Lee County IL Archives Court.....Hudson, V Dickinson 1850
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 25, 2008, 1:30 pm

Source: Records Of Cases Illinois
Written: 1850

William Hudson, appellant, v. Charles M. Dickinson, appellee.

Appeal from Lee.

A party wishing to raise an issue on the assignment of a note, in a trial 
before a justice of of the peace, must file an affidavit. (a)

This action was commenced before a justice of the peace, and appealed to the 
circuit, at the trial in the Circuit Court, before Sheldon, Judge, at 
September term, 1850, a jury being waived, the appellee, plaintiff below, 
offered an assigned note in evidence, which was objected to, on the ground 
that it was assigned after it became due, and because it was a partnership 
transaction, for which one of the partners had given a receipt, which would 
defeat the assignment.

Glover & Cook, for appellant.

T. L. Dickey, for appellee.

Caton, J. All that is necessary to be decided in this case was settled in the 
case of Archer v. Bogue. There it was decided that the act of second of March, 
1839, entitled "An act to amend the several laws in relation to practice in 
courts of law," is applicable to proceedings before justices of the peace. In 
that case, as in this, the suit was brought by the assignee of a promissory 
note against the maker, and there was no affidavit filed, questioning the 
genuineness of the assignment. This court said, "Upon the first assignment of 
error, wo do not deem it necessary to look into the testimony admitted, 
relative to the note, as the question of assignment was not in issue." If no 
issue is formed upon the assignment, without the affidavit, of course, the 
evidence offered on that subject was immaterial, and we cannot examine its 
sufficiency, in this case, any more than the court could in that. It was the 
duty of the defendant, if he intended to dispute the assignment, to notify 
that fact to the court and the opposite party, in the mode pointed out by the 
statute. In the absence of the affidavit, the plaintiff would not have been 
justified in subpoenaing witnesses to prove the assignment, and he is 
protected from a surprise at the trial by evidence tending to question the 
assignment. The Circuit Court decided correctly, and its judgment is affirmed.

Judgment affirmed.

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(a) Foy v. Blackstone, 31 Ill., 538, accord. The same rule applies in the case 
of proving joint liability: Evans v. Fisher, 5 Gil., 569.

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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