Pike v. Colvin

Citations

• 67 Ill. 227

Syllabus

<p>1. Remedy—/or wrongful levy on property. Where an officer, under an execution, seizes the goods of some other person than the defendant in the execution, the owner may maintain an action, and trespass is the usual remedy of the owner, but trover may be maintained in many cases as well as case, and replevin will lie. The owner is not bound to resort to a trial of the right of property.</p> <p>2. Same—remedy of mortgagee against officer seizing the property for mortgagor's debt. Where an officer levies an execution upon mortgaged chattels in the possession of the mortgagor, before default in the condition authorizing the mortgagee to take possession, and sells the interest of the mortgagor, the mortgagee can not maintain trover against the officer. In such case, the mortgagee should try the right of property, or bring replevin, before the sale, against the officer.</p> <p>3. Process—when no protection to officer. Where a sheriff or constable, having an execution against one person, levies upon the property of another, he becomes a wrong-doer, and his execution is no protection. It only protects him to the extent that he obeys the command of the writ, and no further. When he goes beyond such command, he becomes liable as though he had acted without any writ.</p> <p>4. Oeeicer—acts at his peril. A sheriff or constable, having a fieri facias, is compelled to act at his peril. If the property seized is not that of the defendant, he incurs liability by levying and taking the property. On the other hand, if the property is that of the defendant, and he knows of it, or can know it by reasonable effort, and is required by the plaintiff to levy on it, and he fails or refuses to do so, he becomes liable to the plaintiff in the execution.</p> <p>5. Execution—what interest subject to Imy under. Until a breach of the condition of a chattel mortgage, the mortgagor holds a contingent interest in the property that is liable to levy and sale on execution or attachment. But after th