Hancock County IL Archives Court.....Gray, V M'Cance 1849
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 22, 2008, 12:13 am

Source: Reports Of Cases Illinois
Written: 1849

James Gray v. James W. M'Cance.

Appeal from Hancock.

1. Injunction — not dismissed without evidence. An injunction should not be 
dissolved, and a bill dismissed, upon the filing of an answer, not under oath; 
or without evidence of the truth of the facts alleged in the answer.
This was a bill filed by complainant, M'Cance, in which he alleged, that in 
the year 1839 himself and family settled and made his residence on the north-
west fractional quarter of section eleven, in township seven north, range 
eight west, containing one hundred and fifty acres; that he had a valid right 
of pre-emption to said land; that on the 23d day of September, 1841, he proved 
his right of pre-emption before the register and receiver of Quincy, Illinois, 
and that the same was allowed by them; that he paid the price of said land, 
and took the receiver's receipt in the usual form; that about the 28th day of 
May, 1842, said register and receiver, on the application of one Samuel L. 
White, without authority of law, of their own wrong, by usurpation of power, 
reviewed their decision granting to appellant said pre-emption, set the same 
aside, declaring it null and void. That in the year 1844, the appellee applied 
to said register and receiver for a pre-emption on said tract of land, and 
that said register and receiver, acting on false and fraudulent evidence, 
allowed him a pre-emption on said land, and received from him the purchase 
money thereof; that said appellee had, in fact, no right of pre-emption to 
said land, and states facts to show that he was not so entitled; but that a 
patent has been issued to said appellee, upon which he brought an action of 
ejectment against appellant, recovered a judgment, and is about to turn him 
out of possession, and prayed and obtained an injunction, etc.

On the 19th day of April, 1849, the defendant filed his answer, in which he 
does not deny any of the facts stated in complainant's bill, but alleges that, 
on the fifteenth day of September, 1847, the plaintiff filed in said court his 
bill against said defendant, in which he set up the same matters contained in 
this bill, and prayed the same relief; that the defendant fully answered that 
bill, and that the injunction granted in that case was dissolved; which bill 
is still pending and undecided, except by dissolving said injunction. All 
which fully appears by the record and proceedings in said case, remaining on 
file in said court. Prayed that the injunction be dissolved and the case 
dismissed. And for that purpose, refers to the facts stated in his answer in 
the former suit, and makes them part of this answer.

On the 20th of April, 1849, the defendant moved the court to dissolve the 
injunction and dismiss the bill. This motion was taken under advisement by the 
court, "and it was agreed by the parties, that the answer herein filed might 
be considered as an answer for the purposes of this motion."

On the 25th April, the appellant, complainant, moved for leave to file 
exceptions to defendant's answer; which motion was overruled; on the following 
day, Minshall, judge, dissolved the injunction and dismissed the bill. Both of 
which orders are assigned for error.

S. T. Logan, for appellant:

Williams & Lawrence, for appellee, made the following points: The answer or 
plea in this case, may be technically informal, as the plaintiff did not 
except, but agreed that it should stand and be considered as an answer, he can 
not now except to it. The answer states facts which, if true, were a good bar 
to the prosecution. The plaintiff, by filing a replication, might have 
controverted their truth, upon the hearing of the motion, but, having failed 
to reply, he admitted the truth of the answer, and must now be considered as 
having consented that the court should determine the law of the case, arising 
upon the facts. And there can be no doubt that, upon the merits, the bill 
should have been dismissed. The plaintiff having agreed that the answer should 
be considered and received upon the motion, had no right to retract his 
agreement or admission, and except to the answer. 

If there was any irregularity in the proceedings, it was waived by the 
complainant; substantially, and upon the merits, the decree of the circuit 
court was correct. It being admitted by the pleadings, that there was another 
suit pending in the same court, between the same parties, for the identical 
cause of action, and seeking the same relief, the complainant had no right to 
prosecute this suit. There was not, therefore, any reason for continuing it in 
court, and the court below did right to dismiss it.

Trumbull, J. The defendant, in an answer, not under oath, alleged that the 
complainant had previously filed a bill against him in the same court, in 
which he set up the same matters, and prayed the same relief as in this case; 
that he fully answered said first bill, and that such proceedings were 
thereupon had that the injunction granted in said suit was dissolved, but that 
the suit was still pending and undecided.

The day after filing his answer, and before any replication thereto had been 
filed, the defendant entered a motion to dissolve the injunction granted in 
this case, and to dismiss the bill. This motion the court sustained; and that 
decision is now assigned for error.

The decision of the court was clearly erroneous. Admitting that the facts set 
forth in the answer, if proved—or if set forth in a plea, and admitted—would 
have constituted a sufficient defence, the defendant, if he thought proper to 
allege them in an answer, should have been required to furnish evidence of 
their truth. This, so far as the record shows, he did not do. The answer 
furnished no evidence of the truth of the facts alleged.

The decree of the circuit court is reversed, and the cause remanded.

Decree reversed.

Additional Comments:
Reports of Cases Argued and Determined in the Supreme Court of the State of 
Illinois, from November Term, 1849, to June Term, 1850, Both Inclusive. By 
Ebenezer Peck. Volume XI. Annotated by Henry Binmore, of the Chicago Bar. 
CHICAGO: CALLAGHAN & CO. 1886.

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