If the merits of the case have not been determined in the trial of the action in which the bond was given, the defendant in the action upon the replevin bond may plead that fact and his or her title to the property in dispute, in the action of replevin.
19-128.Defense to action on bond.
Article XIX. Replevin · Not amended since adoption on record · Last verified July 20, 2026
In one sentenceIn an action on the replevin bond, if the underlying replevin case's merits were never decided, the defendant may plead that fact along with the defendant's title to the disputed property.
Full Text of 735 ILCS 5/19-128
Plain-English Summary
Section 19-128 gives a bond defendant a specific defense to raise in an action brought under Section 19-127. It applies when the merits of the original replevin action, the one in which the bond was given, were never determined at trial, for instance if the case ended in a dismissal rather than a decision on who had the better right to the property.
In that circumstance, the defendant in the bond action may plead that the merits were never determined, and may also plead the defendant's title to the property that was in dispute in the replevin case.
This lets the merits question, ownership or right to possession, get litigated within the bond action itself when it was never resolved in the original replevin suit, rather than treating the bond breach as conclusive proof the defendant lacked any claim to the property.
Frequently Asked Questions
What defense can a defendant raise in an action on a replevin bond?
That the merits of the original replevin action were never determined, together with the defendant's title to the property that was in dispute.
When does this defense apply?
When the merits of the case in which the bond was given were never decided at trial.
Why would the merits of the replevin case never have been decided?
The underlying case could have ended through dismissal or another resolution short of a trial on who had the superior right to the property.
Does pleading this defense resolve the property dispute automatically?
No. It allows the defendant to raise the merits and title question within the bond action, but the matter still needs to be litigated and decided there.
Which section creates the action on the bond that this defense applies to?
Section 19-127, which allows suit on the bond when its conditions are broken.
Amendment History
(Source: P.A. 82-280.)
Source & verification. Section text and amendment history are
reproduced verbatim from the Illinois Compiled Statutes, published by the
Illinois Compiled Statutes, Illinois General Assembly / Legislative Reference Bureau. Last verified July 20, 2026.
· Official source
Also known as: defense to replevin bond actionmerits never determined replevintitle defense bond action illinoispleading title in bond action