{ "id": 4751370, "name": "Perry K. Leonard et al. v. The Village of Gibson", "name_abbreviation": "Leonard v. Village of Gibson", "decision_date": "1880-06-29", "docket_number": "", "first_page": "503", "last_page": "507", "citations": [ { "type": "official", "cite": "6 Ill. App. 503" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "79 Ill. 493", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2686066 ], "opinion_index": -1, "case_paths": [ "/ill/79/0493-01" ] }, { "cite": "55 Ill. 413", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5273061 ], "opinion_index": -1, "case_paths": [ "/ill/55/0413-01" ] }, { "cite": "68 N. Y. 23", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 529022 ], "opinion_index": -1, "case_paths": [ "/ny/68/0023-01" ] }, { "cite": "21 Ill. 76", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2602498 ], "opinion_index": -1, "case_paths": [ "/ill/21/0076-01" ] }, { "cite": "46 Ill. 392", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5298005 ], "opinion_index": -1, "case_paths": [ "/ill/46/0392-01" ] }, { "cite": "13 Gray, 347", "category": "reporters:state", "reporter": "Gray", "case_ids": [ 2087822 ], "opinion_index": -1, "case_paths": [ "/mass/79/0347-01" ] }, { "cite": "7 Gray, 12", "category": "reporters:state", "reporter": "Gray", "case_ids": [ 1996033 ], "opinion_index": -1, "case_paths": [ "/mass/73/0012-01" ] }, { "cite": "15 Ga. 74", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 1377966 ], "opinion_index": -1, "case_paths": [ "/ga/15/0074-01" ] }, { "cite": "24 Ill. 97", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "11 Ill. 488", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2573737, 2577339 ], "opinion_index": -1, "case_paths": [ "/ill/11/0488-02", "/ill/11/0488-01" ] }, { "cite": "3 Scam. 611", "category": "reporters:state", "reporter": "Scam.", "case_ids": [ 2468957 ], "opinion_index": -1, "case_paths": [ "/ill/4/0611-01" ] }, { "cite": "49 Ill. 370", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2604002 ], "opinion_index": -1, "case_paths": [ "/ill/49/0370-01" ] }, { "cite": "35 Ill. 40", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5257337 ], "opinion_index": -1, "case_paths": [ "/ill/35/0040-01" ] }, { "cite": "22 Ill. 91", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5281350 ], "opinion_index": -1, "case_paths": [ "/ill/22/0091-01" ] }, { "cite": "3 Gilm. 55", "category": "reporters:state", "reporter": "Gilm.", "case_ids": [ 2462524 ], "opinion_index": -1, "case_paths": [ "/ill/8/0055-01" ] }, { "cite": "2 Scam. 571", "category": "reporters:state", "reporter": "Scam.", "case_ids": [ 2476063 ], "opinion_index": -1, "case_paths": [ "/ill/3/0571-01" ] }, { "cite": "31 Miss. 99", "category": "reporters:state", "reporter": "Miss.", "case_ids": [ 1655596 ], "opinion_index": -1, "case_paths": [ "/miss/31/0099-01" ] }, { "cite": "29 Cal. 128", "category": "reporters:state", "reporter": "Cal.", "opinion_index": -1 }, { "cite": "3 Wall. 275", "category": "reporters:scotus_early", "reporter": "Wall.", "case_ids": [ 3474837 ], "opinion_index": -1, "case_paths": [ "/us/70/0275-01" ] }, { "cite": "1 Wall. 83", "category": "reporters:scotus_early", "reporter": "Wall.", "case_ids": [ 3470921 ], "opinion_index": -1, "case_paths": [ "/us/68/0083-01" ] }, { "cite": "24 How. 287", "category": "reporters:scotus_early", "reporter": "How.", "case_ids": [ 3463759 ], "opinion_index": -1, "case_paths": [ "/us/65/0287-01" ] }, { "cite": "24 How. 546", "category": "reporters:scotus_early", "reporter": "How.", "opinion_index": -1 }, { "cite": "21 How. 539", "category": "reporters:scotus_early", "reporter": "How.", "case_ids": [ 683851 ], "opinion_index": -1, "case_paths": [ "/us/62/0539-01" ] }, { "cite": "3 Wall. 654", "category": "reporters:scotus_early", "reporter": "Wall.", "case_ids": [ 3475563 ], "opinion_index": -1, "case_paths": [ "/us/70/0654-01" ] }, { "cite": "9 Met. 511", "category": "reporters:state", "reporter": "Met.", "case_ids": [ 1966078 ], "opinion_index": -1, "case_paths": [ "/mass/50/0511-01" ] }, { "cite": "7 W. & S. 335", "category": "reporters:state", "reporter": "Watts & Serg.", "case_ids": [ 481778 ], "opinion_index": -1, "case_paths": [ "/watts-serg/7/0335-01" ] }, { "cite": "1 W. & S. 155", "category": "reporters:state", "reporter": "Watts & Serg.", "case_ids": [ 1852575 ], "opinion_index": -1, "case_paths": [ "/watts-serg/1/0155-01" ] }, { "cite": "63 Ill. 272", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2613388 ], "opinion_index": -1, "case_paths": [ "/ill/63/0272-01" ] }, { "cite": "62 Ill. 52", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2606529 ], "opinion_index": -1, "case_paths": [ "/ill/62/0052-01" ] }, { "cite": "3 Scam. 123", "category": "reporters:state", "reporter": "Scam.", "case_ids": [ 2469456 ], "opinion_index": -1, "case_paths": [ "/ill/4/0123-01" ] }, { "cite": "1 Scam. 35", "category": "reporters:state", "reporter": "Scam.", "case_ids": [ 2481475 ], "opinion_index": -1, "case_paths": [ "/ill/2/0035-01" ] }, { "cite": "3 Scam. 347", "category": "reporters:state", "reporter": "Scam.", "case_ids": [ 2471521 ], "opinion_index": -1, "case_paths": [ "/ill/4/0347-01" ] }, { "cite": "3 Gilm. 90", "category": "reporters:state", "reporter": "Gilm.", "case_ids": [ 2463030 ], "opinion_index": -1, "case_paths": [ "/ill/8/0090-01" ] }, { "cite": "64 Ill. 164", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "16 Ill. 495", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2589234 ], "opinion_index": -1, "case_paths": [ "/ill/16/0495-01" ] }, { "cite": "21 Ill. 85", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2601843 ], "opinion_index": -1, "case_paths": [ "/ill/21/0085-01" ] }, { "cite": "13 Ill. 347", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2582655 ], "opinion_index": 0, "case_paths": [ "/ill/13/0347-01" ] }, { "cite": "58 Ill. 126", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "26 Ill. 282", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5244069 ], "opinion_index": 0, "case_paths": [ "/ill/26/0282-01" ] }, { "cite": "1 Gil. 409", "category": "reporters:state", "reporter": "Gilmer", "opinion_index": 0 } ], "analysis": { "cardinality": 566, "char_count": 8494, "ocr_confidence": 0.525, "pagerank": { "raw": 6.380125665320789e-08, "percentile": 0.39286325187298565 }, "sha256": "071a12d398792c4b70c0279ccbd5d3db13c77be1537e39332190a61115a14e4e", "simhash": "1:1cc150173beddc4f", "word_count": 1512 }, "last_updated": "2023-07-14T20:46:27.659948+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Perry K. Leonard et al. v. The Village of Gibson." ], "opinions": [ { "text": "Higbee, J.\nThis was a suit on an appeal bond executed by Leonard, as principal, with Samuel A. Thompson and Jonathan B. Lott as his securities, reciting a judgment before a justice of the peace of Ford county for two hundred dollars and costs of suit, in favor of the village and against Leonard.\nThe securities plead that after the execution of the bond, and while the suit was pending on appeal, the village and Leonard, without the knowledge or consent of the securities, entered into an agreement in writing as follows:\n\u201c This agreement, made and entered into this 25 th day of February, A. D. 1878, between the Board of Trustees of the Village of Gibson, Ford county, Illinois, of the first part, and P. K. Leonard, of said village, of the second part,\n\u201c Witnesseth, That the party of the first part has this day agreed to release the party of the second part from any and all liability for the violations of an ordinance of said village passed May the 7tli, 1877, when the said Leonard shall comply with the following conditions, to wit:\n\u201c 1st. To pay into the treasurer of said village within fifteen days from this date the sum of fifty dollars.