Ellington v. King

• Court: Illinois Supreme Court
• Writing for the Court: LAWRENCE
• Citation: Ellington v. King, 49 Ill. 449, 1869 WL 5137 (Ill. 1869)
• Decision Date: 31 January 1869
• Parties: DANIEL ELLINGTONv.SAMUEL J. KING.

49 Ill. 449

1869 WL 5137 (Ill.)

DANIEL ELLINGTON

v.SAMUEL J. KING.

Supreme Court of Illinois.

January Term, 1869.

WRIT OF ERROR to the Circuit Court of Clark county; the Hon. H. B. DECIUS, Judge, presiding.

This was an action of replevin, originally brought before a justice of the peace, by the defendant in error, Samuel J. King, against the plaintiff in error, Daniel Ellington, for the recovery of a horse. The plaintiff obtained a verdict and judgment before the justice, and the same result followed upon an appeal to the circuit court of Clark county. The further facts are fully stated in the opinion.

Mr. JOHN SCHOLFIELD, for the plaintiff in error.

Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

King exchanged his horse for a mare belonging to the plaintiff in error, Daniel Ellington, defendant in the court below. The trade was made with Addison Ellington, acting as agent for his father, Daniel. The mare proving unsound, King, about two weeks after the trade, took her back to Addison, who was living with an uncle, a mile and a-half from his father, and requested him to take her and return the horse. Addison replied, his father had the horse, and plaintiff must go to him. This plaintiff did not do, and did not at any time offer to the defendant to return the mare or demand his horse. King brought replevin and obtained a verdict and judgment.

On the trial, the court gave the following instruction for the plaintiff:

“If the evidence shows the defendant, Ellington, recognized the agency of his son in making the trade, then a demand from the son, whose agency was recognized and continued by defendant, with power to deliver said horse, was all the demand...