Vipond v. Hurlburt.

This was all the evidence in the case.

The court found for the plaintiffs for $484.07; and the defendant appealed.

H. GROVE, for Appellant.

J. K. COOPER, for Appellees.

WALKER, J. The defendant below entered a motion for a continuance, because an account was not filed under the common counts, ten days before the commencement of the term. The court overruled his motion, which is assigned for error. This was a failure to comply with the express requirements of the statute, and by its terms the defendant below was entitled to a continuance. The plaintiffs below, however, might have avoided a continuance by filing a stipulation that they would rely alone on the note sued on as evidence on the trial, or they might have entered a nolle prosequi to the common counts, which would have produced the same result. But having failed to do either, it was error to overrule the motion for a continuance, for which the judgment must be reversed, and the cause remanded.

Judgment reversed.

WILLIAM W. VIPOND, Appellant, v. ASHBIL HURLBurt,

Appellee.

APPEAL FROM PEORIA.

Where a covenant is to be implied from statutory words, the very words of the statute must be used.

FEBRUARY 16th, 1858, a justice of the peace issued a capias ad respondendum against Henry Nash and Henry B. Roberts, which was returned same day, indorsed:

"I, Ashbil Hurlburt, acknowledge myself special bail for the appearance of the within named Henry B. Roberts.

ASHBIL HURLBURT."

"I have arrested the above Henry B. Roberts, and taken special bail as above. G. W. CAMPBELL, Constable.”

On the return day Roberts appeared, waived process, and confessed judgment for $289.64.

September 10th, 1858, said justice issued a summons against Hurlburt, as special bail, in form as provided by the statute.

Merrill v. Randall.

Upon the return of this summons, the justice rendered judgment for Vipond, for $292.89.

There was an appeal to the Circuit Court by Hurlburt, which was tried March term, 1859. Verdict and judgment for defendant, POWELL, Judge, presiding.

C. C. BONNEY, for Appellant.

H. B. HOPKINS, for Appellee.

BREESE, J. It will be seen by looking at the endorsement of bail on the capias ad respondendum issued by Vipond against Nash and Roberts, that it is for the appearance only of Roberts to the action-nothing more, and does not conform to the statute. The statute contemplates something more, and when the endorsement is made in conformity to it, it is to have the force and effect of a recognizance of bail, the condition of which is, that the defendant, if judgment shall be given against him, will pay the same with costs or surrender his body in execution; and in default of such payment or surrender, the goods and chattels of the bail shall be liable for the payment of the judgment and costs. (Scates' Comp. 697).

Where a covenant is to be implied from statutory words, the very words of the statute must be used to raise the covenant.

Here the words used in the endorsement, are not the words of the statute nor of kin to them, and it was no undertaking by Hurlburt, to pay the debt, for the language used independent of the statute, does not amount to a covenant to pay the debt. It is for the appearance of one of the defendants. This is fatal to the plaintiff's recovery, and the judgment must be affirmed. Judgment affirmed.

JAMES G. MERRILL, Appellant, v. LEROY D. RANDALL,

Appellee.

APPEAL FROM PEORIA COUNTY COURT.

In an action on a note, a plea which sets up, that the maker being indebted to A. was to pay off any debts due to A., gave the note sued on to B. payable to C., under the belief that A. owed B. the sum payable by the note, and B. had the note indorsed after due by C. to D., who brings the action, and that no consideration passed between any of the parties, all of whom were privy to the facts, and that said note was held for the use of B., will be good on demurrer.

A plea which avers that B. undertook to collect money for A., and apply the same when collected on a note given by A. to D., by an arrangement between the parties, and that a sufficient sum had been collected to pay the note, will constitute a good plea of payment.

Merrill v. Randall.

THIS was an action in assumpsit, commenced in the County Court of Peoria county, at the February term, A. D. 1858. The action was upon three promissory notes.

The defendant pleaded the general issue and the following special pleas, which are sustained by the opinion:

2. And for a further plea in this behalf the defendant says actio non, because he says that the cause and causes of action in said declaration mentioned are one and the same, and that the only cause and causes of action is and are the said several promissory notes, and not other or different, and that there was no consideration for the said notes, nor either of them, in this: Before the time of making said several promissory notes by defendant, he, the defendant, purchased from Caleb Whittemore and Sandford Moon, doing business under the firm name and style of Caleb Whittemore & Co., in the city of Peoria, in said county and State, a certain printing establishment known as the Peoria Daily and Weekly Transcript office, and paid therefor a valuable consideration; and at the time of such purchase, defendant further agreed with said Whittemore & Co. that he would assume and pay off the debts then justly due from said Whittemore & Co. on account of said printing establishment, to various persons then owing.

