Wood v. Goss, 21 Ill. 604 (1859)

April 1859 · Illinois Supreme Court

21 Ill. 604

Wood et al. v. Goss et al.

In this case the defendant pleaded a release of errors by one of two partners of the original judgment in favor of the firm, to which the plaintiff demurred. The demurrer was overruled. Thereupon the plaintiffs below replied, that the release was not the deed of the plaintiffs, and second, fraud and covin, without setting out in what the fraud and covin consisted. To these replications there was a demurrer.

Per Curiam.

The replication of non est factum, is not an answer to the plea, which alleges a release by one of the plaintiffs only. The replication may be true, yet a release from one partner being sufficient, as we have already decided, on the demurrer to the plea of release, the demurrer must be sustained to this replication. As to the second replication, the averment that the release was obtained by fraud, it should state the facts constituting fraud and covin or circumvention, which is the language of the statute. Sims v. Klein, Breese R. 235.

Demurrer sustained.