Russell v. Hamilton

• Decision Date: 31 December 1839
• Citation: 1839 WL 2862,2 Scam. 56,3 Ill. 56
• Parties: JOHN B. F. RUSSELL and FRANCIS PEYTONv.RICHARD J. HAMILTON, Commissioner of school lands for Cook County, Illinois.
• Court: Illinois Supreme Court

2 Scam. 56

3 Ill. 56

1839 WL 2862 (Ill.)

JOHN B. F. RUSSELL and FRANCIS PEYTON

v.RICHARD J. HAMILTON, Commissioner of school lands for Cook County, Illinois.

Supreme Court of Illinois.

December Term, 1839.

Error to the Municipal court of the city of Chicago.

This cause was heard in the court below, at the September term, 1838, before the Hon. Thomas Ford. Judgment was rendered for the plaintiff.

J. BUTTERFIELD and FR. PEYTON, for the plaintiffs in error;

GILES SPRING, for the defendant in error.

LOCKWOOD, Justice, delivered the opinion of the court:

This was an action of debt commenced by Hamilton, commissioner, etc., against Russell and Peyton, on a sealed promissory note. It appears from the note, that the money due thereon belonged to the inhabitants of township thirty-nine north, range fourteen east. The defendants pleaded four pleas. To the first and fourth, the plaintiff below demurred, and the court sustained the demurrer. The first plea was non est factum, and the fourth plea states that the plaintiff below had obtained judgment against Russell on a mortgage executed to secure the same debt, but contains no averment that the judgment had been satisfied. The court below decided erroneously in sustaining the demurrer to the defendant's first plea.

The plea of non est factum may be pleaded, notwithstanding it is not verified by affidavit. (Longley et al. v. Norvall, 1 Scam. 389.)

The fourth plea was clearly bad for not averring that the judgment against Russell had been paid. A great number of other errors have been assigned; it is however necessary to notice but the two following, to-wit: The court overruled objections to persons sitting on the jury who were inhabitants of township thirty-nine north, range fourteen east. And the court instructed the jury that they might allow twenty per cent. damages, although no such damages were claimed in the declaration. The court erred on both points. In the case of Wood v. Stoddard, qui tam (Johns. 194), the plaintiff below brought an action to recover of the defendant below a sum received by him for excessive interest, under the act for preventing usury, one moiety of which was directed to go to the use of the poor in the town where the offence was committed, and the other to the person prosecuting. The jury were inhabitants of the town where the offence was committed. The defendant below challenged all the jurors as being interested; but the objection was overruled and the urors...