That said defendant, at the time of making the said purchase, knew nothing in regard to the amount of indebtedness owing by Whittemore & Co., nor the persons to whom such indebtedness was due, and was forced to rely upon the information that he could obtain from the said Whittemore & Co., relative to such indebtedness. That one James K. Murphy had been for a long time, and was at the time of said sale and purchase, the book-keeper of said Whittemore & Co. That defendant was referred to said Murphy, as such book-keeper, for information relative to the indebtedness of said firm of Whittemore & Co. That said James K. Murphy, to whom defendant was referred as aforesaid, then and there stated and represented to defendant that said Whittemore & Co. were indebted to him, said Murphy, as book-keeper aforesaid, for services rendered as such book-keeper, in the amount of the said several promissory notes in said declaration described and sued on in this action, which statement and representation defendant then believed to be true, and relied upon the same, and thereupon did execute the said several promissory notes to secure the said supposed indebtedness, in the following manner: That is, said Murphy stated to defendant that he was and had been for a long time indebted to various persons, in large amounts of money, then residing East, and that said Murphy wanted to take the notes as aforesaid, and make the same payable to one Gilman Merrill,

Merrill v. Randall.

and then have the same indorsed and assigned by said Gilman Merrill to the plaintiff, who was and is the brother-in-law of said Murphy, all of which he, Murphy, desired to be done for the expressed purpose of delaying, hindering and avoiding his, said Murphy's, creditors.

That defendant did then and there execute said several notes, and make the same payable to said Gilman Merrill, at the request of said Murphy, and then and there delivered said notes to said Murphy. That said Murphy then and there obtained the indorsement and assignment of said Gilman Merrill on the back of said notes, but never delivered said notes to the plaintiff, but caused this suit to be brought in the name of said plaintiff merely to carry out his said fraudulent purposes against his, said Murphy's, creditors-and further to compel defendant to pay said notes on the ground that the same were in the hands of a bona fide holder before maturity.

Defendant states and avers that the statements and representations of said Murphy in regard to the indebtedness, to pay which said several notes were given, were wholly false and untrue, and that in truth and in fact, said Whittemore & Co. did not at the time of making said several notes, owe him, said Murphy, one cent. That said false statements were so made to defendant for the purpose of obtaining said notes as aforesaid, and that defendant did wholly and entirely rely upon said statements being true, and executed said several notes as aforesaid upon the sole faith that said statements were true, and said supposed indebtedness then honestly and bona fide existed.

Defendant further avers, that there never was any consideration of any description passed between this defendant and said Gilman Merrill, nor between said Murphy and Gilman Merrill, nor between the plaintiff and Gilman Merrill, relative to the transaction of giving, indorsing and assigning said several notes, nor either of them.

That said plaintiff had not, at the time of commencing this suit, and has no beneficial interest in said notes, nor either of them, nor had he ever any such interest, but on the contrary was and is and ever has been, a mere nominal plaintiff and holder of said several notes, to aid said Murphy in his, said Murphy's, fraudulent purposes, aforesaid; that said notes are, and ever have been, the sole and exclusive property of said Murphy, and that said several notes, and each of them, were assigned to plaintiff as aforesaid, long after they and each of them became due and payable, and were taken by the plaintiff with full notice and knowledge of all the matters aforesaid, wherefore the defendant says that there never was any considera

Merrill v. Randall.

tion for said notes, nor either of them; and this he is ready to verify; wherefore he prays judgment, etc.

And the said defendant comes, and by leave of the court for that purpose first had and obtained, files herein his additional plea, and says actio non, because he says that the said several notes are the sole and only cause and causes of action in this cause, and that the several notes and each of them, were given by defendant to the said Gilman Merrill, under the following circumstances: setting forth the same state of facts in reference to the purchase, as the foregoing plea, and the giving and transferring of the notes.

That at the time of said purchase by defendant, there was also included in the same, all the book accounts, notes, bills, bonds, choses in action and effects of every description belonging to said Whittmeore & Co., made, accrued or contracted on account of said printing establishment, and then owing from various persons to said Whittemore & Co., and held by said Whittemore & Co., the amount of which and the persons so owing, defendant never knew with any certainty, and cannot

state.

That it was further agreed by and between said Murphy and defendant, after the execution of said notes, that said Murphy should, as the book-keeper of this defendant, collect from the various persons then owing defendant, and owing the said firm of Whittemore & Co., such sums as were due, and that he, Murphy, should apply a certain amount so to be collected, (not to exceed the amount of said notes,) as a payment on said notes, all of which was agreed to between the parties to said notes.

Defendant avers that long prior to the commencement of this suit, the said Murphy did, as such book-keeper, under the arrangement aforesaid, collect of various persons, the sum of twenty-six hundred and fifty dollars, money at the time owing from various persons to the said firm of Whittemore & Co. and this defendant, on account of said printing establishment, which sum should in right have been applied as a payment on said notes, under the agreement aforesaid, but that said Murphy neglected and refused to indorse and credit the said amount so collected, on said notes.

Defendant further avers that the amount so collected was and is a full payment of said notes, and that the said plaintiff in this suit has no beneficial interest whatever in this suit; that said notes were transferred to said plaintiff at the request of said Murphy, for the purpose of collection and nothing else.

That said notes and each of them were so transferred to said plaintiff, long after the same became due and payable, and were