Swingley v. Haynes. shall be taken to the form or service of the summons issued by the justice of the peace, nor any proceedings before him; but the court shall hear and determine the same in a summary way, according to the justice of the case, without pleading in writing.' And the 67th section provides that "If it shall appear, however, that the justice of the peace had no jurisdiction of the subject matter of the suit, the same shall be dismissed at the costs of the plaintiff." We are at a loss to determine how the legislature could have employed language more explicit, that no defect of any description in the service of the summons issued by the justice, should be taken on the trial of the appeal. It seems to be clear that the intention was, to invest the Circuit Court with jurisdiction, by the appeal of all cases in which the justice had jurisdiction, however defective the summons or service, or even in cases where there was no service in the justice's court. The object of the appeal, is to give a trial de novo, as though a trial had never been had before the justice of the peace. When the defendant files his appeal bond, he thereby enters his appearance to the cause in the Circuit Court, and by so doing, waives all defects in the process, the want of process, defects in the service of, or want of service before the justice. If the appeal is taken by the plaintiff, and service of the summons in appeal is served on the defendant, ten days before the term, he, by such service, is brought into the Circuit Court, as completely as if he had been duly served in the court below. When the defendant perfected his appeal to the Circuit Court, that court became invested with jurisdiction of his person, to authorize a trial of the case. The 67th section provides, that if it shall appear that the justice of the peace had no jurisdiction of the subject matter of the suit, the same shall be dismissed, and this court has repeatedly held, that the evidence must be heard, before that question can be determined. When we know that the form and technical distinctions in the various actions are little understood by justices of the peace and the people generally, we must conclude that those distinctions were intended to be abolished by the legislature, and under the form of summons which they have given, that the various actions in which justices have jurisdiction, shall be tried. The form of the account, the form of the summons, or a mistake in docketing the suit, cannot affect the plaintiff's right to a judgment, if his evidence shows a right of recovery, in any form of action of which the justice of the peace has jurisdiction. And on the appeal, it is the duty of the court to hear the evidence, without reference to the justice's docket, and to render judgment in the case, unless from the evidence it appears the justice had no jurisdiction of the subject Anderson et al. v. Richards et al. Rogers v. Blanchard, 2 Gilm. R. 335; Ballard v. Mc Carty, 11 Ill. R. 501; Vaughan v. Thompson, 15 Ill. R. 39. And by the construction given the statute by these decisions, the court below had no power to determine whether the justice had jurisdiction of the subject matter of the suit, until the evidence was heard, and if the summons on the appeal was served, or appellee's appearance had been entered in the Circuit Court, that court was authorized and even required by the statute, to proceed to try the cause without any reference to the service in the justice's court. And it was error to dismiss the suit for want of jurisdiction in the justice, until the evidence was heard. The judgment of the Circuit Court is reversed, and the cause remanded. Judgment reversed. JOHN ANDERSON et al., Appellants, v. GEORGE RICHARDS et al., Appellees. APPEAL FROM HENRY. Where there is a general demurrer to a declaration containing several counts, some of which are good, the demurrer must be overruled. THIS was an action of assumpsit. The declaration counted upon a promissory note, and also embraced several common counts. To this declaration the defendants filed a demurrer, which was overruled by the court, DRURY, Judge, presiding. The defendants stood by their demurrer. A judgment was rendered against the defendants below for the sum of $3,064.44. The causes assigned for supporting the demurrer were principally mistakes in grammar. W. H. L. WALLACE, and W. SMITH, for Appellants. B. C. Cook, for Appellees. BREESE, J. The demurrer was properly overruled, it being to the whole declaration, and the common counts therein being good. The rule is, where there is a general demurrer to a declaration containing several counts, if there be one or more good counts, the demurrer must be overruled. Cowles v. Litchfield, 2 Scam. R. 356; Young v. Campbell, 5 Gilm. R. 82; Walter v. Stephenson, 14 Ill. R. 77. 22 218 129 303 22 218 75a 347 McLean v. Griswold et al. This being so, the defective special counts are both saved. Besides, "mala grammatica non vitiat chartam." There being no error assigned which we can notice, the judgment of the court below is affirmed. Judgment affirmed. SAMUEL P. MCLEAN, Appellant, v. JOHN L. GRISWOLD et al., Appellees. APPEAL FROM PEORIA COUNTY COURT. The misjoinder of a feme covert as defendant, cannot be cured by entering a nolle prosequi as to the wife. THIS suit was commenced in the court below by John L. Griswold and Matthew Griswold, plaintiffs, against Samuel P. McLean and Eliza J. McLean, and summons returned served upon both. The Griswolds filed their declaration against both defendants in assumpsit. The first count avers that Samuel P. McLean and Eliza J. McLean executed their promissory note for $615.81, to John King, and John King indorsed and assigned the same to plaintiffs below. The common counts proceed for money paid, money had and received, and account stated. Samuel P. McLean filed two pleas: 2. That the