Piner v. Cover
Citation | 1870 WL 6436,55 Ill. 391 |
Parties | ROBERT M. PINERv.ELI COVER. |
Decision Date | 30 September 1870 |
Court | Supreme Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Knox county; the Hon. ARTHUR A. SMITH, Judge, presiding.
This was an action of replevin, brought in the court below, by Piner against Cover. A trial resulted in a verdict and judgment in favor of the defendant. The plaintiff appealed.
Mr. A. L. HUMPHREY and Messrs. HANNAMAN, KRETZINGER & HANNAMAN, for the appellant. Messrs. CRAIG & HARVEY, for the appellee.
This was an action of replevin, brought to the Knox circuit court, for a brick kiln, which the plaintiff claimed to have purchased from Milton Grim, on the fourteenth day of June, 1869, and which the defendant claimed to hold, as constable, on a writ of attachment issued against Grim, on the thirty-first of July, 1869, and levied on the fourteenth of August, 1869.
Exceptions were taken to the instructions given on behalf of the defendant, and among them the second and third. The second instruction is as follows:
“The jury are instructed, if they find from the evidence that the arrangement made between Piner and Grim was that Piner should take the brick and dispose of the same, and apply the proceeds on debts of Grim, that, in law, does not amount to a sale, and in that case the brick were liable to be taken on the attachment.”
This instruction was calculated to mislead, as such an agreement might amount to a sale, if the transaction was fair. But the principal objection to it is, there is no evidence on which to base it.
The testimony, both parol and in writing, is to the point, that whatever debts of Grim, Piner might pay, should be credited on his note to Grim. The third instruction is:
“If the jury find from the evidence, that Grim originally owned the brick and was in possession thereof, and there was no change of possession, but that the brick still remained as they were, in Grim's possession, on the third of August, 1869, when levied on, then, and in that case, they were liable to be taken on the writ of attachment, and the jury should find for the defendant.” This instruction was wrong, as, from the nature of the article--a brick kiln--it could not be taken possession of in any other mode than by exercising acts of ownership over it, to the exclusion of others. The jury would understand by the terms of this instruction, that the kiln should be removed from the ground in order...
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