Marshall v. Cunningham

• Decision Date: 30 November 1851
• Citation: 3 Peck 20,13 Ill. 20,1851 WL 4297
• Parties: JAMES MARSHALLv.JOHN CUNNINGHAM et al.
• Court: Illinois Supreme Court

13 Ill. 20
1851 WL 4297 (Ill.)
3 Peck (IL) 20

JAMES MARSHALL
v.
JOHN CUNNINGHAM et al.

Supreme Court of Illinois.

November Term, 1851.

THIS cause was tried before MARSHALL, judge, and a jury, at May term, 1851, of the Marion circuit court. The jury found “that the property in dispute is the property of the claimants.” James Marshall, the plaintiff in the execution by virtue of which the property claimed was levied upon, took this appeal. The facts of the case are set out in the opinion of the court.

J. N. HAYNIE, for appellant.

W. B. SCATES, for appellees.

TREAT, C. J.

Marshall recovered a judgment against Hamilton, before a justice of the peace; and an execution issued thereon was levied on a mare and colt, which were claimed by Cunningham and Marshall. On the trial of the right of property in the circuit court, where the case was pending by appeal, the constable testified that the plaintiff sued out a warrant against Hamilton and placed it in his hands; he arrested Hamilton and brought him into town; Hamilton rode the mare, the colt following, and both were then his property; witness saw the mare

[13 Ill. 21]

tied to a stake, and Hamilton and Cunningham conversing together near the place; Hamilton confessed the judgment, and the execution was immediately issued and delivered to the witness; he went with the same to Hamilton, but could find no property; three or four days afterwards he levied on the mare and colt in the possession of Cunningham, and had not seen them in his possession before. This was all of the evidence. The jury found that the property belonged to the claimants. The court refused a new trial and the claimants had judgment.

In the trial of the right of property...