Archibald v. Argall

CourtIllinois Supreme Court
Writing for the CourtWALKER
Citation1870 WL 6198,53 Ill. 307
PartiesALEXANDER ARCHIBALDv.THOMAS M. ARGALL.
Decision Date31 January 1870

53 Ill. 307
1870 WL 6198 (Ill.)

ALEXANDER ARCHIBALD
v.
THOMAS M. ARGALL.

Supreme Court of Illinois.

January Term, 1870.


APPEAL from the Circuit Court of Ford county; the Hon. A. J. GALLAGHER, Judge, presiding.

This was an action of assumpsit, brought by Thomas M. Argall against Alexander Archibald and William Stevenson, partners, to recover for goods, wares and merchandise sold and delivered by the plaintiff to the defendants. A trial resulted in a verdict and judgment for the plaintiff, from which the defendant, Archibald, appealed. The opinion of the court contains a statement of the grounds upon which error is assigned.

[53 Ill. 308]

Messrs. ROFF & DOYLE, for the appellant.

Messrs. BLADES & KAY, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

It is urged that the court below erred in sustaining the demurrer to appellant's second special plea. It avers that after the goods were purchased by Alexander Archibald and Stevenson, the former dissolved his connection with the firm, and his brother William took his place and agreed to take his interest in the goods, and pay Alexander's share of the firm debts, all of which the plaintiff knew, and after such knowledge, took from William the notes described in the first special plea, against the new firm, which notes plaintiff received as collateral to the account, and plaintiff then agreed to extend the time for the payment of the account until all the notes became due, and avers the notes are not due.

The ground relied upon as a defense in this plea is, that by a binding agreement, time for payment had been extended, and had not elapsed when the suit was brought. The matter stated in the plea is in abatement, and not in bar of the action. It is said in Chitty on Pleading, vol. 1 p. 453, that “pleas in abatement to the action of the writ, are, that the action is misconceived, as that it is in case when it ought to have been in trespass, or that it was prematurely brought; but as these matters are the ground of demurrer, or non-suit, it is now very unusual to plead them in abatement.” A number of authorities are referred to in support of the rule, and the analogies of the law are clearly in its favor. And as the plea does not deny or confess and avoid the indebtedness, but simply avers the debt is not due under the agreement set forth, it could only be a plea in abatement, and according to familiar rules of pleading, it comes too late. Such a plea can not be interposed after a...

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15 practice notes
  • Noble v. Sturm, No. 62.
    • United States
    • Supreme Court of Michigan
    • June 7, 1920
    ...16 Ill. 400,North v. O'Hara, 73 Ill. App. 691,Mercer v. Stupp, 115 Ill. App. 298,Darst v. Bates, 95 Ill. 493, and Archibald v. Ingall, 53 Ill. 307, were introduced in evidence. ‘Conclusions of Law. ‘(1) That, the lease in question having been executed in Illinois and affecting Illinois prop......
  • Bacon v. Schepflin
    • United States
    • Supreme Court of Illinois
    • April 17, 1900
    ...decided by this court are referred to by counsel for the appellants as holding a contrary doctrine. Among these are Archibald v. Argall, 53 Ill. 307;Culver v. Johnson, 90 Ill. 91;Palmer v. Gardiner, 77 Ill. 143;Guard v. Whiteside, 13 Ill. 7;Pitts Sons' Mfg. Co. v. Commercial Nat. Bank, 121 ......
  • Welge v. Batty
    • United States
    • United States Appellate Court of Illinois
    • May 31, 1882
    ...66 Ill. 351; Woods v. Mer. L. & T. Co. 41 Ill. 267; Stevens v. Park, 73 Ill. 387; Morrison v. Smith, 81 Ill. 221; Archibald v. Angell, 53 Ill. 307; Yates v. Valentine, 71 Ill. 643; Olcott v. Rathbone, 5 Wend. 491; Brown v. Leckie, 43 Ill. 498; Muldon v. Whitlock, 1 Wend. 290; Walsh v. Lemon......
  • Collins v. Montemy
    • United States
    • United States Appellate Court of Illinois
    • February 28, 1878
    ...26 Ill. 302. Where a suit is prematurely brought, advantage may be taken of it on the trial: 1 Chitty's Pl. 453; Archibald v. Argall, 53 Ill. 307; Harlow v. Boswell, 15 Ill. 56; Nickerson v. Babcock, 29 Ill. 497. If the justice had jurisdiction, the Circuit Court can only inquire into the m......
  • Request a trial to view additional results
15 cases
  • Noble v. Sturm, No. 62.
    • United States
    • Supreme Court of Michigan
    • June 7, 1920
    ...16 Ill. 400,North v. O'Hara, 73 Ill. App. 691,Mercer v. Stupp, 115 Ill. App. 298,Darst v. Bates, 95 Ill. 493, and Archibald v. Ingall, 53 Ill. 307, were introduced in evidence. ‘Conclusions of Law. ‘(1) That, the lease in question having been executed in Illinois and affecting Illinois prop......
  • Bacon v. Schepflin
    • United States
    • Supreme Court of Illinois
    • April 17, 1900
    ...decided by this court are referred to by counsel for the appellants as holding a contrary doctrine. Among these are Archibald v. Argall, 53 Ill. 307;Culver v. Johnson, 90 Ill. 91;Palmer v. Gardiner, 77 Ill. 143;Guard v. Whiteside, 13 Ill. 7;Pitts Sons' Mfg. Co. v. Commercial Nat. Bank, 121 ......
  • Welge v. Batty
    • United States
    • United States Appellate Court of Illinois
    • May 31, 1882
    ...66 Ill. 351; Woods v. Mer. L. & T. Co. 41 Ill. 267; Stevens v. Park, 73 Ill. 387; Morrison v. Smith, 81 Ill. 221; Archibald v. Angell, 53 Ill. 307; Yates v. Valentine, 71 Ill. 643; Olcott v. Rathbone, 5 Wend. 491; Brown v. Leckie, 43 Ill. 498; Muldon v. Whitlock, 1 Wend. 290; Walsh v. Lemon......
  • Collins v. Montemy
    • United States
    • United States Appellate Court of Illinois
    • February 28, 1878
    ...26 Ill. 302. Where a suit is prematurely brought, advantage may be taken of it on the trial: 1 Chitty's Pl. 453; Archibald v. Argall, 53 Ill. 307; Harlow v. Boswell, 15 Ill. 56; Nickerson v. Babcock, 29 Ill. 497. If the justice had jurisdiction, the Circuit Court can only inquire into the m......
  • Request a trial to view additional results

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