{
  "id": 2476384,
  "name": "Lucien Berry, administrator of Garrison W. Berry, plaintiff in error, v. John Savage and John W. Pratt, defendants in error",
  "name_abbreviation": "Berry v. Savage",
  "decision_date": "1840-06",
  "docket_number": "",
  "first_page": "261",
  "last_page": "262",
  "citations": [
    {
      "type": "nominative",
      "cite": "2 Scam. 261"
    },
    {
      "type": "official",
      "cite": "3 Ill. 261"
    }
  ],
  "court": {
    "name_abbreviation": "Ill.",
    "id": 8772,
    "name": "Illinois Supreme Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "8 Wend. 95",
      "category": "reporters:state",
      "reporter": "Wend.",
      "opinion_index": 0
    }
  ],
  "analysis": {
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    "char_count": 5611,
    "ocr_confidence": 0.745,
    "pagerank": {
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    "sha256": "101d9c18a74b8f8a7688969e8a9c96dee44912886776c19494cdca463a685f78",
    "simhash": "1:8b2ac0a79557dd2f",
    "word_count": 1000
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  "last_updated": "2023-07-14T20:58:58.619010+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Lucien Berry, administrator of Garrison W. Berry, plaintiff in error, v. John Savage and John W. Pratt, defendants in error."
    ],
    "opinions": [
      {
        "text": "Lockwood, Justice,\ndelivered the opinion of the Court:\nThe following bill of exceptions was taken on the trial of this cause, to wit : \u201c Be it remembered, that on the trial of this cause, after the evidence had been submitted to the jury, and the jury had retired to consider of their verdict, the jury returned into Court, and enquired whether or not the note was to be considered by them as it read. The note had been read to the jury as evidence, under the declaration, without objection, but upon the return of the jury into Court, and their making the enquiry aforesaid, it appeared, upon examination of the note, that it was made payable on the day of--one thousand eighteen hundred and thirty.\n\u201c The variance between the note and the declaration had not before been discovered by the Court, or mentioned by the counsel on either side.\n\u201cThe Court informed the jury, that they were bound to consider the note as it read, and as not being due until the time expressed on its face ; and if, from the reading of the note, it did not appear to be due, they must find for the defendants. Whereupon, the plaintiff\u2019s counsel stated that he had never before discovered the variance between the note and the declaration, and moved the Court to permit him to suffer a nonsuit, which motion being objected to by the defendants\u2019 counsel, the Court overruled, and refused to permit the plaintiff to suffer a nonsuit. The plaintiff, by his counsel, excepts,\u201d &c.\nThe assignment of errors questions the correctness of the instructions to the jury, and the refusal to permit the plaintiff to suffer a nonsuit.\nAt common law, a plaintiff was permitted to take d nonsuit, at any time before the verdict was rendered in Court. But by the 13th section of \u201c Jin Jlct regulating the Practice in the Supreme and Circuit Courts of this State, and for other purposes,\u201d passed March 22, 1819, it is provided, that \u201cEvery person desirous of suffering a nonsuit on trial, shall be barred therefrom, unless he do so before the jury retire from the bar.\u201d\nIn order to bar the plaintiff\u2019s right of submitting to a nonsuit, the jury must have the whole of the case, including not only all the evidence, but the instructions of the Court. Consequently, if, for any cause, the jury retire from the bar without having the whole of the case on which they are to render a verdict, the plaintiff\u2019s right to submit to a nonsuit is not taken away.\nMany cases might be put, where the greatest injustice would result if this were not the rule.\nThe facts in this case, however, show the necessity of construing the statute in the manner above indicated.\nHad the defendants objected to the reading the note in evidence, or had they discovered the variance before the jury went out, there can be no doubt that the note would have been rejected by the Court, and the consequence would have been, that the plaintiff would have been nonsuited. The objection ought strictly to have been by defendants to receiving the note in evidence; and it perhaps may well be doubted, whether, under the circumstances of the case, the Court would not have been justified in charging the jury, that they had a right to consider the note as due, if they believed from the face of the note, that the word \u201c eighteen \u201d was written by mistake for \u201c eight.\u201d Without intending, however, definitely to decide this point, we are clearly of opinion, that the plaintiff had a right to submit to a nonsuit, when the instructions were given. For not permitting the plaintiff to suffer a nonsuit, the judgment below is reversed with costs, and judgment of nonsuit rendered in this Court.\nJudgment reversed.\nNote. See Berry v. Savage et al., in chancery, Post.\nWooster v. Burr, 8 Wend. 95.\nR. L. 486 ; Gale\u2019s Stat. 528.",
        "type": "majority",
        "author": "Lockwood, Justice,"
      }
    ],
    "attorneys": [
      "Wm. Thomas, for the plaintiff in error.",
      "E. D. Baker, for the defendants in error."
    ],
    "corrections": "",
    "head_matter": "Lucien Berry, administrator of Garrison W. Berry, plaintiff in error, v. John Savage and John W. Pratt, defendants in error.\nError to Morgan.\nIn order to bar the plaintiff\u2019s right to submit to a nonsuit, the jury must have the whole of the case, including not only all the evidence, but the instructions of the Court. Consequently, if, for any cause, the jury retire from the bar without having the whole of the case on which they are to render a verdict, the plaintiff\u2019s right to submit to a nonsuit is not taken away.\nWhere, in an action upon a note alleged in the declaration to have been payable in 1830, a note was produced and read in evidence without objection, payable in \u201c one thousand eighteen hundred and thirty; \u201d and the jury, after having retired to consider of their verdict, returned into Court, and enquired of the Court, whether the note was to be considered by them as it read, and the Court informed the jury, that they were bound to consider the note as it read, and as not being due until the time expressed on its face ; and if, from reading the note, it did not appear to be due, they must find for the defendants, and the plaintiff thereupon moved the Court to permit him to take a nonsuit, which was refused: Held, that the Court erred in refusing the motion.\nQuere, Whether, under the circumstances of this case, the Court would not have been justified in charging the jury, that they had a right to consider the note as due, if they believed, from the face of the note, that the word \u201c eighteen \u2019\u2019 was written by mistake for \u201ceight.\u201d\nThis cause was tried in the Court below, at the June term, 1837, before the Hon. James H. Ralston and a jury. Verdict and judgment were rendered for the defendants. The cause is brought into this Court by writ of error.\nWm. Thomas, for the plaintiff in error.\nE. D. Baker, for the defendants in error."
  },
  "file_name": "0261-01",
  "first_page_order": 279,
  "last_page_order": 280
}