Cook v. Renick

• Decision Date: 30 April 1858
• Citation: 1858 WL 5995,19 Ill. 598,9 Peck 598
• Parties: ISAAC COOK, Appellant,v.ROBERT M. RENICK, Appellee.
• Court: Illinois Supreme Court

19 Ill. 598
1858 WL 5995 (Ill.)
9 Peck (IL) 598

ISAAC COOK, Appellant,
v.
ROBERT M. RENICK, Appellee.

Supreme Court of Illinois.

April Term, 1858.

APPEAL FROM COOK.

Where a special term is ordered in court, the order of appointment need not be set out in the records, to show that such special term is regular.

The presumption of law is in favor of the regularity of the terms of court, but this may be rebutted, by affirmative proofs, or by showing that the judge was required by law to be elsewhere, holding another court.

A bill of exchange is properly protested for non-payment on the third day after that appointed for payment on its face. Days of grace are allowed and recognized.

The law merchant, included within the common law, is adopted in this State.

The service of notice of protest at the post office, the acceptor being postmaster; is sufficient, although not personally served.

PLACITA of the January special term (at which the judgment complained of was rendered), begun and held on the 11th January, 1858, “in pursuance of the order of this court, heretofore made and entered of record.” But does not give the order nor state that any notices were given, or when the order in fact was entered.

This suit was commenced by summons, March 27, 1857,--Robert M. Renick, plaintiff, against Isaac Cook, defendant.

Declaration in assumpsit.

First count, on bill of exchange, dated St. Louis, Oct. 16, 1854, drawn by George Hulme on Hulme & White, for $2,000, to his own order, for value received. Bill accepted by Hulme & White, and indorsed by defendant to James T. Peters, and by him indorsed to the plaintiff. When the same became due, it was presented, payment demanded and refused, and defendant had notice, and bill protested for non-payment.

Second and third counts substantially the same. The common counts were added.

Plea, general issue.

Dec. 30, 1857, cause tried before MANNIERE, Judge, and a jury; there was a verdict for plaintiff of $2,363.33, and motion for new trial. Motion denied, and final judgment and appeal prayed.

On the trial, the plaintiff introduced and read to the jury a certain bill of exchange in the words and figures following:

Accepted, Hulme & White.

+--------------------------------+
                ¦$2,000¦ST. LOUIS, Oct. 16, 1854.¦
                +--------------------------------+
                

Sixty days after date, pay to the order of I. Cook, Two Thousand Dollars, and charge the same to account of

+-------------------+
                ¦Yours,¦GEO. HULME. ¦
                +-------------------+
                

TO MESSRS. HULME & WHITE,

Young America, Chicago, Ill.

[19 Ill. 599]

upon which is the following indorsement:

I. COOK.

JAS. Y. PETERS.

ROBERT M. RENICK.

And thereupon introduced as a witness John Forsyth, who, being sworn, testified: I protested the said draft on the 18th December, 1854. I left a notice of the protest at Cook's, the defendant's, office. I went to the office of the acceptors on that day, and demanded payment of a clerk there, and he said it could not be paid, and I gave notice to all parties. I may have left the notices that day or the next, not certain; but am certain it was done within forty-eight hours. I left the notice for Cook at the postmaster's room. Defendant was then postmaster. I don't know where he lived at the time.

Re-examined. The counsel for the plaintiff proposed to the witness the following question: Is there any universal, well-understood custom about days of grace among merchants and bankers in this city, in relation to the presentation of bills of exchange for payment? To which...