 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}-, the party desiring his testimony, upon filing a proper affidavit, may have his deposition taken before an}'- judge, justice of the peace, clerk of a court, master in chancery, or notary public, without a commission or interrogatories for such purpose, on giving the required notice to the adverse party. (_/*) The affidavit to be filed in such case may be as follows : JVb. 339. Affidavit to be filed before talcing deposition of -witness residing in another cotcnty, etc. In the Court. A. B. ^ vs. > Asstnn-psit. C. D. ) A. B., the above-named _;!'/«/w//^, makes oath and says, that L. M-., who is a rnaterial witness for this affiant, in this cause, resides in the county of — ■. — , in tliis state (or " is about to depart from this state," or "is in cus- tody on legal process," or "is unable to attend the said (»■) I Starr & Curtis' An. Stat. 10S6. See Rev. Stat. (1S77) 479. U) lb. 776 EVIDENCE. Depositions of witnesses in another county, etc. — Notice. court, on account of advanced age," ctc.^ as the case may be) ; and that tiiis affiant desires 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 deposition, which notice should be served by cop}^ The statute requires the notice to be given ten da3-s before the time for taking the deposition, " and one day in addition thereto (Sundays inclusive) for every fifty miles' travel from the place of holding the court to the place where such dep- osition is to be taken." The statute further provides, that *'if the party entitled to notice and his attorney reside in the county where the deposition is to be taken, five day notice shall be sufiicient. {k) The notice may be in the following form : JVo. 340. Notice to take deposition of witness residing in another county., etc. Court. Assumpsit. To the above-named C. D., defendant : Take notice, that on, etc., between the hours of a. in. 'and -p. m., at, etc., before J. K., « justice of the peace of that county, or some odier officer authorized by law to take depositions in such cases, the plaintiff will proceed to cause to be taken the deposition of L. I\I., re- siding in the said county of , to be read in evidence on the trial of this cause, on the \)iw\.oi i\\e plaintiff ; at which time and place above mentioned for the taking of such deposition, you can appear, and cross-examine the said witness, if you shall see fit so to do. {Bate.) E. F., Attorney for Plaintiff. {/:) I Starr & Curtis' An, Stat. 10S5 ; Rev. Stat. (1S77) 479. EVIDENCE. 777 Depositions of witnesses in another countj, etc. At tb*!: time and place appointed in the notice, the party at whDse instance the deposition is taken, and the adverse party, if he sees fit, or their attorneys, together with the deponent, go betbre the officer who is to take the deposi- tion. The deponent is then duly sworn, and the party who caused him to be summoned first examines him, and the opposite part}', 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 writing, 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. Any officer or commissioner may issue a suhfoeva, if necessary, to compel the attendance of any witness whose deposition he may be required to take. (/) If a part}' gives notice of the taking of two depositions, in ditTerent places, on the same day, so tliat the opposite party can not be present to cross-examine both the witnesses, he may elect which examination he will attend, and the other depositions will be suppressed, {ni) An appearance, and cross-examination of the witness, will be deemed a waiver of objection to the sufficiency of the notice ; {li) and where a party consents to the taking of a deposition, it may be read in evidence, although no affi- davit was filed, as required by the statute. {6) 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, {f) (/) I Starr & Curtis' An. Stat. 1090; Rev. Stat. (1S77) 4S1. (m) 25 111. 572. («) 12 111. 267. See 37 111. 1S6; 20 Eradw. 525. {0) 38 111. 40. (/) 41 111. 413. 773 EVIDENCE. Depositions of non-resident witnesses, etc. 0/ witnesses residing in the state, more than lOO miles distant; non-resident witnesses; and witnesses in military or naval service. — The statute (sec. 26 of the evidence and depositionsact) provides as follows ; " When the testimony of any witness residing within this state, more than one hundred miles from the place of holding the court, or not residing in this state, or who is engaged in the military or naval service of this state or of the United States, and is out of this state, shall be necessary in any civil cause pend- ing 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 dedinms ^otestatcm or commission, under the seal of the court, directed to any competent 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 may reside, or in case it is to take the testi- mony 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 interrogatories as may be inclosed with or attached to said commission, both on the part of the plaintiff and defendant, and none others ; and to certif}^ the same, when thus taken, together with the said commission and interrogatories, into the court in which such cause shall be pending, with the least possible delay." {q) 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, (r) (^q) I Starr & Curtis* An. Stat. lo86; Rev. Stat. (1S77) 479- f>ee 79 Til. 575. [r) 30 111. 95. See 12 111. 267; 3 beam. 453; 3 Gilm. 227; 75 111. 367. EVIDENCE. 779 Depositions of non-r«sidents, etc. — Notice, etc- The notices and formal interrogatories, to be used in such cases, may be as follows : No. 341. Notice and intn'rogatories for taking deposi- tion Jtpon interrogatories in luriting. Court of the County of , in the State of Assu7n'psit. To the above-named C. D., defendant : Take notice, that on, etc., the flaintif \\\\\ sue out from the clerk's office of the said court a commission, pursuant to the statute, to take the deposition of L. M., residing in the city of ', in the count}^ of and state of , to be read in evidence on the part oi\h^ -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 such commission, if you shall see lit so to do. {Date.) E. F., Attorney for Plaintiff. - Court of the County of , in the State of Assumpsit. Interrogatories to be propounded to L. M., a witness to be produced, 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 i. What is your name, age, occupation, and place of residence ? 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 ivith the interrogatories — nuuihering them con- secutively — touching the matters desired to be proved.) Lastly. Do you know of any other matter or thing, of benefit or advantage to the plaintiff, touching the matters in controversy 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. 78o EVIDENCE. Depositions of non-residents, on oral interrogatories. It is usual to name the commissioner in the notice ; but in the case of Cole v. Chouteau, i8 111. 439, the court said ; *' The statute here does not authorize the party to appoint the commissioner, consequently he could not give his name in the notice to sue out the dcdimus. It*s not required by the statute, for the clerk might appoint some other than the one so nominated in the notice." In a suit against two joint-debtors, a notice to one of them, of the issuing of a commission to take depositions, is insufficient, and the deposition can not be used against him who was not served with notice. (5) The usual mode of serving a notice of suing out a com^ mission, is to deliver a copy of the notice and interrogato- ries to the opposite party, or his attorney, who will gener- ally acknowledge 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. (/) 0/ non-resident zu/'tnesses, ufon oral interrogatories. — The statute provides, in this regard, as follows : "When a party shall desire to take the evidence of a non-resident wit- 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 elec- tion so to do, may have a commission, directed in the same manner as provided in section 26 of this act, to take such evidence, upon interrogatories to be propounded to the wit- ness orally ; upon the taking of which each party may ap- pear before the commissioner, in person or by attorney, and interrogate the witness. The party desiring such testimony shall give to the other the following notice of the time and (5) 2 Gilm. 707. {t\ 30 111. 95. EVIDENCE. 781 Notice by mail, etc.^Instructions, etc, for taking depositions. 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." {it) Notice by mail^ or by advert isenicnt. — With respect to notice where personal service can not be had, the statute provides as follows: "When the deposition of any witness 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 is pending, or is in default, and no attorne}'' has appeared for him in such cause, upon filing an affidavit of such fact, and stating the place of residence of such ad- verse party, if known, or that upon diligent inquiry his place of residence can not be ascertained, the notice re- quired 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 known, by posting a copy of such notice at the door of the court-house where the suit is pending, or publishing the same in the nearest news- paper, and when interrogatories are required, filing a copy thereof with the clerk of the court ten da3^s before the time of suing out such commission." {y) Tnstrtictions, etc., for talcing depositions. — Where a deposition is to be taken under a commission, the following instructions and forms for the taking, certifying and re- turning of depositions, according to the laws of Illinois, may be inclosed with the commission : No. 342. Captio7i of the deposition. The deposition of L. M., of the city of , in the county of and state of , a witness of lawful age, pro- duced, sworn, and examined upon his oath, on, etc., at my office in, etc., by me, J. K., a commissioner duly appointed {ti) I Starr & Curtis' An. Stat, 10S7 ; Rev. Stat. (1877) 479. (f) lb. ; lb. 782 EVIDENCE. Instructions, etc., for taking depositions. by the annexed commission, issued out of the clerk's office of the Court of the county of , in the state of Illi- nois, under the seal of the said court, and to me directed, as such commissioner, for the examination 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 c|efendant, on behalf of the plaintiff, as well upon the interrogatories of the -plaintiff as upon the cross-interrogatories of the dc- Jcndant^ whicli we're attached to the said commission, and upon none others. Tlie said L. M., being first duly sworn by me, as a witness in the said cause, before the commence- ment of his examination, to testify the truth as well on t|ie part of the plaintiff as the defendant, in relation to the mat- ters in controversy between the said parties, so far as he should be interrogated, testified as follows : Interrogatory i. {Here insert the first interrogatory i) Answer. {Here insert the answer — and so on succes- sively, in the order in which the interrogatories may be -pro-pounded and answered. Then follow i) Cross-interrogatories on the part of the defendant, and answers thereto by the said L. M. {Here zurite down the cross-interrogatories and answers successively.) (After the deposition is taken, the interrocjatories and answers should be read over to the witness; and if lie assents to the tnith of the answers as written down, he will then si^ his name at the bottom of the deposition, and swear to the truth of it before the commis- Bioner. This oath is in addition to the preliminary oath, which is administere«^ before the commencement of his examination. The commissioner should then certify as to the time, place, and manner of taking the deposition, as follows:) JVo. 343. Certificate. I, the above-named J. K., of, etc., a commissioner duly appointed, by the annexed commission, to take the depo- sition of -the said L#. M., the witness whose name is sub- scribed to the foregoing deposition, do certif^s that before the commencenient 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 contro- versy between the said parties, so far as he the said L. M. should be interrosfated concerning the same ; that the said deposition was taken at my office, in, etc., on, etc. ; and] tljat after the said deposition was taken by me, as aforesaid, EVIDENCE. 783 Instructions, etc., for taking depositions. the interrogatories and cross-interrogatories, and the an- swers 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 foreg-oing- certificate should be at the foot of the deposition, immediately following the signature of the ■witness. The commissioner should then fold up the deposition, tos^ether with the commission and interroo^.atories, and all exhibits, if any, properly marked or lettered, as " exhibit A," "ex- hibit B," etc., and enclose 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, accord! no- to the proper title of the suit, and direct the 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 permitted to dictate, write or dra^v up any part of the deposition, or — when taken upon written interrogatories — to be present during the taking of the same. {~v) One caption will answer for the depositions 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, as 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., beino- first duly sworn by me, as witnesses in the said cause, etc. {Then, at the commencement of each deposition, say:) In- terrogatories propounded to the said E. F., a witness pro- duced and sworn as aforesaid, on the part of the plaintiff, and the answers of the said E. F. thereto, as follows : Interrogatory i. {Here insert the interrogatory.) Answer. {IJere insert the anszuer.) (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 read 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. One certificate as to the time, jilace and manner of taking such depositions, and th.it they 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.) When the deposition is taken by a justice of the peace, notary public, or other officer, as such, he should so de- scribe himself in the caption and certificate, and not aa (:.:') I Starr & Curtis' An. Stat. 10S9; Rev. Stat. (1S77) 4C0. See l Scam. 514. 50 78q EVIDENCE. Depositions — Remarks. comuiissioner ; and if so taken in another state, his return must be accompanied by a certificate of his official charac- ter, under the great seal of the state, or imder the seal of the proper court of record of the county or city where the deposition is taken, (x) • Interi'ogatories accompanying a commission to take a deposition 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 depo- sition was fairly taken, (y) A deposition will be sufficient, if it shows that the wit- nesses 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, (z) 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, (a) It seems that where the names of partnerships are indorsed as parties litigant, it is a substan- tial compliance with the statute, (d) It is a valid objection to a deposition, that it has been dictated or drawn up by an attorney in the cause; but the objection must be supported by proof of the fact, (c) Where a dcdimus was directed to a commissioner to take the testimony of " Seymour Rank," and the deposition re- turned was that of " Seigmond Rank," the variance was held to be fatal, {d) Objections to the form of depositions should be made before trial, but objections to their substance may be made at the trial. () 4 Scam. 557; 2 Scam. 326. [c) 33 111. 276. 792 TRIAL AND VERDICT. Who may open the case — Order of proceedings, elc. CHAPTER XXVI. TRIAL AND VERDICT. WAo may open the case. — The general rule is, that the party having the affirmative of the issue, and consequently the burden of the proof, shall open and close the case to the ]vi.ry. {a) Where the defendant pleads the general issue, and also special pleas, and the general issue is not waived, the plaintifl' always opens and closes ; (/-•) but if the defendant, at the opening of the trial, waives the general issue ; (c) or if he pleads onl}' 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, {d) 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, {c) 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 jury the declaration and subsequent pleadings, or stat- -giving the jury to under- ing the substance of the same («) 26 111. 418; 52 111. 336; 54 111. 25S; 7 Wis. I; 24 Geo. 211; JI Texas. 314; 119 III. 352; 106 111. 152. (b) 2 Met (Ky.) 5S1 ; 37 N. H. 229; 119 111. 352. (c) 90 111. 126. {d) 107 111. 489; l2Braflw. 454; 12 Tnd. 256; 26 111. 418; 57 111. 261. {e) 4 Pick. 156; 6 rick. 225 ; 7 Pick. 94. TRIAL AND VERDICT. 793 Order of proceedings on the trial, etc. Stand the questions to be determined — and briefly stating the facts and circumstances 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 ad- duce in support of it, and comments upon the statements of the opposite party, so far as to make his own case intel- ligible. Or, the counsel may waive his statement of the defense, until the opposite party has rested his case. The usual practice in Illinois, however, is for both parties to state their cases respectively to the jury, before the exami- nation of witnesses on either side. 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 witness, the court will first examine it as to its sense of the obligation 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. {J") A witness is not bound to answer a ques- tion in regard to any offense imputed to him, which would subject him to punishment. Whether he is bound to an- swer a question to his own disgrace merely, is not fulh'- settled, but it seems that such question may be asked, {g) In Illinois, a witness is not disqualified by reason of his conviction of any crime. (//) When the parties have concluded their evidence, the (/) 2 Hilton, (N. Y.) 247; 2 Met. (Ky.) 3S7; 2 Stark. Ev. 716. iff) 37 Miss. 383; I Stark. Ev. 137, 144. (/i) Rev. Stat. (1S77) 475. 