of the county of aforesaid and State of Illinois. Now, if the said A. B. shall prosecute his appeal with effect, and shall pay whatever judgment may be rendered by the court upon dismissal or trial of said appeal, then the above obligation to be void, otherwise to remain in full force and effect.

"Sec. 60. The party desiring such appeal, may file his bond in the office of the justice, who shall have rendered the judgment; such bond to be approved by such justice, whose duty it shall be to suspend all proceedings in the case; and if execution shall have been issued, he shall recall the same, and who shall, within twenty days after receiving and approving of the appeal bond, file the same in the office of the clerk of the circuit court, together with all the papers and transcript of the judg ment he had given, with a certificate under his hand that the said transcript and papers contain a full and perfect statement of all the proceedings before him.

"Sec. 61. Or the appealing party may file his bond in the office of the clerk of the circuit court of the proper county, within the time aforesaid, which bond shall be approved by the clerk; upon the filing and approval of which bond the clerk shall issue a supersedeas enjoining the justice and constable from proceeding any further in said suit, and suspending all proceedings in relation thereto; and shall issue a summons to the appellee to appear at the term of the court to which the appeal is returnable, which summons shall be served and returned as in other cases.

Sec. 62. So soon as the clerk shall issue a supersedeas, as aforesaid, the justice who gave the judgment, and any constable in whose hands an execution or other process may be, in relation thereto, shall suspend all further proceedings thereon; and the said justice shall return all the papers, and a transcript of the judgment he had given, to the clerk of said court, with a certificate, under his hand, that the said transcript and papers contain a full and perfect statement of all the proceedings before him.

"Sec. 63. One or more plaintiffs or defendants, in causes decided by justices of the peace, shall be allowed the right of appeal to the

circuit court without the consent of the others; and when one of several appeals, the supersedeas shall issue, directing a suspension of all further proceedings upon the judgment, as though all had joined in the appeal. "Sec. 64. When an appeal bond shall be executed by one of several parties from the judgment of a justice of the peace, the clerk of the circuit court shall issue a summons against the other parties, notifying them of the appeal in the said circuit court, and requiring them to appear and abide by and perform the judgment of the court in the premises; which summons shall be served as other process issued in appeal cases; and in case such summons shall be returned, that parties are not found, the cause shall at the first term of the court be continued; but at the second term shall be tried; and the court shall have power to give the same judgment in appeals taken under the provisions of this chapter as though all the parties to the judgment had joined in the appeal.

"Sec. 65. If, upon the trial of any appeal, the bond required to be given shall be adjudged informal, or otherwise insufficient, the party who shall have executed such bond shall in no wise be prejudiced by reason of such informality or insufficiency; provided, he will in a reasonable time, to be fixed by the court, execute and file a good and sufficient bond.

"Sec. 66. Upon the trial of all appeals before the circuit court, no exception shall be taken to the form or service of the summons issued by the justice of the peace, nor to any proceedings before him; but the court shall hear and determine the same in a summary way, according to the justice of the case, without pleading in writing.

"Sec. 67. If it shall appear, however, that the justice had no jurisdiction of the subject-matter of the suit, the same shall be dismissed at the cost of the plaintiff.

"Sec. 68. The plaintiff in the justice's court shall be plaintiff in the circuit court, on the trial of the appeal, and the rights of the parties shall be the same as in original actions.

"Sec. 69. Parties on the trials of appeals in the circuit court shall have the benefit of the provisions of the thirty-ninth, fortieth and fortyfirst sections of this chapter, as fully as in trials before justices of the

peace.

"Sec. 70. The security in any appeal bond shall be liable thereon for the amount of the original judgment, and all costs thereon, in case the said appeal be dismissed, and shall be liable also on said bond for whatever judgment may be rendered by the circuit court, in case the original judgment be affirmed by said circuit court, either in whole or in part."

II. OF CERTIORARI.1

A writ of certiorari is a writ issuing from a superior court, directed to one of inferior jurisdiction, commanding the latter to certify and return to the former, the record in the particular case.

Rev. Stat. 325, Sec. 72. "The judges of the circuit and probate courts shall have power within their respective jurisdictions, and it shall be their duty, upon application made as hereinafter mentioned, to grant writs of certiorari, to remove causes from before justices of the peace, into the circuit court, who shall indorse an order for the same, upon the petition of the party praying such writ; and on producing the same to the clerk of the circuit court, he shall issue said writ in conformity to the provisions of this chapter.

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Sec. 73. No writ of certiorari shall issue after the expiration of six months from the time of the rendition of judgment.

