Moriarty v. Stofferan

89 Ill. 528

• Court: Illinois Supreme Court
• Decided: September 15, 1878
• Status: Published

Opinion

Mr. Justice Dickey

delivered the opinion of the Court:

In an action of replevin it is essential that the plaintiff should be entitled to the possession of the property at the time when the writ is sued out. Assuming the plaintiff’s version of the facts to be true, he was not entitled to the possession of this property at' the time that he commenced his action. If his allegations be true, he undoubtedly had a right to rescind the contract by offering to return the note. He, however, was not in a condition to bring his action until he had offered to return the note and demanded the property.

The judgment must be reversed and the cause remanded.

Judgment reversed.