63 Ill. App. 482 | Ill. App. Ct. | 1896
delivered the opinion oe the Court.
The appellee commenced an action of replevin against several persons, among whom was the appellant, who alone put in pleas, and his pleas were non cepit, non detinet, and a plea stating circumstances specially, which, in effect, amounted to both the other pleas.
He never had possession of the property. His only interest in it, so far as this record shows, is that he had loaned some money and taken as security therefor, by indorsement, a warehouse receipt issued to the person to whom the money was loaned.
There was some testimony that he did offer to sell the property, to be taken out of town, the tendency of which was to show a bad intent on his part, but none that he had ever meddled with the custody or control of the property itself. On his pleas, therefore, the verdict should have been in his favor, which would have left the property in the possession of the appellee, it having been delivered to him under the replevin writ. Mattson v. Hanisch, 5 Ill. App. 102.
The appellant was not liable to be sued in replevin, which lies only against one from whose possession the sheriff can take the property, and to whose possession it can be returned, if a return is awarded. Ide v. Gilbert, 62 Ill. App. 524; Blatchford v. Boyden, 18 Ill. App. 378; Boyden v. Frank, 20 Ill. App. 169; Hall v. White, 106 Mass. 599.
Though the lien of an execution remains upon personal property levied upon and retained by the defendant in the execution under a forthcoming bond (Brush v. Seguin, 24 Ill. 254), yet the officer holding the execution can not, after the bond is taken, be sued in replevin. Gaff v. Harding, 48 Ill. 148.
The case does not show that the appellant ever put any impediment in the way of the appellee reclaiming his property, or made any attempt to prevent him from keeping it after he got it.
The judgment is reversed and the cause remanded.
The appellant having printed the whole record, instead of making and printing an abstract, will be allowed no costs for printing it. Kelly v. Kellogg, 79 Ill. 477. Reversed and remanded.
