Eddy v. Peterson. "We must pay it," and that the defendant told the witness to get the money that witness had received for the bill, out of Hinckley's bank, where the witness had deposited the same, and pay the bill. Pratt was the drawer of the bill. J. W. CHICKERING, and SHUMWAY, WAITE & TOWNE, for Appellant. HOOPER, CAUSIN & SHERMAN, for Appellee. CATON, C. J. This was an action by the indorsee against the indorser of a bill of exchange. And the court properly held that in such an action the drawer was a competent witness to prove protest and notice to the indorser. No particular form of proof is indispensable to establish the fact of presentation and non-acceptance or non-payment of a bill of exchange and notice thereof to the indorser or other party to the bill whose liability may be fixed by such notice. Any evidence which convinces the court or jury of the existence of those facts, is sufficient to create the liability. The very fact that a formal protest by a notary is always introduced to prove these facts, except possibly in one case in ten thousand, has created a notion or impression, in well informed circles, and even to some extent among the profession, that such is the only proof admissible to establish these facts, or if other proof is resorted to, it must be of the most positive and undisputable character. It is hardly necessary to say that such notions are not founded in any principle of the commercial law of evidence. These facts should be satisfactorily proved, as any other necessary fact to make out a case, and like any other essential fact, they may be even proved by circumstantial evidence alone, if the circumstances create the conviction that the facts exist. We think the proof in this case sufficient, and the judgment must be affirmed. Judgment affirmed. Walker, impl., etc., v. Kimball. Same v. Same. MARTIN O. WALKER, impleaded with James Moore, Appellant, v. GRANVILLE KIMBALL, Appellee. APPEAL FROM COOK. THE SAME, Appellant, v. THE SAME, Appellee. APPEAL FROM COOK COUNTY COURT OF COMMON PLEAS. Where a note is given, payable within three years from date, with interest annually, at ten per cent., the payee may sue for and recover the interest, at the expiration of each year. THE first of the above cases was assumpsit, upon an agreement for the purchase, of Kimball, of his interest in the staging business in Missouri and Kansas. The first count is special on the agreement, setting it forth in hæc verba. The second is a general count on the account stated by Mr. Vernon under said agreement. The third and fourth are the common counts. The agreement contains, among other things, the following provisions, viz.: "And the said Walker and Moore agree to pay to said Kimball the sum of five thousand dollars, within four months from the date hereof, with ten per cent. from the date hereof, and said Walker and Moore agree to pay, within three years from this date, to said Kimball, the sum of thirteen thousand one hundred and sixty-six dollars, with interest annually at ten per cent., said last mentioned sum to be lessened or increased, according to the result of the settlement to be made by said William Vernon as aforesaid." Mr. Vernon stated the account pursuant to the agreement, and found a balance due Kimball, under said agreement, of $8,778.30. This suit was instituted to recover $877.83, claimed to be due under the agreement as annual interest at ten per cent. upon the balance of account found by Mr. Vernon. The agreement and award or statement of account, by Mr. Vernon, were read in evidence, without objection, which was all the evidence. The court found for defendant the sum of $877.83, and refused to set aside the assessment for that sum, and to grant a new inquest. The second of the foregoing cases was in the Common Pleas, and was another suit for the annual interest claimed to be due in 1858. The pleadings and proofs are the same; the only dif ference being that a plea was put in in this last case. The judgment was for the same amount as that in the Circuit Court. 22 537 32a 363 Walker, impl., etc., v. Kimball. Same v. Same. The controversy was upon the true construction of the agree ment, as to the payment of interest-whether it was due annually, as contended for by defendant, or whether it was due with the principal sum at the end of the three years. The same errors are assigned on each of the records, viz.: 1st. The court found for the appellee. 2nd. The court rendered judgment for the appellee, when, by the laws of the land, judgment should have been rendered for the appellant. 3rd. The court misconstrued the contract or agreement between the parties. SCATES, MCALLISTER & JEWETT, for Appellant. E. A. AND J. VAN BUREN, for Appellee. CATON, C. J. These actions are to recover several installments of interest on the same agreement, which contains this clause: "Said Walker and Moore agree to pay, within three years from this date, to said Kimball, the sum of thirteen thousand one hundred and sixty-six dollars, with interest annually at ten per cent." And the question presented is, whether the interest is payable annually, or not till the principal becomes due. None of the cases referred to by either side are precisely in point. Those referred to by the appellee, would be directly like these, if the rate of interest were not expressed in the agreement. Then it would be very clear that the word annually could have been inserted for no other purpose than that of fixing the time when the interest should be paid. Here, the rate of interest stipulated is ten per cent., while the rate fixed by the statute, in the absence of any stipulation on the subject, is six per cent. per annum, and it is insisted