Young v. Campbell , 10 Ill. 80 ( 1848 )

The Opinion of the Court was delivered by

Caton, J.

There was a general demurrer sustained to the whole declaration, which contained two counts. The fiist is in the usual form of a money bond, for the payment of iso much money without condition. The second is upon the same or a similar bond, with a condition in the usual form of a forthcoming bond in an attachment suit.

The declaration avers the recovery of a judgment and the issuing of an execution in that suit, upon which there was a „ return of nulla bona with an averment also, that the defendants did not have the said property or any part thereof forthcoming, &c., according to the form and effect of the condition of the bond. The demurrer “craves oyer of the said writing obligatory and it is read to them,” but it does not set it forth, so that the declaration must be judged of as it stands. No objection has, nor can be urged to the first count, as it stands, and there being one good count, the demurrer, being to the whole declaration, should have been overruled.

Nor do we think the second count obnoxious to the objections urged against it, which are four.

1. That the suit should not have been brought in the name of the sheriff, but the bond should have been assigned to the plaintiff in the attachment suit under the eighth section of the attachment law, and then the suit brought in the name of the latter.

2. The judgment in that case was general, in personam.

3. The execution was general, and not special against the property levied upon.

4. No demand of the property was made by the sheriff.

The word ‘may” in the section of the statute referred to, does not mean “shall.” Neither the interest of the public nor any of the parties requires that construction. The statute authorizes the assignment of the bond, but does not make it imperative. It is a matter of no moment to the defendant whether the suit be brought in the name of the sheriff or of the plaintiff in the other suit. He could make the same defence in either case, and with equal facility.

• The form of the judgment is the same in an attachment suit, as in any other, and that too, whether there be a personal service or not; but where there is not such service, the award should be only of a special execution. But where there is a personal service on the defendant, then a general execution should be awarded, as in an ordinary suit, but in either case the property levied upon under the attachment, is holden by it, and specially liable unless the defendant appears and put in bail as is provided for in the section of the attachment law. When that is done, then the property is released, and not till then. There is nothing on this record to show that such was the case here. But even admitting the irregularity alleged, it could not be taken advantage of in this collateral action. The return of nulla bona shows that neither this nor any other of the defendants’ property could be found in the county.

The declaration also avers, that the defendant did not have the property forthcoming according to the tenor and effect of the bond, “but wholly and totally failed, neglected and refused so to do.” This we think abundantly sufficient, to show a breach of the condition of the bond, and to entitle the plaintiff to recover.

The judgment of the Circuit Court is reversed with costs and the cause remanded.

Judgment reversed.