Hall v. Augustine Byrne & Co.

• Decision Date: 31 December 1834
• Citation: 2 Ill. 140,1 Scam. 140,1834 WL 2588
• Court: Illinois Supreme Court
• Parties: PHINEAS C. HALL and SAMUEL B. HALL, plaintiffs in error,v.AUGUSTINE BYRNE & CO., defendants in error.

1 Scam. 140

2 Ill. 140

1834 WL 2588 (Ill.)

PHINEAS C. HALL and SAMUEL B. HALL, plaintiffs in error,

v.AUGUSTINE BYRNE & CO., defendants in error.

Supreme Court of Illinois.

December Term, 1834.

THIS was a scire facias brought to foreclose a mortgage. The consideration expressed in the mortgage is one dollar in hand paid by the mortgagee; and in the defeasance reciting that James Hall, Jr., is indebted to the mortgagee by note due the 1st of May, 1827, in the sum of $997.74.

The defendants below pleaded three pleas: 1. A want of consideration; 2. A failure of consideration; and 3. A part failure of consideration.

To each of these pleas the plaintiffs below filed a general demurrer, and the Court sustained the demurrer and gave judgment for the plaintiffs below.

The cause was decided at the April term, 1834, of the Jackson Circuit Court by the Hon. Thomas C. Browne.

W. J. GATEWOOD and W. B. SCATES, for the plaintiffs in error.

If an action at law be commenced upon any note, bond, bill or other instrument in writing for the payment of money or property or the performance of covenants or conditions by the obligee or payee thereof, and there was no consideration, or it has in the whole or in part failed, it may be pleaded and judgment shall be given for the defendant according to the fact. R. L. 482, § 5. (Gale's Stat. 526.)

It is laid down that at common law six things should concur to make a good and valid contract, the fourth of which is that there be a good and sufficient consideration or quid pro quo; this had relation to parol contracts or agreements. Comyn on Cont. 2, 7, 8, 9, 13; Chit. on Cont. 2-16, and authorities there cited; 2 Blac. Com. 442-445, at notes 8, 9, 10; 3 Bos. & Pul. 294, note; Carson v. Clark, decided Dec. term, 1823. 2 Ill. 113.

In Pillans v. Van Mierop it was held that there could not be a nudum pactum in writing. Comyn on Cont. 7; 3 Burr?? 1671.

This doctrine was overruled in the case of Mary Hughes' Exrs. v. Isabella Hughes' Admrx., 7 Term R. 350 n. a.; 7 Bro. Parl. Cas. 551, S. C., where it was held that in all contracts, whether they be in writing or not, if they be not specialties a consideration must be proved. Comyn on Cont. 8, and note 4, 9, and note 5; 2 Kent Com. 463-468.

But our statute has placed specialties on the same footing with simple contracts at common law, if a plea of a want or failure, or part failure of consideration, be pleaded. R. L. 483, § 5.

A scire facias (except in some few cases) is a new action. 3 Saund. 71, note 4. It commands the sheriff that by good and lawful men he make known, etc.; and the sheriff's return is, that by good and lawful men, naming them, he made known, etc. Id. 617, 70.

It has been decided not to be amendable. 2 Tidd Pr. 1037; and the scire facias by our statute is substituted in the place of a declaration. R. L. 486, § 43. (Gale's Stat. 529.) Consequently, it must possess all the requisites of form and substance of a good declaration. Before the statute, any defect in these, or the sheriff's return, must have been objected to by motion to quash. 2 Tidd Pr. 1037; but since the statute, it is in the nature of a declaration, and not a summons; the objection is not in abatement by motion to quash, but by plea or demurrer. The demurrer opens the whole of the pleadings, and although the pleas may be defective, yet the Court may look into the scire facias, and if it be defective, give judgment against the plaintiffs. 1 Chit. Pl. 647.

A. F. GRANT and H. EDDY, for the defendants in error.

LOCKWOOD, Justice, delivered the opinion of the Court:

This was a scire facias brought on a mortgage of land, to sell the premises under the 18th section of the act entitled, “ An act concerning judgments and executions.” (R. L. 376; Gale's Stat. 393.) To the scire facias the defendants below pleaded three pleas, to wit: 1st. That there was no consideration for executing the mortgage; 2d. A failure of consideration; 3d. A part failure of consideration. To these pleas the plaintiffs below demurred, and the Circuit Court sustained the demurrer, and gave judgment for the amount due on the mortgage, and that the lands mentioned therein be sold to satisfy the same. To reverse this judgment a writ of error has been brought to this Court, and the only error assigned is, that the Circuit Court erred in sustaining the demurrer to these pleas. To support this assignment, the counsel for the plaintiffs in error rely on the 5th section of the “ Act relative to promissory notes, bonds, due bills, and other instruments in writing (R. L. 483; Gale's Stat. 526,) and making them assignable.” This section provides that “In any action commenced or to be commenced in any court of law in this State, upon any note, bond, bill, or other instrument in writing for the payment of money or property, or the performance of covenants or conditions, by the obligee or payee thereof, if such note, bond, bill, or instrument in writing was made or entered into without a good or valuable consideration; or if the consideration upon which such note, bond, bill, or instrument in writing, was made or entered into, has wholly or in...