defendant, Eliza J. McLean, at the time the note was made, and at the time the promises were made, was, and still is, married to the defendant Samuel P. McLean. The Griswolds demurred to the second plea, and the court sustained the demurrer, and the defendant, Samuel P. McLean, excepted. Eliza J. McLean filed a plea of coverture, supported by her affidavit. The plaintiffs below then dismissed the suit as to Eliza J. McLean. The plaintiffs below proved the execution of the note, and offered the same in evidence in these words: Dollars 615.81. Peoria, Illinois, Sept. 26, 1856. On or before the first day of April, A. D. 1858, we promise to pay to the order of John King, Esq., Six Hundred and Fifteen Dollars and Eightyone Cents, for value received. SAMUEL P. MCLEAN, McLean v. Griswold et al. To which S. P. McLean objected on the following grounds: 1. That said plaintiffs had no right to proceed with said cause against Samuel P. McLean, the plaintiffs having dismissed their cause as to Eliza J. McLean. 2. Because said plaintiffs having sued two defendants cannot proceed to trial and judgment against one. 3. The plaintiffs have no right to maintain this action. 4. The note is not proper evidence under the pleadings. But the court overruled the objection and admitted the note in evidence. The jury found for the plaintiffs below. The defendant entered a motion for a new trial and in arrest of judgment, both of which motions were overruled. The court then rendered judgment against Samuel P. McLean for the sum of $319 damages, and the defendant excepted. McLean appealed to this court, and assigns the following errors: 1. The court below erred in sustaining the demurrer to S. P. McLean's second plea. 2. The court below erred in proceeding with the cause after the plaintiffs below dismissed the suit as to Eliza J. McLean. 3. The court erred in admitting the note in evidence. 4. The court erred in rendering judgment against Samuel P. McLean after dismissing the cause as to Eliza J. McLean. 5. The court below erred in overruling the motion for a new trial. 6. The court below erred in overruling the motion in arrest of judgment. 7. The court below erred in not rendering judgment for the defendant below. H. GROVE, for Appellant. N. H. PURPLE, for Appellees. WALKER, J. The only question presented by this record which we deem it necessary to determine, is whether appellees, by entering a nolle prosequi as to Eliza J. McLean, obviated the objection of a misjoinder of defendants. By the plea in abatement, it appeared that she was a feme covert at the time the promissory note was made, and was the wife of her co-defendant. In all suits for torts there can be no objection, that all the tort feasors are not joined, or that persons are joined as defendants who are not guilty, but a recovery may be had against the persons who are guilty, and an acquittal of those who are improperly sued. But in actions ex contraclu, the rule is different, and McLean v. Griswold et al. the plaintiff must recover against all of the defendants, or against none. To this rule, however, there are some exceptions. The rule is stated by Chitty to be that, "Although in actions of torts one defendant may be found guilty, and the other acquitted, yet in actions for the breach of a contract, whether it be framed in assumpsit, covenant, debt, or case, a verdict or judgment in general, cannot be given in a joint action against one defendant without the other. In an action against three persons, two only of whom were liable to be sued, the party not liable, together with one of those who was liable, suffered judgment by default, and the other party pleaded the general issue, and a verdict was found for the defendant who pleaded, on the ground that the plaintiff having declared as upon a promise by three defendants, to entitle him to recover, he should have proved a promise, either express or implied, binding upon all three. And though a contract be proved to have been in fact, made by all the defendants, yet if in point of law it was not obligatory on one of the defendants, either upon the ground of infancy or coverture, at the time it was entered into, the plaintiff will be nonsuited, and in this instance he cannot avoid the objection by entering a nolle prosequi as to the infant or feme covert, but must discontinue and commence a fresh action, omitting such parties; in which case, should the defendants plead the nonjoinder of the infant or feme covert in abatement, the plaintiff may reply the infancy or coverture." 1 Chit. Pl. 8, Am. Ed. p. 45. In cases where all of the defendants were legally liable at the time the contract was entered into, and some one of them has been discharged afterwards by operation of law, which only protects him individually, leaving the others liable on the contract, as by bankruptcy and certificate, etc., and plaintiff fails on the trial, as to him the plaintiff will not be precluded from recovering against the other parties, or a nolle prosequi as to him may be entered upon his plea of personal discharge. While some courts have held, when a plea of infancy was interposed, that the plaintiff may enter a nolle prosequi as to him and proceed to judgment against the other defendants, upon the ground that the contract of an infant is binding until it is avoided, yet we have been referred to no adjudged case, nor are we aware of any, which has held that such a course may be adopted when the contract has been entered into by a married woman, with other persons. Such a contract as to her, is not merely voidable but is absolutely void. When the coverture is pleaded, it is not interposed as a discharge from a contract once binding, but upon the grounds that no valid contract was entered into by her, when it was executed. Her contract being void, she occupies to it the relation of a stranger to the agreement, and is no more liable |