55 Ill. 421 (Ill. 1870), Chicago & Northwestern Railway Company v. Shultz

Citation:55 Ill. 421
Opinion Judge:Mr. Justice Walker.
Party Name:CHICAGO & NORTHWESTERN RAILWAY COMPANY v. JOSEPH SHULTZ
Attorney:Messrs. GOODWIN & WILLIAMS, for the appellants. Mr. JAMES K. EDSALL, for the appellee.
Court:Supreme Court of Illinois
 
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Page 421

55 Ill. 421 (Ill. 1870)

CHICAGO & NORTHWESTERN RAILWAY COMPANY

v.

JOSEPH SHULTZ

Supreme Court of Illinois, Northern Grand Division

September, 1870

APPEAL from the Circuit Court of Lee County; the Hon. W. W. HEATON, Judge, presiding.

The opinion states the case.

Judgment affirmed.

Messrs. GOODWIN & WILLIAMS, for the appellants.

Mr. JAMES K. EDSALL, for the appellee.

OPINION

Mr. Justice Walker.

Page 422

This was an action brought by appellee before the county judge of Lee county, acting as a justice of the peace, against appellants, to recover the value of a colt injured by a passing train. The case was appealed to and tried in the circuit court.

It appears from the evidence that appellee had, about eight months before the colt was injured, taken it up as an estray, and had attempted to post it as such under the law; that he had held it in his possession during that time; that the colt was running in a pasture adjoining the appellants' railroad, and was only separated by a fence, which the company were bound to keep in repair; that the colt got through the fence and upon the road, and was so badly injured by a passing train in the night time, that it became worthless, and was finally killed. In the court below appellee recovered judgment, and the record is brought here on appeal.

On the sufficiency of the fence, the evidence was not entirely harmonious, but the jury have found it was insufficient, and we shall so regard it in considering the case.

It appears the county judge of Lee county, when acting as a justice of the peace, had, under a special act, jurisdiction to a larger sum than the judgment in this case, and no question of jurisdiction is raised on the record.

But it is urged, that appellee had failed to comply with all the requirements of the estray law in posting this animal, and, for that reason, he could not maintain this action. It is conceded, that had he posted the animal as the statute requires, he then could have recovered. It is manifest, that had he omitted no requirement of the estray law, he would thereby become vested with such a right, or lien upon the property, as would have entitled him to its possession against all persons, even the owner, until he should have paid to him such charges as the law would allow. As a general proposition, subject, it may be, to some...

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