Cumberland County IL Archives Court.....Ward, V Owens 1850
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 23, 2008, 11:33 pm

Source: Records Of Cases Illinois
Written: 1850

Abraham N. Ward, appellant, v. William M. Owens et al., appellees.

Appeal from Cumberland.

The statute authorizing testimony to be introduced orally in chancery, does 
not dispense with the necessity of incorporating the testimony in the record. 
(a) 

This court will not presume that any proof was made, that does not appear of 
record.

All that is necessary for an understanding of this case is set out in the 
opinion of the court. The decree was ordered by Harlan, Judge, at the October 
term, 1850, of the Cumberland Circuit Court.

Stuart & Edwards, for appellant. 

Lincoln & Herndon, for appellees.

Treat, C. J. This was a bill in chancery to set aside a conveyance. The answer 
denied the allegations of the bill, and the cause was at issue by the filing 
of a replication. A decree was entered for the complainant, which the 
defendant assigns for error. The record fails to show that any evidence was 
given to sustain the averments in the bill. The statute authorizing testimony 
to be introduced orally at the hearing, was only designed to change the mode 
of taking proof in chancery cases, and does not dispense with the necessity of 
incorporating it into the record. The evidence, or the facts proved by it, 
ought to be stated in the record. This court will not presume that any other 
proof was made than what appears in the record. Such was the express decision 
in the case of White v. Morrison, 11 Illinois, 361. There is then no basis on 
which this decree can stand. It will be reversed, with costs and the cause 
remanded for further proceedings.

Decree reversed.

-------------------
(a) In order to sustain a decree in chancery, the evidence upcm which it is 
based must in some manner be preserved in the record: Waugh v. Robbins, 83  
Ill., 182 (annotated edition), and note 2; Bonnell v. Lewis, 3 Bradw., 233. 
Oral testimony heard in chancery cases may be stated in the decree in a bill 
of exceptions, in a certificate of the judge or in a master's report: White v. 
Morrison, 11 Ill., 361; Smith v. Newland, 40 Ill., 100; Martin v. Hargardine, 
46 Ill., 322; Cooley v. Scarlett, 38 Ill., 316; McIntosh v. Saunders, 69 Ill., 
128. The facts proved need only be recited in the decree, and the party 
dissatisfied with the finding of the court should preserve the evidence in a 
certificate: Walker v. Carey, 53 Ill., 470. 

Additional Comments:
Reports of Cases Determined in the Supreme Court of the State of Illinois from 
November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor 
at Law. Volume XII. Reprinted from the Original Edition, with Annotations by 
William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill. 
1881.

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