Deem v. Crume

Citations

• 46 Ill. 69

Syllabus

<p>I. Pleading at law—proferí of an instrument does not make it apart of the record. The mere fact, that the declaration makes profert of a bond, deed, or judgment declared upon, does not make the instrument a part of the record; nor nor does the averment that the recovery more fully appears by a copy of the judgment, have that effect.</p> <p>2. Same—oyer must be obtained. When a defendant desires to make the instrument declared upon a part of the record, he can only do so, by obtaining oyer thereof; it then becomes so far a part of the declaration, as to be subject to a demurrer.</p> <p>3. Same—Oyer cannot be demanded of a record.</p> <p>4. Same—-for what purpose it is granted. Oyer is only granted to enable á defendant to determine whether the instrument is his, and whether he will deny its execution by a plea of non est factum.</p> <p>5. Same—demurrer—effect of. The rule is a familiar one, that a demurrer admits the truth of the averments of the pleading to which it is interposed.</p> <p>6. Damages—concerning assessment of on foreign judgment. Where in an action of debt, on a foreign judgment, a demurrer was interposed to the declaration, and the defendant refused to answer over, it was proper for the court upon overruling the same, to render judgment for the amount of the debt averred to be due, and admitted by the demurrer. Judgment should also have been rendered for the damage sustained by reason of the detention of the debt; and in assessing the damages, the court .should hear evidence to ascertain the amount.</p> <p>'7. Same—concerning the practice—in actions in debt—when the amount is specified—and when not. The practice is, when the action is in debt on a bond, or • other instrument, in w. 'ch the sum is specified, to render judgment for the amount averred to , but when the amount in such action is not liquidated,' a demurrer to the decwation would admit the debt, but the amount would have to be ascertained by proof of the sum due.</p> <p>8. Interest—when