794 TRIAL AND VERDICT. Deliberations of the jury. . * . . case is argued to the jury by the counsel for the party hav- ing tlie affirmative of the issue, after which the opposite part}^ rnay reply, and then the former has the closing of the arficument. After the argument, the court instructs the jur}'' as to the law of the case, upon the evidence adduced, and the case is then committed to the jury. In Illinois, the instructions must be reduced to writing. (/*) Dclibci'ations of the jury . — After the case has thus been committed to the jury, unless a verdict is agreed upon without quitting the jury-box, the jurors retire to a room provided for the purpose, to deliberate upon their verdict, a sworn officer accompanying and taking charge of them. After the jurors have retired, they are not allowed to speak with any person save the officer who attends them, and not with him except to tell him whether or not they have agreed upon their verdict. Neither can they receive any new evidence, after having so retired. Even the judge who presided at the trial is not permitted to give any in- structions or directions to the jury respecting the cause, un- less in open court, and, where practicable, in the presence of both parties. Any such communication will be a good ground for a new trial, {j) But the jury may be called into the court for further instructions, either by agreement of counsel, or at the request of the jury. {Jc) In Illinois, all papers read in evidence, other than depositions, may be carried from the bar by the jury. (/) The jury should remain together until discharged by or- der of the court. By the practice of the courts, however, permission is frequently given to the jury, when out during a long adjournment of the court, or for the night, to seal (0 Rev. Stat. (1877) 740; 80 111. 51, 88; 79 111. 525, 555, 584; 77 III. 25,92, 182, 217, 280, 309; 78 111. 302, 332, 347, 433, 438, 443> 492. (;■) I Pick. 337; 23 III. 349- (Jt) 20 111. 392. See 33 111. 4S5. (/) Rev. Stat. (1877) 741. See 37 111. 538; 19 111. 456; 12 Vt. 582; 7 Vt. 149; 22 Vt. 563; 9 Ivld. 145 ; 76 111. 48S; 111. 383; 67 111. 219. TRIAL AND VERDICT. 795 Deliver}' of the verdict, etc. up the verdict, when agreed upon, and then to separate ; (w) but a permission to the jurors to seal up their verdict, and separate, does not dispense witli their personal attendance in court when the verdict is opened ; and if any of them then dissent, the verdict can not be received. (72) If the jurors are wholly unable to agree upon a verdict, the court, in its discretion, will discharge thetn Delivery of the verdict, etc. — When the jurors have agreed upon their verdict, they return with it at once into the court, if then open ; otherwise as soon as it is open. If by permission of the court they have separated after hav- ing agreed, the verdict should be in writing, and sealed up. The verdict, if in writing, is then read aloud by the clerk, or judge, who asks the jurors if they affirm the same ; for a verdict is not valid and final until pronounced and re- corded in open court ; and before it is thus affirmed, the jury may vary the verdict as first returned. {0) After the verdict is received, the jury may be polled, at the request of the party against whom it is rendered — that is, the jurors may be asked, individually, whether they agree to the ver- dict as it is read ; and then any juror may disagree there- to ; {-p) but when they have given their verdict, and have af- firmed it, it is beyond recall, and they are discharged from the case. No juror can then be allowed to say that he will not agree to it, {q) or that he agreed to it upon mistaken principles; (r) nor can the affidavit of a juror be read, to impeach the verdict. (5) {ni) 2 Scam. 70; 4 Gilm. 336; 8 Pick. 170. («) 4Gilm.336; 32 111. aS^. See 30 111. 256; 49X11.23,143; 12C.-1I. 4S3; 3 Bla. Com. 377; 131 Mass. 26. (0) 6 John';. 68; 7 Johns, 32; 31 Pcnn. 13I ; 15 Tcxa^;, 37; 32 111. 4S5. See 22 III. 357; 48 111. 52; HI 111. 432. (/) 2 Johns. Cas. 276; 9 Pick. 426; 6 Wis. 205 ; 19 Bradw. 85. {q) I Keb. 416; Howe's Pr. 25S; 80 111. 104. (r) 14 Mass. 245; 15 Bradw. 477. {$) 24 111. 187; 28 Geo. 78, 199; 22 Texas, 105; I Gray, 83; 12 Howard, (U. S.) 361 ; 30 111. 256 ; 112 111. 656. 796 TRIAL AND VERDICT. Verdicts — General. Verdicts. — ^Verdicts are of two kinds, general and special. The former are where the fury finds that the de- fendant is "guilty," or "not guilty;" "did promise," or "did not promise," etc. The latter are where special facts are found, and the questions of law thereupon referred to the court. These, in Illinois, have heretofore seldom oc- curred. General verdicts ought to be framed in the words of the issue tendered ; {t) but if they are informal, the court will put them in form according to the justice of the case, be- fore they are affirmed, if the point in issue can be collected from the finding ; (?^) or the court may send the jury back, to put the verdict in proper form, iv) A verdict should find the whole issue tried, {zv) and nothing more. If the jury should find facts not submitted to them, besides finding the issue, such improper finding will be rejected as surplusage ; {x) as if they should under- take to find costs for either party, with which subject they have nothing to do. {y) The party in whose favor the verdict is rendered should see that it is in regular form ; and this is usually done at the bar, before the verdict is affirmed. The statute of Illinois provides, that "whenever an en- tire verdict shall be given on several counts, the same shall not be set aside or reversed on the ground of an}^ defective count, if one or more of the counts in the declaration be sufficient to sustain the verdict." iz) (j?) 3 Pick. 124; 5 Pick. 244. See 33 111. 452; 38 111 63; 39 111. 164; 42 111. 148, 457 ; 43 111. 494; 44 111- 42, 352 ; 45 111- 437- («) 10 Mass. 64; 32 111. 75; 48 111. 52; 49 111. 72, 4S9; 52 111. 210; 54 III. 189 ; 104 U. S. 106. {v) 9 Ind. 157 ; 22 111. 357; 32 III. 4S5. (w) Salk. 372, 374; 6 Pick. 512. (^x) 6 Mass. 303 ; 4 Bradw. 94. \y) II Mass. 358. (z) Rev. Stat. (1877) 741 ; 112 U. S. 604; 113 U. S. 339. TRIAL AND VERDICT. Verdicts — Special. Where two suits between the same parties are consolidated, but one verdict is necessary, (a) Where the verdict of a jury is not in form, mere irregular- ity in the proceedings of the court in having the same put in form, as in oral remarks and instructions, which could not have affected the finding of the jury except as to the mere form of the verdict, will not be sufficient error to reverse, (d) Special verdict. — The act of 1887 provides, " That in all trials by jury in civil proceedings in this state in courts of record, the jury may render, in their discretion either a general or a special verdict ; and in any case in which they render a general verdict they may be required by the court, and must be so required on request of any party to the action, to find specially upon any material question or questions of fact which shall be stated to them in writing, which questions of fact shall be submitted by the party re- questing the same to the adverse party before the commence- ment of the argument to the jury. 2. Submitting or refusing to submit a question of fact to the jury when requested by a party as provided by the first section hereof, may be excepted to and be reviewed on ap- peal or writ of error as a ruling on a question of law. 3. When the special finding of fact is inconsistent with the general verdict, the former shall control the latter and the court may render judgment accordingly." (c) {a) 57 III. 126. Kh) 78 111. 589. (r) 3 Starr & Curtis' Suj pi. (1SS7) 435; Laws of 1887, p. 251. ,^9S NEW TRIALS. Misbehavior of the party prevailing. CHAPTER XXVII. NEW TRIALS. The practice of granting new trials is said to have be- gun, in England, in 1652. {a) At first they could be ob- tained only with the greatest difficulty, but in modern prac- tice they are liberally granted in fiirtherance of justice. Where however the proceedings in a cause have been reg- ularly and fairly conducted, courts will very reluctantly disturb a verdict and grant a new trial, {b) The principal grounds for setting aside a verdict and granting a new trial, ma}'' be considered under the follov/- ing heads : I . Misbehavior 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 trial will be granted ; (c) or if the prevailing party, his agent or counsel, surreptitiously hands to the jury any paper not previously offered in evidence, being material to the point in issue ; (f/) or if he or they directly approach the jury on the subject of the trial ; {c) or where indirect meas- ures have been resorted to for the purpose of influencing (rt) 7 Eng. Com. Law Rep. 293 ; S id. 273 ; 2 Hall, (N. Y.) 50. (J)') I Scam. i:!S; 12 Ind. 257; 8 Ind. 252. See 13 111. 85; 53 111. 354. (c) 7 Mod. 156; I Pick. 38, 42; 13 Mass. 218. (rf) Co. Lit. 227; I Sid. 235; 4 W. C. C. R. 1^9; 5 jSIass. 405; i Parker C. R. 256; 3 Foster, 471. {e) I Serg. & Rawle, 169; 7 Serg. & Rawle, 358; 4 Binn. 150; 13 Mass. 21S; 2 Bay, 94; 6 Greenl. 140; 32 III. 4S5. NEW TRIALS. 799 Mistakes and misconduct of jury, etc. the jury, {/) or tricks practiced, [g) or disingenuous at- tempts made, to suppress or stifle evidence, or thwart the proceedings, or obtain an unconscientious advantage, 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 the 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. {U) Where a juror had formed and expressed a decided opinion upon the merits of the case, adverse to the defend- ant, and that fact was not known to the latter, or his coun- sel, who exercised proper diligence by asking the juror, before he was sworn, whether he had formed and ex- pressed an opinion, — it was held that the defendant was entitled to a new trial. (/) If the jurors act in disregard of their oath, {ni) drink spirituous liquors after being charged with the cause, (;z) or resort to artifice to get rid of their confinement, {p) or com- mit other acts of that sort, it will avoid a verdict. (^) But (/) 3 Brod. & Bing. 272; 7 Moore, S7; 7 East, 108. (^) II Mod. 141 ; II Geo. 203. (//) Grah. N. T. 56; 4 Chit. Pr. 59. (O 32 in. 4S5. (y) I Term, 11; Barnes, 441; i Stra. 642; 12 Pick. 496; 7 Clarke, (Iowa) 81, 482; 7 id. go; 14 Mass. 205 ; i Mass. 530; 62 111. 332. {k) I Mass. 530, 543. See 88 111. 245, 312. (/) I Gilm. 659. See 14 Mass. 205; 3 Dall. 515; 9 Cal. 298. (m) Cro. E:.iz. 778; 25 Geo. 494; S Clarke, (Iowa) 477. See 47 III. 206. (h) 4 Cow. 20; 7 Cow. 562. {o) 5 Cow. 2S3. (/)Bumb. 35; Barnes, 43S; i Str. 462; i Bl. 129;; Comb. 357; 4 Cliit. Pr. 48. 8oo NEW TRIALS. Verdict against law and evidence. misconduct on the part of the jurors is not, in all cases, a sufficient ground for setting aside a verdict ; and althougii their misconduct may subject them to punishment, yet ii' there does not appear to have been any abuse, the verdict will not be disturbed, {q) If an officer, having cliarge of a jury, permits any mem- ber 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, (r) The affidavits of jurors themselves will never be received, to prove any impropriety or misconduct on their part, re- lating to the trial or verdict. (5) 3. Verdict agaiiisl lavj and evidence. — A new trial will be granted where the verdict of the jury is contrary to the law, (/) or manifestl}^ against the evidence, (w) But unless the verdict is clearly against the evidence, a new trial will not be granted ; iv) especially where two juries have determined the same way ; {zv) or where a former jury could not agree ; (a*) or where the v^erdict is against the party having the burden of proof, (jy) A new trial can only be granted in extraordinary cases, where i': is manifest that the jurors have mistaken or abused their {q) I Cow. 221, note. See 47 111. 376; 85 111. 56. (r) 19 III. 74. See 30 111. 256; 47 111. 376. (5) 24 111. 187; 9 Geo. 121; 1 Gray, S3; 1 Parker C. R. 256; 5 Fos- ter, 114; 8 Texas, 159; 12 Geo. 500; 12 How. U. S. 361; i Term, 11; I Mass, 542; 4 Mass. 391; 28 Geo. 78, 199; 30 111. 256; 45 111. 37. But see Breese, 24 ; 88 111. 245 ; 89 111. 386. {t) 5 Mass. 547; 18 Pick. 13; 9 Geo. 40S; 36 Miss. 458; i6 111. 500; 4 111. 206; 85 111. 238. («) 5 Mass. 353; 7 Mass. 261 ; 8 Mass. 336; 13 Mass. 507; 27 Geo. 593; 28 Geo. 491; 20 Ark. 443; 2 Hilton, (N. Y.) 397; 24 Miss. 694; i2Cal. 88; I Head, 25S; 37 Maine, 351. See 2 W. & L. 111. Dig. 66S-677; 55 111. 317. [v) 5 Mass. 353; 15 Pick. 291; 7 Ohio, 276; 28 Geo. 308; 8 Flor. 299; 35 Miss. 381 ; 23 Texas, 156; 10 Cal. 301. See 2 W. & L. III. Dig. 66S-677; 55111.317; 87111.454; 86 111. 501. (w) 9 Mass. 436; 7 Mass. 297; iS Pick. 13; 14 Miss. 358 (.r) 8 Pick. 122; 13 Geo. 34. O) 18 Pick. 13. NEW TRIALS. 8oi Excessive or inadequate damages — Admitting or refusing evidence. trust, {z) or where the verdict is clearlj'- against the weight of evidence, {a) 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, {b) 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 ascertained, {c) And whenever the court is satisfied that there is no reasonable proportion between the injury and the compensation, it is its duty to grant a new trial, {d) The damages, however, must be clearly exces- sive or inadequate, and such as everybody would oxy out against, and not merely a sum larger or smaller than the judge who presided at the trial would have given, {e) 5. Admitting im'pro^cr, or refusing proper evidence. — If the court errs in admitting or refusing testimony, a new trial will be granted ; [f) but if the improper testimony is not objected to on the trial, and the whole evidence has been weighed b}' the jur}-, the court will not disturb the verdict, [g) A verdict will not be set aside because evidence has been erroneously admitted, if such evidence is entirely unim- {z) 8 Pick. 122, 126. See 2 Scam. 296, 53S; 6 Wis. 319; 47 111. 206. {a) 20 Pick. 285, 289; 15 Pick. 291; 13 111. 697; z^ 111. 325; 34 111. loS. (3) 16 Mass. 345; 12 Geo. 229. (0 5 Mass. 435; 21 Pick. 37S; i N. J. 183; 44 111. 425. See 7 Wis. 465. id) 15 Mass. 365 ; 6 Clarke, (Iowa) 97 ; 29 Barb. (N. Y.) 234. See 2 W. & L. III. Dig 672-677 ; 55 111. 492; 87 111. 94, 125, 242; 86 111. 210, 290. (e) Stra. 692; 3 Wils. iS, 62; 7 Term, 529; 7 Pick. 82; 5 Ind. 250; 19 Conn. 319; 3 Strobh. 425; 2 Met. (Ky.) 558; i Hilton, (N. Y.) 126, 147; 27 Geo. 58. See 2 W. & L. 111. Dig. 672-677 ; 55 111. 185, 318 ; 86 III. 49S. (/) 7 Mass. 518; 7 Johns. 306; i Cal. 92; 24 111. 597; 50 111. 290. {§■) 4 Blackf. 369; 4 Mass. 245. See 2 Scam. 245, 248. So2 NEW TRIALS. 1 Error in charge to jury. portant ; (Ji) nor when a new trial must result in the same verdict, [i) But the admission of incompetent or irrelevant testimony, calculated to make an impression on the minds of the jury, is a good ground for a new trial ; for it is im- possible to say what influence such testimony may have exerted. (/) The refusal to admit proper evidence is not a gromid 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 afterwards procured the attendance and testimony of the witness at the trial, it was held that the rejection of the deposition was not a ground for a new trial, {k) ' 7. E^ror in the charge to the jury. — Error of the court in improperly charging or refusing to charge the jur}^ is a ground for a new trial. The following observations, under this head, refer to the statutory provisions and the adjudi- cations and practice in Illinois, respecting instructions to the jury. It is provided by the statute, that the court, in charging the jury, shall instruct onl}- as to the law of the case ; and all instructions 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 explain them, otherwise than in writing ; {m) (Jt) 5 Ind. 2S6; 8 Rich. 90; 14 Ark. 114; 3 Foster, 507; 14 000.^43; i Cal. 92; 3 Bosw. (N. Y.) 505; 39 N. H. 247; 36 Miss. 45S; 31 Maine, 343; 4J 111. 300. See 40 111. 316; 45 111. 22S; 50 111. 61. (/) 16 Geo. 368; 36 Miss. 178, 617. See 42 111. 300. 87 111. 105. (/) 9 Barb. 619; 13 Barb. 42; 35 Miss. 584; 36 Miss. 165; 22 Tex. 257. (-^) 15 N. H. 504. See 19 111. 631. (/) Rev. Stat. (1874) 781 ; Rev. Stat. (1877) 740; 85 111. 526. {vi) Rev. Stat. (1877) 745; 19 111. 82. See 11 111. 4S3; 83 111. 19; 77 HI. 182; 71 111. 100; 70 111. 571. NEW TRIALS. So^ Error in charge to jury. but he is not prohibited from giving, of his own accord, any written instructions appHcable to the case, (n) 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 prop- ositions to be held as law in the decision of the case, upon which 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." (o) Instructions must be based on the evidence, and appli- cable to the case, and not contain mere abstract proposi- tions, (p) They should be concise, briefly presenting the points of law on which the party relies, and not argumenta- tive ; (q) and they ought to be as few and simple as possible, as otherwise they are likely to mislead the jury, (r) Instructions should present the law of the case, leaving the facts to the jury, and not assume facts to have been proved, {s) If instructions given were calculated to mislead, and must have misled the jur}-, it is ground for a new trial, or a re- versal of the judgment. (/) When two instructions are asked, both containing tlie same principle of law, the court may give the one and re- fuse the other, (u) If substantial justice has been done, even though im- proper instructions have been given, or proper instructions («) 4 Gilm. 439; 20 111. 47S; 22 III. 140. (o) Rev. Stat. (1877) 741 ; 83 111. 354; 79 I"- 388 (/) See I Scam. 47; 14 111. 