The People of the State of Illinois, Appellants, v. William Compher et al., Appellees, 14 Ill. 447

Treat, C. J. In September, 1849, William Compher, sheriff of Peoria county, with William S. Moss, Clark Cleaveland, and Clement Ewalt, as his sureties, executed a bond to the people of the State of Illinois, in the penalty of $62,000, and conditioned that he would perform all the duties required to be performed by him, as collector of Peoria county, in the time and manner prescribed by law. In August, 1850, the people brought an action of debt on the bond, in the Sangamon circuit court, to recover the amount of the State tax for the year 1849, collected by Compher, and not paid into the State treasury.

The cause was removed to the Tazewell circuit court; and at the September term, 1850, of that court, a judgment was rendered against Moss, Cleaveland, and Ewalt, for the penalty of the bond as debt, and the sum of $7,072.42, as damages, that being the amount of the State tax received by Compher, but not paid over. That judgment was affirmed in this court, at the December term, 1850. On the 14th of February, 1851, the legislature passed

an act in these words : “ Whereas William Compher, late collector of Peoi'ia county, has absconded, leaving his securities liable to the State upon his official bond, for the revenue collected by him for the year 1849 ; and whereas judgment has been rendered by the Supreme Court of this State against the securities of the said Compher, for the amount of the revenue due the State for the year 1849; now, therefore, Be it enacted by the people of the State of Illinois, represented in the general assembly :

Section 1. That the securities of said Compher be and they are hereby required to pay the costs of said suit, and pay into the State treasury the sum of $3,500, with interest thereon, on or before the 31st day of December, 1851, and that they pay the remaining balance of said judgment, $3,572.42, with interest thereon, on or before the 1st day of December,

Section 2. That the time shall be extended as aforesaid: Provided, that the judgment and execution issued thereon shall be and remain a lien upon all the real estate of the said securities until the payment thereof: Provided, further, that if said securities shall well and truly comply with all the provisions of the first

section of this act, then and in that case they shall be and hereby are released from all further liability on said judgment; but if they shall fail or ne'glect so to-do, then it shall be the duty of the auditor to proceed with the collection of said judgment as now required by law.” At the April term, 1852, of the Tazewell circuit court, after due notice had been given to the defendants, and by the leave of the court, the plaintiffs, for the use of a certain township in Peoria county, filed an additional assignment of breaches of the condition of the bond, alleging in substance, that Compher, as collector of said county for the year 1849, collected and received the sum of $1,300, it being the amount of a school tax levied for that year on the property in that township, and that he had wholly neglected and refused to pay over the same; and a writ of inquiry was thereupon issued to assess the damages under this assignment of breaches.

During the same term, the defendants entered a motion to quash the writ of inquiry. An affidavit was filed in support of the motion, stating that the defendants resided in Peoria county, and were there served with notice of the application to assign further breaches of the bond; and that they had fully complied with and performed all the terms and conditions of the act of the 14th of February, 1851. The chief grounds relied on to sustain the motion, were the following. 1. The court had no jurisdiction of the persons of the defendants, or of the subject-matter of the proceeding. 2.

The breach assigned did not happen after the rendition of the judgment on the bond. 3. The defendants were released from all further liability, by the act of the 14th of February, 1851, and the performance of the conditions thereof. The court quashed the writ of inquiry, and dismissed the proceeding; and the plaintiffs prosecuted an appeal. 1. The second

section of the R. S. c. 83, provides : “ It shall not be lawful for any plaintiff to sue a defendant out of the county where the latter resides, or may be found, except in cases where the debt, contract, or cause of action accrued in the county of the plaintiff, or where the contract may have specifically been made payable.” But this provision is qualified by R.

S. c. 29, § 51, which declares : “ The circuit court of Sangamon county shall have original 'jurisdiction in all causes, suits, and motions, against every person or persons, body politic or corporate, in this State, in which the State shall be a party, plaintiff or complainant, whether such causes, suits, and motions grow out of contracts express or implied, or out of torts of any nature or description whatever, affecting the interests and welfare of the State.” By virtue of this statute, the State may commence a suit at law or in equity in the Sangamon circuit court, and process may issue against the defendant to any county in the State.

The original action on the bond was, therefore, properly brought in that county. It was also competent to change the venue, so as to give the circuit court of Tazewell county jurisdiction of the cause. And that court bad authority to render the judgment, as this court decided in a direct proceeding to reverse it. But it is insisted that the court had no jurisdiction of the present proceeding, inasmuch as all of the defendants resided in Peoria county, and were there served with notice. This will depend upon the character of the proceeding.

If it is to be considered a distinct action, the position may be correct; but if it is to be regarded as a part of the original suit, the position cannot be maintained. The R.

