Rapleev. Morgan. If the premises and corollary be correct, the Court correctly refused to enter a nonsuit, which is assigned as the second error. The third error assigned questions the admissibility and sufficiency of the evidence, by a return of nulla bona on the executions, to establish due diligence on the part of the assignee, in pursuing the debtor to insolvency. Where diligence by suit is shown, to fix the assignor's liability, such a return is a very necessary part of the plaintiff's proof. But it is also necessary to show that suit was instituted within a reasonable time after the debt became due, or assignment made; and which, by the record in this cause, appears to have been done within three days after the debt became due. The assignee appears still further to have diligently pursued his legal remedy, by issuing two executions under which all the debtor's personalty and realty might have been sold, had he possessed any within the county. The truth of the officer's return was not questioned on the trial. In the case of Cowles and Krum v. Litchfield, decided at this term, (1) this Court has established the principle, that such a return is evidence of the defendant's insolvency. Further to prosecute the remedy, would but accumulate costs; and the case would fall within the last point resolved in the case of Thompson v. Armstrong.(2) Upon the fourth error assigned, we can perceive no principle of law which would exclude parol evidence to establish the fact of insolvency; or the admission of the appellant, that Lowe had no property subject to the execution issued by the justice. The fifth and last error that it is necessary to notice, questions the correctness of the opinion of the Circuit Court in refusing to apply the provisions of $ 3, of" An Act to regulate the Interest of Money," (3) to the facts in this case. The Court is not disposed, nor allowed, by settled principles of law, to enlarge, by construction, the provisions of a penal statute. It is not shown, in this case, that the original consideration between the promisor and payee, was usurious; in the absence of proof, the Court will not presume it. The defendant here, having in a fair course of trade discounted this note at a higher rate of interest than allowed by law, it is contended, has contaminated it with usury. By the construction given similar statutes by the courts of the several States, the United States, and England, it is a well settled principle that such sale and purchase of a note, bona fide, in a fair course of trade, is not usurious, where the original consideration was fair, legal, and not tainted with usury.(4) On a question so plain and well settled, it is useless to multiply authorities. The Court below very correctly reduced the amount (1) Ante 356. (2) Breese 24. (3) R. L. 349; Gale's Stat. 343. Vandyke v. Daley. of the judgment to the sum actually paid by the appellee.(1) The judgment of the Court below is affirmed, with costs. Judgment affirmed. JACOB VANDYKE, appellant, v. EDWARD M. Daley, appellee. Appeal from Jersey. Where a writ of certiorari, returnable to the next term, was awarded to the Court below, to send up a copy of an appeal bond, and the appellant showed, by affidavit, that a copy of such bond duly certified, was on the files of the Supreme Court, and moved to set aside the continuance of the cause, the Court overruled the motion, because no order for a continuance had been entered; but sustained a motion to supersede the writ of certiorari. CLARK H. GOODRICH, for the appellee, moved to set aside the continuance in this cause. BREESE, Justice: The Court is of opinion, that the appellee has misconceived the course proper to be taken to effect the object he has in view. The record does not show any continuance of the cause, any further than the awarding of a certiorari, returnable to the next term, can be understood so to operate. The certiorari was awarded upon the affidavit of the appellant's counsel, the appellee having no counsel in Court, setting forth that a copy of the appeal bond had not been sent up, and that the record was thereby diminished. At this term of the Court, the appellee shows, by affidavit, that such a bond was on file early in the term, and presents to the Court a certified copy thereof, as the statute requires. Had this fact been known, the certiorari would not have been awarded; and as the object of it is now accomplished, the order granting the same would be superseded upon a motion to that effect. The present motion is therefore disallowed. Motion disallowed. The counsel for the appellee now entered a motion to supersede the certiorari, which was granted. Certiorari superseded. (1) 15 Johns. 