Madison County IL Archives Court.....Collins, Vs. Waggoner 1819-31
************************************************
Copyright.  All rights reserved.
http://www.usgwarch.org/copyright.htm
http://www.usgwarch.org/il/ilfiles.htm
************************************************

File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 4, 2008, 10:42 pm

Source: Reports Of Cases Illinois
Written: 1819-31

DECEMBER TERM, 1822.


Augustus Collins and Anson Collins, Plaintiffs in Error, v. John Waggoner, 
Defendant in Error.

ERROR TO MADISON.

If a replication departs from the declaration, it is error.

Upon all contracts made before the first of May, 1821, the defendant had a  
right to replevy for three years, unless the plaintiff indorsed on the 
execution, that paper of the State Bank of Illinois would be received in 
discharge of the execution.

Opinion of the Court by Chief Justice Reynolds. This was an action of trespass 
for entering the defendant's close and taking and carrying away his personal 
goods. The plaintiff's here, who were defendants below, pleaded a judgment 
obtained by them before one David Moore, a justice of the peace in and for the 
county of Madison, against the said Waggoner. That on said judgment an 
execution issued, directed to any constable of Madison county, whereby such 
constable was commanded to levy upon the goods and chattels of the said 
Waggoner. That said execution came to the hands of one Isaac McMahon, then a 
constable of said county; that said constable, by virtue of said execution, 
and by the direction of the plaintiffs, entered the close and took and carried 
away the goods, &c, as averred in the declaration; which entering and carrying 
away was the same trespass complained of, and of no other were they guilty.

To this plea said Waggoner replied: That the cause of action on which the 
judgment mentioned in the said plea was rendered, arose before the first of 
May, 1821. That there was no indorsement on said execution in the plea 
mentioned, as is required in and by the twenty-seventh section of the act of 
the legislature of the state of Illinois, entitled "an act establishing the 
State Bank of Illinois." That said Waggoner did, at different times, before 
the said trespass was committed, tender to the said Isaac McMahon the full 
amount of the said execution, and then and there offered to pay the same in 
notes of the said Bank, or to replevy the same for three years, as by law he 
might do, all of which the said Isaac McMahon refused to accept, permit or 
suffer, and whereupon the said defendant committed the trespass as in the 
declaration alleged, and this he is ready to verify. To this replication there 
was a demurrer, and that demurrer overruled by the court below. To reverse 
that judgment this writ of error is prosecuted. Three objections are raised, 
one to the declaration, and two to the replication: 1. The action is  
misconceived. 2. The replication is a departure from the declaration, showing 
a trespass in McMahon only; and 3. There is no law authorizing a replevy of 
three years as averred in the replication.

And first, is the action misconceived. The injury complained of is the 
forcibly entering the close of the said Waggoner, and taking and carrying away 
his goods and chattels. Surely it can not be contended seriously that for this 
injury, case is the remedy. If the refusal to take bail, or to permit the 
party to replevy was the foundation of the complaint, then case would lie; but 
if, after such refusal, the officer proceeds to levy and distress, trespass 
can be supported. We will consider the second and third objections together, 
viz.: That the replication is a departure from the declaration, and shows a 
trespass in McMahon, the constable only, and that there is no law authorizing 
a replevy of three years. The first of these objections we think is well 
taken, and we have no doubt, if it had been raised below, (which we think was 
the duty of the counsel to have done, and the practice of raising objections 
here, which might have been urged below, this court can not but reprobate,) 
would have been sustained. Although the cause of action arose before the first 
of May, 1821, yet the plaintiffs in the execution, had their election, to 
indorse that state paper would, or would not be received. If they did not 
elect to indorse that state paper would be received, we conceive from the law, 
the defendant had the privilege to replevy the debt for three years. The 
statutes upon this subject are complicated, but this seems to be the true 
construction, that upon all contracts entered into before the first of May, 
1821, if the plaintiff in an execution, does not indorse that paper of the 
State Bank of Illinois, or either of its branches, will bo received, the 
defendant will have the right to replevy for three years. It clearly appears 
in this case that notwithstanding the plaintiffs did not indorse on their 
execution, yet they had a right to direct the officer to levy, until the offer 
to pay or replevy was made, nor does it appear from the replication, for it is 
not so averred, that the plaintiffs ever had notice of the offer made by the 
said Waggoner to the said constable, to pay or replevy the said execution, and 
until they had notice of that fact, the plaintiffs could not be liable. The 
replication showing a trespass in McMahon only, is a departure from the 
declaration, and therefore bad. (1) Let the judgment below be reversed, and 
the costs abide the event of the suit in the court below, and the cause 
remanded with leave to the plaintiff in that court to amend his replication.

Judgment reversed.

(1) This is a familiar rule of pleading. Hite v. Wells, 17 Ill., 88.

Additional Comments:
Reports of Cases at Common Law and in Chancery, Argued and Determined in the 
Supreme Court of the State of Illinois, From its First Organization in 1819, 
to the End of December Term, 1831. By Sidney Breese, Counsellor at Law. Second 
Edition, with Additional Notes, By Edwin Beecher. Chicago: Callaghan & 
Company, 1877.

File at: http://files.usgwarchives.net/il/madison/court/collins213gwl.txt

This file has been created by a form at http://www.genrecords.org/ilfiles/

File size: 6.3 Kb