Owens v. Derby

• Decision Date: 31 December 1839
• Citation: 3 Ill. 26,1839 WL 2847,2 Scam. 26
• Parties: STEPHEN OWENS et al.v.ERASTUS H. DERBY.
• Court: Illinois Supreme Court

2 Scam. 26

3 Ill. 26

1839 WL 2847 (Ill.)

STEPHEN OWENS et al.

v.ERASTUS H. DERBY.

Supreme Court of Illinois.

December Term, 1839.

This was an action of trespass vi et armis brought by Derby against Owens and Stevens, in the Hancock circuit court. The declaration contained four counts. The defendants pleaded separately. Owen pleaded non assault demesne as to the first two counts, and the general issue as to the last two. Stevens pleaded the general issue to the whole declaration. Issues were taken on these pleas, and a trial had and verdict and judgment rendered for the plaintiff for $150, at the September term, 1839. On the trial the following bill of exceptions was taken: “Be it remembered, that on the trial of this cause, the plaintiff, in support of his case, offered the following evidence to the jury. That is to say, he proved by the testimony of Bentley and Loftis, two of his witnesses, that Stevens, one of the defendants, as constable, had levied an execution upon some horses, among which was a gray mare; that he had advertised them for sale at Chili, a place in said county; that witnesses, who lived seven miles distant, went in company with Derby, to Chili, at the day of sale, at which time there was a trial of the right of property in the horses levied on,--after which Stevens then sold the gray mare at public sale, the defendant Owens becoming the purchaser, who, after the sale, took the mare and tied her to a fence; after which, the plaintiff, Derby, in company with witnesses, took the mare and rode past a store (where defendants among others were) on their way home. Pursuit was made after plaintiff and witness by several persons who were at the store, who overtook them at the distance of two or three hundred yards from the store. A great deal of noise was made by those pursuing, one of whom seized the gray mare by the bridle, and another seized the bridle of Loftis' horse; that Loftis drew a loaded pistol, telling the pursuers to ‘keep off,’ as they were upon a public road; that the pistol was taken from Loftis, and discharged, after which defendant Stevens came up, and struck Derby several times over the head with the butt of a riding whip; after this, Derby, Stevens, and the rest of the party returned to the store.

“Both of these witnesses testified that Owens was not among the persons pursuing Derby and witnesses, nor had he any hand or participaiion in the assault made by Stevens upon plaintiff.

After the party had returned to the store, Derby remained some time there, and then started off, as witness believed, to get his whip. That Derby afterwards returned to the store, when some altercation took place between Derby and defendant, Owens, who pulled Derby from his horse, and struck him several blows, with his fist, upon his head and face; the defendant Stevens not being present, nor in in any way assisting in the assault made upon Derby by defendant Owens.

No other material testimony in relation to said assaults was offered by plaintiff. After plaintiff had closed his testimony, the defendants, by their coun...