Mix v. Nettleton

29 Ill. 245

Opinion

Walker, J.

The action of debt will not lie on this instrument. This question has been before the various courts of this country, and seems to have been uniformly held the same way. The decisions are, that a contract of this character is not for the money named, but for the thing to be paid. And that debt will only lie for a sum specifically certain. Watson v. McNairy, 1 Bibb, 357; Mattox v. Craig, 2 Bibb, 584; Bruner v. Kelso, 1 Bibb, 487; Campbell v. Weister, 1 Littell, 30 ; Delarry v. Reader, 5 Yerg. 451; Scott v. Conover, 1 Halst. 222 ; Wilson v. Hickson, 1 Blkf. 230; Osborn v. Fulton, 1 Blkf. 234; Young v. Scott, 5 Ala. 475. These authorities are to the point, and decisive of the question.

By the motion in arrest the question was preserved, and this without excepting to overruling the motion. The decision on the motion in arrest is precisely of the same character as a judgment on a demurrer. They both alike question the sufficiency of the record to sustain a judgment.

The judgment of the court below is reversed.

Judgment reversed.