#### Patrick Ballingall v. Asa Carpenter et al.

Error to Dupage.

1. Bond — indemnity, not in statute form. The obligors in a bond given upon re-plevying a fee-bill under § 7 of the “ act regulating the salaries, fees,” etc., cannot object to the validity of the bond, because its condition is not literally in accord-[*3°7] anee with the statute. Such a bond is a voluntary one, and the obligors cannot take advantage of their own neglect, to use the words of the statute.

2. Same — replevin. The statute provides for a party’s replevying a fee-bill upon giving bond “ to pay the same at the next ensuing circuit court of his county but a bond with this condition, now if the said obligor shall present said fee-bill at the next term of the circuit court for said county, and if the same be adjudged to contain any item or charge not authorized by law, or for services not actually rendered, then this bond to be void,” is in conformity with the spirit and policy of the statute, and valid, (a)

This was an action of debt, brought by the plaintiff in error against the defendants in error, on a bond executed by the defendants to the plaintiff, in order to replevy a fee-bill issued by him fo the sheriff of Dupage county against Carpenter. The bond is for the penal sum of $50, and is conditioned as follows: “ The condition of the above obligation is such 'that, whereas, the said *319Patrick Ballingall, as clerk aforesaid, did, on the 16th day of November, a. d. 1841, issue a fee-bill against the said Carpenter, for costs, numbered eighteen (18), amounting to the sum of twenty-three dollars and seventy-five cents, which has been re-plevied by the said Carpenter. Now if the said Carpenter shall present said fee-bill at the next term'of the circuit court for said county, and if the same shall be adjudged to contain any item or charge not authorized by law, or for services not actually rendered, then this bond be void.” The declaration is in the usual form, and assigns for breaches that the fee-bill was not presented to the next circuit court after the date of the bond; and also that it was not adjudged to contain .any item or charge not authorized by law. To this declaration there was a general demurrer by the defendants, and joinder by the plaintiff. The court sustained the demurrer for the reason that the condition of the bond was not, in its opinion, in accordance with the statute, and rendered a judgment in favor of the defendants and against the plaintiff, for costs.

The cause was heard before the Hon. Richard M. Young, at the April term, 1843, of the Dupage circuit court. . The plaintiff brought the cause to this court by writ of error. The defendants in error having failed to join in error, the cause was set down for hearing ex parte.

J. Young Scammon and Patrick Ballingall, for the plaintiff in error:

To constitue a good and valid condition, it is necessary that it be for the performance of an act that is lawful and capable of being performed. Hurlestone on Bonds (Law Library) 6; Com. Dig., Condition, (D); 1 Bae. Abr. (L).

■ So a voluntary bond, given to deliver property to the sheriff, is good at common law, although it does not conform to the statute. 1 Blackf. 859; 6 Littell 2T3-4; Ohio 85.

Although by 2d Geo. II., c. 19, § 23, a replevin bond [*308] “ shall be conditioned for prosecuting the suit with effect, and without delay, and for duly returning the goods and chattels,” etc., etc., yet, if the bond be conditioned to prosecute with effect, it will be good, although it do not require that the suit shall be prosecuted without delay, and although it contains an undertaking to indemnify the sheriff. Dunbar v. Dunn, 10 Price 54; Austen v. Howard, 7 Taunt. 28; 2 Marshall 359.

It is not necessary that the condition of an appeal bond should be in the form prescribed by the act of the legislature; if it have the samé legal effect it is sufficient. Pirtle’s Dig., Bond 16, 18 ; 3 Monroe 392; 3 J. J. Marshall 376; 4 Monroe 447.

Replevin and other bonds, required by statute, have frequently been decided to be valid common law obligations, when not executed according to the statute. Pirtle’s Dig., Bond 23; Strat-ton v. Rowan, 2 Bibb 199; Cobb v. Curtiss, 4 Littell 235 ; Steph*320enson v. Miller, 2 Littell 306; Fant v. Wilson, 3 Monroe 342; Hay v. Rogers, 4 Monroe 226; The People v. Collins, 4 Johns. 654.

The general rule is that a bond, whether required or not by statute, is good at common law, if entered into voluntarily, and for a valid consideration, and if not repugnant to the letter or policy of the law. Pirtle’s Dig., Bond 23 ; 2 J. J. Marshall 418; 3 J. J. Marshall 437-8.

An appeal bond, the condition of which is not in conformity with the statute, is binding upon the obligors. Fournier v. Fag-gott, 3 Scam. 347.

They also cited United States v. Linn et al. 15 Peters 291.

(a)

Cases Citing Text. Obligation entered into voluntarily, for sufficient consideration, and which does not contravene public policy or some statute, is valid as common law obligation, although attempt was made to execute it pursuant to a statute with which it does not strictly comply. Barnes v. Brookman, 107 Ill. 317, 322.

For present statute controlling replevy of fee-bill, see R. S. 1874. Costs ch. 33, § 27 ; S.. & C.’s Stats, p. 644; Cothran’s Stats. (i885).p. 354.

Shields, Justice,

delivered the opinion of the court: (1) This was an action of debt, on a penal bond given by the defendants in error to the plaintiff in error, upon replevying a fee-bill. The following is the condition of the bond: “Now if the said Carpenter shall present said fee-bill at the next term of the circuit court for said county, and if the same be adjudged to contain any. item or charge not authorized by law, or for services not actually rendered, then this bond to be void.’’ The declaration assigned breaches of the condition. The defendants demurred to the declaration, and the court sustained the demurrer. The plaintiff assigns this decision for error. ' The seventh section of the “Act regulating Salaries, Fees,” etc., (R. L. 297; Gale’s Stat. 300,) approved February 19th, 1827, gives the party against whom a fee-bill issues, the right to replevy it, upon giving a bond, with good security, “ to pay the same at the next ensuing circuit court of his county.” This is a voluntary bond, given by the [*309] party for his own benefit, in a case where the law authorizes a bond to be given. The condition, though not in the words of the statute, is in conformity with its policy, and neither repugnant to its letter or its spirit. In such a case the obligor can not avail himself of his own neglect to use the words of the statute. He is estopped from urging this in his own discharge. This same principle was decided in the ease of Fournier v. Faggott, 3 Scam. 348.

The judgment below is reversed, at the costs of the defendants, and the cause remanded.

Judgment reversed.

(1)

Wilson, Chief Justice, and Lockwood and Young, Justices, did not hear the argument in this cause, and gave no opinion.