Manny v. William H. Rixford.
| Decision Date | 30 April 1867 |
| Citation | 1867 WL 5113,44 Ill. 129 |
| Parties | MARY MANNYv.WILLIAM H. RIXFORD. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Circuit Court of Winnebago county; the Hon. BENJ. R. SHELDON, Judge, presiding.
The facts are sufficiently stated in the opinion of the court.
Messrs. LATHROP & BAILEY, for the appellant.
Mr. CYRUS F. MILLER, for the appellee.
This record presents this case: On the 11th of February, 1865, appellee was united in marriage to Mary E. Rixford, he having a few days previously enlisted into the army of the United States, receiving thereon a bounty of four hundred dollars. On the 21st of February, Mary E., his wife, loaned of this money three hundred and sixty-five dollars, with interest, at ten per cent, and payable on demand, to appellant, for which she executed her note to Mary E. Rixford.
The declaration was in assumpsit, counting on this note, and the common counts were added.
The defendant demurred to the first count of the declaration, assigning, for cause, that the plaintiff was not a party to the promise, and it was not shown he had any interest in the same. The demurrer was overruled, and thereupon the defendant pleaded the general issue, and five special pleas to the first count, setting up, substantially, that the note was her separate property, and that she was living separate and apart from her husband, conducting her own business, and that the consideration of the note was received from Mary E. Rixford, as her separate property, and the note was made and delivered to her as her separate property.
The sixth special plea alleged, in substance, that the note was made for money loaned of Mary E. Rixford, which money she had received in good faith from some person other than the plaintiff, and that the note was her sole and separate property, and not the property of the plaintiff.
To each of these special pleas there was a special demurrer, assigning, for cause, that they amount to the general issue, and are not responsive to the declaration.
The court sustained the demurrer, on the ground that the general issue having been pleaded, the matter of the special pleas could be given in evidence under that plea.
There was a trial by jury, and a verdict for plaintiff for three hundred and twenty dollars, the balance due upon the note. A motion for a new trial was overruled, and judgment rendered on the verdict.
To reverse this judgment the defendant brings the case here by appeal, and assigns several errors, the most important of which will be noticed.
As preliminary, we have to say, that the objection taken to the proceedings of the court, to compel the production of the note as evidence in the cause, does not involve in any degree the merits of the controversy, for the question was still before the jury as to the ownership of the note.
No point is made in appellant's brief on the first error assigned, which was, in sustaining the demurrer to her special pleas and striking them from the files. The ruling of the court was correct in this particular, for the matter of those pleas could be given in evidence under the general issue, and were inquired into on the trial, as the record shows. The main controversy arises upon the instructions given for the appellee and in refusing the seventh and last instruction asked by the appellant. They involve the whole merits of the case, and to them we have directed our attention.
The plaintiff's instructions were as follows;
“That a note made payable to a married woman is, in law, payable to her husband, and that he is entitled to sue in his own name and recover upon it, unless the consideration for said note was for money or property, either personal or real, belonging to her as her sole and separate property before or at the time of her marriage; or for money or property which she has acquired in good faith since her marriage from some person other than her husband, by descent, devise or otherwise, or for rents, issues or profits thereof.
That, if the jury believe, from the evidence, that the note in question was given for money loaned to defendant, and that the money so loaned to defendant was, while belonging to the plaintiff,...
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