Weld v. Hubbard
Illinois Supreme Court
This was an action of debt, brought by the appellee, as administrator of Lyman Lamb, deceased, in the Ogle Circuit Court. The appellant in the Court below pleaded in abatement to the writ, craved oyer of the writ, and set it out in his plea. The grounds of the plea in abatement are stated in the opinion of the Court. The appellant filed with his plea in abatement a plea in bar, setting forth a partial failure of consideration of the note upon which the action was found.
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This was an action of debt, brought by the appellee, as administrator of Lyman Lamb, deceased, in the Ogle Circuit Court. The appellant in the Court below pleaded in abatement to the writ, craved oyer of the writ, and set it out in his plea. The grounds of the plea in abatement are stated in the opinion of the Court. The appellant filed with his plea in abatement a plea in bar, setting forth a partial failure of consideration of the note upon which the action was found. The appellee filed his demurrer to the plea in abatement ; which demurrer was sustained by the Court. • A demurrer was also…
1Opinion of the Court
Opinion by Treat, C. J.:
A defendant, by pleading in bar of an action, after a demurrer has been sustained to a plea in abatement, does not thereby waive his rights under the plea in abatement, but may assign for error the decision of the Court sustaining the demurrer. Delahay vs. Clement, 3 Scammon, 201. Variances between the writ and declaration are matters properly pleadable in abatement. 1 Chitty’s Pleadings, 484 5 Prince vs. Lamb, Breese, 298; Duval vs. Craig, 2 Wheaton, 45; Bank vs. Arrowsmith, 4 Halstead, 284.
In our opinion, the Court erred in sustaining the demurrer to the plea in…
2Cases cited1 opinion
- Duvall v. CraigSupreme Court of the United States · 1817
3Cited by6 opinions
- Grand Lodge Brotherhood of Locomotive Firemen v. CramerIllinois Supreme Court · 1896
- Butler v. National Live Stock InsuranceAppellate Court of Illinois · 1916
- F. H. Earl Manufacturing Co. v. Summit Lumber Co.Appellate Court of Illinois · 1906
- Galveston City Railroad v. HookAppellate Court of Illinois · 1891
- Empire Manufacturing Co. v. GinsburgAppellate Court of Illinois · 1929
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