It is unnecessary to look through the evidence, as reported in the bill of exceptions, to see whether a new trial should have been granted or not. The judgment must be reversed, with costs, and the cause remanded, and a venire de novo awarded. Judgment reversed.

WILSON, C. J., and YOUNG and LOCKWOOD, JJ., did not sit.

Merger of Debt in JudgmenT RECOVERED THEREFOR: See Napier v. Gadiere, 40 Am. Dec. 613, and cases cited in the note thereto. To the effect that a judgment against one or more joint obligors or promisors is a bar to another action upon the same contract against the same or other parties, the principal case is cited in Moore v. Rogers, 19 Ill. 348; Mitchell v. Brewster, 28 Id. 167; People v. Harrison, 82 Id. 86.

FORMER RECOVERY AGAINST ONE PARTNER for a firm debt merges it, and is a bar to a subsequent action against the firm or other partners: Smith v. Black, 11 Am. Dec. 686; Moale v. Hollins, 33 Id. 684, and cases cited in the note thereto. And see, generally, as to the effect of a former recovery in a subsequent action involving additional parties, the note to Lawrence v. Hunt, 25 Id. 543. The precise question involved in the principal case came up in Thompson v. Emmert, 15 Ill. 416, and the court referred to the principal case and followed it.

FORMER RECOVERY ADMISSIBLE WHEN Under GeneraL ISSUE: See Eastman v. Cooper, 26 Am. Dec. 600, and the note thereto, collecting the previous cases in this series. See also Gilchrist v. Bale, 34 Id. 469; Young v. Rummell, 38 Id. 594; King v. Chase, 41 Id. 675, and notes.

THE PRINCIPAL CASE WAS CITED as supporting the position that if a bond be given for a simple contract debt, the latter is lost in the former, the specialty being the higher security, in Walsh v. Lennon, 98 Ill. 34; and to the effect that in actions ex contractu against several, the plaintiff, to entitle himself to recover, must prove a promise as to all of the defendants, and is not permitted to take judgment against part and enter nolle prosequi as to the rest, unless a defense personal to them is interposed: Benjamin v. McConnell, 4 Gilm. 545.

CROWELL v. MAUGHS.

[2 GILMAN, 419.]

CHANGE OF VENUE CAN BE APPLIED FOR ONLY BY PARTY to the record, under the Illinois statute, and it is not error to deny an application for a change of venue in an action of ejectment made by a third person claiming to be a trustee of the real owner, of whom the defendant on the record is only a tenant.

DISPUTED BOUNDARY MAY BE SETTLED BY PAROL AGREEMENT between adjacent proprietors, and by possession in accordance therewith; but this principle does not apply where such an agreement is made by adjacent occupants of public lands, except so far as their temporary occupancy is concerned, since they are mere tenants at sufferance, and they are not bound by the agreement after the title passes out of the government, nor is it admissible in evidence in an action of ejectment between them.

EJECTMENT. Verdict and judgment for the plaintiff, and the defendant appealed. The case appears from the opinion.

C. S. Hempstead, E. B. Washburne, and J. B. Wells, for the appellant.

S. T. Logan and T. Campbell, for the appellee.

By Court, TREAT, J. This was an action of ejectment commenced in the Jo Daviess circuit court, by Maughs against Crowell, for the recovery of lot 31, in the city of Galena. On the calling of the cause for trial, James Bennett presented a petition praying for a change of venue out of the circuit, on account of the prejudice of the judge. The petition alleged that Crowell was in the possession of the premises in question under a lease made by the petitioner, as the trustee of James Bennett, jun., the real owner. The court denied the application, to which the defendant excepted. The cause was then submitted to a jury for trial. After the plaintiff had shown title to the premises, by virtue of a purchase from the United States in 1838, the defendant offered to prove, that in 1835, the plaintiff and James Bennett being the occupants and claimants of adjoining lots, by a parol agreement, established a line between them, which was thereafter to be the boundary; that subsequently, Bennett built a house on his lot directly up to the line, which house was on the premises in dispute; and that the plaintiff, from the time the line was agreed on, had acquiesced in the same. This evidence was objected to by the plaintiff, and excluded by the court; to which decision the defendant excepted. The jury found a verdict for the plaintiff, and judgment was rendered thereon.

