Shaffer v. Currier. term, 1852, of the Kane Circuit Court. It was not executed according to the agreement, as stated by either of the parties; nor did the absence of the judge who tried the cause, which seems only to have been for part of the term, put it out of the party's power to comply with the agreement. Had he attended during the first week of the term, as his adversary insists was the agreement, when the facts were freshest in the minds of both the judge and the parties, or had his counsel even awaited the return of the judge, it is not improbable that the bill of exceptions might have been settled during that term. Not having done so, and the absence of the judge during part of the term, being an insufficient reason for failing to comply with the agreement, he must abide the consequences of his own neglect, and the motion to strike the bill of exceptions from the record will be sustained. Motion allowed. SOLOMON SHAFFER, Plaintiff in Error, v. DANIEL CURRIER, ERROR TO OGLE. A party who commences suit before a justice of the peace, may dismiss his suit after appeal in the Circuit Court, even though the defendant obtained a judgment in his favor against the plaintiff; but he must dismiss the suit at his own costs. The judgment before the justice was opened by the appeal, and, as a matter of course, the judgment fell with the dismissal of the case. DANIEL CURRIER sued Shaffer before a justice of the peace. On the trial before the justice, Shaffer recovered a judgment against the plaintiff Currier, for the sum of thirty dollars. Currier took an appeal from the decision of the justice, to the Circuit Court of Ogle county. At a special term of the Ogle Circuit Court, held in January, 1852, WILKINSON, Judge, presiding, the cause was tried before a jury; the jury found for the defendant Shaffer, and assessed his damages at the sum of five cents. Thereupon Currier moved for a new trial, which was allowed by the court. Afterwards 1 Shaffer v. Currier. Currier moved that the judgment obtained by Shaffer before the justice be reversed, and that the cause pending in the Circuit Court be dismissed; which motion was sustained, and the following judgment was rendered in the premises. "It is ordered by the court, that the cause be dismissed at the costs of the said Solomon Shaffer; and that the judgment in the court below be reversed at the costs of the said Shaffer. And that the said Daniel Currier have and recover of the said Solomon Shaffer his costs and charges in this behalf expended, and that he have execution therefor. To this decision Shaffer excepted, and brought the cause to this court by writ of error. The errors assigned are, the rendering a judgment for costs against Shaffer, and the reversing of the judgment rendered by the justice of the peace. E. S. LELAND and VAN U. HIGGINS, for plaintiff in error. J. MARSH, for defendant in error. TREAT, C. J. Currier, to the use of Marshall, brought an action against Shaffer before a justice of the peace, which resulted in a judgment in favor of the latter for $30. Currier prosecuted an appeal to the Circuit Court, where the cause was tried, and a verdict returned in favor of Shaffer for five cents. A new trial was granted on his application. The Court then sustained a motion made by Currier, to dismiss the suit at the costs of Shaffer. The judgment for costs against Shaffer was clearly erroneous. Currier being the plaintiff, had an undoubted right to dismiss the suit, but it should have been done at his costs. If a plaintiff voluntarily abandons his case, he must be adjudged to pay the costs. He is not entitled to a judgment for costs against the defendant, until he has successfully prosecuted the action to final judgment against him. The judgment before the justice was opened by the appeal, and, as a matter of course, fell with the dismissal of the case. The judgment for costs must be reversed, and the cause be remanded to the Circuit Court, with directions to enter a judgment against Currier for the costs of the case. Judgment reversed. Plumleigh v. Cook. THOMAS PLUMLEIGH, Appellant, v. ISAAC COOK, Appellee. APPEAL FROM COOK. When in a declaration in an action against a sheriff for an escape, there is a claim for $140 damages, and $191.66 costs; there is no variance, though the evidence shows that the clerk, in his fee-bill, issued with the execution, added twelve and a half cents for the sheriff's return. Where the foundation of an action is not a record or an instrument in writing, a variance is not material, unless the discrepancy is so great as