{ "id": 5254017, "name": "James H. Gilbert v. Buffalo Bill's Wild West Co.", "name_abbreviation": "Gilbert v. Buffalo Bill's Wild West Co.", "decision_date": "1897-06-14", "docket_number": "", "first_page": "326", "last_page": "331", "citations": [ { "type": "official", "cite": "70 Ill. App. 326" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "5 Mass. 314", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 2002237 ], "opinion_index": -1, "case_paths": [ "/mass/5/0242-01" ] }, { "cite": "85 Ill. 248", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2775522 ], "opinion_index": -1, "case_paths": [ "/ill/85/0248-01" ] }, { "cite": "19 Wend. 283", "category": "reporters:state", "reporter": "Wend.", "case_ids": [ 2023446 ], "opinion_index": -1, "case_paths": [ "/wend/19/0283-01" ] }, { "cite": "3 Wis. 363", "category": "reporters:state", "reporter": "Wis.", "opinion_index": -1 }, { "cite": "6 Hill, 623", "category": "reporters:state", "reporter": "Hill,", "opinion_index": -1 }, { "cite": "39 Cal. 315", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 2266389 ], "opinion_index": -1, "case_paths": [ "/cal/39/0315-01" ] }, { "cite": "3 Wis. 199", "category": "reporters:state", "reporter": "Wis.", "opinion_index": -1 }, { "cite": "6 Cal. 78", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 2215494 ], "opinion_index": -1, "case_paths": [ "/cal/6/0078-01" ] }, { "cite": "16 Brad. 375", "category": "reporters:state", "reporter": "Bradf.", "opinion_index": -1 }, { "cite": "69 Ill. 273", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2636981 ], "opinion_index": -1, "case_paths": [ "/ill/69/0273-01" ] }, { "cite": "35 Ill. App. 44", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5006894 ], "opinion_index": -1, "case_paths": [ "/ill-app/35/0044-01" ] }, { "cite": "2 Brad. 228", "category": "reporters:state", "reporter": "Bradf.", "opinion_index": -1 }, { "cite": "39 Me. 326", "category": "reporters:state", "reporter": "Me.", "case_ids": [ 8847005 ], "opinion_index": -1, "case_paths": [ "/me/39/0326-01" ] }, { "cite": "14 N. Y. 329", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 496119 ], "opinion_index": -1, "case_paths": [ "/ny/14/0329-01" ] }, { "cite": "15 N. 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Law, 547", "category": "reporters:state", "reporter": "N.J.L.", "case_ids": [ 361148 ], "opinion_index": -1, "case_paths": [ "/njl/43/0547-01" ] }, { "cite": "9 Conn. 140", "category": "reporters:state", "reporter": "Conn.", "opinion_index": -1 }, { "cite": "166 Ill. 154", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5500473 ], "opinion_index": 0, "case_paths": [ "/ill/166/0154-01" ] }, { "cite": "43 Ill. 442", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5263994 ], "opinion_index": 0, "case_paths": [ "/ill/43/0442-01" ] }, { "cite": "6 Hill. 623", "category": "reporters:state", "reporter": "Hill.", "opinion_index": 0 }, { "cite": "13 Ill. App. 17", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4867907 ], "opinion_index": 0, "case_paths": [ "/ill-app/13/0017-01" ] }, { "cite": "63 Ill. App. 482", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5171457 ], "opinion_index": 0, "case_paths": [ "/ill-app/63/0482-01" ] }, { "cite": "122 Ill. 657", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5390302 ], "opinion_index": 0, "case_paths": [ "/ill/122/0657-01" ] }, { "cite": "87 Ill. 617", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5342759 ], "opinion_index": 0, "case_paths": [ "/ill/87/0617-01" ] }, { "cite": "5 Mass. 314", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 2002237 ], "opinion_index": 0, "case_paths": [ "/mass/5/0242-01" ] }, { "cite": "85 Ill. 248", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2775522 ], "opinion_index": 0, "case_paths": [ "/ill/85/0248-01" ] }, { "cite": "19 Wend. 283", "category": "reporters:state", "reporter": "Wend.", "case_ids": [ 2023446 ], "opinion_index": 0, "case_paths": [ "/wend/19/0283-01" ] }, { "cite": "3 Wis. 363", "category": "reporters:state", "reporter": "Wis.", "opinion_index": 0 } ], "analysis": { "cardinality": 601, "char_count": 9599, "ocr_confidence": 0.544, "pagerank": { "raw": 6.426574848379867e-08, "percentile": 0.3970588632773571 }, "sha256": "2de48ed3e228200a17cc30fa84bba9315b8ca097b10fcce3a8ac0c368482b53c", "simhash": "1:1b768f1f484b5300", "word_count": 1746 }, "last_updated": "2023-07-14T18:32:17.018382+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "James H. Gilbert v. Buffalo Bill\u2019s Wild West Co." ], "opinions": [ { "text": "Mr. Justice Gary\ndelivered the opinion of the Court.\nDuring the World\u2019s Fair year the appellee had a show place near the fair grounds, and when the fair was over left the place in charge of custodians, the custodian at the time of the events giving rise to this suit being one John Crowley.