Beveridge v. Wagner

Citations

• 48 Ill. 525

Syllabus

<p>1. Pleading at law—of the declaration—concerning sufficiency of in an action against an officer for failing to collect an execution. In an action against a sheriff for failing to collect an execution, the declaration contained two counts, the. first, averring that the officer made a levy on certain personal property, but did not make the money thereon, and “ wrongfully, falsely and deceitfully” returned upon the writ, that the suit having been appealed, as per bond and the order of the court thereto annexed, the writ 'was returned in no part satisfied; and the second, that the defendant in execution had personal property on which the officer might have levied, and of which ne had notice, but neglected and refused to levy, and “ wrongfully, falsely and deceitfully” returned the writ as alleged in the first count: Held, that this mode of declaring in such cases is sufficient, and in conformity with established precedents.</p> <p>2. Same—the return of the officer—not an essential part of the declaration. In cases of this character, the gist of the action is, that the sheriff neglected his duty in failing to levy, or, having levied the writ, in failing to make the money thereon. The return of the officer is not an essential part of the declaration, and is averred to have been “ wrongfully, falsely and deceitfully” made ; hence, in passing on the sufficiency of such declaration, the return can not be assumed to be true, merely because it is not expressly and positively alleged therein to be false.</p>