Pearce v. Pearce

Decided January 15, 1873

Illinois Supreme Court · decided 1873-01-15

Richard 8. Cahby, Judge, presiding. * This was an action of assumpsit, brought by Richard Pearce against Frederick Pearce. The declaration contained the common counts only. The defendant pleaded the general issue and notice of set-off. On the trial the plaintiff asked the following instruction, which was refused: “ The court instructs the jury, that, under the pleadings, the fact that Edward Pearce is not joined as a co-defendant, can not be taken advantage of.

Cited by 1 later decisions — most recently April 1912

1 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1873-01-15

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Per Curiam :

¶1The first instruction asked.by the plaintiff, and x’efused, should have been given, and that given for the defendant should have- been x-efused. There was no plea in abatement, and the non-joinder of a co-defendant can only be taken advantage of by plea in abatement. The other instruction for defendant goes too far in requiring the jury to believe, not only that the plaintiff loaned his money to the defendant, but that the defendant promised to repay it. The jury would probably understand this as requiring proof of an express promise, which would not be necessary.

¶2The judgment of the court below is reversed.

¶3Judgment reversed.