Blood v. Barnes

• Decision Date: 30 September 1875
• Citation: 79 Ill. 437,1875 WL 8653
• Parties: BOLIVAR BLOODv.CHARLOTTE A. BARNES.
• Court: Illinois Supreme Court

79 Ill. 437

1875 WL 8653 (Ill.)

BOLIVAR BLOOD

v.CHARLOTTE A. BARNES.

Supreme Court of Illinois.

September Term, 1875.

APPEAL from the Circuit Court of Knox county; the Hon. ARTHUR A. SMITH, Judge, presiding.

Mr. F. S. MURPHY, for the appellant.

Messrs. DOUGLASS & HARVEY, for the appellee. Mr. JUSTICE BREESE delivered the opinion of the Court:

This was an action of replevin, brought to the June term. 1874, of the Knox circuit court, by Charlotte A. Barnes. against Bolivar Blood, for a lot of types and material used in printing the “Galesburg Free Press.”

The defendant, who was a constable of the county, pleaded several pleas, among them, that the articles were the property of M. S. Barnes, the husband of the plaintiff, and justifying the taking in virtue of an execution in his hands. issued by the police magistrate, in the suit of W. C. Clarke against the said M. S. Barnes, and levied by him on the property in question.

The jury found the issues for the plaintiff, on which, after overruling a motion for a new trial, the court rendered judgment.

To reverse this judgment, this appeal is taken, and errors assigned upon the instructions given and refused, and in overruling a motion for a new trial.

There have been two trials of this cause, each resulting in a verdict for the plaintiff, and we are now asked to declare there was error in refusing a third trial.

We have examined the evidence carefully, and find no conflict in it, the whole of it going to show the property levied on was the property of the plaintiff, purchased with her own money, and belonging to her in her own right, and derived from a source other than her husband. There is no dispute about this.

The point next insisted on by appellant is, the fact that her husband, the defendant in the execution, used and enjoyed the property as his own, and out of it procured the means for the support of his family, he having no means to do so other than by the practice of his art and skill as a printer.

This, as was held in Dean v. Bailey, 50 Ill. 481, was not incompatible with the ownership residing in the wife. It was there said, if we were to hold that a wife owning personal property rendered it liable for her husband's debts. merely by allowing him to have a general use and control over it, the property of the wife could be secure only by a practical divorce a mensa et thoro, and by setting up a domestic establishment entirely apart from her husband. See, also, Primmer v. Clabaugh, 78 Ill. 94.

An argument is drawn against the right of appellee from the fact that, at one time, her husband mortgaged this property. That is explained as having been done by mistake. It was to raise money in part for the use of the wife, and when the mistake was discovered, she herself executed the mortgage.

This was the only instance in which the husband attempted to exercise a power to dispose of this property, and that, under the circumstances, should not prejudice the right of appellee. Her husband did not claim the property as his. He always said it belonged to his wife, and so informed the officer when he was about to levy the execution. Under a fair interpretation of the act of 1861. and subsequent statutes, the claim of the wife must be acknowledged. Although under cover of this law frauds may be attempted, juries are admonished thereby to exercise the most rigid scrutiny in all such cases. This case has been twice examined by an impartial jury, and they have found nothing of a fraudulent nature in the...