Introduction to Niswanger v. Greene

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Introduction to Niswanger v. Greene Docket Entry, circa 4–18 December 1840 [Niswanger v. Greene]
Introduction to Niswanger v. Greene
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Niswanger v. Greene

Hancock Co., Illinois, Justice of the Peace Court, 18 December 1840

Historical Introduction

In early December 1840,
William Niswanger
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initiated a civil action against
John P. Greene
3 Sept. 1793–10 Sept. 1844. Farmer, shoemaker, printer, publisher. Born at Herkimer, Herkimer Co., New York. Son of John Coddington Greene and Anna Chapman. Married first Rhoda Young, 11 Feb. 1813. Moved to Aurelius, Cayuga Co., New York, 1814; to Brownsville...
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to recover a debt. An order from JS was submitted to reduce Greene’s debt in part.
Hancock County
Formed from Pike Co., 1825. Described in 1837 as predominantly prairie and “deficient in timber.” Early settlers came mainly from mid-Atlantic and southern states. Population in 1835 about 3,200; in 1840 about 9,900; and in 1844 at least 15,000. Carthage ...
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, Illinois, justice of the peace
Daniel H. Wells
27 Oct. 1814–24 Mar. 1891. Farmer, teacher, ferry operator, lumber merchant, manager of nail factory, politician. Born in Trenton, Oneida Co., New York. Son of Daniel Wells and Catherine Chapin. Moved to Marietta, Washington Co., Ohio, ca. 1832. Moved to ...
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issued a writ of
capias ad respondendum
Latin for “that you take until answer”; a writ commanding an officer to arrest a defendant to answer the plaintiff’s plea. A defendant arrested on this writ was committed to prison unless a bail bond was given. The amount of bail would be endorsed on the ...
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for Greene’s arrest that was based upon Niswanger’s oath.
1
Illinois law permitted Niswanger to swear under oath that he believed Greene was likely to flee or abscond with his property to avoid paying the debt. It is unknown if Niswanger’s oath was given in writing. An Act concerning Justices of the Peace and Constables [3 Feb. 1827], Public and General Statute Laws of the State of Illinois [1839], pp. 403–404, sec. 4; see also Cotton, Treatise on the Powers and Duties of Justices of the Peace in the State of Illinois, 368–372.
Comprehensive Works Cited
The Public and General Statute Laws of the State of Illinois: Containing All the Laws . . . Passed by the Ninth General Assembly, at Their First Session, Commencing December 1, 1834, and Ending February 13, 1835; and at Their Second Session, Commencing December 7, 1835, and Ending January 18, 1836; and Those Passed by the Tenth General Assembly, at Their Session Commencing December 5, 1836, and Ending March 6, 1837; and at Their Special Session, Commencing July 10, and Ending July 22, 1837. . . . Compiled by Jonathan Young Scammon. Chicago: Stephen F. Gale, 1839.
Cotton, Henry G. A Treatise on the Powers and Duties of Justices of the Peace in the State of Illinois, with Practical Forms. Ottawa, IL: By the author, 1845.
Greene was apprehended, but he was released after JS agreed to serve as “
special bail
“Persons who undertake generally that if the defendant be condemned in the action, he shall satisfy the debt, costs, and damages . . . or that they will do it for him.” A plaintiff could initiate a civil suit by summons, which simply notified the defendant...
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” for him, promising to pay the damages and costs if Greene lost the suit and did not pay them himself.
2
Docket Entry, ca. 4–18 Dec. 1840 [Niswanger v. Greene].