472; 18 111- 266; 19111.29,510; 20 111. 115 478; 27 111. 440; 28 111. 135; 29 III. 269:37 111. 341; 43 111- 119; 44 III. ^^3, 46 111. 460; 49 111. 62; 50 111. 512; 54 111. 4S5; 86 111. 424. - ( Assumpsit. A. B. ) And now comes the defendant, by his attorney aforesaid, and moves the court to set aside the verdict ren- dered, and to grant a new trial, in this cause. And for grounds of his motion the defendant shows to the court the following, to wit : 1. The court admitted, on the trial, improper evidence on the part of the plaintiflf, that is to say, [here sfecify such evidence^. 2. The court refused to admit proper evidence offered by the defendant, that is to sa}^ {Jicrc specify the evidence^. 3. The court improperly gave to the jur}^ the second ^ fotirtJi -Aw^. fifth instructions asked by the plaintiflT. 4. The verdict is contrary to the law and the evidence in the case. {Any other grounds may he specified in like manner i) 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. \%v) Where the cause is tried by the court, without a jury, it is not necessary that a motion for a new trial should be [v) 2 Starr & Curtis' An. Stat. 1826; Rev. Stat. (1877) 74I. \w) 27 111. 411, See 40 111. 122; 21 111. App. Ct. 5SS. NEW TRIALS. S09 Setting nside defrailt, etc. made, in order that the evidence in the cause may be re- viewed in the Supreme Court, (.v) 'UA^'tCvr^ v.ut.«,*xa^ - 8i6 JUDGMENTS. Judgment hy default — Writ of inquiry. JVrii of inquiry . — Inquisitions of damages are generally taken, in Illinois, in open court ; (r/) but a writ of inquiry may be directed to the sherifF of the county, to be executed in vacation, {e) 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 the facts, to set aside the inquest; (/;) and the insufficiency of the writ can not be assigned for error, the proper practice being to move the court wherein the suit is pending to quash it. (/) The sherifF, in executing the writ, acts ministerially, and not judicially. (_/') In the assessment of damages on a writ of inquiry, the defendant 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 inquest, upon affidavit showing the evidence, {li) When a party is dissatisfied with an assessment of dam- ages 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 mo- tion, it seems the decision ma}'' be reviev/ed on error. (/) The defauit of the defendant, as well as his failure to plead over after a dem.urrer has been overruled, admits the cause of action, but not the amount of damages claimed in (^) See 16 III. 522, 71 ; i Scam. 215, 543. (/) 16 111. 71. See I Scam. 233. JUDGMENTS. 817 Judgment by default. the declaration ; and the amount of damages may be liti- gated upon the writ of inquir}^ {1:1) A default precludes the defendant from questioning the validity of an indorse- ment of a note on which he is sued. («) 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 rendering the judgment, to correct the mistake. After a considerable delay, it will not be corrected on error, [o) A judgment by default will not be regular unless the de- fendant has been duly 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. ((/) When a defendant has pleaded, the plainti/T has no right to have him called, and take judgment by default; (r) and where the record shows that a plea was filed, and a judg- ment by default rendered, on the same day, the judgment will be reversed, (s) 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, (t) 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 judgment against the defendant in default alone, (u) (m) 7 Ind. 406; 4 Blackf. 466. See 16 111. 522 ; 27 III. 15. («) 26 111. 84. (o) 28 111. 436. See 33 III. 3S8. (/) See 23 111. 572; 24 111. 227; I Scam. 239; 3 Scam. 152. 0/) 3 Scam. 153. (O I Scam. 390, 534. (s) 1 Scam. 3S7. (/) 4 Scam. 361 ; i Scam. 552. See ^;i 111. 51S. («) 4 Scam. 338, 361. 8i8 JUDGMENTS. Judgment of nonsuit etc. 2. yudginciit of iionsiu't, etc. — ^Judgment of nonsuit may pa.ss against the plaintiff', when, on the trial, he abandons his suit. By statute in Illinois, if the plaintiQ' desires to take a nonsuit, he must do so before the jury retires from the bar; (v) and it is held that when a cause is tried by the court, without a jur}", a nonsuit may be taken at any time before the court notes down the find- ing- (^^) 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 judg- ment as in case of nonsuit, (a-) 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- {y) Judgment may also be given against the plaintiff for not declaring, or replying, etc. ; and these are called judg- ments Q){ nan ^ros. {iion proscqtiiiti?'.) 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 " withdraws 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, — .here is judgment against him of nolle ^prosequi, retraxit^ or cassetur breve, or narraiio, in these cases respect- ively, {z) In cases of nonsuit or non pros., the plaintiff m.ay be (y) Rev. Stal. (1S74) 7S1 ; Rev. Stat. (1S77) 740. See 3 Bia. Com. 376; Steph. PI. 109; 12 Mass. 47; 2 Scam. 261 ; 34 111. 429. (tc) 17 111. 494; 24 111. 464. (.V) Steph. PI. 109. O) 3 Bla. Com. 376. {z) Steph. PI. 109. JUDGMENTS. S19 Judgment on demurrer and verdict — Form _.* judgment, et;. called, and his default entered, in like manner as where a defendant makes default, as above mentioned. 3. yiidgment on devuirrcf'. — ^Judgment for the plaintiff ^ on demurrer to a plea in abatement, or to a replication to such plea, is merely that the defendant answer over — respondeat ouster, {a) And in all other cases of demurrer, in actions sounding 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 tlie case of a default, when -final judgment is given. Judgment for the defendant, on de- murrer, is in all cases final, {b) Except in the case of a decision for the defendant on demurrer to a plea in abatement, 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. {c) 4. 'Jtidgment 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 dam- ages, if any are given. Form of jtidomcnt^ etc. — A judgment for ^\q ■plaintiff (except respondeat 07t-ster) always follows the nature of the action. In actions of assumpsit, covenant, trespass, and -he like, in which damages only are demanded, the judg- ment for the plaintiff \<. that he recover his damages, as lound 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 ot debt, the judgment is that he recover his debt, and dam- («) A/Uc, p. 149; Steph. PI. 105; 12 111. 49. (Z>) Steph. PI. 107. (.c) See sec. 23, 111. prac. act 820 JUDGMENTS. Form of judgment, etc. ages, if any, and costs. The proper form of a' judgment for the plaintiff, in an action of debt on a penal bond con- ditioned for the performance of covenants, is that he re- cover the amount of the debt, to be discl^arged by the pay- ment of the damages and costs, {d) In ejectment, the entry is that he recover the premises demanded in tlie dec- laration, and costs, etc. In all cases, if the defendant pre- vails, he recovers his costs merely (except where he has pleaded and proved a set-off larger than the am.ount due to the plaintiff, in which c«ise 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 defendant go thereof without day. In replevin, final judgment for \.h.Q plaintiff \s for his dam- ages, 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, (c) 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 resi- due. (/) 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, {g) [d) 31 111. 254; ante, p. 334, 335 ; 72 111. 71 ; 69 III. 253. ((?) See, as to judgts., Steph. PI. 105-111; i Chit. PI.; i Ilumphr. Pr. (/)33lH-3S8;37lll- 29- (■ ^ ) 48 III. 309. JUDGMENTS. 821 Form of judgment, etc. In a qui tarn action on a statute, giving half of the pen- alty 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 a'vard execution in that form. (/;) '«)S4lI1.356. See 50 111. 48. 822 CONFESSION OF JUDGMENT. Mode of proceeding, etc. CHAPTER XXX. CONFESSION OP^ JUDGMENT, IN ILLINOIS. The statute of Illinois provides as follows : '* Any per- son, for a debt bona fide due, may confess judgment by himself, or attorney duly authorized, either in term time or vacation, without process. Judgments entered in vacation shall have like force and effect, and from the date thereof be- come leins, in like manner and extent as judgnients entered in term." (i^) The established practice, in Illinois, in cases of confes- sion of judgment in courts of record, is to file a declaration on the cause of action, a warrant of attorney, (usually ac- companying a promissory note,) with an aflidavit proving it, and a plea of confession, or cognovit, {b) Where a judgment is entered in vacation, b}^ the clerk, the proper papers should be filed with him ; and these be- come part of the record, and a bill of exceptions is not nec- essary to bring them before the Supreme Court. Judg- ments confessed in vacation, before the clerk, are not judi- cial acts. They are merely conclusions of law, or con- tracts acknowledged of record, (c) 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 insufiicient to warrant the confession, the defendant may apply to the court, when in session, to have the judgment vacated ; and from the decision of the court on that appli- (rt) 2 Starr & Curtis' An.' Stat. 1S2S ; Rev. Stat. (1S77) 742; 78 111. l^'o, 627. (/;) See 24 111. 598 ; 34 111, 501 ; 35 111. 255. (f) 24 111. (jT,; 115 111. 93, 112 Hi. 36; 91 III. 571. CONFESSION OF JUDGMENT. 823 Proof of warrant, etc. cation, the parties may prosecute a writ of error in the Su- preme Court. Where such judgments are confessed in open court, it is presumed that the authority to confess the judgment was judicially passed upon by the court, {d) at least when the record recites that due proof of the warrant was made ; {e) but a judgment confessed in vacation cre- ates no such presumption. (_/") The declaration should correspond with the nature of the action, and may be taken from the precedents already oiven. 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 afiix a seal to the warrant of attorney, it is not necessary to do so. {g) The proof of the warrant, etc., when the judgment is confessed 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 : JVo. 345. Proof of zuar rant of attorney, etc. State of Illinois, ) County of , 5 5ct. E. F., of, etc., makes oath and says, that he knows CD., whose name is subscribed to the promissory note and warrant of attorney hereto an- nexed, (*) and was present and saw him sign the said note and warrant, on or about the day the same bear date. E. F. Subscribed and sworn, etc. 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 tliat the signatures, purporting to be his, to the said note and warrant, are in the handwriting of the said C. D." {d) 24 111. 598; 34 111. 501 ; 32 111. 44; 60 111. 7S; 90 111. 327. (0 35 in. 255, 513; 91 III. 571 ; 117 111. 251. (/) 24 111. 93 ; 35 III. 514; 18 Bradw. 94; 117 III. 251. {g) 4 Gilm. 411 ; 18 Eng. C. L. 209; Tidd's Tr. 546. See 2 N. II. 520 ; i Scam. 428; So 111. 185. 824 v^UiNFESSION OF JUDGMENT. Cos^uovt't. A promissory note was made by H. & Brother, and a power of attorney to confess a judgment upon the note was written on the same paper, and signed by one of the makers of the note only ; on the back of which paper was this afhdavit : " C. P., being first duly sworn, doth depose and say, that he is well acquainted with the handwriting of 11. & Brother, and that he believes the signatures to the within note and power of attorney to be true and gen- uine." Tins was held to be sufhcient proof of the execu- tion of the power of attorney ; and a judgment against the partner who signed it was sustained. The court said it was imm.aterial how the affiant acquired his knowledge of the handwritmg ; it was sufficient that he swore that he Wvis well acquainted tvith it. {h) JVo. 345. Cognovit. In the Court. Term, iS— . C. D. ^ ats. ^^ Assumpsit, A. B. ) And the said C. D., defendant, by G. IL, 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 de- claration mentioned, (and including the sum of dol- lars for his reasonable attorney's fees in this behalf,) has sustained damage to the amount of dollars, over and above his costs by him about this suit expended. And the defendant agrees, that judgment may be entered against him, in this behalf, for that amount and such costs ; and that no writ of error or appeal shall be prosecuted on such judgment, nor any bill in equity exhibited to interfere in anyinanner with the operation thereof: And he releases all errors that may intervene in the entering of such judgment, or in the issuing of execution thereon, and con- sents to immediate execution on such judgment. Courts of law possess an equitable jurisdiction over (/.) 32 111. 39. CONFESSION OF JUDGMENT. S25 Power of courts over judgments, etc. judgments entered by confession upon warrants of attor- ney, (/) and in proper cases will liberally exercise such jurisdiction. {J) Where an application is made for the exercise of this equitable power, and it clearly appears that the plaintiff was not entitled to judgment on the bond, or note, and warrant of attorney, the court will vacate the judgment, and leave him to pursue the ordinary remedy by action ; but if the case is involved in doubt, or the tes- timony is so contradictory that the truth can not be ascer- tained with reasonable certainty, an issue may be directed to try the question — in other words, the defendant may be let in to make a defense on the merits, {k) The court, in such case, will fully protect the rights of the parties, by staying all proceedings on the judgment, -and permitting it to stand as a lien and security, until the merits of the case are heard and determined. If the defense is successful, the judgment falls ; if otherwise, the judgment is to be enforced. (/) Where the defendant had been let in to plead, the orig- inal 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 ex- ecution already issued, was held to have been properly made. {)n) After a judgment was entered by confession, the defend- ant was allowed to plead, the judgment remaining as secu- rity to the plaintiff. Pending the trial of the issues, the plaintiff asked leave to take a nonsuit, and also moved the court to vacate the judgment ; and it was held that there was no reason why this should not be done, and that the nonsuit, to which the plaintiff had a right, would have (e) S6 111. 159; 15 111. 353 ; 17 Bradw. 3) 2 Starr & Curtis' An. Stat. 1822; Rev. Stat. fiSyy) 741 ; 80 Til. 32, 82; 79 111. 257, 316, 471; 78 111. 292; 7> 111. 92, 151, 493 ; 76 111. 445, 515. {c) 3 Scam. 5. See 113 111. 654; 115 111. 566. 830 BILLS OF EXCEPTIONS. Time 10 except — Signing and sealing of bill, etc. excepting may assign for error any decision so ejxcepted to." {d) Exceptions to the granting of such motions are not allowed. (-) or a copy of an instrument indorsed on a declaration ; iJi) or a bill of particulars; (/) can only be made a part of the record by a bill of exceptions, and unless so presented will (^) 3DaU. 38; BuIlN. P. 316. (a) See i Scam. 233, 501 ; 3 Scam. 1S5, 289; 4 Scam. 30, 58, 4^9*. 2 Gilm. 725; 3 Gilm. 366; 5 Gilm. 209, 47S; 11 111. .sS6; 12 111. 143; 13 111. 76, 344, 570,633; 16 111. 13S; 19 III. 393; 20 111. 221; 28 III. 68; 37^11-43; 4° 111-395; 43 111. 146; 49 111. 4S9. (*) I Scam. 501 ; 2 Scam. 495; 3 Scam. 427. See 17 111 234. (c) 19 111. 393. {d) 28 111. 68; 77 111. 493; 73 111. 320, 366; 66 111. 329. {e) See 21 111. 31; 51 111. 85 ; 53 111. 252,366; 77 111. 151 ; 64 111. 314; 59 111. 182; 90 111. 415. (/) See 28 111. 314; 89 111. 156; 84 111. 49. (^)3i 111.97. (//) 26 111. 184. See 24 111. 1S7. (O24III. 262;3illl. 515- 834 BILLS OF EXCEPTIONS. What the bill should contain — When necessary, eic. not be considered by the appellate court, A party can not question, on error, a ruling of the court below in refusing to require the plaintiff to file a more definite bill of particu- lars, unless that already filed is prescrx ed in the record by a bill of exceptions. (/) And when a party excepts to the denying of a motion, (on which counter testimony may be heard,) and shows in his bill of exceptions an affidavit in support of the motion, he should also show that such affi- davit was the onl}' evidence heard on the question. {J) And it is said that " the mere entry of a motion does not make the motion or reasons therefor a part of the record, but that must be done by bill of exceptions." [k) The proper practice, where a party objects to an order upon a petition for the removal of a cause from a state to a federal court, is to preserve in a bill of exceptions the evi- dence upon which the order was made ; and the record will then show whether or not such order was erroneous. (/) To enable the appellate court to pass upon the propriety of modified instructions, the instructions as asked should be before that court, and also the modifications as made by the court below, {m) Errors assigned on the refusal of in- structions will not be considered, unless those instructions which were given are preserved in the record, {n) In the case of an exception to the admissibility of testi- mony, the particular testimony objected to, and, it seems, the ground of the objection, should appear by the bill of exceptions, {o) And where the bill of exceptions does not purport to contain all the evidence, the presumption is in favor of the verdict. (/) (;') 31 /il. 515. See 72 111. 292. (/) 16111.390. (yJ)3SIll. .97; 42111.321. (/) 106 111. 652; 49 111. 4^9; 89 111. 152; 56 111. 353 ; 6s 111. III. {m) 32 111. 130; 37 111. 43; 38 111. 503; 42 111. 17; 54 111. 158; 77 III. 603. (n) 54 III. 158; 109111. 457. {0) 26 111. 173; III 111. 420. (/) 23 111. 90; 36 111. 206; 37 111. 43; 39 I'l. 295. 370; 42 111. 123; 44 III. 124; 52 111. 80; 55 111. 341; 89 111. 