Cook v. Marsh

Citations

• 44 Ill. 178

Syllabus

<p>1. Sureties—obligation of, in a supersedeas bond. The obligation of a surety upon a supersedeas bond, is limited to the prosecution of the writ of error with effect, and his undertaking is, that if the writ is not so prosecuted he will pay all resulting damages.</p> <p>3. Same. In an action of debt upon a supersedeas bond, the declaration assigned as breaches of the condition, that the writ of error had not been prosecuted with effect, but that the decree had been affirmed; and that the property mentioned in it had deteriorated in value since its rendition. The defendant filed a demurrer, which the court overruled, and-gave judgment for the amount of the penalty in the bond, and nominal damages only, refusing to hear any evidence in support of the breaches assigned of deterioration of the property. Held, that it was error for the court, after having adjudged the declaration good on demurrer, to reject evidence offered to show the deterioration of the property; that the overruling of the demurrer was a recognition of the claim.</p> <p>3. Same—extent of deterioration — the measure of damages. The extent of the- deterioration of the property would constitute the damages, which the plaintiff would be entitled to recover.</p> <p>4. Same—rents from realty — when will not be allowed. And in such case, a claim by the plaintiff for the rents received by the defendant from the real estate, after the rendition of the decree, will not be allowed, plaintiff having no right-, by the decree nor under the law, to its possession or the rents thereof.</p>