Barnes v. Simmons. courts have no right to say whether it is the best, but must comply with its requirements. This service fails to do so, and is insufficient. The judgment of the court below must be reversed. Judgment reversed. GEORGE C. BARNES, Appellant, v. GEORGE SIMMONS, Appellee. APPEAL FROM MARSHALL. In an action upon a note, the books of a banker, showing entries made by third parties without the knowledge of the litigants, are not proper evidence. Such books are not public records, nor do they fall within any recognized class. of written or documentary evidence. THIS was a suit on a note. Declaration in the usual form, against Barnes. Parties went to trial upon declaration, general issue, and notice of set-off. Trial by jury; verdict for Simmons for $429.66. On the trial, Simmons offered copy of note in evidence to maintain the issues on his part, and rested. The defendant then called Richard H. Maxwell, who testified, that about a year ago he heard a conversation between the parties. Barnes said he had borrowed $400 of Simmons, and had given his note for it, but had not got the money; That Simmons' money was in the bank of Wm. L. Crane & Co., and Barnes feared it would be impossible to get the money out of the bank, as he believed it was insolvent; that Barnes had been unable to get it out; that Barnes had so told Simmons before that time, and Barnes wanted Simmons to give up the note; that Simmons said nothing denying what Barnes said, but refused to give up the note, but told Barnes to get all the money or effects he could, do the best he could to get the money out of the bank, and Simmons would do what was right about it. Simmons then called one Henry Crane, who testified, that he was clerk in the bank of Crane & Co., in winter of 1857-8; that the books of the bank show that Simmons gave up his certificates of deposit, and that on same day Barnes is credited the amount of them; that the books of the bank show that Barnes has drawn out all the money from the bank. States that he has no knowledge of his own that Barnes ever re Barnes v. Simmons. ceived any of the money on the checks; that he supposes so from the books and the possession of the checks by the bank, and from these only; that the books of the bank show that Barnes has drawn out all the money from the bank; that the checks appeared to have been drawn by Barnes and paid by the bank in the course of regular business. Simmons here offered in evidence that part of the books of the bank of Crane & Co., containing the account of Barnes; also, the certificates in favor of George Simmons; and also, the checks drawn upon the bank by Barnes-to all of which, Barnes objected and excepted. Barnes moved to set aside verdict, and for new trial; motion overruled; judgment for plaintiff for $419 and costs; whereupon Barnes prayed an appeal. LELAND & BLANCHARD, for Appellant. RICHMOND & BURNS, for Appellee. WALKER, J. This record fails to disclose any evidence, necessary to authorize the admission of the books of the bank. They were not those of either party, and no necessity is perceived for their being admitted. The banker, or his clerk, who transacted the business, were doubtless competent witnesses, and must be relied upon, to prove the facts contained in the books. The entries were there made without their agency, consent, or, for aught that appears, without knowledge of the parties, and consequently were not binding upon them. They were not public records, nor do they fall within any class of written or documentary evidence. They are the entries of other persons not connected with the parties, and who had no right to bind them by what they did. The entries in these books are precisely like the declarations of those making them, and are hearsay evidence, and inadmissible. They are not made under the sanction of an oath, and not subject to cross-examination. In no point of view, and for no purpose, are they admissible in this case. The judgment of the court below is reversed, and the cause remanded. Judgment reversed. Wright v. Curtis et al. JOHN F. WRIGHT, Appellant, v. EDWIN CURTIS, and JOSEPH BAKER, Appellees. APPEAL FROM IROQUOIS. If a declaration avers that a note is made payable to the plaintiffs by the name and style of Curtis and Baker, such a note may be read in evidence, although they declared in the names of Edwin Curtis and Joseph Baker, without alleging that they were partners, or that the note was made payable in any joint character. THIS was an action of assumpsit, brought to the Iroquois Circuit Court, where a judgment was rendered, in favor of the plaintiffs below, the appellees, on this note: "$155.00. NEW YORK, October 17, 1860. "Six months after date, I, the subscriber, of Middleport, County of Iroquois, State of Illinois, promise to pay to the order of Curtis & Baker, one hundred fifty-five dollars, at their office in New York, value received. The defendant below appealed. "JOHN F. WRIGHT." The note was