Ward v. Montgomery , 1896 Ill. App. LEXIS 93 ( 1896 )

Mr. Presiding Justice Boggs

delivered the opinion of the Court.

Appellee might have brought his action in tort, but we feel concluded by the case of Elgin v. Joslyn, 136111. 532, to hold he could waive the tort and bring assumpsit.

Aside from this the justice had jurisdiction in actions for taking or detaining personal property, and there is but one form of action in such courts.

Appellant had possession of the building, exercised acts of exclusive dominion over it, in denial of the right of appellee, and his conduct and the letter written by him to appellee clearly evinced a demand for possession would have been disregarded and entirely unavailing.

A formal demand was therefore unnecessary. Keller v. Robinson, 153 Ill. 458; Cooley on Torts, 524, 525; 5th Amer. & Eng. Ency. of Law, p. 528, note 2.

The contention of appellant he held possession under agreement with appellee, he should do so in order to secure to him the repayment of taxes paid by him upon the house, it and the lot having been assessed and taxed together, was submitted to the jury under instructions which are not questioned.

The testimony on the point whether he was so authorized to possess himself of the building, was conflicting, and no reason appears we should assume to interfere with the finding of the- jury upon it.

The judgment is affirmed.