151; 85 111. '38; 76 111. ,-,^5; 72 111. 456; 78 111. 356; Ii8 111. 304; 19 Bradw. 585. BILLS OF EXCEPTIONS. 835 What the bill should contain — When necessary, etc. If documents introduced are lengthy, and relate partly to other matters, it seems the material parts only need be preserved in the record, {q) A bill of exceptions is not necessary in any case where the error is intrinsic, appearing on the face of the rec- ord, (r) An exception to the overruling of a demurrer, (5) or a motion in arrest of judgment, {t) is improper, as these matters are part of the record, and need no bill of excep- tions 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, [u) Interrogatories to and answers of a garnishee, (v) or a submission and award filed for the purpose of obtaining judgment, (w) are part of the record, and need not be put into a bill of exceptions. Where a judgment is confessed in term^ on a promissory note and warrant of attorney, these papers can become part of the record only by being preserved in a bill of excep- tions ; (x) but it is otherwise in the case of a judgment con- fessed in vacation, (^y) Original papers, even by consent, can not be presented in the appellate court as part of a bill of exceptions, unless something is to be 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 clearh^ identified by the bill of exceptions, {z) A bill of exceptions presenting a mere abstract proposi- (jf) 19 111. 64. (/-) 21 111. 40; 23 III. 209; 10 Bradw. 564. (j) 21 III. 220; 22 111. 207; 29 111. 245; 69 III. 47; 15 Bradw. 308. (/) 29 111. 245; 40 111. 395. («) 20 111. 221; 24 III. 289. {v) 27 111. 352. (w) 27 111. 374. (^) 55 111. 94. 0') 24 111. 94; 55 111. 94. (=) 19 111. 64. 836 BILLS OF EXCEPTIONS. Forms of bills, don, as applicable to one case as to another, can not be made the foundation of a writ of error. The party except- ing must distinctly point out wherein he supposes himself to be aggrieved, (a) Although a bill of exceptions may show that testimony was improperly admitted or excluded, or instructions were improperly given or refused, or other error was committed by the court, 3'et unless it also appears from the bill that the proper objections were made and exceptions taken, such matters can not be assigned for error, (b) The counsel for the party excepting prepares the bill of exceptions, 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. It is impossible to give forms of bills of exceptions appli- cable to all cases. The following may be used, varying them to suit the circumstances. JVo. 347- ^/// of excefti^ns to evidence^ instructions y and denying of motion for ne7v trial. In the — Court. Term, 18—. C. D. ^ ats. > Assuiu'psit. A. B. 3 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 question the defendant, bv his counsel, tlien and there objected, lor the reason, etc. ; but the court overruled the objection, and (a) /^ Ohio, 79, 3SS; 7 Ohio, 212; 12 Ohio, 132. See 26111. 173. {l>) See Breese, 343; i Scam. 2S1 ; 3 Scam. 483; i Gilm. 572; 4 Gilm. 319; 12 111. 74, 87; 13 111. 341, 454; 17 111. 67; 22 111. 1S3.; 23 111. 470; 28 111. 314; 39 111. 370; 40 111. 220; 42 111. 283, 291, 321 ; 44 III. 264; 46 111. 280, 347; 52 111. 358; 54 111. 274, 280; 55 111. 448, 528. BILLS OF EXCEPTIONS. 837 Forms of bills. permitted the witness to answer the question, whicii 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 ivith 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 testified : I was not present, etc. {Proceed .ill like manner with the testimony of any other zvitnesses for the -plaintiff i) And thereupon the defendant gave in evidence on his behalf as follows, that is to say : {Here insert the testimony for the defendant^ zvith 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 jury, on behalf of the plaintiff, the following instructions, to wit : {Here insert the instructions for the plaintiff i) 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 defendanti) And the defendant, by his counsel, then and there asked the court to also give to the jury the following instructions, to wit : {Here insert the refused instructions.) But the court refused to give these instructions to the jury ; to which decision of the court, in refusing to give the same, and each of them, to the jury, the defendant, by his counsel, then and the^e excepted. And thereupon the jury rendered a verdict against the defendant; whereupon the defendant, by his counsel, then and there moved the court to set aside the verdict so ren- dered, and grant a new trial of this cause, and filed the foUowinrj reasons in writing: lor his motion, to wit : {Here insert the reasons filed.) But the 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 coun- sel, then and there excepted. 838 BILLS OF EXCEPTIONS. Reference. And forasmuch as the matters above set forth do not fully appear of record, the defendant tenders this his bill of excep- tions, and pra3's 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. 348. Bill of exception on the refusal of a coniintir- ance. ( Title of coti7't^ 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 affidavit, to wit : {Here insert the affidavit.^ But the court, having heard the said affidavit, (*) denied the said motion, and refused to continue this cause ; to which ruling and decision of the court the defendant, by his coun- sel, then and there excepted. And because the matters aforesaid do not fully appear of record, the defendant pre- sents 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. ; which is accordingly done. L. M., Judge, [l. s.j In the case of a motion on which counter affidavits or testimon}^ 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, (c) Bills of exception may be amended upon application and notice to the adverse party; but it must be made in term time, {d^ See several bills of exceptions to instructions of the court, in I Scam. R. 47, 107, 181, 187; a bill of exceptions to evidence and the denial of a motion for a new trial, in 18 111. R. 392 ; and a bill of exception on the denial of a mo- tion to set aside a judgment by confession, in i Scam. R. 428. (c) 16 III. 390. {d) 62 111. 121; 68 111. 269; 40 111. 102. REFEREES. 839 Referring causes b.y agreement. CHAPTER XXXII. REFEREES. Referring caiises by agreement. — Section i of the act of 1872, entitled "An Act to provide for referees in common law cases," [a) declares, "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, jither 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. {B) 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 au- {a) 2 Starr & Curtis' An. Stat. 2CO3 ; Rev. Stat. (1877) S05. (b) 19 Bradw. 24. 840 REFEREES. I Exceptions to report. thorizes no report by a referee except one containing the evi- dence heard and giving the referee's conclusions thereon, to which the parties are entitled to be heard on exceptions. If the report fails to give the evidence, no judgment can be entered on it. (c) 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 per- son, though not in compliance with the statute in reference to arbitration, or that concerning the appointment of a ref- eree, 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 agree- ment that judgment may be rendered thereon, under the stat- ute. In such cases it is held that nothing but a strict sub- stantial compliance with the statute will authorize the court to enter a judgment upon the award, (d) The referee is an* officer of the court, and can only be appointed by an order of the court, {e) Exceptions to report — When to be inade. — 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. (/) The report and findings of a referee under the statute in reference to the facts, is 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, i^g) {c) 90 111. 307. ( Trespass on the case. Ihe Railroad ^ Company. J We, A. B., plaintiff, and the defendant, Railroad Company, in the above entitled cause, now pending and undetermined in said court, in pursuance of the statute in such case provided, do hereby mutually make this an agt"eed case and hereby stipulate 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 {Jiere set forth the substance of the allegations of each count); and that on, etc.^ the defendant filed its pica of llic general issue thereto, to which the plaintifi' added a similiter. That the facts of the matter in controversy are as follows : {Here set forth the facts in the case as agreed 7ipon.) It is further stipulated and mutually agreed by and between the said parties, 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 entitled 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 between them, and filed in said cause. [h) 18 Bradw. 65. {i) See 18 Bradw. 65. AGREED CASES. 849 Decision of court upon, between parties in suit pending, that the court shall decide thereon, and shall render judg- ment therein, according as the rights of the said parties, in law may appear, in the same m.anner as if the facts aforesaid were proved upon the trial of said issue, in pursuance to the statute in such case provided. Dated, this day of A. D. 18—. A. B. by , his attorney. The Railroad Co. by , its attorney. N^o. 356. Decision of the co7irt upon agreed case bctivcen par- ties in suit pending. (Under section 74, Practice Act.) (/) ( Veuiie^ and title of cause as in No. 3S4--) And now come the plaintiff and defendant, by their re- spective attorneys, 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 be- tween them ; and the same having been argued by the attor- neys for the parties respectively ; and the court being fully advised in the premises, 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 amiount of the cost of the fence mentioned. III. That under the stipulation and agreement by and between the parties, and upon the said agreed f 'cts 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 entitled 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 (/) See 18 Bradw. 65. ♦ i*i S50 AGREED CASES. Agreement that judge may certify questions of law, clerk of such court, without certifying any fuller record in the case, {/c) No. 357. Agreement that judge may certify questions of laiv. (Under Sec. 75, Practice Act.) {Vcnne, and title of cause as in No. jj/, ante.) We, A. B. plaintiff, and C. D., defendant, in the above en- titled 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 arising in this cause to the Appellate {or Supreme) Court, together with his decis- ion thereon, in pursuance of the statute in such case pro- vided ; 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 cause, to the Appellate Court {or Supreme Court), and filed therein ; and upon filing the same, the like proceedings maybe had in the Appellate {or Supreme) Court, as if a full and complete record had been transcribed and certified to said court. Dated this day of , A. D. 18 — . * A. B., Plaintiff. C. D., Defendant. No. 358, Agreement of parties as to questions of law arising in the case. (Under Sec. 75, Practice Act ) (Venue, and title of cause as in No. jj*^, 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 aris- ing 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 de- cision thereon, and the final decision in the case, may be cer- tified to the Appellate Court {or Supreme Court), and filed therein; and that upon filing the same, the like proceedings {k) See authorities already cited, anli. AGREED CASES. 851 Certificate of judge of questions of law, etc. may be had in the Appellate Court {or Supreme Coiirf), as if a full and complete record had been transcribed and certified to said court. Dated, etc. A. B., Plaintiff. C. D., Defendant. ^^'^- 359- Certificate of judge of questions of laiv arising in a case determined, etc. (Under Sec. 75, Practice Act.) (/) ( Venue, and title of cause as in No. J5/, ante.) The undersigned, judge of the, etc., hereby certifies that the above entitled cause was based upon, and originated in a dis- tress 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 property levied upon ; which was a war- rant 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 provided 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 assumpsit, 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 following reasons: {Here insert tJie ground fortlie 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 defendant, and against the plaintiff. That during the progress of said trial the following ques- tions of law did arise and were determined by me, as such judge, in said cause, that is to say : First. Whecher or not said plaintiff had a right to amend (/) See 86 111, 560. !52 AGREED CASES. Certificate of judge of questions of law, etc. 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 dis- tress warrant covering the aforesaid claims and demands of the plaintiff, outside of the claims and demands for rent, the plaintilfhad the right to make proof of such outside claims and demands. Third. Whether or not, in case of distress for rent, the ten- ant having entered his appearance, and filed a claim of set-off greater in amount than the landlord's claim for rent, the land- lord had the right, under any amendment which could be legitimately allowed to the distress warrant, to present and make proof of other claims and demands against the tenant, outside of the claim and demand for rent upon which the dis- tress for rent was based. Fourth. Whether or not, upon the trial of a proceeding based upon distress for rent by the landlord against the ten- ant, when the tenant has entered his appearance in said cause, 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 judgment 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 determined by the undersigned, as judge of said court, 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 landlord 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 Supreme Court; and now by the assent of the parties litigant, the foregoing questions 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. i AGREED CASES. S^s Agreement as to questions of law, etc. No. 360. Agreejuent as to questions of law arising in the case. (Under Sec. 75 of the Practice Act.) ( Venue, and title ofcaiise as in No. Jj4, ante.) We, the undersigned, E. F., attorney for the plaintiiT, nnd G. H., attorney for the defendant, in the above entitled cause, tried and finally determined 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 the 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, to the Appellate Court {or Supreme Court), and filed therein ; that is to say : That this was an action of assumpsit, and an attachment issued thereon, in favor of the plainiifF, and levied upon the real estate of the defendant. That the cause assigned in the affidavit for issuing of the attachment, was that the defend- ant was a non-resident of the state of Illinois. That the de- fendant appeared, 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 Minne- sota to reside permanently. A witness also testified on be- half of the plaintiff, that a few days before the attachment was sued out, he saw the defendant in Minneapolis, who then told him that he intended residing 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, testi- fied 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 resided there ever since. The defendant then offered to read in evidence, the depo- sition of G. A., who deposed substantially, that about the time the defendant left Chicago, he told him he was going 854 AGREED CASES. Agreement as to questions of law, etc. 1 away that afternoon or the next day, to St. Paul or Minne- sota, 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 deposi- tion of R. B., who deposed that in the latter part of March, or the beginning of April, a few days before the defendant 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 acquainted 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 purpose of establi -fil- ing some business relations ; and after the introduction, wit- ness 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 con- signments received here through his instrumentality. And also the deposition of E. S., who testified that in the latter part of April, 1 878, 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$i,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 objected, on the ground that such evidence was in- competent; and the court, sustaining the objection, excluded the testimony from the jury. To which rulings of the court, the defendant then and there excepted. Whereupon a ver- dict was rendered for the plaintiff; and on overruling a motion in writing to set aside the verdict and for a new trial, to which the defendant excepted, the court rendered a judgment against the defendant. And we, the attorneys, as aforesaid, hereby agree and cer- tify 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 motion 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. AGREED CASES. 