Hunter v. Bilyeu

Mr. Justice Lawrence delivered the opinion of the Court: This was an action of debt on a promissory note under seal, brought by John B. Hunter, as administrator of Samuel W. Hunter, against Bilyeu. The defendant pleaded two special pleas. The plaintiff demurred to both pleas. The court overruled the demurrer, and it was withdrawn. The plaintiff then filed three replications to the second plea. The defendant demurred to these replications, and the demurrer was sustained to the first and third and overruled as to the second, and, the plaintiff declining to amend, the court, as the record recites, gave judgment against him for costs. As the plaintiff had withdrawn his demurrer to the first plea, and failed to reply to it, the defendant was entitled to judgment on that plea. The sufficiency of that plea is not before us. By withdrawing his demurrer, the plaintiff has lost his right to insist upon it. Neither can he, as he sbeks to do in his brief, bring that plea before ns by carrying back the demurrer to the replications to the second plea. A demurrer to a pleading cannot be carried back to another which the pleading demurred to does not profess to answer, and with which it has no connection. Ryan v. May, 14 Ill. 49. We have, however, examined the first plea and find it good, in substance. It is the ordinary plea averring the note sued on to be the last of a series given to the plaintiff for the purchase-money of land, that all the others had been duly paid, and that the plaintiff had failed to tender a deed before bringing suit. This plea having been held good by the court, and remaining wholly unanswered, it would have been proper to render judgment against the plaintiff for costs, to be paid in the due course of administration. Inasmuch, however, as the judgment was rendered against the administrator personally, it must be reversed and the cause remanded. Judgment reversed.