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Marckle v. Haskins.

fendant to pay as he had agreed. We are not to give to the words of the record, where the forms of actions have been abolished, the same strict and technical signification which we do here, where those forms are still retained, for the reason that they were not used in such technical sense.

We think the record was properly admitted, and the judg ment must be affirmed. Judgment affirmed.

DAVID MARCKLE, Plaintiff in Error, v. SAMUEL F.
HASKINS, Defendant in Error.

ERROR TO MORGAN.

If one bargains with an agent for a horse, knowing him to be such agent, and that the principal had recognized the transaction, a warranty by the agent is the warranty of the principal, who is the proper party to be sued for a breach.

THIS is an action of assumpsit, first brought by Haskins against Marckle, before a justice of the peace, who rendered a judgment for the defendant, Marckle, the present plaintiff in error.

From this judgment, Haskins, the plaintiff below, took an appeal to the Circuit Court. In that court the case, by consent of the parties, was tried by the judge, without the intervention of a jury, who gave a judgment for the plaintiff in the original action for seventy-five dollars. The defendant in the Circuit Court brings the case here.

M. McCONNEL, for Plaintiff in Error.

I. L. MORRISON, for Defendant in Error.

CATON, C. J. The questions of law raised in this case admit of no dispute. If the plaintiff knew the defendant was acting as the agent of his brother, at the time the bargain was struck, and his brother had authorized him to sell the horse, or subsequently ratified the bargain, then the warranty was the warranty of the principal and not of the agent, and the latter is not liable in this action. The only real controversy is upon the facts. There are two principal questions of fact in the case. First, was the plaintiff aware of the fact that the defendant was selling the horse as the agent of his brother? and, second, was the horse unsound at the time of the sale? As is usually the case in trials upon horse trades, the testimo

Marckle v. Haskins.

ny is apparently conflicting and contradictory. On the first question, the plaintiff's driver says, that he was present during the whole time the parties were negotiating and till after the bargain was struck, and that the defendant claimed the horse as his own, and that nothing was said about his belonging to his brother. If what he says is true, that settles the first question.

Green says he was passing around among the parties on the morning of the trade, and heard them talking about price and pay, and that he heard the defendant say the horse belonged to his brother, but he heard nothing said about the soundness of the horse. It is very clear that this witness was not present when the trade was made, as testified to by the first witness.

Wiswell says that he told the plaintiff that the horse belonged to the brother of the defendant, and from the character of the conversation between them, as stated by the witness, it raises a strong inference that it was before the bargain was closed, still it may have been afterwards, and there is no way of reconciling the apparently conflicting testimony consistently with the integrity of all the witnesses, except upon the conclusion that the conversations, as sworn to by these last two witnesses, took place after the bargain was struck, as testified by the first witness. Without this, some one has sworn to a falsehood, and the court will not arrive at this conclusion in regard to any unimpeached witness, where there is any reasonable hypothesis upon which the testimony of all the witnesses may be reconciled, consistently with the integrity of all. We know that witnesses are often mistaken, but courts reluctantly come to the conclusion that a witness against whose veracity nothing has ever been heard, has deliberately and knowingly sworn to a falsehood. This is evidently the view which the Circuit Court took of this testimony, and we do not think it is so unreasonable as to require us to reverse the judgment for that cause.

There is no contradictory proof as to the warranty, and as to the unsoundness of the horse at the time of the sale, we think the proof decidedly preponderates in favor of the finding of the Circuit Court, so much so that we do not deem it necessary to review the evidence on that point.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.

Long et al. v. County Court of Scott County.

ANDREW LONG, and ALEXANDER BEALL, Appellants, V. THE COUNTY COURT OF SCOTT COUNTY, Appellee.

APPEAL FROM SCOTT.

The County Court succeeded to that of the county commissioner's, and a constable's bond is properly executed to the County Court; which court and its successors may maintain an action upon it.

ON the eighth of November, 1859, William Salisbury was elected constable of said county, and afterwards, as principal, with appellants as sureties, executed an official bond to the justices of said county, naming them and their successors in office, to the use of the People of the State of Illinois, for, etc., conditioned as the law requires. Suit was brought on this bond to the September term, 1861, of the Circuit Court of said county, in the name of "The County Court of Scott County," for use of, etc., there being four counts in the declaration, to each of which the appellants demur. Demurrer was overruled, and judgment against them.

The only error assigned, is the overruling of the demurrer.

D. A. AND T. W. SMITH, for Appellants.

KNAPP & BURR, for Appellee.

