Peck v. Wilson
Illinois Supreme Court
This action was brought on a replevin bond where the action . of replevin was not tried on the merits, but was dismissed for want of prosecution. The declaration was on a replevin bond for the replevy, by Bishop, of 8,918 feet first clear lumber, 207,197 second clear lumber, 220,540 common, 55,174 culls. Declaration contains two counts, neither of which allege the issuing of a retorno habendo.
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This action was brought on a replevin bond where the action . of replevin was not tried on the merits, but was dismissed for want of prosecution. The declaration was on a replevin bond for the replevy, by Bishop, of 8,918 feet first clear lumber, 207,197 second clear lumber, 220,540 common, 55,174 culls. Declaration contains two counts, neither of which allege the issuing of a retorno habendo. The first count avers, for breach, “ that the said James E. Bishop has at no time since, returned or offered to return said goods, in pursuance to the order and judgment of said court, but so to do has…
1Opinion of the CourtBreese, J.
We are not of opinion that a writ of retorno habendo, shall actually issue and elongata returned, before an action can be brought on the replevin bond. It is sufficient that the judgment awarded the return, and to prove that no return was made. This it was the duty of the party to do, against whom the judgment for a return was awarded.
The party by his default, admitted all the facts well pleaded in the declaration, and the important one is, that a return was awarded, and no return of the property in fact made. That was the condition of the bond, and the breach need not be broader than the…
2Cited by5 opinions
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- Love v. PeopleAppellate Court of Illinois · 1901