62 50 143 345 62 50 163 545 60a 346 Opinion of the Court. Syllabus. Statement of the case. this species of evidence, and the lamentable exhibitions of contradictory testimony to which it now every day gives rise in our courts of justice. As applicable to the facts of this case, we hold the last instruction to be erroneous. For error in giving the above instructions, the judgment must be reversed, and the cause remanded. Judgment reversed. MARTIN A. HOWELL, JR., et al. v. THE ALBANY CITY INSURANCE COMPANY.* 1. PRACTICE declaration before second term-dismissal. Where the plaintiff's summons was made returnable to the November term, 1870, of the Circuit Court, which was, in fact, served within ten days before that term, but no indorsement of service was made until Feb. 7 following, the commencement of the second term after suit brought, and the court dismissed the suit on motion of the defendant because no declaration had been filed ten days before the second term: Held, that the dismissal was proper. 2. RETURN OF SHERIFF-after expiration of office. A sheriff after the expiration of his term of office may amend or make a return of service of process duly performed by him while in office, when the service is recent. APPEAL from the Circuit Court of LaSalle County; the Hon. EDWIN S. LELAND, Judge, presiding. These several suits were brought by appellants in the Circuit Court of LaSalle County. The summons in each of the cases bore teste Oct. 1, 1870, and were returnable the first day of the next November term, held on the first Monday in November, 1870, or Nov. 7. Service was had on the 28th and 29th days of October. The remaining facts bearing upon the questions decided appear in the opinion. * Eleven other cases brought by the same appellants against various companies, are embraced in this opinion. Opinion of the Court. Messrs. RICE & BICKFORD, for the appellant. Messrs. DICKEY & BOYLE, for the appellees. Per CURIAM: The same question is presented in all the foregoing cases. Appellants commenced their several suits against the insurance companies, and had summons issued in each case, returnable to the November term, 1870. The cases were then in court; and though the record is silent as to what was done at the November term, the presumption is, from the subsequent proceedings, that they were continued by operation of law until the ensuing term. The next term after the term to which the summons was made returnable, was held on the 7th day of February, 1871. No declaration was filed, either at the November term, or ten days before the February term. Process was duly served upon appellees on the 28th and 29th of October, but the indorsement of service was not made until the 7th of February, at which time the term of the officer who performed the service had expired. At the February term, a motion was made on behalf of appellees, to dismiss the respective suits; and appellants made a cross-motion to quash the return of service. Section 11, of the Practice Act, provides: that if the plaintiff shall not file a declaration "ten days before the court at which the summons is made returnable," the court, on motion, shall continue the cause at the cost of the plaintiff; and it further provides: "if no declaration shall be filed ten days before the second term of the court, the defendant shall be entitled to a judgment, as in case of a non suit." When the above motions were made, no declaration had been filed in either of the cases. Such Under the facts, it was the manifest duty of appellants to file their declarations ten days before the February term. is the fair construction and plain requirement of the statute. Their omission to do so, by operation of law, must result in a judgment against them. They knew the term at which the Opinion of the Court. Syllabus. summons was made returnable, and should have guarded against the consequences of their negligence. There was no error, therefore, in the dismissal of the suits. The court also acted rightly in not quashing the return of the officer. The duty was performed-the service was in fact made-while he was sheriff. The return is merely the evidence of service. The service is the act; the return is the proof of it. After the expiration of the term, an officer may amend or make a return of service, which had been duly performed while in office, when the service has been so recent as in this case. To this there can be no possible objection. A contrary rule might work serious injury. The judgment of the court in the several cases is affirmed. 1. CONTRACT--construction. In construing contracts and written agreements, the whole context should be considered, and the intention of the parties ascertained from it, and not from extrinsic evidence. 