that the word annually was inserted for the purpose of determining the rate of interest, and not for the purpose of fixing the time when the interest should be payable. An agreement to pay a certain sum in a specified period, either longer or shorter than one year, with interest at ten per cent., if literally construed, would mean ten per cent., no more and no less, for the whole time during which the payment was forborne by the terms of the agreement, whether that time was more or less than one year; yet the courts will always imply the words annually, or per annum, for the purpose of fixing the rate of interest. The rate of interest is, therefore, the same, whether the word annually be inserted or not; yet it is, undoubtedly, the right of the parties to insert that word, and for the sole purpose of fixing the rate of interest. But it does not necessarily follow, that that word was used for Holbrook et al. v. Township Trustees. that purpose only. That word may well be used, and indeed it is the proper word to use, for the purpose of fixing the time when the interest shall be paid, and we are inclined to think that such is its proper office here. Admitting that it is not free from doubt as to what the parties did really intend, that doubt must be solved by the well settled rule of law, that in case of doubtful construction, we must treat the language used, as the language of the party who executes the instrument, and construe it most strongly against him, rather than against the other party, who is not presumed to have selected the ambiguous expression. We agree with the construction adopted by the Common Pleas, and affirm its judgment. Judgment affirmed. EDMUND S. HOLBROOK et al., Appellants, v. THE TRUSTEES OF SCHOOLS of Township 33 North, of Range One -East, of the County of La Salle, Appellees. APPEAL FROM LA SALLE. The appointment of a treasurer by school trustees, is a removal of the prior officer. The approval of the bond of a treasurer of a school district, is evidenced by an official indorsement of the members of the board. A school trustee is a competent witness to prove the loss of a treasurer's bond, although he may be a party to the suit. A notice should be given a party to produce a paper, if it is supposed to be, or ought to be, in his possession, as a foundation for other proof in relation to it. THIS was an action of debt, commenced by appellees against appellants, on bond given by Holbrook, as school treasurer, with Higgins and Paul as security. The declaration is in these words: "For that whereas the said defendants heretofore, to wit, on the 3rd day of April, A. D. 1850, executed and delivered to said plaintiffs their writing obligatory, which writing obligatory is in substance as follows: STATE OF ILLINOIS, Į LA SALLE COUNTY. KNOW ALL MEN BY THESE PRESENTS, That we, Edmund S. Holbrook, Ebenezer Higgins and William Paul, are held and firmly bound, jointly and severally, unto the trustees of schools of township thirty-three north, of range one east, of said county, in the penal sum of two thousand dollars, for the payment of which we bind ourselves, our heirs, executors and administra Holbrook et al. v. Township Trustees. tors, firmly by these presents. In witness whereof, we have hereunto set our hands and seals this 3rd day of April, A. D. 1850. The condition of the above obligation is such that if the above bounden Edmund S. Holbrook, township treasurer of township thirty-three north, range one east of the third P. M., in the county aforesaid, shall faithfully discharge all the duties of said office according to the laws which now are or may hereafter be in force, and shall deliver to his successor in office all moneys, books, papers, securities and property in his hands as such township treasurer, then this obligation to be void, otherwise to remain in full force and virtue. Approved and accepted by us, } THERON D. BREWSTER, Trustees of Schools. And the plaintiffs aver that said Edmund S. Holbrook continued to hold said office of township treasurer until the appointment of David L. Hough as his successor, as hereafter mentioned, and that as such township treasurer said Holbrook did receive a large sum of money, to wit, the sum of two thousand dollars, which sum came to and was in the hands of said Holbrook, as such township treasurer; and that afterwards, to wit, on the first day of April, A. D. 1856, David L. Hough was duly appointed treasurer of said township, and accepted said appointment, and gave the bond required by law, and was duly qualified to act as such township treasurer, and then and there became the successor of said Edmund S. Holbrook as township treasurer of said township, of all which the said Holbrook had notice. And said Holbrook then and there had in his hands as such township treasurer, the sum of money aforesaid; and afterwards, to wit, on the same day, the said David L. Hough demanded said sum of money of said Holbrook, who then and there refused and neglected to pay said sum of money to David L. Hough, though often requested to do so, nor have the said defendants, or either of them, ever paid the said sum of money to said Hough," etc.; with the usual conclusion. Defendants filed a general demurrer, which was overruled by the court. Paul abided by the demurrer. Holbrook and Hig gins filed pleas: That Hough did not become the successor of Holbrook as alleged. That Holbrook did not neglect and refuse to pay, etc., in manner and form, etc., to his successor in office. The third plea was as follows: "That the said Holbrook was appointed to the said office of township treasurer, by Theron D. Brewster, Giles A. Lindley and John L. McCormick, which is the same appointment men |