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Hurd v. Lill et al.

ecution of the instrument, he cannot be held responsible for the wrong inflicted, but it is otherwise when he is by any means a party to it. It then follows that that case is not an authority in this.

It is urged that the plaintiff's second instruction was erroneous because it told the jury that if they believed, from the evidence, that appellant had not been injured, or his liability extended by the false representations of the payee, they should find for him. This entire defense proceeds upon the ground that appellant was only a surety, and unless he occupied that relation to the note, it was unavailing. Ferson testified that he held a note against the makers of this, for the same amount, and that the money for which this note was given, was paid to him in its satisfaction. Now if appellant jointly owed the money to Ferson, and was not a security to Scott on that note, then he would clearly be a principal in this note, and this defense would be inadmissible. On this question the evidence was conflicting, and it was proper to leave that question to the jury. This instruction may have been indefinite, in not sufficiently pointing to the question of whether appellant executed this note as principal or as a surety.

It appears from appellee's answer to the bill of discovery, that he only held the note as collateral security to a debt of his against the payee. And that it had been fully paid and satisfied. This, then, leaves the case in all respects to be tried precisely as if the suit had been instituted by the payee. The suit is for his benefit, and as appellee is not the beneficial holder, the same defense may be made as if the suit were in the name of the payee. So that in any point of view in which the case may be considered, there can, as we think, be no doubt that this defense was properly admissible.

The judgment of the court below must be reversed, and the cause remanded.

Judgment reversed.

HARVEY B. HURD, Appellant, v. CHARLES G. LILL et al., Appellees.

APPEAL FROM THE SUPERIOR COURT OF CHICAGO.

A judge who takes a case under advisement, cannot recall the witnesses before him and examine them in the absence of counsel. Notice of an intention to recall the witnesses should be given, so that the party may be present and crossexamine if he chooses.

Bourland v. Sickles et al.

THIS was an action to recover from appellant a bill of goods, which it was claimed had been sold to his brother in pursuance of his authority. The general issue was pleaded. The court found against appellant, and gave judgment for $180.43. The judge to whom the case was submitted, the attorney for the plaintiff only being present, allowed the plaintiff, without notice to the defendant, to recall two witnesses who had been examined some months prior, and re-examined them as to the fact of the authority given by plaintiff, to make purchases in his name, and other facts.

H. B. HURD, pro se.

ASAY & BRACKEN, for Appellees.

CATON, C. J. The cause was by the agreement of the parties submitted to the judge for trial, in place of a jury, and was accordingly tried and submitted to him, aud he took it under advisement. At a subsequent day, in the absence of and without notice to the defendant or his counsel, he recalled some of the witnesses before him, probably to refresh his memory as to what they had testified on the trial. This we think was error. If he deemed it necessary to enable him to decide the case satisfactorily, to call the former witnesses or others, he should have caused a reasonable notice to have been served on the party, that he might be present at the new hearing and crossexamine the witnesses.

The judgment is reversed, and the cause remanded.
Judgment reversed.

26 497

BENJAMIN L. T. BOURLAND, Plaintiff in Error, v. WILLIAM 63 97 SICKLES et al., Defendants in Error.

ERROR TO PEORIA.

A party amending a pleading should indicate the precise part of it amended and the place of its application, and not leave to the court to decide where the amendment should or should not be inserted.

A party suing upon a mutual and dependent covenant for a breach of it, must aver an offer to perform, or his declaration will be obnoxious to a demurrer.

ON the 30th of September, A. D. 1852, the plaintiff contracted to sell the defendants the north-east quarter of Section twenty-nine (29) in Township twelve (12) north, Range eight east, in Marshall county, Illinois, and to make a quit-claim deed

Bourland v. Sickles et al.

for the same, upon the payment of the sum of two hundred dollars, as follows: fifty dollars on January 1st, 1853, and fifty dollars on the first day of January, A. D. 1854, 1855 and 1856, with interest. The contract contained the condition relating to the execution of the deed, copied into the opinion of the court. . On the 13th day of March, 1858, and before the commencement of the suit, the plaintiff tendered the defendants a deed for the land of the character, and containing the covenants in the contract mentioned, and demanded the purchase money and interest due by the terms of the contract. Defendants refused to accept the deed or pay the money.

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The declaration sets out the contract, and avers the tender of the deed, and demand of the money as before stated.

The defendants demurred to the declaration; the court sustained the demurrer, and the plaintiff abiding by the decision of the court on the demurrer, judgment was rendered for the defendants.

The only error assigned is, the decision of the court on the demurrer to the declaration.

N. H. PURPLE, for Plaintiff in Error.

M. WEED, for Defendants in Error.

WALKER, J. This was an action of debt on an agreement for the sale of land, instituted by plaintiff against defendants in error. A demurrer was interposed and sustained, to the declaration as it was originally filed. Leave to amend was obtained, which was made on a separate piece of paper, in no way indicating the place in the original declaration, at which it was designed that the amendment should be inserted. The defendants filed a demurrer, which was likewise sustained, and the plaintiff abided by his declaration, and the court thereupon rendered judgment for costs against plaintiff, to reverse which he prosecutes this writ of error.

