Toledo, Wabash & Western Railway Co. v. McLaughlin

Citations

• 63 Ill. 389

Syllabus

<p>1. Continuance—of motion for new trial. A motion was made for the continuance of a motion for a new trial, on the ground of surprise in the testimony of the adverse party, and to enable the party to procure affidavits of witnesses to disprove the unexpected testimony, in support of the motion for a new trial. The court overruled the motion for a continuance: Sdd, that the motion was addressed to the discretion of the court, and unless that discretion was abused, this court would not interfere with its exercise.</p> <p>2. Pleading—declaration—whether in trespass a ease. Although the introductory part of a declaration may be in the form of trespass ni et ar~ mis, yet if the sole count is a count in trespass on the case, the declaration will be a declaration in case, and not in trespass.</p> <p>3. Variance—between writ and declaration. A variance between the writ and declaration, as where the writ is in trespass and the declaration in case, can not be taken advantage of on motion in arrest of judgment, but only by plea in abatement or motion in apt time.</p>