Cope v. Brentz

190 Ill. App. 504

• Court: Appellate Court of Illinois
• Decided: October 16, 1914
• Status: Published

Opinion

Mr. Justice Scholfield

delivered the opinion of the court.

3. Instructions, § 94*—where witness testifies falsely to fact material to issues. An instruction to the jury to the effect that if any witness has knowingly and wilfully testified falsely to any “material fact or allegation, etc.,” is erroneous as it should have been any “fact material to the issues, etc.” 4. Instructions, § 119*—necessity of lasing on evidence. An instruction should be based on evidence with which to support it. 5. Instructions, § 114*—necessity of confining to issues of pleadings. Where there is no plea alleging that there was no consideration for a mortgage, it is erroneous for the court to instruct the jury upon such a question. 6. Replevin, § 147*—when instruction erroneous as ignoring defense. In an action of replevin of property taken under an execution, an instruction that entirely ignores the defense that plaintiff was in possession of the property under a chattel mortgage is held erroneous. 7. Replevin, § 26*—sufficiency of instruction. In an action of replevin to recover the possession of property taken under an execution, an instruction is held to fail to correctly state the law; that if possession is taken under an unacknowledged mortgage before possession is taken under the execution, possession will defeat the execution.