Colwell v. Brower

Citations

• 75 Ill. 516

Syllabus

<p>1. Estoppel—fraudulently inducing officer to levy on party’s property as that of another. Where a person in possession of a piano belonging to a defendant in execution, also had one of her own very much resembling it, both of which were boxed for shipment, and when called on by the officer to point out that belonging to the defendant, so acted as to induce the officer to levy upon her own, so that she might fraudulently ship the other, and thus defeat the collection of the execution, it was held, in replevin by her for her piano, that she was estopped from denying that it belonged to the defendant in execution, and claiming it as her own.</p> <p>2. Same —jury should consider all the circumstances and the actions of the parties on question of fraudulent intent to defeat a levy. In replevin for a piano levied upon under execution, which belonged to the plaintiff, and which she fraudulently induced the officer to levy upon to prevent a levy on one belonging to the defendant in execution, the court refused an instruction for the defendant, that it was the duty of the jury to take into consideration all the facts and circumstances surrounding the case as disclosed by the evidence,— the action of the parties at the time of the taking of the piano, both preceding and subsequent to the taking, the motives and objects of the parties, whether or not the plaintiff was in a frame of mind that would dispose her to remove the piano belonging to the defendant in execution from the county, and whether or.not she was seeking.to prevent a levy on that piano, or was disposed to do so, and whether or not the officer was seeking in good faith to make a levy upon that piano: Held, that it ought to have been given.</p> <p>3. Practice — right of defendant to open and close case. The party holding the affirmative of the issues has the right to open and close the case to the jury. In replevin for property levied upon by an officer, under execution, as belonging to the defendant in executi