Smith v. Whitaker ex rel. Jonas
Illinois Supreme Court
This was an action in debt upon an appeal bond, given before a justice of the peace, brought by Whitaker against Smith, in the Hancock Circuit Court. The declaration recited the bond at length.
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This was an action in debt upon an appeal bond, given before a justice of the peace, brought by Whitaker against Smith, in the Hancock Circuit Court. The declaration recited the bond at length. The defendant pleaded: first, non est factum; second, that there is not any record of said supposed recovery upon the trial of said appeal; and third, that there is not any record of the said supposed judgment rendered by the said justice remaining on the docket of the said justice in his Court, in manner and form as recited in the condition of the said writing obligatory. On the first and second pleas…
1Opinion of the Court
Opinion by Treat, 0. J.r
First. Was the demurrer properly sustained to the third plea? The plea alleges, in substance, that there was no such judgment before the justice, as is recited in the condition of the bond sued on. The defendant was estopped by the record from making such an allegation. The bond is set out in the declaration, and it distinctly states that a judgment had been rendered by the justice. The very object of the parties in executing the bond was to prevent the collection of thejudgment, and have the ease re-heard in the Circuit Court; and the bond was expressly conditioned…
2Cited by16 opinions
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- Moses v. Royal Indemnity Co.Illinois Supreme Court · 1916
- Arnott v. FrielIllinois Supreme Court · 1869
- Beardsley v. HillIllinois Supreme Court · 1871
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