Herrington v. Stevens

Breese, J. Induced by the criticisms of the counsel for the plaintiff in error, we have examined carefully, the declaration contained in this record. Though it may be admitted, it is not drawn with the nicest accuracy, it is not open to the objection made to it. The personal pronoun his is used in the possessive case, and taking the structure of the whole sentence together, and it is a very long one, there can be no doubt which is the proper antecedent; strict grammatical accuracy would assign the word plaintiff as the true antecedent. The declaration is good in form and substance, setting forth, clearly, a good cause of action. The plaintiff in error seems to have misconceived the action and the ground of recovery. The action is for nothing more than the recovery of three hundred and fifty dollars, which the declaration charges, the defendant promised to pay the plaintiff for his interest in the stock of goods belonging to him and Karns. Abiding by his decision, which admitted this fact, there was nothing for the court to do, but to assess the damages, which would be that sum with legal interest upon it, from the time it should have been paid. The defendant, upon the inquest, had no right to set up any other contract, and therefore had no right to put the question he proposed, for it was wholly immaterial what the interest of Stevens was worth, the defendant having admitted he was to give the plaintiff three hundred and fifty dollars for it. It would be letting in a new defense. On an inquest of , damages, whether before the court or a sheriff’s jury, the right of a defendant does not extend so far as to allow him to introduce a substantive defense. He may overthrow, by a cross-examination, what has been testified to by the witness on his direct examination. He may also introduce witnesses to reduce the amount of the recovery, and when the inquest is taken in open court, he may ask the court for instructions to the jury. Town of South Ottawa v. Foster, 20 Ill. 298. The refusal of the court to allow the motion of the defendant to plead, made at the term after he had decided to abide by his decision, cannot be assigned for error. It was purely discretionary with the court, and we cannot say that the discretion D was not properly exercised. Gillet v. Stone, 1 Scam. 543. The rule is well settled where a demurrer to a declaration is overruled, if the defendant wishes to plead over, he should ask leave of the court to withdraw his demurrer, and file a plea, and the granting or refusing such a motion, even if made at the same term, rests in the discretion of the court. Conradi et al. v. Evans et al., 2 Scam. 186. We discover no error in the record or proceedings, and accordingly affirm the judgment. Judgment affirmed.