Cavener v. Shinkle

Citations

• 89 Ill. 161

Syllabus

<p>1. Replevin—right as against officer attaching for debt of another. Where the proof shows that the plaintiff had bought and paid for the property replevied by him from a constable, and was the owner of it, before the levy upon it under an attachment against the vendor, this will entitle the plaintiff to a recovery against the constable.</p> <p>2. Pleading and evidence—variance. In an action of replevin by A against B, the latter pleaded that as an acting constable he levied on the goods as the property of C, on a writ of attachment issued by a justice of the peace in a suit by D against C, and that in such suit A had impleaded him, the defendant, in an action or interpleader for the wrongful taking and detaining the same property, and that the issues were found against the plaintiff in such suit: Held, that the record of the suit of D against C could not. be admitted in evidence to sustain the plea, as the defendant was not a party to the suit before the justice, and that the variance was fatal.</p> <p>3. Error will not always reverse. An instruction upon a branch of a case against a party where his evidence ought to have been rejected, even if not technically correct, can work no harm, and is no ground for a reversal.</p>