Haynes v. Lucas

Citations

• 50 Ill. 436

Syllabus

<p>1. Action of debt—whether it will lie. A contract for the sale of land, recited that the vendor had sold certain described lands to the purchaser, at a stipulated price, a portion of which was paid cash in hand, and the balance secured by the promissory notes of the purchaser, upon the full payment of which the vendor agreed to convey by deed with warranty. The purchaser, without having paid the notes, brought an action of debt to recover back the money he had paid, declaring specially on the contract, alleging the vendor could not convey by reason of the premises having been sold under incumbrances created by him: Held, that covenant, not debt, was the remedy. Debt will lie only for a sum certain or a sum that may be rendered certain by computation. In this case, the action was for the breach of the terms of the agreement, and not for a sum of money eo nomine and in numero.</p> <p>2. Pleading—carrying demurrer back to a prior pleading. Where a demurrer is interposed to a bad plea, and that is the only plea filed, the demurrer may be darned back and sustained to a defective declaration.</p> <p>3:-'- Defective declaration—how availed of. Where a declaration is so defective that it will not support a judgment, as when it shows on its face that another form of action should have been resorted to, advantage may be taken of the defect, in arrest of judgment, or on error, although a good plea may have been interposed.</p>