855 Decision of judge etc. No. 361. Decision of the judge upon the questions of law aris- ing in case finally determined. (Under Sec. 75, Practice Act.) ( Venue, and title of cause as in No. J5/, 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 re- spective parties, who have signed their names thereto, and such certificate having been filed in this court ; the under- signed, 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 depositions, 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 ground 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 decis- ion 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. Rule 20 of the Supreme Court provides, 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 rec- ord were litigated in good faith about a matter in actual con- troversy 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," (w) iV) If it contains any allowance for matters not submitted, it is wholly void if it is not distin- guishable from the residue, and unless it appears that the consideration of the unsubmitted matters was so disconnected from the residue as to have had no influence upon it. {q) But the award will stand if the parties ratify it ; (r) and if one party accepts from the other party part performance of his part of such an award, he is estopped from afterwards setting up its invalidity, {s) An award in excess of the matter sub- mitted does not annul the original contract which was the subject of the reference, further than the award pursues the submission, nor then, if it is void in toto, because the parties are left precisely the same as though no award had been made. (/) Unless the award upon its face shows that matters not submitted are embraced in it, it will be presumed that it only comprehends matters that were within the terms of the sub- mission, and the burden is upon the party attacking it upon that ground to establish its excessive character. (//) In New Hampshire it is held, that an award covering mat- ters in excess of the submission will not be set aside for that (/) 72 111. 158; 92 111. 609; 34 Vt. 121; 15 Ala. 398; 59 Peiin. 309; 13 Johns. 27 ; 8 N. H. 82 ;^ 6 Pick. 269. [q) 10 Bradw. 527; 27 111. 374; 109 111. 340; t,2, M-^ine, 216; 5 Md. 353. {r) 3 Gill. (Md.) 31 ; 6 Vt. 325; Breese, (B. Ed.) 323. {s) 19 Pick. 300. (<) 3 H. & J. (Md.) 383; 3 Gill. (Md.) 31. (k) 15 111.461; 17 111. 477; 14 III. 5S; 69 111. 179; 6 X. II. 264; 15 Ala. 398; 21 Cal. 317; 2 Mich. 359; 29 111. 90. 862 ARBITRATION AND AWARD. Either party not complj'ing, awaid may I;e filed in court. reason, if the amount of the excess is ascertained and released or discharged. {i>) But this would depend entirely upon the fact, whether the excess could be readily ascertained, and distinguished from the residue. (7c) The award must be co-extensive with the submission, and cover all the matters submitted, (x) And if the arbitrators refuse to decide upon some matters submitted, their award will be void, (j) But, even though the award does not in terms, yet, if in effect it includes all the matters submitted, it is valid. (^) An award must be certain to a common intent ; [a) but every intendment is made in its favor, {/;) where no fraud, corruption or unfairness is shown, {c) In order to invalidate an award upon the ground that it does not embrace all the matters submitted, it must appear that they were made known to the arbitrators, and that they declined or neglected to pass upon them, {d) Privia facie 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 xvcre called to their attention, and not passed upon by them, the fact must be proved, [e) Either party not complying^ azvai-d may be filed in court. — Section 6 of the act in relation to arbitrations and awards provides, that (v) 23 N. H. 106. (%u) 35 Maine. 542; 20 Bradw. 157; 39 N. J. Eq. 193. Caldwell oa Arbitra- tion, 321 ; 59Cal. 336. (r) 113 II!. 415 ; II Wheat. 446 ; 20 N. H. 171 ; 27 111. 374. (;/) 27 Vt. 304; 7 N. J. Lsw(2 Halst.), 428; 12 Cal, 333. (2) 8 N. J. Law, 195; II Gray, 435. 29 Mo. 493. {a) 61 111. 70; 21 111. 259; 40 111. 267; 75 111. 24; 92 111. 609; 3 Scam. 428; 69 111. 179. (h) 15 111.461; 105 111. 194; 26 111. 305; 14 111. 392; 8 Bradw. 119; 86 111. 96. {c) 17 111. 477; 14 111. 58; 109 III. 340. \d) 18 Mo. 251 ; 14 N. H. 49; 25 111. 361, \e) 5 N. Y. (I Seld.) 482; 18 Maine, 251; 2 Gall. C. C. 61 ; 3 Rand. (Va.) 94; 27 111. 374; 10 Bradw. 527. ARBITRATION AND AWARD. 863 Judgment upon award — Enforcement of award. " 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." jFiidginent upon azvard. — 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 16, post^ as to matters in suits pending under section I, ante. {/) A judgment will not be entered upon an award unless it is made in pursuance of the statute, {g) But 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 by statute, the proceedings must conform strictly to the requirements of the statute, or the court will have no jurisdiction or authority to enter judgment upon the award, {i) Enforcement of aiuard. — 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 judgment shall enforce the same by rule, and the party refus- ing or neglecting to comply with such rule, may be proceeded against by attachment or otherwise, as for a contempt." (/) 12 Bradw. 441. (.f) 17 111. Ill; 15 111. 368; 55 111. 530; 12 Bradw. 5S7; 16 111. 34. («) 90 111. 307. (i) 12 Bradw. 587. 55 864 ARBITRATION AND AWARD. Award, when set aside — Fraud and mistake. 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 auJ conveyance of the right of way in such a case, would be properly made concurrent acts ; but the enforcement as a statutory award can only be compelled under the above section 8. (7) Award, zvhcn set aside. — It is provided in section 9 of the the same act, that " If any legal defects appear in the award or other pro- ceedings, or it it shall be made to anpear on oath or affirma- tion, that said award was obta.iied .by fraud, corruption or other undue means, or that 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 tao broad, will bind neither party, [iri) The award of two of 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, [li) Fraud and mistake. — An award obtained by the fraud of the party, {p) or by reason of fraud, corruption, partiality or (y) 3 Bradw. 511 ; 66 111. 174. i^k) See sections 16-18, post. \i) 13 111. 454; 16 111. 99; II 111. 565; 72 111. 15S; 27 111. 374; 69 111 179; 25 111. 361. (;«) 92 111. 609; 20 Bradw. 157; 109 111. 340; 34 Vt. 121 ; 59 Tenn. 309. («) I Gilm. 92. {p) 2 Day (.Conn.) 552; 13 Vt. 477; 19 111. 415. { ARBITRATION AND AWARD. 865 Fraud and mistake. 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 equity and good conscience, {p^ unless the party applying therefor has done that which amounts to a waiver, {q) 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 ex- ception or appeal, (r) 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 asser- tion of the other party, or upon mere suspicion, (s) But it may be inferred, where the award is so manifestly unjust, as irresistibly 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 arbitra- tors, 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 arbitra- tors. {?() If an arbitrator was intoxicated during the hearing, the award will be set aside without any other proof, as that is evidence of such misci-)nduct as ought to vitiate his action upon the matters between the parties, [v] 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; {w) or had previously expressed an opin- (/) 6 Humph. 171 ; 13 N. 11. 72; 28 Ohio St. 102, (7) 57 N- H. 20, (;■) 44 Penn. St. 23. (s) I N. J, Law, 3SS; 10 Yerg. (Tenn.) 202; 3 Elackf. 68; 2 J. J, Marsh- 346. (i) 28 Ga. 398; 13N, H. 72. («) 17 How. (U. S.) 344; 4 Dana, (Ky.) 229; 17 Johns. 405. {v) 28 111. 56. {w) 14 Conn. 26; 13 Allen. 19. 866 ARBITRATION AND AWARD. Fraud and mistake. ion upon the matters in dispute. (,r) And it is no frround 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 coun- sel, in the absence of evidence that the fact was intentionally concealed, (j) 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; [z) and the arbitrators were evidently misled or deceived thereby, {a) The instances are rare, in which an award will be set aside for mistake of facts, [b) And an award'will only be set aside upon the ground of a mistake as to the law, when the sub- mission 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. {c) 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 ; (•/) but 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 statements as to matters involved, except when given in evi- dence, [e) It is the dut)^ of an arbitrator, as of a juror or judge, to (jr) 5 Maine, 69; lo Pick. 275. [y) 123 Mass. I90. {z) 2 Swan. (Tenn.) 213; 52 IIow. (N. Y.) 415; 62 N, Y. (17 Sick.) 392. {a) 8 Md. 208; 6 Wait's Ac, & Def. 549. {b) 33 111 374; 19 111. 425; 6 Mete. (Mass.) 131 ; 8 Vt. 79 ; 3 Rawle, 84; 3 Call. (Va.) 309; 4 Johns. Ch. 406 ; 2 Greenl. on Ev., Sec. 78. () 75 111. 90; 97 111. 52. ((-) 16 III. 34; I Brev. 448; 2 Barb. Ch. 430; 4 Blackf. 89; 6 Dana (Ky.) 9; I Ala. 278; 28 N. Y. (I Tiff.) 147 ; 2 Abb. Ct. App. 209. [tt) 3 Lilt. (Ky.) 399, 402; 18 Maine, 255. See 95 111. 533. (e) 7 Cranch, (U. S.) 172. (/) 7 Watts, 311. See also 36 N. H. 575. (jT) I4lncl. 256. {/i) 75 111. 24; 12 Johns. 397; Peake's Cases, 227; 2 Grcenl. Fv., sec. 73. ARBITRATION AND AWARD. 873 Revocation. Revocation. — All common law submissions to arbitration, whether by parol, in writing or b}' 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 a party from having recourse to courts of justice to settle their differences, if he so elects; consequently independent of some statutory restrictions, an agreement of this character can not be made irrevocable ; ii) and this right may be exercised at any time before the award is actually made; (7) and by such revocation he annuls all con- tracts relative to the subnn'ssion, and leaves the other parly to rest entirely on the penalty of the bond, if tliere is one, or his remedy upon the case, if no bond was entered into. {Ji) After an av/ard 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 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 revocation must also be under seal ; {p) 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, {p) If the submission is made by one party on one side, and two on the other, one of the two cannot revoke it without the assent of the other, {(j) The death of one of the parties to the submission operates (/) 3 Scam. 322; 20 Vi. 19S; 27 Ga. 368; 3 Slory C. Ct.) 800. /2,,4 ^(^ ?^ (/) 15 Ga. 473; 16 Johns. 205; I Conn. 198; 2 Tyler, (Vt.) 328. (A-) 113 Mass. 114; 2 Tyler, (Vt.) 328; 53 Barb. 590 ; 28 Vt. 763; 26 Maine, 251. ,(/) 20 Vt. 198; 13 N. H. 185, (/«) I Bac. Abr. 306; 42 Vt. 159. (n) 21 Wis. 401 ; 4 Sneed, (Tenn.) 262j 3 Ilayw. 42; 8 Johns. 125. ip) 26 Maine, 251 ; 13 Allen, 19. (/) 8 East, 344. {q) 12 Wend. 57S ; I Bac. Abr. 308. 874 ARBITRATION AND AWARD. Who may be arbitrators — General powers and duties. as a revocation per se, (r) unless otherwise expressly pro- vided in the articles of submission, (s) If either of the arbitrators refuses to act, the submission be- comes abortive, and both parties are released therefrom ; (/) unless provision is made for such a contingency by agreeing upon a substitute. (21) Who may be arbitrators. — The parties knozving the facts, may submit their differences to any person, whether he is in- terested in the matters involved, {i') 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 sub- mission 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 bound by the award, {w) But if the facts were unknown to one of the parties, the objection would be fatal to the award, {x) General poivers and duties. — There is a broad distinction between the powers of arbitrators under a common law sub- mission, and those appointed under the statute ; and this dis- tinction must not be overlooked. In a conimon law submis- sion, the arbitrators are not required to be sworn, nor are they bound to coiiform to the rules of law or equity m 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 conclusive, {y) They have the power to decide upon both the law and the facts, and neither party can com- (;-) 14 Wend. 90; 3 D. & R. 1S4; 2 B. & Aid. 394; I Marsh. 366. (s) 2 Y. & J. II; 3 M. & W, 199. (0 2 D. & R. 158; 17 Ves. Jr. 242. («) 7 Watts, (Penn.) 495; 47 Barb. 624; 9 Gray, 1 8. \v) 4 W. & S. (Penn.) 205. (w) 34 Ala. 107. {x) 26 Maine, 251 ; 99 Mass. 459. (/) 4 Pick. 179, 192 ; 2 Johns. Ch. 551. ARBITRATION AND AWARD. 875 Recommitting award. plain that they have made a mistake in either respect. (.::) They are at hberty to decide according to equity and good con- science, irrespective of the rules of law ; (- -^ward, on common laiv submission, by single arbl- ti'ator. 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 undersigned, arbitrator, to hear, de- termine, 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 hearing, 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 ^zuaj'dcd) Witness my hand {and seal) this day of , A. D. i8— . E. F., [seal.] Arbitrator. No. 374. 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 was" 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, the said arbitrators, after having appointed a time and place for the hearing of said matters, and after having given due notice thereof to the respective parties, and having heard the proofs and allegations of the parties, and examined the matters in controversy submitted, do make, declare and publish the following award and determination concerning the same, to-wit : That, etc. {Here insert the matters azvarded and deter- mined^ In witness whereof, we have hereunto set our hands {and seals) this day of , A. D. 18 — . E. F., G. H. and C. D., [se.vls.] • Arbitrators. 882 MISCELLANEOUS FORMS. In assumpsit — Declarations. CHAPTER XXXVL MISCELLANEOUS FORMS. In addition to the precedents given in the foregoing chap- ters, space permits the following miscellaneous forms to be added: In Assumpsit — Declarations. No. 375. Commencement and conclusion of a declaraiion in ASSUMPSIT. In the Court, Term, A. D. 18—. State of Illinois, \ County of J 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, etc., {hisert declaring part and conchide) to the dam- age of the plaintiff of dollars; and therefore he brings his suit, etc. E. F., Attorney for Plaintiff. {Add copy of instrument, or account sued o?i.) No. 376. Common counts condensed. {Commence as in No. jy^, ante, to the (*) aiid then proceed :^ For that whereas, the defendant, at, etc., on, etc., was in- debted 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, and materials for the same provided by the miscp:llaneous forms. 883 On promise to be accountable for goods sold to a third person. 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 dol- lars, for money then and there paid bj 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 defendant to the plaintiff, 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, afterwards, 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, therefore, he brings his suit, etc. E. F., Attorney for Plaintiff. yAdd copy of account sued on.) N'o. 377. On promise to be accojintable for goods sold to a third person. {Commence as in No. jyj, ante, to the (*), then proceed :) For that, whereas, heretofore, to-wit, on, etc., at, etc., in con- sideration that the plaintiff, at the special instance and re- quest 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, under- took, and then and there promised the plaintiff to be account- able to the plaintiff for whatever goods the plaintiff should sell and deliver to the said O. P. as aforesaid ; and the plaint- iff avers that he, confiding in the said promise of the defend- ant, did, afterwards, to-wit, on, etc., at, etc., aforesaid, sell and deliver to the said O. P., on certain credit, then and there agreed upon between the plaintiff and the said O. P., to-wit, • months, certain goods of great value, which 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 be- tween the plaintiff and the said O. P., amounting in the whole 884 MISCELLANEOUS FORMS. Declaration on promise to pay money as difference in exchange of property. 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 thi 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 plaintiff, but has hitherto neglected and refused, and still neglects and refuses so to do; of all which said premises the defend- ant, afterwards, 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. P., Attorney for Plaintiff. {Add copy of account sued on.) No. 378. Declaration on promise to pay money as difference in exch inge of property. {Commence as in No. j/j, ante, to the (*) a?id then proceed:) For that whereas, heretotbre, to wit, on, etc., at, etc., in consid- eration 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 certain {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 — \ — dol- lars, in exchange for the said {horse) of the plaintiff; and the plaintiff avers that he did, afterwards, 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 plaintiff 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 so to do, to the damage of the plaintiff of dollars; and therefore he brings his suit, etc. E. F., Attorney for Plaintiff. MISCELLANEOUS FORMS. 