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Weatherford o. Wilson.

rer,” “ Joinder,” “ Traverse and issue,” as above specified, were filed on the 12th of September, 1838. The record then states, that the plaintiff below, on the 13th September, 1838, filed a demurrer writien out in full, to all the defendant's pleas, but it is not joined. On the 25th September, 1838, at the September term of the Montgomery Circuit Court, the following appears on the record. 6. This day came the parties by their attorneys, and the demurrer pleaded by the attorney for the plaintiff, is sustained as to the defendant's third and fourth pleas ;” and at a subsequent day of the same term, the cause was continued on an affidavit of the defendant.

At the April term, 1839, of said Court, being the 3d day of April, the defendant, on affidavits, moved for a continuance, which being denied, and to which defendant excepted, the record there states, “and the issues being joined, thereupon came the jurors of the jury," who were elected, tried, and sworn, &c., and gave a verdict on the 4th of April, for the plaintiff. Thereupon the defendant moved for a new trial, on several grounds, one of which was, that the verdict was against the facts of the case, which being overruled, the defendant excepted. The bill of exceptions states, that the counsel for the defendant offered to have the facts of the cause as stated by the witnesses respectively, spread out in this bill of exceptions, which offer the Court refused, on the ground that the testimony had not been taken in writing by the Court.”

The record then contains some unnecessary and irrelevant matters, and then says, “ And afterwards, at the same term of the same Court, the plaintiff

, by his attorneys, filed the following replication.” This replication tenders an issue to the defendant's first, second, fifth, and sixth pleas. It does not, however, appear that the defendant's counsel signed the similiter, nor does it appear that the plaintiff obtained leave of the Court to withdraw any of the demurrers in the cause.

On the 6th of April, 1839, the Court below gave judgment for the plaintiff on the verdict.

Among other errors assigned are the following, first, that the Court erred in not rendering judgment for the appellant, on overruling the appellee's demurrer to the appellant's first, fifth, and sixth pleas; and secondly, in refusing to spread out in the bill of exceptions, the evidence given in the case, on overruling the appellee's motion for a new trial.

From the synopsis of the pleadings that we have made, it does not appear that any decision was made by the Court below on the demurrer to the first, fifth, and sixth pleas. The record only states, that the demurrer to the defendant's third and fourth pleas, was sustained. This decision left the demurrer to the first, fifth, and sixth pleas undecided. That both parties understood the demurrer to these pleas to be overruled, is evident from the fact

Weatherford v. Wilson.

that the appellant has assigned for error, that the Court below did not render judgment for him on such decision. And the appellee, subsequently to the trial, filed a replication to these pleas, but without having obtained leave of the Court, either before or after the trial, to withdraw his demurrer and reply. Assuming it then as true, that the demurrer to these pleas was overruled, and the pleas held good, it was the duty of the Court below to have given judgment for the defendant, unless the plaintiff obtained leave to withdraw the demurrer and reply. These pleas were in bar to both counts in the declaration, and, if good, barred the action. But assuming the fact to be that the demurrer to these pleas is still undecided in the Court below, it was error to have given judgment on the issues joined, without having first decided on the validity of these pleas. Take, then, either view, and the judgment below is erroneous.

In relation to the second error relied on, we are of opinion that the appellant has mistaken his remedy. By the second section of the act entitled, “ An Act to amend the Act entitled an Act concerning practice in Courts of Law,” (1) passed 21st July, 1937, (2) a party has a right to except to opinions or decisions of the Circuit Court, in overruling motions for new trials.

