Kellogg v. Boyden

Citations

• 126 Ill. 378
• 18 N.E. 770

Syllabus

<p>1. Allegations and bbooes—in suit on replevin bond. The breach laid in a declaration on a replevin bond need not be broader than the condition in the bond, nor the proof more extensive than the breach. The judgment ordering the return of the goods is proof that the goods mentioned in the bond and the writ were taken, even though the description of the goods in the bond, and in the officer’s return, to the writ, are not identical, being more complete in the return than in the bond and writ.</p> <p>2. In such a case, the surety, who alone was served with process, pleaded that the goods alleged to have been taken -under the writ were not the goods mentioned and described in the bond, but were other and different goods. The plaintiff gave in evidence the replevin bond, the replevin writ, with the officer’s return, the judgment dismissing the replevin suit and ordering a return of the property, and made proof of the value of the goods: Held, that this proof, under the issues, made a prima facie case entitling the plaintiff to recover the value of the goods not returned.</p> <p>3. Instbuction—■not based on evidence. Where no proof is offered in support of an issue tendered by a plea, the court, in instructing the jury, may properly ignore the defense stated in such plea.</p>