Leland v. Barry

Citations

• 69 Ill. 348

Syllabus

<p>1. Action—must be brought on higher security. Where a party has different securities of different descriptions for the same debt or demand, and from, the same person, he must found his action on that security which is, in law, of the higher nature and efficacy. Thus, assumpsit can not, in general, be-supported where there is an express contract, under seal, or of record, which relates to the same subject matter, and is still in force, but the party must proceed in debt or covenant where the contract is under seal, or in debt or scire facias if it be of record, even though the debtor, after such contract was made, expressly promised to perform it.</p> <p>2. So, where a party, being liable upon a replevin bond, promised, in writing, to pay the amount of his liability by the next term of court, if no suit was brought on the bond, but the bond was not released, it was held, that no action would lie upon the subsequent promise, as it could not merge or destroy the higher security.</p>