When the motion for a new trial is predicated upon the assumption that the jury decided contrary to the evidence, the party is undoubtedly entitled to have the testimony spread out in a bill of exceptions, to enable him to assign for error in this Court, any error that may have intervened in overruling such motion. When such a case is brought into this Court, it is our duty to make such decision as the Court below should have made. How can this Court know whether the Circuit Court decided correctly in refusing to grant a motion for a new trial, because the jury decided contrary to evidence, unless that evidence is furnished to this Court ? It was no doubt the duty of the judge below to have signed a bill of exceptions containing the testimony ; and if the judge, as stated by him, had not preserved minutes of the testimony, he should have permitted the party to have made out a statement of the evidence, and required it to be submitted to the opposite party for correction ; and if the parties could not agree what the evidence was, the judge should then have corrected the bill with the best lights he possessed. It was the defendant's legal right to except, and the omission of the judge ought not to prejudice that right. We think, however, it was the duty of the defendant's counsel to have prepared a correct bill of exceptions, and tendered it to the judge, and then, if the judge had refused to sign it, the proper course would have been to have applied to this Court for a mandamus.

(1) Acts of July, 1837.

(2) Gale's Stat. 540.

Shepard o. Ogden.

The judgment is reversed with costs, and the cause remanded, with instructions to the Court below to decide the demurrer to the first, fifth, and sixth pleas, and thereupon proceed in the cause according to law, and the practice of the Court.

Judgment reversed.

ALBERT SHEPARD, plaintiff in error, v. William B.

OGDEN, defendant in error.

Error to the Municipal Court of the City of Chicago.

An affidavit cannot give jurisdiction to a Court to send its process out of the

county; the jurisdiction, if it exists, must appear from the declaration. A declaration in assumpsit, in the Municipal Court of the city of Chicago, in a case

where process is served upon a defendant out of Cook county, and in the county in which he resides, should state that the contract was specifically made paya. ble in the county of Cook, or that the plaintiff resides in that county, and the

cause of action arose therein. The general statement in a declaration, under a videlicit, that on a particular day,

and at a particular place, the defendant was indebted to the plaintiff, is no averment that the cause of action arose in that place. The cause of action against a principal debtor in favor of his surety, accrues when

the surety pays the debt, not before. Where a motion was made to quash a writ on the ground of a want of jurisdiction

in the Court to issue it, on account of defects in the declaration, and the plaintiff asked leave to amend his declaration, which was granted: Held, that this was a virtual overruling of the motion. The rule that a plea to the jurisdiction of the Court, or in abatement, must be

pleaded at the return term of the process, and before the party has entered a full appearance in the cause, has its exceptions. One of these exceptions is, where the declaration is not filed at the first term. In that case the defendant is not bound to plead either to the jurisdiction or in abatement, until the plaintiff is in a situation to call upon him for a plea.

This cause was tried in the Court below, at the November term, 1837, before the Hon. Thomas Ford. Judgment was rendered for the plaintiff for $ 876,45 and costs. The defendant prosecuted a writ of error to this Court.

Uri Osgood, for the plaintiff in error, cited Const. of Illinois, Art. 8, § 1, 15; Acts of 1837, 75-7, 69, 75, 78, 81; Idem 81 $ 1; Bell v. The People, 1 Scam. 397; Key v. Collins, 1 Scam. 403.

J. Young SCAMMON, for the defendant in error.
LOCKWOOD, Justice, delivered the opinion of the Court:

This was an action of assumpsit commenced by Ogden against Shepard, in the Municipal Court of the city of Chicago. The first process, wbich was a capias, was founded on the usual affidavit, that the plaintiff would be in danger of losing his debt in case the defendant was not held to bail; and that the indebtedness arose

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VOL. II.

Shepard o. Ogden.

in the city of Chicago, and that the plaintiff was a resident of said city. The capias was directed to the sheriff of the county of Will, where the defendant was arrested and held to bail.

The declaration, as originally filed, contained the common money counts, with a count on an insimul computassent. The declaration states that “the defendant heretofore, to wit, on the 19th of June, 1837, at the city of Chicago, was indebted," &c., but contains no averment that the plaintiff was a resident of the city of Chicago, or that the cause of action arose there, except as above stated.

