95 Ill. 169 | Ill. | 1880
delivered the opinion of the Court:
It is not perceived how this judgment can be sustained. We know of no law making it the duty of a defendant, in an action of replevin, to' assist the officer in the execution of his process. If he knew, as he swears, that the property was then and there in the possession and control of Horr, why did he not take it? It is not charged that he was resisted in the performance of his duty by the action of any one. The only statements in the record of any supposed cause of offence are, that in the return of the sheriff, that he “ refused to deliver ” to him the property; and that of the affidavit of the deputy, that appellant “had the possession and control” of the property and “ refused to surrender the same to him on demand,” and that in the recital in the record that he failed to comply with the rule which required him “to deliver the property to the sheriff.”
The constable had, by the direction of the plaintiff in execution, taken the property as the property of the defendant in execution. The sheriff claimed the property as that of the plaintiffs in replevin, and no doubt under his writ had lawful authority to take it.
The fact of such taking would be a full protection to the constable for failing to sell. But he was not bound by any affirmative action of his own to part with the property. He had a right to say to the sheriff: Take at your peril. I will not make myself responsible to the plaintiff in my execution for your act. The writ commanded the sheriff to take the property; it did not command the defendants in replevin to deliver the property to the sheriff.
We think it was error in the circuit court to impose this upon appellant as a duty, and to fine and imprison him for a failure to perform the supposed duty. We have not had our attention called to any precedent for such a proceeding.
The judgment and order of. the circuit court, imposing the fine and ordering the imprisonment, must be reversed.
Judgment reversed.
