People ex rel. Brown v. Pearson, 2 Ill. 473, 1 Scam. 473 (1838)

Dec. 1838 · Illinois Supreme Court

2 Ill. 473, 1 Scam. 473

The People of the State of Illinois, ex relatione Nathaniel J. Brown v. John Pearson, Judge of the Cook Circuit Court.

Application for a Writ of Mandamus.

It is unnecessary to file an account with a declaration upon a bill of exchange containing a special count on the bill, and the common money counts, in order to use the bill as evidence under the money counts.

Where the Circuit Court granted a continuance because an account was not filed with the declaration on a bill of exchange, which contained a special count and the common money counts, although the declaration and a copy of the bill declared on, was filed more than ten days previous to the session of the Court, the Supreme Court granted a writ of mandamus to the judge of the Circuit Court, directing him to rescind the order for a continuance, and proceed with the cause upon the merits, without requiring the plaintiff to file an account under the money countsi

At this term of the Court, the relator filed a copy of the record of the cause of the relator against Harvey C. Newcomb, and the following notice, and moved the Court for a wit of mandamus to the judge of the Cook Circuit Court:

“ Nathaniel J. Brown v. Harvey C. Newcomb.

Gents.—Please take notice that we shall move the Supreme Court of this State, at the term thereof to be holden at Vandalia, on the 3d Monday of December inst,, upon the transcript of the record filed in this cause, that a writ of mandamus be issued and awarded to the judge of the Cook County Circuit, commanding him to vacate an order made by him in this cause at the last August term of the said Court, held at Chicago, denying a certain cross motion made in the said cause by the said plaintiff, for leave to proceed to the trial of the said cause, upon his abandoning all right to give in evidence under either of the counts in the declaration, any demand except the said bill of exchange set forth in the first count of the said declaration; and that the said judge grant and allow the said cross motion.

Dated December 10th, 1838.

Yours, &c.

Butterfield & Collins, Plff.’s Attys.

To Messrs. Arnold & Ogden, Esqrs., Deft.’s Attys.”

“We admit due service of a copy of the above notice of motion, and waiving all other questions, consent that the Court make such order in the premises as may be deemed just.

Dated December 12th, 1838.

Arnold & Ogden, Deft.’s Attorneys.”

The following bill of exceptions states all of the material facts in the case:

“ Nathaniel J. Brown v. Harvey C. Newcomb, y

Be it remembered that at the August term of the Cook Circuit Court, held at the Court House in the City of Chicago, on the 22d day of August, in the year one thousand eight hundred and thirty-eight, came the defendant, by Arnold and Ogden, his attorneys, and moved the Court that this cause be continued, because there is no account filed under the general counts, and thereupon the said plaintiff, by Butterfield and Collins, came and made his cross motion that he be allowed to proceed to trial in this cause, upon the written instrument set forth in the first count of the declaration, and hereby abandons all right to give in evidence under the other counts in the declaration, any demand except the said bill of exchange set forth in said first count of the said declaration, and hereby consents that the common counts in the said declaration be so far struck out of the declaration, saving only to the plaintiff the right to give the said bill of exchange in evidence under any of the counts in the declaration applicable to the said bill of exchange. And therefore the Court decided that the motion to continue the said cause be sustained, and the cross motion be overruled, and that the cause be continued at the plaintiff’s costs; to which decision the plaintiff excepted, and tendered to the said Court this bill of exceptions, which the said Court has signed and sealed, according to the statute in such case made and provided.

John Pearson, [l.s.]

J. Butterfield and James H. Collins, for the relator.

J. N. Arnold and M. D. Ogden, contra.

Per Curiam:

The facts in this case are similar to those in the case of the People, ex relatione Teal, against the judge of the Cook Circuí Court,⁽¹⁾ decided at this term of the Court; and the same disposition must be made of it.

Let a peremptory writ of mandamus issue to the judge of the Cook Circuit Court, directing him to rescind the order for a continuance, and to proceed with the cause upon its merits.

The costs of this application will abide the event of the trial in the Court below.

Writ of mandamus granted.

Note. See the case of the People, ex relatione Teal, Ante 458, and note.

(1) Ante 458.