Pogue v. Clark

25 Ill. 351

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

Opinion

Breese, J.

The objection to this bill, presented by the general demurrer, that it does not show which note was assigned, is purely technical, and should have been specially pointed out in the demurrer. Both notes were of the same tenor and amount, and both due, and practically, it was no difference which was assigned. It is not for the appellant to complain that the decree does not declare that the note first due should be first paid, it must be a matter of perfect indifference to him. The other party might complain as depriving him of an advantage.

We see no objection to the holders of the two notes joining in a bill to foreclose, as the notes were for the same amounts, an‘d the same land in the same mortgage to secure them. Where several persons have distinct rights against a common fund, they are allowed to file a bill for the purpose of promoting their right against the common fund liable to their demand. Long v. Younge, 2 Simons, 369.

As to the remaining objection, that the court rendered the decree without any evidence, it appears by the record that the mortgage and certified copies of the notes were referred to the clerk of the court", as special master, to ascertain the amount due and in arrears, who made his report, which was approved by the court. No objection was made to using the copies of the notes as evidence, and the mortgage was an exhibit in the cause. It was not pretended the notes were paid.

The decree is affirmed. Decree affirmed.