Melody v. the People

• Decision Date: 31 March 1881
• Parties: ANTHONY MELODY ET AL.v.THE PEOPLE, use, etc.
• Court: United States Appellate Court of Illinois

8 Ill.App. 485

8 Bradw. 485

ANTHONY MELODY ET AL.

v.THE PEOPLE, use, etc.

Appellate Court of Illinois, First District.

March Term, 1881.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. ELLIOTT ANTHONY, Judge, presiding. Opinion filed May 4, 1881

Mr. F. A. SMITH. for appellant; that an officer is not an insurer of the solvency of sureties upon a bond taken in the discharge of his duties, cited The People v. Robinson, 89 Ill. 159.

Mr. F. W. BECKER, for appellees, cited as to the admissibility of the evidence, Mer. Dispatch Co. v. Joisting, 89 Ill. 152.

A reversal is not granted unless the finding is manifestly against the weight of evidence: C. B. & Q. R. R. Co. v. Lee, 87 Ill. 454; Adedms v. Suver, 89 Ill. 482; Lewis v. Lewis, 92 Ill. 239.

Upon the duty of an officer in taking a bond: The People v. Cor, 85 Ill. 248.

The testimony as to the value of the property taken was sufficient: Winslow v. Neulan, 45 Ill. 145; Waldo v. Gray, 14 Ill. 184; 1 Phillips on Ev. 388.

McALLISTER, P. J.

This was debt upon the official bond of William E. Dempsey, a constable, against his sureties, the appellant, Melody, and one Pellitier; the bond being conditioned that said Dempsey would faithfully discharge the duties of his office as constable, etc.; and such bond was delivered and approved July 3, 1877. One breach assigned was that September 11, 1877, one Kiren Cash sued out of the Circuit Court of Cook county, a writ of replevin against Charles Kern, the then sheriff of said county, and others, for certain goods and chattels therein described, which writ was directed to any constable of the said county, and delivered to Dempsey, as such constable, to execute; and that the latter failed to take a good bond, but took one with insufficient surety, viz.: the bond of said Cash as principal, and Martin O'Neill and Alfred McClloud as sureties, neither of whom was financially responsible, the goods and chattels aforesaid being of the value of one thousand dollars, which were replevied under said writ by Dempsey, and delivered to Cash, the plaintiff; that afterwards the replevin suit was dismissed, and judgment for one cent damages and a return of the property entered; that none of the property had been returned.

It appeared on the trial, that said writ of replevin was not the original one, but that the original was directed to the coroner of said county, and delivered to him to be executed; and was afterwards so amended as to include the coroner as defendant, and, under the statute, the sheriff and coroner both being defendants, it was directed to any constable, etc.

The breaches assigned were traversed by pleas, and on the trial before the court without a jury, the court permitted plaintiffs' counsel to prove, against the objections of the defendants, by one Korn, who was the coroner's deputy, that the original writ of replevin was delivered to the coroner for execution; that the...