Henckler v. County Court of Monroe County , 27 Ill. 39 ( 1861 )

Walker, J.

This was an action before a justice of the peace on a constable’s bond. It was removed by appeal to the Circuit Court, where a trial was had, resulting in a judgment against the constable and his sureties, for the amount of the penalty as debt and forty-three dollars and fifty-five cents damages, and the costs of suit. The evidence discloses the fact, that Scheuermann as constable received a claim due Schuetze and Eggers against Dr. Hoffman, which was collected without suit. This presents the question whether the sureties on a constable’s bond are liable for money received on claims placed in his hand for collection, when suit has not been instituted. Does the statute impose that as a duty upon that officer except upon process ? If it does, then it is an official act, for which his sureties are unquestionably responsible.

No reference has been made to any such statute, nor have we been able to find any such duty imposed. When a summons is placed in his hands, the statute has authorized the defendant to pay the amount indorsed thereon with the costs, in discharge of the claim. The constable is also by the command of an execution required to levy the amount of the judgment and costs. Money thus received, is in his official character, and a failure to pay it to the plaintiff or justice of the peace would be a breach of duty, against which his sureties have undertaken. On the contrary, the statute has made the justice of the peace a collecting officer, independent of legal process, and with him and his sureties it is otherwise. But the statute having failed to impose such a duty upon a constable, and as he derives all of his authority from it, the liability of his sureties can be no more extensive than his duties. They cannot be held liable for this or any other unofficial act. If a claim is placed in his hands for collection, and he receives the money without process, and fails to account for it, the creditor must look alone to the constable for its payment, as to any other agent.

Again, the court erred in permitting an amendment of the summons, by authorizing a change in the parties to the suit. Lake v. Moss, 11 Ill. 589. Unless there was something in the record by which to amend, the names of the plaintiffs could not be changed. To this effect is the uniform current of adjudged cases.

The Circuit Court therefore erred in rendering judgment in favor of the appellees, and it must be reversed and the cause remanded.

Judgment reversed.