Ballingall v. Carpenter

5 Scam. 306

• Court: Illinois Supreme Court
• Decided: December 15, 1843
• Status: Published

Opinion

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.

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