Ballance v. Frisby , 3 Ill. 63 ( 1839 )

Lockwood, Justice,

delivered the opinion of the Court:

This was an action of assumpsit brought originally before a justice of the peace, by L. Bigelow against Ballance, for money paid to his use. On the death of Bigelow the suit was renewed in the name of Frisby and Metcalf, as administrators. On the trial of the cause in the Circuit Court, it appears, from the evidence, that Bigelow and one Underhill, having a controversy with Ballance, submitted their differences to three arbitrators chosen by the" parties. That the arbitration took place, and each of the parties attended ; that the arbitrators made an award in pursuance of their authority. The plaintiffs below then proved the signature of Dan Stone, one of said arbitrators, to a receipt, which is as follows, to wit: “ Feb. 11, 1838. Lewis Bigelow, Isaac Underhill, and Charles Ballance, to Dan Stone, Dr. — For expenses, travel, and services, in attending arbitration at Peoria, $ 150,00. Received of Lewis Bigelow the above sum of one hundred and fifty dollars. Feb. 12, 1838. Dan Stone.”

To the reading of this receipt in evidence the defendant objected, which objection was overruled, and the receipt was read as evidence.

The assignment of errors questions the correctness of the decision of the Court below in permitting the receipt to be given in evidence. By an examination of the bill of exceptions taken in this cause, it appears that the only object of the plaintiff below, in offering the receipt, was to prove the payment of the money to D. Stone; other evidence having been adduced to prove that the plaintiff below and the defendant were jointly indebted to Dan Stone. Botl; the plaintiff and defendant being jointly indebted to D. Stone, either had a right to pay the money, and call on his co-debtor to repay his moiety of the debt. To prove the payment either the verbal or written confession of the person to whom the payment ought to be made, was prima facie evidence that the payment had been made. The receipt was not evidence that the parties were indebted to Stone, and was not offered for that purpose. The Court below consequently decided correctly in permitting the receipt, after its execution had been proved, to be read in evidence. It is also relied for error, that no evidence was given in the Court below, that Frisby and Metcalf were administrators of Bigelow. No objection was made, on the trial, that they were not administrators. In actions originally commenced in the Circuit Court, unless the defendant interposes a plea that the plaintiff is not administrator, the plaintiff’s right to sue in that character is admitted. ⁽¹⁾ In actions originally commenced before a justice of the peace, the parties do not file written pleadings. The proceedings are all ore tenus; and consequently the plaintiffs were under no necessity of proving that they were administrators, unless the defendant, on the trial, objected that they were not administrators.

The judgment, therefore, of the Circuit Court is affirmed with costs.

Judgment affirmed.

(1) 1 Chit. Plead. 525.