{ "id": 435541, "name": "Philip Hargrave, Appellant, v. David Penrod, Appellee", "name_abbreviation": "Hargrave v. Penrod", "decision_date": "1831-12", "docket_number": "", "first_page": "401", "last_page": "406", "citations": [ { "type": "nominative", "cite": "1 Breese 401" }, { "type": "official", "cite": "1 Ill. 401" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "5 Johns., 364", "category": "reporters:state", "reporter": "Johns.", "case_ids": [ 2131448 ], "opinion_index": -1, "case_paths": [ "/johns/5/0364-01" ] }, { "cite": "8 Cranch, 30", "category": "reporters:scotus_early", "reporter": "Cranch,", "opinion_index": -1 }, { "cite": "10 Johns., 289", "category": "reporters:state", "reporter": "Johns.", "case_ids": [ 2135897 ], "opinion_index": -1, "case_paths": [ "/johns/10/0293-01" ] }, { "cite": "23 Ill., 618", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5803561 ], "opinion_index": 0, "case_paths": [ "/ill/23/0618-01" ] }, { "cite": "13 Ill. 599", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2581560 ], "opinion_index": 0, "case_paths": [ "/ill/13/0599-01" ] }, { "cite": "4 Scam., 560", "category": "reporters:state", "reporter": "Scam.", "case_ids": [ 6109144, 6109043 ], "opinion_index": 0, "case_paths": [ "/ill/5/0580-02", "/ill/5/0580-01" ] }, { "cite": "17 Ill., 344", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2591859 ], "opinion_index": 0, "case_paths": [ "/ill/17/0344-01" ] }, { "cite": "5 Gilm., 96", "category": "reporters:state", "reporter": "Gilm.", "case_ids": [ 2567427 ], "opinion_index": 0, "case_paths": [ "/ill/10/0096-01" ] }, { "cite": "2 Gilm., 678", "category": "reporters:state", "reporter": "Gilm.", "opinion_index": 0 }, { "cite": "4 Scam., 327", "category": "reporters:state", "reporter": "Scam.", "case_ids": [ 6103042 ], "weight": 3, "pin_cites": [ { "page": "331" } ], "opinion_index": 0, "case_paths": [ "/ill/5/0339-01" ] } ], "analysis": { "cardinality": 617, "char_count": 14588, "ocr_confidence": 0.574, "pagerank": { "raw": 5.4033266686372354e-08, "percentile": 0.33800213834860643 }, "sha256": "84727902c185631884d127357192d6a7750524e689a8422ff77aed689e7233b1", "simhash": "1:0cd78e6171b6968f", "word_count": 2588 }, "last_updated": "2023-07-14T17:01:48.520166+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Philip Hargrave, Appellant, v. David Penrod, Appellee." ], "opinions": [ { "text": "Smith, J.,\ndelivered the opinion of the court. The appellant relies on the following points for a reversal of the judgment of the court below.\nFirst. The error as alleged in sustaining the demurrer to the second and third pleas of the defendant in the court below.\nSecond. The variance between the execution given in evidence on the trial, and the one described in the declaration, and suffering the same to be amended, and given in evidence to the jury.\nThird. That the fee-bill offered in evidence ought not to have been rejected.\nFourth. The omission of damages in the conclusion of the declaration of the plaintiff.\nThere is little difficulty in deciding on the questions arising under the demurrer. An essential ingredient is wanting in the first plea, to constitute it a good one. In no part of it does the defendant aver that he used any exertion or diligence to ascertain what chattels or estate the defendant in the execution had, nor whether he made the least inquiry in relation thereto. We can not doubt that it is the duty of an officer to whom an execution is directed and delivered, to make at least reasonable exertions to levy the same on the property and estate of the debtor, and that if he is guilty of gross negligence in this, he is liable. The mere want of knowledge of the debtor\u2019s having estate or effects, or an averment that the plaintiff did not point out the estate or effects of the debtor to him, on which to levy, is not sufficient to excuse him. The demurrer was therefore properly sustained. Equally correct was the sustaining of the demurrer to the second plea.\nThe liability of the sheriff for his negligence had attached before the issuing of the capias ad satisfaciendum, and whether the voluntary discharge of the defendant therefrom operated as a satisfaction of the creditor\u2019s judgment or not, it could not take away the creditor\u2019s remedy against the sheriff for his negligence, which was perfect before such discharge. The right of action of the creditor against the sheriff for his misconduct was in no way affected by such discharge. The plea was then a defective defense, and wholly immaterial.\nThe second point of variance is not, in our judgment, tenable. The court had the right to suffer the amendment to be made, it being a mere clerical error, and the variance was, even without such amendment, unimportant; because the description of the judgment record set out in the declaration was only as inducement to, and not the gist of the action. Numerous authorities may be found of adjudged cases, supporting this doctrine.