Vipond v. Hurlburt, 22 Ill. 226 (1859)

April 1859 · Illinois Supreme Court

22 Ill. 226

William W. Vipond, Appellant, v. Ashbil Hurlburt, Appellee.

APPEAL EROM PEORIA.

Where a covenant is to be implied from statutory words, the very words of the statute must be used.

February 16th, 1858, a justice of the peace issued a capias ad respondendum against Henry Nash and Henry B. Roberts, which was returned same day, indorsed:

“ I, Ashbil Hurlburt, acknowledge myself special bail for the appearance of the within named Henry B. Roberts.

ASHBIL HURLBURT.”

“I have arrested the above Henry B. Roberts, and taken special bail as above.

G. W. CAMPBELL, Constable.”

On the return day Roberts appeared, waived process, and confessed judgment for $289.64.

September 10th, 1858, said justice issued a summons against Hurlburt, as special bail, in form as provided by the statute. Upon the return of this summons, the justice rendered judgment for Vipond, for $292.89.

There was an appeal to the Circuit Court by Hurlburt, which was tried March term, 1859. Verdict and judgment for defendant, Powell, Judge, presiding.

C. C. Bonney, for Appellant.

H. B. Hopkins, for Appellee.

Breese, J.

It will be seen by looking at the endorsement of bail on the capias ad respondendum issued by Vipond against Nash and Roberts, that it is for the appearance only of Roberts to the action—nothing more, and does not conform to the statute. The statute contemplates something more, and when the endorsement is made in conformity to it, it is to have the force and effect of a recpgnizanee of bail, the condition of which is, that the defendant, if judgment shall be given against him, will pay the same with costs or surrender his body in execution ; and in default of such payment or surrender, the goods and chattels of the bail shall be liable for the payment of the judgment and costs. (Scates’ Comp. 697).

Where a covenant is to be implied from statutory words, the very words of the statute must be used to raise the covenant.

Here the words used in the endorsement, are not the words of the statute nor of kin to them, and it was no undertaking by Hurlburt, to pay the debt, for the language used independent of the statute, does not amount to a covenant to pay the debt. It is for the appearance of one of the defendants. This is fatal to the plaintiff’s recovery, and the judgment must be affirmed.

Judgment affirmed.