\nSeptember 22, 1894, one Barnett Graff sued out of the Circuit Court, a writ of replevin, which\u2014the appellant being the sheriff\u2014was delivered to the appellant to execute. In that writ John Crowley was one of the defendants. .The appellant, by deputy, walked into the place, read the writ to Crowley and took the receipt of Graff for the property there\u2014it being the property described in the writ.\nFor that transaction this action of trespass was brought by the appellee against the appellant and others, and a judgment of $2,208 recovered.\nThe property was partly temporary buildings upon leased ground, but the writ made all the property\u2014as to the appellant\u2014goods and chattels. Sample v. Broad well, 87 Ill. 617.\nCrowley was the only proper defendant in the writ.\nThe writ must be against one from whom possession can be taken, and to whom possession may be returned. Blatchford v. Boyden, 122 Ill. 657; Richardson v. Cassidy, 63 Ill. App. 482; 20 Am. & Eng. Ency. Law, 1058.\nAs the appellee, in order to show the connection of the appellant with what the appellee charged was a trespass, was obliged to put in evidence the writ and return, the justification of the appellant\u2014if he had any\u2014was in for his benefit. Savage v. French, 13 Ill. App. 17.\nIt needs no authority that if the plaintiff\u2019s right of action is in issue, he can not recover unless he proves his right; can he be better off by proving affirmatively , that he had no right % If, in an action of trespass against several, one is defaulted and the others acquitted upon pleas which, if true, are a defense for all, the plaintiff can not have judgment against the defaulted. Briggs v. Benger, 2 Ld. Raym. 1372.\nThe principle is that it matters not how it comes in that the plaintiff has no case; if it does come in, he can not recover.\nThe defendant may be prevented from putting in facts showing that the plaintiff has no case, by neglect in pleading, but there is no such obstacle in the way of the plaintiff.\nNow, will trespass lie against a sheriff for executing a writ of replevin, by taking the property out of the custody of a defendant in the writ % What has been said answers that question in the negative.\nThe court erred in giving an instruction as follows:\n\u201cIf the jury believe from the evidence that James H. Gilbert, sheriff, acting through John 0. McDevitt, his deputy, at the direction or in company with the other defendants, under a writ of replevin running against a person or persons other than the plaintiff in this suit, entered on land then in possession of plaintiff or its agent and took the personal property of plaintiff situated on such land, and. converted such property to their own use, then their verdict should be for the plaintiff for the fair cash market value of such personal property with interest at five per cent from that date.\u201d\nThere was no pretense of any conversion of the property by the appellant, other than by the mere execution of the writ.\nThe appellee relies also upon the alleged fact that the sheriff took an insufficient replevin bond and is therefore liable in trespass, and the court so instructed the jury. That there is a dictum in Morse v. Hodson, 5 Mass. 314, and decisions in Morris v. Van Voast, 19 Wend. 283; Milliken v. Selye, 6 Hill. 623, and Whitney v. Jenkinson, 3 Wis. 363 (side page 407), to that effect is not to be denied; but there is no hint that such an action was ever thought of in the country from which we derive our common law. There the action has always been in case against the sheriff for taking insufficient sureties.\nHere it may be case, or upon the official bond of the sheriff; Sec. 12, Ch. 119, R. S.; and the latter remedy was pursued in People v. Core, 85 Ill. 248.\nPerhaps there is no difference in legal effect between the statute of this State and those under which the Massachusetts and Hew York decisions were made, and upon which the Wisconsin one was avowedly based; but there is such a difference in words that it may well be argued that the legal effect is different.\nIn Massachusetts the statute directed that the form of the writ should be to replevy upon condition that the plaintiff give bond, and in Hew York the statute forbid the execution of the writ unless the bond was given.\nHere the statute is that before the writ is executed, the plaintiff shall give bond, but does not in terms require the sheriff to take the bond, and makes him liable \u201c in an action on the case \u201d for failure to take and return the bond.\nIn terms providing for an action on the case, upon the familiar rule that the mention of one thing excludes another, restricts the remedy. It is not probable that Judge Lawrence, in Petrie v. Fisher, 43 Ill. 442, had in mind' the question that is before us, but his words indicate what is the first thought of a lawyer as to the remedy for neglect by the sheriff to take a replevin bond. On the whole it is our judgment that the action of trespass for taking the goods does not lie, though, under the statute, Sec. 22, Practice, the action under Sec. 12 of the Eeplevin Act, might be called trespass.