\nOn the third point, relative to fee-bills, the same rules are to govern as in cases of execution. They are declared by the statute creating them, to have the force and effect of an execution, and are to be returned in the same manner. The ninety days having expired before the levy under the fee-bill, it was, necessarily, functus officio, and, consequently, the levy void. It was then properly rejected.\nThe objection under the last point ought to have been taken advantage of, in the court below. It is merely .and purely k technical, and even then, it might be questioned whether the damages in the recital to the declaration, as appears in the record, has not cured the error, if it were one available in the court below. The judgment of the circuit court is affirmed with costs.\nJudgment affirmed.\nIt is the duty of an officer having an execution in his hands against the property of a defendant, to make reasonable exertions to levy upon the property of the defendant in his county; and if he fails to use due diligence in the discharge of his duty in this respect, he is responsible for whatever loss or detriment the person who commits the execution to his hands may sustain, in consequence of such failure. Dunlap v. Berry, 4 Scam., 327.\nIn this case the circuit court instructed the jury, that if they believed the defendant in the execution had property in the county sufficient to pay the execution, or part thereof, and if the sheriff, by reasonable diligence and exertion, could have made the amount of the execution, or part thereof, they should find for the plaintiff. Held, that the instruction was correct. Id., 331.\nA sheriff is not bound to notice bare assertions of individuals, as to their claim to property in the possession of a defendant in an execution; he is only required to notice legal claims, fairly exhibited. Ibid.\nA fee-bill is \u201c process,\u201d and governed by the same rules as executions. Redick v. Cloud\u2019s Adm\u2019r, 2 Gilm., 678. Ferris v. Crow, 5 Gilm., 96. Newkirk v. Chapron, 17 Ill., 344.\nIf an officer neglects to return a fee-bill within ninety days from its date, he becomes liable to pay it. The People v. Roper, 4 Scam., 560.\nWhere the plaintiff showed, in the body of his declaration, a claim for damages greater than the verdict, but had omitted the ad damnum, at the end of the declaration, it was held to be cured by the verdict. Burst v. Wayne, 13 Ill. 599. Mattingly v. Darwin, 23 Ill., 618.", "type": "majority", "author": "Smith, J.," } ], "attorneys": [ "Baker, for appellant,", "Grant, contra,", "Breese, in reply." ], "corrections": "", "head_matter": "Philip Hargrave, Appellant, v. David Penrod, Appellee.\nAPPEAL FROM UNION.\nIt is the duty of an officer to whom an execution is directed and delivered, to make reasonable exertions to levy it on the property of the defendant, and if he is guilty of gross negligence in this, he will be liable.\nThe mere want of knowledge of the debtor\u2019s having estate or effects, or an averment that the plaintiff did not point them out to him, on which to levy, is not sufficient to excuse the sheriff.\nThe right of action of a judgment creditor against a sheriff for not levying a Ji. fa. is not taken away by his discharging the debtor from a ca. sa. issued at his instance, although such discharge might be a satisfaction of the judgment; the creditor\u2019s remedy against the sheriff was perfect before such discharge.\nIt is not error to permit clerical errors to be amended on trial.\nEee-bills are governed by the same rules as executions, and after ninety days they are fundi officio.\nThe omission to state a sum at the end of the narr. as the damages, can be taken advantage of only in the court below. An objection on that account is purely technical.\nThis is an appeal from a judgment rendered in the Union circuit court, in favor of the appellee, and against the appellant, who sued the appellant in an action on the case. The damages were laid in the summons at $300. There were two counts in the declaration, both of which are substantially the same; in each of which the appellee complained, that on the 20th day of April, 1830, he recovered a judgment in the Union circuit court in his favor, against one William Lamar, for $147.06J damages and costs, upon which judgment on the 12th day of May in the same year, he sued out his fieri facias for the obtaining of satisfaction of said judgment, which writ was directed and delivered to the appellant as sheriff of Union county, to be executed; and that being such sheriff, and while he had the writ in his hands, Lamar had goods and chattels of which the money might have been made; of which