Ward v. Brown
| Decision Date | 30 September 1872 |
| Citation | 1872 WL 8313,64 Ill. 307,16 Am.Rep. 561 |
| Parties | THOMAS WARD et al.v.HARVEY BROWN. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of LaSalle county; the Hon. EDWIN S. LELAND, Judge, presiding.
Mr. E. F. BULL, for the appellants.
Messrs. ELDRIDGE & LEWIS, for the appellee.
This was an action of trespass, brought by appellee, before a justice of the peace, against appellants, to recover damages claimed to have been sustained by the trespass of appellants' cattle upon appellee's premises. A trial before the justice of the peace resulted in a judgment in favor of plaintiffs for $24 and costs. The case was removed by appeal to the circuit court of LaSalle county, where a trial was again had by the court, by consent of the parties, without a jury, which resulted in a like judgment as that rendered by the justice, and the case is appealed to this court.
It appears from the record in the case that appellants agreed with one Conners to pasture their cattle, for a specified price per week, in the cornstalk fields of Conners. Afterwards, Conners made an arrangement with one Burns, without the knowledge of appellants, by which the cattle were placed in Burns' field, which adjoined Conners', and they were to divide the pay, according to an agreement between them. The cattle were first put into Conners' field, but the fence was taken down between Conners' and Burns' fields by them, and the cattle were permitted to run in both fields. The cattle broke through from the field of Burns to that of appellee, and committed the trespass for which the action was brought. It also appears that the portion of the division fence between appellee and Burns, which the latter was bound to maintain, was insufficient to turn stock, and the cattle passed through that portion of the fence. The trespasses were committed before appellants knew that the cattle had been turned into Burns' field. There were also 10 or 15 head of Conners' cattle running with those of appellants.
Are appellants liable, under the circumstances of the case, to respond in damages? We think not. In Hilliard on Torts, vol. 1, p. 565, it is said: “If a servant or stranger, without the concurrence of the owner, chase or put his cattle into another's land, such owner is not liable, but the action must be brought against the servant or stranger;” and it is said in Bacon's Abridgment, title Trespass G 2, p. 594, “if a servant, without the knowledge of his master, put his master's beasts into the close of J S, this action does not lie against the master.” In this case we can see no act done by appellants which...
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