Brown v. Boyce

• Decision Date: 30 June 1873
• Parties: HENRY BROWNv.WILLIAM BOYCE, JR.
• Court: Illinois Supreme Court

68 Ill. 294

1873 WL 8344 (Ill.)

HENRY BROWN

v.WILLIAM BOYCE, JR.

Supreme Court of Illinois.

June Term, 1873.

OPINION TEXT STARTS HEREAPPEAL from the Circuit Court of St. Clair county; the Hon. JOSEPH GILLESPIE, Judge, presiding.

This was an action, commenced by William Boyce, Jr., against Henry Brown, before a justice of the peace, for the value of a heifer of the plaintiff. The facts are fully stated in the opinion.

Messrs. C. W. & E. L. THOMAS, for the appellant.

Messrs. SNYDER & DILL, for the appellee.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

It is sought to sustain the judgment of the circuit court on two grounds: First, the appellant is guilty under the “Act concerning drovers;” and, second, he is guilty of conversion of the property, and is liable in trover.

Neither ground is maintainable. The appellant was not a drover, and was not engaged in driving cattle. He was assisting Mr. Hart, as a neighborly act, to drive his own and some cattle he had sold him, a short distance, and while they were so engaged, the animal in controversy got among them. The herd belonged to Hart.

The evidence shows, all parties engaged in driving the cattle did everything reasonable men could to keep it out of the herd, but they were unable to do so. They finally concluded it was best to allow it to go along with the other cattle, and the appellant was to buy it of appellee, if he could, for Hart. It got with Hart's cattle without any fault on the part of appellant, and if Hart drove it a distance of more than five miles, appellant is in no way responsible for it.

There was no conversion of the property by appellant or any one else. He never sold it, or pretended to sell it. When it was found to be impracticable to keep it out of the herd, he disclosed the true owner's name and offered to buy it for Hart if he could. This was all the connection he had with the transaction. In hunting for his property, the appellee found it in the inclosure of Hart, and was distinctly told he could take it. This he refused to do.

Much stress is laid on the fact, appellant, when inquired of, told appellee he did not know where the heifer was. Appellant gives a reasonable explanation of this remark. He had lately passed Hart's pastures and did not see it with the other cattle, and could truthfully say he did not know where it was. But if he had given incorrect information, still it was not such an unlawful interference with the property of another as would amount to a conversion...