Smith v. Hertz

Gary, P. J.

This is an action of debt upon a replevin bond, in which the appellants had all the opportunity they wished, to show the meritorious claim of the plaintiff in the replevin suit to the property then in controversy, but put in no evidence. This omission has been supplied by the brief of his counsel which begins in the 13th century, and by easy gradations comes down to the administration of Mayor Cregier.

The rule of law, that for the breach of a covenant to do a particular thing, as to pay money or deliver property, though the covenantee has no beneficial interest in the performance of the covenant, yet he recovers the value of the thing to be done, applies" to replevin bonds as well as other specialties. Lethrige v. Mytton, 2 B. & Ad. 772; Atkins v. Moore, 82 Ill. 240. It is no concern of the defendant for whose use the action may be brought, and it is not necessary that the one for whose use a suit maybe brought should have any interest or connection otherwise with the subject of the suit, is the proposition stated by the Supreme Court in the case last cited.

It is not in proof, but from the record, is a probable conjecture, that the replevin suit was against the sheriff and a defendant in an execution, and that this action is for the use of the plaintiffs in that execution, and it does not make a particle of difference whether the conjecture comes near the truth or not.

When the coroner gets the damages into his hands, the question of their distribution may, but may not, arise.

There is no error and the judgment is affirmed.

Judgment affirmed.