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office and leaves the tenure unde- to look at the language of the
fined and unlimited, the officer whole act; and if they find, in any
holds during good behavior, and particular clause, an expression
until the legislature, by law, limits not so large and extensive in its
the tenure to a term of years, or import, as those used in other parts
authorizes some functionary of the of the same statute, if, upon a view
government to remove the officer of the whole act, they can collect
at will, or for good cause. This from the more large and extensive
power the legislature has an un- expressions used in other parts,

doubted right to confer. Ibid. the real intention of the legisla-
6. Legislative construction, although ture, it is their duty to give effect to

entitled to great weight, is not the larger expressions. Mason v.
binding upon courts. Ibid.

Finch,

225
7. It is a general rule that when a 3. The act of 1833, in relation to the

Constitution gives a general pow- recording of deeds, &c., is a re-
er, or enjoins a duty, it also gives, medial law, and is not retrospective
by implication, every particular in its operation. A court will nev-
power necessary for the exercise er give to a law such an operation,
of the one, or the performance of unless compelled to do so by lan-
the other. But this rule is modi- guage so clear and explicit as to
fied by this other rule, that where admit of no other interpretation.
the means for the exercise of a Robinson v. Rowan,

501
granted power are also given, no 4. Courts are not allowed, by settled
other or different means or powers principles of law, to enlarge, hy
can be implied either on account construction, the provisions of a
of convenience, or of being more penal statute. Raplee v. Morgan,
effectual.
Ibid.

563
8. The settled doctrine is, that con-
struction for the purpose of con-

See Action, 5; APPEAL; AT-
ferring power, should be resorted TACHMENT; BILL OF Excep-
to with great caution, and only for

TIONS; CHANCERY, 22; Courts;
the most persuasive reasons. Ibid.

CRIMINAL LAW ; DEED ; DEᏢ0-
9. The office of Secretary of State is

sition; ELECTIVE FRANCHISE ;
created by the Constitution of the

EXECUTION; Firing Prairies;
State of Illinois, without any limi-

FRAUD; IndicTMENT; JURIS-
tations to its duration ; it conse-

DICTION; JUSTICES

PEACE; PEDLER; PETITION
quently remains so until the legis-
lature provides one.

ibid.

AND SUMMONS; Right of WAY;
10. When the supreme judicial tri-

School Fund; SHERIFF;TRES-
bunal of a State has declared what

PASS; Will.
the law is on a given point, when

CONTINUANCE.
the same point comes again in liti-
gation, all other courts in the 1. Where in an action of assumpsit,
State are bound to conform to the the defendant made affidavit that
decision.

Ibid. he could not safely proceed to trial
11. § 1 and 2 of article 1, and § 1 of without the testimony of an absent

article 3 of the State Constitution, witness; and that he expected to
are to be regarded as merely de- prove by said witness, that the
claratory and directory, and con- “plaintiff was to give said defend-
fer no specific powers.

Ibid. ant $ 150, for one half of the claim

mentioned in said defendant's ac-
See Criminal Law, 6; ELEC-
TIVE FRANCHISE ; LICENSE.

count of set-off;" and that a sub-

pæna issued to the sheriff of De
CONSTRUCTION OF STAT.

Kalb county, in which the witness
UTES.

had formerly resided, and, said de-

fendant had been informed by the
1. Where the proceedings are coroner of said county, that there

parte and in rem, there must be a was no sheriff of said county, and
strict conformity with the statute. that the coroner received the sub-

Lawrence v. Yeatman et al., 17 pæna, and made search for the
2. In construing statutes, courts are witness, but could not find him, as

OF

THE

er

neous.

on.

he had removed from the county, subpæna; and in such case, it is
unknown to the defendant; and immaterial whether a subpæna has
that the defendant knew of no been issued or not.

Ibid.
other witness whose attendance 5. An affidavit for a continuance of a
could be procured at the term of cause, on account of the absence
the Court then sitting, by whom he of a material witness, made at a
could prove the same facts; and term of the Court after a continu-
that he expected to procure the ance of the cause had been had,
attendance of the witness at the on account of the absence of a
next term, and that the affidavit witness by whom the same facts
was not made for delay, but that could be proved, stated that the
justice might be done; and moved witness was subpenaed, and when
the Court for a continuance of the subpænaed resided in Scott coun-
cause, which the Court denied :

ty, (an adjoining county to the one
Held, that the decision was erro- where the suit was pending,) but

Adams v. Colton, 73 that he resided at the time of the
2. Semble, That a cause may be con- application for a continuance, in

tinued, for a refusal or omission to the county of Greene; and that
file a copy of the account declared the witness had promised to be
Kimball v. Kent.

