27 Ill. 434 | Ill. | 1862
We shall confine ourselves to the disposition of the points raised in the printed argument of the counsel for the defendants.
The first is, to the authentication of the judgment in Ohio, upon which the premises were sold and the sheriff’s deed made. The answer made to this, we think, is conclusive. This is an action of covenant, in which, strictly, there is no general issue, putting the plaintiff upon proof of his whole case, but each fact, which of itself would defeat the plaintiff’s action, must be specially pleaded. Here were three pleas of non est factum, putting in issue three of the deeds constituting the chain of title, and the statute of limitations. This is all of the declaration which was denied. There was no plea of non infregit convenüonem. The existence of that judgment, as alleged in the declaration, was not put in issue, and consequently the plaintiff was not called upon to produce or prove it. All he was required to prove was, that which was denied by the defendants, and that was the execution of the deeds. When that was done, the breach of the covenants and the heirship of the defendants, were admitted, and the plaintiff only had to show how much he had been damnified by the breach of the covenant, so that the court might know for how much to render the judgment.
Another objection is made, that some of the defendants were infants. That appears from the declaration, but we do not quite understand the nature of the objection, on this account. They were not served with process, and are not parties to the judgment. When they are brought in by sci. fa. under our statute, to show cause why they shall not be made parties to the judgment, it will be necessary to prove up the case de novo against' them. These adults, against whom the judgment was rendered, cannot claim that any more shall be proved under the issues which they have formed, when the defendants not served are infants, than would be required if they were adults. As to the defendants served, it was only necessary to prove up the case against all of the defendants, under the pleadings actually formed, and the court will not imagine that if the other defendants had been served, they would have put in other pleas or put the plaintiff to other proof, than is required by the pleas tiled.
The giving the bond in satisfaction of the judgment against Cox, was in law a payment of it, as much for the purposes of this cause, as if he had paid it in coin. Ralston v. Wood, 15 Ill. 159.
The judgment is reversed, and the cause remanded.
Judgment reversed.
