Lincoln v. McLaughlin

Citations

• 74 Ill. 11

Syllabus

<p>1. Practice—leame to file additional pleas is discretionary with the court. It is purely discretionary with the' court, whether to allow a defendant to file an additional plea or not, after he has pleaded in bar to an action, unless it be a plea puis darrein continuance, and it is not only no error for a court to refuse such leave after a jury has been impaneled to try the cause, but it would be almost an abuse of discretion to grant it.</p> <p>2. Pleading—de injuria sufficient replication to plea of justification in trespass. In an action by a married woman for trespass to her separate property, against an officer who levied upon it as the property of her husband, and justifies under his writ, averring that the property belonged to the husband, a replication de injuria is sufficient.</p> <p>3. Pleading and evidence — abuse of authority cannot he shown under replication de injuria. 'Where a plea of justification to an action of trespass sets up that the supposed trespass was committed under and by virtue of an execution against one who owned an interest in the goods taken, if the defendant in execution had in fact no interest in the goods, a replication de injuria is sufficient, but if lie had some interest and the plaintiff desires to rely upon an abuse of authority in making the levy, he should reply specially setting up such abuse.</p> <p>4. Where a defendant, in an action of trespass for levying on goods, j ustifies under an execution against the husband of plaintiff, alleging that he owned, the goods or an interest in them, if the plaintiff replies de injuria, she takes the hazard of proving title to the goods wholly in her self, and if she does so she must recover.</p> <p>5. Married woman. A husband out of debt, or when it does not injure existing creditors, may settle property on his wife, either by having it conveyed directly to her, or to another in trust for her, and subsequent creditors cannot reach it, and money realized from the sale of such property