Joslyn v. Collinson.

SCATES, MCALLISTER & JEWETT, for Appellant.

G. W. CUMMING, for Appellee.

BREESE, J. We do not think any of the points made by the plaintiff in error available, or sufficient to reverse this judgment.

The case is a very plain one. The action of assumpsit for money had and received is given, expressly, by statute. (Scates' Comp. 294.)

The proof shows the race was not run, and before the time appointed for the race, Rogers demanded his deposit, which Parmelee promised to pay when the bank should open the next day, but afterwards, without any cause, refused to pay. The judgment is affirmed.

Judgment affirmed.

MERRITT L. JOSLYN, Plaintiff in Error, v. FREDERICK
COLLINSON, Defendant in Error.

ERROR TO MCHENRY.

If a guarantee is placed upon a note at the time of its execution, and so is a part of the original transaction, no new consideration is necessary to be averred in support of it; but when it is entered into subsequently, it is otherwise.

THIS was an action of assumpsit upon a special guarantee, brought by the appellee against the appellant.

The declaration contains three counts. To the first and third counts a nolle pros. was entered in the court below.

The second count is upon a special guarantee, and alleges, "that, on the 20th day of September, 1857, at Woodstock, to wit, in said county of McHenry, one W. W. Paine made his certain promissory note in writing, bearing date the day and year aforesaid, and then and there delivered the same to one L. W. Baldwin, in and by which said note said W. W. Paine promised to pay to said L. W. Baldwin, one hundred and thirty dollars, nine months after date thereof, with interest at ten per cent. for value received; and the said L. W. Baldwin, to whom the said note was payable, then and there indorsed and under his hand assigned the said note to the said plaintiff, and then and there delivered the same so indorsed to the said plaintiff; and the said defendant then and there by his certain writing upon the back of said note, undertook and promised to pay

Joslyn v. Collinson.

the money therein mentioned, which writing was in the words and letters following, to wit; 'For value recd. I hereby guarantee the payment of the within. M. L. JOSLYN.' By means whereof and by force of the statute, defendant became liable," etc.

Breach in the usual form.

To which count the defendant in the court below filed a general demurrer, which demurrer was overruled by the court, and the said defendant standing by his demurrer, the court gave judgment in favor of the plaintiff, and assessed the damages to the amount of the note and interest.

The errors assigned are, that the court erred in overruling the demurrer; and the court erred in rendering judgment in manner and form aforesaid.

JOSLYN & HANCHETT, and B. C. Cook, for Plaintiff in Error. CHURCH & KERR, for Defendant in Error.

CATON, C. J. This declaration is upon a special guarantee of a promissory note, and shows that the guarantee was entered into and placed on the note after the note had been delivered and after it had been negotiated to the plaintiff, and it shows no new consideration for the guarantee. When a guarantee is put upon a note, at the time of its execution, and so is a part of the original transaction, no new consideration is necessary to support it, but when it is entered into subsequently, it is a new and independent undertaking, and must be supported by a new and independent consideration, and the pleading should conform to this rule of law. The declaration should show that the guarantee was entered into at the time the note was executed, when it need not aver any new consideration, or if, as in this case, the guarantee was entered into subsequently, a new and independent consideration should be averred. For the want of this, the declaration is bad, and the demurrer should have been sustained.

The judgment is reversed and the cause remanded, with leave to the plaintiff to amend his declaration.

Judgment reversed.

Knapp et al. v. Marshall et al.

JAMES H. KNAPP et al., Plaintiffs in Error, v. JOHN A.
MARSHALL et al., Defendants in Error.

ERROR TO KNOX.

A decision sustaining a demurrer to a bill in chancery is interlocutory, not final, and this court has not jurisdiction of such an order. If the party is willing to rest his case on the demurrer, he should ask the court below to dismiss the bill.

THIS was a bill filed in the Knox Circuit Court for relief and discovery. A demurrer was interposed, on the ground that the complainants had not made proper parties to the bill; the court sustained the demurrer to the bill, and on this order, the complainants below brought this writ of error.

E. W. HAZARD, for Plaintiffs in Error.

T. G. FROST, and G. W. FORD, for Defendants in Error.

ties.

