Ballance v. Flisby

• Citation: 1839 WL 2865,2 Scam. 63,3 Ill. 63
• Parties: CHARLES BALLANCEv.WILLIAM FLISBY and GEORGE T. METCALF.
• Decision Date: 31 December 1839
• Court: Supreme Court of Illinois

2 Scam. 63

3 Ill. 63

1839 WL 2865 (Ill.)

CHARLES BALLANCE

v.WILLIAM FLISBY and GEORGE T. METCALF.

Supreme Court of Illinois.

December Term, 1839.

This was a suit originally instituted before a justice of the peace of Peoria county, and carried by appeal to the circuit court. In that court the cause was tried at the October term, 1839. The bill of exceptions shows that,

“The plaintiff proved that about the date of said award the said arbitrators assembled at Peoria, and were engaged in hearing the cause, two, three, or four days; that the said Ballance appeared before and made his defense without objection; that the said Dan Stone, at the time of said award, lived at Galena, a distance of about one hundred and fifty miles, and it was not proved that he had any other business at Peoria, otherwise than that he was the judge of the circuit, and came there occasionally to hold the regular terms of the court; that he had the spring and winter before lived at Springfield, and had on one occasion passed Peoria on his way to his old residence at Springfield, and that on that occasion he had talked some of coming to Peoria to reside. The plaintiff then proved the signature of the said Dan Stone to a receipt, which is as follows: ‘February 11th, 1838. Lewis Bigelow, Isaac Underhill, and Charles Ballance, to Dan Stone, Dr.--For expenses, travel, and services in attending arbitration at Peoria, $150.00. Received of Lewis Bigelow the above sum of one hundred and fifty dollars. February 12th, 1838. Dan Stone;’ and offered the same in evidence, which was objected to by defendant, but admitted by the court; and thereupon the said defendant excepted to the judgment of the court, in admitting said receipt as evidence to the jury. The plaintiff further proved that if the said Dan Stone came all the way from Galena, at the peculiar season of the year when the award was made, at his own expense, for the purpose of acting as arbitrator, and making said award, that the sum of one hundred and fifty dollars was not an unreasonable compensation therefor.

"Thereupon the defendant proved by one witness that the common charge of an arbitrator in common neighborhood arbitrations, was two dollars per day, and by one other witness that the most he had charged by the day was five dollars, and that he had charged fifty cents an hour for less time than a day. This was all the evidence, and thereupon, after verdict, the defendant moved the court for a new trial, which motion was overruled by the court; to which decision of the court in overruling said motion the said defendant excepted, and moves the court to sign and seal this his bill of exceptions, which is done.

THOMAS FORD, [SEAL.]”

Verdict and judgment were rendered for the plaintiff for $58, and the defendannt appealed to this court.

The errors assigned are as follows:

“First. Said court erred in permitting said receipt to be read to the jury, without the plaintiffs' having first accounted for the nonproduction of said Dan Stone as a witness. Secondly. To sustain said verdict it was incumbent on the plaintiffs to prove, 1st. The payment of said sum in said receipt specified by legal evidence. 2d That said Dan Stone came to Peoria for the purposes of said arbitration. 3d. That said plaintiffs were the administrators of said Bigelow. Therefore, said verdict being both unauthorized and against the evidence, the court erred in not granting a new trial.”

O. PETERS and C. BALLANCE, for the appellant, cited 1 Marshall 354; 3 Dane's Abr. 409; 1 Espinass'...