Dunning v. South , 62 Ill. 175 ( 1871 )

Mr. Justice Breese

delivered the opinion of the Court;

This was an action of debt on a replevin bond, given in an action of replevin, which had been dismissed by the .plaintiff without a trial on the merits, ánd a defense made under the act of 1847.

The only issue before the jury was, in whom was the right of possession at the time of suing out the writ of replevin?

Under instructions, to which no exception was taken, the jury found for Ward, for whose use the action was brought, and we think correctly.

Though the property in thexnops might be in appellant, the possession could not be, for by the very nature of the contract it was in Ward who raised them. The property was in appellant only as security that Ward would deliver the one-third of the crop, which he could not do, if it was not in his possession.

Even if Ward had improperly converted the wheat, the contract did not give appellant a right to the tenant’s share of the corn and oats. The evidence fully sustains the verdict, and the justice of the case seems to be as the jury have found. The judgment is affirmed.

Judgment affirmed.