Hatch v. Marsh
| Decision Date | 31 January 1874 |
| Citation | 71 Ill. 370,1874 WL 8676 |
| Parties | IRA W. HATCH et al.v.JOHN MARSH. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Moultrie county.
Mr. ANTHONY THORNTON, for the appellants.
Messrs. CREA & EWING, for the appellee.
The question upon which this case turns, is, whether appellant Smith owned or possessed the cattle, within the meaning of the statute. That he intended to acquire a lien, and that Hatch intended to and did give him a lien on the cattle, we think is clear. But does that, of itself, create a liability on the part of Smith? The act of 1867, Sess. Laws, 169, provides, that it shall not be lawful for any person to bring into this State, or own, or have in possession, any Cherokee or Texas cattle. The second section imposes a penalty, and provides that such person shall pay all damages that may accrue to any person by reason of such violation of the act.
It is not claimed, nor can it be, that Smith brought the cattle into the State. Nor do we think the evidence establishes an ownership in him. The testimony of Hatch and Smith is, that there was no purchase by Smith, but Hatch was to hold them as security for the payment of the notes Smith had indorsed, and Hatch was to sell when Smith required it. Low, who testified to Smith's admission that he purchased of the bank, must have been mistaken, if Smith and Hatch are to be credited. Again, the bank did not own the cattle. Mansfield furnished the money to purchase the cattle for Hatch, and they were purchased and shipped in Mansfield's name.
A consideration of the entire evidence seems to show that Smith was not the owner, but simply had a lien on them to indemnify him as Hatch's surety for the two notes of $10,000 each, on which the money was procured to pay Mansfield for his advances to Hatch for the purchase of the cattle. He was not the absolute owner of the cattle, and did not even have such a lien on the cattle as he could have enforced against bona fide purchasers or creditors, and we think, from the evidence in the case, that Smith was not an owner of the cattle within the meaning of the statute.
The possession referred to in the statute must have been intended as the usual and well known possession that men generally have of personal property. Smith does not seem to have had such possession. Hatch says he was to hold them in the name of Smith for his security, until the latter should direct him to sell; and to the same effect is Smith's testimony. If this testimony is true, Hatch held the possession, whilst Smith had a lien on them to indemnify him as Hatch's surety on the notes. Smith could not have replevied the cattle and taken them from the possession of Hatch, as he was to hold them until Smith directed him to sell. He could, no doubt, have resorted to legal proceedings and restrained Hatch from disposing of them contrary to, or without his directions, or from otherwise violating their agreement. But we fail to see that he had the possession, or was even entitled to it. If this...
To continue reading
Request your trial
-
Flansburg v. Basin
...Frame v. Badger, 79 Ill. 441; Ogden v. Kirby, 79 Ill. 556; McCartney, v. McMullen, 38 Ill. 237; Evans v. George, 80 Ill. 51; Hatch v. Marsh, 71 Ill. 370. Though for this alone there might not be a reversal. Grube v. Nichols, 36 Ill. 92. It is also said that a failure to exercise ordinary ca......
-
Brant v. Gallup
...v. Bartholomew, 18 Ill. 326; Jamison v. Graham, 59 Ill. 94; Merchants' Ins. Co. v. Paige, 60 Ill. 448; Homes v. Hale, 71 Ill. 552; Hatch v. Marsh, 71 Ill. 370; Hewett v. Johnson, 72 Ill. 513; Calef v. Thomas, 81 Ill. 478; Ogden v. Kirby, 79 Ill. 555; Frame v. Badger, 79 Ill. 441; T. W. & W.......
-
Shugart v. Halliday
...portions of the evidence, and thus giving undue prominence thereto: Ogden v. Kirby, 79 Ill. 555; Hewett v. Johnson, 72 Ill. 513; Hatch v. Marsh, 71 Ill. 370; Holmes v. Hale, Id. 535, and many previous cases. The twelfth instruction given for the plaintiff (appellee) was as follows: “If the ......
-
Comisky v. Breen
...to a single isolated fact, is vicious: Hewitt v. Johnson, 72 Ill. 513; Evans v. George, 80 Ill. 51; Ogden v. Kirby, 79 Ill. 555; Hatch v. Marsh, 71 Ill. 370; Homes v. Hale, 71 Ill. 552. The plaintiff must show affirmatively a want of probable cause: Ames v. Snider, 69 Ill. 376; Palmer v. Ri......