Bailey v. Valley National Bank

Citations

• 127 Ill. 332
• 19 N.E. 695

Syllabus

<p>1. Attachment—in aid—personal service in the suit, as obviating necessity of serving the writ of attachment. In case of an attachment brought in aid of an action of assumpsit, where there has been service of the summons in the original suit, service of the writ of attachment upon the defendant is not necessary in order to give the court jurisdiction, either of the person of the defendant, or of his estate seized under the writ. Being in court, the defendant is required to take notice of the subsequent steps in the suit.</p> <p>2. Same—amendment of affidavit and bond. A motion to strike from the files an affidavit in attachment and the bond, and to quash the writ, will be overruled, if the plaintiff, by leave of court, files an amended affidavit, setting forth the nature and amount of the indebtedness, and sufficient grounds for the writ, and a sufficient amended bond. Such amendments are fully authorized by section 28 of the Attachment act.</p> <p>3. Pleading—pbactice—notice of defense, instead of a special plea— under what state of pleading—sufficiency of the notice, how questioned. Under section 28 of the Practice act, matters of fact constituting a legal defense to the action, instead of being set forth, as at common law, by special plea, may be stated in a notice under the general issue, and evidence of such facts given on the trial, with like effect as if the same had been specially pleaded. No reply, either of admission or denial of the plaintiff, is required or permitted. No issue of law or fact can be ' raised thereon.</p> <p>4. If the facts stated in the notice are immaterial, the plaintiff can not demur, and thus raise and determine their sufficiency as a defense. All such notice can do is to relieve the defendant of the necessity of pleading specially any facts not provable under the general issue, and to introduce evidence in their support, if material and explicitly stated, as if the same had been specially pleaded. The court, on the trial, must dete