The Am. Express Co. v. David D. Haggard.
| Decision Date | 30 April 1865 |
| Citation | 87 Am.Dec. 257,37 Ill. 465,1865 WL 2846 |
| Parties | THE AMERICAN EXPRESS COMPANYv.DAVID D. HAGGARD. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of McLean County; Hon. JOHN M. SCOTT, J.
Defendant in error brought this action against the American Express Company as a corporation, to recover for a package of money which should have been delivered by the latter to the the plaintiff. Service was had on the company's agent at Bloomington, as provided by statute in case of corporations.
The defendants first moved to quash the sheriff's return of service of the summons, on an affidavit of the agent that he is not, and never was the agent “of any such corporation as the American Express Company.”
This motion being overruled and an exception taken, the defendants filed a duly verified plea in abatement, as follows:
+-----------------------------------------------------------------------------+
¦JOHNSTON LIVINGSTON, ¦ ¦ ¦
¦WILLIAM G. FARGO and ¦ ¦ ¦
¦HENRY WELLS and ¦ ¦ ¦
¦others, who are sued ¦)¦McLean County Circuit Court-- December Term, 1864. ¦
¦by the name of the ¦ ¦ ¦
¦American Express ¦ ¦ ¦
¦Company, ¦ ¦ ¦
+----------------------+-+----------------------------------------------------¦
¦against ¦)¦ ¦
+----------------------+-+----------------------------------------------------¦
¦DAVID D. HAGGARD. ¦)¦ ¦
+-----------------------------------------------------------------------------+
The said Livingston, Fargo and Wells, say that they, as the firm of Livingston, Fargo & Co., together with others under the firm of Wells, Butterfield & Co., are engaged in the business of transporting by express between various points in the State of Illinois, under the general name of the American Express Company; that there is not now, and never has been any body politic or corporate, under the name or style of the American Express Company, either in the State of Illinois or elsewhere, and this they are ready to verify. Wherefore they pray judgment of the said writ and declaration, and that the same may be quashed.
Which was duly verified by affidavit.
A demurrer to this plea was sustained. The cause then went to trial before the court, without a jury, on the general issue, and the court rendered judgment for the plaintiff. The remaining facts involved in the judgment appear fully in the opinion of the court.
R. E. WILLIAMS, for appellants.
W. H. HANNA, for appellee. Mr. JUSTICE LAWRENCE delivered the opinion of the court:
This was an action on the case brought by the appellee, David D. Haggard, against the American Express Company, for not delivering a package of money containing $170.30, sent to the appellee at Bloomington, Ill. The company was sued as a corporation, the Legislature of this State having incorporated the persons who defended this suit by a public act to be found on page 379 of the Laws of 1859. There was service on the agent at Bloomington in the manner prescribed by the statute for service on corporations. The agent came in, and, without denying that he was the agent of the company, denied that he was the agent of such a corporation, and said he knew of no such corporation, and on this affidavit, moved to quash the return, which motion the court overruled. The object of the affidavit was to raise the question as to whether the defendants was a corporation, and as this was matter dehors the record the question was one to be presented by plea in abatement and not by motion. Holloway v. Freeman, 22 Ill., 201.
The counsel for the appellant then filed a plea in abatement in the name of “Johnston Livingston, William G. Fargo, Henry Wells and others,” admitting that they, “together with others,” are doing business under the name of the American Express Company, but denying that said company is now, or ever has been, a corporation. A demurrer was...
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Bradfield v. Illinois Cent. Gulf R. Co.
...528, 232 N.E.2d 708.) Evidence of habit and custom of an employee of an express company was held properly admitted in American Express Co. v. Haggard (1865), 37 Ill. 465, and such testimony has been admitted since that time without proof of necessity, thus making it questionable whether the......