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Kennicott v. Sherwood.

surrendered his lease there can be no question. His lease was to commence and did commence on the first day of May, and when the demand of possession was made, Maynard was entitled to the possession, and if it was retained by Van Buskirk at his request, and with the arrangement that he was to continue in the occupancy of the premises, it amounted to an attornment by Van Buskirk to Maynard the lessee, and the possession in fact by the arrangement of the parties became that of Maynard. He had such an interest in the premises as authorized him on the first day of May to receive the possession by an agent or under-tenant. The possession of Van Buskirk on the first day of May and afterwards, until the lease was cancelled, was the possession of Maynard. And there can be no doubt if the lease had not been canceled the appellant could have held Maynard liable for the payment of the rent and to a performance of all the covenants on his part contained in the lease, upon the proof of possession disclosed in this record.

Again the lease recites, and by it Maynard agrees that he has received the possession of the premises. And when it is remembered that the lease bears date on the fourth day of April, 1856, and the arrangement between Maynard and Van Buskirk, sworn to by Mrs. Van Buskirk, took place about the first of April, it is a circumstance which would seem strongly to indicate, that he had at the time of entering into the lease an arrangement with Van Buskirk for possession. That Maynard imposed upon appellant seems to be clear, but in the whole of this transaction appellee seems to have had no concern, as there is no portion of the evidence tending in the slightest degree to implicate him as taking any part in the arrangement. He was not in a position to recover possession at the expiration of the lease from himself to Van Buskirk, because upon the termination of that lease, Van Buskirk ceased to be his tenant by attorning to Maynard, and had he sued for the possession Van Buskirk could have successfully set up his lease from Maynard who had the undoubted right, to continue him in possession. And as the appellant had placed it in Maynard's power to continue Van Buskirk in possession by giving to him the lease, appellee should not be held responsible for Maynard's acts, and if loss shall be sustained by any one, it should be by appellant, who gave the power to Maynard to receive the possession. Again as Maynard became appellant's tenant by the execution of the lease, possession by himself or the under-lessees became appellant's possession. And when Maynard received the possession by the occupancy of Van Buskirk under him, appellee's covenant to restore possession was fully performed by the possession of appellant's tenant. So that in any point of view in

Holloway et al. v. Freeman.

which we can look at the case, we are unable to perceive any grounds upon which to hold that appellee should be held liable for a breach of his covenant, unless the evidence in the case was untrue. And the credibility of the witnesses and the weight that shall be given to their testimony are questions to be determined by the jury. They in this case have decided it in favor of the appellee and with that finding we are not disposed to find fault, as the evidence so far as we can see, justifies their verdict.

The instructions given by the court both for plaintiff and defendant, present the law arising on the facts in evidence, as we believe, correctly. We are unable to perceive that they are calculated to mislead the jury or are in any other respect erroneous. We are therefore of the opinion, that the court below committed no error in giving them. The record presents no cause for reversing the judgment of the Circuit Court, and the same must therefore be affirmed.

Judgment affirmed.

BREESE, J. I do not concur in affirming this judgment for the reason that the Court did not, in giving the instructions to the jury, advert to the contrivance and fraud of the parties, to deprive appellant of his just claim.

ROBERT HOLLOWAY and HENRY M. BOGGES, Appellants, v.
ALFRED FREEMAN, Appellee.

APPEAL FROM PEORIA COUNTY COURT.

It will be presumed that a cross-motion made to have a previous motion stricken
from the files, and referring to rules, was sustained under the rules referred to.
County Courts can establish rules of practice.

Motions to dismiss, which assume the office of a plea in abatement, should be
grounded on objections, appearing on the face of the papers. If extrinsic mat-
ters are to be shown, these must be done by plea in abatement.
Pleas in abatement should be filed in "apt time," the earliest practicable mo-
ment; if after a motion seeking the same object, the right to plead may be
considered as waived.

Pleas in abatement must be signed by counsel, and truly specify the parties in the
cause. If such pleas show that they and jurats attached to them, have been
altered, these alterations, if assigned, may be held among other reasons as justify-
ing the court below in ruling them out.

A defendant, after he has introduced paper testimony, cannot contradict it by oral proof, when there is no allegation of fraud in the pleadings.

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Holloway et al. v. Freeman.

THIS was an action of assumpsit on a promissory note, brought in the County Court of Peoria county, by Freeman, against Holloway & Bogges.

The summons was issued June 17, 1858, and was directed to the sheriff of Warren county, by whom it was served on the 23rd June, 1858, returnable on the first Monday in July. The declaration is in the usual form, and contains a copy of the note, which is as follows:

"$401.

Peoria, April 24th, 1857.

One year after date, we promise to pay to the order of Alfred Freeman, four hundred and one dollars, for value received, bearing interest at six per cent. from date.

HOLLOWAY & BOGGES."

At the July term the defendants filed the following motion to dismiss :

And now come the defendants and move the court to dismiss this suit for the following reasons, to wit:

1. The cause of action did not arise in Peoria county, Illinois, nor was the same made specifically payable in or at Peoria county, Illinois.