"Sec. 74. Before any writ of certiorari shall issue, the party applying therefor shall give bond, with security, in the same manner and with the same conditions, and when the same shall be defective, may be perfected as bonds, in cases of appeals from justices of the peace. The writ of certiorari shall require the justice to certify to the circuit court a transcript of the judgment and other proceedings had before him; and in no case shall the justice be required to send up a minute or memorandum of the evidence given before him; but upon the return of said writ, such proceedings shall be had thereon, as in cases of appeals. Sec. 75. The petition on application for writs of certiorari shall set forth, and show upon the oath of the applicant, that the judgment before the justice of the peace was not the result of negligence in the party praying such writ; that the judgment, in his opinion, is unjust and erroneous, setting forth wherein the injustice and error consists, and that it was not in the power of the party to take and appeal in the ordinary way, setting forth the particular circumstances which prevented him from so doing.

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"Sec. 76. The justice of the peace, constable and other persons concerned, shall, as soon as the writ of certiorari shall be served, stay all further proceedings in that case, until the further order of the circuit court.

"Sec. 77. If the judgment of the justice shall be reversed by the circuit court, in whole or in part, such reversal shall not vitiate any sale on execution, which shall have been effected before the issuing of the

(1) Certiorari, to be certified of; to be informed of; 1 Bouv. L. D. 215.

writ of certiorari; but in such cases, the circuit court shall have power to assess the damages which shall have accrued in consequence of such sale, and to cause judgment to be entered or a deduction made therefor; and in all cases of a partial reversal of judgment, either in case of appeals or certiorari, the court shall have power to apportion the costs between the parties according to justice."

A party who has not been guilty of negligence by omitting to take an appeal from the judgment of a justice of the peace in proper time, is entitled to take the cause to the circuit court by certiorari.1

The petition must set forth that the judgment complained of was not the result of negligence on the part of the petitioner, and that, in his opinion, it is unjust; setting forth wherein the injustice consists. It must also allege that it was not in the power of the party to take an appeal in the ordinary way, and set forth particularly the circumstances that prevented him from so doing.2

The court will take into consideration the condition of a party where he shows in his petition circumstances that prevented his using dilligence: as, that he was a physician, and was necessarily attending upon patients dangerouly ill, &c. &c.; or, that he was sick at the time the judgment was rendered against him, and unable to attend court.

Where a suit is taken up by certiorari, the trial is to be de novo, as in cases of appeal, and no formal return is required to the writ; and if the writ is served and returned, and its mandate is not complied with, an attachment may be issued against the justice.*

The dismissal of an appeal, or certiorari, is equivalent to an affirmance of the judgment, so as to entitle the party to claim a forfeiture of the bond, and have his action therefor.

The condition of a certiorari bond, should be as broad as the statute; but a general motion to dismiss, will not reach a defect in the bond: the objection should be specially taken.5

It is held that the circuit courts have power to award a writ of certiorari to all inferior tribunals, wherever it is shown that they have exceeded the limits of their jurisdiction, or in cases where they have proceeded illegally, and no appeal is allowed, and no other mode of reviewing their proceedings is directly provided."

(1) 13 III. 144.

(3) 13 Ill. 144; 14 Id. 35; 2 Gil. 65. (5) 14 Ill. 35.

(2) 1 Scam, 264, 566; 4 Gil. 363; 14 Ill. 35. (4) 12 Ill. 143.

(6) 13 III. 660; 14 111. 381.

CHAPTER XIII.

OF EXECUTION AND GARNISHMENT.

I. OF THE EXECUTION, ITS OFFICE AND NATURE.
II. OF EXECUTIONS AGAINST THE GOODS AND CHATTELS.
III. OF EXECUTIONS AGAINST THE BODY.

IV. OF GARNISHMENT.

I. OF THE EXECUTION, ITS OFFICE AND NATURE.

An execution is a writ which authorizes the officer to whom it is directed, to carry into effect the final judgment of a court or other jurisdiction. A distinction is made between an execution which is used to make the money due on a judgment out of the property of the defendant, and which is called a final execution; and one which tends to an end, but is not absolutely final, as a capias ad satisfaciendum,1 by virtue of which the body of the defendant is taken, to the intent that the plaintiff shall be satisfied his debt, &c., the imprisonment not being absolute, but until he shall satisfy the plaintiff's debt. Hence, the former is properly styled an execution against the goods and chattels, and the latter an execution against the body.

1. OF EXECUTIONS AGAINST THE GOODS AND CHATTELS.

No execution can be issued by a justice of the peace, until after the expiration of twenty days from the date of the judgment on which such execution is issued, unless the party applying for the same, or the agent of such party, shall make oath that he believes that the debt of such party will be lost, unless execution be issued forthwith. If such oath

(1) Commonly called a "ca. ɛa.," being an abbreviation of the term. (2) See 1 Bouv. L. D., title "Execution."