130 Ill. App. 515 | Ill. App. Ct. | 1906
delivered the opinion of the court.
The three points .made by the plaintiffs in error in their argument are:
First. The evidence was insufficient in law to support the verdict.
Second. The bond, even with the lease read into.it and offered in evidence, would have been so “vague, uncertain, indefinite and unintelligible as to render it void.”
Third. The bond is a penal bond, and the penalty cannot be construed as a sum absolute, but the damages must be proven.
In support of the first point the argument is that no proof of the lease mentioned in the bond, nor any proof of the breach of the condition of the bond, having been made by the defendant in error, the verdict was unwarranted. But the answer is, that as the only plea in the cause was non est factum, no such proof was necessary.
By the common law this plea in an action of debt on a specialty only put in issue the giving of the deed, and it was not necessary for the plaintiff to prove the averments or breaches contained in his declaration —the plea admitted all material averments. Chitty on Pleading (9th American Edition), vol. 1, p. 483, note 2; Gardner v. Gardner, 10 Johns. Rep. 47; Legg v. Robinson, 7 Wend. 194.
This has always, been and is now the law of Illinois. Pritchett et al. v. People, 1 Gilman, 525, p. 530; Rudehill et al. v. Jefferson Co., 85 Ill. 446; Smith v. Lozano et al., 1 Ill. App. 171, p. 176; King v. Sea, 6 Ill. App. 189, p. 192; Sugden v. Beasley, 9 Ill. App. 71, p. 73; Oberne v. Gaylord, 13 Ill. App. 30; Shunick v. Thompson, 25 Ill. App. 619, p. 326; Osborne & Co. v. Rich, 53 Ill. App. 661, p. 665.
No proof of the signature of the bond was required, for the plea was not verified. Rev. Statutes, chap. 110, sec. 33.
The other contentions made by the plaintiffs in error are not open to them in this cause in this court. The law of the cause on the questions involved in them for this and the lower court, is laid down in McCullough v. Moore et al., 111 Ill. App. 545. As appellees in that cause, the present plaintiffs in error pressed the same arguments and cited the same authorities. The decision was adverse to them, and unless reversed by a higher tribunal must remain the law of the cause.
The judgment of the Superior Court is affirmed.
’ Affirmed.