BREESE, J. It does not appear from the record in this cause that any final decree has been entered, by the Circuit Court. It only shows that the court sustained a demurrer to the bill, to which the complainants excepted. What followed on sustaining the demurrer is not shown. The cause, for aught that appears, is still pending in the Circuit Court for the purpose of new parWe cannot say. If the record showed that the bill had been dismissed for the want of proper parties, we should hold that error, because on such showing, if the bill has merits, it must be retained in order that the proper parties may be made. A complainant, willing to rest his case upon a demurrer, must move the court to dismiss the bill. This is final, and appeal or error will lie. A decision on the demurrer is merely interlocutory. Fleece v. Russell, 13 Ill. 32; Pentecost v. Magahee, 4 Scam. 326; Hayes v. Caldwell, 5 Gilm. 33. This objection was not made on the hearing of this cause. We find, on examination, that we have no jurisdiction, and must dismiss the writ of error. Writ of error dismissed.

Campbell v. Conover.

GEORGE W. CAMPBELL, Plaintiff in Error, v. ABEL S. CONOVER, Defendant in Error.

ERROR TO PEORIA.

The act which authorizes a recovery before a justice of the peace, from a constable, of three times the value of property levied upon by him, if exempted from levy, is still in force.

In Peoria county a justice of the peace has jurisdiction to try such a case, where three times the value of the property levied upon does not exceed three hundred dollars; in other counties the jurisdiction is limited to one hundred dollars. A motion for a new trial can only be made at the term at which the verdict may be rendered. It is irregular to allow such a motion two years after verdict.

THIS case was commenced by Conover against George W. Campbell, before a justice of the peace, to recover three times the value of property levied on by virtue of an attachment, issued at the suit of Phillip F. Elliott against said Conover, and which attachment was placed in the hands of plaintiff, as constable, and by him levied upon property claimed to be exempt from execution.

Judgment was rendered against defendant below, before the justice, for $210, from which he appealed to the Circuit Court of Peoria county. At the November term, 1858, of that court, a trial was had, and verdict was found against the defendant below for one $135, in which verdict the jury find the value of the property levied on to be $45, and assess three times its value as damages.

The defendant below moved for a new trial, which was, on the 28th day of December, 1858, overruled by the court, and judgment rendered for $135.

At the November term, 1860, the plaintiff renewed his motion for a new trial, and to set aside the verdict and judgment of the court and dismiss the suit, for the following reasons, to wit:

First. The justice of the peace had not jurisdiction in the cause, nor the Circuit Court on appeal on suit, to recover three times the value of property levied on.

Second. The court gave erroneous instructions on the part of plaintiff.

Third. The court refused proper instructions asked for by defendant.

Fourth. The verdict of the jury was for $45; the value of the property and the judgment of the court was for $135, being $90 more than the value of the property found by the jury.

In support of which motion the defendant below read in evidence the affidavit of the defendant, the writ of attachment issued in the original suit of Elliott v. Conover, the return of

Campbell v. Conover.

the plaintiff thereon, as constable, the instructions given for plaintiff below, and the verdict of the jury in this cause.

The plaintiff below, to resist the motion, read in evidence to the court this verdict: "We find the value of the property to be forty-five dollars, and assess three times its value;" and the instructions asked by defendant below.

The court refused to grant a new trial or set aside the verdict and judgment, on the ground that it came at too late a day; to which plaintiff excepted, and assigns for error:

First. That the justice of the peace or the Circuit Court, on appeal, did not have jurisdiction.

Second. The court gave erroneous instructions asked by plaintiff.

Third. The judgment of the court was for more than the verdict of the jury, and erroneous.

Fourth. The court erred in overruling each motion for a new trial, and to set aside the judgment and dismiss the suit, and rendering judgment for the plaintiff below.

Fifth. That judgment should have been rendered for defendant below instead of plaintiff.

M. WILLIAMSON, for Plaintiff in Error.

JOHNSON & HOPKINS, for Defendant in Error.

BREESE, J. The appellant is laboring under an impression that there is no act in force giving jurisdiction to a justice of the peace, in an action to recover three times the value of property, which, being exempt from execution, a constable has levied

upon.

The act of March, 1843, giving this penalty, was repealed by the act of 1845, chap. 90, (Scates' Comp. 720). But at the same session it was re-enacted verbatim. It is section thirtyfive, chap. 57, and is as follows: "If any officer by virtue of any execution or other process, or any other person by any right of distress, shall take or seize any of the articles of property hereinbefore exempted from levy and sale, such officer or person shall be liable to the party injured, for three times the value of the property illegally taken or seized, to be recovered by action of trespass with costs of suit." (Scates' Comp. 605.)

It will be conceded, that in a majority of counties in this State, where the jurisdiction of a justice of the peace is limited to one hundred dollars, he could not try a case, where three times the value was claimed, if such claim exceeded one hundred dollars; but in the county of Peoria, where this case arose, there is a special statute, giving to justices of the peace of that