\n. \u201c 2d. To pay to said treasurer the sum of fifty dollars within three months after this date.\n\u201c 3d. To pay said treasurer within six months from this date the sum of fifty dollars.\n\u201c 4th. To dismiss his appeal at his own costs in the case of the Village of Gibson v. P. K. Leonard, in the Circuit Court of Ford county, Illinois.\n\u201c 5th. Hot to hereafter sell or otherwise dispose of any liquors of any kind in violation of said ordinance.\n\u201c The said first party hereby reserves the right to go behind this settlement and prosecute said Leonard for all sales heretofore made, in case that he violates any of the above conditions; but in case that he pays the above sum of money at the times above stated, then the said board of trustees are to release the judgment now held against Leonard for two hundred dollars, and if he fails to comply with all the above conditions, then this release and agreement is to be null and void, and said judgment is to be collected in full, and the said Leonard is to pay all of the costs now against him.\nA. Cbaabs, (seal)\nE. S. Boss, (seal)\nF. C. Mast\u00edn, (seal)\nH. Snyder, (seal)\nA. L. Ballabd, (seal)\nB. F. Payne. (seal)\nVillage attorney and board of trustees, of the first part.\nP. K. Leonard, (seal)\nParty of the second part. \u201d\nThe plea further avers that by the agreement, the time for the payment of the amount due from Leonard to the village was extended, and they, the securities, thereby released from all further liability on said bond.\nIt was admitted on the trial, that fifty dollars had been paid the village by Leonard, on this agreement.\nAppellee insists that the agreement is not binding on the village, because not executed under the corporate seal, duly authorized by resolution of the village trustees.\nThis objection comes too late. It was signed by the village attorney, and acted upon by dismissing the appeal, and the village accepting from Leonard fifty dollars paid under it.\nWhen the appeal was dismissed, the judgment for two hundred dollars on the justice\u2019s docket was left in full force against Leonard, subject, however, to the agreement of the parties. No execution could rightfully issue on it until the time had expired for the first payment, and if that was paid, the right to an execution was further suspended until the next payment was due.\nUnder this agreement, Leonard was entitled to the time agreed upon within which to make the payments, and any attempt to violate the contract in this regard, could have been restrained by a court of competent jurisdiction.\nThe law is well settled, that if the creditor, by a valid and binding agreement, without the assent of the surety, gives further time for payment to the principal, the surety is discharged, both at law and in equity; and it makes no difference whether the surety be damnified or not. Davis v. The People, 1 Gil. 409; Warner v. Campbell, 26 Ill. 282; Galbraith v. Fullerton, 58 Ill. 126.\nAnd this applies as well after as before judgment.\nIn Sec. 325, p. 438, Brant on Suretyship, the author says:\n\u201cIf after a judgment is rendered against principal and surety, the creditor by binding agreement with the principal, extends the time of payment, it is generally held that the surety is discharged, the same as if such time had been given before the judgment was rendered. A judgment does not create, add to, nor detract from the indebtedness of a party; it only dedares it to exist, fixes the amount, and secures to the suitor the means of enforcing payment; * * * the relation of principal and surety continues to exist between them even after judgment.