{
  "id": 5164483,
  "name": "Anthony Wright v. Jobe Mahoney",
  "name_abbreviation": "Wright v. Mahoney",
  "decision_date": "1895-11-15",
  "docket_number": "",
  "first_page": "125",
  "last_page": "128",
  "citations": [
    {
      "type": "official",
      "cite": "61 Ill. App. 125"
    }
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  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
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  "last_updated": "2023-07-14T20:50:02.966731+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Anthony Wright v. Jobe Mahoney."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Boggs\ndelivered the opinion oe the Court.\nThe principal question here presented is whether Wright was authorized to seize the cow \u201c damage feasant.\u201d\nWe think he was not.\nHe was the owner, but Mahoney was in possession of the farm, by peaceable entry as his tenant, and an action was pending to determine whether the right of occupancy had expired.\nUnder such circumstances Sec. 21, Chap. 54, R. S., does not invest an \u201c owner \u201d with authority to distrain animals belonging to the \u201c occupier.\u201d\nIt was unlawful under the statute of forcible entry and detainer for the owner in the case at bar to enter upon premises in the actual possession of the \u201c occupier,\u201d his tenant, for the purpose of seizing and removing from the premises animals of the latter. Being unlawful, such entry was a trespass, even though the tenant was holding over wrongfully. Reeder v. Purdy, 41 Ill. 284; Farwell v. Warren, 51 Ill. 467.\nSection 21 aforesaid can not be construed to authorize the commission of a trespass.\nThe cow was, therefore, wrongfully in the possession of Wright and was properly restored to its owner by the judgment in replevin.\nWhether the tenant was rightfully in possession of the farm, under the terms of lease, was unimportant.\nHe had actual possession, and the statute of forcible entry and detainer forbade forcible interference therewith.\nHence the court properly rejected evidence relating to the terms and conditions of the contract under which the tenant obtained possession of the farm.\nThe evidence upon which the award of damages was made in the main was incompetent.\nBut it was not objected to, nor was the court asked to withdraw it, or to instruct the jury as to the true measure of damages, or to grant a new trial for that reason.\nWe are without power to consider objections that might have been, but were not, made, and which might have been obviated in the lower court had they been made.\nThe judgment is affirmed.",
        "type": "majority",
        "author": "Mr. Justice Boggs"
      }
    ],
    "attorneys": [
      "W. H. Whitaker, attorney for appellant.",
      "Meeker & Meeker, attorneys for appellee,"
    ],
    "corrections": "",
    "head_matter": "Anthony Wright v. Jobe Mahoney.\n1. Forcible Detainer\u2014Right of Owner to Enter and Distrain Animals of the Defendant Pending Suit.\u2014It is unlawful under the statutes of forcible entry and detainer for the owner, pending a suit, to enter upon the premises in the actual possession of his tenant, for the purpose of seizing and removing animals of the tenant. Such an entry is a trespass even though the tenant is wrongfully holding over.\n3. Statutes\u2014Construction of.\u2014Pending forcible detainer proceedings Sec. 21, Chap. 54, R. S., entitled \u201c Fences,\u201d does not authorize the owner to distrain animals belonging to the occupier.\n3. Appellate Court Practice\u2014Objections Not Made in the Court Below.\u2014Where improper evidence upon the question of damages in a replevin suit was not objected to, nor was the,court asked to withdraw it, or to instruct the jury as to the true measure of damages, or to grant a new trial, the matter can not be considered in the Appellate Court.\nReplevin.\u2014Appeal from the County Court of Moultrie County; the Hon. Isaac Hudson, Judge, presiding.\nHeard in this court at the May term, 1895.\nAffirmed.\nOpinion filed November 15, 1895.\nStatement of the Case.\nMahoney was in possession of a farm as tenant of Wright. The latter contended the time of the tenancy had expired, and on the 5th day of March, 1894, brought forcible detainer to recover possession.\n\u25a0The cause was set for hearing on the 10th day of March.\nOn the 7th day of March a cow belonging to Mahoney, which was being pastured in one of the fields of the farm, was seized by Wright and removed from the farm and held by him under authority alleged to be given in such cases by Sec. 21, Chap. 54, R. S., entitled \u201c Fences,\u201d providing for the restraint of animal damage feasant.\nMahoney brought replevin, prevailed, and was awarded $15 damages, and Wright appealed.\nThe cow was taken March 7th, and returned by the officer March 10th.\nW. H. Whitaker, attorney for appellant.\nMeeker & Meeker, attorneys for appellee,\ncontended that the statute of forcible entry and detainer, not in terms, but by necessary construction, forbids a forcible entry even by the owner upon the actual possession of another. Such entry therefore is unlawful, and if unlawful it is a trespass. Reeder et al. v. Purdy et al., 41 Ill. 284. The owner in fee of land has no right to make a forcible entry on a tenant holding over, or upon a person wrongfully in the possession. Farwell v. Warren, 51 Ill. 467; Wilder v. House, 48 Ill. 279; Dearlove v. Henderson, 70 Ill. 251; Westcott v. Arbuckle, 12 Ill. App. 577."
  },
  "file_name": "0125-01",
  "first_page_order": 123,
  "last_page_order": 126
}