Mitchell v. the Town of Fond Du Lac.
| Decision Date | 30 September 1871 |
| Citation | 61 Ill. 174,1871 WL 8225 |
| Parties | ELIAS MITCHELL, Adm'r,v.THE TOWN OF FOND DU LAC. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Tazewell county; the Hon. CHARLES TURNER, Judge, presiding.
Messrs. WILLIAMS & ELLIOTT, for the appellant.
Mr. C. A. ROBERTS and Mr. N. W. GREEN, for the appellee.
This was assumpsit, brought by appellant as administrator of the estate of William Mitchell, deceased, against appellee, to recover for the support and maintenance by the intestate in his lifetime of one Eliza McFerren, from the 23d of March, 1857, to the 23d of January, 1858, said Eliza being an alleged pauper and resident of the said township.
The jury rendered a verdict for appellee, and the court overruled the motion of appellant for a new trial.
Several grounds are relied upon for reversal:
First--That the court erred in overruling the motion for a new trial.
Second--The court erred in refusing appellant's second instruction.
Third--In giving instructions on behalf of appellee.
The first and second grounds are untenable. We have looked into the evidence preserved in the bill of exceptions, and find it of so indefinite a character that we can not say that the verdict was manifestly against the weight of the evidence.
The second instruction on behalf of appellant, which was refused, contains no proposition of law applicable to the case. There was no question of the disability of infants involved in the case. Appellant brought the action in the character of administrator, and it was wholly immaterial, under the circumstances of this case, how long he had been under disability. The first instruction on behalf of appellee is as follows:
“If the jury believe, from the evidence, that the person, Eliza McFerren, was boarded and lodged and furnished with clothing by William Mitchell (whose administrator brings suit) from the 1st day of March, A. D. 1857, until his death in 1858, yet, unless they further believe, from the evidence, that during that time the said Eliza McFerren was a pauper for whose support the defendant was legally liable, or for whose support the defendant had, by its proper officer, contracted to pay the said William Mitchell for during said time, they will find for the defendant.”
This instruction submits to the determination of the jury two questions of law, without any aid from the court, viz.:
First--What shall constitute the legal...
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...is the arbiter of facts. Tracewell v. County Court, 58 W.Va. 283, 52 S.E. 185; Lawrence v. Hyde, 77 W.Va. 639, 88 S.E. 45; Mitchell v. Town of Fond du Lac, 61 Ill. 174; Hudson v. Railway Co., 53 Mo. 525; Thomas Thomas, 15 B. Mon. (Ky) 178. While this instruction by the use of the word "unla......
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