\u201d\nIn Comegys et al. v. Cox et al, 1 Stewart, p. 262, it was held that, where a principal in a bond for a writ of error without the assent of his securities, agreed with the adverse party that the judgment should be affirmed, and that he would deliver endorsed bills for the amount, payable by installments, and that no execution should be levied but in the event of the non-payment of the bills, the securities were discharged.\nAnd this doctrine is recognized in Gardner et al. v. Watson et al., 13 Ill. 347.\nThe agreement suspended for a time the right of the village to coerce payment from the principal debtor, and the surety was thereby discharged.\nThe judgment is reversed and the cause remanded.\nReversed.", "type": "majority", "author": "Higbee, J." } ], "attorneys": [ "Messrs. Tipton & Ryan, for appellants;", "Mr. A. Sample and Mr. B. F. Payne, for appellee;" ], "corrections": "", "head_matter": "Perry K. Leonard et al. v. The Village of Gibson.\nStjeeties on appeal bond' \u2014 Release.\u2014Where, pending an appeal from a magistrate, the plaintiff and defendant, without the knowledge or consent of the sureties on the appeal bond, enter into an agreement for the payment of a certain sum by installments, in satisfaction of the judgment appealed from, and the appeal is dismissed in pursuance of such agreement, the sureties on such appeal bond are discharged, although the appellant has failed to make the payments agreed upon.\nAppeal from the Circuit Court of Ford county; the Hon. Owen T. Reeves, \u00a1Judge, presiding.\nOpinion filed June 29, 1880.\nMessrs. Tipton & Ryan, for appellants;\nthat the bond was improperly admitted in evidence; the declaration being upon a bond for two hundred dollars and costs, and the bond offered being for two hundred dollars costs, cited Spangler v. Pugh, 21 Ill. 85; Higgins v. Lee, 16 Ill. 495; Giles v. Shaw, Breese 219; Smith v. Frazer, 64 Ill. 164; Curry v. Hinman, 3 Gilm. 90; Fournier v. Faggott, 3 Scam. 347.\nThe agreement discharged the sureties: Reynolds v. Hall, 1 Scam. 35; The People v. Moon, 3 Scam. 123; Stull v. Hance, 62 Ill. 52; Trotter v. Strong, 63 Ill. 272; Commonwealth v. Miller, 8 S. & R. 452; Potts v. Nathan, 1 W. & S. 155; Mfr\u2019s Bank v. Bank of Pa. 7 W. & S. 335; Talmadge v. Burlingame, 9 Barr, 21; Carpenter v. King, 9 Met. 511; Brighton v. Bank of Orleans, 2 Bank. R. 458.\nThe village is estopped from denying the validity of the agreement: Rogers v. Burlington, 3 Wall. 654; Muran v.\nMiami County, 2 Blade, 722; Knox Co. v. Aspinwall, 21 How. 539; Knox Co. v. Wallace, 24 How. 546; Bissell v. Jeffersonville, 24 How. 287; Mercer Co. v. Hackett, 1 Wall. 83; Cincinnati v. Morgan, 3 Wall. 275.\nMr. A. Sample and Mr. B. F. Payne, for appellee;\nthat the dismissal of an appeal by agreement affirms the judgment below, cited Chase v. Bernard, 29 Cal. 128; Ammons v. Whitehead, 31 Miss. 99; McConnell v. Swailes, 2 Scam. 571; Young v. Mason, 3 Gilm. 55; Sutherland v. Phelps, 22 Ill. 91.\nThe agreement could not stay the issue of a procedendo, and was therefore not binding, and did not release the sureties: Brandt on Suretyship, 424.\nThe promise must be binding in law: Farwell v. Meyer, 35 Ill. 40; Phares v. Barbour, 49 Ill. 370.\nIt is not necessary to charge the surety that an execution should have been issued: Brandt on Suretyship, 542; Gregory v. Stark, 3 Scam. 611; Ambrose v. Weed, 11 Ill. 488.\nAn incomplete or conditional arrangement will not release the surety: Lylev. Morse, 24 Ill. 97; McGehea v. Scott, 15 Ga. 74.\nThere is no proof that the execution of the agreement was a corporate act: 1 Billon on Mun. Corp. \u00a7197; Butler v. Charleston, 7 Gray, 12; Silas v. Hatfield, 13 Gray, 347; City of East St. Louis v. Wehrung, 46 Ill. 392; City of Alton v. Mulledy, 21 Ill. 76.\nThe village is not estopped by receipt of money under the agreement: Dillon on Mun. Corp. \u00a7 379; McDonald v. Mayor, etc., 68 N. Y. 23; Bradley v. Ballard, 55 Ill. 413; Powers v. Briggs, 79 Ill. 493." }, "file_name": "0503-01", "first_page_order": 501, "last_page_order": 505 }