Madison County IL Archives Court.....Conley, V. Good 1825
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 9, 2009, 12:37 am

Source: Il Court Reports, 1819-1831
Written: 1825

December Term 1825

Alexander Conley, Appellant, v. Ezekiel Good, Appellee.

APPEAL FROM MADISON.

Any defence of a dilatory character must be taken advantage of on the trial 
before the justice of the peace. (1)

If one of several partners promise individually to pay a debt, he will not be 
allowed to show that it was due jointly from himself and his co-partner. (2)

An appeal is assimilated to a suit in equity, and in equity, partners are 
jointly and severally liable, and therefore, proof that another person was the 
partner of the defendant, if offered by the defendent, is inadmissible in such 
case.

Opinion of the Court by Justice Lockwood.* This is an appeal from the Madison 
circuit court, and brought into that court by appeal from the decision of a 
justice of the peace. The action was brought to recover the value of a 
quantity of wool delivered to Good to be carded, and which had not, on demand, 
been returned to Conley. On the trial of the appeal in the circuit court, 
after Conley's witnesses had been examined and cross-examined by Good, Good 
introduced his brother as a witness to prove that he, the witness, was a 
partner in the carding machine. It was conceded on the trial of the appeal, 
that no such defense was made before the justice of the peace, and that the 
wool was delivered to Good, the defendant, who promised to card it. It was 
also proved on the trial, that the partnership was not known by the neighbors 
and persons frequenting the carding machine.

The circuit court, however, decided that the partnership thus proved, was a 
bar to the action, and gave judgment for the appellee. One of the questions 
presented in this case is, whether, in proceedings before justices of the 
peace, a party is bound to avail himself of the first opportunity to take 
advantage of a defense which is of a dilatory character. The defense relied on 
in the circuit court, could have no other effect than to abate the suit; it 
had nothing to do with the merits of the case. The general rule in case of 
dilatory pleas is, that if the party does not avail himself of it the first 
opportunity, he waives the objection. It is, however, contended, that this 
rule can not be applied to proceedings before a justice of the peace. The 
court can not accede to this proposition. The object of the legislature in 
organizing justices courts, would be entirely defeated, if parties were 
permitted to conceal mere technical objections, and then, after the trial has 
began, raise them. The justices' law requires the justice to decide the case 
according to law and equity, and dispenses with written pleadings. The object 
of the legislature in establishing these courts was, to dispense with 
technical forms and pleadings, and requires causes to be disposed of with as 
little delay and expense as possible. The court thinks it doubtful whether the 
legislature intended that objections which do not go to the merits of the 
case, could be made to proceedings before a justice of the peace. Without 
intending definitely to settle this question, they are of opinion that such 
objections must be made in the order of pleadings.

In this case, Good never made the objection till Conley had adduced his proof 
in the circuit court, and Good had cross-examined his witnesses. To suffer a 
party, at such a stage of the proceedings, to raise objections in the nature 
of a plea in abatement, would not only be a palpable departure from every 
legal principle, but be at war with the statute regulating trials of appeals, 
which directs that the circuit courts shall "hear and determine the same, in a 
summary way, without pleadings in writing, according to the justice of the 
case," and that the court shall "admit any amendment of the papers or 
proceedings, that may be necessary to a fair trial of the cause upon its own 
intrinsic merits."

Here has not been a trial on the intrinsic merits of the cause, and a decision 
according to the justice of the case. In equity, partners are both jointly and 
severally liable for their contracts.

The court below, therefore, in receiving the testimony of a partnership, 
erred, and if one of several partners promise individually to pay a debt, he 
will not be allowed to show that it was due jointly from himself and his co-
partners. Murray v. Sommerville. Sittings after Hilary term—by Lord 
Ellenborough.

The judgment must be reversed. The court did not think it necessary to decide 
the question, whether a suit ought to abate, when a dormant partner is not 
sued. They are, however, inclined to think, that a plea in abatement in such a 
case would not lie. In the case of Clark v. Holmes, 3 Johns. Rep., 148, it was 
decided, that when one partner makes a warranty on the sale of goods, an 
action may be maintained on the warranty against that partner, without joining 
the other.

The judgment reversed and proceedings remanded. (a)

Judgment reversed

McRoberts, for appellant.

Vowles, for appellee.