S. c. 83, § 18, provides: “ In actions brought on penal bonds, conditioned for the performance of covenants, the plaintiff may assign as many breaches as he may think fit,.and the jury, whether on trial of the issue or of inquiry, shall assess damages for as many breaches as the plaintiff shall prove, and the judgment for the penalty shall stand as a security for such other breaches as may afterwards happen, and the plaintiff may, at any time afterwards, sue out a writ of inquiry, to assess damages for the breach of any covenant or covenants contained in such bond subsequent to the former trial or inquiry.” The English statute, from which this provision was mainly taken, authorized a scire facias to issue upon the judgment, suggesting other breaches of the bond than thbse originally assigned.

Our statute dispenses with the issuing of a scire facias, and authorizes additional breaches to be assigned, upon giving the defendant notice. The proceeding, however, is substantially the same in either case. A scire facias to set aside letters patent, or to foreclose a mortgage, is considered an original proceeding. But a scire facias upon a judgment, is uniformly regarded as but a continuation of the former action. Tidd’s Practice, 1096; Executors of Wright v. Nutt, 1 Durnford & East, 387; McGill v. Penigo, 9 Johnson, 259; State Treasurer v. Foster, 7 Vermont, 52; Adams v. Rowe, 2 Fairfield, 89.

And such must be deemed to be the nature of the present proceeding. It cannot be held otherwise, without denying all further remedy upon the covenants in the bond. No action can be maintained on the obligation, for it is merged in the judgment. The judgment is for the entire penalty, and no further proceedings can be had upon the bond, except in the way indicated by the statute. The suggestion of further breaches under the statute, like the issuing of a scire facias upon a judgment, must of necessity be had in the court where the judgment is entered. The court below had jurisdiction of the proceeding.

The case of Dickinson v. Allison, 10 Georgia, 557, is very much in point. The constitution of Georgia declared, that a party to a civil suit should not be sued out of the county of his residence. Allison sued out a scire facias from the superior court of Greene county, to revive a judgment rendered therein in his favor against Chaffin and Dickinson, both of whom resided in a different county, and were there served with copies of the scire facias. A judgment was entered against them on the return of the scire facias; and on error, it was objected that the process improperly issued to a foreign county.

The court said : “ The scire facias to revive a judgment, must issue from, and be returnable to, the court where the judgment is rendered. That court alone has .jurisdiction. No other court can acquire the cause, for the scire facias is but a continuance of the original action.

Incident to the jurisdiction, is the right to issue process to bring the defendants before the court.” Again : “ Whilst it is in the nature of an action, yet we think it is in continuance of the suit in which the judgment was rendered, and, therefore, not a criminal action ; and for that reason, not such a civil case as the constitution contemplates.” 2. The second ground of objection is equally untenable. In order to authorize a" further assignment of breaches, it is not necessary that the default should arise subsequent to the former assessment.

It is sufficient that it is for another and different breach than the one upon which the assessment was made, and that the collector still continues in default. Any breach of the condition of the obligation for which damages have not already been assessed, forms the proper subject-matter of a new assignment and assessment. The judgment entered for the penalty stands as security for all such breaches, precisely as if no suit had been brought on the bond. Such, we doubt not, is the true construction of the statute.

It certainly was not the intention of the legislature, that the State, by bringing an action on the bond, and having her damages assessed, should deprive the county and townships of all remedy upon the obligation. It was executed as well for their benefit, as that of the State. The State only claimed to recover the amount of revenue due her; leaving the county and the townships to assert their rights upon the bond, by the assignment of further breaches under the statute. It was not the duty of the State to suggest as a breach, the non-payment of the county and school taxes.

That was a matter exclusively for those corporations. They may, indeed, assert their rights in the name of the State, so far as it may be necessary. Bonds of this character are designed to secure all parties interested in the collection and distribution of the revenue. But that object would be to a great degree defeated by the construction contended for. An assessment of damages at the instance of a single party, would preclude all others from a recovery upon the bond, unless their right of action accrued after the assessment. 3.

The act of the 14th of February, 1851, and the payments made -in pursuance thereof, did not exonerate the defendants from liability for the county and school taxes. The only object of the act was to extend the time for the payment of the amount ascertained to be due to the State. It was not intended to interfere with the judgment for the penalty of the bond, or preclude further assignments of breaches under the statute. This is manifest from a bare inspection of its provisions. The term judgment, as used in the act, refers merely to the assessment of damages, and not to the judgment for the penalty. The

preamble recites a judgment “for the amount of the revenue due the State for the year 1849.” This evidently refers only to the award of damages, to enforce which the State was entitled to execution. By the first section, the defendants are required to pay “ the sum of $3,500, with interest thereon, on or before the 31st day of December, 1851; ” and to pay “ the remaining balance of said judgment, $3,572.42, with interest thereon, into the State treasury, on or before the first day of December, 1852.” The aggregate of these sums is the amount of damages assessed under the assignment of breaches. The second

section provides that if the payments are made, the defendants shall be “ released from all further liability on said judgment.” The release was to operate upon their liability as ascertained and fixed by the judgment, and not upon any liability thereafter to be established. The court erred in dismissing the proceeding; and its judgment is reversed, and the cause is remanded. Judgment reversed.