2. SAME—whether joint contractor or surety. Where a contract for the building of a house described A as principal, and B and C as sureties, who were not again named in the instrument, and in fixing the terms and conditions, reference was made to the party of the first part, and to the party of the second part, without naming the persons; and in referring to the party of the first part, the singular pronouns "he" and "him" were used, and the principal signed first with the other two under his name at the usual place, and the word "contractors" was written opposite their names: Held, that A was the contractor, and that B and C were only sureties; and that the word "contractors," after their names, should not control the manifest intention of the parties appearing in the body of the contract. 3. Had the word "as" not been employed, there might have been some plausibility in urging that the word "sureties" was only descriptive of the Syllabus. Opinion of the Court. person. But when the parties are described " as sureties," this renders their character of sureties clear beyond doubt. 4. CONTRACT OF SURETY-strictly construed. The contract of a surety is strictly construed, and his liability is never extended beyond the terms of his agreement, or at least its manifest purport. In case of doubt, the doubt is generally, if not universally, solved in his favor. 5. Where A undertook to build a school house, and entered into a written agreement therefor to the school directors, with B and C as sureties for his performance, and A employed the plaintiff to assist him in the work, B and C having nothing whatever to do in the hiring or prosecution of the work, and after the completion of the work, plaintiff settled with A, when there was found to be due the plaintiff $59.50 for work, and $25 for money loaned to pay other hands employed on the work: Held, that B and C were not liable to the plaintiff for the sums found to be due him, as they were not joint contractors with A. 6. EVIDENCE. In such case it was error to refuse to permit B to testify that he and C had nothing to do with the hiring of the plaintiff or any other workmen on the house, and that they did not authorize A to employ plaintiff or any other person, and that they had no interest in the contract except as sureties for A. While such proof was perhaps not necessary, yet it was proper as tending to show they were not liable. APPEAL from the Circuit Court of McHenry County; the Hon. THEODORE D. MURPHY, Judge, presiding. The opinion of the Court contains a sufficient statement of the case. Messrs. JOSLYN & SLAVIN, for the appellants. Mr. A. B. COON, for the appellee. Mr. JUSTICE WALKER delivered the opinion of the Court: This was a suit originally brought by appellee before a justice of the peace against appellants, to recover for money loaned and work and labor performed. A trial was had before the justice, resulting in a judgment against appellants, whereupon they removed the case to the circuit court, where a trial was had with a similar result; and the record is brought to this court on appeal and a reversal asked on several grounds. The testimony shows that appellee was employed by Marenus Opinion of the Court. P. Stull to work as a carpenter in the erection of a school house on the first of August, 1868, and he worked until July, 1869. He testifies that, being fearful that Stull, by whom he was employed, would not pay him, he quit work on the first of April, 1869, and informed one of the school directors of the fact, who told him to go on and work as before, and get all the pay he could and the district would pay the balance. He went to work, as before, under Stull, who superintended the work. After it was completed he had a settlement with Stull, and he testifies there was due him for work $59.50, and $25 for money loaned Stull with which to pay the hands at work on the school house. He also testifies that he looked alone to M. P. Stull for payment, who had employed him, until he quit and went again to work; that the other appellants had nothing whatever to do with hiring him, nor did he look to them for payment, as he did not know they had any thing to do with building the house; that he then knew that they were responsible. On this evidence, alone, no one would suppose that they were liable. But it is sought to charge them by reason of an agreement entered into by M. P. Stull to erect the school house, and which they executed with him. The agreement describes M. P. Stull as principal and the others as sureties, and they are no more named in the body of the contract. In fixing the terms and conditions of the agreement, the instrument refers to the party of the first part and to the party of the second part, without naming the persons. But it is manifest that the parties only intended to treat M. P. Stull as the contractor, because they in several places in the agreement refer to the party of the first part, and in doing so use the singular pronouns "he" and "him.” The contract by its terms treats M. P. Stull, in clear and unmistakable terms, as the contractor, and has no reference to the other appellants except as sureties. Again, they are described as sureties. This designates their relation to the contract in clear and unmistakable terms. It renders their character of sureties clear beyond doubt. Had the word "as" not been employed, then there might have been some plausibility |