Smith v. Archer

53 Ill. 241

• Court: Illinois Supreme Court
• Decided: January 15, 1870
• Status: Published

Opinion

Mr. Chief Justice Breese

delivered the opinion of the Court:

The principles which govern the action of trover, can not be made to apply to the facts in this case. The deceased did not take and convert to his own use, the corn of the plaintiff. His cattle were breachy, and committed trespasses on the plaintiff’s cornfield, and destroyed much of his corn. This was a trespass to real estate, and if an action had been brought against Archer, in his life time, on proper proof, a recovery might have been, had against him.

It can not be said, because the 'cattle of Archer ate up the corn of plaintiff, he, Archer, converted the corn to his own use, or had assumed, at any time, a right to dispose of the corn so eaten.

It is, however, just and right that the law should provide a remedy against the estate of a deceased person, in a case like this, and we trust the revisors of our statutes will, in their report to the legislature, recommend an amendment to sec. 132, of “ Wills,” to suit such cases.

As we regard the law, the instruction of the court was correct, and the judgment must be affirmed.

Judgment affirmed.