Calumet Paper Co. v. Knight & Leonard Co.

Waterman, P. J. No plea of nul tiel corporation having been filed, it was not necessary that the plaintiff below make proof of its corporate existence. Nor' was it necessary that the plaintiff should show that at the acknowledgment of the mortgage, the justice made the entry in his docket, which, by the statute, it was his duty to make. Harlow v. Berger, 30 Ill. 425. It was clearly proven that at the time of the making of the mortgage Johnson & Go. were already indebted to appellee to an amount exceeding §1,300. The Johnson & Co. Company was also liable to appellee for rent that would accrue upon alease that had then a considerable time to run, and was likely to become further indebted to appellee for a lot of press work appellee had just started to do for Johnson & Co. The consideration for the mortgage and that it was executed to secure a large amount of bona fide indebtedness, was fully established. There was no error in the court’s exercising its discretion as it didin refusing to allow the defendants to file, at the conclusion of the plaintiff’s case, a plea of justification. Appellant’s plea, if filed, would not have been sustained by the evidence; appellant did not offer to show any judgment upon which the execution under which the sheriff sought to j ustify, was issued, or offer anything save the mere writ and return thereon. Where a sheriff, being the defendant in an action of replevin, justifies under an execution, and desires to show that the claim of the plaintiff is fraudulent as to creditors, he must show a valid judgment as well as an execution thereon issued. This is not the case where the plaintiff in the action of replevin is the defendant in the execution upon which the sheriff acted and under which he seeks to justify. In such case, the execution itself is a sufficient justification for a seizure of the goods of the defendant in the execution (plaintiff in the action of replevin) where the seizure is only of such goods as are, by law, liable to be taken upon execution. Dayton v. Fry, 29 Ill. 526; Johnson v. Holloway, 82 Ill. 334; Jackson v. Hobson, 4 Scam. 411; Hartman v. Cochrane, 2 Ill. App. 592; Sandford Mfg. Co. v. Wiggin, 14 N. H. 441; Ambler v. Traver, 2 Ill. App. 614. The judgment of the Superior Court is affirmed. .Judgment affirmed.