885 Declaration on a written contract for employment — Plaintiff discharge.!, etc. No. 379. Declaration on a zvritten contract for employmeni — Plaintiff discharged ivitJiont cause. {^Commence as in No. jj^., ante, to the (*) and then pro- ceed:') For that whereas, heretofore, to-vvit, on, etc , at, etc., the plaintiff then and there bein^j a book-keeper by occupation, and the defendant a merchant, by a certain agree- ment in writing, then and there entered into between the plaintiff and defendant, the defendant agreed to, and did em- ploy the plaintiff 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 accepted the said employment, and in consideration thereof, the defendant then and there undertook and promised the plaintiff to pay him for such services the sum of dollars per annum, paj'able 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 de- fendant 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 afterwards, to-wit, on, etc., he requested the defendant to pay him, the plaintiff, the said sum of money, but the defendant refused, and still re- fuses 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. {Add copy of contract sued on.) No. 380. Declaration on a verbal contract of employment — Plaintiff discharged zuithont cause. {^Commence as in No. jyj, ante, to the (*) and then proceed:) For that whereas, heretofore, to-wit, on, etc., at, etc., the I 886 MISCELLANEOUS FORMS. Plea of another action pending. defendant then and there being a merchant, and the plaintifi a salesman, in consideration that the plaintiff would enter into the employment of the defendant as such salesman ; the defend- ant then and there undertook and promised the plaintiff to employ iiim as such salesman, for the period of one year from said date ; and to pay him, the plaintiff, for such services the sum 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, Avithout 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 expira- tion of the period of his employment, he was ready, able and willing to perform the duties of such service for the defend- ant, and in every respect to comply with the terms of said contract with the defendant; and the plaintiff further avers, that by reason of the premises, the defendant became liable to pay the plaintiff the full arnount 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 sum of money remains due and unpaid to the plaintiff; to the damage of the plaintiff of dollars; and therefore he brinefs his suit, etc. E. F., Attorney for Plaintiff. (AM copy of account sued on. Coininou counts may also be added.) No. 381. Plea of another action pending. Li the Court, Term, A. D. 18—. In an action of' 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 he 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 MISCELLANEOUS FORMS. 8S7 T'lea of total failure of consileration of note given for fees. plaintiff 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 men- tioned, as by the record and proceedings thereof, remaining in the said court, more fully appears; and the defendant fur- ther 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 said writ {or dcclaratio)i) in this suit, and that the same may be quashed. G. H., Attorney for Defendant. {Add affidavit) No. 382. Plea of total failure of consideration of note given for fees, {a) {First /flea, non-assjnupsit. as ante, No. 66.) 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 already 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 dol- lars, for his fees in said cause, he, the plaintiff, 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 defend- ant executed and delivered the promissory note in suit to the plaintiff; and the defendant further avers, that after the matur- ity of said note, the plaintiff, in violation of said agreement, (a) 13 Bradw. 444. 888 MISCELLANEOUS FORMS. kejjlication to picas. brought suit against the said G. H. for the sum of dol- lars, for his fees in the said murder case; that afterwards the said suit of the plaintiff against the said G. H. was settled and compromised Tor 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 defendant says, that the consideration upon which the said note was executed, has wholly failed; and this the defendant is ready to verify ; wherefore he prays judgment, etc. G. IL, Att'y for Deft. Replication to Pleas, No. 383. Replication to a pica of anotJicr action pending. [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 aie any or either of them., any of, or any one of the same identical promises and under- takings, 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. No. 384. 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 several 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 men- tioned, and for and in respect whereof the said supposed judgment in the said plea mentioned was recovered, in man- ner and form as the defendant has above 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. MISCELLANEOUS FORMS. 8S9 Double replications, etc. N'o. 385. Double replications. {\''cniie^ and title of cause.) And the plaintiff, as to the said plea of the defendant, by )iim above pleaded, says, prccludi non, because he says, etc. {Hei'e set out first replication?) And the plaintiff, by special leave of the court, here first Jiad and obtained, according to the form of the statute in that case made, as to the said plea of the defendant above pleaded, further says, prccludi non, because he says, {Here in- sert second replication.) E. F.. Atfy for Pl'ff. N'o. 386. 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, prccludi non., because he says, 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 five years next before the exhibiting of the bill of the plaint- iff in this t be made 868 Error and appeals 869 Compensation of arbitrators 869 Fees of witnesses, etc 869 Arbitrators may be compelled to act 869 Record of reference, etc 870 In Controversies not in Suit 870 Statutory provisions relating to 870 Construction of the statute 870 Proceedings under section 16 871 Award under section 16 871 Common Law Submissions 871 Differ from statutory submissions 871 How submitted 872 Revocation of submission 873 Who may be arbitrator , 874 General powers and duties of arbitral ors 874 Recommitting an award 875 Form of plea of 223 Form of replication to plea 224 Same, denying award 889 . Same, to plea of award 889 Form, rejoinder to replication to a plea of award 891 (For Forms relaf'uip fo arhifi'iifion and aimrd, see Indi-.x to Forms, posf, ARBITRATION AND AWARD.) ARREST OF JUDGMENT— When it will be arrested 811 When it will not be 811 Time and manner of moving in arrest 813 ASSAULT, ETC.— (See Trespass, and forms relating to, Index to Forms, post, TRESPASS— ACTION OF.) ASSUMPSIT— Action of. Nature of the action, etc 57 Where it lies, etc .58 Consideration of promises 60 Privity of contract 61 Commencement of the action 61 Declarations in 61 Listrumonts or account sued on, to be filed, etc 63 Continuance for want of 63 902 GENERAL INDEX. Attachment. ASSUMPSIT— Continued. Dismissal at second term 64 Waiver of , etc 64 Defenses to the action, etc 140 Motion to quash or dismiss 140 How made 140 When to be ready, etc 141 Pleas to jurisdiction, and in abatement 144 At what time to be pleaded 144 What may be pleaded in , 145 Premature action, etc .' 145 Amendment to cure matters of abatement 146 Death of sole plaintiff or defendant 146 Death of sole plaintiff 147 Of sole defendant 147 Part of parties 148 Of all on one side 148 When pleas to be verified 148 Requisite of pleas in 149 Judgments upon 149 Pleas in bar 163 A^iBdavit of merits 166 General issue with notice of special matter 167 Special pleas in bar, replications, etc 170 Pleas, etc., as to part, etc 174 Collateral undertakings, under plea of statute of frauds, etc.. . 189 Diligence required by maker of note, on charge of fraud 195 Diligence required by assignee of note to hold maker 196 Want of consideration of note, etc 243 Pleas denying joint liability, etc 258 Demurreks 265 Generally 266 (See observations following each form.) {For Forms of Declarations, Pleas in Abatement, Replications, Pleas in Bar, Eejoinders, Demurrers and other Forms connected n-ith the Action, see Index to Forms , 2;o&^ ASSUMPSIT, Action of.) ATTACHMENT— Proceedings in. Nature of proceedings, etc 618 Where it lies, etc 619 Commencement of proceedings in 620 By affidavit, etc 620 Where suit to be brought 622 Plaintiff to give bond 622 Against joint debtors 623 Execution of the writ, etc 624 r GEXERAL INDEX. 903 Attachment Bond. ATTACHMENT— Continued. The declaration, etc 625 Garnishees, etc 625 Notice by publication 626 Defenses to the proceiding 627 Plea in abatement traversing afEdnvit 627 Practice and pleadings in '. . . 628 Forthcoming bonds, etc 629 Bond, etc., for return of property 629 Liability of sheriff for failing to take and return bon 1 6^:0 Insufficient bond, etc 630 Suit on bond 631 Feeding animals attached 631 Sale of perishable property 631 Tnteryleader by third jMrfij 632 Attachment in aid of stiit pending 633 Judgment where there is no personal ^^or\ ice 636 Sale of property on execution 636 Division of proceeds, etc 636 By the sheriff, etc 637 Proceeds brought into court, etc 637 (See Gakxishment, j^osf.) Attachsient of Water Ckakts , 650 Lien upon, etc 650 For what lien is given 650 Lien on goods for freight 651 Limitation of proceedings 651 Petition to enforce lien 651 Bond to be filed, etc 653 Notice by publication 653 Intervening creditors 653 Bonding vessel 654 . Appraisement — restitution — sale, etc 654 Answer, etc 654 Affidavit of merits, etc 654 Default, etc 654 Judgments — decree of sale 654a Amendments, etc 6" 4a Distribution, etc 654a (See observations foUotring each jyrecedent.) (For Forms in Attachment, and Attachment of Water Crafts, see ATTACHMENT, Proceedings in, etc.; Index to Forms, post.) ATTACHMENT BOND— Form of declaration upon 358 904 GENEEAL INDEX. Attorneys and Counselors at i/dw — B.iil in Civil Cases. ATTORNEYS AXD COUNSELORS AT LAW— Form of count for services , 67 Form of declaration against, for negligence, etc 460 Nature of the office, etc 732 How admitted 732 Qualifications 733 ■ AlitJwrify of. 734 It cannot be delegated 737 Retainer, etc 737 Agreements made by, for clients, etc 737 Admissions by, etc 738 Termination of employment 738 Duties and liabilities 739 Ought not to be witness for client, etc _ 739 Acting in another capacity 740 Cannot act on opposite sides 740 Liability to third persons 741 Dealings between attorney and client 741 Assigned by court to defend prisoners 742 Rights and Privileges 742 Privileged communications 742 Fees, etc 743 Lien of , etc 744 AVOWRY— Form of, for rent in replevin, 538 Form of plea to. denying demise 539 Form, same, no rent in arrear 540 AWARD — (See Arbitration and Award.) Form of declaration on 326 Form of plea of no award 400 Form of replication to plea of aAvard 889 Form of replication to plea of arbitrament, denying award. . . 889 BAIL IN CIVIL CASES— When required, etc.... , 43 In actions ex contractu 43 In actions sounding merely in damages 44 Plaintiff to give bond 44 B il bond, etc 44 Who may become bail 45 Sheriff may administer oath, etc 45 Insufficient bail, etc 45 Discharge or reduction of bail 46 Capias to stand as a summons, etc 46 Surrender of defendant, etc 46 Record of 47 In vacation 47 IP . GENERAL INDEX. 905 »■ Bailees — Case. BAIL IN CIVIL CASES— Continued. When bail may be discharged 47 After judgment, effect ot 47 New bail may be taken 48 Bail may arrest principal 48 Prosecution of bail • 48 Suit on bail bond, when, etc 48 Bail may obtain judgment against principal, when 49 Death of principal, etc 49 When bail discharged, etc 50 Bankruptcy, etc., of principal 50 Discharge of bail in discretion of court 54 Effect of surrender of principal after return day 55 Suits on bail bond, how brought 55 (For Forms in Bail in Civil Cases, see Indkx to Fouxis, post, BAIL IN CIVIL CASES.) BAILEES— Form of declaration against hirer of ho''se, etc 122 Same, overloading, etc 458 BANK CHECK— Form of declaration on 104 BILLS OF EXCHANGE— (See Forms of Declarations upon, Index to For.u^, x>ost, AS- SUMPSIT, Action of.) BILLS OF EXCEPTIONS— Objections to decisions of court preserved by, etc 829 ^Vhen exceptions must be taken 830 Signing, etc., of bill of, etc 830 What the bill should contain 833 When necessary >33 Form of, to decision of the court, on evidi'uce, etc 836 Forin of, on refusal to grant a continuance 838 BOARD AND LODGING— Form of count for, in assump.sit 66 CAPIAS AD RESPONDENDUM— In what cases may issue 43 Forms of affidavits for 51 Observations on 52 May stand as a summons, when, etc 46 Form of order for 53 Form of plaintift"'s bond, etc 53 Form of defendant's bond, etc 54 In action against drover, etc 376 CARRIERS— (See Common Cauuieus.) CASE— Action on thr. 2sature of the action, etc 415 906 GENEKAL INDEX. Certiorari— Commencement of an Action. CASE— Continued. Wliere the action lies, etc 416 Commencement of the action 421 Form of prceci}}e for process 422 For Slander and Libel 466 What amounts to slander, etc 466 "Where the action lies for, etc 466 Defenses to the Action op Cask 488 Pleas in bar, etc 489 General issue in action tor slander and libjl 490 Special pleas in actions for slander and libal 492 (See ohserratlonfi following each ijrecedenf.) {For Forms of Declarations, Pleas, etc., see Index to Forms, po.9^CASE, ACl'ION ON THE.) CERTJORARl— The Common Law Writ 703 Its nature and purposes 703 The Statutory Writ 705 Its nature and purposes 705 The Petition, etc 706 Requisites of, etc 706 Form of petition for, etc ■ 709 (See observations following form, etc.) CHANGE OF VENUE— In civil cases 749 When same may he had, etc 749 Interest or prejudice of j ad <:re 749 Prejudice, etc., of inhabitants 749 Notice of application, etc 749 The petition for, etc 750 When application to be made 751 By whom made 752 By part of plaintiffs or defendants, etc 752 Order granting: in vacation 752 Terms and conditions of, e,c 753 Costs of the change 753 When to be paid 753 Transcript, papers, etc 753 To tchat court sent, etc 754 Docket ing cause, etc 754 Irregularities waived, etc 754 (For Forms of Notice, Petitions, etc., see Index to Forms, post, CHANGE OF VENUE.) COGNOVIT— (See Confession op Judgment.) COMMENCEMENT OF AN ACTION— The PrcPfipe for process 38 (See SECURITY FOR COSTS-BAIL IN CIVIL CASES, ETC.) I GENEEAL DsDEX. 907 Common Carrier — Covenant. COMMON" CARRIER— Form of declaration for loss of goods, etc 125 Duties and liabilities of, etc 126 Form, same, against captain of ship, etc 127 Form against R. R. Co. for not deli ering good-, etc 461 CONFESSION OF JUDGxMENT— Nature and efFect of 822 May be entered in vacation 822 Mode of obtaining, etc 823 Form of warrant of attorney 823 Form, of cognovit 824 Powers of courts over judgments by, etc 825 CONSIDERATION— Must be on promises 60 Want of, for given note 244 Form of plea of total failure ot, for given note 246 Form, same, etc 247 Form, ill suit by assignee, etc 248 Form, partial failure of 251 Form, on note given for fees, etc 887 Form of, in action of debt 397 (See observations foUou-iiig 2»'ecedents.) CONSTABLE— (See Sheriffs.) Form of declaration for seizing, etc., property exempt, etc. . . . 575 Form of plea justifying arrest, etc 591 Form, same, etc 592 continuances- How and when applied for 755 For absence of witnesses, etc 755 Form of affidavit for, etc 756 By reason of amendments 760 For want of declaration, etc 7C0 Defendant in military service 761 Party or counsel in legislature 762 On remanding cause from supreme or appellate courts 762 Terms may be imposed, etc 762 COSTS— (See Secukitv for Costs.) COVENANT— Action op. Where the action lies, etc 289 Covenants in deeds, etc., breaches of, etc 291 Commencement of the action 294 Prcecipe for summons, etc 295 Declarations in covenant 295 Defenses to the action, etc 306 Pleas in abatement 306 Pleas in bar 306 908 GENERAL INDEX. Crinnniil Conversation — Demurrer. COVENANT— Continued. Pleas as to part, etc 307 (See ohsei-raiioiisfolloiriiiff each, pyccedimf.) {For Forms of Declarations, Pleas, etc., see Index to Forms, post, in COVENANT— Action of.) CRIMINAL CONVERSATION— Form of declaration for, in case 451 Form, same, in trespass 571 (See observations folloir'uig each precedent.) DE BONIS ASPORTATIS— Form of common count, in trespass 572 DE INJURIA— Form of repl ication of. in case 495 For V, same, in trespass 635 DEBT— Action op. Where the action lies, etc 311 Penal actions under statute. . 315 Commencement of the action 156 Observations on 156 Form of plea of, party plaintiff in aba'ement 157 Observations on 157 NON RESIDENTS— Plaintiffs required to give security for costs, etc 39 Defendants in attachment 626 Garnishees 645 Defendants in distress for rent 409 NON SUIT— Judgment upon 818 II GENEIIAL INDEX. 917 No Rent in Arrear — Performance. NO RENT IN ARREAR— Form of plea of, in debt 400 Form, same, to avowry, in replevin 540 (See observations following fontis.) NOTICE— Of special matter under general issue 167 Form of notice of set-off under 168 May be given under plea of nan est factum, in covenant 307 Same, in debt 387 Of application for change of venue 749 To produce documents at trial 771 For taking depositions, etc 776 NOT GUILTY— General issue in actions for torts (sae defenses in the various forms of actions in torts). May be pleaded in action in debt, for penalty 385 NUL TIEL CORPORATION— Plea of, etc 260 Form of plea of 259 NUL TIEL RECORD— Form of plea of, in debt 393 Observations on 393 Form of replication to 395 Replication of, to plea of judgment recovered 226 Form of replication of, to a plea of another action pending 160 OYER— Demurrer, after craving 403 Form of plea of non est factum, after craving 388 Observations on 388 Same 397 PARTNERS— Action of account in suits between (see Account, A' tiox op). Forms of declarations hy, and against 73 By surviving partner, common counts 73 Against surviving partners 74 By partners vs. partners on note 90 By surviving partners on note 87 PAYMENT— Forms of plea of. In assumpsit 215 Form of replication to 216 Observations on 218 In covenant o07 In debt on bond 397 PERFORMANCE— Form of 2^lcas in. In covenant 309 918 . GENEEAL INDEX. Person — Quantum Valebant. PERFORMANCE— Continued. In debt 398 Observations on 399 PERSON— Trespass for injuries to 543 {For Forms of Declarations for injuries to the />erso», see TRESPASS— Action op. PERSONAL PROPERTY— (ii'or Injuries to, see TRESPASS— Action OP. PETITIONS— Forms of. For certiorari to J. P 709 For mandamus 678 For change ot venue 751 For habeas corpus 719 PHYSICIANS— Form of common count for services, assumpsit 67 Form of declaration against, for malpractice, case 459 PLEAS— In Abatement (see Abatement). In Bar. Nature and requisites of, etc ■ 163 (See pleadings in bar under title of respective forms of action.) POOR PERSONS— May prosecute suits without costs, etc 747 Form of affidavit for leave, etc 748 PROPERTY IN DEFENDANT— Form of plea of, in replevin 531 Form of replication to plea of 532 Observations on 532 PROPERTY IN THIRD PERSON— Form of plea of, in replevin 533 Form of replication to plea of 533 Observations on 533 PUBLICATION OF NOTICE - To defendant in attachment 626 To non-resident garnishee , 645 To party, of taking depositions 781 PUIS DARREIN CONTINUANCE— Forms of pleas of 261 Observations on 262 QUANTUM MERUIT— Form of, count of, in assumpsit 72 Observations on 72 QUANTUM VALEBANT— Form of, counts, in assumpsit 73 Observations on 72 r GENERAL IXDEX. 