Herrick v. Swartwout

Citations

• 72 Ill. 340

Syllabus

<p>1. Practice—how to mail of defect in declaration. The objection that the declaration in a suit on a bond given upon an appeal from the circuit court to the Supreme Court, does not show that the bond sued on was taken and approved as the appeal bond of the defendants in the circuit court, can not be urged as error in the Supreme Court, if the defendant, instead of demurring to the declaration, pleads to the merits.</p> <p>2. Uto tux record—whether a proper plea. Although the bond upon an appeal from the circuit to the Supreme Court is required to be filed in the office of the ¿clerk of the court from which the appeal was taken, the obligee in the bond has the right to bring suit on the bond, and it is proper for him to so bring his suit and not on the record, and a plea of nut tiel record is not a proper plea to such action.</p> <p>3. A plea of non est factum, not sworn to, in a suit on an appeal bond, does not put the execution of the bond in issue.</p> <p>4. Estoppel—to deny recital in condition of bond, sued on. In a suit upon a bond given upon an appeal to the Supreme Court, it is unnecessary to introduce a copy of the record of the judgment appealed from, when it is recited in the condition of the bond, as the defendant is estopped from denying its existence.</p> <p>o. Levy of execution—on real estate, is not a satisfaction such as to prevent collection in some other manner. The levy of an execution upon real estate of sufficient value to satisfy it, does not, like the levy of an execution on personal property, while the levy is undisposed of, act as such a satisfaction of the judgment as will bar an attempt to enforce its collection in any other manner.</p> <p>6. In a suit upon an appeal bond given on an appeal from a judgment against the defendant and in favor of plaintiff, a plea that an execution issued on such judgment was levied upon the lands, tenements, goods and chattels of the defendant of sufficient value to satisfy the judgment, is bad on demurrer