Bank of Chicago v. Hull, 74 Ill. 106 (1874)

Sept. 1874 · Illinois Supreme Court

74 Ill. 106

The Bank of Chicago v. Charles J. Hull.

1. Practice — to require affidavit of merits from defendant. The statute does not require the affidavit accompanying the plaintiff’s declaration to be made by the plaintiff. If an affidavit is filed by any one showing the nature of the plaintiff’s demand and the amount due, the defendant is required to file an affidavit of merits with his pleas.

2. Same — till of partieula/rs. Where the plaintiff, in a suit against a bank for a balance of deposit, attaches to his affidavit the bank-book containing the entries made by the bank, and showing the balance due, this will be a bill of particulars, notwithstanding its being sworn to, so as to prevent a continuance.

3. Same — striking plea without affidavit from files. Where the statute is complied with by the plaintiff, if the defendant files a plea without affidavit of merits, it is proper to strike the same from the files.

Appeal from the Circuit Court of Cook county; the Hon, Lambert Tree, Judge, presiding.

Messrs. Shufeldt, Ball & Westover, for the appellant.

Messrs. Chase & Crooker, for the appellee.

Mr. Justice Breese

delivered the opinion of the Court:

There is nothing in the points made by appellant on this record. The proceedings show full compliance by the plaintiff below with the Practice act. The declaration was accompanied by an affidavit showing the nature of plaintiff’s demand and the amount due him, and to the affidavit he attached the bankbook, written up by the defendants, containing their own entries, and showing from their own figures the balance due the plaintiff. This was a full “ bill of particulars,” and none the less so, by being sworn to.

The statute (sec. 36) does not require the affidavit to be made by the plaintiff himself. He is required to file an affidavit simply showing the nature of his demand and the amount due. There was no ground for a continuance.

The statute having been fully complied with by the plaintiff, it was incumbent on the defendants to accompany their plea with an affidavit of merits. Having no meritorious defense, no affidavit of merits was made, and the court struck their plea of the general issue from the files, all which was proper, and in strict pursuance of the statute, and the judgment is affirmed.

Judgment affirmed.