Primmer v. Price J. Patten & Co.
| Decision Date | 30 November 1863 |
| Citation | 32 Ill. 528,1863 WL 3214 |
| Court | Illinois Supreme Court |
| Parties | JAMES W. PRIMMERv.PRICE J. PATTEN & CO. |
OPINION TEXT STARTS HERE
ERROR to the Circuit Court of Marion County.
Motion in the court below by plaintiff in error for leave to file a bill of discovery, which being overruled and judgment rendered in favor of defendants in error and against plaintiff in error, for the amount due on the note upon which suit was brought, error was brought and assigned in denying said motion and in dismissing said bill. The substance of the bill is sufficiently stated by the court.
Willard & Goodenow, for plaintiff in error.
Bryan, for defendant in error.
The first question which we propose to consider is, whether the bill of discovery contained such allegations as required the court below to grant an injunction staying the proceedings at law until the discovery was had. The bill alleges the pendency of the suit; that pleas had been filed, setting up a failure of consideration, with notice by the plaintiffs at the time they purchased the note; that they purchased the note after its maturity; also a plea that the payee of the note received the conveyance of a town lot in satisfaction and discharge of the note by a written release, and that plaintiffs had notice at the time they purchased; that replications were filed and issues joined. The bill further alleges that complainant was informed and believed that the note was indorsed after it became due and payable, and that plaintiffs knew of all the facts set up in the pleas when they purchased the note upon which the suit had been instituted. That Lasater, the payee of the note, informed plaintiffs that the consideration had failed.
It will be observed that the bill fails to allege that the averments in the pleas, or that the information given by the payee of the note to the assignees, was true. Nor does the bill, outside the averments in the pleas, allege facts showing a failure of the consideration for which the note was executed. Neither does it allege that complainant expected or believed that he could prove by defendants, that Lasater informed them at the time he indorsed the note, that the consideration had failed. The bill should have alleged that the facts averred in the pleas, or such of them as showed a defense, or other sufficient facts, were true. It is likewise defective in failing to allege that he expected to establish their truth by the discovery sought by the bill. It is true...
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Schinzer v. Wyman
...as well as fraud, and this must clearly appear; and the decree must be according to the allegations, as well as to the proof. Primmer v. Patten, 32 Ill. 528; Wright v. Dame, 22 Pick. 55; McElwain Willis, 9 Wend. 548; McIntyre v. Trustees of Union College, 6 Paige, 239; Spence v. Duren, 3 Al......
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Lewis v. Topsico
...may be well and fully informed as to the character of the issues tendered. Cheney v. Patton, 134 Ill. 422, 25 N. E. 792;Primmer v. Patten & Co., 32 Ill. 528. The alleged newly discovered evidence in the bill in question relates to three subject-matters, or may be classified under three gene......
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Murphy v. Stith
... ... 97; Stanley v. Valentine, 79 Ill. 544.All facts must be clearly and positively averred: Primmer v. Patten, 32 Ill. 528.[5 Ill.App. 563] Before strict foreclosure is decreed, insolvency of the ... ...
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Smith v. Sarah J. Brittenham.
...not distinctly and expressly averred, the defect can not be supplied by inference or by reference to other parts of the bill. Primmer v. Patton & Co. 32 Ill. 528; Wright v. Dame et al. 22 Pickering, 55. See also McElwain v. Mills, 9 Wend. 548; McIntyre v. Fuestus, 6 Paige Ch. R. 239; Spence......