\nThe appellee moved that the bill of exceptions be stricken out and the appeal dismissed upon the authority of several cases, most of \"them decided by this court, which are all wrong. Railway Conductors, etc., v. Leonard. 166 Ill. 154.\nThe motion is therefore denied.\nThe appellant asked a variety of instructions, the effect of which was to find a verdict in his favor. For the error of refusing all of them, the judgment is reversed without remanding.", "type": "majority", "author": "Mr. Justice Gary" } ], "attorneys": [ "Pam & Donnelly, attorneys for appellant; E. It. Bliss, of counsel.", "A. B. Jenks, attorney for appellee." ], "corrections": "", "head_matter": "James H. Gilbert v. Buffalo Bill\u2019s Wild West Co.\n1. Process\u2014As a Protection to an Officer.\u2014A writ of replevin commanding an officer to replevy and deliver to another, property described iii the writ, make's such property, as to the officer, goods and chattels, although the property may in fact be a part of the realty.\n2. Parties\u2014In Replevin.\u2014A replevin writ must be directed against one from whom, possession can be taken and to whom possession can be returned.\n3. Recovery\u2014When the Evidence Shows a Defense.\u2014It matters not how it appears in evidence that a plaintiff has no case, if it does so appear he can not recover.\n4. Same\u2014In Trespass\u2014When the Evidence Shows a Defense.\u2014If in an action of trespass against several one is defaulted and the others acquitted upon pleas which, if true, are a defense for all, the plaintiff can not have judgment against the one defaulted.\n5. \u25a0 Trespass\u2014Against a Sheriff-Writ of Replevin a Defense.\u2014An action of trespass will not lie against a sheriff for taking property out of the custody of a defendant in the writ even where the sheriff took an insufficient replevin'bond. In the latter event the action should be in case.\nTrespass, for the wrongful levy of a writ of replevin.' Appeal from the Circuit Court of Cook County; the. Hon. Thomas G. Windes. Judge, presiding.\nHeard in this court at the March term, 1897.\nReversed without remanding.\nOpinion filed June 14, 1897.\nPam & Donnelly, attorneys for appellant; E. It. Bliss, of counsel.\nThat a sheriff is protected by the writ of replevin, if he takes the property therein described, even if the owner of the property is not made a party defendant to the writ, is sustained by the great weight of authority. See Murfree on Sheriffs, Sec. 104c; Cobbey on Replevin, Secs. 644 and 645; Hallett v. Byrt, Carth. 381; Watson v. Watson, 9 Conn. 140; Weiner v. Van Rensselaer, 43 N. J. Law, 547; Hayden v. Shedd, 11 Mass. 500; Willard v. Kimball, 10 Allen, 211; Foster v. Pettibone, 20 Barb. 350; Shipman v. Clark, 4 Denio, 446.\nWhere it is sought to hold the principal liable in. trespass for the act of the agent, when the agent or servant is discharged from liability, such in itself operates to discharge the principal from liability. King v. Chase, 15 N. H. 9; Featherstone v. Turnpike Co., 71 Hun (N. H.), 109; Castle v. Noyes, 14 N. Y. 329; Emery v. Fowler, 39 Me. 326; Lake Shore & M. S. Ry. v. Goldberg, 2 Brad. 228; Vigeant v. Scully, 35 Ill. App. 44.\nA. B. Jenks, attorney for appellee.\nThe appellant having failed to plead justification under the writ of replevin, that defense was waived, and he was not entitled to the benefit of it, even though the writ of replevin was put fin evidence by the plaintiff, Olsen v. Upsohl, 69 Ill. 273; Blanchard v. Burbanks, 16 Brad. 375.\nIn an action of trespass against a sheriff, in which he is declared against personally and not as sheriff, it is competent to prove that the deputy, assuming to act under color or by virtue of his office, committed the trespass complained of. Poisnett v. Taylor, 6 Cal. 78; Cotton v. Marsh, 3 Wis. 199; Watson on Sheriffs, 37; Gregory v. Cotterell, 5 E. & B. 571 (85 E. C. L.); 26 Am. & Eng. Enc\u2019y of Law, 649, note 1; Hirsch v. Rand, 39 Cal. 315; 5 Am. & Eng. Enc\u2019y of Law, 634; Sanderson v. Baker, 2 Wm. Bl. 832; Murfree on Sheriffs (2d Ed.), Secs. 20, 21, and 59a-61a.\nIt is the duty of the sheriff to ascertain the value of the property, and take a bond in twice that value, and, if he does not do it, he is liable in trespass because of his failure to comply with this condition precedent. Milliken v. Selye, 6 Hill, 623; Whitney v. Jenkinson, 3 Wis. 363; Wells on Replevin, Secs. 385 and 388; Morris v. Van Voast, 19 Wend. 283; People v. Core, 85 Ill. 248; Morse v. Hodsdon, 5 Mass. 314." }, "file_name": "0326-01", "first_page_order": 326, "last_page_order": 331 }