Shepard v. Butterfield

Citations

• 41 Ill. 76

Syllabus

<p>1. Evidence—in suit on replevin bond—admissibility. Where, upon a nonsuit being entered in an action of replevin, the court ordered a return of the property and assessed damages for its detention, evidence of such assessment cannot be given in a subsequent action on the replevin bond. The bond does not require the payment of such an assessment.</p> <p>2. While, under the general breach assigned upon the bond, evidence of damages suffered by the detention prior to the order of retorno hábendo, would be admissible, yet it must be evidence of what the damages in fact were, without any reference to the former assessment.</p> <p>3. The plaintiff in the action on the bond is at liberty to go into the question of damages for the detention, but he is not obliged to do so. He may abide by the first assessment, and take a verdict in the pending suit merely for the value of the property.</p> <p>4. Action on replevin bond—effect of recovery of damages for detention on the former assessment. If the plaintiff in the action on the bond does in fact offer evidence upon the damages for the detention of the property, the verdict and judgment in that case, when paid, will be a bar to the collection of damages under the former assessment.</p> <p>5. Evidence to show what was litigated in another suit—when admissible. If the record in the suit on the bond shows that a recovery was had for damages, the record cannot he controverted, and a pleading in another action which alleges to the contrary is had on demurrer.</p> <p>6. But it not appearing hy the record whether the question of damages for the detention was litigated in that case, or whether the recovery was only for the value of the property, the parties can show in a subsequent suit, hy parol evidence, what causes of action were in fact litigated.</p> <p>7. Execution—on a judgment for damages m an action of replevin. An execution can issue on an assessment of damages upon the dismissal of an action of replevin.</p>