{ "id": 6102586, "name": "Patrick Ballingall v. Asa Carpenter et al.", "name_abbreviation": "Ballingall v. Carpenter", "decision_date": "1843-12", "docket_number": "", "first_page": "318", "last_page": "320", "citations": [ { "type": "nominative", "cite": "4 Scam. 306" }, { "type": "official", "cite": "5 Ill. 306" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "2 Littell 306", "category": "reporters:state", "reporter": "Litt.", "case_ids": [ 4217266 ], "opinion_index": -1, "case_paths": [ "/ky/12/0306-01" ] }, { "cite": "107 Ill. 317", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5369145 ], "pin_cites": [ { "page": "322" } ], "opinion_index": -1, "case_paths": [ "/ill/107/0317-01" ] }, { "cite": "15 Peters 291", "category": "reporters:scotus_early", "reporter": "Pet.", "opinion_index": -1 }, { "cite": "3 Scam. 347", "category": "reporters:state", "reporter": "Scam.", "case_ids": [ 2471521 ], "opinion_index": -1, "case_paths": [ "/ill/4/0347-01" ] }, { "cite": "4 Johns. 654", "category": "reporters:state", "reporter": "Johns.", "opinion_index": -1 }, { "cite": "4 Littell 235", "category": "reporters:state", "reporter": "Litt.", "case_ids": [ 6807059 ], "opinion_index": -1, "case_paths": [ "/ky/14/0235-01" ] }, { "cite": "2 Bibb 199", "category": "reporters:state", "reporter": "Bibb", "case_ids": [ 6401426 ], "opinion_index": -1, "case_paths": [ "/ky/5/0199-01" ] }, { "cite": "1 Blackf. 859", "category": "reporters:state", "reporter": "Blackf.", "opinion_index": -1 }, { "cite": "3 Scam. 348", "category": "reporters:state", "reporter": "Scam.", "opinion_index": 0 } ], "analysis": { "cardinality": 412, "char_count": 7014, "ocr_confidence": 0.521, "pagerank": { "raw": 2.3990061694969703e-07, "percentile": 0.7987031290241245 }, "sha256": "7a463ded92f9f1b5f52d90398fe6b4016d53a2a2f7a4a5bb63cada6ad0361e6c", "simhash": "1:3427dd745a03e713", "word_count": 1245 }, "last_updated": "2023-07-14T20:32:49.187861+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Patrick Ballingall v. Asa Carpenter et al." ], "opinions": [ { "text": "Shields, Justice,\ndelivered the opinion of the court: 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: \u201cNow 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.\u2019\u2019 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 \u201cAct regulating Salaries, Fees,\u201d etc., (R. L. 297; Gale\u2019s 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, \u201c to pay the same at the next ensuing circuit court of his county.\u201d 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.\nThe judgment below is reversed, at the costs of the defendants, and the cause remanded.\nJudgment reversed.\nWilson, Chief Justice, and Lockwood and Young, Justices, did not hear the argument in this cause, and gave no opinion.", "type": "majority", "author": "Shields, Justice," } ], "attorneys": [ "J. Young Scammon and Patrick Ballingall, for the plaintiff in error:" ], "corrections": "", "head_matter": "Patrick Ballingall v. Asa Carpenter et al.\nError to Dupage.\n1. Bond \u2014 indemnity, not in statute form. The obligors in a bond given upon re-plevying a fee-bill under \u00a7 7 of the \u201c act regulating the salaries, fees,\u201d etc., cannot object to the validity of the bond, because its condition is not literally in accord-[*3\u00b07] 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.\n2. Same \u2014 replevin. The statute provides for a party\u2019s replevying a fee-bill upon giving bond \u201c 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,\u201d is in conformity with the spirit and policy of the statute, and valid,\nThis 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: \u201c The condition of the above obligation is such 'that, whereas, the said Patrick 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.\u201d 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.\nThe 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.\nJ. Young Scammon and Patrick Ballingall, for the plaintiff in error:\nTo 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).\n\u25a0 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.\nAlthough by 2d Geo. II., c. 19, \u00a7 23, a replevin bond [*308] \u201c shall be conditioned for prosecuting the suit with effect, and without delay, and for duly returning the goods and chattels,\u201d 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.\nIt 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 sam\u00e9 legal effect it is sufficient. Pirtle\u2019s Dig., Bond 16, 18 ; 3 Monroe 392; 3 J. J. Marshall 376; 4 Monroe 447.\nReplevin and other bonds, required by statute, have frequently been decided to be valid common law obligations, when not executed according to the statute. Pirtle\u2019s Dig., Bond 23; Strat-ton v. Rowan, 2 Bibb 199; Cobb v. Curtiss, 4 Littell 235 ; Stephenson v. Miller, 2 Littell 306; Fant v. Wilson, 3 Monroe 342; Hay v. Rogers, 4 Monroe 226; The People v. Collins, 4 Johns. 654.\nThe 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\u2019s Dig., Bond 23 ; 2 J. J. Marshall 418; 3 J. J. Marshall 437-8.\nAn 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.\nThey also cited United States v. Linn et al. 15 Peters 291.\nCases 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.\nFor present statute controlling replevy of fee-bill, see R. S. 1874. Costs ch. 33, \u00a7 27 ; S.. & C.\u2019s Stats, p. 644; Cothran\u2019s Stats. (i885).p. 354." }, "file_name": "0318-01", "first_page_order": 330, "last_page_order": 332 }