Shaw v. Havekluft

21 Ill. 127

• Court: Illinois Supreme Court
• Decided: January 15, 1859
• Status: Published

Opinion

Caton, C. J.

In an action upon a constable’s bond, the obligees cannot be permitted to deny that he is a constable. Upon that question the execution of the bond concludes them. This same question was raised in an action on the bond of a justice of the peace, in the case of Green v. Wardwell, 17 Ill. R. 278, where this court said, “By signing his bond they acknowledged his right to the office, and to discharge its duties, and as such, recommended him to the public. They at least shall not be heard to say, that although they signed his bond, and thereby induced others to put money in his hands relying on their bond for its safety, still he was not elected, was not commissioned, was not sworn; and that he was not in fact a justice of the peace.” That case disposes of this question.

The only remaining question is, whether the Circuit Court erred in allowing the plaintiffs to amend the bond for costs. In this we are of opinion the Circuit Court acted within the pale of its powers. Had no bond at all been filed for costs, then indeed it would have been the duty of the court, on motion made in apt time, to have dismissed the cause. But here, when the suit was commenced, a bond was filed, although it may have been defective. To determine whether it was sufficient or not, required the adjudication of the court. Until such adjudication, it was prima facie good. Whether it was good or not, may have been a very difficult question to determine, and one about whichj lawyers and judges might differ. If the officer whose duty it was to receive and approve the bond, accepted it as sufficient, that must save the.rights of the party until it is adjudged insufficient, and when that has been done, it is but reasonable that the party should be permitted to cure the defect, or obviate the objection, by filing a sufficient bond, or by amending the old one.

The judgment must be affirmed.

Judgment affirmed.