{
  "id": 5123605,
  "name": "Davies v. Kentucky Horse Breeders' Association",
  "name_abbreviation": "Davies v. Kentucky Horse Breeders' Ass'n",
  "decision_date": "1893-02-14",
  "docket_number": "",
  "first_page": "81",
  "last_page": "84",
  "citations": [
    {
      "type": "official",
      "cite": "50 Ill. App. 81"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [],
  "analysis": {
    "cardinality": 347,
    "char_count": 5640,
    "ocr_confidence": 0.462,
    "sha256": "1bcdaa2c746b0c95009f3fd4881ef9e9724505ef1497445c2ba77cb47c33f176",
    "simhash": "1:62e792e55929d11c",
    "word_count": 987
  },
  "last_updated": "2023-07-14T15:57:42.711650+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Davies v. Kentucky Horse Breeders\u2019 Association."
    ],
    "opinions": [
      {
        "text": "Opinion of the Court,\nShepard, J.\nThis was an action in assumpsit, and in place of special pleading, it Was stipulated by the parties, \u201c that the plaintiff may introduce evidence of any cause of action that he could introduce, if the same had been properly and legally set forth in special counts, and that the defendant may introduce evidence of any defense or set-off which he could introduce if the said defense had been properly and legally pleaded in special pleas, and that the plaintiff may introduce in rebuttal thereto any evidence which he could introduce if the proper and legal general replications had been actually pleaded.\u201d Upon this stipulation the case went to trial.\nAppellant was the owner of a pacing stallion, called Roy Wilkes, and entered him for a race over a track belonging to the appellee.\nIn the race the stallion won both the first and third premiums, aggregating $650.\nThis suit was to recover the amount of those premiums, less $200 due appellee for entrance and driver\u2019s fees.\nThe defense was a set-off of an alleged fine of $1,000, imposed upon appellant for something that happened in the course of the race.\nThe trial court refused all instructions requested by the appellant, and directed the jury generally to find the issues for the appellee corporation, and upon this verdict judgment was entered against the appellant.\nThe imposition of the alleged fine was attempted to be shown by the introduction of what is called in the offer made of it, \u201c the judge\u2019s book of the official record \u201d of the race. Therein, under a printed heading as follows:\n\u201c REMARKS, ETC.\nEnter below, at the time, a record of all appeals and protests, and of all fines and other penalties imposed by the judges. (See sections 2 and 8 of instructions.) \u201d\nThere appears the following, in writing:\n\u201c At the conclusion of the second heat, the judges put in Ed Geers, in place of George Eobens, to drive Eoy Willces. At the conclusion of the race, the presiding judge announced that the decision relative to penalties would be announced on the following day, and on the following morning it was announced that L. A. Dawes, the owner of Eoy Wilkes, was fined one thousand dollars, and George Eobens, the driver, five hundred dollars, and ordered both be suspended until fines are paid. The judges awarded Ed Geers one hundred dollars for finishing the race and winning the race,\nP. P. Johnston,\nHamilton Busbey,\nJudges.\nEd. Tipton, Clerk.\u201d\nAssuming that the judges had the power to impose a fine upon the appellant, and that such fine, if imposed, would be a proper set-off, the record is devoid of any competent and sufficient evidence that they exercised \"such power. The entry of what has been quoted from the \u201c Judge\u2019s book,\u201d is a mere recital that on the morning following the race, somebody announced that appellant had been fined a thousand dollars, but it fails to state who imposed the fine, when it was imposed, or for what offense.\nIt would be an indulgence in pure conjecture to say who had fined the appellant, or what he had been fined for. The by-laws and rules of the National Trotting Association, which were received in evidence, taken in connection with the conduct of appellant, may or may not have warranted the imposition of a fine. It is not necessary for us to determine that question. So far as has been pointed out, or as we have been able to discover in the record, it does not appear that a fine was imposed by any authorized person or for the violation of any rule of the association.\nThe law will not permit the taking of one man\u2019s property by fine, or otherwise, by a mere statement that some other map has announced that it had been done.\nIt is stated in appellee\u2019s brief that it was admitted that under the authority of the rules of the National Trotting Association the judges imposed the fine in question, but we find no such admission in the record.\nIt is true that the appellant in his testimony often speaks of the fine, and of having been fined, but there seems nowhere to be an admission of the fine as a lawful imposition upon him., and it is apparent that he only used the word fine as descriptive of the penalty claimed against him.\nCounsel for appellant also objected to the book on the express ground that it was not a record of the fine, and was nothing but a memorandum that something had been done, and not of the thing itself, and at the conclusion of the evidence moved the court to exclude from the consideration of the jury all evidence in relation to the fine on the ground, among others, that the fine was not a lawful one.\nThe defense of set-off is an affirmative one, and a party seeking to establish it must do so by competent evidence.\nBecause the appellee failed to prove by competent evidence the imposition of the fine in question, the judgment of the court below will be reversed and the cause remanded.",
        "type": "majority",
        "author": "Shepard, J."
      }
    ],
    "attorneys": [
      "William S. Foerest and M. Rosenthal, attorneys for appellant.",
      "Hetz & Fisher, attorneys for appellee.'"
    ],
    "corrections": "",
    "head_matter": "Davies v. Kentucky Horse Breeders\u2019 Association.\n1. Fines and Penalties\u2014Power to Inflict\u2014The law will not permit the taking of one man\u2019s property by fine, or otherwise, by a mere statement that some other man has announced that a fine had been imposed.\n2. Set-ore\u2014An Affirmative Defense.\u2014 The defense of set-off is an affirmative one, and a party seeking to establish it must do so by competent evidence.\nMemorandum.\u2014Assumpsit. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the October term, 1892.\nOpinion filed February 14, 1893.\nThe statement of facts is contained in the opinion of the court.\nWilliam S. Foerest and M. Rosenthal, attorneys for appellant.\nHetz & Fisher, attorneys for appellee.'"
  },
  "file_name": "0081-01",
  "first_page_order": 77,
  "last_page_order": 80
}