218 present at Court, but it also ap-
3. In an action upon a promissory peared that on the 16th of May,

note, issue was taken upon the (the trial being had on the 26th of
allegations in the defendants' plea, June,) the party applying for a con-
that the plaintiff agreed with the tinuance had made affidavit in the
defendants, that the note was not clerk's office, for the purpose of
to be paid until satisfaction should taking the witness' deposition :
be entered of record upon a cer- Held, that sufficient cause for a
tain mortgage mentioned in the continuance was not shown. Mc-
plea, and that one Lemon was to Connel v. Johnson,

527
enter satisfaction upon the mort- See AMENDMENT, 3, 4.
gage, and that the note was exe-
cuted in consideration of such

CONTRACT.
agreement. A motion was made
to continue the cause on account 1. Where C., E., & Co. relet a por-
of the absence of a witness by

tion of their contract to grade a
whom the defendants expected to section of a rail road to H., the
prove their defence, founded upon work to be done according to the
an affidavit that the defence could plans and specifications in the rail
not be proved so fully by any other road office, and under the direction
witness, or witnesses; that a sub- of the engineer, &c., of the road,
pæna was issued for the witness, and of C., E., & Co., H. agreeing
which was returned “not found," to conform in all respects to the
but that said witness would have contract of C., E., & Co. with the
been present at the Court, had it Commissioner, except as to price,
not been that his son was lying

for which H. was to be paid a cer-
sick, at the point of death, in an- tain sum per yard for embankment,
other county, where the witness and the same price per yard for ex-
had gone; and that the affiant ex- cavation, to be paid on the estimate
pected to obtain the attendance of of the engineer, according to C., E.,
the witness at the next term: Held, & Co.'s contract with the Com-
that the continuance should have missioner: Held, that H. was not
been granted. Allen et al. v. Down- entitled to pay for any embank-
ing,

455 ment or excavation not allowable
4. A continuance will be granted, to C., E., & Co., under their con-

where a material witness is ab- tract with the Commissioner. Reed
sent, whose attendance could not et al. v. Hobbs,

300
be procured by subpæna, where 2. Nothing is more certain than that,
the cause of his inability to attend where terms of art are used in
is such that an attachment for con- contracts, if there be any doubt as
tempt of Court would not be issued to the sense in which they are
against him for failing to obey a used and ought to be applied, re-

RANTY.

sort is to be had to the opinion of the said defendants, by W. B. Ar-
professional men, to ascertain the cher, the Acting Commissioner of
technical meaning attached to the said Board," and then set out
them, by those most conversant the agreement in hæc rerba, and
with their use.

Ibid. alleged a performance of the same
3. The time fixed for the perform- on the part of the plaintiff; to

ance of a contract, is, at law, which the defendants pleaded non
deemed of the essence of the con- est factum, without verifying the
tract; and if the seller is not able plea by affidavit: Held, that the
and ready to perform his part of power of the defendants to make
the agreement on that day, the the contract, could not be ques-
purchaser may elect to consider tioned under the pleadings, and
the contract at an end. Tyler v.

that the plaintiff might prove, by
Young et al.,

447 parol, the execution of the contract.

Holcomb v. Ilinois and Michigan
See ACTION, 1; COMMON CARRIER;

Canal,

231
Evidence, 31, 32; FRAUD; 6. Semble, That it is not necessary in
GUARANTY; INSTRUCTIONS, 3,

a declaration by a corporation, to
4; JURISDICTION; Mechanic's

aver the corporate existence, or to
LIEN; Practice, 32; WAR-

plead the act of incorporation.

Bank of Washtenaw v. Montgon-
CONVEYANCE.
ery,

427

7. Nothing is better settled, than that
See PROMISSORY Note, 22, 24; corporations may institute suits in
Right OF Way, 2; TRESPASS, 2.

the courts of other States and

countries, than those under whose
CORPORATION.

laws they may have been estab-
lished.

