Akers v. George

• Court: Illinois Supreme Court
• Writing for the Court: Per CURIAM
• Citation: Akers v. George, 61 Ill. 376, 1871 WL 8276 (Ill. 1871)
• Decision Date: 30 September 1871
• Parties: GEORGE W. AKERSv.DAVID GEORGE.

61 Ill. 376

1871 WL 8276 (Ill.)

GEORGE W. AKERS

v.DAVID GEORGE.

Supreme Court of Illinois.

September Term, 1871.

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

This was an action of replevin, brought by Akers against George, for the alleged wrongful taking and detention, by the defendant, of ninety head of cattle belonging to the plaintiff.

The defendant justified the taking of the cattle under the act of March 7, 1867, entitled “An act to prevent domestic animals from running at large in the counties of Monroe, St. Clair and other counties.”

The cattle were taken up by the defendant while upon his premises, they having passed thereon from the enclosure wherein they were grazing.

To the pleas of the defendant the plaintiff filed an amended additional replication, as follows:

That defendant ought not to avow said taking of said cattle, etc., in the place in which, etc., and justly, etc., by reason of anything in said amended second plea and additional plea contained, because he says that, at said time, when, etc., said lands of defendant in said pleas mentioned adjoined the certain lands of plaintiff and one John Dement; that before, and at the time when, etc., said lands of plaintiff and John Dement were enclosed by an outside fence, and made and composed one common field, were not separated or divided by any partition fence, and before then had been, and then were, used, occupied and enjoyed by plaintiff with the consent and knowledge of said John Dement; that before said time, when, etc., between said lands of defendant and said lands of said John Dement there had been erected a partition fence dividing and separating said lands of defendant from said lands of said John Dement; that, on September 26, 1869, the cattle of defendant broke down said partition fence; that, thereupon, it became and was the duty of defendan...