Hamlin v. Reynolds et al. appellant would be justified in supposing the court would adhere to the decision already made. Had the plea remained unanswered, by demurrer or replication, it might be otherwise. It is urged as a further ground for reversal, that the execution was returned by the sheriff some thirty-seven days before it expired. That the party may, after he resorts to a suit to coerce the payment of the money, abandon it, and show that its further prosecution would be unavailing, is true. Bestor v. Walker et al., 4 Gilm. R. 3. In that case it was held by the court that the holder, after obtaining judgment, will be excused from suing out execution when such process would be wholly unavailing. And if insolvency should intervene after the commencement of the suit and by the time judgment has been recovered, so as to render every attempt to collect the money unavailing, that fact should be alleged in the declaration, to excuse from issuing execution, just as it would to excuse from instituting a suit, had insolvency existed at the maturity of the note. This doctrine seems to be reasonable and just. The maker may be solvent at the institution of the suit, and by the time judgment is obtained, he may be insolvent and further legal proceedings become useless. But when diligence is relied upon, and not insolvency, to charge the assignor, the diligence must be complete, and such as the ordinary remedies of the law afford. When the execution is issued and its return is relied upon as evidence of diligence, it is not evidence of that fact unless it has remained in the hands of the officer for the entire period of its life. If the assignee obtains judgment and fails to issue execution, to recover he must aver and prove that a fi. fa. would have been unavailing, and so when it has been sued out and returned nulla bona before the expiration of the time it had to run, he must aver and prove that its continuance in the hands of the officer would have been unavailing. When judgment is obtained, no presumption is thereby created that a fi. fa. would not obtain the money within ninety days, and when it is returned no property found, forty days after it is issued, although it is evidence that the maker then had no property, it does not afford evidence that he would have none within the next fifty days. It was urged that the party had a right to recover under the common counts, and that the court will presume that the appellees under them made all the proof necessary to a recovery. No such presumption can be indulged, because all the evidence is preserved in the bill of exceptions, and it contains no evidence that the maker had no property liable to execution from the date of the return, till the expiration of ninety days, from the time it was issued. All presumptions of that character are thus cut off by the bill of exceptions. Nor was it the duty of the appel Parmelee et al. v. Fischer. lant to prove that the maker had such property after the return of the writ. Before the appellees entitled themselves to a recovery, they were bound to show that they had used due diligence by suit, or that having instituted a suit, its further prosecution would have been wholly unavailing. And this they have failed to do. The judgment of the Circuit Court must be reversed and the cause remanded. Judgment reversed. 22 94a 1330 22 212 e108a1419 FRANKLIN PARMELEE et al., Appellants, v. PETER FISCHER, Appellee. APPEAL FROM COOK. In an action for lost baggage, it is proper to instruct that damages may be assessed for such articles of necessity and convenience as passengers usually carry for their personal use, comfort, instruction, amusement or protection, having regard to the length and object of their journeys. If a special plea and the general issue are filed, and all matters pleaded specially may be given in evidence under the general issue, it will be presumed the defendant had the benefit of such proof, unless the contrary appears. The omission to answer the plea, will not be cause for reversal of the judgment. THIS action, case, was brought to the Cook Circuit Court, and was tried at the November term, A. D. 1858, before the court and a jury, MANIERRE, Judge, presiding. The declaration is, in case, against the defendants as common carriers, and the original declaration contained one count against them as common carriers, and a count in trover. The first count alleged that defendants were common carriers of goods and chattels, for hire, from the Michigan Central Railroad depot, in Chicago, to the Galena and Chicago Union Railroad depot, and that on the seventh day of June, A. D. 1856, at Chicago, the plaintiff caused to be delivered to defendants a large chest, containing the following described goods and chattels, to wit: two new feather beds and pillows, including an upper and lower feather bed as one bed, two coverlets, two bed spreads or blankets, one lady's black silk dress, ten yards of muslin de laine, one cloak, one fur muff, one large woolen shawl, one oil-cloth table cover, one woolen vest, two pairs woolen pantaloons, two frocks or lady's dresses, one umbrella, one pair of new calfskin boots, one German silver or britannia teapot, one looking-glass, one new double-barreled gun, one set of com Parmelee et al. v. Fischer. mon dishes, two dozen German silver spoons, one serving-box, one woolen overcoat, one woolen dress coat, five pairs of stockings, and six towels-of great value, etc., to be safely carried by the defendants from the Michigan Central Railroad depot to the Galena and Chicago Union Railroad depot, Chicago, and there delivered to plaintiff, for certain reasonable reward, etc. The second count is in trover, for goods of the same description. To this declaration, the defendants filed the plea of not guilty. On the 3rd of July, 1857, the plaintiff filed an amended declaration of one count against them as carriers, for goods of the same description, but with allegations of special damage. To the declaration as amended, the defendants pleaded-1st, the plea of not guilty; 2nd, a special plea, as follows: And for a