Vickers v. Hill

• Decision Date: 31 December 1836
• Citation: Vickers v. Hill, 1 Scam. 307, 2 Ill. 307, 1836 WL 2354 (Ill. 1836)
• Parties: THOMAS VICKERS, plaintiff in error,v.JANE HILL, administratrix, and JOHN M. WEBSTER, administrator of the estate of Curtis Hill, deceased, defendants in error.
• Court: Illinois Supreme Court

1 Scam. 307

2 Ill. 307

1836 WL 2354 (Ill.)

THOMAS VICKERS, plaintiff in error,

v.JANE HILL, administratrix, and JOHN M. WEBSTER, administrator of the estate of Curtis Hill, deceased, defendants in error.

Supreme Court of Illinois.

December Term, 1836.

THE proceedings were had in this cause at the March term, 1836, of the Marion Circuit Court, before the Hon. Jepthah Hardin and a jury. Verdict and judgment were rendered for the defendants in error, for $13.84 and costs of suit.

The following bill of exceptions was taken in the Court below:

“Charles Coker being first duly sworn, deposes and says, that he is agent for the defendant in the above cause, and that the defendant can not go safely to trial at this term of the Court, for want of the evidence of Thomas Cottingham, Andrew Story, Jeremiah Lewis and Eli Vickers, witnesses for said defendant. Said witnesses reside in Hamilton county in this State. A subpœna was duly issued and put into the hands of the sheriff of Hamilton county, and is returned by him served on Cottingham, the rest not found. He expects the defendant will prove by said Cottingham that the note sued on was given by defendant for clocks, and that the clocks were warranted to be good time-pieces for two years; and he expects to prove by the other witnesses that said clocks were not good time-pieces, and that they did not keep time, and that the warranty wholly failed. He does not know that he can prove the same facts by any other witness or witnesses. Neither of said witnesses are in attendance. This affidavit is not made for delay, but that justice may be done. He believes the defendant can not go safely to trial without said witnesses, and he expects to be able to procure their attendance by the next term of this Court. All of which is stated to the best of this deponent's knowledge and belief.

CHARLES COKER.

Subscribed and sworn to this 14th day of March, 1836.

WM. W. PACE, Clerk. And thereupon the defendant moved the Court for a continuance of this cause until the next term of this Court, and upon argument heard, the Court decided that the affidavit was sufficient as to the causes and facts expected to be proved by the other witnesses, except Thomas Cottingham, but no delinquence is shown as to Cottingham, because his fees were not tendered, and ordered a continuance of the cause unless the plaintiffs admit the fact stated in the affidavit which the defendant expects to prove by Eli Vickers, Andrew Story and Jeremiah Lewis, without admitting the facts which he expects to prove by Thomas Cottingham, which the plaintiffs admitted and went to trial, and upon the trial the Court rejected and excluded all the facts in the affidavit and all that part of the affidavit which related to the facts which the defendant stated in his affidavit he expected to prove by said Cottingham, and directed the jury not to regard the same in making up their verdict. The note sued on, and the letters of administration were read in evidence, which was all the evidence in the cause with those facts which the Court permitted to go to the jury in the affidavit. To which opinion of the Court in not requiring the plaintiffs to admit said facts, and in excluding said facts from the jury, the defendant excepts, and prays this his bill of exceptions may be signed, sealed and made a part of the record.

JEPTHAH HARDIN.”

WALTER B. SCATES, for the plaintiff in error.

H. EDDY, for the defendants in error.

SMITH, Justice, delivered the opinion of the Court:

This was an appeal from a judgment of a...