{ "id": 856631, "name": "The People of Illinois, for the use of the City of Mt. Vernon, v. Joseph E. Pace et al.", "name_abbreviation": "People v. Pace", "decision_date": "1895-03-23", "docket_number": "", "first_page": "674", "last_page": "678", "citations": [ { "type": "official", "cite": "57 Ill. App. 674" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "76 Ill. 383", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5315603 ], "opinion_index": 0, "case_paths": [ "/ill/76/0383-01" ] }, { "cite": "65 Ill. 99", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2619981 ], "opinion_index": 0, "case_paths": [ "/ill/65/0099-01" ] }, { "cite": "70 Ill. 72", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5310962 ], "opinion_index": 0, "case_paths": [ "/ill/70/0072-01" ] }, { "cite": "26 Ill. 68", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5242678 ], "opinion_index": 0, "case_paths": [ "/ill/26/0068-01" ] }, { "cite": "57 Ill. 132", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5240988 ], "opinion_index": 0, "case_paths": [ "/ill/57/0132-01" ] } ], "analysis": { "cardinality": 421, "char_count": 8237, "ocr_confidence": 0.512, "pagerank": { "raw": 1.189116258531929e-07, "percentile": 0.5909400509450551 }, "sha256": "03146e6b4d338e5b01dbef9604f7ce16301f52875a9e8c131c7053c36c33993e", "simhash": "1:be7220b534c832d2", "word_count": 1502 }, "last_updated": "2023-07-14T20:02:41.767696+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "The People of Illinois, for the use of the City of Mt. Vernon, v. Joseph E. Pace et al." ], "opinions": [ { "text": "Mr. Justice Sample\ndelivered the opinion of the Court.\nThis suit was brought on the official bond of appellee, as city collector of the city of Mt. Yernon. The declaration is in the usual form, and for breach avers that, as such collector, he received certain moneys levied by special assessment, which he neglects and refuses to pay. The facts are fully set forth. A demurrer .was interposed to the declaration on the special grounds: 1. That it does not appear the bond declared on is joint or several, or joint and several. 2. No copy of the bond is filed with the declaration. 3. That it does not appear Jos. E. Pace was lawfully appointed and commissioned or that said bond was approved and accepted. 4. The bond being lost the declaration is insufficient.\nThe demurrer was sustained by the court and plaintiff elected to stand by the declaration, whereupon the suit was dismissed.\nThe first point is not well taken; see Sec. 3, Chap. 76; nor the third point. The declaration avers that he was lawfully appointed and that he entered upon the duties of his office. The commission would only be evidence of such appointment and is matter of evidence. He can not be heard to say he was not commissioned. The second and fourth points are to the same effect, viz., that the bond being lost, a copy can not be filed, as required by Sec. 17 of the Practice Act. A copy of the instrument sued on is no part of the declaration (Humphrey v. Phillips, 57 Ill. 132), and is not the foundation of the suit. Stratton v. Henderson, 26 Ill. 68-75. To make it so, that the court may notice it for any purpose, the defendant must crave oyer. Sims v. Hugby, Breese, 413. This can not be done if the instrument itself is lost or destroyed. Sec. 19, Practice Act. And the pleader is relieved of making profert by averring it is so lost. This brings us to the point which it is said determined the court below to sustain the demurrer, viz., that the remedy on a lost bond was in equity. The case of Patton v. Campbell, 70 Ill. 72, is cited in support of that position. This case does not so hold, but that a court of equity has concurrent jurisdiction in case of lost bonds, where at law suitable relief can not be granted. This is understood to be the effect of that case, for it is said there, \u201cUnder the allegations of the bill in this cause, we thiijk it is well settled that a court of equity had jurisdiction.\u201d\nThe case of Fisher v. Sievers, 65 Ill. 99, is cited in above case, wherein a bill in equity on a lost judgment was dismissed because \u201c there was an adequate remedy at law.\u201d It is there further said: \u201c We apprehend the bill must always lay some ground besides the mere loss of the instrument of evidence, to justify the interposition of a court of equity to grant relief;\u201d citing 1 Story\u2019s Eq. Jur., Secs. 84 and 86. It is also said: \u201cWe do not perceive why an action at law might not as well have been brought upon this judgment as a suit in equity; why the same evidence would not have been admissible in the one court as in the other, and why the same proof that would have justified a decree in chancery for the amount of the judgment would not have warranted a judgment at law for the recovery of the same amount.\u201d\nMr. Wait says, on page 705 of his first volume on Actions and Defenses: \u201cFormerly a court of common law afforded no remedy on a lost bond, for the reason that there could be no profert of the instrument, without which the declaration would be fatally defective. But profert has been dispensed with, and courts of law now entertain jurisdiction upon an allegation of loss, by time and accident, stated in the declaration.