Citations
- 50 Ill. App. 461
Full opinion text
Opinion of the Court,
Gary, P. J.
In its most important feature, this case resembles Magner v. Trumbull, 33 Ill. App. 646. The appellee sued the appellant in assumpsit upon two promissory notes, and the question for us is, whether the court erred in overruling demurrers to replications to special pleas. We copy from the abstract the pleas, replications and demurrers.
“ Plea of the general issue, with affidavit of merits to the whole of plaintiff’s demand.
2d plea. That the supposed notes in the first and second counts mentioned were at the time of the execution thereof by the defendant, delivered to said Leyser, as an accommodation merely and without consideration passing to the defendant, whereof the plaintiff had notice; that said notes were received by said plaintiff from said Leyser without any good or valuable consideration moving from plaintiff to Leyser or to the defendant, and so the defendant says that the notes and the transfers thereof were made without any good and valuable consideration, and this the defendant will verify.
3d plea. That the notes in the .first and second counts mentioned, were, at the time of the execution thereof by the defendant, delivered to said Leyser, without any consideration passing to the defendant, whereof the plaintiff had notice, and so the defendant says that said notes were made without any good and valuable consideration, and this the defendant will verify.
Eeplication to second plea: That said notes were not made and delivered to said Leyser as accommodation merely, and without any consideration passing to the defendant, and that the plaintiff did not have notice thereof, and that it is not true that the transfer of said notes from said Leyser to the plaintiff, was without any good and valuable consideration, and of this the plaintiff puts itself upon the country.
Eeplication to third plea: That said promissory notes were not made by the defendant and delivered to said Leyser without any consideration passing to the defendant, and that the plaintiff did not have notice thereof, and of this the plaintiff puts itself upon the country.
General and special demurrer to replication to second plea.
1. Special cause. Said replication is double, in that it undertakes to traverse in one and the same replication, the three material and essential allegations of said plea, to wit:
a. . That the notes in said declaration mentioned were by the defendant, at the time of the execution thereof, delivered to said Leyser as an accommodation merely, and without any consideration to the defendant.
b. That the plaintiff had notice of the foregoing.
g. That the transfer of said notes from said Leyser to the plaintiff was without any good and valuable consideration.
Each of said allegations should have been traversed in and by a separate and distinct replication.
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