Madison County IL Archives Court.....Collins, V. Waggoner 1826
************************************************
Copyright.  All rights reserved.
http://www.usgwarchives.net/copyright.htm
http://www.usgwarchives.net/il/ilfiles.htm
************************************************

File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 9, 2009, 12:53 am

Source: Il Court Reports, 1819-1830
Written: 1826

December Term 1826

Anson Collins, Appellant, v. John Waggoner, Appellee.

APPEAL FROM MADISON.

Trespass will lie if the process is abused, or if after it has done its 
office, the officer proceeds to act under color of it by direction of the 
plaintiffs, they become both liable us trespassers.

Opinion of the Court by Chief Justice Wilson.* The only question presented by 
this case for the decision of the court is, whether the proper form of action 
has been adopted.

The facts in the case are, that Waggoner sued Collins in replevin for a cow, 
upon which issue was taken, and a verdict and judgment for Waggoner. Collins 
also pleaded a judgment against Waggoner on which an execution issued, by 
virtue of which a constable took the cow and sold her, and he became the 
purchaser. To this plea Waggoner replied that the cause of action upon which 
the judgment was rendered, accrued before the first of May, 1821, that there 
was no indorsement on the execution to take the notes of the state bank; that 
before and after the cow was taken by the execution, he offered to pay it in 
notes of the state bank, or replevy it for three years, and that Collins would 
not permit it to be done, but directed the constable to levy. To this 
replication there was a demurrer which was overruled; the case was then tried 
upon the issue of non cepit, and a verdict and judgment for Waggoner. It is 
contended that trespass will not lie for any act done under a process 
regularly issued from a court having competent jurisdiction. This rule is true 
as regards acts in conformity with the authority conferred by the process, 
even though there should be malice in the manner of executing it. But if the 
process is abused, trespass will lie, or if, after having done its office, the 
officer proceeds to act under color of it by the direction of the plaintiffs, 
they both become liable as trespassers.

In this case before the justice, the statute permitted the defendant to 
discharge the execution in the notes of the state bank, or replevy it for 
three years, which he offered to do, but the plaintiff in the execution 
refused to permit it to be done. If he had stopped here he would not have been 
liable as a trespasser, but he became so by the consequent levy of the 
execution by the constable, under his directions, because it had spent its 
force and was officially dead. The taking of the cow, therefore, was tortious 
and no more authorized by the execution than the taking property of a third 
person. The judgment of the court below is affirmed. (a) (1)

Judgment affirmed.

Starr, for appellant. 

Cowles, for appellee.

-------------------------
*Justices Lockwood and Smith having been counsel in this cause, gave no 
opinion.

(a) If a sheriff levy an execution after the return day, by the direction of 
the plaintiff and his attorney, they are all trespassers, Vail v. Lewis, 4 
Johns. Rep., 4 Johns. Rep., 4_0.

An execution, after the expiration of the time within which it is made 
returnable, is of no force, and an arrest under it is a trespass. Stoyel v. 
Lawrence & Adams, 3 Day's Rep., 1.

(1) See note to Moore v. Watts et al., ante, p. 42, where the decisions on 
this question are fully referred to.

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/collins264gwl.txt

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

File size: 4.2 Kb