Langston v. Murphy

31 Ill. App. 188, 1888 Ill. App. LEXIS 383

• Court: Appellate Court of Illinois
• Decided: January 21, 1889
• Status: Published

Opinion

Conger, J.

Langston was a constable, and had an execution against Murphy, who was the head of a family residing with the .samé, and had property less in value than the amount exempt by law. -

After Murphy, was -notified of- the execution, and within the time prescribed by law, ho made and tendered to the constable a schedule, to which the constable swore him, and received it and took it away with him.

Eleven days thereafter, Murphy learned that he had not signed his name to the schedule, although it is admitted that he thought he had done so at the time of, or before its delivery to the constable. He then offered to sign it, or make out a new one, but Langston refused both'propositions, and levied upon the property.

Murphy, after making a demand, brought replevin and recovered the property, and we think rightly.

It was a fraud upon the part of the officer to receive the schedule, and solemnly attach his jurat to it, without calling the attention of Murphy to the omission.

Such a schedule, when executed in good faith, would be a protection to the officer in refusing to make a levy.

It is the duty of a constable in seeking to enforce an execution. to act fairly and in good faith, and not use the provisions of the exemption law as a trap to catch those debtors who are honestly and in good faith seeking to avail themselves of its benefits. The judgment of the Circuit Court will be affirmed.

Judgment affirmed.