919 Qui tam Actions^Referees. QUI TAM ACTIONS— (See Debt, action of). Observations on .' 381 Same 383 Same 387 Judgment in 827 QUO WARRANTO— Nature of the writ, etc 684 The proceed'utgs by information 685 In what cases it lies, etc 685 When leave to file will be granted 686 When it will not be granted, etc 688 Statutory proceedings, etc 691 Summons to be issued, etc 692 Service of same 692 Defendant required to plead 693 Time allowed to plead 693 Judgment in.,. 693 Nature of 693 Appeals and writs of error, etc 693 By and against irhat intrties the infoniuitinn mat' be fled 694 Matters preliminary 695 Practice in, etc •, 695 The information, etc ' 695 Form of, by attorney gpneral. etc 696 Form of, at instance of relator 697 Defenses to the 2>roeeeding 699 Pleas to, etc 699 Forra of plea, by corporation, etc TOO Form of plea by person, etc 700 Replications to pleas, etc 701 (See observations following eachiirecedent.) REAL PROPERTY- Trespass for injuries to 5o3 (For Forms of Declarations for, see Tuespaps, Action op.) In debt, for cutting trees on 372 RECOGNIZANCE— Observations on 663 Form of scire facias on 665 To cover judgment in attachment 629 REFEREES— Statutory proceedings, etc ^39 Exceptions of report, when to be made 840 Attendance of witnesses 84 1 Judgment — Referee's fees, costs 841 Testimony — Record 84 1 Form of agreement to refer 841 920 GENEEAL INDEX. Release — Security for Costs. REFEREES— Continued. Form of order appointing 84'2 Form of report of referee in favor of plaintiffs 842 Form of report of referee in favor of defendant 843 Form of exceptions to report 843 RELEASE— Form of plea of, in assumpsit 210 Form of replication to plea of 211 Observations on 211 REPLEVIN— Action of. History and nature of the remedif 515 Where the action lies, etc 517 "Who may maintain the action 522 Who may be made defendants 524 Commencement of the action 525 Form of plaint or affidavit 526 Declarations in 527 Defenses to the action 528 (See observations following each form.) (For Forms of Declarations, Pleas, Eeplications, etc., see In- dex TO Forms, iJosi!; REPLEVIN, Action op.) REPLICATIONS— (See titles 6f respective forms of actions.) SCIRE FACIAS— Nature of the tvrit, etc 655 To make party to judgment 656 Against garnishees, etc 656 To revive judgment 657 Form of praecipe for 658 Form of, to revive judgment 658 On mortgages, etc 659 Form of, to foreclose mortgnge 661 Form, same, etc 663 On recognizances, etc 663 Form of, on recognizance 665 Defenses to, etc 667 What defendant may plead 667 (See observations folloiving each form.) SECURITY FOR COSTS— When required 39 By non-residents, etc., before commencing suit 89 Suits on official bonds 40 In penal actions 40 Suits by infants, by next friend, etc 40 Form of security for 40 Approval and effect of bond for 41 Motion to dismiss for want of 41 f ge:^ekal mDEX. 921 Seduction — Suggestion of Mesne Profits. SECUIUTY FOR COSTS— Continued. Rule to file security 42 Cross-motion for leave to supply, etc 42 Objections to surety 42 Plaintiff, when a poor person, may prosecute without security for 42 Affidavit of. etc 42 After suit hi ought 745 When required, etc ' 745 Form of affidavit for rule, to give, etc 746 When motion for, to be made 746 Plaintiff a poor j^^f'son, etc 747 Form of affidavit for leave to prosecute as such 748 Form of bond for costs, after suit brought 748 SEDUCTION— (See Criminal Conveks'ation. ) Of plaint ff's daughter, etc 4o3 Form of declaration for, in case 453 Form, same, in trespass 57 1 SET-OFF— Form of notice of set-off under general issue 168 Copy of instrument or account to be filed with notice or pleas, etc 169 Form of plea of set-off, in assumpsit 204 Form of replication, nil debet, to plea of 205 Form of plea of set-off. in debt 396 (See observations following each form.) SHERIFF— (See Constable.) May administer oath to bail 45 Liability for taking insufficient bail 45 Forms of declarations against. For taking insufficient sureties in replevin 457 On his official bond 343 For not admitting counsel to prisoner S78 Form of pleas by. Justification under execution in replevin 534 Same, in trespass 595 (See observations follotci^ig each precedent.) SIMILITER— Common and special to pleas ^'74 Form of special similiter 1 75 Form of, to replication concluding to the country 8'dl SUBMISSION TO JUDGE— Statutory provisions _• • B44 Form of agreement to submit 844 SUGGESTION OF MESNE PROFITS— (See Ejectment.) 922 GENERAL INDEX. . 9 Sureties — Trial and Verdict. SURETIES— Forms of pleas hy. That creditor gave further time to principal, etc 284 That creditor was requested, in writing, to sue, etc 238 (See observations follotving these forms.) May surrender principal : 46 May arrest principal 48 May obtain judgment against princiiDai, when, etc 49 Prosecution of bail, etc 48 Suit on bond of, when, etc 48 TENDER— Form of plea of, in assumpsit 228 Forms of replications to plea of 231 Observations, on 229 Form of plea of, in debt 392 TRESPASS— Action of. Nature of the action , etc 541 Distinction between trespass and case abolished 543 For Injuries to the Person 543 Where the action lies for 543 For Injuries to Personal PRorERTv 548 Where the action lies for 548 Who may maintain the action, etc 551 Against whom it lies, etc 552 For Injuries to Real Property 653 Where the action lies for 554 Commencement of the act-ion 558 The Declaration, etc 559 Matter or thing affected 559 Plaintiff's right or interest 560 Statement of the injury 561 The damages 564 Measure of 564 Vindictive, etc 565 Joinder of counts, etc 565 Defenses to the Action 580 Pleas in bar 580 New assignment, etc 602 (See observations folloirijig each precedent.) {For Forms of Declarations, Pleas, Replications, etc., sec Index to Forms, post, TRESPASS— Action of.) TRIAL AND VERDICT— Who may open case, etc 792 Order of proceedings at the trial, etc 792 Deliberations of the jury 794 Delivery of the verdict, etc 795 I GENEEAL IXDEX. 923 Tro\ er — Work and Labor. TRIAL AND VERDICT— Continued. Verdicts, etc 7^6 General verdicts, etc 796 Special verdicts, etc 797 Polling of the jury 791 TROVER— Action of. ^Nature of the action, etc 497 Where the action lies, etc 497 Commencement of the action ; 506 The declaration, etc 507 Defenses to the action 511 Fleas in bar 511 What plaintiff must prove 513 (See observations folloici)iff each precedent.) {For Forms of Declarations, Pleas, etc., see Ixdex to Foujis, post, TROVER— Action op.) USURY— Form of plea of 197 Observations on plea of 198 Form of replication to plea of 198 VERDICTS— (See Tkial and Vkhdicts.) Judgment on 819 WAREHOUSE ROOM— Form of common count for 67 WARRANTY— Breach of. Form of declarations on. Of a horse, etc 112 Of goods sold by sample, etc 113 Of covenants of, in deeds, etc 295 Form of pleas of breach of. To declaration on note, etc 241 Same, etc 246 Same, etc. , of a horse 247 Same, etc., of title of land 248 (See observations following each precedent.) WITNESSES— (See Evidence.) WORK AND LABOR— Form of common count for 65 ' <^. INDEX TO FORMS. (See General Index, ante.) ABATEMENT— Forms of pleas m. No. 56. To jurisdiction of court 150 No. 57. Misnomer of defendant 152 No. 59. Misjoinder of party defendant 156 No. 61. Same, of party plaintiff 157 No. 62. Same, of defendants, etc 158 No. 63. Another action pending 160 No. 296. In attachment 627 Forms of replications to 2}leas. No. 58. To plea of misnomer 155 No. 60. To plea of misjoinder 156 No. 64. Nnl tiel record to i>\ea of another action pending. .. . 160 No. 65. New assignment to plea of another action pending. . . 161 Forms of demurrer to 2>leas of. No. 124. General form of 272 No. 125. Joinder in 272 ACCOUNT— Action of— Forms of declarations in. No. 128. Against bailiff, to account for goods, etc 280 No. 129. Against receiver, etc 281 No. 130. Tenant in common against co-tenant 282 No. 131. Partner vs. partner, etc 283 No. 132. Same, as bailiff of lands 285 Forms of pleas in. No. 133. Never bailiff, etc 286 No. 134. Never receiver, etc 286 No. 135. To suit bf>t\veen tenan's in common 286 No. 136. That defendant has fully accounted 287 AFFIDAVITS— Forms of. No. 295. In attachment 620 No. 29S. Same, in aid of assumpsit 634 No. 299. Same, in aid of trespass, etc 635 No. 300. For process of garnishment 638 Of claim with declaration 66 (925) 026 INDEX TO FORMS. Agreed Cases — Questions of Law Certified — Arbitration and Award. AFFIDAVITS— Forms o/— Continued. No. 67. Of merits with plea 167 No. 194. For publication in distress for rent 410 No. 234. In replevin 526 1. For ca. ad res. charging fraud, etc 51 2. Same, concealing property, etc 51 3. Same, in actions sounding merely in damages, etc 52 No. S30. For rule for security for costs 746 No. 331. For leave to prosecute as poor person 748 No. 336. For continuance 756 No. 339. Of proof of warrant of attorney to confess judgment. . 823 AGREED CASES-QUESTIONS OF LAW CERTIFIED— Forms in. No. 355. Agreement to submit between parties in suit pending 848 No. 356. Decision of court upon agreed cases 849 No. 357. Agreement that judge may certify quesfions of law.. . 850 No. 358. Agreement of parties as to questions of law 850 No. 359. Certificate of judge as to questions of law, etc 851 No. 360. Same, as to, etc 853 No. 361. Decision of judge upon questions of law, etc 855 No. 362. Affidavit as to good faith 855 ARBITRATION AND AWARD— ponns of siihniissioiis. No. 363. In suit pending 876 No. 364. Same, each party to select one arbitrator and the court the third 876 No. 365. Order referring suit pending 877 No. 366. Oath of arbitrators 877 Forms of awards. No. 367. In suit pending .' 877 No. 368. Of controversies not in suit 878 No. 369. In controversies not in suit 878 No. 370. Of all matters in controversy 879 No. 373. On common law submission, by one arbitrator ' 881 No. 374. Same, by several arbitrators 881 Form of arbitrators' bond. No. 372. Given by each party to the other 880 No. 150. Form of declaration on an award 326 No. 189. Form of plea of no award 400 No. 99. Form of plea of award 223 Forms of replications to 2'>^<-'as of. No. 387. To plea of award: 889 No. 388. To plea of arbitrament 889 Ordek Referking Suit Pending. No. 365. Form of 877 Forms of awards. No. 367. In suit pending 877 INDEX TO F(3EMS. 927 Assumpsit. ARBITR.VnOX AN"D AWARD— Continued. No. 369- In controversies not in suit 878 No. 373. Cn common law submission, one arbitrator 8''1 No. 374. Same b3- three, or more or less arbitrators 881 ARBiTiiATiojH Bond. No. 372. Form of, given by each party to the other 880 ASSU.ArP.3IT— AcTiox of— FoKMS OP Declarations in. No. 375. Commencement and conclusion of 882 No. 1. Common inilehUatus counts 65 1. Goods sold and delivered 65 2. Goods bargained and sold 65 3. Labor and services 65 4. Work and material 66 6. Money lent 66 6. Money expended 66 7. Money received 66 8. Interest 66 9. Account stated 66 10. Board and lodging 66 11. Hire of horses, etc 66 12. Stabling and keeping horse^!, etc 67 13. Necessaries, etc 67 14. Physician's biil 67 15. Attorney's bill 67 16. Warehouse room 67 No. 2. Common counts consolidated 67 No. 376. Same condensed 882 No. 3. Quantum meruit count 72 No. 4. Quantum valebant count 72 Common Counts relating to the character in which the plaintiff sues, or defendant is sued. No. 5. By surviving partner on promise to both partners. .. . 73 No. 6. Against surviving partner for work done 7^. No. 7. Husband and wife for work, etc., by wife befor^; marriage * 75 No. 8. Against husband and wife for work done, etc., for wife before marriage * 76 No. 9. By executor for work, etc., on promise to testator. . .. 77 No. 10. By same, on promise to the plaintiff as executor 78 No. 11. By husband and wife, executrix before marriage*. .. 79 No. 12. By administrator, on promise to intestate 79 No. 13. By husband and wife, administratrix before mar- riage * 80 *Tlie^e forms are useless under statute of IliinoU. A married Wouiau causuc,auJ be bucd, as ii sole. 59 928 INDEX TO FORMS. Assumpsit. A^SUM PSIT— Continued. Specfal Counts. On 2)romissori/ notes. No. 14. Payee vs. maker 80 N ). 15. Sumo, with common counts 81 N ). 16. Same, short form 82 No. 17. On six notes in one count 83 No. 18. Indorsee vs. maker 85 No. 19. Indorsee of executor vs. maker 86 No. 20. Surviving partner as payee vs. surviving partner or maker 87. No. 21. Executor of payee vs. maker 89 No. 22. Administrator of payee vs. maker 89 No 23. Partners pa3'ees vs. partners makers 90 No. 24. Payee against husband and wife, note given by wife while sole * 91 No. 25. Indorsee against indorser, alleging prosecution of suit against maker 91 No. 26. Same, suit against maker unavailing 98 No. 27. Same, maker having left the State, etc 99 No. 28. Payee vs. guarantor 100 On order. No. 29. Payee vs . drawer, on order not accepted 103 On a check. No. 30,. Payee vs. drawer, etc 104 On inland biUs of exchange. No. 31. Drawer vs. acceptor, on bill accepted, generally 105 No. 32. Same, etc 106 No. 33. Same, on bill pajvable to a third person, and returned to, etc., drawer 107 No. 34. Payee vs. acceptor, on bill accepted generally 108 No. 35. First or subsequent indorsee against acceptor ." 109 No. 36. Payee vs. drawer of bill, on default of acceptance 109 No. ■■7. Same, defendants had no effects in drawee's hands. . . 110 No. 38. Same, on default of payments 110 Oji warranties. No. 3). On a warranty of a horse to be sound 112 No. 40. Same, of hops sold by sample 113 On leases. No. 41. Landlord vs. tenant from year to year, on implied con- tract, etc 116 No. 42. Same, for leaving premises out of repair, etc 117 On promises to marry. No. 43. On promise to marry on request 118 No. 44. Count for marrying another woman 118 • Not necessary iu lUiuois. i:n'dex to foems. 929 Assumpsit. ASSUMPSIT— Continued. No. 45. On promise to marry in a reasonable time 118 No. 46. On promise to marry at a particular time 119 Against bailees. No. 47. Against hirer of horse for using it improperly, etc. . . 122 No. 48. Against carrier by land, for loss of goods 125 No. 49. Against captain of ship, on his bill of lading, for loss of goods , 127 On contracts of sale of goods, etc. No. 50. For not accepting goods sold 130 No. 51. For not accepting goods made for defendant 131 No. 52. For not delivering goods within a sjieciGed time 132 No. 53. For not delivering goods at a particular place, etc 133 No. 377. On promise to be accountable for goods sold to a third person 883 No. 378. On promise to pay money as difference in exchange of property 884 On contracts for employment. No. 379. On written contract for employment, etc 885 No. 380. Same, on verbal contract 885 On policies of insurance. No. 54. On fire insurance policy, etc 134 No. 55. Same 139 Forms of Pleas in Abatkmknt in. {See Abatkment, Forms op Pleas, ante.) Forms op Pleas in Bar in general issue. No. 66. Non assumpsit 166 No. 68. Notice of set-off under 1C8 Special pleas in bar. No. 70. Statute of limitations (Rep. No. 71. 73) 175 No. 75. Infancy (Itep. No. 76, 77, 79) ISl No. 81. St; t ite of frauds, agreement to be porforiued witbin one year, etc. (Rep. 82) 186 No. 83. Same, promise was to answer for debt of another, not in writing (Rep. 84) 187 No. 85. Fraud and circumvention in obtaining execution of in- strument (Hep. No. 87) 191 No. 86. Fraud, in action by assignee of notes by surety that note was obtained by fraud, etc. (Rep. No. 87) 191 No. 88. Usury (Rep. 89) 197 No. 90. Set-off (Rep. 91) 204 No. 92. Release (Rep. 93) 210 No. 94. Payment (Rep. 95) 215 No. 96. Accord and satisfaction, delivery, etc.. of goods, etc. (Rep. 97) 218 930 INDEX TO FOEMS. Assumpsit. ASSIJM PSIT— Continued. No. 98. Same, account stated and delivery of note in satis- faction -. 221 No. 99. Arbitration and award (Rep. ICO) 223 No. 101. Judgment recovered (R.-p. 102) 224 No. 103. Tender, etc. (Rep. 104, 105) 228 No. 106. By surety on note, that creditor gave further time to principal, without his assent 234 No. 107. By same, on note, creditor was requested, in writing, to sue, etc 238 No. 108. Breach of warranty, suit on note, etc 241 No. 109. Want of considei'ation, suit on note, etc 245 No. 110. Total failure of consideration, suit on note, etc ... 246 No. 111. Same, breach of warranty of horse, etc 1:47 No. 112. Same, to suit by assignee of note given on purchase of real estate, etc 248 No. 882. Total failure of consideration, note given for fees, etc. 887 No. 113. Partial failure of consideration, etc 251 No. 114. Promises were for money won at gaming (Rep. No. 389) ! 252 No. 115. Discharge in bankruptcy 253 No. 116. Illegal considera'don, note given for difference in options, etc 255 No. 117. Denying execution of instrument sued on 257 No. 118. By one defendant, denying joint liability 258 No. 119. Denying joint liability 258 No. 120. Nul tie! corporation 259 Puis darrein continuance, release, etc 261 Same, another form 262 No. 121. Same, etc • 262 Forms op Replications to Pleas in Bak. No. 69. Special s)/H (7 (7e>" to «o?» «s.<^?^»»^>.'?/7, No. 66 175 No. 71. To plea of statute of limitations, No. 70, cause of action did accrue within, etc 176 No. 73. Same, defendant was out of state-, etc. (R>j. No. 74). 