Mark Beaubien, appellant v. John M. Barbour, appellee, 1 Scam. 386

Smith, Justice, delivered the opinion of the Court: In this case it is assigned for error that the process was not tested in the name of a Circuit judge of this State, nor of any clerk of any Circuit Court. On inspection of the process, it appears to be tested in the name of Thomas Ford, judge of the Circuit Court of Cook county. This Court must presume this test to be true, until the contrary appears. If the individual was not judge of that Court, at the time of the emanation of the writ, this would be a fact to have been shown by evidence.

The misconception of counsel, in assigning here an error in fact, for a supposed error in law, is not only irregular, but unavailing. If there had been an erroneous test, the defendant might, by motion in the Court below, have availed himself of the objection; but the record, we apprehend, cannot now be contradicted. Besides the acts of the last session of the legislature have provided for the cases of the irregular tests of writs of the land here supposed, and legalized them. The judgment is affirmed with costs. Judgment affirmed. Acts of July 1837, 51; Gale’s Stat. 194.