Kinder v. Gillespie
| Decision Date | 31 January 1872 |
| Citation | 1872 WL 8112,63 Ill. 88 |
| Parties | ROBERT KINDERv.JOSEPH GILLESPIE. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Madison county.
Mr. A. W. METCALF, for the appellant.
Mr. DAVID GILLESPIE, and Messrs. DALE & BURNETT, for the appellee.
The only question presented by the record is, whether the court erred in overruling the demurrer to the replication filed by the appellee to the special pleas of the appellant.
The defense sought to be interposed by the pleas is, that the horses belonging to the appellee were running at large in the town of Edwardsville contrary to the provisions of the ordinance of the town, and the town constable, Friday, took them up as he lawfully might and placed them in the custody of the appellant, and that the fees and charges on the same, incurred under the ordinances, were not paid or tendered before they were replevied by the appellee.
To the several pleas setting up these facts in detail, the appellee filed a replication, in which he says that the horses mentioned in the pleas were not running at large within the corporate limits of the town of Edwardsville by his permission, but on the contrary had, just before the time they were so taken up by the town constable, escaped from his inclosure against his will and knowledge, and without any fault on his part, and that he made diligent search for them for the purpose of reclaiming them, and that while he was so engaged they were wrongfully seized and taken up by the town officers.
The court overruled the demurrer interposed to the replication averring these facts, and the appellant electing to stand by his demurrer, judgment was rendered for the appellee.
No reason is perceived why the facts stated in the replication do not furnish a complete answer to the special pleas. We have not before us the ordinances of the town of Edwardsville, and do not know the exact phraseology of the ordinance relied on. But assuming, as we must do, under the state of the pleadings, that the ordinance is correctly pleaded, it can not be fairly said that the horses were running at large within the corporate limits of the town, in the legal sense of those terms, if they escaped from the inclosure of the appellee without any fault on his part, and he made diligent search for them for the purpose of reclaiming them, and while the search was going on, the seizure was made by the town officers.
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Town of Carthage v. Buckner
...presumed: Waddle v. Duncan, 63 Ill. 223; Booth v. Town of Carthage, 67 Ill. 102; Town of Collinsville v. Scanland, 58 Ill. 221; Kinder v. Gillespie, 63 Ill. 88. Upon the rule for construction of penal statutes: Sedgwick on Statutory Law, 295; Bishop on Stat. Crimes, § 216; Monroe v. Chester......
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The Chicago v. John W. Taylor.
...at large and the instruction to that effect was not supported by the evidence: Town of Collinsville v. Scanland, 58 Ill. 221; Kinder v. Gillespie, 63 Ill. 88. LACEY, P. J. Appellee was the owner of a horse and had loaned him to one John Stitzell, a neighbor for whom he was at work, on the l......
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