Wells
27 Oct. 1814–24 Mar. 1891. Farmer, teacher, ferry operator, lumber merchant, manager of nail factory, politician. Born in Trenton, Oneida Co., New York. Son of Daniel Wells and Catherine Chapin. Moved to Marietta, Washington Co., Ohio, ca. 1832. Moved to ...
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’s docket noted this was an “
Action of debt
An action in debt is a common-law remedy designed “for the recovery of a sum certain.” Debt is a “more extensive remedy for the recovery of money, than assumpsit or covenant, for it lies to recover money due upon legal liabilities, as for money lent, paid...
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bro[ugh]t on Book acc[oun]t” for $71.25.
3
Docket Entry, ca. 4–18 Dec. 1840 [Niswanger v. Greene]. Under Illinois law, justices of the peace had jurisdiction over suits to recover debts totaling less than $100. “Account, practice,” in Bouvier, Law Dictionary, 1:39; Mann, Neighbors and Strangers, 12; An Act concerning Justices of the Peace and Constables [3 Feb. 1827], Public and General Statute Laws of the State of Illinois [1839], p. 402, sec. 1.)
Bouvier, John. A Law Dictionary, Adapted to the Constitution and Laws of the United States of America, and of the Several States of the American Union; with References to the Civil and Other Systems of Foreign Law. 2 vols. Philadelphia: T. and J. W. Johnson, 1839.
Mann, Bruce H. Neighbors and Strangers: Law and Community in Early Connecticut. Chapel Hill: University of North Carolina Press, 1987.
A book account was a statement “showing the debits and credits between” parties that lacked explicit payment conditions or a due date, yet “created obligations for which the law implied a promise to pay.”
Niswanger
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and
Greene
3 Sept. 1793–10 Sept. 1844. Farmer, shoemaker, printer, publisher. Born at Herkimer, Herkimer Co., New York. Son of John Coddington Greene and Anna Chapman. Married first Rhoda Young, 11 Feb. 1813. Moved to Aurelius, Cayuga Co., New York, 1814; to Brownsville...
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appeared before Wells on 11 December and declared themselves ready for trial. Several witnesses provided testimony. During the proceedings, Greene presented the court an “order from J Smith for fifty Dollars as a sett off.” If accepted by the court, the order would reduce Greene’s debt from approximately $70 to $20.
4
Docket Entry, ca. 4–18 Dec. 1840 [Niswanger v. Greene]. Illinois law required parties in justice of the peace proceedings to “bring forward all . . . demands against the other” that could be consolidated. However, “debts to be set-off must be between the parties to the record,” meaning between Niswanger and Greene in this case. Furthermore, a defendant could not “introduce at the trial as a set-off, any note, bond, debt or claim against the plaintiff” that was purchased after the suit had commenced. (An Act concerning Justices of the Peace and Constables [3 Feb. 1827], Public and General Statute Laws of the State of Illinois [1839], p. 406, secs. 15–16; Cotton, Treatise on the Powers and Duties of Justices of the Peace in the State of Illinois, 407; “Set-off,” in American Dictionary [1828].)
An American Dictionary of the English Language: Intended to Exhibit, I. the Origin, Affinities and Primary Signification of English Words, as far as They Have Been Ascertained. . . . Edited by Noah Webster. New York: S. Converse, 1828.
The order must have caused some concern to Niswanger, as Wells adjourned the proceedings until 18 December to allow him time “to prepare himself for trial.” When court reconvened, Niswanger, through his counsel, “withdrew the suit at his own cost,” as the parties had reached an agreement.
5
The particulars of the agreement are not known.

Calendar of Documents

This calendar lists all known documents created by or for the court, whether extant or not. It does not include versions of documents created for other purposes, though those versions may be listed in footnotes. In certain cases, especially in cases concerning unpaid debts, the originating document (promissory note, invoice, etc.) is listed here. Note that documents in the calendar are grouped with their originating court. Where a version of a document was subsequently filed with another court, that version is listed under both courts.

1840 (5)
December (5)
Ca. 3 December 1840
Daniel H. Wells, Capias, for John P. Greene, Nauvoo, Hancock Co., IL
Ca. 3 Dec. 1840. Not extant.
1
See Docket Entry, ca. 4–18 Dec. 1840 [Niswanger v. Greene]. Illinois law required the plaintiff to support a request for a writ of capias ad respondendum with a statement made under oath that the defendant was likely to flee or abscond with the plaintiff’s property in order to avoid paying the debt. It is unknown whether William Niswanger made his sworn statement in writing. (An Act concerning Justices of the Peace and Constables [3 Feb. 1827], Public and General Statute Laws of the State of Illinois [1839], p. 403, sec. 4.)

