Berry v. Savage

• Decision Date: 30 June 1840
• Citation: 1840 WL 2909,3 Ill. 261,2 Scam. 261
• Parties: LUCIEN BERRY, admr. of GARRISON W. BERRY,v.JOHN SAVAGE et al.
• Court: Illinois Supreme Court

2 Scam. 261

3 Ill. 261

1840 WL 2909 (Ill.)

LUCIEN BERRY, admr. of GARRISON W. BERRY,

v.JOHN SAVAGE et al.

Supreme Court of Illinois.

June Term, 1840.

THIS cause was tried in the court below, at the June term, 1837, before the Hon. James H. Ralston and a jury. Verdict and judgment were rendered for the defendants. The cause is brought into this court by writ of error.

WM. THOMAS, for the plaintiff in error.

E. D. BAKER, for the defendants in error.

LOCKWOOD, justice, delivered the opinion of the court:

The following bill of exceptions was taken on the trial of this cause, to wit: “Be it remembered, that on the trial of this cause, after the evidence had been submitted to the jury, and the jury had retired to consider of their verdict, the jury returned into court, and inquired whether or not the note was to be considered by them as it read. The note had been read to the jury as evidence, under the declaration, without objection, but upon the return of the jury into court, and their making the inquiry aforesaid, it appeared, upon examination of the note, that it was made payable on the day of ____ one thousand eighteen hundred aud thirty.

The variance between the note and the declaration had not before been discovered by the court, or mentioned by the counsel on either side.

The court informed the jury, that they were bound to consider the note as it read, and as not being due until time expressed on its face; and if, from the reading of the note, it did not appear to be due, they must find for the defendants. Whereupon, the plaintiff's counsel stated that he had never before discovered the variance between the note and the declaration, and moved the court to permit him to suffer a non-suit, which motion being objected to by the defendant's counsel, the court overruled, and refused to permit the plaintiff to suffer a non-suit. The plaintiff, by his counsel, excepts,” &c.

The assignment of errors questions the correctness of the instructions to the jury, and the refusal to permit the plaintiff to suffer non-suit.

At common law, a plaintiff was permitted to take a non-suit, at any time before the verdict was rendered in court. ( Wooster v. Burr, 2 Wend. 95.) But by the 13th section of “an act regulating the practice in the supreme and circuit courts of this state, and for other purposes,” passed March 22, 1819, it is provided, that “every person desirous of suffering a non-suit on trial, shall be barred therefrom, unless he do so...