Putnam County IL Archives Court.....Smith, V Dysart 1850
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 25, 2008, 8:03 pm

Source: Records Of Cases Illinois
Written: 1850

Mariah L. Smith, executrix, etc., plaintiff in error, v. Archibald P. Dysart, 
defendant in error.

Error to Putnam.

Where a record shows pleas, to which no objection is made, and to which a 
demurrer was overruled, and upon which a judgment was entered for the 
defendant, this court will not disturb the judgment. (a)

This was an action of covenant, brought in the Putnam Circuit Court by the 
plaintiff in error, as executrix of William Smith, against Dysart. The 
defendant pleaded seven pleas. To the first, second, third and fourth, there 
was a replication and issue to the country. To the fifth, sixth, and seventh 
pleas there were demurrers, which were overruled. The fifth plea alleges that 
plaintiff is not executrix. The sixth plea declares that said Mariah, L. Smith 
has not been appointed, and is not, nor ever has been, executrix of the last 
will and testament of said deceased; nor has she produced either the last will 
and testament of said deceased, after having proved the same in any other 
state or territory of the United States, or a certified copy thereof, with 
letters testamentary, under the seal of the court where the same were 
obtained, and a certified copy, etc., showing that letters were granted, etc. 
To these pleas, after demurrer was overruled, no replication was filed.

E. S. Leland, for plaintiff in error.

O. Peters, for defendant in error.

Caton, J. The record shows at least two pleas to which no objection is now 
made; a demurrer to which was overruled; upon which a judgment was entered in 
favor of the defendant, which is a perfect bar to the plaintiff's right of 
action. We shall therefore decline entering upon the investigation of the 
question which was argued, as to whether the seventh plea was obnoxious to a 
general demurrer, or whether it should have been demurred to specially. The 
defendant is certainly entitled to have the judgment affirmrd.

Judgment affirmed.

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(a) Dana V. Bryant et al., 1 Gil., 101; Armstrong v. Webster, 30 Ill., 333; 
Bissell v. City of Kankakee, 64 Ill., 249, accord.

Additional Comments:
Reports of Cases Determined in the Supreme Court of the State of Illinois from 
November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor 
at Law. Volume XII. Reprinted from the Original Edition, with Annotations by 
William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill. 
1881.

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