Madison County IL Archives Court.....Whiteside, Vs. Bartleson 1819-31
************************************************
Copyright.  All rights reserved.
http://www.usgwarch.org/copyright.htm
http://www.usgwarch.org/il/ilfiles.htm
************************************************

File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 4, 2008, 11:04 pm

Source: Reports Of Cases Illinois
Written: 1819-31

NOVEMBER TERM, 1823.


William B. Whiteside, Plaintiff in Error, v. John Bartleson, Defendant in 
Error.

ERROR TO MADISON.

A sheriff was sued for money had and received, and the court assessed the 
damages without the intervention of a jury. This is error.

Opinion of the Court by Chief Justice Reynolds, and Associate Justice John 
Reynolds. This was an action of assumpsit, containing only a common count for 
money had and received. The court below rendered judgment against Whiteside, 
in favor of Bartleson, and assessed the damages without the intervention of a 
jury, and it is to reverse this judgment that this writ of error is 
prosecuted. The liability of Whiteside arose upon his return of an execution 
as sheriff of Madison county, and this return being reduced to writing, and 
remaining upon file in the clerk's office of said county: It was therefore 
contended that this makes his liability certain, and authorizes the court to 
assess the damages. If this argument be yielded, it would follow, that in 
every case where a fact could be made certain, the court, and not a jury, 
should try the cause. The consequences which would flow from such a 
proposition would be too absurd to admit the principle. The right of trial by 
jury would be thereby destroyed, and the interference of the court regulated, 
not by the certainty of the matter contained in the declaration, but by matter 
dehors.

The execution, with the return of the sheriff, when that return shall be 
proved, would certainly be evidence—but evidence for a jury and not for the 
court.

A jury should have been impanneled to assess the damages—this not having been 
done, it is error, for which the judgment ought to be reversed. Let the 
judgment be reversed, and the cause remanded for new proceedings not 
inconsistent with this opinion. (a)

Judgment reversed.

Starr, for plaintiff. 

Smith, for defendant.

------------------
(a) Post Rust v. Frothingham & Fort. As to writs of inquiry, see Tidd's 
practice, 513. 4 T. R., 275. 2 Bos. & Pull, 55. Bell and Bell v. Aydelotte, 
ante, page 45.

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.

File at: http://files.usgwarchives.net/il/madison/court/whitesid224gwl.txt

This file has been created by a form at http://www.genrecords.org/ilfiles/

File size: 3.0 Kb