Field v. Rawlings

• Decision Date: 31 December 1844
• Citation: 1844 WL 4114,6 Ill. 581,1 Gilman 581
• Parties: ALEXANDER P. FIELD et al.v.MOSES M. RAWLINGS.
• Court: Illinois Supreme Court

1 Gilman 581

6 Ill. 581

1844 WL 4114 (Ill.)

ALEXANDER P. FIELD et al.

v.MOSES M. RAWLINGS.

Supreme Court of Illinois.

December Term, 1844.

DEBT on bond, in the Gallatin circuit court, brought by the defendant in error against the plaintiffs in error. The case was heard before the Hon. WALTER B. SCATES, at the May term, 1844, on demurrer to the declaration, which demurrer was overruled, and judgment rendered for the plaintiff in the court below for $1040.25.

The substance of the bond, and the declaration thereon, is set out in the opinion of the court.

A. LINCOLN and H. EDDY, for the plaintiffs in error, cited 1 Chitty's Pl. 354, as to condition precedent; 3 Johns. 146; 6 T. R. 710; 1 Powell on Con. 397, citing Dyer, 17 a; Miller v. Stewart, 9 Wheat 680; S. C. 3 Peters' Cond. R. 395 notes; 5 Coke's R. 22 a.

L. TRUMBULL, for the defendant in error, cited the statute in relation to the fees of secretary of state, and contended that the charge for the services performed was unauthorized. R. L. 283.

As to the sufficiency of the declaration, see 2 Chitty's Pl. 144, 318; White v. Snell, 5 Pick. 425.

J. A. MCDOUGALL, on the same side, among other things, contended that the last breach assigned in the declaration, was the correct breach. The legislature had already decided that the fees were not chargeable, and a further determination of that question was unnecessary.

SHIELDS, J.

This was an error of debt brought by the defendant in error against the plaintiffs in error, in the Gallatin circuit court, on a bond given under the following circumstances, and with the following condition, to wit: Field, as secretary of state, presented to Rawlings, as fund commissioner, an account claiming seventy-five cents per bond, for affixing the seal of state to one thousand state bonds. Rawlings took the bill, and took the bond upon which this suit is brought, executed by Field as principal, and his co-plaintiffs in error as sureties, conditioned that Field should return the money with legal interest thereon, in case it should be decided by the legislature or the supreme court that the fees were not legally chargeable to the fund commissioner.

The declaration assigns several breaches of the condition aforesaid.

1. A general performance by the plaintiff, and a failure to perform on the part of the defendants.

2. A failure to pay the seven hundred and fifty dollars with interest, or any part thereof.

3. That the said Field did not have it decided by the legislature or supreme court, that the fees were not legally chargeable to the fund commissioner.

4. That the fees were not legally chargeable to the fund commissioner.

5. That the legislature, by the senate thereof, at the twelfth general assembly of the state of Illinois, on the ninth day of January, 1841, decided that the said fees were not legally chargeable to the fund commissioner.

The defendants below demurred to this declaration. The court overruled the demurrer, and gave judgment for the plaintiff below. The overruling of the demurrer, and the rendering of judgment are now assigned for error.

The defendants below entered into a penal bond to pay the plaintiff the sum of seven hundred and fifty dollars, with legal interest, in case the...