further plea to said several counts of the declaration aforesaid, the said defendants say actio non, because they say, that at the time of the receiving of the said goods and chattels, in said several counts mentioned, which were received to be carried to the place in said first count mentioned, and not otherwise, it was in consideration thereof expressly agreed by the plaintiff, to and with the defendants, to be present at the place of delivery of said goods, when the defendants' carriage arrived at said place, and then and there demand his said goods; and if he was not there, or did not demand the same, then defendants might deliver the same to any agent at the said depot, and defendants should not in any event be liable for said property. And they aver that they took the same to said depot, and plaintiff did not appear there or demand said goods, and defendants delivered the same to the agent of said railroad, at said depot, as they lawfully might-which are the same goods and chattels in said declaration mentioned, and the grievances, etc. And this they are ready to verify, etc. There was no replication filed to or issue taken upon either of the last named pleas. The court instructed the jury on the part of the plaintiff, as follows: If the jury find for the plaintiff, they will assess the damages for such articles of necessity and convenience as are usually carried by passengers for their personal use and comfort, instruction and amusement, or protection, having regard to the object and length of the journey. To the giving of which instruction the defendants excepted. The jury found a verdict of guilty, and assessed the plaintiff's damages at one hundred and fifty-two dollars and fifty cents. 22 214 33a 644 22 214 57a 314 57a 334 Swingley v. Haynes. The defendants thereupon made a motion for a new trial, and in arrest of judgment, which the court overruled. Final judgment was rendered on the verdict, and defendants prayed an appeal, etc. SCATES, MCALLISTER & JEWETT, for Appellants. E. A. AND J. VAN BUREN, for Appellee. BREESE, J. The objections taken by the appellants are not tenable. The instruction given on the part of the plaintiff was the law of the case. Woods v. Devin, 13 Ill. R. 746; Davis v. Michigan Southern and Northern Indiana Railroad Co., post. As to the other objection that the pleas to the amended declaration were not answered, it is sufficient to say, that the amendment was for special damages in traveling and paying out money searching for the lost property. The character of the case was not at all changed by it, as set out in the original narr., and to that there was an issue of not guilty, under which all the matters set out in the special plea could be given in evidence, and we will presume the court permitted the defendant to give it in evidence, the bill of exceptions not showing he was denied that privilege. Warner v. Crane, 20 Ill. R. 151. But if one of several pleas be not answered, and the parties go to trial without objection on the part of the defendant, the irregularity is considered as waived. Ross v. Reddick, 1 Scam. R. 74. But a conclusive reply to all this is, that the appellant has not assigned it for error. The judgment is affirmed. Judgment affirmed. NATHANIEL SWINGLEY, Appellant, v. JOHN HAYNES, Appellee. APPEAL FROM OGLE. The Circuit Court has jurisdiction on appeal from a justice of the peace, where the justice had jurisdiction, however defective the service of summons by the constable may have been. And by taking an appeal, the appellant gives jurisdiction, even in cases where there was not any service. Evidence must be heard, before it can be determined that a justice of the peace had not jurisdiction. A party may succeed in any form of action, if the justice of the peace had jurisdiction of the subject matter. Swingley v. Haynes. THE facts of this case, are stated in the opinion of the court. H. A. MIX, and B. C. Cook, for Appellant. H. M. MILLER, for Appellee. WA WALKER, J. This suit was brought by Swingley against Haynes before a justice of the peace, of Ogle county, May 17th, 1857. Summons was in the usual form, returnable on May 23rd, 1857. The following is a copy of the service of the summons: "Served the within by leaving a copy thereof at the place of residence of the within named defendant, with a white person upwards of ten years of age, the defendant being absent. (Signed) UPTON SWINGLEY, Constable." At the trial, on May 23rd, 1857, plaintiff appeared; defendant not appearing, the justice heard the cause and rendered judgment for the plaintiff for $98.34 and costs. The defendant appealed to the Circuit Court of Ogle county. At the October term, 1857, the parties appeared and defendant moved to dismiss the suit for these reasons: First, from the papers in the cause it appears that the court below had no jurisdiction. Second, that the service in the court below is insufficient. The Circuit Court sustained the motion, dismissed the suit and rendered judgment against plaintiff for costs. The parties then executed and filed the following stipulation in the cause, which is made part of the record: "It is hereby stipulated and agreed by the parties to the above entitled suit by their counsel, that said cause may be docketed by the clerk of the Supreme Court of the third grand division of said State, and heard and determined at the next term thereof, to be holden at Ottawa. The writ of error and the service thereof is waived, and the said parties stipulate that their appearance may be entered by the clerk of the said Supreme Court, and that the same may be heard and determined by the said Supreme Court in its regular order on the docket, without a writ of error." The plaintiff assigns the following errors: 1st. The court erred in sustaining defendant's motion and dismissing said suit. 2nd. The court erred in rendering the judgment aforesaid in manner and form aforesaid. By the 66th section of the act entitled Justices of the Peace and Constables, (Scates' Comp. 709), it is provided that " upon the trial of all appeals before the Circuit Court, no exception |