{
  "id": 2474300,
  "name": "John B. Beaubien, plaintiff in error, v. William H. Sabine, defendant in error",
  "name_abbreviation": "Beaubien v. Sabine",
  "decision_date": "1840-12",
  "docket_number": "",
  "first_page": "457",
  "last_page": "460",
  "citations": [
    {
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      "cite": "2 Scam. 457"
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    "name_abbreviation": "Ill.",
    "id": 8772,
    "name": "Illinois Supreme Court"
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    "name_long": "Illinois",
    "name": "Ill."
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      "reporter": "Scam.",
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      "cite": "1 Scam. 176",
      "category": "reporters:state",
      "reporter": "Scam.",
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    {
      "cite": "1 Scam. 174",
      "category": "reporters:state",
      "reporter": "Scam.",
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        2478767
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      "case_paths": [
        "/ill/2/0174-01"
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    {
      "cite": "1 Scam. 283",
      "category": "reporters:state",
      "reporter": "Scam.",
      "opinion_index": -1
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  "last_updated": "2023-07-14T20:58:58.619010+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "John B. Beaubien, plaintiff in error, v. William H. Sabine, defendant in error."
    ],
    "opinions": [
      {
        "text": "Wilson, Chief Justice,\ndelivered the opinion of the Court:\nThis suit was brought in the Municipal Court of the city of Chicago.\nThe summons was issued under the private seal of the clerk, and signed by him as such.\nThe sufficiency of the process is objected to, because it is not under the public seal. The law provides that the Municipal Court shall be a court of record, and shall have a seal, to be furnished by the Common Council. The process of said Court shall be tested by the judge, and shall be issued in the same manner as in the Circuit Courts. And the law having provided that until a public seal was provided for the Circuit Court, the clerk should use his private seal, it would seem clear that the same practice should prevail in the Municipal Court. And the words, manner of issuing the process, must be understood to refer to the mode of sealing and signing, &c. The same reason that requires the use of a private seal to the process of the Circuit Court, applies, also, under similar circumstances, to the Municipal Court. And the fact that there is no public seal, is proved by the certificate of the clerk.\nThe objection to the declaration, that it contains no averment that the cause of action arose in Chicago, or that the plaintiff and defendant, or the defendant, resided there at the commencement of the suit, has been decided by this Court in the case of Beaubien v. Brinckerhoff, to be an invalid objection.\nJudgment affirmed.\nNote. See Mitcheltree v. Stewart et al., Ante 17 - 20, and note ; Townsend v. Griggs et al., Ante 365.\nSmith, Justice, was not present on the argument of this cause, and gave no opinion.\nAnte 269.",
        "type": "majority",
        "author": "Wilson, Chief Justice,"
      }
    ],
    "attorneys": [
      "Fr. Peyton, for the plaintiff in error :",
      "J. Butterfield, for the defendant in error."
    ],
    "corrections": "",
    "head_matter": "John B. Beaubien, plaintiff in error, v. William H. Sabine, defendant in error.\nError to the Municipal Court of the City of Chicago.\nA summons issued under the private seal of the clerk of the Municipal Court of the city of Chicago, no official seal being provided, is in conformity with the statutes, and cannot be objected to on account of the want of a public seal.\nSemble, That a return to a summons, in these words, \u201c Served by reading to the within. Oct. 23,1837. John Shrigley, High Constable, pr. L. Nichols, Deputy High Constable,\u201d is sufficient.\nThis was an action of assumpsit brought by William H. Sabine against John B. Beaubien, as acceptor of two bills of exchange drawn by Benjamin Mills, and by him endorsed to said Sabine. The bills are dated at Chicago, and payable at no particular place.\nThe declaration sets forth, that \u201c William H. Sabine, plaintiff in this suit, by Butterfield and Collins, his attorneys, complains of John B. Beaubien, defendant in this suit, in custody,\u201d &c., but contains no averment that the plaintiff and defendant, or the defendant, resided, at the time of commencing said suit, either in the city of Chicago or county of Cook, or that the cause of action arose in said city.