Langdon v. Wilcox

Citations

• 107 Ill. 606
• 1883 Ill. LEXIS 303

Syllabus

<p>1. Attachment oe water craft—of the pleadings and practice. In a proceeding under tie statute relating to the attachment of water craft, the petition, the answer, and the replication, are all the pleadings contemplated by the act, and all that are proper in such a ease.</p> <p>2. In a suit commenced under the statute, a petition was filed, and there was a seizure of the craft, and a bond given releasing the craft from the attachment. There was an answer to the petition, and a replication. In addition to these pleadings there was a common law declaration in assumpsit, a plea of non assumpsit, and issue joined on the plea. The plaintiff moved the court to set the case for trial on the common law pleadings, which the court refused to do. The defendant thereupon entered his motion that the common law pleadings be stricken from the files. This motion the court sustained; and in this there was no error, because these common law pleadings were irregular, and foreign to the proceeding.</p> <p>3. Had the plaintiff, however, desired to abandon altogether the statutory proceeding already commenced, and with such view had asked permission to change the form of action by the substitution of an action of assumpsit, and further, had asked that these common law pleadings might stand as the pleadings in the cause, it is thought the motion should have been allowed.</p> <p>4. The giving of a bond, under the 15th. section of the act, for the release of the vessel from the attachment, in nowise affects the mode of procedure, except that the judgment, if for the plaintiff, instead of ordering the attached vessel to be sold for the satisfaction of the amount found to be due, will be entered against the defendant and his sureties on the bond, with an award of a general execution. The bonding of the vessel does not relieve the plaintiff from the burden of proving his case as made in the petition. So much of the proviso, in section 21 of the act, as declares that in case of a release of t