Rudesill v. County Court

Citations

• 85 Ill. 446

Syllabus

<p>1. Pleading Aim evidence—admission by plea of non est factum. In an action of debt upon the second bond given by a justice of the peace, where the declaration recites the giving of a prior bond, and notice by the surety to give a new bond, the plea of non est factum, verified, without any other plea, admits all the allegations of the declaration, except the execution of the bond sued on.</p> <p>2. Alteration—its materiality. After the execution of a new bond by a justice of the peace in pursuance of a notice by his surety in the original bond, the clerk of the county court, on its return to him, and without the knowledge or consent of the sureties, inserted therein, after the recital of the election, etc., the words “ and given up by A B, his security on, etc., and required to file new bond as such justice of the peaceHeld, that the alteration was immaterial, as it did not, in the least, increase or lessen the undertaking of the sureties, and did not render the bond void.</p> <p>3. Same—material alteration in official bond avoids it. It is no doubt true, that a material alteration of an official bond, increasing the liability of the sureties, without their consent, would release them from the obligation they had assumed in the execution of the instrument.</p> <p>4. Official bond of justice of the peace. The statute requiring a justice of the peace to file a new bond, on notice of a surety of his unwillingness to stand security longer, does not require the new bond to contain a statement or recital other or different from a bond filed in the first instance. It is the surety’s notice, filed with the county clerk, which is the authority for the new bond, and not any recitals inserted therein.</p> <p>5. The notice which the surety gives to the county clerk is required to be filed, and when filed, it becomes a part of the files of his office, and when the question arises whether the justice, in filing a new bond, has acted under and in pursuance of the statute, resort