Appended to the declaration is the copy of a note on which it is said the action is brought, made by the plaintiff and the defendant, the defendant as principal, and the plaintiff as surety, payable to the State Bank of Illinois at their Branch at Chicago. Also an account in the following words: “ ALBERT SHEPARD to William B. OGDEN,

Dr. To amount paid for Shepard on the above note, $ 1000 “ money due and owing from Shepard,

1000" At the return term of the capias ad respondendum, the defendant below appeared and moved the Court to quash the writ issued in said cause, for want of jurisdiction in the clerk to issue the same to Will county, which the plaintiff resisted ; and after argument of the motion, which the Court took time to consider, the plaintiff moved the Court for leave to amend the declaration, which leave was granted without disposing of the motion to quash the writ. And thereupon the plaintiff amended the declaration by inserting the words, after the plaintiff's name in the commencement of the declaration, “who is a resident of the said city of Chicago.” Whereupon the defendant moved the Court to continue the cause on the ground of a material amendment to the declaration ; which motion was sustained, and the cause continued. At the next term the defendant filed a plea in abatement to the jurisdiction of the Court, averring that he was a resident of the county of Will, and that the Court had no jurisdiction over his person. To this plea was appended an affidavit of the defendant, of the truth of his plea. The plaintiff below demurred to this plea, and the defendent joined in demurrer.

The Court sustained the demurrer, and the defendant not further answering, a judgment by default was entered, and the damages assessed by a jury at $876,45. The Court gave judgment thereon. A variety of errors have been assigned; it is, however, only necessary to enquire whether the Municipal Court lawfully exercised jurisdiction in this case. Without deciding the question whether the late Municipal Court had, in any case, right to issue its original process into any other county than the county of Cook, it clearly had no jurisdiction in this case. This Court has heretofore decided that an affidavit could not give jurisdiction. The jurisdiction, if it

Shepard o. Ogden.

exists, must appear in the declaration. In the case of Key v. Collins,(1) decided at the December term, 1837, this Court say, that the Circuit Courts are authorized to direct original process to a different county from that in which the action is commenced, in three cases only. First, The plaintiff may commence an action in the county where he resides, if the cause of action accrued in such county ; Secondly, The act authorizes an action to be commenced in any county where the contract is specifically made payable, without regard to the residence of the plaintiff; and, Thirdly, Where there are several defendants residing in different counties, the plaintiff inay commence his action either in the county where the cause of action accrued and in which he resides, or in any county where one or more of the defendants reside.” In the case at bar, if the plaintiff had a right to direct his capias to Will county, it must be under that part of the statute which authorizes a defendant to be sued in the county where the plaintiff resides. But under this part of the statute, this Court, in the case of Collins v. Key, say, “Two facts must concur; the cause of action must accrue, and the plaintiff reside in the same county:

The declaration, as originally filed, was deficient in two particulars. It contained no averment that the plaintiff below was a resident of the county of Cook, and no sufficient averment that the cause of action accrued in that county.

The general statement in a declaration, under a videlicit, that on a particular day, and at a particular place, the defendant was indebted to the plaintiff, is no averment that the cause of action arose in that place. One man indebted to another, is indebted to his creditor, whoever that creditor may happen to be, and the words contained in the declaration were mere words of form, and are intended as words laying a venue, and are not designed to show or give jurisdiction; and the plaintiff, under them, could give evidence of an indebtedness contracted at another time and place.

The defendant was consequently entitled to the benefit of his motion to quash the writ.

The subsequent motion of the plaintiff to amend his declaration, and the amendment made in consequence thereof, admitting the right of a party to have an amendment of his proceedings, so as to give a Court jurisdiction, did not effect the object. The declaration still remained without an averment that the cause of action arose in Cook county. Nor does a reference to the copies of the note and account at the end of the declaration, if it were proper to use them as a part of the declaration, give the Court jurisdiction. The note is neither sued or declared on; and it merely shows the fact that the plaintiff was surety for the defendant. That fact did not give the plaintiff a right of action against the defendant. When

(1) 1 Scam. 403.

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