payable to "Curtis & Baker." The suit is in the names of "Edwin Curtis" and "Joseph Baker" as individuals. There is nothing showing that the individuals Edwin Curtis and Joseph Baker are the same persons to whom the note was made payable. There is nothing showing that the plaintiffs were partners, or in what manner they were jointly interested in the note sued upon. C. KINNEY, and S. G. BOVIE, for Appellant. F. BLADES, and G. B. JOINER, for Appellees. WALKER, J. Appellees declared in the names of Edwin Curtis and Joseph Baker. The note produced and read in evidence, was payable to "Curtis & Baker." The declaration contained no averment, that plaintiffs were partners, and the note was payable to them as such, nor that it was made to them in any other joint character. When the note was produced, it did not purport to be payable to Edwin Curtis and Joseph Baker. There was, however, an averment that the note was made payable to plaintiffs by the name and style of "Curtis & Baker," and when it was produced, it fully sustained the averment. There was no variance, and the judg ment of the court below is affirmed. Judgment affirmed. Wright v. Meade et al. JOHN F. WRIGHT, Appellant, v. JAMES M. MEADE, APPEAL FROM IROQUOIS. THIS case is similar in all respects, save in the names of appellees, to the preceding one. WALKER, J. This record presents the same question as that of Wright v. Curtis and Baker, and is, therefore, governed by the same rules. The judgment of the court below is affirmed. Judgment affirmed. ANNIE BOWEN, Appellant, v. WILLIAM P. DUTTON, Appellee. APPEAL FROM COOK. This court will not reverse a judgment, merely because another might be more acceptable. THIS suit was originally tried before a justice of the peace, and judgment was rendered by the justice for the appellee, and an appeal taken to the Circuit Court, where the suit was submitted to the court for trial by the consent of parties, and judgment was rendered for the appellee for the sum of fifty dollars, and an appeal was prayed and allowed. This cause was tried before MANNIERE, Judge. T. SHIRLEY, for Appellant. D. C. AND I. J. NICHOLS, for Appellee. CATON, C. J. This is strictly a question upon the evidence, and we do not feel inclined to disturb the finding of the court, even though there may be some doubt as to which way the judgment should have been. There was certainly evidence to sustain the finding. Taking the testimony of Little and Madge, and the plaintiff's case was sustained. Their testimony shows a personal understanding by the defendant to deliver her the goods on being paid twenty-five dollars which he had advanced for her. This agreement he refused to fulfill when she offered to pay him that amount. And this breach 27b 515 145 105 Millay et al. v. Dunn. of that agreement afforded a cause of action. That promise was made for a consideration to himself, which made the promise a personal one, no matter to whom the goods, in fact, belonged. Mrs. Allen contradicts these witnesses, but we will not reverse the judgment because the court still believed them. The judgment must be affirmed. Judgment affirmed. JAMES J. MILLAY et al., Plaintiffs in Error, v. MARVIN DUNN, Defendant in Error. ERROR TO LA SALLE. Where it appears that a party is to deliver grain and have the price of it at a certain place indorsed on a contract, the party to whom it is to be delivered, has not, prior to delivery, any authority to take possession of the grain. THIS was an action of replevin in the LaSalle Circuit Court, commenced by Dunn against Millay and Pierce. The declaration alleges, that on September 25, 1861, defendants wrongfully took about five hundred bushels of ear corn, and two hogs, and unlawfully detained same until, etc. Defendants filed four pleas. The court sustained plaintiff's demurrer to fourth plea, and rendered judgment thereon. Defendants withdrew first, second and third pleas. The error assigned is, that the court erred in sustaining demurrer to the fourth plea, and rendering judgment thereon. The fourth plea is substantially as follows: And for another and further plea in this behalf, by leave of court, etc., said defendants say, as to so much of said declaration as charges the taking and detaining the corn therein mentioned, actio non, etc., because they say, that on the nineteenth day of October, A. D. 1859, the plaintiff, and said Nathaniel S. Pierce, made and entered into an agreement in writing, in the words and figures following: "Article of agreement, made the nineteenth day of October, one thousand eight hundred and fifty-nine, between Nathaniel S. Pierce of the town of Adams, county of LaSalle, and State of Illinois, of the first part, and Marvin Dunn of said town, of the second part, witnesseth, that said party of the first part has contracted and agreed to sell to said party of the second part, all that certain piece or parcel of land, situated in said town, and which is bounded or described as follows, |