-------------------------
(1) This proposition is universally sustained bv the authorities. Greer v. 
Wheeler, 1 Scam., 554. Bines et al. v. Proctor et al., 4 Scam. 177. Duncan et 
al. v. Char_es, id., 569. Ross v. Nesbit, 2 Gilm., 253. Adams v. Miller, 12 
Ill., 27. Wilson v. Nettleton, id,. 61. Moss v. Flint, 13 Ill., 570. Adams v. 
Miller, 14 Id., 71. Walker et al. v. Welch et al., id., 277. Holloway v. 
Freeman, 22 Ill., 197.

(2) The principle of this decision—that a dormant partner need not be joined, 
is unquestionable. Page et al. v. Brant, 18 Ill., 37. Collyer on Partnerships, 
662. But as to the doubt expressed by the court, that objections which do not 
go to the merits of the case can not be made in proceedings before a justice 
of the peace, we can not think there is any question. It is true that the 
objection, that some of the partners are not sued, can be taken advantage of 
only by plea in abatement. Shufeldt v. Seymour et al., 21 Ill., 524, Puschel 
v. Hoover et al., 16 Ill., 340, Collver on partnership, 658. In equity, also, 
partners are held both jointly and severally liable on their contracts. 
Collyer on partnerships, p. 554. 1 Story's Eq. Jur., Sec. 676. 3 Kent's Comm., 
63-4. It is not so, however, at law. But it does not follow, that if the fact 
were known at the time of making the contract that there were other partners 
who are not joined as defendants, because the suit is brought before a justice 
of the peace instead of the circuit court, that the defendant can not avail 
himself of this objection. It is true that the legislature have intended to do 
away with many technicalities in proceedings before justices of the peace, and 
wisely; for if they were expected to conform to all the niceties required in 
higher courts, few, especially in a new country, would be found qualified to 
hold the office; and the benefits expected to be derived from this species of 
courts, would be lost. They have dispensed with written pleadings, Crews v. 
Bleakley, 16 Ill., 21. They have provided in certain cases that parties may be 
made witnesses, without the expense and delay of a bill of discovery. Webb v. 
Lasater, 4 Scam., 543. Purple's Statutes, 667, Sec. 39. Scates' Comp., 699. 
But they have nowhere provided that objections which do not go to the merits, 
if made at the proper time, shall not avail the defendant. The decisions have 
been otherwise. Orr v. Thompson, 4 Gilm., 451. Adams v. Miller, 12 Ill., 27. 
Same case, 14 Ill., 71. Robertson et al. v. County Commissioners, 5 Gilm., 
559. And the reasons for this are manifest. That slight and trivial objections 
ought not to be allowed in proceedings before justices of the peace is 
reasonable; but many objections, though not strictly of substance, are yet so 
nearly allied to it as to demand that they shall be allowed to a defendant, no 
matter in what court he is sued. If a defendant is sued on a joint contract, 
he has a right that his co-contractor shall be joined with him, in order that 
each may bear his proportion of the joint liability. If the doctrine I am 
endeavoring to combat is true, it follows that it depends entirely in what 
court a defendant is sued as to what are his rights. If sued in the circuit 
court, he may show that others ought to have been joined with him—that he is 
sued by the wrong name—and many other kindred defenses. If sued before a 
justice of the peace on the same demand, (and in many cases circuit courts and 
justices of the peace have concurrent jurisdiction) he is denied any such 
right. Can it that justice depends merely on the tribunal in which it is 
sought? Except in cases of partnership, a joint liability, oven in equity, is 
never treated as joint and several; and so far as it is carried, that if a 
joint obligor who is only security, dies, his estate can not, in any manner, 
be made liable. Powell et al. v. Ke_telle, 1 Gilm., 491. How then, because the 
legislature has sought to remove technical objections, can proceedings be 
sustained before inferior tribunals, which a court of equity could not? The 
statement of the proposition, to my mind, shows its fallacy.

*Justice Smith having been counsel in the cause, gave no opinion.

(a) That other persons jointly indebted, or jointly responsible, have not been 
made defendants, must be pleaded in abatement, and can not be taken advantage 
of on too trial. Ziele v. Exrs. of Campbell, 2 Johns. Cas. 382.

Additional Comments:
Reports of Cases at Common Law and in Chancery, Argued and Determined in the
Supreme Court of the State of Illinois, From its First Organization in 1819, 
to the End of December Term, 1831 

By Sidney Breese, Counsellor at Law
Second Edition, with Additional Notes, By Edwin Beecher

Chicago: Callaghan & Company, 1877.

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