Smalley v. Edey

Citation19 Ill. 207,9 Peck 207,1857 WL 5690
PartiesJOHN B. SMALLEY, Plaintiff in Error,v.RICHARD A. EDEY, Defendant in Error.
Decision Date31 December 1857
CourtSupreme Court of Illinois

19 Ill. 207
1857 WL 5690 (Ill.)
9 Peck (IL) 207

JOHN B. SMALLEY, Plaintiff in Error,
v.
RICHARD A. EDEY, Defendant in Error.

Supreme Court of Illinois.

December Term, 1857.


ERROR TO MACOUPIN.

A negotiable note, executed by a debtor in settlement of his debt, to a third person, at the instance of the creditor, or to the creditor himself, is prima facie a payment of the original debt.

Where a count in a declaration is so defective that a judgment thereon would be arrested, it may be disregarded, or judgment thereon may be rendered for the defendant.

A judgment rendered for defect of pleading, is not a judgment on the merits, and is not a bar to another action upon the same contract.

If the facts stated in a count, being admitted or proved, will not entitle the plaintiff to a judgment, a judgment for defendant would not bar the plaintiff from suing again on the same contract.

THIS suit was instituted to the Macoupin Circuit Court. The declaration contains two special counts:

1st. For that whereas, heretofore, to wit, on the

[19 Ill. 208]

22nd day of April, 1850, at, etc., the said defendant made his promise, in writing, for value received, and delivered the same to the plaintiff in the words and figures following, to wit:

I do hereby agree to pay to Mr. Richard A. Edey one hundred and forty-eight dollars and twenty-seven cents, provided I do not settle said amount with Richard Hoover, and Mr. Edey is compelled to pay the same to said Hoover. I will settle the same with Hoover in thirty days, if practicable, or as soon as said Edey has to pay Hoover the money.

+--------------------------+
                ¦[Signed]¦JOHN B. SMALLEY. ¦
                +--------------------------+
                

And the plaintiff avers that it was practicable for the said defendant to have settled and paid the said sum of money to and with the said Hoover in thirty days from the date of said promise. And the said plaintiff further avers, etc., that on the 10th day of May, 1850, he was compelled to pay, and did pay, said sum of money to Richard Hoover, whereby an action hath accrued, etc.

2nd. And for that, whereas, etc., on the 22nd day of April, 1850, at, etc., the said defendant made and delivered to the plaintiff his (said defendant's) promise in writing, which is set forth in the first count of this declaration, and afterwards, to wit, on the 10th day of May, 1850, the said Richard Hoover, named in said promise in writing, at, etc., executed a release in the words and figures following, to wit:

May 10, 1850. Received of Mr. Richard A. Edey...

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19 cases
  • Weger v. Robinson Nash Motor Co., 20069.
    • United States
    • Illinois Supreme Court
    • 20 June 1930
    ... ... 11]of the original debt. Leake v. Brown, 43 Ill. 372;Smalley v. Edey, 19 Ill. 207. The presumption, however, is not evidence and cannot be treated as evidence. It cannot be weighed in the scale against ... ...
  • La Salle National Bank v. 222 East Chestnut Street Corp.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 29 June 1959
    ... ... Vanlandingham v. Ryan, 17 Ill. 25, failure to allege consideration; Smalley v. Edey, 19 Ill. 207, failure to allege performance of a condition precedent to a liability on a note; Emory v. Keigham, 88 Ill. 516, total failure ... ...
  • Beach v. Huntsman
    • United States
    • Indiana Appellate Court
    • 30 June 1908
    ... ... Smalley v. Edey, 19 Ill. 207, approved in Leake v. Brown, 43 Ill. 372. Whether the prima facie evidence has been rebutted is a question for the trial court ... ...
  • The Lake Shore & Mich. Southern Ry. Co. v. Goldberg
    • United States
    • United States Appellate Court of Illinois
    • 31 October 1878
    ... ... Hill, 30 Wis. 416.The transcript of record of acquittal of Cornwall was competent evidence and should have been admitted: Smalley v. Edey, 19 Ill. 207; Grey v. Gillilan, 15 Ill. 453; Goodrich v. Hanson, 33 Ill. 498; Hopkins v. Lee, 6 Wheat. 113; Freeman on Judgments, 273.All ... ...
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