Pease v. Anderson

Mr. Justice Breese delivered the opinion of the Court: There is but one point presented by this record deemed of sufficient importance to be noticed at length, and that is the fourth instruction given for the plaintiff. That instruction is as follows: “ The defendant can only attack the sale in question as fraudulent, by showing that he represented creditors, and that the affidavits and attachments in this case, of themselves, do not prove such creditors. Neither does the justice’s docket prove the same, judgments in attachment, where there is no personal service, being no evidence of debt.” We are of the opinion that the judgment in the attachment suit, and the execution thereon, authorized the constable to show that the sale of the property levied on was in fraud of creditors ; as to that property, he represented creditors. Cook v. Miller, 11 Ill. 611; Schlussel v. Willet, 34 Barb. 615. The instruction was erroneous, and for this error the judgment must be reversed, and the cause remanded. Judgment reversed.'