Ibid.
1. In suits by corporations the same

See Bank; INDICTMENT, 4, 5;
rules prevail as in suits by natural
persons. Process in favor of a

COUNTERFEITING.
corporation can be sent out of the
county where the suit is commen-

See INDICTMENT, 1, 2, 4, 5, 6, 8.
ced, only in such cases as it might
be so sent in suits in favor of per-

COURT OF PROBATE.
Holbrook v. Peoria Bridge See EVIDENCE, 29; WILL.
Co.,

32
2. A body corporate can act only in

COURTS.
the mode prescribed by the law 1. Legislative construction, although

creating it. Kenzie v. Chicago, 188 entitled to great weight, is not
3. A lease, executed by the “Trus- binding upon courts. The People
tees of the town of Chicago,” v. Field,

79
without the corporate seal, is void. 2. When the supreme judicial tribu-

Ibid, nal of a State has declared what
4. The mode of assenting to, and au- the law is on a given point, when

thenticating, the acts of a corpo- the same point comes again in liti-
rate body, which uses a seal, is to gation, all other courts in the State
affix the seal, with a declaration, are bound to conform to the deci-
that it is the seal of the corpora- sion.

Ibid.
tion, and to verify the act by the 3. Semble, That a Supreme Court will
signatures of the president and

never compel an inferior court to
secretary.

Ibid. do an act in regard to which the
5. Where the plaintiff alleged in his inferior court is vested with a judi-

declaration, in an action of cove- cial discretion. The People vi
nant, that the plaintiff and the de-

Pearson,

204
fendants, a corporation by the 4. Jf a Court is held at a time unau-
name of the Board of Commission- thorized by law, all its judgments
ers of the Illinois and Michigan and proceedings of such term, are
Canal, “entered into certain arti- without warrant of law, and conse-
cles of agreement, sealed with the

quently void. Galusha v. Butler-
seal of the plaintiff, and sealed by field et al.,

227
VOL. II.

78

sons.

5. The Circuit Courts are not inferior issue was immaterial, and to be

courts, in the common law sense of disregarded by them, which the
that term, but are superior courts Court refused: Held, that the refu-
of general jurisdiction. Beaubien sal was correct.

Ibid.
v. Brinckerhof,

273 4. In an action of covenant, where
6. A judge of a Circuit Court has no the declaration alleged an exten-

authority to appoint a special term sion of time for the performance of
of a Court, to commence at a time the contract, and issue was taken
when he is required by law to hold upon the allegations in the defend.
Court in another county. Archer ant's pleas, that the defendant did
V. Ross,

304 not extend the time for the per-
7. Reasonable notice should be given formance of the contract, and that

of the time of holding a special the contract was not performed

term of a Circuit Court. Ibid. within the time of extension: Held,
8. Semble, That a judge of a Circuit that under these pleas the defend-

Court, in appointing a special term, ant admitted that the plaintiff had
should conform to § 5 of the act of performed his covenant, in all re-
1837.

Ibid.

spects, except as to the extending
9. A Circuit Court existed in Boone the time of performance. Ibid.

county, as soon as a clerk was ap-
pointed by the judge of the circuit,

CREDITOR.
although the latter failed to appoint
the time for holding the Court.

See DEBTOR.
Scammon v. Cline,

456

CRIMINAL LAW.
See Execution, 3; JURISDICTION;
MANDAMUS.

1. On a trial for bigamy, a copy of

the marriage license and certificate
COVENANT.

of the officer or person solemnizing

the marriage, properly authentica-
1. The plea of covenants performed, ted by the clerk of the County

in an action to recover pay for Commissioners' Court, in whose
work done, admits nothing more office the original license and cer-
than the plaintiff's right to recover tificate were filed, is admissible in
nominal damages. Reed et al., v. evidence to prove such marriage.
Hobbs,

300

Jackson v. The People, 2:32
2. The measure of damages, in an 2. Under the statute of Ilinois, it is

action for a failure to convey land optional with the prosecuting at-
according to covenant, is the value torney, whether to use the mar-
of the land at the time the con riage license and certificate or
veyance was to be made. McKee

other record evidence, or to prove
v. Brandon,

344 the marriage by such other evi-
3. In an action of covenant to recov-

dence as is admissible to prove a
er the price stipulated for building marriage in other cases.

