Hopkins v. Ladd

• Decision Date: 30 April 1864
• Citation: 35 Ill. 178,1864 WL 3041
• Parties: ROBERT HOPKINSv.DWIGHT LADD.
• Court: Illinois Supreme Court

35 Ill. 178

1864 WL 3041 (Ill.)

ROBERT HOPKINS

v.DWIGHT LADD.

Supreme Court of Illinois.

April Term, 1864.

APPEAL from the Circuit Court of Kendall County.

Debt brought in the court below by appellee against appellants upon a replevin bond, which is as follows:

“Know all men by these presents, that we, Robert Hopkins, as principal, and P. G. Hawley, as security, are held and firmly bound unto Dwight Ladd, sheriff of the county of Kendall, in the state of Illinois, and to his successors in office, executors, administrators and assigns, in the penal sum of two hundred and fifty dollars, lawful money of the United States, for the payment of which sum we do hereby jointly and severally bind ourselves, our heirs, executors and administrators. The condition of this obligation is such, that whereas, on the 22d day of March, in the year of our Lord one thousand eight hundred and sixty-two, the said Robert Hopkins sued out of the circuit court of Kendall county, aforesaid, a writ of replevin against Josiah Ward, defendant, for the recovery of the following described goods and chattels, property, to wit: One sorrel horse, eleven years old this spring, named Bob, with star in the forehead; also one sorrel mare, eight years old this spring, with white face and legs, of the value of one hundred and twenty-five dollars. Now, if the said Robert Hopkins, plaintiff, shall prosecute this suit to effect and without delay, and make return of the said property, if return thereof should be awarded, and save and keep harmless the said sheriff replevying the said property, then this obligation to be void, otherwise to remain in full force and effect.

Witness our hands and seals this 22d day of March, A. D. 1862.

ROBERT HOPKINS,

P. G. HAWLEY.”

Upon this bond plaintiff declared as follows:

“STATE OF ILLINOIS-- County of Kendall--ss. In the Circuit Court, of January term, A. D. 1863.

Dwight Ladd, late sheriff of the county of Kendall, aforesaid, plaintiff in this suit, who sues for the use of Josiah Ward, as administrator of the estate of John Hagerman, deceased, by H. S. Hudson, his attorney, complains of Robert Hopkins and Paul G. Hawley, defendants in this suit, who have been summoned to answer the said plaintiff of a plea that the said defendants render to the said plaintiffs the sum of two hundred and fifty dollars, which the defendants owe to and unjustly detain from the said plaintiff. For that whereas, heretofore, to wit: on the twenty-second day of March, A. D. 1862, at the county of Kendall, aforesaid, and within the jurisdiction of this court, the said Robert Hopkins and Paul G. Hawley, defendants in this suit, by their certain writing obligatory, sealed with their respective seals, and to the court now here shown, the date whereof the day and year last aforesaid, acknowledge themselves to be held and firmly bound unto the above named sheriff by the name and description of Dwight Ladd, sheriff the county of Kendall, in the state of Illinois, in the penal sum of two hundred and fifty dollars, lawful money of the United States, to be paid to the said Ladd, his successors in office, executors, administrators or assigns to which payment well and truly to be made, the said Robert Hopkins and Paul G. Hawley bound themselves, their heirs, executors and administrators, jointly and severally, by the said writing obligatory thereunder written, that if the said Robert Hopkins should prosecute his suit to effect and without delay, which he had, on the twenty-second day of March, A. D. 1862, commenced in the circuit court of Kendall county, aforesaid, against Josiah Ward, for wrongfully detaining the property, if return thereof should be awarded, and save and keep harmless the said sheriff in replevying the said property, then the said obligation was to be void, otherwise to remain in full force and effect.

And the said plaintiff in this suit avers, that the said Josiah Ward, in the condition of the said writing obligatory, mentioned as aforesaid, Josiah Ward, administrator, etc., to whose use this suit is instituted, and not other or different; and the said plaintiff avers, that heretofore, to wit: on the twenty-second day of March, A. D. 1862, the said Robert Hopkins commenced a suit in the circuit court, in the county of Kendall aforesaid, against the said Josiah Ward, for the alleged wrongfully detaining the said property in the said condition mentioned, to which last mentioned suit or action in the said condition of the aforesaid writing obligatory, mentioned and referred to, and which suit was, on the day of the date of said writing obligatory, depending and undetermined in the said circuit court of the county of Kendall aforesaid, and so remained and continued depending and undetermined for a long space of time thereafter, to wit: until the September term of said court, A. D. 1862.

And the said plaintiff in this suit further says, that in the last mentioned term of said circuit court, to wit: the September term in the year last aforesaid, the said Robert Hopkins failed to prosecute to effect the said suit in said writing obligatory mentioned, and said suit was dismissed for the reason that no declaration had been filed therein, that term being the second term of said court since the commencement of said suit, and thereupon it was then and there considered in and by said...