Amend v. Murphy

Citations

• 69 Ill. 337

Syllabus

<p>1. Instruction—must be based on evidence. An instruction is properly refused when there is no evidence upon which to base it. Thus, in a suit to recover for levying upon and selling property selected by the debtor as exempt, an instruction that if the plaintiff neglected or refused to surrender, or offer to turn out, other properly subject to levy and sale, he could not recover, was held to have been properly refused, there being no evidence that the plaintiff' had any other property subject to levy and sale.</p> <p>3. Exemption—when party claiming must turn out other pi-operty. Where an officer having in his hands a distress warrant, before making a levy, is notified by the debtor that he claims the property as exempt, and the property so taken is specifically exempt under the statute, the debtor is not bound to turn out any other property he has, to enable him to maintain an action against the officer.</p> <p>3. Same—election to proceed for actual damages oi' the penalty. Where property exempt under the statute has been taken and sold by an officer, the owner has the right to waive the penalty given by the statute, and sue and recover the value of the property; in other words, the owner has the right to elect whether he will sue for the simple value of the property, or for treble its value. . . -</p> <p>4. Same—election, how made. Where three counts ' of the plaintiff’s declaration, in a suit against an officer for levying upon and selling property exempt, claims the statutory penalty of treble the value of the property, and the last count claimed the actual value only, the plaintiff may elect, on the trial, whether to proceed for simple damages or the penalty.</p> <p>5. Same—piano of a music teacher. Where an officer, under a distress warrant for rent due, levied upon and sold a piano which, when taken and sold, was an implement of the debtor in her profession or business as a music teacher, upon which she mainly relied to support an aged-mother and her childr