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 condition, nor the proof more extensive than the breach. Hunter v. Sherman, 2 Scam. 14. 544.
Upon the other point we are of opinion that an action of debt upon a forfeited replevin bond, is not such an action on a contract as is contemplated by the third and fourteenth sections of the act regulating the practice in the Cook county Circuit Court and Court of Common Pleas. (Scutes’ Comp. 271-2.) Those contracts, should be held to be contracts for the payment of money, as damages arising from a breach of contract. A replevin bond has not this quality. It has conditions, no one of which is to pay money. The condition is that he will prosecute the suit to effect and without delay, and make return of the property if a return thereof shall be awarded, and save and keep harmless the sheriff.
It would be a strained and forced construction of that act, which we are not disposed to give, to bring such cases within it. Its operation is already sufficiently extensive, partial as the act is and in derogation of the general law of the State. The court should not have stricken the plea from the file for want of an affidavit of merits, and for doing so the judgment is reversed and the cause remanded with directions to reinstate the plea.
We forbear touching upon the other points made by the plaintiff in error, as they bring up very important questions which we have not time now to examine fully.
Judgment reversed.