Bishop Hill Colony v. Edgerton, 26 Ill. 54 (1861)

April 1861 · Illinois Supreme Court

26 Ill. 54

The Bishop Hill Colony, Appellant, v. Lycurgus L. Edgerton et al., Appellees.

APPEAL FROM HENRY.

It is sufficient for a clerk on issuing process, to sign the initial of his Christian name.

The foundation of a motion for a continuance should bo preserved in a bill of exceptions, if error is to be assigned on refusing to grant it.

Interest may bo recovered upon a sum agreed upon as due.

If there is no design to conceal usury, ten per cent, or a greater sum may be agreed upon as interest, for a delay in the payment of money, though no specific time for forbearance is agreed upon.

This declaration in assumpsit contains six special, and the common counts.

The second count is upon a promissory note made by the appellant to one Solomon Shoup, for $550, dated April 1st, 1858, and due six months after date, and indorsed to appellees by said Shoup, and a promise made by the appellant, after the note became due, to pay interest on it at the rate of ton per cent., after maturity.

The third, fourth, fifth, and sixth counts aver that the appellant was indebted to one Solomon Shoup, in the sum of $885.95, on account of the sale of fifty-three bales of broom corn, by the appellant, belonging to said Shoup, and a promise by the appellant to pay the said money to the appellees about the 20th of March, 1859, to cancel a portion of indebtedness owing by said Shoup to appellees, and a release of the appellant, by said Shoup, from any further payment of the money to him.

A witness for appellees, testified that Mr. Shoup, at the time of the agreement concerning the proceeds of the sale of the broom corn, requested Mr. Johnson to pay the amount of the broom corn account to. witness, as agent of the plaintiffs, and thereby cancel the debt due him (Shoup) from the colony. This Mr. Johnson agreed to do, as the trustee of the colony, and Mr. Shoup then released the colony from any further liability on the broom corn account, and the colony, by Mr. Johnson, agreed to pay the same to me, as agent of the plaintiffs. The matter was fully understood, and agreed to by all parties, and the colony was, by Mr. Shoup, discharged from the payment of the broom corn money to him.

Interest was computed on the note at ten per cent., and on the balance due on the broom corn, at six per cent., and included in the judgment. There was a verdict and judgment in the court below for the appellees.

The following errors were assigned :

The court erred in overruling the motion to quash the summons.

The court erred in overruling the motion for a continuance.

The court erred in admitting improper evidence to the jury, offered by the appellees.

The court erred in overruling the motion for a new trial.

The court erred in rendering the judgment aforesaid, in manner and form aforesaid.

Knox, Eustace & Reed, for Appellant.

H. Bigelow, for Appellees.

Caton, C. J.

The signature of the clerk to the summons, by using the initial for his first name, was sufficient.

There should have been a bill of exceptions, to show this court the facts upon which the party claimed the right to a continuance. The presumption is, that the court decided the motion for a continuance properly.

After the parties had agreed upon the amount due for the broom corn, by virtue of the statute, interest was recoverable upon that amount.

It was perfectly competent for the parties to agree that ten per cent., or even a greater amount, if there was no design to evade the statute against usury, should be paid on the ¿mount of the note for delay of payment, after it became due, though no specific time for forbearance was agreed upon.

We find no error in the record, and the judgment is affirmed.

Judgment affirmed.