Gray v. MacLean

17 Ill. 404

• Court: Illinois Supreme Court
• Decided: June 15, 1856
• Status: Published

Opinion

Catón, J.

The plea in this case was clearly bad, and the demurrer to it should have been sustained. By it, the surety in a forth-coming bond, attempts to show that the property levied upon by the attachment, and to produce which to answer the judgment of the court, he had undertaken by executing the bond, was not the property of the defendant in the attachment, and not liable to the attachment, but was the property of a third person. The plea does not even show that the property had been taken by the third person under his paramount title, but for aught that appears, he sets up no claim to it. It was seized as the property of MacLean, for the payment of his debt by the sheriff. It was not admissible for him or his surety, to get possession of the property by the execution of the bond, and then refuse to deliver it to answer the judgment of the court, according to the exigencies of the bond, because it belonged to a third person. What business is it to them, if it did belong to a third person ? He alone could complain that his property had been taken to pay the debt of MacLean. Certainly MacLean or his surety had no right to make such complaint. By the execution of the bond, they became the custodians of the property for the sheriff, and were bound to keep it in good faith, as they had stipulated. Neither the defendant nor the surety had a right to benefit himself by claiming to hold the property under the outstanding title of a third person, while they had agreed to hold it under the sheriff. Had the plea shown that the property attached had been actually taken from them by the third person, under his paramount title, while they were endeavoring to retain it in good faith to answer the judgment of the court, a very different question would have been presented.

The judgment must be reversed and the cause remanded.

Judgment reversed.