WALKER, J. This was an action of debt, instituted by the County Court, on a constable's bond, to recover for a breach in failing to pay an account for money collected by the constable, in his official capacity. The bond was executed by Salisbury the constable, and by Long and Beall as his securities, and was made payable to "William Leighton, Robert Husband, and Jesse Husted, county justices, together constituting the County Court of the county of Scott, and State of Illinois, and their successors in office, for the use of the People of the State of Illinois," etc., conditioned in the usual form for the faithful discharge of his duties as a constable. The declaration contained four counts, to which a demurrer was interposed, and overruled by the court, and the defendants refusing to answer further, judgment nil dicit was rendered, and the damages were assessed, from which this appeal is prosecuted.

The appellants raise the single question, whether the County Court of Scott county can maintain an action on this bond. The law in force at the time of its execution, or at present,

Long et al. v. County Court of Scott County.

in counties not acting under township organization, does not in terms, prescribe the person to whom such a bond shall be executed. During the existence of the County Commissioners' Court, constables were required to make their official bonds payable to the county commissioners of their county, and to their successors in office, for the use of the People of the State of Illinois. The 15th section of the act of the 12th of February, 1849, (Scates' Comp. 309), provides, that the county judge, and two justices of the peace, designated and provided for by the act, as a County Court, shall have, exercise and possess all the power, jurisdiction and authority heretofore conferred by law on the County Commissioners' Courts of this State."

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It is, by this provision, manifest that if the County Commissioners' Court had power or authority to take such a bond, the County Court may. They are invested by express language, with all the power and authority which was possessed by the Commissioners' Court. Constables were, as we have seen, required to make their bonds payable to the county commissioners and their successors, and when the law required that officer to execute his bond to them, it necessarily authorized and empowered them to receive it, and maintain an action upon it, for any breach which might occur. It then follows, that this bond was properly executed, as the County Court succeeded to all of the powers of the Commissioners' Court. Shute v. Chicago and Milwaukee R. R. Co., 26 Ill. 436.

It also follows, as a consequence, that if the Commissioners' Court could have maintained an action upon a constable's bond payable to them, the County Court, as its successor, may do the same, upon such a bond payable to them. The power in the one case is as ample as in the other. Under the rules of the common law, the party holding the legal title or interest in the thing affected, must bring the suit. In this case the successors of the obligees have the legal title to this bond. It is by its terms payable to the persons named as the court, and to their successors, and by law vested in them, and that of itself authorizes them to maintain the action.

This case is similar to that of Fraizer v. Laughlin, 1 Gilm. 347. It was there held, that the case was brought in the corporate capacity of the county commissioners, and the names of the individuals appearing as obligees in the bond, was entirely surplusage, and might be stricken out at any time. That was an action by that body, against a school commissioner and his securities. That case clearly determines the question, that the suit could be maintained in the corporate capacity of that body, and we have seen that the County Court has succeeded to all of their powers and authority. That case must

27 386 39a 506

27 386 56a 149 57a 109

Hall et al. v. Carpen.

be held decisive of this. The judgment of the court below is affirmed.

Judgment affirmed.

HENRY H. HALLet al., Appellants, v. HENRY CARPEN,

Appellee.

APPEAL FROM MORGAN.

A and B, each sent cattle to market, which were sold by the same broker, who, in accounting to the parties, paid A too much, and B, by precisely the same sum, too little; B sued A, to recover his deficit. Held, that there was no such privity between these parties, as would create a liability..

IN June, 1860, appellee and appellants each shipped a lot of cattle to the city of New York for sale. On reaching the city, they separately employed to sell their respective lots of cattle, a cattle broker by the name of Wm. Florence. On the 25th and 26th of the same month, Florence sold by small lots, both lots of cattle, and in settling with the parties for the proceeds of their respective lots of cattle, Florence by mistake paid appellants $171 more than was due them on their cattle, and also paid appellee $171 less than was due him for his cattle.

Appellee sued appellants for the said sum of $171, in assumpsit, for so much money had and received for appellee's use. Appellants plead non-assumpsit, upon which issue was taken. By consent of the parties, the case was tried by the court without a jury, and the court gave judgment for the plaintiff below, $183.82 and costs; from which the appellants appealed, and the parties made this an agreed case, upon the clerk certifying the same, to be reviewed by the Supreme Court without any other or fuller record, and without exception to matters of form. The only question to be made is, whether such privity of contract 'exists between the parties as that the plaintiff below can rightfully recover anything in the

case.

The error assigned in this case is, that the court erred in rendering a judgment for the plaintiff below, and in not rendering judgment for the defendants below.

MORRISON & EPLER, for Appellants.

D. A. SMITH, for Appellee.

CATON, C. J. The appellants consigned to a cattle broker

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