Manning v. Pierce , 3 Ill. 4 ( 1839 )

Smith, Justice,

delivered the opinion of the Court:

This was an action of debt on an official bond given to the coroner of Madison county in an action of replevin. There are two counts in the declaration ; the first merely sets out the bond, and avers the non-payment of the sum covenanted to be paid. The second assigns breaches of the condition of the bond. To these counts, the defendants in the Court below, demurred separately ; and they now assign for error, the decision of the Court below, in overruling the demurrers, and urge, as grounds of objection, first, that an action of debt will not lie on the bond exhibited in the record ; secondly, the declaration is insufficient, as there were disjunctive and alternative acts to be done, and the declaration does not contain an averment of the non-performance of those acts.

We can perceive no force in the objection as to the form of action ; the action is well conceived. The declaration is considered sufficient. The covenant was to prosecute the action of replevin to effect, or to make return of the property, if it should be awarded to the defendant in the action of replevin, and pay such costs as might accrue in such suit, in case of a failure in the prosecution thereof. The breaches in the non-performance of these conditions are fully set out, as well as the averments that the action of replevin had been tried, and that a return of the property had been adjudged, and a writ of returno habendo awarded. The demurrer was correctly decided. The judgment is affirmed with costs.

Judgment affirmed.