to afford a strong probability, that it cannot be the record or instrument described. In this State, an action of debt will lie against a sheriff for an escape on a writ of All statutes in aid of the common law, passed prior to 4 James 1, (except the 2d sect. THIS was an action of debt for the escape of one Alexander Dawson from the custody of the defendant Cook, while being sheriff of the county of Cook, and was tried before and sub-' mitted to H. T. DICKEY, Judge, at the May term, 1851, of the Cook Circuit Court, without the intervention of a jury. The first count of the declaration set forth, that at the May term of the Cook County Court, 1848, the plaintiff (Plumleigh) recovered a judgment against one Alexander Dawson for $140 damages and $191.66 costs, and that afterwards, and on the 18th day of April, 1849, a ca. sa. was issued, and the said Alexander Dawson was arrested thereon on the 10th day of May, 1849, by the defendant Cook, and committed to jail, and was afterwards permitted to go at large by said defendant, Cook, while acting as sheriff of Cook county. The second count averred a different time of escape. There were also three other counts alleging different escapes. The defendant pleaded the general issue, and special pleas as to the several counts of the declaration. The plaintiff, in the court below, introduced Walter Kimball, the clerk of the court in which the judgment against Dawson was recovered, as a witness to sustain the issue on his part. This witness established the variance discussed in the opinion of the court. 13 669 41a 272 Plumleigh v. Cook. The judgment of the Cook County Court was for the defendant. The plaintiff in the Circuit Court brought the cause to this court by appeal, assigning for error, that there was no material variance between the judgment introduced in evidence, and the declaration, and that the court below erred in excluding the same. J. N. ARNOLD, for appellant. JUDD and WILSON, for appellees. TREAT, C. J. The declaration described a judgment for $140 damages, and $191.66 costs. On the trial, the plaintiff offered in evidence the record of a judgment for $140 damages, and costs of suit to be taxed; also the fee-book in which the costs were taxed at $191.66. At the foot of the fee-bill was this entry; "Sheriff Cook return ex. 124;" but the amount was not carried to the right-hand side of the page, as was the case with the other items of the bill. The court rejected the evidence, because of a variance between it and the declaration. There was no variance in point of fact. The entry in question formed no part of the fee-bill. It was but a memorandum of the clerk, to be extended and included in the fee-bill when the execution should be returned by the sheriff. But if the item could be considered as embraced in the taxation of costs, the evidence was improperly excluded. It is laid down in Leidig v. Rawson, 1 Scamm. 272, and Hull v. Blaisdell, Id. 332, that where an instrument of writing, or a record is not the foundation of the action, a variance is not material, unless the discrepancy is so great as to afford a strong probability that it cannot be the instrument or record described. This rule is decisive of the question. The escape was the foundation of the action, the judgment being but inducement. The record produced was evidently the one described in the declaration, and the defendant could not have been surprised by its admission. It is insisted that an action of debt will not lie against a sheriff, for an escape on a writ of capias ad satisfaciendum. At common law the only remedy was by action on the case. But Downey v. Smith. the statutes of Westminster 2, ch. 11, 13 Ed. 1, and 1 Rich. 2, The judgment is reversed and the cause remanded. ALEXANDER DOWNEY, Appellant, v. DANIEL F. SMITH, Appellee. APPEAL FROM JO DAVIESS. The terms of a court fixed by law, are nevertheless terms, whether there is any judge to hold the court or not. A declaration must be filed ten days before the second term of the court, or the defendant will be entitled to a judgment, as in case of a nonsuit; the omission to hold the court for any cause does not change this right. THIS suit was commenced in August, A. D. 1850, by a capias, on which the defendant was arrested, and released from custody by giving bail; at the October term no declaration was filed, and the cause was continued; no courts were actually held until the next August thereafter. A declaration was filed on the 31st day of July, 1851. At the next term after the filing of the decla 13 671 37a 315 13 671 163 545 |