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the praying thereof shall be supersedeas, and stay all further proceedings until the expiration of five days."

Upon an appeal being taken and bond being filed, the justice of the peace shall transmit all the papers and proceedings relative to the trial to the clerk of the circuit court, who shall enter said appeal on his docket, and the court shall proceed to try the right to such property in the same manner as is directed in the foregoing statute; and in all such cases judgment shall be given against the party failing for costs, and the clerk shall issue execution thereon for the same. Gale's Stat., 586, §§ 5, 6.

III. OF GARNISHMENT.

Previous to the passage of "An act in relation to garnishees," in a court of law, a judgment creditor had no effectual means of reaching debts due to the defendant, or property by him deposited in the hands of third persons, or of coercing the debtor to appropriate debts or property so circumstanced to the payment of his debt. And the remedy by imprisonment on execution for compelling the satisfaction of a judgment rendered upon contract being known to the laws of this state only in the case of fraud, or where it is made to appear that the debtor refuses to surrender his property for the satisfaction. of any execution upon such judgment, it was necessary there should be some statutory provision to enable creditors to reach the effects and property of the debtor by process and proceedings in these courts.

For this purpose it is enacted, Sess. Laws of 1838–9, p. 86, § 1, "That whenever a judgment has heretofore been rendered by any court of record, or shall hereafter be rendered by any court of record, or any justice of the peace, in this state, and an execution against the defendant or defendants in said judgment shall have been returned by the proper officer, no property found,' on the affidavit of the plaintiff, or other credible person, being made before the clerk of said court or justice of the peace, that said defendant or defendants have no property within the knowledge of such affiant, in his or their possession, liable to execution; and that such affiant hath just reason to believe that another person or persons is or are indebted to such defendant or defendants, or hath or have any effects or estate of such defendant or defendants in his or their hands, it shall be lawful for said court, or justice of the peace, to cause the person or persons supposed to be indebted to, or supposed to have any of the effects or estate of, the said defendant or defendants, to be summoned forthwith to appear before said court or justice, as a garnishee or garnishees; and said court, or justice of the peace, shall examine and proceed against such garnishee or garnishees, in the same manner as is required by law against garnishees in original attachments.

"SEC. 2. No proceedings against a garnishee or garnishees shall be quashed or set aside, or said garnishee or garnishees discharged on account of any insufficiency of the original affidavit or summons, if the plaintiff or plaintiffs, or other credible person, for him, shall cause a legal and sufficient affidavit to be filed, or the summons to be amended in such time and manner as the courts, or justices of the peace, shall respectively in their discretion direct; and in that event, the cause shall proceed as if such proceedings had originally been sufficient."

IV. OF THE LIABILITY OF THE CONSTABLE AND HIS SURETIES.

Gale's Stat., 411. "SEC. 43. Every constable, before he shall enter upon the duties of his office, shall execute and deliver to the clerk of the county commissioners' court, of the proper county, a bond to be approved by said clerk, with one. or more good and sufficient freeholders as his securities, in the sum of [one thousand] dollars, conditioned that he will faithfully discharge the duties of his office of constable; and that he will justly and fairly account for, and pay over, all moneys that may come to his hands, under any process, or otherwise, by virtue of his office; the said bond shall be made payable to the county commissioners of the county in which such constable shall be appointed, and their successors, for the use of the people of the state of Illinois, and shall be held for the security and benefit of all suitors and other persons who may be interested in, or become injured by the official conduct of such constable."

Gale's Stat., 426. "SEC. 1. That if any sheriff, coroner or other officer, shall fail, on demand made by the complainant, his executors, administrators or lawful attorney, to pay over any money collected by virtue of any execution, process or fee bill, not exceeding one hundred dollars, it shall be lawful for the party so aggrieved, or by his lawful attorney, to commence an action against such sheriff, coroner or other officer, and his securities, by summons before any justice of the peace, and if upon hearing the case, it shall appear to such justice of the peace, that money has been collected upon such execution, process or fee bill, and not paid over to the party entitled to the same, on demand made as aforesaid; and if it shall appear further, that the defendant or defendants sued with the sheriff or other officer, are his securities, by the production of the original bond or a certified copy thereof, of the sheriff, coroner or other officer, under the hand and seal of the clerk of the county commissioners' court, the said justice shall proceed to render judgment against said defendants for the amount so received by the said sheriff or other officer, belonging to the plaintiff, with ten per cent. interest

thereon."

LIABILITY OF CONSTABLE AND HIS SURETIES.

493

Sess. Laws of 1839-40, p. 78. "SEC. 1. That whenever any sheriff, coroner, constable, justice of the peace, or probate justice of the peace in this state, shall, after proper demand made, fail, neglect, or refuse, to pay over any sum or sums of money, collected or received by such officer, in, and by virtue of his office, his said office shall be forfeited and vacated.

"SEC. 2. Whenever in pursuance of the laws of this state, any judgment shall be had, or taken, against any sheriff, coroner, constable, justice of the peace, or probate justice of the peace, for any failure neglect or refusal of such officer, to pay over any sum, or sums of money collected or received by him, in and by virtue of his office, and it shall appear to the satisfaction of the court, that proper demand for the same has been made, it shall be the duty of the court, or justice of the peace, before whom such judgment is had or taken, further to adjudge and decree that the office of such officer, so failing, neglecting, or refusing, as aforesaid, is forfeited and vacated, and such vacancy shall be filled as in other cases of vacancy, as is now provided by law.”

