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Cowles et al. o. Litchfield.

laration, we can perceive no defects. The averments are full and broad, as to the use of due diligence to recover the money of the makers of the note sued on, and the allegations, in that respect, are also sufficient, because they show that diligence by suit, judgment, and an execution returned nulla bona, as to a portion of the amount of the note, which could not be collected.

The third count of the declaration avers, the entire insolvency of the maker, and that the institution of a suit at law to recover the amount, at the time the note became due, would have been unavailing.

This was sufficient. The demurrer being general to all the counts, the decision of the Circuit Court would have been correct on this count alone, had the first two been defective. But we perceive no reason for disturbing the judgment on the demurrer, in reference to all the counts. The judgment of the Court below is affirmed with costs.

Judgment affirmed.

Note. See Harmon et al. o. Thornton, Ante 351 ; Saunders o. O'Briant, Post ; Campbell o. Humphries, Post ; APPENDIX, A.

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DECISIONS

OF THE

SUPREME COURT

OF THE

STATE OF ILLINOIS,

DELIVERED

DECEMBER TERM, 1840, AT SPRINGFIELD.

THE PEOPLE OF THE STATE OF ILLINOIS, ex relatione

JAMES M. DUNCAN, Clerk of the Supreme Court, v.
James B. NEEDLES, late Sheriff of Monroe County.

Motion for Attachment.

In this case it was held, that where a sheriff or other officer neglects or fails to return a fee bill, execution, or other process, the practice is, in the first instance, to take a rule against him to return the same ; and that it is irregular to issue a rule, in the first instance, to show cause why an attachment should not issue.

Held, also, that an affidavit of the relator, setting forth, “that he transmitted to James B. Needles, late sheriff of Monroe county, for collection," the fee bills and executions, was sufficient evidence of their having come to the hands of the defendant, upon a motion for a rule against him, to return the same.

F. FORMAN, for the relator.

JAMES and Isaac LEONARD, appellants, v.

Joseph Hughill, appellee.

Appeal from Tazewell.

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In this cause (judgment having been rendered by default in the *t below) a writ of certiorari was granted to the Court below,

46

II.

The People et al. o. Cloud.

on the ground, that, subsequent to the taking of the appeal herein, the Court below had permitted the sheriff, who served the process upon the defendants below, to amend his return, by adding his signature thereto, which he had before omitted ; and such amendment had been made since the record had been transmitted to this Court.

S. T. LOGAN, for the appellants.
E. D. BAKER, for the appellee.

THE PEOPLE OF THE STATE OF ILLINOIS, ex relatione

JOSEPH STETTINUS and DAVID A. JANUARY, v. JoSEPH CLOUD, Clerk of the La Salle Circuit Court.

Motion for a Writ of Mandamus.

Where a judgment was rendered in the Circuit Court against the defendant, and

on the last day of the term of the Court at which the judgment was ren ed, a motion was made to set it aside, and grant a new trial, and, before any decision was had on the motion, the Court adjourned; and on application of the plaintiffs, the clerk of the Court refused io issue execution, because the motion was undecided; the Supreme Court granted an alternative mandamus, requiring the

clerk to issue execution, or show cause for his refusal. A motion for a peremptory writ, in the first instance, was refused.

JUDGMENT was rendered in favor of the relators against David Wells, at the November term, 1840, of the La Salle Circuit Court, the Hon. Thomas Ford presiding, for $ 460,44, and costs of suit ; and on the last day of said term, the defendant moved the Court to set aside the judgment and grant a new trial, but before any decision was had on the motion, the Court adjourned.

The relators requested the clerk to issue an execution upon the judgment, which he declined doing ; on the ground, that the motion for a new trial was not disposed of.

The relators presented these facts to this Court, and obtained an alternative mandamus, requiring the clerk to issue execution, or show cause why he refused so to do, by the first day of February, 1840. The motion for a peremptory writ, in the first instance, was refused.

J. D. CATON, for the relators.

Gorham et al. o. Peyton.

GARDINER T. GORHAM and Lewis DURLEY, appellants,

v. FRANCIS PEYTON, appellee.

3 363 29a 456

Appeal from the Municipal Court of the City of Chicago.

