Nelson v. Cook

• Decision Date: 30 June 1856
• Citation: 1856 WL 5350,17 Ill. 443,7 Peck 443
• Parties: JOHN G. NELSON ET AL., Plaintiffs in Error,v.ISAAC COOK, Defendant in Error.
• Court: Illinois Supreme Court

17 Ill. 443
1856 WL 5350 (Ill.)
7 Peck (IL) 443

JOHN G. NELSON ET AL., Plaintiffs in Error,
v.
ISAAC COOK, Defendant in Error.

Supreme Court of Illinois.

June Term, 1856.

Error to Cook County Court of Common Pleas.

THIS was an action of assumpsit, commenced by Isaac Cook, late sheriff of Cook county, against the plaintiffs in error, in the Lake County Circuit Court, by attachment, and afterwards removed to the Cook County Court of Common Pleas, and tried before J. M. WILSON, Judge, at the September term, 1855.

The affidavit for the attachment sets forth, that the plaintiffs in error were indebted to the defendant in error upon an implied contract arising as follows: That while said Isaac Cook was sheriff of Cook county, in June, 1848, said Nelson and Graydon, as creditors of Augustus E. Miller and David R. Clements, a firm then doing business in Chicago, sued out an attachment from the Cook County Court of Common Pleas, in their own names, against the estate of the said Miller and Clements, directed to the sheriff of Cook county to execute, which was delivered to said Cook (the then sheriff) by the attorney and agent of said Nelson and Graydon, to be executed; and, in pursuance of the instructions of said Graydon and his attorney, said Cook attached a stock of dry goods and groceries, and a store in Chicago, of the value of three thousand dollars or thereabouts, which stock and store were claimed by one Jacob Miller as his property, but which said Cook was directed by said Graydon and his attorney to seize as the estate of Miller and Clements, and in pursuance of the instructions said Cook did seize the property about the 12th of June, 1848.

That, at the February term of the Cook County Court of Common Pleas, held in the year 1850, the said Jacob Miller, in an action of trespass de bonis asportatis, commenced against said defendant in error for attaching said property as the property of Miller and Clements, at the suit of Nelson and Graydon, did recover a judgment against said Cook for the sum of three thousand two hundred dollars, and upwards, which judgment was affirmed by the Supreme Court of Illinois; and that said Cook was compelled to pay the same, with costs and expenses;

[17 Ill. 444]

and that the amount of damages sustained by him was four thousand two hundred dollars, which sum said Nelson and Graydon owed to said Cook by implied promise; and that Miller and Clements were about to leave the State with the intention of having their effects removed; upon which affidavit an attachment writ was issued, which was duly served upon certain garnishees therein named.

The defendant in error filed his declaration, setting forth his cause of action substantially as embodied in the attachment affidavit.

To this declaration the plaintiffs in error filed the general issue and eight special pleas.

A general demurrer to the second and fifth pleas, and a special demurrer to the third plea, were severally sustained by the court.

The fourth plea is as follows: protesting that plaintiff was not sheriff of Cook county, and that Beach was not deputy; and further protesting, that defendants did not sue out or deliver to said Beach the attachment writ, and the defendants did not direct Beach, as deputy, to levy, nor did Beach levy, in manner and form, &c.; and further protesting, that Jacob Miller did not recover the judgment for the causes mentioned in the declaration; and further protesting, that the said plaintiff was compelled to pay, and did not pay, the several sums of money in said declaration mentioned as the plaintiff hath alleged; for plea, nevertheless, defendants say that the property, before and at the time of the levy, was the property of Jacob Miller, and was, before and at the time of the levy, in his possession, of all which, Beach then and there had notice; without this, that defendants did assume and promise, in manner, & c., and this the defendants are ready to verify; wherefore they pray judgment, &c.

To this plea plaintiffs replied, protesting that said goods, &c., were not Jacob Miller's property, and were not in his possession, and the plaintiff says that he had no notice that said goods, &c., were the property of said Miller; and this he prays may be inquired of by the country; upon which replication, issue was joined.

The eighth plea is as follows: plaintiff ought not to recover for any further sum than the sum...