Murphy v. McGrath

Citations

• 79 Ill. 594

Syllabus

<p>1. Death of plaintiff pending suit — in trespass. In an action of trespass for an assault and battery, if the plaintiff died after verdict and before final judgment, at common law the suit abated, but by the statute in force, July 1, 1872, Laws 1872, p. 108, sec. 123, it survives to the personal representatives.</p> <p>2. Mitigation of damages—in trespass to the person. In an action for assault and battery, evidence as to the conduct of the plaintiff at other times and upon other occasions, the assault and batten- having been com. mitted without any provocation given at the time, can not be given in evidence to mitigate the damages.</p> <p>3. Newly discovered evidence—affidavit must state positively that it is true. An affidavit setting forth newly discovered evidence must state positively that the new evidence is true, and it is faulty if it fails in this particular.</p>