12 Ill. App. 502 | Ill. App. Ct. | 1883
The assignment of the breach of the constable’s bond declared upon is not, that the constable executed the writ of replevin without having taken from the plaintiff in that writ any bond whatever; but it is that he-took, accepted, approved and returned a bond that was insufficient, defective and absolutely worthless. The special plea to that breach (which was the only one assigned) set out in hceo verba the bond which the constable in fact did take; and averred the sufficiency of the surety, as respected his pecuniary responsibility. If the plaintiff’s attorney had desired to raise the question of law, whether the bond so set out was invalid upon its face, he should have demurred to that plea, so that the question would have been properly presented to the court for decision. If, on the other hand, he claimed that the bond as set out in the plea was not the one which the constable in fact did take, he should have so averred in his replication to that plea; and that would have put that fact in issue. So also as to the sufficiency of the surety. The replication, however, does not directly or indirectly deny the fact of the constable having taken at the time in question the particular bond set out in the special plea, or make any mention of the particular averment in such plea that the surety on such bond was financially responsible. We are unable to come to any other conclusion than,that the replication in effect admitted the fact of the constable having taken the particular bond set out in the special plea, as well as the pecuniary responsibility of the surety. McCormick v. Huse, 66 Ill. 315; Simmons v. Jenkins, 76 Ill. 479. If the matters so admitted amount to a defense to the action, then the judgment below is necessarily erroneous. The question, whether the facts so admitted are sufficient to answer the breach assigned in-the plaintiff’s declaration, and then defeat the action, depends solely upon the further question, whether the replevin bond, as set out in the special plea is to be regarded as valid and effectual for the purpose of its execution.
We perceive that the name of the surety is not mentioned in the bond. That does not affect its validity. It is well settled that although the name of the party is not mentioned in the bond, yet if he signs and seals it he will be bound. We also perceive, at the beginning of the condition and in the mention of the name of the person who sued out the writ of replevin, it is the said Mrs. Oh. Affeld instead of Steiber. From the whole instrument there is no doubt that Mrs. Steiber was the person intended. If that be so, the objection is untenable. That the court should look at the whole instrument and thereby determine who was the person intended, is decided by Hibbard v. McKindly, 28 Ill. 254. By proper averments there could be no difficulty in recovering upon that bond. It was not therefore invalid. Again, the defendants offered the same identical bond set out in the special plea in evidence; but, on plaintiff’s general objection, the court excluded it. The replevin bond being valid and the surety good, the judgment below was unwarranted and must be reversed.
Judgment reversed.