Great Western R.R. Co. of 1859 v. Mccomas

• Decision Date: 31 January 1864
• Citation: 33 Ill. 185,1864 WL 2906,4 Ky.L.Rptr. 913
• Parties: GREAT WESTERN RAILROAD COMPANY OF 1859v.HAMILTON C. MCCOMAS.
• Court: Illinois Supreme Court

4 Ky.L.Rptr. 913

33 Ill. 185

1864 WL 2906 (Ill.)

GREAT WESTERN RAILROAD COMPANY OF 1859

v.HAMILTON C. MCCOMAS.

Supreme Court of Illinois.

January Term, 1864.

ERROR to Circuit Court of Piatt county.

The facts are stated by the court.

Nelson & Roby, for plaintiffs in error.

W. E. Lodge, for defendant in error.

BREESE, J.

This was an action on the case against the Great Western Railroad Company of 1859, for negligence in not delivering certain articles with which they were intrusted as common carriers. The facts appear to be, that, on the 18th of June, 1860, H. C. McComas, the defendant in error, delivered to the railroad company certain articles of property'?? and received from them this receipt:

+------------------------------------------+
                ¦“GREAT WESTERN RAILROAD COMPANY OF 1859,¦)¦
                +----------------------------------------+-¦
                ¦BEMENT STATION, June   18, 1860.        ¦)¦
                +------------------------------------------+
                

Received from H. C. McComas the following articles, contents unknown, in apparent good (W. D. Kerr, Attica, Ind.) order, viz: 1 boiler, 1 smokestack, 1 dome (old), subject to the conditions and rules and on the terms mentioned in their tariff (now in force) for the transportation of merchandise, which are made a part of this contract.

R. B. GRIFFIN, Agent.”

It appears, while the articles were on the cars on the route east, they were seized by the sheriff of Vermillion county, by virtue of a writ of replevin, at the suit of one Thomas Lewis. To the action the defendants pleaded, first, non detinet; second, that the boiler was the property of one William C. Conrad; third, that the boiler was the property of one William C. Conrad, and not the property of Lewis, and that the boiler was delivered by Conrad to the defendant, to be transported from Bement, Piatt county, to a station called the State Line, on the Great Western Railroad, for certain hire and reward paid by Conrad, and that the boiler was held under this contract with Conrad. The company also pleaded that a writ of replevin, issued by the clerk of the Piatt Circuit Court, directed to William Motherspaws, as elizor, came to his hands, and by virtue thereof the elizor seized the boiler on the 26th day of April, 1860, and delivered it to H. C. McComas, attorney of Conrad; that the writ of replevin was then pending between Conrad and the sheriff of Piatt county, and undetermined; and that Conrad, after the delivery to him of the boiler, delivered the same to the company at Bement, and then and there held and employed the defendant to ship and transport the boiler for him, Conrad, from Bement to the State Line, &c.; wherefore they held and detained the boiler.

The issues upon these pleas were found for the company, and a writ of retorno habendo was awarded. By this judgment the articles were restored to the company, and were, in legal contemplation, in their possession.

It would seem, however, the company did not prosecute the writ of retorno habendo, but suffered the property to remain in the possession of Lewis; at any rate, they did not deliver it, as they had contracted to do. Now, the question is, as...