goods, &c., the first count alleges, the appellant had notice, but the second count does not; and that appellant neglected to levy the execution on those goods, &c., whereby the appellee was deprived of the means of collecting his judgment, to his great damage, but no sum is named as the amount of the damage. To this declaration, the appellant pleaded, besides the general issue, the following special pleas, to wit: And for further plea in this behalf, the said defendant says actio non, because he says that he did levy on and sell, by virtue of said execution and for the satisfaction of the same, all the goods and chattels, &c., belonging to the said Lamar, and which were known and notified to the said defendant, all which, &c.\nAnd for further plea in this behalf, the said defendant says, plaintiff aforesaid actio non, because lie says, that after the return by this defendant into the office of the clerk of the circuit court, of the said writ of execution mentioned, and before the commencement of this suit, he the said plaintiff caused to be issued and put into the hands of this defendant as sheriff as aforesaid, a certain other writ of execution in his said plaintiff\u2019s favor, against the said William on said judgment, which writ is commonly called a writ of capias ad satisfaciendum, on which said writ, he, said Lamar, was arrested by his body and taken into the custody of this defendant ; and after being and remaining in such custody for a long time, was by the said plaintiff discharged from custody and permitted to.go at large; and this he is ready to verify, &c., wherefore, &c. To these pleas the plaintiff demurred generally, which the court sustained. The issue on the plea of not guilty was tried, and a verdict rendered for the appellee for $155.55, for which the court rendered judgment.\nOn the trial, the plaintiff, after reading to the jury the record of a judgment in the Union circuit court for $147.064 damages, and $21.064 costs, offered in evidence an execution for $147.064 debt, and $21.064 costs, to the reading of which to the jury, the defendant objected; whereupon the plaintiff moved the court for leave to amend said execution, by erasing the word debt, and inserting the word ' damages; which amendment the court permitted, and then admitted the execution in evidence, to which the defendant excepted. The defendant then offered in evidence a certain fee-bill, put in his hands as sheriff for collection, against Lamar, and in his hands at the same time the execution in the declaration mentioned was in his hands, which fee-bill, and the return thereon showed, that the defendant had levied it upon a certain horse belonging to Lamar, and sold the horse and applied the proceeds in satisfaction of the fee-bill. The levy on the horse was made after ninety, days from the date of the fee-bill, as the defendant acknowledged before the court and jury. To the reading of this fee-bill in evidence, the plaintiff objected, because it was levied after the ninety days, which objection was sustained by the court; to which opinion of the court the defendant also excepted, and appealed to this court.\nBaker, for appellant,\ninsisted that the first special plea contains a sufficient answer to the plaintiff\u2019s declaration, and the facts stated in it are admitted to be true by the demurrer. If it be said that it lacks form, and that it amounts to the general issue, the answer is, that the objection can only be taken advantage of by special demurrer.- 1 Ch. Pl., 498. 10 Johns., 289. 5 Bac. Abr., 370, and note [a] in margin. 8 Cranch, 30.\nThe second plea is a full answer to the declaration, and is a complete bar to a recovery in this case. It shows that subsequently to the return of the writ of fieri facias, the appellee has been satisfied the amount of his judgment against Lamar. He contended that taking Lamar into custody on the ca. sa., and his discharge by the appellee, was a full, absolute and complete discharge and satisfaction of the judgment, and cited 4 Burow, 2482; 1 T. R., 557, 715. 6 ib., 525. Coxe\u2019s Dig., 582. 5 Johns., 364. 1 Dane\u2019s Ab., 591. 5 Com. Dig., 762. Toller\u2019s Exrs., 151. 2 East, 243.\nThe court ought to have permitted the defendant to read the fee-bill to the jury to show what disposition was made of the horse belonging to Lamar, and which was a principal article of property in his hands, in respect to which the defendant was charged. No time is expressly limited for the return of fee-bills put into the sheriff\u2019s hands for collection. Rev. Laws of 1827, pages 107, 207, 218; nor is any time specified in the fee bill within which it shall be returned. The law, it is true, declares that such fee-bill shall have the force and effect of an execution, and that the sheriff shall levy the same on the goods and chattels,