In an action by the assignee against the maker of a promissory note, it is a good

defence, that the note was given in consideration of a tract of land, and that, at the time of the making of the note, it was expressly understood and agreed between the payee and the defendant, that he should not be called on for the payment of the note, until the payee should obtain a patent from the United States for the said land, which he expected would be obtained before, or at furthest, at the maturity of the note ; that the assignee, at the time of the transfer of the note to him, had notice of the consideration of the note, and of said agreement, and promised that he would not sue the defendant; and that the payee had not obtained a patent for the land, although a full consideration was paid for the note by the assignee. The want of recollection of one witness cannot rebut the positive testimony of an

other.

This was an action of assumpsit brought by the appellee against the appellants, upon the following promissory note :

“ $ 1000. Thirteen months after date, value received, we promise to pay to J. B. Beaubien, or order, the sum of one thousand dollars, with interest, at six per cent.

" GORHAM & Durley. Chicago, 30th July, 1836." On the back of said note was the following assignment:

“ For value received, I hereby assign the within note to Francis Peyton.

J. B. BEAUBIEN. Chicago, 24th Aug. 1837.

The cause was tried at the April term, 1838, of the Court below, the Hon. Thomas Ford presiding. Judgment was rendered against the defendants, for $ 1125, from which they appealed to this Court.

J. D. Caton, J. Y. SCAMMON, and N. B. Judd, for the appellants. CATON contended, that in addition to the evidence showing that the appellee had notice of the consideration of the note, at the time of the assignment, the note was transferred after it became due, a month at common law being a lunar month. He cited 3 Stark. Ev. 1388 – 89 ; Chit. on Bills 325 - 26; R. L. 483-84.

Giles Spring and FRANCIS Peyton, for the appellees.
Wilson, Chief Justice, delivered the opinion of the Court :

This case differs from those usually brought up for review, inasmuch as the questions presented for adjudication are those of fact, and not of law. The action was brought by Peyton, as assignee of Beaubien, against Gorham & Durley, on a note made

Gorham et al. o. Peyton.

by them to Beaubien. The defence set up by the defendants is, first, a want of consideration, and that the plaintiff knew the fact, at the time the note was assigned to him ; secondly, that the consideration for the note was a part of Beaubien's Addition to the town of Chicago, for which Beaubien was to give a good and sufficient deed, which was to be founded on a patent from the United States to Beaubien, at the time the note became due ; and that Beaubien never did obtain a patent from the United States, and never did give the title stipulated for, and that the plaintiff was well advised of these facts at the time of the assignment.

The whole case was submitted to the Court, without the intervention of a jury. The Court acted, therefore, in the twofold character of a court and jury, and its decision upon the facts of the case is, therefore, entitled to the same weight as that of a jury ; and we would not disturb the decision in this case, if the evidence upon which it was founded, was either inconclusive, contradictory, or doubtful ; but we cannot regard it as such. The characters of the witnesses are unimpeached, and their testimony is full, direct, and positive in support of the issue. Hartzell testifies, that “ he was present when the note was given by Gorham & Durley to Beaubien ; and that the consideration for it was a part of Beaubien's Addition to Chicago, and that it was expressly understood and agreed between Beaubien and the defendants, that they should not be called on for the payment of the note until Beaubien should obtain a patent from the United States, for the said land, which Beaubien expected would be done before, or, at furthest, as early as the malurity of the note.'

Beaubien testified, that " he had not obtained a patent for the land referred to."

Markoe swore, that “ he was present at the negotiation for the transfer of the note from Beaubien to the plaintiff, and that Beaubien, at the time of the transfer of the note, expressly stated to the plaintiff, that the note was given by said defendants to said Beaubien, for some lots in Beaubien's Addition to Chicago ; ' and that it was agreed, at the time said note was given, between the said Beaubien and the said defendants, that the said defendants should not be called upon for the payment of the said note, until the said Beaubien should be able to put said defendants in possession of said land, and the said defendants should be put in possession of said lots; that, at the time aforesaid, the said Beaubien stated to said plaintiff, he would not have him sue the said defendants on the said note, for all of his Reserve,' or all of his Addition to Chicago, until he could put them in possession ; that said plaintiff, at that time, expressly agreed, that he would not sue the said defendants on the said note.”

This was all the evidence given in the case, except the additional

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