Bonnell v. Bowman

Citations

• 53 Ill. 460

Syllabus

<p>1. Bubden of peoof—in suit against am, officer f 'of failing to malee a lemy. In a suit against a sheriff for a failure to seize and subject to sale under execution personal property shown to have been in possession of the defendant in the execution, it devolves upon the officer to show that such property was exempt front execution, or such facts as justify a failure to make-a levy. The onus probandi in such case is upon the officer.</p> <p>%. Where a sheriff was sued for a failure to make the money in satisfaction of an execution received by him, the plaintiff proved the defendant in the execution to have owned and been in possession of a horse, which the deputy sheriff levied upon, but the sheriff afterward returned under a claim that he was exempt from execution: Meld,, the plaintiff having shown the defendant in the execution to have been the owner of and in possession of . property sufficient to satisfy the execution, the officer, failing to show that the debtor was the head of a family or the property in any way exempt from levy and sale, was liable.</p> <p>3. And that an instruction given for the defendant which failed to require the jury to find that the property was exempt from levy and sale on execution, but only required them to find that the horse was worth less than a hundred dollars, and had been returned under a claim that he was exempt, was erroneous.</p> <p>4 Exemption from execution—duty of the debtor. Where the defendant in an execution is in possession of personal property specifically exempt from levy and sale, and the officer levies upon it without his knowledge, before he can afterwards claim such property as exempt he must, if he has it, offer to surrender other property not exempt.</p>