Crowell prosecutes an appeal, and assigns for error, the decision of the circuit overruling the motion for a change of venue. There was no error in that decision. The application was not made by the defendant, but by a third person representing himself to be the trustee of an alleged owner of the premises in controversy. Our statute only authorizes the parties to obtain a change of venue. The application must be made by a party to the record, and the petition must be verified by his affidavit. The statute does not include persons out of the record, nor allow them to swear to the petition as agents or otherwise. It is to be feared that this statute has been frequently perverted, to the great detriment of suitors, and its provisions ought not to be extended by implication, so as to embrace persons not specifically named therein. Any other construction would lead to

much inconvenience and mischief. A decision, that this application was properly made, would lay down the rule that any person, who alleged that his rights were to be affected by the determination of the case, might interfere and obtain a change of venue.

The decision of the circuit court excluding the evidence offered by Crowell, is also assigned for error. It is a familiar doctrine of the law, that the title to real estate can not be transferred by parol. It is equally forbidden by the principles of the common law, and the express provisions of the statute of frauds. It is settled, however, that the proprietors of adjoining tracts of land may, by a parol agreement, settle a disputed boundary line between them. Such an adjustment of the boundary, if followed by corresponding possession, may be binding on the parties, not because it passes title, but because it determines the location where the estate of each is supposed to exist: Jackson v. Dysling, 2 Cai. 198; Kip v. Norton, 12 Wend. 127 [27 Am. Dec. 120]. It is insisted by the counsel for the appellant, that this principle is applicable to the present case. We think otherwise. At the time the agreement was made, the premises were the exclusive property of the United States. Neither of the parties had any title. They were mere tenants at sufferance, incapable of making any binding agreement respecting the lots, but what related to their temporary possession. The agreement, ex necessitate, could not extend beyond the mere occupancy. It was inoperative as against the proprietor, and ceased to be binding on the parties the moment the title passed out of the government. On the purchase of the premises by Maughs, he succeeded to the whole legal estate, unaffected by any previous parol agreement respecting the possession. The judgment of the circuit court is affirmed, with costs.

Judgment affirmed.

WILSON, C. J., did not sit.

ESTABLISHMENT OF BOUNDARY BY PAROL AGREEMENT OR ACQUIESCENCE: See Nichol v. Lytle's Lessee, 26 Am. Dec. 640; Kip v. Norton, 27 Id. 120; Smith v. Hosmer, 28 Id. 354; Beecher v. Parmele, 31 Id. 633; Jackson v. McConneu, 32 Id. 439; Crowell v. Bebee, 33 Id. 172; Brewer v. Boston etc. R. R. Co., 39 Id. 694, and other cases cited in the notes to those decisions.

The principal case was cited, to the effect that where adjoining owners agree upon the boundary lines, and enter into possession and improve the lands according to the line thus agreed upon, they will be concluded from afterwards disputing that the line thus agreed on is the true one, in McNamara v. Seaton, 82 Ill. 500; Bauer v. Gottmanhausen, 65 Id. 504; Kubbard v. Stearns, 86 Id. 38; Cutler v. Callison, 72 Id. 114.

APPLICATION FOR Change of Venue MUST BE MADE BY PARTY to the record, and can not be made by an agent. The principal case on this point was cited with approval in Commercial Ins. Co. v. Mehlman, 48 Ill. 316, but distinguished from the case under discussion, as there the application was filed by a corporation which must, of necessity, act by agents.

MCKINNEY V. PEOPLE.

[2 GILMAN, 540.]

RECORD IN CRIMINAL Case NeeD ONLY SHOW, in order to support the judg. ment of the court below, the time and place of holding court, the indictment properly indorsed as found by the grand jury, the arraignment, plea, impaneling of the jury, verdict, and judgment. Beyond this, the prisoner wishing to take advantage of the overruling of motions, etc., in the progress of the trial, must preserve the facts by special entry on the record, or by bill of exceptions.

