Primmer v. Clabaugh

Citation78 Ill. 94,1875 WL 8427
PartiesJAMES W. PRIMMERv.JOHN CLABAUGH.
Decision Date30 June 1875
CourtSupreme Court of Illinois

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Marion county; the Hon. AMOS WATTS, Judge, presiding.

Mr. W. W. WILLARD, and Mr. B. B. SMITH, for the appellant.

Mr. A. H. WHITE, for the appellee. Mr. JUSTICE BREESE delivered the opinion of the Court:

This was replevin in the cepit and detinet, brought to the Marion circuit court by John Clabaugh against James W. Primmer, for a lot of mules, cattle, farming implements and other like personal property.

The pleas were, non cepit and non detinet, and a special plea that the property was the proper goods and chattels of one John J. Dolson, deceased, on whose estate defendant had administered, and claiming to hold the property as such administrator.

On issues being made up, the cause, by consent of parties, was referred to Michael Schæffer, Esq., under the first section of Ch. 117, R. S. 1874, title, “Referees,” who reported the evidence and his conclusions thereon, to which exceptions were taken by the defendant, and the same argued, and considered by the court. The exceptions were disallowed, and a judgment rendered according to the finding and suggestions of the referee.

From this judgment the defendant appeals.

The plaintiff claimed the possession of the property in question, in virtue of two chattel mortgages executed by Emily H. Dolson, the wife of the intestate, one to Alexander Cameron, and by him assigned to the plaintiff; the other executed to the plaintiff himself, to secure certain notes executed by Mrs. Dolson to the parties respectively.

The first objection made by appellant is, that Mrs. Dolson was not a competent witness for the plaintiff, under section 5 of Ch. 51, title, “Evidence and Depositions,” R. S. 1874.

We have no doubt the wife was a competent witness, and made so by the section to which reference is made, “the litigation involving the separate property of the wife.” Was her husband living, it is certain she could be a witness to protect her own separate property rights. His death can not place her in a worse position, and should not. Dead or alive, the wife or widow can vindicate her right to her separate property, before any tribunal in this State. It would be gross injustice to declare that the rights of a married woman are lost by the death of her husband.

The wife being a competent witness, there could be no hesitation on the part of the referee or the court in...

To continue reading

Request your trial
15 cases
  • Morris v. Fletcher
    • United States
    • Arkansas Supreme Court
    • October 21, 1899
    ...action in improving his wife's property was not a fraud upon his creditors, and the value so added cannot be reached by them. 33 Vt. 457; 78 Ill. 94; 34 N.Y. 493; 44 N.Y. 343; 50 481; 5 Sneed, 39. The recitals in the deed bind appellees. Jones, Ev., § 283; 58 Ga. 178; 88 Ill. 427; 97 Pa.St.......
  • State ex rel. Goldsoll v. Chatham Nat'l Bank
    • United States
    • Missouri Supreme Court
    • October 31, 1883
    ...287; Pierce v. Hartrouck, 49 Ill. 23; Stewart v. Ball, 33 Mo. 154; Keeny v. Good,21 Pa. St. 355; Gamber v. Gamber, 18 Ind. 363; Primmer v. Clabaugh, 78 Ill. 94; Ryan v. Merriam, 4 Allen 79; Eystra v. Capelle, 61 Mo. 578; Hambright v. Brockman, 59 Mo. 57; Paul v. Leavitt, 53 Mo. 595; Hearle ......
  • Osborn v. Albers
    • United States
    • Illinois Supreme Court
    • April 13, 1937
    ...the common interest and the proper enjoyment of the property, the products will not belong to him, or be liable for his debts. Primmer v. Clabaugh, 78 Ill. 94;Bongard v. Core, 82 Ill. 19;Bennett v. Stout, 98 Ill. 47. Each case must be determined from its own facts and circumstances. If it a......
  • Reed v. Baggott
    • United States
    • United States Appellate Court of Illinois
    • October 31, 1879
    ... ... 258] Blood v. Barnes, 79 Ill. 437; Dean v. Bailey, 50 Ill. 481; Primmer v. Clabaugh, 78 Ill. 94; Klein v. Seibold, Ill. Syn. Rep. 120.Giving a note for an entire account due is a presumption that it was intended as a ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT