Mitchell v. Brewster
| Decision Date | 30 April 1862 |
| Citation | 18 Peck 163,1862 WL 3282,28 Ill. 163 |
| Parties | JAMES MITCHELL et al., Plaintiffs in Error,v.JOHN K. BREWSTER, and JOSEPH M. BREWSTER, Defendants in Error. |
| Court | Illinois Supreme Court |
28 Ill. 163
1862 WL 3282 (Ill.)
18 Peck (IL) 163
JAMES MITCHELL et al., Plaintiffs in Error,
v.
JOHN K. BREWSTER, and JOSEPH M. BREWSTER, Defendants in Error.
Supreme Court of Illinois.
April Term, 1862.
A judgment against one of several makers of a note without process against the others, releases those who are not sued.
THIS was an action of assumpsit, brought by the plaintiffs in error, in the Stephenson Circuit Court, to recover the amount of two promissory notes, executed by defendants in error. The declaration was in the usual form; the notes declared on were as follows:
+-----------------------------------------------+
¦ [28 Ill. 164]
“$1,000.¦FREEPORT, ILL., May 30, 1859.¦
+-----------------------------------------------+
Thirty days after date, for value received, we promise to pay James Mitchell & Co., or order, one thousand dollars, with ten per cent. interest after due, for money loaned. Payable at Stephenson County Bank.
J. K. BREWSTER,
By J. M. BREWSTER.
J. M. BREWSTER, Security.”
+------------------------------------+
¦“$312.¦FREEPORT, ILL., June 2, 1859.¦
+------------------------------------+
Thirty days after date, for value received, we promise to pay James Mitchell & Co., or order, three hundred and twelve dollars, with ten per cent. interest after due, for money loaned. Payable at Stephenson County Bank.
J. K. BREWSTER,
By J. M. BREWSTER.
J. M. BREWSTER, Security.”
The defendants filed these pleas:
1. General issue.
2. That a former judgment was recovered in the Circuit Court of Stephenson county, at the December term, 1857, against the said defendant, John K. Brewster, for the same cause of action, and that said judgment was still in force.
3. Same as the second, the second and third pleas being severally to the different counts in the declaration.
The plaintiffs by leave of the court, filed several replications to the defendants' pleas. The first and second replications to the second and third pleas were nul tiel record.
The second replication to the second plea, sets up that the defendant, J. M. Brewster, signed the note as security, and that J. K. Brewster became insolvent, and, for the purpose of indemnifying his security, caused said judgment to be entered against himself by confession, without the knowledge or consent of the plaintiffs.
The third replication to the second plea is substantially same as the second, except that said judgment was entered without any agency or act of the plaintiffs, and for the sole...
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