Ibid.
a mill dam, which the plaintiff 3. Objections to the mode of sum-
covenanted to fill in with “rock moning a grand or petit jury,
and gravel,” in a proper manner,

should be taken by a challenge of
so as to keep the dam safe and the array, or by motion to quash
tight, the plaintiff, in his declara the indictment, founded upon affi-
tion, alleged that the defendant davit of some irregularity. Such
directed what “rock and gravel ” objections cannot be incorporated
should be used, and that the same into the record of a cause, unless
were used, and the dam made as raised in one of these ways. Ob-
close and tight as it could be made jections of this nature cannot be
with such materials. The defend taken on a motion for a new trial.
ant pleaded that he did not desig Stone v. The People,

323
nate the materials, and direct them 4. Where, upon a trial for murder,
to be put into the dam. Upon this a jury was empannelled, and the
plea issue was taken. Upon the trial of the cause commenced, and
trial, the defendant moved the a part of the witnesses examined,
Court to instruct the jury that said an alien having been sworn upon

the jury; and the prosecuting at-

CUTTING TREES.
torney, upon learning the fact of

See TRESPASS, 11, 12
alienage, (both he and the Court
having been ignorant of that fact,)

DAMAGES.
moved that the juror be withdrawn
and discharged, and that a new

1. The measure of damages, in an
juror be sworn in his place, which

action for a failure to convey land
motion was granted : Held, that

according to covenant, is the val-
the proceedings were regular.

ue of the land at the time the con-
Held, also, that the overruling of

veyance was to be made. McKee
the motion of the prisoner, to dis-

v. Brandon,

344
charge the eleven other jurors, 2. In an action by the assignee
was not erroneous.

Ibid. against an assignor of a promisso-
5. The enumeration of causes for ry note, the measure of damages
summoning a new grand jury, or

is the amount paid by the assignee.
talesmen, in the act relative to Raplee v. Morgan,

562
jurors, ought not to be considered

See Action; JUDGMENT; PLEAD-
as abridging the powers possessed ING, 20; PRACTICE, 27 ; Right
by the Circuit Court, at common

OF WAY.
law; and an order directing the
empannelling of a new grand jury,

DEATH.
after the discharge of a former
one by the Court, is a proper ex-

See ABATEMENT, 3; EJECTMENT,
ercise of the common law powers

1, 2.
of the Court.

Ibid.

DEBT.
6. The Constitution of this State has

guarantied a public as well as an 1. Debt is a proper form of action on
impartial trial to persons accused; a replevin bond. Manning et al.
and the closing of the doors of a v. Pierce,

6
court-room, to prevent confusion

See JUDGMENT, 9; PETITION AND
arising from noise and disturbance,

Summons, 6; Trespass, 11, 12.
when ingress and egress are not
prevented, or for a temporary pur- DEBTOR AND CREDITOR.
pose, where existing circumstan-
ces eminently require it to be done, 1. A debtor may prefer one creditor,
but not for the purpose of exclud- pay him fully, and thus exhaust
ing any one connected with the his whole property, leaving nothing
trial, does not render the trial for others equally meritorious. He
private, and ought not to be ob- may also partially pay a portion of
jected to.

Ibid. his creditors, in unequal payments,
7. An objection to an indictment for and wholly neglect his other cred-

murder, because it does not con- itors; yet the law will not disturb
tain a particular specification of such disposition of his property.
the wounds of which the deceased Cross v. Bryant et al,

43
died, cannot be taken, unless made 2. Where two persons are jointly in-
upon motion to quash; and even debted to a third, either has a right
then, it seems, it would not be to pay the debt, and call on his co-
valid.

Ibid. debtor to repay his moiety. The
8. The Canal Commissioners had payment may be proved by either
full power to issue checks payable

the verbal or written confession of
ninety days after date, and the the person to whom the payment
counterfeiting of such checks is ought to be made ; and his receipt
forgery, under $73 of the Criminal is prima facie evidence that the

Code. Crofts v. The People, 444 payment has been made. Ballance
9. Equally so, under 77 of the same v. Frisby et al.,

65
Code, is the passing of such checks, See AssIGNMENT; CHANCERY, 15,
knowing them to be false and 16; PAYMENT, 2.
counterfeiteil, with intent to de-
fraud.

Ibid.

DECEASE.
See INDICTMENT.

See EJECTMENT, 1, 2.

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