delivered the opinion of the Court:
The tenor of the bond, as it appears upon oyer, is considered as forming a part of the precedent pleading, and it was competent for appellants to avail themselves of any defect apparent upon the face of the bond, or variance between its terms and the allegations in the declaration, after oyer, by demurrer. 1 Chit. Pleading, 466, 468; Taylor et al. v. Kennedy, Breese, 91.
It is alleged in the declaration, that the condition of the bond is, “that, whereas, the said Thomas Matthews had, upon the day of executing said bond, replevied the goods and chattels above mentioned, which had been previously taken by the said Hail Storms, as sheriff, as aforesaid, as the property of James McCabe and Joseph Hothery, by virtue of a writ of attachment at the suit of Joseph and Samuel B. Sacks, partners, etc., for $180. How, if the said Thomas Matthews should prosecute his said suit against the said Hail Storms, sheriff, and John Diddle, deputy sheriff,” etc. In the condition of the bond, as set out on oyer, nothing is said about prosecuting said suit against Hail Storms and John Diddle, nor is it stated against whom the suit is prosecuted. It is true, it is stated therein that the property replevied was “taken by the said sheriff of White county,” by virtue of a writ of attachment, etc., but it could hardly be claimed that the necessary legal conclusion from this statement is, that the suit in replevin was prosecuted against Hail Storms and John Diddle.
In Arter et al. v. The People, use, etc. 54 Ill. 228, it was held, it is essential to the validity of a replevin bond, that the name of the defendant in the suit appear therein, and that, being defective in this respect, it is a nullity, and the omission can not be supplied by averment or otherwise.
Applying this principle to the case before us, the bond, as it appears upon oyer, was a nullity; and the variance between its terms and that of the instrument described in the declaration is, therefore, not only clear, but upon a point vital to appellees’ right to recover in the present suit.
It is insisted, however, that the bond, although defective as a statutory bond, may be held good as a common law obligation.
Even if this were conceded to be true, under a declaration, with proper averments, it is not perceived how the principle can be resorted to for the purpose of remedying the defects in the present declaration. Whether the instrument declared upon shall be called a statutory or common law bond, the vari-anee between its terms and the allegations in the declaration must still be the same; and there would also appear to be the same necessity that its condition should clearly refer to and specify the purpose for which it was given.
The court below erred in overruling the demurrer and rendering judgment against the appellants. The judgment is, therefore, reversed, and the cause remanded.
Judgment reversed.