If the declaration, as it was at first filed, was obnoxious to a demurrer, and if the paper subsequently filed as an amendment cannot be considered as such, the demurrer was properly sustained. By the ancient rules it was material that every pleading should have a formal commencement and conclusion, and contain an averment of time and place to every traversable fact, and be certain and single, but by statute these requisites have become mere form, and can only be reached by special demurrer. If this amendment were inserted in some portions of the declaration it would not be certain, but would on the contrary tend to obscurity and confusion, and would render it manifestly obnoxious

Bourland v. Sickles et al.

to a special demurrer. And one of the rules requires that each pleading must be taken most strongly against the pleader. If tested by this rule the amendment cannot aid the original. The party must present his case, and not leave it to the court to put his pleadings together, or determine where his amendments should or should not be inserted. The plaintiff should, by letters, figures or characters, of some description, have indicated the precise place where it was designed to be inserted. This he failed to do, and for that reason it could not be considered as part of the declaration.

The question is then presented, whether the declaration, as it was originally filed, was good. The agreement upon which suit was instituted, bound the plaintiff as follows, viz.: "And the said party of the first part, further covenants and agrees with the said party of the second part, that upon the faithful performance by the party of the second part of their undertaking in this behalf, and of the payment of principal and interest of the sum above mentioned, in the manner specified, he, the said party of the first part, shall and will, without delay, well and faithfully execute, acknowledge, and deliver in person or by attorney duly authorized, to the party of the second part, their heirs or assigns, a deed of conveyance of all their right, title and interest of the party of the first part, of, in and to the above described premises, with their appurtenances, with covenants of warranty against any act or thing done or suffered by the party of the first part." If this covenant was independent, and did not require the plaintiff to perform, or offer to perform, his part of the agreement, after the expiration of the time agreed upon for performance, before he could place the defendants in default, then the declaration was sufficient, and the demurrer was improperly sustained.

The agreement was for the payment of the purchase money by installments, the last of which was to be made on the first day of January, 1856. By this contract it is manifest, that the parties intended the last payment, and the deed should have been made at the same time, and on the day the last payment fell due. And if so, these acts were mutual and dependent. And when the time arrived, neither party could require the other to proceed until he performed, or offered to perform, his part of the contract, nor was either party in default so as to release the other from his part of the agreement, until a tender was made. After the time had arrived for the payment of the last installment, and the execution of the deed, defendants could not maintain an action for a breach of the agreement, until they had tendered all the money which was due under the contract and demanded a deed, nor could the plaintiff recover the balance

26 500 122 655

Beckwith v. People.

of the purchase money, then remaining unpaid, until he had first tendered a deed, of the character described in the agreement, and demanded payment. This declaration fails to aver a tender, but only avers a readiness and willingness to tender a deed at all times. For the want of such an averment, the declaration was substantially defective, and the demurrer was properly sustained. The judgment of the court below must, therefore, be affirmed.

Judgment affirmed.

26a 139 OSCAR F. BECKWITH, Plaintiff in Error, v. THE PEOPLE, etc.,

26 500

131 599

Defendants in Error.

26 500

208

321

ERROR TO LEE.

A party indicted for an assault with an intent to commit murder, may be convicted of an assault with a deadly weapon with intent to inflict a bodily injury, the jury finding that the circumstances of the assault showed an abandoned and malignant heart.

AT the November term of the Lee Circuit Court, A. D. 1860, before EUSTACE, Judge, an indictment was found against the plaintiff in error, for an assault with intent to commit murder, as follows:

"The grand jurors, chosen, selected and sworn, in and for the county of Lee, in the name and by the authority of the people of the State of Illinois, upon their oaths present, that Oscar F. Beckwith, late of the county of Lee, on the tenth day of October, in the year of our Lord one thousand eight hundred and sixty, at and within the county of Lee, aforesaid, unlawfully, willfully, feloniously and of his malice aforethought, did then and there make an assault in and upon one Emily Ann Bennett, (wife of David H. Bennett,) in the peace of the said people then and there being, with a certain axe, made of iron, steel and wood, and with a certain butcher knife, made of iron, steel and wood, which he, the said Oscar F. Beckwith, in his hand, then and there, had and held, with intent, her, the said Emily Ann Bennett, with the axe and butcher knife, aforesaid, then and there feloniously, willfully and of his malice aforethought, then and there to kill and murder; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the same people and State of Illinois."

"And the grand jurors aforesaid, upon their oaths aforesaid, do further present, that Oscar F. Beckwith, late of the county of Lee, on the tenth day of October, in the year of our Lord

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