House v. Wilder

Citations

• 47 Ill. 510

Syllabus

<p>1. Practice—instructions. It is the settled practice never to instruct the jury as to the weight of evidence. When conflicting, or tending to prove the issue, however slightly, it must be left to the consideration of the jury. But when it essentially varies from the pleadings, and fails to sustain the issue, the court may, and should, when asked, exclude it from the consideration of the jury. And when the evidence essentially varies from the plaint, in an action of forcible entry and detainer, it amounts to the same thing as excluding the evidence for the court to instruct the jury to find for the defendant, as either course would produce the same result.</p> <p>2. Forcible entry and detainer —plaint and evidence under. Where a plaint in forcible entry and detainer averred that plaintiff had been in the sole and exclusive possession of a house and lots, and that defendants had made a forcible entry upon her possession, and detained the premises from her, and that she was entitled to the immediate possession of the house and lots, proof that she had previously been in exclusive possession of but two of a number of rooms of the house, and had access to, and had some articles of property in the other rooms of the house, occupied by another family, varies, essentially, from the plaint, and may be excluded. A plaint which claims the whole house, is not sustained by evidence that plaintiff was possessed of only a part of the house upon which a forcible entry was made. The statute requires a particular description to be made in the plaint,- of the premises sought to be recove red, and the proof must follow and conform to the description in the plaint to warrant a recovery.</p>