Beesley v. Hamilton

Citations

• 50 Ill. 88

Syllabus

<p>1. Practice—going to trial without issue joined. Where a demurrer was interposed and sustained to a portion of several special pleas, the others remaining unanswered, and the parties go to trial before the court without a jury, it will be presumed that all evidence properly admissible under the unanswered pleas, was heard precisely as if issues had been formed upon them.</p> <p>2. Pleading—of a defense as to one, and not as to all. A plea is defective that is not good as a defense for all who interpose it, and if defective in part, it must be held defective in the whole.</p> <p>3. So, in an action upon a promissory note, against two as principals, and another as surety, matters of defense, aifecting the surety only, should be pleaded alone by him.</p> <p>4. Principal and surety—of a defense as to the latter. Where the payee of a note procured a party to sign the note as surety, upon the promise fraudulently made, that he would procure another person also to sign the note as surety, such fact would not constitute a defense in behalf of the principal makers of the note, but if a defense at all, it would be personal to the surety, who alone could plead it.</p> <p>B. Judgment’on demurrer—its extent. Where there was a demurrer to a portion of several special pleas, which designated specifically the pleas which were demurred to, an entry by the clerk which states that the demurrer was sustained to defendant’s special pleas, without other designation, will be understood as no more comprehensive than the demurrer, and will be held to be a judgment upon the special pleas to which the demurrer specifically referred, and none other.</p>