30 Ill. 333 | Ill. | 1863
The sufficiency of the defendant’s second plea was questioned by demurrer, which was overruled by the court, and judgment was rendered in bar of the entire action. This was error, as that plea only purported to be an answer to the first count of the declaration. The general issue was filed to all the counts, and there was an issue to the country which remains undisposed of by trial or otherwise. For this error the judgment must be reversed.
It is insisted, that the second plea is double. If this be so, it was only cause for special demurrer, such an objection not affecting the substance of the plea. It is not a sufficient plea of an award, as it does not aver that the consideration of the note was embraced in, or passed upon, by the arbitrators. It is true that it avers, that on the 25th day of January, three days previous to the date of the note, all matters of difference and dispute between the plaintiff in error and one of the defendants, had been submitted to arbitrament, and an award had been made in pursuance of the submission, ready for delivery in the manner and within the time specified. But for aught that appears, the consideration of the note may have been wholly disconnected with the matters submitted, or it may have arisen- after the submission was made. Nor is it helped by the subsequent averment, that it was given for rent claimed to be due, as the time for its payment may have occurred after the agreement to submit to arbitration had been made. Or the note may have been given in consequence of the award itself.
It is insisted that it is insufficient as a plea of duress. We do not see that it purports to be such a plea, as it fails to aver facts necessary to constitute such a defense. It rather appears to have been designed as a plea of want of consideration. If the claim of rent was unfounded, and the defendant against whom it was made owed plaintiff nothing, there was a want of consideration to support the note. Nor does it appear to have been given as a compromise, as it is only averred that the note was given to prevent a threatened levy under a distress warrant, issued by plaintiff, and threatened to be executed. If nothing was due, the means employed to coerce a compliance with an unjust demand, instead of giving validity to the note, was of the most reprehensible character. Although the plea may not be very technically framed, still it does aver that the principal maker of the note was not indebted to the payee, and that he resorted to the harsh and summary means, without any sufficient grounds, to force a compliance with his unjust demand, and that there was no consideration to support the note. This, in substance, presented a defense, and the court below did not err in overruling the demurrer. The judgment of the court must be reversed, for the error indicated, and the cause remanded.
Judgment reversed.