177 No. 76. To plea of infancy, No. 75, denying infancy 182 No. 77. Same, goods, etc., were necessaries, etc. (Rej. No. 78) 182 No. 79. Same, defendant confirmed promises after becoming of age (Rej. No. 80) 183 No. 82. To No. 81, statute of frauds, that agreement was to be performed within a year 186 No. 84. To No. 83, statute of frauds, promise was not to answer for debt of another 187 No. 87. To Nos. 85, 86, denying that execution of instrument was obtained by fraud 192 No. 89. To No. 8S, plea of usury that note was given on legal contract, etc 198 INDEX TO FORMS. 931 Attachment. ASSUMPSIT— Continued. No. 91. To No. 90, set-oflP, jn7 rfefce^ ....205 No. 386. Same, statute of limi-tations to plea of set-off 889 No. 93. To No. 92, plea of release twn est factum 211 No. 95. To No. 94, plea of payment den3'inj2r payment 216 No. 97. To No. 96, plea of accord and satisfaction, denying delivery of property, etc 219 No. 100. To No. 99, plea of arbitration and award, denying the award 224 No. 387. Same 889 No. 38S. Same 889 No. 102. To No. 101, plea of judgment recovered, denying that causes of action were the same 225 No. 104. To No. 103, plea of tender, denying tender, etc 231 No. 105. Same, admitting tender 231 No. 389. To No. 114, plea of gaming, etc., that note was not for money won at gaming 890 No. 383. To No. 381, another action pending, etc 888 No. 385. To double replication 889 Forms op Re.joinders to Replications. No. 72. Special similiter to replication concludiiig to the coun- try : 176 No. 390. Commencement of rejoinder to a special plea 890 No. 391. Of conclusion with verification 891 No. 74. To No. 73, replication to plea No. 70, statute of lim- itations, denying that action was commenced within, etc 177 No. 78. To No. 77, replication that goods sold to infant were necessaries, denying the same 182 No. 80. To No. 79, to replication to plea of infancy, that de- fendant confirmed promise, etc., denying the same. 183 No. 392. To double replication 891 No. 393. To replication to plea of award 891 Forms of Demurrers in. No. 122. Demurrer to declaration 268 Short form of 269 No. 124. To plea in abatement 272 No. 126. To plea in bar 273 Forms op Joinder in Demurrer. No. 123. To a declaration or replication 269 Short form of 2G9 No. 125. To demurrer to plea in abatement 272 No. 127. To demurrer to plea in bar 274 ATTACHMENT — Proceeding in. Forms in, misceUaneoiis. No. 295. Affidavit for 620 No. 296. Plea in abatement in 627 932 INDEX TO FOEMS. Award — Case. ATTACHMENT- Continued. No. 297. Plea by third party claiming property — interpleader. 633 No. 298. Atfidavit for, in aid of assumpsit, etc 634 No. 299. Same, in aid of trespass, etc 635 Judgfe's order for 635 No. 300. Affidavit for garnishment 638 No. 301. Interrogatories to garnishee 640 No. 302. Answer of garnishee 640 Forms in Attachment of Water Crafts, etc. No. 303. Form of petition for 652 No. 304. Same, where name of owner is unknown 652 AWARD— (i)e« Forms in Arbitration and Award, ante.) BAIL IN CIVIL CASES— Forms in, miscellaneous. No. 1. Affidavit for ca. ad res. charging fraud, in actions ex contractu 51 No. 2. Same, charging concealment of property, etc 51 No. 8. Same, in actions sounding merely in damages 52 Judge's order for ca. ad res 63 Bond by plaintiff 53 Bond by defendant 54 BILLS OF EXCEPTIONS — Forms in. No. 847. To evidence, instructions, etc 836 No. 348. On refusal of continuance 838 CARRIERS— (5ee Common Carriers. ) CASE — Actions on the — Forms of declarations in. No. 197. Against R. R. Co. for negligently running train across highway, whereby plaintiff was injured 422 No. 193. On statute, against R. R. Co. for not ringing bell, etc, 427 No. 199. Ag'ainst R. R. Co. for negligence in management of train, etc \ 428 No. 200. Same, for damage caused by fire from engine, etc 429 No. 201. Same, for damages resulting from not fencing road, etc 432 No. 202. Same, by administrator, for causing death of person. . 437 No. 203. Again«t a city, permitting sidewalk to remain out of repair, whereby plaintiff was injured 440 No. 204, Against defendants for keeping imcovered vault in street, whereby plaintiff" was injured 442 No. 205. Against proprietor of stage-coach for negligence, etc. . 444 No. 206. Against defendant for keeping dog which bit plaintiff, etc 445 No. 206. For malicious prosecution 446 No. 208. For criminal conversation 451 INDEX TO FOKMS. 933 Certiorari — Change of Venue. CASE — Actions on the — Continued. No. 209. For debauching plaintiff's daughter 453 No. 210. For deceit in warranty ct a horse 455 No. 211. Same, in sale of wool deceitfully packed, etc 456 No. 212. Against sheriff for taking insuliicient sureties in re- plevin 457 No. 21.S, For over-loading and immoderately driving a horse, etc 458 No. 214. Against physician for neglect, etc., in treatment of plaintiff 459 No. 215. Against an attorney for negligence in prosecuting an action 460 No. 216. Against R. R. Co., as common carrier, for not deliver- ing goods, etc 461 No. 217. Against seller of intoxicating liquors, on statute, etc., etc 462 No. 218. Against same, and his landlord, on statute, for injury by intoxicated person 464 No. 3'"'9. For negligence in setting fire to prairie 895 No. 398. Against commissioners of highways for flooding land by a ditch 894 No. 400, For deceit in sale of mattress infected with vermin, etc 896 For Slander. No. 219, General form for 477 No. 220. For words charging an unmarried woman with forni- cation 478 No. 221, For words charging false swearing 479 No. 222. For words charging larceny 481 No. 223. For words spoken in foreign langnnge 482 No. 224. By a tradesman, for words imputing insolvency, etc. . 483 For Libel. No. 225. In newspaper 485 No. 226. By letter imputing insolvency, etc 486 Forms op Pleas in. No. 227. General issue, not guilty 489 No. 228. Justification of words imputing perjury 494 No. 230. .Justification for words imputing larceny 495 Form of replication to }}lcas. Op Justipication, in action of slander, etc., de injuria 495 CERTIORARI— Form op Petition for. No. 316. To justice of the peace 709 CHANGE OF VENUE— No. 333. Form of notice of application for 750 No. 334. Form of petition on account of prejudice of judge 750 No. 335. Same, on account of prejudice of inhabitants 751 931 INDEX TO FOKMS. Common Carriers — Debt. COMMON carriers- No. 48. Declarivtion in assumpsit, against carrier by land for loss of goods 125 No. 49. Form of declaration in assumpsit against captain of a ship on bill of lading for loss of goods 127 No. 205. Form of declaration against proprietor of stage coach in case, for negligence, etc 444 No. 216. Against R. R. Co. in case, for not delivering goods, etc. 461 COMMON COUNTS— (See Forms of Declakations in Assumpsit.) CONFESSION OF JUDGMENTS— Forms in. No 345. Proof of warrant of attorney , . , 823 No. 3455^. Cognovit 824 CONTINUANCES— Forms in aj^pUccifionfor. No. 336. Affidavit for, on account of absence of witnpss 756 COSTS, SECURITY FOR— Form of bond for, by non-residents, etc 41 No. 330. Form of affidavit for rule 746 No. 331. Form of affidavit for rule, etc 748 No. 332. Form of bond 748 COVENANT— Action of— Forms of declaration in. No. 137. Grantee vs. grantor, on covenants in deed, etc 295 No. 138. Same, on covenants in deed against incumbrances. . . . 297 No. 139. Sicond or remote grantee against grantor, on cove- nants of -warranty, etc 298 No. 140. On covenants in lease to pay rent k99 No. 141. Apprentice against master for breach of covenants in indenture (Plea No. 146) 300 No. 142. On fire insurance policy 302 Forms of pleas in. No. 143. Non est factxim 306 No. 144. Plea of payment to actioji, etc., for payment of money 307 No. 145. Performance 309 No. 146. To declaration in suit by apprentice, plaintiff deserted service, etc. (Dec. No. 141) 309 DEBT— Action of— Forms of Deci-arations in. No. 147. Common indebitatus count 321 No. 148. Payee vs. maker on promissory note, etc 323 No. 149. On bill of exchange, payee vs. drawer, etc 325 No. 150. On an award, etc 326 No. 151. On judgment in same court 328 N«. 152. Same, in court of another state 329 No. 153. Same, of justice of the peace, etc 330 IXDEX TO FORMS. 935 Debt. DEBT— Continaed. No. 154. In action for rent, on a demise 3-31 No. 155. On a single bill, or sealed note 333 No. 156. On appeal bond, on appeal to Supreme Court 335 No. 157. On replevin bond, etc. (Plea No. 190) 338 No. 158. Same, etc. (Plea No. 190) 340 No. 159. On sheriff's bond, on failure to make amount due on execution, etc 343 No. 160. On guardian's bond, for use of ward, etc 348 Same, more concise 350 No. 161. Same, for use of successor of guardian, removed 351 No. ] 62. On administrator's bond 353 No. 163. On attachment bond, etc 358 Isf 0. 164. On injunction bond, etc 362 Another form, etc 364 No. 165. On license bond, action for use of wife of person to whom intoxicating liquors were sold 369 No. 166. On statute, against seller of intoxicating liquors, by one who has taken care of person intoxicated 371 No. 167. On statute, for cutting trees, etc 372 No. 168. On statute, against drover, for driving off horses, cattle, etc 375 No. 169. On statute, against sheriff, for not admitting a'torney to see prisoner . •■ 378 No. 170. On statute, by landlord against tenant, for double rent, etc 379 No. 395. By the people, to recover delinquent taxes 892 Form of pleas to decUtratwn. No. 172. mi debet 384 No. 173. Non estfartutn 386 No. 174. Non est factum and nil debet, to debt on bond, and simple contract 387 No. 175. Non est factum, after craving oyer, etc 388 No. 176. That bond was delivered as an escrow 390 No. 177. Onerari non 391 No. 178. Tender, to debt on simple contract — nil debet as to part, and temlcr as to residue 392 No. 179. Nul tiel record 393 No. 396. Eviction, in action by landlord vs. tenant ( Rep. No. :;97) 893 No. 181. Duress, menace to kill 395 No. 183. Set-off, to debt on money bond, etc 396 No. 184. Payment, to debt on bond 397 No. 185. Failure of consideration to debt on spi.'rialty 397 No . 18 ■. Performance, generally 398 No. 187. Non damnificatus 399 No. 188. To debt on demise for rent, no rent in arrear 400 93G INDEX TO FOKMS. Demurrers — Garnishment. DEBT— Continued. No. 189. To declaration on arbitration bond, no award made.. 40) No. 190. To declaration on replevin bond, tbat merits were not determined in replevin suit, etc 401 No. 191. To debt on statute, former conviction for same of- fense 402 Forms of replications to pleas. No. 180. To plea of mil tiel record (No. 179) 395 No. 182. To plea of duress (No. 179) 396 No. 397. Denying eviction 893 DEMURRERS— (S'ee Assumpsit, Fokm of Demurrers in, ante.) DEPOSITIONS— Forms in talcing. No. 339. Affidavit to be filed before taking depositions o£ wit- nesses residing in another county, etc 775 No. 340. Notice to take, etc 776 No. 341. Notice and interrogatories for taking, etc., upon in- terrogatories in writing 779 No. 342. Caption of, etc 781 No. 343. Certificate, etc 782 DISTRESS FOR RENT— Proceedings by— Nature of the proceeding 405 Forms relating to. No. 192. Warrant of, by landlord 408 No. 193. Inventory to be filed with copy of distress warrant. . . 409 No. 194. Affi-^lavit for publication, etc 410 EJECTMENT— Action op— Forms of declarations in. No. 290. General form 611 No. 291. By several persons, naming them, as plaintiffs, jointly in one count, and separately in others 612 Form of p)lea to declaration. No. 292. Not guilty 614 Mes7ie profits. No. 293. Form of suggestion of claim for 615 No. 294. Form of plea, non assumpsit, to suggestion of claim for 616 EVIDENCE— (Sfc Depositions, ante.) Production of clocumentary. No. 338. Notice to opposite pnrty to produce written instru- ment, etc. , on the trial 772 GARNISHMENT- (See Attachment, ante.) Forms in. No. 300. Affidavit for process of 638 No.-301. Interrogatories to garnishee 640 No. 302. Answer of 640 IXDEX TO FOEMS. 937 Habeas Corpus — Quo Warranto. HABEAS corpus- Forms IN, Generally. No. 317. Petition for, where petitioner is detained without warrant 719 No. 318. Same, where petitioner is detained under warnmt of commitment 720 No. 319. Same, by parent for cliild 721 No. 320. Same, where petitioner is held under ca. ad ref. 721 ' No. 321. Petition for, ad testificandum 722 Master's order allowing same in absence of judgt^ 723 No. 322. General form of writ of 724 No. 323. Return to writ of, where prisoner is in custody- 726 No. 324. S ime, denying detention 726 No. 325. Same, by party not an officer 726 No. 326. Judge's order of discharge, in vacation 729 No 327. Judge's order, in vacation, remanding prisoner 730 No. 328. Order of discharge, by court, in term 730 No. 329. Order of court, in term, remanding prisoner 731 interpleader- No. 297. Form of. in attacliment 633 interrogatories- No. 301. Form of interrogatories to garnishee 640 No. 302. Form of answer of garnishee 640 judgments- Form OP Declarations on, etc. No. 151. On judgment in same court 328 No. 152. Same, of court of another state 329 No. 153. Same, of justice 330 No. 305. Form of ^ci. fa. to revive 658 No. 101. Form, plea of former judgment recovered 224 No. 102. Replication to No. 101, denying that causes of action were the same 225 mandamus- No. 309. Form of p-^tition for ... 678 No. 310. Form of answer to petition 682 No. 311. Plea to petition for 633 NEW trials- No. 344. Form of motion for 808 PLEAS — {See .Assumpsit and Pleas in each Form op Action.) QUO WARRANTO— No. 312. Form of information by attorney-general, again^^t a corporation, (Plea No. 314; 696 No. 313. Same, at instance of relator, etc., (Plea No. 315) 697 No. 314. Form of plea by corporation to information by attor- ney-general 700 No. 315. Same, at instance of relator 700 938 INDEX TO FORMS. Referees — Trespuss. TtEFEREES- No. ;-!49. Form of agreement to refer cause to P4l No. 350. Form, order appointing S-t'i No. 351. Form of report of, in favor of plaintiff 842 No. 352. Same, in favor of defendant ; 843 No. 353. Form of exceptions to report of 843 REPLEVIN— Action of— Form of affidavit in. No. 234. Form of affidavit in 526 Form of declarations in. No. 235. Form of 527 No. 236. Count in trover to be attached, where part of good^i can not be found 528 Form of pleas ih. No. 237. Non cex)it 528 No. 23S. Non detiniiit 530 No. 239. Not guilty to count in trover 531 No. 240. Property in defendant 531 No. 242. Property in stranger 533 No. 244. Justification by a sheriff under ^f. fa. against a third person 534 No. 245. Lien on property, etc 536 No. 246. Property held as pledge 538 Form acoivry, etc., for rent. No. 247. Avowry or cognizance for rent 538 Forms op Pleas iisr Bar to Avowry, etc. No. 248. Traversing of demise 539 No. 249. No rent in arrear 540 Forms of replications to j)leas. No. 241. To No. 240. Property in defendant, denying 532 No. 243. To No. 242. Property in stranger, denying 533 SCIRE FACIAS- Forms in. No. 305. To revive judgment 658 No. 306. On mortgage to foreclose 661 No. 307. Same, etc .... -. 663 No. 308. On a recognizance taken in open court, etc 665 SLANDER AND LIBEL— (.*>ee Case, actions on tiie, as to forms, ETC.) SUBMISSION TO JUDGE— No. 354. Form of agreement to submit controversies to judge. . 844 TRESPASS— Action of— Forms op Declarations in. For injuries to the person, etc. No. 250. For an assault, alleging special damages 566 No. 251. For a, common assault 668 INDEX TO FOKMS. 939 Trespass. TRESPASS— Continued. No. 252. For assault with pistol, wounding, etc 568 No. 253. For riding or driving against plaintiff. 569 No- 251. By husband and wife, against husband and wife, for a battery of one wife b\- the other 559 No. 255. Common count for false imprisonment 570 No. 256. For an assault, etc., and false imprisonment 570 No. 257. For debauching plaintiff's daughter, etc 571 No 25S. For criminal conversation 571 For injuries to personal property. No. 259. For taking goods, common count, de bonis asporfrifis 572 No. 260. For chasing cattle, etc 572 No. 261. For chasing mare, etc 573 No. 232. For driving carriage against plaintiff's, whereby he was thrown out and his carriage damaged 573 No. 263. For killing plaintiff's horse 574 No. 401. For shooting plaintiff's dog 897 No. 264. Against constable, on the statute, for taking exempt prop -rty in execution 575 For injuries fo real estate. No. 265. For trespass in dwelling house, breaking open doors and seizing goods, etc 576 No. 266. Count for common expulsion 577 No. 267. For trespass to land, entering close, etc 577 No. 268. For cutting down and carrying away trees, etc 579 No. 269. For digging in coal mine, and carrying away coal therefrom 579 No. 270. For digging mines, raising ore, taking and convert- ing it 579 Forms op Pi.eas in Bar. No. 271. Not guilty 582 No. 272. Son nssaulf demesne 583 No. 273. Same, defense of child, etc 584 No. 275. Mo! lifer manus imposuit, to preserve the peace, etc.. 587 No. 276. Same, to put defendant out of plaintiff's dwelling house 588 No. 277. By schoolmaster, justifying a battery 689 No. 278. 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 590 No. 279. Plea justifying an arrest, as constable, without process. 591 No. 280. Same, etc 592 No. 281. Same, by private per-son 594 No. 282. By sheriff, justifying taking of goods under a/ieri facias 595 No. 284. Injury caused by plaintiff's own negligence 598 940 INDEX TO FORMS. Trover. TRESPASS— Continued. No. 285. License 598 No. 287. Liheriim tenementum 600 FoKMs OP Replications to Pleas. No. 274. General replication, de injuria, etc 585 No. 283. To plea of justification under process, etc 597 No. 286. To plea of license 599 No. 288. To plea of liberum tenement am, denying the plea. . . 602 No. 289. New assignment 602 TROVER— Action op— Forma of declarations in. No. 231. General form 508 No. 232. By executor, for conversion in lifetime of testator. . . . 509 Form op Plea in Bar. No. 233. Notguilty 513 I II fkW w. s. SCHOOL OF LAW LIBRARY UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 825 537 "'. :.i;t;)iMH^i,,