\nFr. Peyton, for the plaintiff in error :\nThe errors assigned show that the original process of summons issued in this case, was under the private seal of the clerk. The act chartering the city of Chicago, and establishing the Municipal Court, directs that the process shall be sealed with the public seal, to be provided by the Common Council of said city, and confers no authority on the clerk to use his private seal until one shall be provided. It will be seen, by reference to the law creating the Circuit Courts, that they are permitted to use. their private seals, until they may be furnished with a public seal; but this right or privilege is not made to extend to other public officers or clerks. The plaintiff therefore contends that said process was a nullity, and conferred no right on said Court to render a judgment in this case. \u201c A summons issued from the Circuit Court, without the seal annexed, is a nullity ; and the Court, on motion, should quash the sanie.\u201d Hannum v. Thompson, 1 Scam. 283.\nA plaintiff, taking judgment by default, does so at his peril ; and is bound to know that all the proceedings are regular. This is a principle recognised by this Court, and often adverted to in its decisions ; and so well known that it is not deemed necessary to cite authorities in its support.\nThe errors assigned also question the sufficiency of the high constable\u2019s return, because the same is vague and uncertain. In support of this position the plaintiff relies on the following cases decided by this Court, to wit: \u201c The return of the sheriff upon the writ should state the time when the same was made. Parol testimony will not be admitted to prove that service was made within the time required by the statute.\u201d Wilson v. Greathouse, 1 Scam. 174 ; Clemson et al. v. Hamm, 1 Scam. 176.\n\u201c The return of the sheriff should state the mode of the service with certainty, whether by reading to the defendant, or by the delivery of a copy. The return in this case, \u2018 Executed October 10th, 1832, as commanded within,\u2019 is too uncertain, and judgment by default rendered thereon will be reversed.\u201d Ogle v. Coffey, 1 Scam. 239.\nJ. Butterfield, for the defendant in error.\nThe return on the summons is sufficient :\nIt shall be the duty of the sheriff to serve the process, when it shall be practicable, ten days before the return day thereof, and make a return to the clerk who issued it, by or on the return day, \u201c with an endorsement of his service, the time of serving it, and the amount of his fees. R. L. 487; Gale\u2019s Stat. 529.\nUnder the English and New York practice, the sheriff generally makes his return in Latin, \u201c Cepi corpus\u201c Cepi corpus in custodia \u201c Non est; \u201d \u201c Nihil\u201d fee.\nIn the case of Wilson v. Greathouse, Forman 152 ; 1 Scam. 174 ; the suit was commenced before a justice. That case does not apply to this. The return by the constable was, \u201cExecuted on the within defendant, by his reading the within. Joseph Flinn, Constable.\u201d\n\u00a7 3 of the act concerning justices, declares, that the summons shall be served at least three days before the return day, by reading the same to the defendant. R. L. 387 ; Gale\u2019s Stat. 403. In this case, the Court say it would have been impossible, from the face of the return, to determine whether the process was served in time; because no date is given by the return of the officer.\nIn Clemson et al. v. Hamm, Forman 154 ; Gale\u2019s Stat. 176, the return was, \u201c Executed on Hunter ; Clemson not found. N. Buckmaster, Sheriff.\u201d The Court decided that the judgment should be reversed, because the return did not state when the summons was served. If it was not served ten days before the term, the defendant would not be compelled to plead before the next succeeding term.\nIn Ogle v. Coffey, Forman 184 ; 1 Scam. 239 ; the return was, \u201cExecuted October 18th, 1832, as commanded within.\u201d Judge Smith says, \u201c Whether the date specified is intended for the date of the day of the service, or is the day on which the summons is returned, is wholly uncertain.\u201d This remark must be a mistake of the Reporter : \u201c The manner of the service is still more uncertain ; whether the service was by reading or delivering a copy, is left to conjecture.\u201d I should suppose that either was sufficient. The statute is silent as to the manner of service. It ought to be personal; reading to the defendant, or delivering a copy to him, is personal service.\nIn Garrett v. Phelps, Forman 217 ; 1 Scam. 331 ; there was no return of service, on the process. Lockwood, Justice, says, to make a judgment by default regular, it should appear by the return on the process, that it had been served, and on what day service was made.\nThe summons in this case was tested as follows :\n\u201c Witness-the Hon. Thomas Ford, Judge of said Municipal Court, (no seal being provided,) at the city of Chicago, this 21st day of October, A. D. 1837.\n[clerk\u2019s private seal.] J. Manning, Clerk.\u201d\nOn the back of said summons was the following endorsement :\n\u201c Served by reading to the within. October the 23d, 1837.\n\u201cJohn Shrigley, High Constable, per\nL. Nichols, Dep\u2019y High Constable.\u201d\nJudgment was rendered by default, against Beaubien, for $7,980,07, at the September term, 1838. The defendant prosecuted a writ of error to this Court."
  },
  "file_name": "0457-01",
  "first_page_order": 475,
  "last_page_order": 478
}