Hibbard v. Thrasher

Citations

• 65 Ill. 479

Syllabus

<p>1. Trespass—levying upon stranger's property—retwn in obedience to verdict for claimant no justification. Where a constable levied upon property not belonging to the defendant in the execution, and after a trial of the right of property, resulting in a verdict for the claimant, he returned the same to the owner, and when sued in trespass for the wrongful taking, asked the court to instruct the jury that his return of the property in obedience to the verdict was a complete indemnity to him against the trespass: Held,. that such an instruction was properly refused, as the verdict was an indemnity to him only for the return he might make on the execution, but not as against the trespass.</p> <p>2. Trial op right op property—splitting of cause of action. Where, the claimant of property levied upon by an officer under execution against another, recovered a verdict in his favor on a trial of the right of property, upon which it was returned to him, and then sued the officer in trespass for the wrongful taking, it was urged that the plaintiff could not split his cause of action, and, having had one action whereby he recovered the property, he could not maintain trespass against the officer: R'eld, that the trial of the right of property was not an action in any sense of the term, and a verdict for the claimant was no bar to the action of trespass.</p>