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Manning et al. o. Pierce.

failure in the prosecution thereof, then the bond to be void, otherwise to be in full force and effect."

This count concluded as follows.

“And the said plaintiff in fact further saith, that afterwards when the said suit of replevin came before this Court for the trial thereof, to wit; at the July term of this Court, and at the county aforesaid, such proceedings were had before this Court, that it was considered and adjudged by the same, that the said William Manning should take nothing by his said writ, but that he and his pledges to prosecute should be in mercy.

“And that the said Nathaniel Buckmaster should go thereof without day, and that he should have return of the goods and chattels aforesaid, as by the records and proceedings of this Court more fully appears. And thereupon, there issued from the office of the clerk of this Court, under the seal of this Court, a certain writ of this Court, called a writ of returno habendo, directed to the coroner of the county of Madison aforesaid, this plaintiff being then the said coroner, which said writ bore date the twentysixth day of July, A. D. 1838, commanding the said coroner to cause to be returned to the said Nathaniel Buckmaster, without delay, the goods and chattels aforesaid.

“ And the said plaintiff in fact further saith, that the said William Manning did not prosecute his said replevin suit against the said Nathaniel Buckmaster to effect, or make return of the said goods and chattels, or any part thereof, according to the form and effect of the said condition of the said writing obligatory," &c.

The defendants filed a general demurrer to the first count, and a special demurrer to the second count of the declaration, assigning for causes of demurrer to the second count, “ First. That it is not shown in the second count in the declaration, that the said second count is brought upon another and different obligation than the one in the first count mentioned.

" Secondly. Because the said declaration is double.”

The plaintiff joined in the demurrers, and the Municipal Court, the Hon. William Martin presiding, overruled the same, and gave judgment for the plaintiff

. The damages were assessed by a jury.

From this judgment, the defendants appealed to this Court, and assigned for error ;

"1. The action of debt will not lie upon the bond exhibited in the record.

“ 2. From the bond and condition there were disjunctive and alternative acts to be done, and the declaration contains no averment of the performance of those acts.

"3. The judgment upon the demurrers should have been for the defendants.

Manning et al. o. Pierce.

664. The declaration is insufficient."
To which there was a joinder in error.
The appellants relied upon the following points.

1. This being an action upon an office bond, covenant is the proper remedy.

2. Under the practice act, it is necessary to set out the condition of the bond in the declaration. Hurleston on Bonds (Law Library) 130, 131 ; Dwarris on Statutes, 53 (Law Library); Roles v. Rosewell, 5 Term R. 538.

3. There is no sufficient negation of the performance of the condition of the bond.

The cause was submitted without argument.
A. Cowles and J. M. Krum, for the appellants.
G. T. M. Davis, for the appellee.
Smith, Justice, delivered the opinion of the Court :

This was an action of debt on an official bond given to the coroner of Madison county in an action of replevin. There are two counts in the declaration ; the first merely sets out the bond, and avers the non-payment of the sum covenanted to be paid. The second assigns breaches of the condition of the bond. Το these counts, the defendants in the Court below, demurred separately ; and they now assign for error, the decision of the Court below, in overruling the demurrers, and urge, as grounds of objection, first, that an action of debt will not lie on the bond exhibited in the record ; secondly, the declaration is insufficient, as there were disjunctive and alternative acts to be done, and the declaration does not contain an averment of the non-performance of those acts.

We can perceive no force in the objection as to the form of action; the action is well conceived. The declaration is considered sufficient. The covenant was to prosecute the action of replevin to effect, or to make return of the property, if it should be awarded to the defendant in the action of replevin, and pay such costs as might accrue in such suit, in case of a failure in the prosecution thereof. The breaches in the non-performance of these conditions are fully set out, as well as the averments that the action of replevin had been tried, and that a return of the property had been adjudged, and a writ of returno habendo awarded. The demurrer was correctly decided. The judgment is affirmed with costs.

Judgment affirmed.

Shirtliff 7. The People.

EDWARD SHIRTLIFF, plaintiff in error, v. THE PEOPLE

OF THE STATE OF ILLINOIS, defendants in error.

Error to Morgan.

On appeal to the Circuit Court, in a criminal case, the Circuit Court can try the

cause de novo. Surplusage does not vitiate a warrant. Where the capias, issued for the arrest of a person charged with an assault and

battery, stated that the act complained of was contrary to the law of the State of Illinois, and in violation of the ordinances of the town of Lynville," and the cause was placed on the justice's docket in the name of the “ President and Trustees of Lynville," and the justice gave judgment in favor of the “ President,” &c. ; and on appeal, the Circuit Court directed the cause to be docketed in the name of the “ People,” and tried the cause as between the “ People" and the defendant: Held, that there was no error.

On the 22d day of April, 1839, William Gordon, Esq., a justice of the peace of the county of Morgan, issued the following capias, to wit : “ State of Illinois, Morgan county, sct. The People of the

State of Illinois, to any constable of said county, greeting :

“Whereas, Christiana Riggs hath complained on oath, in writing, that Edward Shirtliff did, on the 21st day of April, 1839, commit an assault and battery on the body of the said Christiana Riggs, contrary to the law of the State of Illinois, and in violation of the ordinances of the town of Lynville, —

“ These are therefore to command you to take the body of said Edward Shirtliff, and bring him forthwith before me to answer to the complaint aforesaid, and to be further dealt with according to law. “Given under my hand and seal, this 22d day of April, 1839.

