Minor v. Herriford

25 Ill. 344

• Court: Illinois Supreme Court
• Decided: January 15, 1861
• Status: Published

Opinion

Breese, J.

This court has never yet decided what constitutes a levy on personal property. The practice in England is for the officer to enter upon the premises where the goods are, and leave one of his assistants in charge of them; and this is called “ putting an execution in the house; ” or he makes an inventory of them, and removes them. The practice in the different States of the Union differs somewhat, but all agree that the property must be within the power and control of the officer when the levy is made, and he must take it into his possession in a reasonable time thereafter, unless a delivery bond is tendered, and in such an open, public, and unequivocal manner as to apprise everybody that the property has been taken in execution. He must so deal with the property, in order to constitute a good levy, as, without the protection of. an execution, his acts would make him a trespasser. The defendant can always, under our statute, retain the property, on executing a satisfactory delivery bond.

Testing this case by this rule, there was no levy on this wagon. It was, at no time, in the possession of the officer, or-under his control, and the sale of it was therefore void, and the execution, which, in its lifetime, may have been a lien on the property, was extinguished by lapse of time. The judgment is reversed, and the cause remanded.

Judgment reversed.