Caldwell v. Evans ( 1891 )

Conger, P. J.

This was an action originally commenced before a justice of the peace by appellee against appellant, and upon appeal to the Circuit Court a verdict and judgment was rendered against appellant for 895.

The claim of appellee was that appellant, in company with his two daughters, was driving some of his own colts along the road, when they jumped over into appellee’s field, and got with appellee’s colt, which had but recently been castrated. That appellant in trying to get his colts out of the field, so negligently and carelessly ran the colt of appellee about the field as to cause its death.

Appellant contended that due care was used that the colt was not injured by the running, but its death was caused by improper treatment when it was castrated.

We have carefully examined the evidence upon this question, and can not say that the jury were not warranted in reaching the conclusion they did. The evidence was contradictory, and in such case the jury having the witnesses before them had much greater opportunities of weighing the evidence than we have.

Appellant also insists that this claim-for damages was barred because, after the death of the colt and prior to the present suit he had sued appellee before a justice of the peace upon a note which appellee owed him, and appellee should have brought forward this claim for damages and had the same adjusted in such suit, in accordance with the provisions of Sec. 49, Chap. 79, R. S., which provides that, “Each party shall bring forward all his demands against the other, existing at the time of the commencement of the suit, which are of such a nature as to be consolidated, * * * and on refusing or neglecting to do so, shall forever be debarred from suing therefor.”

Appellee’s claim is for unliquidated damages arising out of a tort, totally disconnected from appellant’s claim upon the note upon which he brought suit, and hence was not such a claim or demand as would constitute the subject-matter of a set-off in that suit. Hawks v. Lands, 3 Gilm. 227; Bush v. Kindred, 20 Ill. 94.

Appellant refers us to Lathrop v. Hayes, 57 Ill. 279, as holding a contrary doctrine, but we do not view it in that light. In that case the question was, where one is sued before a justice of the peace, and has a claim against his adversary within the jurisdiction of a justice of the peace, and a proper subject of set-off, must he bring it in as a set-off against his adversary’s claim or commence a new suit. There is nothing in this case at all modifying or changing the holding in the Hawks case, sujyra.

It is said the instruction given to the jury for appellee is misleading in that it does not limit the kind of negligence which would render appellant liable. We do not think the instruction properly subject to this criticism, but if there were any doubt about it, the instructions given upon the part of appellant clearly and favorably lay down the law upon this question.

The judgment of the Circuit Court will be affirmed.

Judgment affirmed.