Christopher v. Ballinger
Illinois Supreme Court
Appeal from the Circuit Court of Macoupin county; the Hon. Edward Y. Bice, Judge, presiding. This was an action of assumpsit, brought by Ballinger against Christopher, at the March term, 1867, of the Circuit Court of Macoupin county, to recover upon a promissory note. Judgment was rendered for the plaintiff, and defendant appeals to this court.
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Appeal from the Circuit Court of Macoupin county; the Hon. Edward Y. Bice, Judge, presiding. This was an action of assumpsit, brought by Ballinger against Christopher, at the March term, 1867, of the Circuit Court of Macoupin county, to recover upon a promissory note. Judgment was rendered for the plaintiff, and defendant appeals to this court. The only question made in this court is, whether a promise, with or without a consideration, to dismiss the suit, can be pleaded in bar.
1Opinion of the CourtChief Justice Breese
This was an action of assumpsit, on a promissory note, and it was specially pleaded in bar to the suit, that the plaintiff ' agreed with the defendant, if he would pay the costs of the suit, he would dismiss it. The defendant paid ten dollars as the amount of the costs, but the plaintiff proceeded with his suit.
Instead of taking issue on this plea, the plaintiff should have interposed a demurrer to it, which would have brought up the sufficiency of the defence, and no court would hesitate to decide the promise to dismiss the suit was no bar to its prosecution.
If pleaded in abatement, it might…
2Cited by3 opinions
- McFadden v. HeisenCourt of Appeals for the Ninth Circuit · 1907
- Hurlbert v. EllenbergIllinois Supreme Court · 1872
- Rybolt v. MillikenAppellate Court of Illinois · 1879