Safford v. Miller

Citations

• 59 Ill. 205

Syllabus

<p>1. Demurrer—carried hack.- It is a general rule, that, upon demurrer, the court should, notwithstanding the defect of the pleading demurred to, give judgment against the party whose pleading was first defective in substance.</p> <p>3. Plea—traversing conclusion of law. A plea is had which is a traverse of a mere conclusion of law.</p> <p>3. Pleading—declaration on penal bond. In actions brought on penal bonds, conditioned for the performance of covenants, the statute requires the obligee to assign breaches; and though the action he debt, yet, in respect to the assignment of breaches, it is assimilated to the action of covenant, and governed by the same rules. Each assignment of breaches is regarded as a declaration, and to he pleaded to as such.</p> <p>4. Same—in an action upon a covenant to two, jointly—of an assignment of a breach for damages to one. In an action by two obligees, upon a bond for the performance of covenants wherein the legal interest of the obligees is joint, a count, or assignment of breaches, for particular damages resulting to one of the plaintiffs individually, is had in substance.</p> <p>5. So, where an injunction bond recited that the principal obligor had obtained an injunction restraining A and B from the further prosecution of certain suits at law, commenced respectively by the said A and B, and conditioned “ that if the obligor shall pay, or cause to be paid, to the said A and B all such damages as they may sustain by reason of the issuing of said injunction, and also such costs and damages as may he awarded against the said obligor by the court in case the said injunction herein shall be dissolved, then, ” etc., it was held, in an action on the bond by A and B, the hill having been dismissed, that a breach in the declaration, claiming damages resulting to one of the plaintiffs alone, by reason of being deprived, by means of the injunction, of the possession and the enjoyment of the rents and profits of certain premises owned by him,