44. Jackson v. Haskell. JOHN JACKSON, plaintiff in error, v. WILLIAM H. HASKELL, defendant in error. Error to Peoria. A blank endorsement upon a promissory note is under the control of the assignee, and may be filled up with his name, before or at the trial of a suit upon the note. In an action of debt, by petition and summons, it is error to render verdict and judgment for damages. S. T. LOGAN, for the plaintiff in error. O. PETERS and JACOB GALE, for the defendant in error. BREESE, Justice, delivered the opinion of the Court: This is an action commenced by petition and summons, by Haskell against Jackson. The petition describes a note executed by Jackson to one Z. Philips, and alleges, "on which note are the following assignments," to wit: "Zachariah Philips," "Onslow Peters," and concludes with a prayer of judgment for his debt and damages, &c. The summons is in debt, and an issue was made up on the plea of nil debet, which, by consent, was tried by the Court without a jury. The Court "find the issue for the plaintiff, and assess the damages by reason of the premises, to two hundred and fifty dollars," and judgment accordingly, for the damages so assessed. The assignment of errors questions first, the correctness of the judgment, it being in damages, when it should have been in debt, and secondly, the right of the plaintiff below to recover, the note being endorsed in blank only. The second error assigned has been repeatedly held to be none. The note is in the power of the assignee, and under his control, and before or upon trial, the blank can be filled up with his name. (1.) The first error is well assigned. The proceedings are in debt, and consequently a verdict and judgment in damages, as in this case, is erroneous. (2.) This error, although manifestly the result of inadvertence, is sufficient to reverse the judgment, which is done accordingly, with costs, and the cause remanded, with instructions to set aside the judgment, and award a venire de novo. Judgment reversed. (1) Bayley on Bills 104; Gillham v. State Bank of Illinois, Ante 245. (2) Jones v. Lloyd et al., Breese 174. The People v. McHatton. The People v. Hallett. THE PEOPLE OF THE STATE OF ILLINOIS, ex relatione JAMES M. DUNCAN, Clerk of the Supreme Court, v. JOHN G. MCHATTON, Sheriff of Schuyler County. Motion for Attachment. An order or rule upon an officer to return process should be served by copy. In this case the relator produced the order of the Court requiring the defendant to return certain fee bills and executions for costs, which, it appeared by affidavit, had been committed to him for collection, and which he had failed to return. The return to the copy of the rule, was as follows: "Served this rule, by reading, on John G. McHatton, the 23d day of January, 1841. "SAMUEL MASON, Coroner of Schuyler County.” J. Y. SCAMMON, for the relator, moved that an attachment issue against the defendant. M. MCCONNEL objected. Per curiam: The rule should have been served by copy. The return is insufficient. The motion must be denied. Motion denied. THE PEOPLE OF THE STATE OF ILLINOIS, ex relatione JAMES M. DUNCAN, Clerk of the Supreme Court, v. MOSES HALLETT, late Sheriff of Jo Daviess County. Motion for Attachment. Where a rule to show cause why an attachment should not issue against an officer, for neglecting to return process, was served twenty days before the return day, by leaving a copy of the rule with the officer, and he acknowledged the service, and no cause was shown, an attachment was awarded against him. MARCH 1, 1841. On this day, the relator produced the order of this Court, requiring the defendant to show cause why an attachment should not issue against him, for neglecting to return certain fee bills and executions for costs, heretofore committed to him for collection; and a copy of the order with the following return endorsed thereon: The People v. The Auditor. "Served the within upon Mo ses Hallett, this 5th day of February, 1841, by his acknowledging service, and leaving him a copy of the within. "ALEXANDER YOUNG, Sheriff Jo Daviess County." J. YOUNG SCAMMON, for the relator. Per curiam: The proceedings seem to be regular. Let the attachment issue. Note. See The People v. Needles, Ante 361. 3 567 156 545 2s 567 THE PEOPLE OF THE STATE OF ILLINOIS, ex relatione 102a +371 JOHN DAVLIN, v. THE AUDITOR OF PUBLIC AC COUNTS. Motion for Mandamus. Under the statutes in relation to the sale of school lands, the school commissioner may be considered the legally constituted agent, both for the State and the purchaser, to receive the patents, and when they are delivered to him, in compliance with the statute, the title is divested out of the State, and becomes vested in the purchaser. Where lands were sold by a school commissioner, one fourth of the purchase money being paid in hand, and a credit of one, two, and three years given on the balance, and certificates delivered to the purchasers, containing a stipulation, that, upon the payment of the remainder of the purchase money, patents should be issued to the purchasers: Held, that the certificates could not be understood, as in any manner affecting the provisions of the act of 1829, requiring the Auditor to forward the patents when he received the returns of the school commissioner, or as restraining him from issuing them, before the expiration of the term of credit. Where the law authorizing the sale of school lands, on credit, required the commissioners to take a mortgage upon the land sold, and also personal security for the payment of the purchase money, the Court will presume that they were taken. The presumption is that a public officer discharges his duty, until the contrary is An assignee of a certificate of the purchase of a portion of school land, assigned A patent cannot be set aside or vacated, upon a motion for mandamus against the J. YOUNG SCAMMON, for the relator. J. LAMBORN, Attorney General, for the respondent. |