#### Joseph McFadden, Appellant, v. Adam Deck et al., Appellees.

Gen. No. 6,010.

(Not to he reported in full.)

Appeal from the Circuit Court of Putnam county; the Hon. John M. Niehaus, Judge, presiding.

Heard in this court at the Octoher term, 1914.

Reversed and remanded.

Opinion filed March 9, 1915.

*179Abstract of the Decision.

1. Bills and notes, § 336 * —when copy of note filed is not part of declaration. A copy of a promissory note filed -with, a declaration is no part of the pleading.

2. Bills and notes, § 336*—when demurrer to declaration does not- reach copy of note filed. Since a copy of a promissory note filed with a declaration is no part of 'the pleading, it cannot be noticed on demurrer.

3. Appeal and ebbor, § 420*—when judgment reversed on point not raised in trial court. A judgment rendered on a copy of a promissory note filed with a declaration on demurrer to such pleading, will be reversed on appeal, since the copy of the note was no part of the declaration, notwithstanding the question was not raised in the trial court.

Statement of the Case.

Joseph McFadden sued Adam Deck, John Dore and James McCutcheon in assumpsit, filing a declaration consisting of the common counts and two special counts based on two promissory notes given by the defendants to the Marsh Company, and assigned to the plaintiff: Copies of the notes, which were in common form except that at the left of the defendants’ signatures appeared the words “Commissioners of Hennepin Drainage District,” were filed with the declaration. General and special demurrers were entered to the special counts, on the ground that it did not appear whether the Marsh Company was an individual, copartnership or corporation. The general demurrer was sustained; plaintiff dismissed the common counts from his declaration, and elected to abide by the special counts, whereupon judgment was entered against him, from which he appeals.

William C. Mooney and C. N. Hollerich, for appellant.

James E. Taylor and Prettymann, Velde & Prettymann, for appellees.

*

See Illinois Notes Digest, Vols. XI to- XT, and Cumulative Quarterly, same topic and section number.

Mr. Presiding Justice Carnes

delivered the opinion of the court.