Joslyn v. Collinson

26 Ill. 61

• Court: Illinois Supreme Court
• Decided: April 15, 1861
• Status: Published

Opinion

Caton, C. J.

This declaration is upon a special guarantee of a promissory note, and shows that the guarantee was entered into and placed on the note after the note had been delivered and after it had been negotiated to the plaintiff, and it shows no new consideration for the guarantee. When a guarantee is put upon a note, at the time of its execution, and so is a part of the original transaction, no new consideration is necessary to support it, but when it is entered into subsequently, it is a new and independent undertaking, and must be supported by a new and independent consideration, and the pleading should conform to this rule of law. The declaration should show that the guarantee was entered into at the time the note was executed, when it need not aver any new consideration, or if, as in this case, the guarantee was entered 'into subsequently, a new and independent consideration should be averred. For the want of this, the declaration is bad, and the demurrer should have been sustained.

The judgment is reversed and the cause remanded, with leave to the plaintiff to amend his declaration.

Judgment reversed.