4 December 1840
JS, Recognizance, Nauvoo, Hancock Co., IL
Ca. 3 Dec. 1840. Not extant.
1
See Docket Entry, ca. 4–18 Dec. 1840 [Niswanger v. Greene]. Under Illinois law, this document would have taken the form of a notation on the capias, with JS acknowledging himself “special bail” for Greene, and one or more securities would endorse it. The special bail notation had the same legal status as a recognizance, binding the defendant to pay the judgment, if rendered against him, or submit to imprisonment. (An Act concerning Justices of the Peace and Constables [3 Feb. 1827], Public and General Statute Laws of the State of Illinois [1839], p. 403–404, sec. 4.)

7 December 1840
Daniel H. Wells, Subpoena, to Lewis Robison, for David Dort, Nauvoo, Hancock Co., IL
7 Dec. 1840. Not extant.
1
See Docket Entry, ca. 4–18 Dec. 1840 [Niswanger v. Greene].

11 December 1840
JS, Pay Order, to John P. Greene, Nauvoo, Hancock Co., IL
11 Dec. 1840. Not extant.
1
See Docket Entry, ca. 4–18 Dec. 1840 [Niswanger v. Greene].

Ca. 4–18 December 1840
Docket Entry, Nauvoo, Hancock Co., IL
Ca. 4–18 Dec. 1840; Daniel H. Wells, Docket Book, 90, CHL; handwriting of Daniel H. Wells.

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Editorial Title
Introduction to Niswanger v. Greene
ID #
18694
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1
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Footnotes
[1]
Illinois law permitted Niswanger to swear under oath that he believed Greene was likely to flee or abscond with his property to avoid paying the debt. It is unknown if Niswanger’s oath was given in writing. An Act concerning Justices of the Peace and Constables [3 Feb. 1827], Public and General Statute Laws of the State of Illinois [1839], pp. 403–404, sec. 4; see also Cotton, Treatise on the Powers and Duties of Justices of the Peace in the State of Illinois, 368–372.
[2]
[3]
Docket Entry, ca. 4–18 Dec. 1840 [Niswanger v. Greene]. Under Illinois law, justices of the peace had jurisdiction over suits to recover debts totaling less than $100. “Account, practice,” in Bouvier, Law Dictionary, 1:39; Mann, Neighbors and Strangers, 12; An Act concerning Justices of the Peace and Constables [3 Feb. 1827], Public and General Statute Laws of the State of Illinois [1839], p. 402, sec. 1.)
Bouvier, John. A Law Dictionary, Adapted to the Constitution and Laws of the United States of America, and of the Several States of the American Union; with References to the Civil and Other Systems of Foreign Law. 2 vols. Philadelphia: T. and J. W. Johnson, 1839.
Mann, Bruce H. Neighbors and Strangers: Law and Community in Early Connecticut. Chapel Hill: University of North Carolina Press, 1987.
[4]
Docket Entry, ca. 4–18 Dec. 1840 [Niswanger v. Greene]. Illinois law required parties in justice of the peace proceedings to “bring forward all . . . demands against the other” that could be consolidated. However, “debts to be set-off must be between the parties to the record,” meaning between Niswanger and Greene in this case. Furthermore, a defendant could not “introduce at the trial as a set-off, any note, bond, debt or claim against the plaintiff” that was purchased after the suit had commenced. (An Act concerning Justices of the Peace and Constables [3 Feb. 1827], Public and General Statute Laws of the State of Illinois [1839], p. 406, secs. 15–16; Cotton, Treatise on the Powers and Duties of Justices of the Peace in the State of Illinois, 407; “Set-off,” in American Dictionary [1828].)
An American Dictionary of the English Language: Intended to Exhibit, I. the Origin, Affinities and Primary Signification of English Words, as far as They Have Been Ascertained. . . . Edited by Noah Webster. New York: S. Converse, 1828.
[5]