Adams v. Hardin
Illinois Supreme Court
ERROR TO SCOTT: The defendant in error, as assignee of a promissory note, sued the plaintiff in error, impleaded with one James Turner, in the court below, and filed his declaration, containing a special count, in debt, on the note, and the common counts in assumpsit, the declaration concluding in debt.
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ERROR TO SCOTT: The defendant in error, as assignee of a promissory note, sued the plaintiff in error, impleaded with one James Turner, in the court below, and filed his declaration, containing a special count, in debt, on the note, and the common counts in assumpsit, the declaration concluding in debt. To this declaration defendant below filed a special plea, alleging that, as to $50, part of the debt claimed in said declaration, and as to $90, part of the damages claimed therein, plaintiff actio non, because the plaintiff below, before said note was assigned to him, and after the accrual of…
1Opinion of the CourtBreese, J.
The first count in the declaration, in this case, is in debt on a promissory note. The common counts are in assumpsit.
To the plea of part payment plaintiff demurred, and the demurrer was sustained by the court.
The error assigned is, that the court sustained the demurrer to the plea, when it should have been sustained to the declaration.
We think the error is well assigned.- The rule is universal, and without exception, that debt and assumpsit cannot be joined in the same declaration. 1 Gh. PL 231.
There being an improper joinder of counts, the demurrer to the plea should have been made to reach…
2Cited by2 opinions
- Mayer v. LawrenceAppellate Court of Illinois · 1895
- Guinnip v. CarterIllinois Supreme Court · 1871