Ashlock v. Linder

• Decision Date: 31 January 1869
• Citation: Ashlock v. Linder, 50 Ill. 169, 1869 WL 5193 (Ill. 1869)
• Parties: WILLIAM M. ASHLOCKv.ISHAM LINDER.
• Court: Illinois Supreme Court

50 Ill. 169

1869 WL 5193 (Ill.)

WILLIAM M. ASHLOCK

v.ISHAM LINDER.

Supreme Court of Illinois.

January Term, 1869.

WRIT OF ERROR to the Circuit Court of Greene county; the Hon. CHARLES D. HODGES, Judge, presiding.

This was a suit commenced before a justice of the peace, by Linder, to recover the value of some rails which he alleges were taken by Ashlock; the cause was removed into the circuit court by appeal.

On the trial, Linder testified that he was the owner of the land on which the rails were cut.

Armstrong testified that, after the commencement of the suit he carried an offer of compromise from Ashlock, to the effect that if Linder would join Ashlock in getting a surveyor and have the lines run out, should the result of such survey show that Ashlock had trespassed upon Linder, he would pay for it, provided that Linder would pay for such trespasses as he may have committed.

McGowen, another witness, testified that he was at the trial before the justice, and heard Ashlock say, if Linder would run out the lines by a survey, and prove thereby that he had trespassed upon him, he would pay him for the rails. To this testimony the defendant interposed objection, on the ground that they were statements made by Ashlock, when trying to effect a compromise, and were not admissible in evidence against him as to the taking.

The following instructions were asked by the defendant and refused by the court:

1st. “The court instructs the jury for the defendant, that if the jury believe that Mr. Ashlock made a proposition to Mr. Linder to have a survey of the land in controversy and if he had trespassed upon Linder he would pay for it, and Linder rejected such proposition for a compromise, and never admitted that he had trespassed, such proposition having been made to effect a compromise, ought not to be considered by the jury as an admission that he did take the rails of plaintiff.”

2d. “That the jury have no right to infer from the fact that the defendant was not sworn, that he did commit the trespass complained of, as the plaintiff had the same right to call the defendant that he had to offer himself as a witness.”

The trial resulted in a verdict and judgment for the plaintiff. The admission of improper testimony, and the refusal of the instructions asked by the defendant are the grounds of error assigned, for which this court is asked to reverse the judgment.

Mr. JAMES W. ENGLISH, for the plaintiff in error.

Messrs. WOODSON & WITHERS, for ...