Sess. Laws of 1841, p. 177. "SEC. 4. If any constable shall fail or neglect to return any execution within ten days after the return day thereof, the party, in whose favor the same was issued, may maintain an action against the constable and his sureties before a justice of the peace, and recover the amount thereof with interest from the date of the judgment upon which said execution issued.

"SEC. 5. Suits may be maintained and instituted upon constable's bonds against the constable and his sureties, or against the sureties alone, without first establishing the liability of the constable by obtaining judgment against him alone."

When an execution has been placed in the hands of a constable, if his term of office expires before the return day thereof, the constable and his sureties shall be liable for any neglect of duty, and for all moneys collected upon such execution, in the same manner and to the same extent they would have been if the term of office of such constable had not expired. Sess. Laws of 1841, p. 176.

By the 12th sec. of an act passed Dec. 30, 1826, it was provided, that it should be the duty of every constable, at the end of every year thereafter, to execute and file a new bond; and, upon failing to do so, his office to be vacated.

Gale's Stat., 412. "SEC. 48. All bonds which shall be given by constables hereafter, shall remain in force until the expiration of five years after the term of service of the constable giving the same shall have been concluded: and where bonds shall be renewed in conformity with an act approved December 30, 1826, entitled An act to provide for the appointment of justices of the peace and constables,' the giving

of a new bond by any constable, shall not satisfy or vacate any bond previously given by the same constable; but each bond shall stand good in relation to all matters and things officially done or committed, or which ought to have been so done, within the year for which such bond shall have been given."

The 12th sec. of the act of Dec. 30, 1826, was repealed by the act providing for the publication of the laws in 1833. Gale's Stat., 443.

By the terms of the above statutes an action may be brought before a justice of the peace against a constable and his securities, when the constable shall fail, on demand made, to pay over any money collected by virtue of any execution, process, or fee bill, not exceeding one hundred dollars; or when he shall fail or neglect to return any execution within ten days after the return day thereof. An action of debt on the bond, however, cannot be brought before a justice, as the amount of the penalty exceeds the jurisdiction of the justice.

The remedy provided by the statute, does not deprive a party of his common law remedy. 10 Johns. Rep., 390. Therefore, where a constable has collected money on an execution and neglects to pay it over to the person entitled to receive the same, or to the justice who issued the execution, an action of assumpsit for money had and received will lie against the constable to recover the amount collected, without any previous demand being made. 3 Johns. Rep., 182. 1 Wend. Rep., 534. 16 East's Rep., 274. So assumpsit lies against a constable for the amount of goods sold by him, though the purchaser to whom they are delivered refuses to pay for them. 9 Johns. Rep., 96.

Where a constable or other officer neglects his duty or abuses the trust reposed in him by law to the injury or damage of another, an action on the case lies against him in the circuit court at the suit of the party sustaining the injury. 1 Scam. Rep., 237. Thus, if a constable neglect to serve a writ or precept delivered to him, this action lies for the injury suffered by such neglect or refusal. 1 Scam. Rep., 200.

Gale's Stat., 411. "SEC. 46. If the demand or debt of any plaintiff shall be wholly or in part lost, by the neglect or refusal to act, of any constable, or if any special damage shall arise to any plaintiff or defendant by the misfeasance or nonfeasance of any constable, in the discharge of any official duty, the party aggrieved may have his action for damages in the circuit court, against such constable for the injury so sustained; and shall have judgment and execution, which shall not be replevied."

An action on the case lies against the constable for suffering an escape upon civil process, or for a false return of any process by which the party is injured in his rights. 1 Chit. Pl., 158. But, though a return be untrue on its face, yet the of

ficer making it is not liable in damages if the facts of the case, truly stated, would have produced the same results to the party complaining as the return made. 1 Wend., Rep., 48. 9 Wend. Rep., 298.

V. OF EXECUTIONS ISSUED BY THE CLERK OF THE CIRCUIT COUrt.

After a transcript of a judgment rendered by a justice of the peace shall have been certified to the clerk of the circuit court of the county in which it was rendered, and the same shall be filed by the said clerk, execution shall issue thereon out of that court as in other cases. Gale's Stat., 409.

And it is apprehended that the circuit court has the power to amend an execution issued upon a transcript of a judgment filed by the clerk, and to control the same in all respects as if it had issued upon a judgment rendered in such court.

CHAPTER XI.

OF THE REMOVAL OF CAUSES TO THE CIRCUIT COURT.

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The circuit courts are the only superior courts in the state that possess original and unlimited jurisdiction. They exercise within their respective counties all the powers and jurisdiction of the courts of King's Bench and Common Pleas in England, 2 Scam. Rep., 269, and perhaps of the court of Exchequer.

In the case of Lawton . Commissioners of Cambridge, 2 Caines' Rep., 181, it is said that "It is a position beyond contradiction, that the King's Bench in England (and this court is clothed with the same common law authority) has jurisdiction, and may award a certiorari, not only to inferior courts, but to persons invested by the legislature with power to decide on the property or rights of the citizen, even in cases where they are authorized by the statute finally to hear and determine." 1 Salk. Rep., 147.

Whenever a new jurisdiction is erected by act of the legis

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