Harms v. Stier

Mr. Justice Gary

delivered the opinion of the Court.

The appellee sued and recovered in trespass for taking his horses. He had, before this suit, replevied the horses, but that suit was dismissed on motion of this appellant for want of a declaration. The appellee put into this case the evidence of the replevin suit.

The appellee had his election to sue in replevin, or in trespass, for his horses in the one, or damages in the other; and having got his horses in the replevin suit his cause of action in trespass was gone. 6 Am. & Eng. Ency. of Law, 350.

And the ajipellee having himself put in the evidence, any plea by the appellant setting up the defense was unnecessary. Savage v. French, 13 Ill. App. 17.

It does not alter the case if the appellant did (a matter disputed) regain the horses on a retorno habendo. The replevin suit suspended all other remedy. “ A personal action once suspended by the act of the party, is gone forever.” Wankford v. Wankford, Salk. 392; Lord North v. Butts, Dyer, 139 b.

Contrary to this view of the law the court instructed the jury that, “ If, from the other evidence, you shall find the defendant guilty, then the court instructs you that the fact that plaintiff brought his action of replevin and obtained the horses on the writ, and that afterward said replevin suit was dismissed and a writ of retorno habendo ordered and issued in said cause and said horses taken from the plaintiff on said writ of retorno habendo, is not a bar to this action.”

It is unnecessary to notice any other question in the case. It is not in our province to advise the appellee whether he has any, and if any, what remedy.

The judgment is reversed, and a finding of facts as a reason for not remanding will be entered here.