Wilson v. Campbell

• Decision Date: 31 December 1838
• Citation: 2 Ill. 493,1838 WL 2566,1 Scam. 493
• Parties: JOSEPH L. WILSON and THOMAS S. HINDE, appellants,v.JOHN C. CAMPBELL, JOHN BROWN and JOHN GARDNER, appellees.
• Court: Illinois Supreme Court

1 Scam. 493

2 Ill. 493

1838 WL 2566 (Ill.)

JOSEPH L. WILSON and THOMAS S. HINDE, appellants,

v.JOHN C. CAMPBELL, JOHN BROWN and JOHN GARDNER, appellees.

Supreme Court of Illinois.

December Term, 1838.

OPINION TEXT STARTS HERE

THIS was an action of covenant commenced by the appellees against the appellants, in the Edwards Circuit Court, upon the following bond:

“On or before the twenty-first day of March, eighteen hundred and thirty-seven, we bind ourselves and our heirs, jointly and severally, to pay to John C. Campbell, John Brown, and John Gardner, or to either of them, the sum of five hundred and twenty dollars, with interest from the date hereof. Witness our hands and seals, this twenty-first day of March, 1836.

+-------------------------+
                ¦JOSEPH I. WILSON, ¦[L.S.]¦
                +------------------+------¦
                ¦TH. S. HINDE,     ¦[L.S.]¦
                +-------------------------+
                

Memorandum that this bond is executed by Mr. Hinde, as security for Mr. Wilson, the principal.

C. E. DODDRIDGE, for the obligees.”

This cause was tried at the April term, 1838, of the Court below, before the Hon. Justin Harlan. Judgment was rendered against the appellants for $585.

H. EDDY, for the appellants, contended that the demurrer should have been sustained to the declaration.

E. B. WEBB, for the appellants, cited the following authorities:

2 Am. Dig. 80 and 535, Hunt v. Adams, 5 Mass. 358, showing that signing as surety makes no distinction; 2 Tuck. Com. 126; 1 Chit. Plead. 353, As to the manner a deed should be pleaded; 1 Chit. Plead. 662-3; 2 Tuck. Com. 267, Demurrer only reaches error in substance; 5 Bac. Abr. 322; 2 Tuck. Com. 270, Pleading over aids some defects of substance and all of form; 2 Con. Rep. 550, Ferguson v. Harwood, What variance material, and what parts of a contract necessary to be set forth. Variance immaterial if it do not change the legal effect of a contract; 3 Stark. Ev. 1590 in note, 1550 note 1, 1558-9 note 3; 13 Johns. 449; 19 Johns. 421.

BROWNE, Justice, delivered the opinion of the Court:

This was an action of covenant brought in the Circuit Court by John C. Campbell and others, against Joseph L. Wilson and Thomas S. Hinde, on a bond for the payment of money. The bond was signed and sealed by the said Wilson and Hinde. At the foot of the covenant was this memorandum: “That this bond is executed by Mr. Hinde as security for Mr. Wilson, the principal.” The declaration contained no reference whatever to this memorandum. Defendant below craved oyer, and pleaded the fact that Hinde signed as security only, and plaintiffs below knew it, and accepted it as such. Demurrer to the plea sustained, and thereupon damages assessed, and judgment. To reverse the judgment of the Court below, an appeal is brought to this...