Christopher v. Ballinger , 47 Ill. 107 ( 1868 )

Mr. Chief Justice Breese

delivered the opinion of the Court:

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 possibly have authorized a dismissal, or if a motion supported by affidavit had been made to dismiss, it might have been successful; but, as a bar, it was of no effect.

If the defendant has sustained damages by the non-performance of the agreement, he may, perhaps, maintain an action therefor, if he can show there was a consideration for the plaintiff’s promise, good in law, which we think would be difficult.

The judgment is affirmed.

Judgment affirmed.