Ryan v. Barger

• Citation: 1854 WL 4751,6 Peck 28,16 Ill. 28
• Court: Supreme Court of Illinois
• Decision Date: 30 November 1854
• Parties: EBENEZER Z. RYAN et al.v.JOSEPH B. BARGER, who sues for the use of CHARLOTTE SMITH, Administratrix, &c.

16 Ill. 28
1854 WL 4751 (Ill.)
6 Peck (IL) 28

EBENEZER Z. RYAN et al.
v.
JOSEPH B. BARGER, who sues for the use of CHARLOTTE SMITH, Administratrix, &c.

Supreme Court of Illinois.

November Term, 1854.

THIS cause was heard before MARSHALL, Judge, at July, term, 1854, of the Gallatin Circuit Court.

W. THOMAS, for Appellants.J. OLNEY, for Appellee.

TREAT, C. J.

This was an action of debt, brought in the name of Barger, to the use of Charlotte Smith, Administratrix of William Smith, against Ryan and Thomas. The declaration was upon a bond, dated the 19th of November, 1851, executed by Ryan and Thomas to Barger, sheriff of Gallatin county,

[16 Ill. 29]

reciting that Ryan had sued out a writ of replevin against William Smith, to recover certain personal property, and conditioned to make return of the same, if return thereof should be awarded. The declaration averred that the action of replevin was determined against Ryan, and then a return of the property was awarded.

The defendants pleaded non est factum, and nul tiel record on which issues of fact were formed. Ryan filed a plea, alleging in substance, that in October, 1847, the Bank of Illinois obtained a judgment against William Smith and Henry Eddy for $79.53; that in June, 1849, the same Bank obtained a judgment against William Smith for $70; that the judgments remained unsatisfied and in full force, and legally belonged to defendant Ryan, as surviving assignee of the Bank of Illinois, by virtue of an assignment made in conformity to the provisions of the statute; and that he would set off so much of the amount due on the judgments, as would equal the damages sustained by the breach of the condition of the bond. The court sustained a demurrer to this plea.

The defendants then filed a notice in substance as follows: that in October, 1847, the Bank of Illinois recovered a judgment against William Smith and Henry Eddy for $79.53, and that Eddy departed this life before the cause of action accrued in this case; that under the provisions of the statute and by force of a deed of assignment by the Bank, the right to the judgment was vested in the defendant Ryan; that Ryan, claiming to be the owner of the property described in the replevin bond, by virtue of a purchase at a sale on an execution issued upon the judgment, replevied the same out of the possession of Smith, and executed the bond, with defendant Thomas as security, conditioned for a...