Przybylski v. Remus , 207 Ill. App. 106 ( 1917 )

Mr. Presiding Justice Holdom

delivered the opinion of the court.

5. Conspiracy, § 12^*- — what constitutes material, variance between pleading and. proof. Where a declaration pontains in each count a charge of conspiracy to do the things complained of and there is no evidence of conspiracy, there is a material variance between the pleading and the proof. 6. Conspiracy, § 12* — what will not support charge of. A judgment against one of the alleged co-conspirators will not support a charge of conspiracy. 7. Conspiracy — what constitutes. A conspiracy is a combination ■ of two or more persons for the purpose of accomplishing a criminal or unlawful act or an object either criminal or unlawful by unlawful means, or a combination of two or more persons to do something unlawful as a means to an ultimate end. 8. Sheriffs and constables, § 40* — what is duty of officer as to execution of writ. It is the duty of an officer receiving a writ of restitution regular on its face to execute it, and he has no power to review the action of the court issuing it. 9. Forcible entry and detainer, § 105* — what is duty of owner to protect goods being removed under writ of restitution. It is the duty of one whose goods have been removed under a writ of restitution in forcible entry and detainer proceedings to use his best efforts to protect it from damage. 10. Forcible entry and detainer, § 105* — when officer removing goods under a writ of restitution is not liable for damage. The officer removing goods' under a writ of restitution, in forcible entry and detainer proceedings, is in no way responsible for damage occurring to the goods after their removal from the premises. 11. Instructions, § 110* — when instruction erroneous as inapplicable to pleading. An instruction which is not applicable to the claim set up in the declaration is faulty. 12. Sheriffs and constables, § 83* — when instruction in action for damage against officer serving writ is erroneous. In an action against an officer to recover for damage to property through the execution of a writ of restitution, an instruction which fails to inform the jury of the protection which the writ afforded those acting under it, and informs the jury that if they believe the plaintiff was the owner of the property and was in peaceable possession at the time, they should find the officer executing the writ guilty, is erroneous.