\u201d\nIn those States where there is not statutory authority empowering a common law court to require indemnity in case of a suit at law upon lost instruments, the equity side of the court is regarded with favor as affording a more complete and perfect remedy. 1st Vol. Wait\u2019s Actions and Defenses, p. 163. But Sec. 14, Chap. 98, of our statutes, gives common law courts that power.\nThis suit was properly brought at law on the lost bond. If this position is correct, then it necessarily follows that Sec. 17 of Chap. 110, which requires the plaintiff to file a copy of the instrument sued on, relates to instruments other than those lost or destroyed, referred to in Sec. 19 of same chapter. This is properly implied, not only from 65 Ill., supra, but from Sec. 19. This latter section, considered with Sec. 17, means that oyer may be craved of all instruments sued on, of which a copy is required to be filed.\nIf there is no original instrument in existence, Sec. 17 does not require a copy to be filed. A number of points are made against the declaration which are special and not covered by the demurrer. It is said: 1. There is no averment the bond was acknowledged and signed by the principal. The declaration is in the usual form in that respect. Acknowledgment is not essential to its validity. 2. That the bond was not made payable to the city of kit. Yernon, as provided by Sec. 4, Art. 6, Chap. 6. The people are usually the obligees of official bonds and the recitals indicate the usee. The averments of the declaration show appellee was an official of the city and as such gave the bond sued on. If not good as a statutory bond, it is as a common law bond. He and his sureties are estopped to deny the validity of a bond or process where the officer thereunder receives money by virtue of his office. Coons v. People, 76 Ill. 383. It is not deemed necessary to review all the points made, not named in the special demurrer. It may be that on being pointed out by special demurrer, the plaintiff would amend.\nWe hold the demurrer was improperly sustained and the judgment is reversed and the cause remanded.", "type": "majority", "author": "Mr. Justice Sample" } ], "attorneys": [ "Norman H. Moss, attorney for appellants.", "George B. Leonard, attorney for appellees." ], "corrections": "", "head_matter": "The People of Illinois, for the use of the City of Mt. Vernon, v. Joseph E. Pace et al.\n1. Pleading\u2014Joint and Several Obligations.\u2014 Under Section 3, Oh. 76, R. S., entitled \u201c Joint Rights and Obligations,\u201d it is not essential that it should appear in the declaration that the instrument sued on is joint or several, or joint and several.\n3. Same\u2014On Official Bonds\u2014Appointment of the Officer.\u2014An averment in a declaration upon the official bond of a city collector that the officer was lawfully appointed, and that he entered upon the duties of his office, is a sufficient averment of the fact. It is not necessary to set out his commission.\n3. Lost Instruments\u2014Suits upon\u2014Oyer.\u2014Under Section 19 of the Practice Act (R. S.', Oh. 110), the plaintiff in a suit upon an instrument in writing is relieved of making profert of the instrument by averring in his declaration that it is lost or destroyed.\n4. Same\u2014Jurisdiction in Equity.\u2014A court of equity has concurrent jurisdiction with a court of law in suits upon lost bonds, when at law suitable relief can not be granted.\n5. Practice\u2014Copy of Instrument Sued on\u2014Oyer of Lost Instruments.\u2014A copy of the instrument sued on is no part of the declaration, and is not the foundation of the suit; to make it so, that the court may notice it for any purpose, the defendant must crave oyer, and this can not be done where the instrument is lost or destroyed.\n6. Oyer\u2014When it May be Craved.\u2014Under Chapter 110, R. S., commonly known as the Practice Act, oyer may be craved of an instrument sued on, when a copy of it is required to be filed with the declaration.\n7. Bonds\u2014Acknowledgment Not Essential.\u2014An acknowledgment is not essential to the validity of a city collector\u2019s bond.\n8. Same\u2014The People as Obligees\u2014Usee.\u2014The people are usually the obligees in official bonds and the recitals indicate the usee.\n9. Same\u2014Statutory and Common Law Obligations.\u2014Where an official of a city gives a bond, if not good as a statutory obligation, it may be good at common law, and the officer and his sureties are estopped to deny its validity where he receives money by virtue of his office.\nMemorandum.\u2014Debt on an official bond. In the Circuit Court of Jefferson County; the Hon. Silas Z. Landes, Judge, presiding. Judgment on demurrer to declaration; appeal by plaintiff. Heard in this court at the August term, 1894.\nReversed and remanded.\nOpinion filed March 23, 1895.\nNorman H. Moss, attorney for appellants.\nGeorge B. Leonard, attorney for appellees." }, "file_name": "0674-01", "first_page_order": 670, "last_page_order": 674 }