NAMES OF WITNESSES NOT APPEARING INDORSED ON INDICTMENT, in the record of a conviction in a capital case, where no motion in regard to it appears to have been made, is no ground of reversal, as the presumption is, that the names were so indorsed, and if not, it is an irregularity which is waived by pleading to the indictment without objection. PRISONER CHARGED WITH FELONY MAY DEMAND COPY OF INDICTMENT, on arraignment, and the refusal of it, if preserved by bill of exceptions, is error, but the right is waived by pleading and going to trial without objection. CONTINUANCE OF CAUSE FROM SPECIAL TERM OVER REGULAR TFRM, at the prisoner's request, in a criminal case, is not error of which he can complain. PRISONER CAN NOT COMPLAIN OF ERROR NOT INJURIOUS to him, in a capital case, such as the irregular appointment of a special term of court, at which no action was had prejudicial to him.

JURY MUST BE KEPT TOGETHER IN CAPITAL Case, but SILENCE OF RECORD on that point affords no presumption that they were not so kept, but the contrary, and if the jury were allowed to separate, without the prisoner's consent, he must show that fact by bill of exceptions, in order to reverse a judgment against him.

SEPARATION OF JURY, IN CRIMINAL CASE, Is Ground of NEW TRIAL, unless

it was with the prisoner's consent, or through misapprehension, accident, or mistake, on the part of the jury, and could by no possibility have injured the prisoner.

OMISSION TO Swear Officer tO TAKE CHARGE OF JURY, in a criminal case, if not objected to and preserved by bill of exceptions, is no ground for reversing a conviction, as the presumption will be, if the record is silent, that the court did its duty.

SWEARING JURY AND WITNESSES BY UPLIFTED HAND, AND NOT ON THE GosPELS, is no ground of reversal, in a criminal case, if not objected to until after verdict.

ANY MODE OF SWEARING WITNESS WHICH HE BELIEVES BINDING on his conscience, is good at common law, and it seems that, un ler the Illinois statute, if he swears by the uplifted hand, and not on the gospels, he will be presumed to have elected to do so.

AX. DEC. VOL. XLIII-5

INDICTMENT for murder. Judgment of conviction, and the defendant brought error. The case appears from the opinion.

C. Gilman and J. B. Wells, for the plaintiff in error.

J. A. McDougall, attorney general, for the people.

By Court, LOCKWOOD, J. At the October term of the Rock Island circuit court, in the year of 1843, William McKinney was jointly indicted with George Blaylock and Isaac McKinney, for the murder of Edmund A. Philleo, and the indictment was indorsed "a true bill," and signed by the foreman, which, as far as the record shows, was the only indorsement thereon. A motion was made to quash the indictment, but it does not appear that any reasons were filed, or that any disposition was made of the motion. The defendants were arraigned, and furnished with a copy of the indictment, and a list of the jurors and witnesses, and pleaded "not guilty," and at the same term a jury was impaneled, but could not agree on a verdict; and they were discharged by the consent of the prisoners and the attorney for the people. The cause was then continued to the May term, 1844, when another trial was had, but the jury could not agree, and they were again discharged by like consent. The cause was then continued to a special term of said court, appointed to be held on the second Monday of July, 1844. At this term no jury could be obtained, and the cause was again continued to a second special term, ordered to be held on the fifth Monday of September, 1844. At the September special term aforesaid, the prisoners filed their affidavit for a continuance to the May term, 1845, and the court granted the same, and ordered the cause to be continued to that term.

At the May term, 1845, a jury was impaneled for the trial of William McKinney alone, and after hearing a portion of the evidence, the court took a recess until the next morning, when the prisoner being again brought into court, the remainder of the evidence and arguments of counsel were heard, and the cause submitted to the jury, who retired to consider their verdict, and afterwards returned into court with a verdict of "guilty" against the prisoner, William McKinney. The prisoner then entered a motion in arrest of judgment, and for a new trial, which motions were overruled, and sentence of death pronounced on the prisoner.

The following bill of exceptions appears in the record, to wit: "Be it remembered, that on the trial of this cause, and after the jury had returned into court with their verdict, the de