Wann v. McGoon , 3 Ill. 74 ( 1839 )

Smith, Justice,

delivered the opinion of the Court :

Two grounds of error have been assigned in this case, which it is necessary to notice particularly. The second and fourth being evidently no grounds of error. It appears by the record that after the plaintiff’s demurrer to the 2d, 3d, 4th, and 5th pleas, had been sustained, the defendant asked leave to plead over, and did actually file six new pleas ; he therefore has no right now to question the decision on the demurrer. On the fourth ground he is equally unfortunate. After demurring to the plaintiff’s replications, he filed a general rejoinder to the replications, and thereby virtually waived and withdrew his demurrers ; and no question can be now made as to the sufficiency of the replications. The first error assigned is that the Municipal Court erred in not dismissing the suit on the motion of the defendant in the Court below ; the second that the Court erred in sustaining the demurrers to the 2d and 5th pleas of the defendant, Wann, secondly pleaded. On the first exception I am inclined to the opinion that although the Municipal Court discharged the defendant from his liability on the special bail bond, on filing common bail, and thus virtually from the arrest, it did not err in refusing to dismiss the suit. The capias stood in the nature of a summons ; and the arrest being equivalent to a service of it, he was bound to appear and answer the declaration. As regards the 2d and 5ih pleas, I perceive no objection to the decision. The second plea is radically defective in not describing the real estate specially and certainly which the plea charges the plaintiff, McGoon, represented himself the. owner of. Its precise locality should have been given, so that the plaintiff might know certainly what lands he was charged with having misrepresented, and for the sale of which the note sued on is alleged to have been the consideration. As the plea stands, from its entire general character, it would have enabled the defendant to have given evidence of any lands situated in the county of Iowa, in Wiskonsin Territory, and in Jo Daviess county in this State; and of this the plaintiff could have no knowledge until the evidence was produced. The surprise that this would have produced on the plaintiff, can be as well imagined as its injustice ttfould be apparent.

The plaintiff was entitled to an accurate description of the identical lands, and the defendant having it entirely in his power to afford this description, should have set it out in his plea ; not having done so, the plea is bad. As to the 5th plea, it is bad for duplicity. It affirms that the plaintiff had no good and indefeasible estate in the lands of which he represented himself seized ; and afterwards avers that he had a wife who was entitled to dower out of the estate in the lands of which the plaintiff was seized, contrary to his representation that he bad no wife in being. These are certainly inconsistent allegations. The plea is manifestly bad, being double. There was no error, then, in sustaining the demurrer. I am of opinion that the judgment should be affirmed with costs.

Judgment affirmed.