Cannon v. Kinney

• Court: Supreme Court of Illinois
• Writing for the Court: BREESE
• Citation: 4 Ill. 9,1841 WL 3229,3 Scam. 9
• Parties: Manly F. Cannon, plaintiff in error,v.Matthew P. Kinney, defendant in error.
• Decision Date: 31 July 1841

3 Scam. 9
4 Ill. 9
1841 WL 3229 (Ill.)

Manly F. Cannon, plaintiff in error,
v.
Matthew P. Kinney, defendant in error.

Supreme Court of Illinois.

July Term, 1841.

Error to Sangamon.

To maintain the action of trespass to personal property, the plaintiff must, at the time the injury is committed, have the actual or constructive possession, and also a general or qualified property therein, which may be either first, as the absolute or general owner, having the right to immediate possession; secondly, as the qualified owner, coupled with an interest, and also entitled to immediate possession; thirdly, as bailee with a mere naked authority, unaccompanied with any interest, except as recompense for trouble, etc., but who is in actual possession; or fourthly, actual possession, though without the consent of the real owner, and even adverse. The absolute ownership or general property in a chattel, prima facie, for all civil purposes, draws to it the possession.

Where a horse was gratuitously loaned to A to ride to B, and A, after having accomplished his journey, put the horse into the hands of C, who put him into the hands of D, who turned the horse out on the prairie to feed with his own horses, and E, a stranger, took the horse and carried him away: Held, that A could maintain trespass against him.

The rule seems to be well settled that, where the legal possession of personal property, which is an incident to a general or absolute ownership, is in one who has not the actual keeping of the goods, he may bring an action of trespass for an injury to the same.

The constructive possession of an owner, is sufficient to entitle him to maintain trespass for taking personal property out of the hands of a person to whom it is lent.

This cause was tried in the Sangamon Circuit Court before the Hon. Samuel A. Treat and a jury, at the July term, 1839.

A. Lincoln, for the plaintiff in error, relied upon the following points and authorities:

I. If the plaintiff showed himself to be the general owner of the horse, and also entitled to the immediate possession of him, at the time the defendant seized him, he showed a constructive possession, which is sufficient: 1 Chit. Plead., 153.

1. The general owner of personal property may maintain trespass against a third person who takes such property from the bailee, by gratuitous loan, of such general owner: Ibid, 154; 3 Johns. Dig., 575.

2. The general owner of personal property, who deposits such property with a bailee, and such bailee places the property in the hands of a third person for safe keeping, may maintain trespass against a stranger who takes such property from such safekeeper: 6 Bac. Abr., 577; 1 Chit. Plead., 153, note 2; 1 Pick., 232.

NOTE.--Property in the hands of a naked bailee is not changed by the gift and delivery of the same, by such bailee, to a third person: 6 Bac. Abr., title Trespass, E. 577; 6 Bac. Abr., title Trover, C 684.

In this case the keeper had no lien upon the horse for the keeping:

First. Because there was a special undertaking to pay;

[4 Ill. 10]

Second. Because the facts of the case do not raise a lien under the law: Montagu on Lien, 29, and note ( f); Esp. N. P., 584.

If there were a lien in favor of Harris, Kinney could not avail himself of it in...