#### John Johnson, Appellant, v. Richard Ackless, Appellee.

APPEAL FROM ST. CLAIR.

The statute regulating appeals from a justice of the peace, in providing that no continuance shall be allowed to either party after the second term, was not intended to prohibit the court from taking such cases under advisement after the trial.

In appeal cases, where the judge acts both as court and jury, a bill of exceptions taken after the judgment of the court is rendered, is regular and in time.

This was originally a suit brought before a justice of the peace by Ackless against Johnson, and taken by Johnson by appeal to the circuit court of St. Clair county. From the bill of exceptions taken in the cause, it appears that the suit was brought before the justice to recover the sum which Johnson received of one Divers, for a certain tract of land, over and above the sum of four hundred dollars, and it was proved by the testimony of John Divers, that about three years ago Johnson had sued Ackless before Divers for a part of the purchase money which Ackless owed Johnson for a certain tract *93of land, for which land Ackless had before agreed to pay Johnson $800, and had paid $400, and that $400 remained unpaid. That at the trial before Divers, Ackless stated that he was unable to pay for the land, and would give up to Johnson what he had paid if Johnson would take the land and release him from paying the residue; that after some conversation Johnson agreed to Ackless’ proposition, and delivered up to Ackless the notes which Johnson held on him for the $400, the residue of the purchase money for the land, and Ackless delivered up to Johnson the bond he held on him for the title to it, and the contract of purchase was fully rescinded. Afterwards, and before the company separated, Johnson offered to sell the land, and called on the company to take notice that it vas his intention to give Ackless all he could get for the land over and above the sum of $400, and that Divers afterwards purchased the land of Johnson for $453, one "hundred and fifty of which was paid in cash, and the balance in horses. On this evidence, Johnson insisted that the testimony showed a naked contract, without any consideration to support it, but the court was of a different opinion and rendered judgment for Ackless, The attorney for Ackless protested against any bill of exceptions being presented at that term (August term, 1824,) for the reason that the evidence upon which the judgment was rendered was heard at August term, 1823 ; but this objection the court overruled.

Opinion of the Court by

Justice Lockwood.

This is an appeal from the circuit court of St. Clair county. The cause originated before a justice of the peace, and was brought into the circuit court by appeal, the appeal was tried at the second term after taking of the appeal, but was not decided until the fourth term. The record states that the continuance after the trial was at the instance of the court, and because the court was not sufficiently advised what judgment to give. It is objected on the part of the appellee that the court had no power to continue this cause after the trial. This objection can not be entitled to any weight. The statute could only have intended to restrict continuances at the instance of one party when opposed by the other. And such has been the practice of the circuit courts ever since the state courts have been established. The plaintiff in the appeal had regularly brought and prosecuted his appeal, and it would consist neither with law nor common sense, that the delay of the court should defeat his appeal. Should, however, the objection prevail, the consequence would be that the judgment of the circuit court must be reversed. But for the reasons above given, the court do not consider it to be erroneous for the court *94to take cases under advisement after two terms have elapsed since the taking an appeal from the decision of a justice of the peace. The appellee also objects that the bill of exceptions was irregularly taken. The bill of exceptions was taken at the term judgment was pronounced. The appellant had no opportunity of taking it sooner, for until the decision he could not know that he should have any ground of exception. The court in the decision of appeals perform the duty both of court and jury, and until the case is decided it can not be known whether it will be necessary to except. The trial of appeals in the circuit court is an anomaly in the law, and the rules of taking bills of exceptions in ordinary trials by jury, can not apply. It therefore appears to the court that the bill of exceptions was properly taken. The only question on the merits of this case is, whether there was any consideration for the promise of the appellant. On this point the court can not for a moment entertain a doubt. The promise given in evidence was entirely gratuitous, it was a nude pact. The judgment therefore must be reversed. (1)

Blackwell, for appellant.

Cowles, for appellee.

Judgment reversed.

(1)

The cases of Swafford v. Dovener, 1 Scam., 165, and White v. Wiseman, id., 169, are cited in Freeman’s Digest, p. 1178, Sec. 13, as conflicting with this ease; but in the first of those cases the court refer to this case, and expressly say the question here decided is not the one presented there. But it is now settled by the act of 1837 in accordance with this decision. Purple’s Statutes, p. 824, Sec. 22 ; Scates’ Comp., p. 263. County of Crawford v. Spenney, 21 Ill., 290; Stevenson v. Sherwood, 22 Ill., 238.