RULES ADOPTED AT JANUARY TERM, 1860.

RULE 51. That all applications for supersedeas, whether made in open court, or to a Justice in vacation, must be accompanied by an affidavit of the proposed securities, or some other credible person, justifying the sufficiency of bail, sworn to and properly certified.

RULE 52. That the certificate of good moral character of a court of record required to be produced to the Supreme Court, or either of the Justices, by an applicant for license to be admitted as an attorney and counsellor, must, in all cases, be procured from a court of record of the county in which the applicant shall reside, or, if procured from a court of a different county, the application shall be accompanied with good and sufficient reasons therefor, verified by affidavit of one or more credible persons.

RULE 53. That the Justice to whom application is made for a license, may, at his discretion, require the applicant to submit to an examination before him, or in open court.

RULE 54. That hereafter in every application for a supersedeas, an abstract of the record, with a brief

viii

RULES OF PRACTICE.

containing the points and authorities relied upon, and pointing specifically to those portions of the record upon which the alleged errors arise, with the record, shall be presented to the court or Judge to whom the application is made.

RULE 55. That Rule number fifty be so modified that Rule number forty-six shall apply to the Second Grand Division.

DECISIONS

OF

THE SUPREME COURT

OF THE

STATE OF ILLINOIS,

APRIL TERM, 1859, AT OTTAWA.

MINERAL POINT RAILROAD COMPANY, Plaintiff in Error, v.
JOHN M. KEEP, Defendant in Error.

ERROR TO JO DAVIESS.

If railroad companies, having their officers and offices, do business and have agents
and property in this State, service of process may be made upon such agents in
this State, in the same manner that it may be on agents of local corporations.
If the fact of the agency is denied, the return of the officer as to that is not con-
clusive, this should be put in issue by a plea in abatement.

A party who submits himself to the jurisdiction of a court by pleading, cannot
afterwards complain of the irregularity of the service of process. He may
give jurisdiction without service of process.

An affidavit before a notary of another State, if he certified that he is authorized to administer oaths, will authorize the issuing of an attachment in aid of a sum

mons.

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9

Corporations are included in the word "person" in the attachment law.
Where an issue of fact is made up on a plea to the jurisdiction, a judgment of e96a € 49
respondeat ouster is a favor to the party; the judgment quod recuperet, being au-
thorized.

A plea to the jurisdiction, should be pleaded in person, not by attorney.
A court has discretion to allow items of set-off, that have been withdrawn, to be
again filed.

The written memoranda, taken at the time a deceased witness testified, in a suit
between the same parties, may be read in evidence. The correctness of such
memoranda may be disputed, and the jury must pass upon them.

If money is advanced to a sub-contractor, the principal contractor will only be held for the amount advanced by his authority.

THIS was an action of debt upon two contracts, for building the road of the defendant below, plaintiff here; also for war

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9

q194 100 194 102 101a 5377

9

22 107a 1339

Mineral Point Railroad Co. v. Keep.

rants drawn upon the treasurer of the company, in favor of plaintiff below. The declaration also contained the common counts.

The suit was commenced by summons, returned as follows, 2nd February: "Executed the within by delivering a copy of the same to J. R. Booth, agent, and A. W. Dexter, conductor of said Mineral Point R. R. Co." Amended so as to read, "Executed the within writ by delivering a true and correct copy of the same to J. R. Booth, agent, and J. W. Dexter, conductor of said Mineral Point R. R. Co., this 2d day of Feb. 1857, the President of said company not residing in the State."

On 5th February, affidavit and bond for an attachment was filed, and an attachment was sued out in aid, levied 7th February, on three locomotives, six box cars, and two passenger cars, three rock cars, one lathe and shop, and left copy of attachment with Mr. Booth, agent of said road. No publication of notice was made.

The amended affidavit states that the railroad company is a corporation chartered, located, and doing business in Wisconsin, and under the laws of said State, and keeps its office or place of business in Wisconsin, and has no office or place of business in the State of Illinois, and is a resident of Wisconsin and not of Illinois, and that it has property in Illinois which it is about to remove out of the State, and that in 1855 it became a corporation by act of Illinois, by act of 15th Feb., 1855, and that this attachment is in aid of his action of debt. Affidavit sworn to before notary public, in Wisconsin. There was a motion to quash the amended affidavit, because not sworn to before any person authorized to administer oaths by the laws of Illinois. Motion was overruled.

There was a plea in abatement to the affidavit and writ of attachment which sets out that defendant below had a large amount of personal property in the county of Jo Daviess, which it was not then about to remove from the State of Illinois, to the injury of Jno. M. Keep, as in said affidavit alleged.

A demurrer to this plea was sustained.

Defendant below then moved to set aside sheriff's return on the summons, and read affidavits of Dexter, Booth, and Johnson, who state that Dexter and Booth were not agents, conductors, or in any way employees of the company at the date of the service of summons, nor at any time before or since; whereupon court ruled that the testimony was inadmissible because the sheriff's return could not be contradicted, and that plaintiff was duly summoned and in court.

Plaintiff filed a plea to the jurisdiction, wherein it is set out