Jarrard v. Harper, 42 Ill. 457 (1867)

Jan. 1867 · Illinois Supreme Court

42 Ill. 457

Abraham Jarrard v. James R. Harper.

1. Instructions—when technically wrong—how cured. Where, in an action of replevin, the court instructed the jury: “ If you believe, from the evidence, that the property in question was plaintiff’s, you must find the defendant guilty,”— Held, that, technically, the instruction should have embraced proof of a demand, to justify a verdict for the plaintiff; but, as the record shows proof of a demand before suit brought, and the evidence sustains the verdict, this court will not reverse the judgment.

2. Verdict—where proceedings are ore terms—need not he precisely in form,. In an action of replevin, where the proceedings were ore terms, a verdict that “We, the jury, find the defendant guilty,” although not precisely in form, is equivalent to a finding of the property in the plaintiff.

Writ or Error to the County Court of Bond county; the Hon. E. Gaskins, Judge, presiding.

This case is sufficiently stated in the opinion.

Mr. S. P. Moore, for the plaintiff in error.

Mr. A. W. Metcaee, for the defendant in error. '

Mr. Justice Breese

delivered the opinion of the Court:

This was an action of replevin, commenced before a justice of the peace of Bond county, brought by James It. Harper against Abraham Jarrard, and taken by appeal to the County Court, where a verdict and judgment were rendered for Harper, to reverse which the case is brought here by writ of error.

The whole subject of controversy is of trifling amount.

The only question in the case is, as to the propriety of the instruction given by the court. It was this: “ The court instructs the jury, that, if they believe, from the evidence, that the hog in question is plaintiff’s hog, they will find the defendant guilty.”

It is contended by the plaintiff in error, that proof of a demand should have been embraced in the instruction as a necessary element to justify a verdict for the plaintiff, and in this he is no doubt technically correct; but, as there was clear proof of a demand before suit brought, and the evidence sustains the verdict, we cannot reverse the judgment. The form of the verdict is not precisely right, but the proceedings were ore terms, and the finding was equivalent to a finding of property in the plaintiff. The judgment is affirmed.

Judgment affirmed.