2. The defendants did not, at the time of the commencement of this suit, nor at any time since the commencement of this suit, nor either of them, reside in the county of Peoria, Illinois, nor were either of them found or served in said Peoria county, Illinois, with process in said cause.

3. The said defendants and each of them reside in the county of Warren and State of Illinois, and did reside in said county of Warren at the time of the commencement of this suit, and still do each and all of them reside in said county of Warren, and both defendants were served with process in the cause, in Warren county, Illinois, and not in the county of Peoria; nor were either of them served at or in the county of Peoria, Illinois.

M. Williamson, being duly sworn, deposes and says that the matters and things set forth and averred in the foregoing motion are true in substance and in fact.

M. WILLIAMSON.

Sworn to and subscribed before me, this 6th day of July, A. D. 1858.

CHAS. KETTELLE, Clerk,

By GEORGE KETTELLE, Deputy.

The plaintiff moved to strike this motion from the files, for the following reasons:

1. The motion has not been filed two days, according to rule 4 of this court.

Holloway et al. v. Freeman.

2. Said motion has not been entered on the motion docket, according to rule 7 of this court.

3. Because the matters therein can only be made available by plea in abatement.

The motion to strike from the files was sustained by the court, and the defendant excepted.

The defendant next filed the following plea in abatement:

And the said Robert H. Holloway and Henry M. Bogges, defendants in this suit, come and defend, etc., when, etc., and pray judgment of the writ and declaration aforesaid, because they say that at the time of the commencement of this said suit, and at all times since the commencement of this suit, the said defendants and each of them were and still are residents and citizens of Warren county, Illinois, and were not and neither of them residents of the county of Peoria, State of Illinois. And the said defendants aver that the process in this said cause was served on the said defendants and each of them, at and within the county of Warren, State of Illinois, and was not served on the defendants nor either of them in or at the county of Peoria, State aforesaid. And the defendants further aver that cause of action on which this suit is brought, and each and every part thereof, arose in the county of Warren, State of Illinois, and not in or at the county of Peoria, State aforesaid; and that the same was not, nor any part thereof, made specifically payable at or in the said county of Peoria and State aforesaid. All of which the said defendants are ready to verify; whereupon the said defendants pray judgment, and that the said writ and declaration be quashed, and also for his costs.

ALFRED FREEMAN,

vs.

ROBERT H. HOLLOWAY and
HENRY M. BOGGES.

ROBERT HOLLOWAY,
H. M. BOGGES.

COUNTY COURT IN AND FOR THE COUNTY
OF PEORIA, STATE OF ILLINOIS.
July Term, A. D. 1858.

Robert Holloway and Henry M. Bogges, the defendants, being duly sworn, depose and say that the above plea by them pleaded is true in substance and in matters of fact.

Sworn to and subscribed before me this 6th day of July, 1858.

WM. F. SMITH,

Notary Public for the City of Monmouth, Ill.

The plaintiff then moved to strike the plea in abatement from the files for the following reasons:

1. Said plea does not purport to be filed, nor is the same signed by the defendant in this suit.

2. Said plea is not duly sworn to. 3. It is not filed in apt time.

Holloway et al. v. Freeman.

4. Said plea and the jurat attached thereto appears to have been altered and filled up since the same was made and sworn to. The plea in abatement was then stricken from the files by the court, and the defendants excepted.

The defendants then filed the general issue and several special pleas, setting forth that the note sued on was given in part payment for the sale of several tracts of land, in Warren and Henderson counties, and that plaintiff made false and fraudulent representations in relation to the title of the land, and its occupancy, knowing such representations to be false and untrue. And it was agreed that all matters of proof which would be legal evidence under any special plea, well pleaded, might be given in evidence under the general issue.

The cause was tried at the February term, A. D. 1859. The plaintiff offered in evidence the note sued on, for $401, dated April 24, 1857, payable to plaintiff, and rested his case.

The defendants, after other witnesses had been sworn on their behalf, then called John Mileham, who testified that he was the agent of plaintiff to sell land in 1856-7, and sold lands to Holloway & Bogges, as such agent, viz.: S. W. 20, 9 N. 1 W., in Warren county; S. W. 32, 10 N. 3 W., same county; N. E. 8, 8 N. 4. W., and a quarter in Sec. 34, 13 N. 2 W., in Mercer county. He executed bonds to defendants for the lands. The bonds were then handed to witness and identified by him.

The defendants' counsel then asked the witness to state if the note sued on was one of the notes executed by defendants on the purchase of said lands?

The plaintiff objected to the question being answered by the witness, and the court sustained the objection and refused to let the witness answer the question, and defendants excepted.

The defendants then asked the following question: What representations did you, as the agent of plaintiff at said sale, make to the defendants, relative to the lands or the title thereto, so sold by you to them?

To the answering of this question the plaintiff objected, and the court sustained the objection, and defendants excepted. This was all the evidence in the case.

The jury found a verdict for the plaintiff, and assessed his damages at $444.10.

The defendants then filed their motion for a new trial, for the following reasons:

1. The verdict is contrary to law.

2. It is contrary to evidence.

3. The court refused proper evidence offered on the part of the defendants to go to the jury.

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