Patrick v. Rucker ex rel. Hurlbert

Catón, 0. J. This was an action of debt. The declaration contains five counts, the three first and last of which are upon bonds, with appropriate conditions, given to the judge of the Cook County Court, by an insolvent and his surety, upon his assignment before that court, under our insolvent law, with appropriate assignments 'of breaches. The fourth count is upon the penal part of a bond, in the same terms as the penal parts of the bonds counted upon in the other counts, but does not recite any condition, and of course there are no breaches assigned. That count is as follows: “ And also, for that, whereas, the said defendants heretofore, to wit: on the first day of December, A. D. 1854, to wit: at the county of Cook aforesaid, by their certain writing obligatory, sealed with their respective seals, and now here shown to the court, acknowledged themselves held and firmly bound to the plaintiff, Henry L. Rucker, judge of Cook county, and his successors in office, in the penal sum of twenty-two thousand dollars, to be paid to said plaintiff; yet the said defendants, although often requested so to do, have not, as yet, paid the said sum of twenty-two thousand dollars, or any part thereof, to said plaintiff; but so to do haye hitherto wholly neglected and refused, and still do neglect and refuse, so to do.” To this declaration the defendants demurred. The demurrer was overruled by the court, and the defendants declining to plead over, a judgment was entered upon the demurrer in favor of the plaintiff, for twenty-two thousand dollars, the debt mentioned in the penal part of the bond. The plaintiff remitted $9,623, and an execution was awarded for the balance. No damages were assessed on those counts which recite conditions and assign breaches. The court erred in overruling this demurrer. If the bond counted on in the third count was an official bond given to the county judge in his official capacity, it was void unless it had a condition; for he could take no official bond except by authority of our statute, and that authorized him to take none but a bond with a condition. If, then, the bond had a condition, the statute made it imperative on the plaintiff to set out the condition in his declaration, and assign breaches; and for that reason, the third count, which was the only one upon which judgment could be rendered without assessing damages, was bad. But assuming, as it has been argued in support of this judgment, that the third count was upon a simple bond given to Henry L. Rucker, in his individual capacity, and that the addition of his office is a mere description of the person, and may be treated as surplus-age, then the declaration was bad for a misjoinder of counts. The other counts being upon official bonds, given to the county judge and his successor in office, the name of Henry L. Rucker, in the bonds and counts, is surplusage, and must be so treated. Those counts are therefore to be considered as if the personal name of the judge was not there, and only the official designation of the officer used as plaintiff. With such counts a count upon an individual debt, due to the judge personally, could not be joined. But the obligation on which the fourth count is based, shows on its face that it was not a bond for the payment of the sum of money absolutely, for it is stated to be a penal sum; which shows that some condition was attached to it by the bi’each of which the penal sum might bo-forfeited. This condition was required by our statute to be set out in the declaration, and the breach of it assigned. For that reason the fourth count was bad, and no judgment could properly be rendered upon it. The judgment cannot be sustained upon the other counts, for the reason that there was no damages assessed upon the breaches assigned therein, by the payment of which the judgment for the debt should be discharged. The judgment of the court below must be reversed and the cause remanded, and a repleader allowed. Judgment reversed.