Kantzler v. Albertson , 18 Ill. App. 313 ( 1886 )

McAllister, J.

In order to recover damages for not making return of the property replevied by Weiderman, Albert-son should have brought suit upon the replevin bond, instead ' of upon the appeal bond. Section 10 of the "Replevin Act expressly requires such bond to be conditioned that the plaintiff in replevin will make return of the property, if return of the property shall be awarded. 2 Starr & Curt. Stat. 2013. Nothing of the kind is required by any statute to be contained in the condition in a bond to be given upon appeal from a justice’s judgment, and no such effect was intended by tho legislature to be given to such appeal bonds. By section twenty-six of the Replevin Act, it is pirovided that in suits upon replevin bonds, if the merits of the case have not been determined in the action, the defendant may pilead that fact and his title to the property in dispute in the action of replevin. 2 Starr & C. p. 2018. No such right or privilege is extended to defendants in actions ivpon apipeal bonds. The merits were not tried in the replevin suit; so defendants were deprived of that right by this suit on the apipieal bond.

But there are no terms or words in the condition of the ap. peal bond on which this suit was brought, which can fairly be construed into an obligation on the part of Weiderman or his surety, to make return of the property replevied to the obligee or any other person. The obligation of the principal and sureties in a bond can not be extended beyond the plain and direct terms of such bond.

The law will not create a liability against a surety which he has not brought upon himself by his contract. Whitwell v. Burnside, 1 Metc. (Mass.) 39; Swanson v. Ball, Hempstead, 39. The admission of the evidence of the value of the property was erroneous.

The court below should have found the amount of the debt and given judgment for that, to be discharged upon the payment of damages. The fatal error, however, was in treating this appeal bond the same as if it contained the conditions in a replevin bond. The judgment will be reversed and the cause, remanded.

Judgment reversed.