Hawks v. Lands

• Decision Date: 31 December 1846
• Citation: 8 Ill. 227,1846 WL 3846,3 Gilman 227
• Parties: MATTHEW H. HAWKSv.SAMUEL LANDS.
• Court: Illinois Supreme Court

3 Gilman 227

8 Ill. 227

1846 WL 3846 (Ill.)

MATTHEW H. HAWKS

v.SAMUEL LANDS.

Supreme Court of Illinois.

December Term, 1846.

ASSUMPSIT in the McLean circuit court, brought by the defendant in error against the plaintiff in error, and heard before the Hon. SAMUEL H. TREAT without the intervention of a jury, at the September term, 1841, when a judgment was rendered in favor of the plaintiff below for $419.43.

The pleadings and ruling of the court below are stated in the opinion.

A. LINCOLN, for the plaintiff in error.

As to the sufficiency of the plea of set-off, that it shows a cause of action in covenant, see 2 Cond. R. 157, 160; 1 Ohio 171-2; 2 Mass. 455; and that being such cause of action, it may by our statute be set-off. Edwards v. Todd, 1 Scam. 464; Nichols v. Ruckels, 3 do. 298.

As to the question of continuance, see Covell v. Marks, 1 Scam. 525; Ewing v. French, 1 Blackf. 170; Kelly v. Duignan, 2 do. 420; and as to matter of substance, see 1 Eng. Com. Law R. 136; Cooper 286, 288, head paging; 9 Johns. 291; 3 J. J. Marsh. 332.

J. B. THOMAS, for the defendant in error, made the following points in answer to plaintiff's several assignments of error.

That the court below denied the defendant's motion for a continuance.

1. The record shows only a motion for a continuance, which was on affidavit. The motion referred to by the bill of exceptions does not show any other. That motion was properly overruled, as the facts in the affidavit were admitted.

2. If the record shows a motion on account of the amendment, that was properly overruled. 1 A. K. Marsh. 561.

The amendment was not one of substance. Covell v. Marks, 1 Scam. 525; Bre. 37; 1 Eng. Com. Law R. 136.

First. The third count showed a sufficient cause of action without this amendment.

Second. It was only defective in the matter of uncertainty.

Third. The evidence admissible under the count as amended was admissible under the common counts, and under the third count before amendment.

II. As to the second error assigned. This is untrue in point of fact. The court did sustain demurrer to the third count. There was no plea to the third count.

III. The defendant took leave to amend his plea of set-off, and did amend it. He therefore can not now assign for error that the demurrer was sustained to that plea. And as to amended plea, this court can not inquire into its legal sufficiency, because it nowhere appears upon the record. Gilman's Dig. 596; Bre. 19; 1 Scam. 281; Ib. 310; 2 do. 355; Ib. 77; 3 do. 92.

IV. The exceptions to deposition were properly overruled. The deposition of Tompkins does appear to have been taken on the interrogatories attached to the commission, which is all that is required by law. See Gale's Stat. 244 § 1; Ib. 245 § 3.

First. This appears by examination of the dedimus and interrogatories returned by the commissioner, as required by the same section of the law.

Second. The requisition of the law, that the interrogatories shall be reduced to writing, etc. is merely directory to the commissioner, and the want of a literal compliance with it will not vitiate the deposition. It was so decided in reference to another branch of this same requisition. Ib. § 3; Ballance v. Underhill, 3 Scam. 457.

The opinion of the court was delivered by PURPLE, J.^a1

This was an action of assumpsit commenced by Lands against Hawks, in the circuit court of McLean county. The declaration contained three counts:

First, for money lent and advanced, paid, laid out and expended, and for money had and received to the use of the defendant in error;

Second, upon an account stated;

Third, upon a special count alleging that Lands and Hawks had been partners in trade and had dissolved; that the property and claims of the firm had been transferred to Hawks, who had agreed to pay all the debts of the firm; that Hawks had refused to comply with this agreement, and Lands had been compelled to pay $500 of said debts. This count, by leave of the court, was amended so as to state that this payment of $500 was made to Thomas C. Rockhill & Co.

At the same time when this amendment was allowed, Hawks moved for a continuance which was overruled, and an exception taken. Upon the same day, as it appears by the record, before the amendment made to the third count in the declaration, Hawks filed three pleas:

First, non assumpsit;

Second, a special plea of set-off, that in the year 1838 Lands conveyed to him lot No. 1 in Yager's addition to the town of Washington, for the consideration of $1200, with a covenant of seizin, alleging a breach of said covenant and claiming a set-off of the consideration money. A demurrer was sustained to this plea.

Third, a plea of payment.

Depositions had been taken in the cause to which an exception was filed by Hawks; that the interrogatories which accompanied a commission, and were returned with it, were not written out at length in the deposition; but it appeared that they were proposed to the witness by their numbers and a few of the first words of each. The exception was overruled.

The errors relied upon by the plaintiff are,--the overruling the motion for a continuance, the sustaining of the demurrer to the second plea, and the overruling of the exception to the deposition. The court is of opinion that there is no error in this record.

The amendment to the third count was unnecessary and immaterial. It is shown by the record that the circuit court did sustain a special demurrer to this count. The demurrer, however, was filed after the plea of non assumpsit to the whole declaration and issue upon the plea, consequently the demurrer to a particular count was irregular, and will not be noticed in this court. The demurrer was a special one, and only reached supposed formal defects in the count; consequently, if it had been filed before the plea, the decision here would have been the same. The count, without the amendment, was good in substance. The defendant could have given all the evidence under it, that he could have been permitted to introduce under the amendment. No new matter essential to the cause of action or demand was introduced into the count. It was only a more particular specification of the defendant's claim, as originally set out in the declaration. In fact, it defined and limited, rather than enlarged and extended his cause of action.

The authorities cited do not sustain the plaintiff's position upon this point. The case in the 1st English Com. Law R. 136, decides that an issue made upon a general allegation of the breach or performance of the conditions of a penal bond is an immaterial issue. That case differs from the one under consideration in this: That the count here alleges, not only that the defendant below had not performed his promises and undertakings, but also, that the plaintiff in that court had been compelled to pay the sum of $500 to the creditors of the firm. Had it contained only the allegation, the cases would have been parallel and the issue immaterial.

In the case of Covell v. Marks, 1...