#### Francis W. Smith, use of Alexander Allison, Plaintiff in Error, v. Henry Pries et al., Defendant in Error.

ERROR TO PEORIA.

It is error in an action upon a replevin bond, to refuse to let the plaintiff prove

that the property has not been returned, as the condition of the bond required.

This was an action on a replevin bond. The declaration contains two counts; several breeches are assigned, and among them, one that Pries, defendant in error, did not, nor would, make return of the goods and chattels to Allison, nor to any other person for him. On the trial, plaintiff below asked a witness if the property replevied, had ever been returned to Allison. And the court, Powell, Judge, presiding, refused to allow him to answer, because it did not appear that a writ of returno habendo had been issued and returned, in the case of Pries v. Allison.

H. Grove, for Plaintiff in Error.

C. C. Bonnet, for Defendant in Error.

Caton, C. J.

This was an action on a replevin bond. Condition, that the plaintiff in the action of replevin should return the property, if he should be so ordered by the court. He was ordered to return the property as was contemplated by the condition of the bond. In this state of the case, the plaintiff offered to prove that the property had not been returned according to the exigency of the bond, and the court refused to allow it. In this the court erred.

The judgment must be reversed and the cause remanded.

Judgment reversed.