McElhanon v. County Court, 54 Ill. 163 (1870)

June 1870 · Illinois Supreme Court

54 Ill. 163

James M. McElhanon et al. v. The County Court of Washington County, use, etc.

1. Constable’s bond—executed after twenty days from Ms election. The fact that the official bond of a constable was not given until nineteen months after his election, will not affect the validity of the bond; it will be presumed, from the mere fact of its execution, that such a bond was given because a former bond had become insufficient.

2. Pleading—declaring on such a hond,. In declaring upon a constable’s bond given by reason of an order of the proper court, because a former bond had become insufficient, it is not necessary to set out such order in the declaration; it is enough to set out the bond.

Writ of Error to the Circuit Court of Washington county; the Hon. Silas L. Bryan, Judge, presiding.

This was an action of debt, upon the official bond of a constable. It appeared from the declaration, that the constable was elected on the seventeenth of March, 1866, and the bond sued upon was dated on the third of November, 1867.

The defendants pleaded non est factum, and a special plea, setting out another bond given by the same officer, bearing date March 19, 1866, filed and approved on the twentieth of the same month, and alleging that the breach complained of had reference to this bond, and not to that sued upon. A demurrer was sustained to the special plea, and a trial resulted in a judgment for the plaintiffs. The defendants thereupon sued out this writ of error.

Mr. Amos Watts, for the plaintiffs in error.

Messrs. Hay & Hosmer, for the defendants in error.

Per Curiam:

It is objected by counsel for plaintiffs in error, that the official bond on which this suit is brought, was not given until about nineteen months after the election of the constable. That, however, does not affect its validity. Although the statute requires a constable to give bond within twenty days after his election, and provides that the office shall be considered vacant in case of his failure to do so, yet the second section of the chapter entitled “ Official Bonds” authorizes the county commissioners’ court to require a new bond to be given whenever they consider the securities upon the existing bond insufficient. It was unnecessary to set out this order in the declaration. It was enough to set out the bond. The court will presume, from the mere fact of its execution, that it was made because the first bond had become insufficient.

Judgment affirmed.