" William GORDON, J. P. (Seal.)” Said capias was indorsed, “ The town of Lynville v. Edward Shirtliff.”

On the same day, said Shirtliff was tried by a jury before said Gordon, in a cause entitled “ The President and Board of Trustees of the town of Lynville v. Edward Shirtliff." found the defendant guiliy, and fined him forty dollars and costs of suit. Upon this verdict, the Court rendered the following judgment : Therefore, it is ordered that the President and Trustees of the town of Lynville recover of the defendant the sumn of forty dollars, fine, and costs of suit, taxed at two dollars sixty-eight and three quarters cents.”

From this judgment the defendant appealed to the Circuit Court of Morgan county, and the cause was there docketed “ The President and Trustees of Lynville v. Edward Shirtliff.” Upon the

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Shirtliff o. The People,

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calling of the cause in the Circuit Court, the defendant moved the Court to quash the proceedings, and reverse the judgment of the justice, and dismiss the suit for the following reasons :

1. The justice of the peace had no jurisdiction to try the

2. The plaintiffs cannot sustain this action which is for a criminal offence against the law of the State.

3. The action is brought contrary to law.

4. The president and trustees of an incorporated town have no legal right to fine any person over five dollars for any one breach of a town ordinance.

5. It is an action for a crime or misdemeanor, and not cognizable before a magistrate in behalf of a corporation or town.

6. It should have been an action of debt for a fine not exceeding five dollars, previously assessed by the corporate authorities.

7. Incorporated towns cannot enact penal codes, except in the strict performance of their duties and powers as defined by law.

The Circuit Court overruled the motion, and the defendant excepted to the decision. Thereupon a jury was called to try an issue between the People of the State of Illinois and said Shirtliff, to which the defendant objected, and offered to prove to the Court, (and did prove to the Court so far as that fact could be proved,) by the original docket of the justice of the peace, that the cause was originally tried between said President and Trustees of Lynville and said Shirtliff ; but the Court, notwithstanding, directed the trial in the Circuit Court to be in the name of the People of the State of Illinois v. Edward Shirtliff, and ordered the cause to be docketed in that manner. The defendant excepted to these orders, and thereupon withdrew from the trial, and refused to make an appearance or take any part in the trial between the people of the State and the said Shirtliff. These facts were embodied in a bill of exceptions.

The jury in the Circuit Court found the defendant guilty, and fined him fifty dollars. Judgment was rendered on this verdict. From this judgment, the defendant below prosecuted a writ of error to this Court, and assigned for error the refusal of the Court to quash the proceedings before the justice, and to dismiss the suit, and the order of the Court directing the trial in the Circuit Court to be in the name of the People of the State of Illinois, instead of the President and Trustees of Lynville, as the case was originally tried before the justice.

There was a joinder in error by the Attorney-General, WickLIFFE KITCHELL.

Josiah LAMBORN, for the plaintiff in error.
WILLIAM BROWN, for the defendants in error.

Forsyth et al. o. Baxter et al.

as

BROWNE, Justice, delivered the opinion of the Court :

Inforrnation was made upon the oath of Christiana Riggs, before W. Gordon, a justice of the peace for Morgan county, that Edward Shirtliff had committed an assault and battery upon the said Christiana Riggs. The justice of the peace, before whom the oath was made, issued his warrant for the arrest of the said Edward Shirtliff. The warrant run in the name of “the People of the State of Illinois,” and went on to set out the offence si against the laws of the State, and also against the ordinances of the town of Lynville.” Edward Shirtliff was brought before the justice and fined. The case before the justice was docketed in the name of the “ President and Trustees of the town of Lynville v. Edward Shirtliff.” The defendant appealed from the decision of the justice to the Circuit Court of Morgan county, where the Court permitted the cause to be docketed and tried in this case in the name of the People v. Edward Shirtliff. Judgment was rendered against the defendant below, to reverse which this writ of error is brought. The statute giving jurisdiction to justices of the peace, of cases of assaults and of assaults and batteries, confers on the Circuit Court, where the appeal is brought, the right to try the case as an original one.(1) So much of the warrant as states the offence to be against the corporate authorities, &c., was nothing more than surplusage, and did not vitiate it. The statute does not make a justice's court, a court of record, but only requires him to keep a docket of the cases tried before him.

The points made by the counsel for the defendant below, are not sufficient to reverse the judgment.

Let the judgment of the Circuit Court of Morgan county be affirmed with costs.

Judgment affirmed.

3 9 77a 606

John R. FORSyth and ANDREW Gray, appellants, v.

RORERT BAXTER, EDWARD D. Hicks, HENRY Ew-
ING, and ANTHONY W. VANLEAR, appellees.

Appeal from Peoria.

It is a sufficient compliance with the statute requiring the names of parties liti

gant to be endorsed on depositions, to endorse the names of the firms. A leading question is not always objectionable. It is no error to admit in evidence thy laws of another State, when they are like

our own, even where there is no averment of such laws in the declaration. Where a note is made in another State, interest will be allowed according ta

(1) R. L. 402, 404 ; Gale's Stat. 415, 416.

2

VOL. II.

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