, 1862-12-06

directly to the conclusion that the direct and i'm
mediate effect Of the appea! wonld be to deprive |
10 enable third pcrzon to take posse.sion Of tic
Office and receive Its emoluments without any se-
enr1ty to the Ielator Tor repayment to him In |
whether it would b reasonable term and cou- |
dition Of granting this appeal to require the de-
fsndant IT. t. g1ye bond for the purpsss Of iudemnt
may result to him by reason Of tn, premtees.
Wtn]d euch condition Of the appeal be fnconsis-
tent with The policy ct The law, and an anusB Of
CT tome Light from the esse In the Is Illinois, A.
ready citea and also By reference to the act CON
es,n1pg &c s9afTaneo In that proceeding The
upen which appeal le to be granted in mandamus
are employed in the act CONCERNING Quo a1arfaato,
w: on anch terms as the Court. ID the exercise
writ OF gao scarTanto were pending here. and 1t
were shown by the return that the defendant was
nients, would it, in tuch case. be regarded As an
unreasonable term and condition OF appeal to re-
for the emoluents he might receive before the Re-
1ator could obtain possession Of the office? Nor
could such terms be regarded as foreign to the
subject matter Of the litigation. nor amount to An
abuse OF discretion on the part of the Court.
What Is the policy Of these statutes In vesting the
ing appeals Ct Wrtts ot error, and require tha
rs1ty 70 conform to 8uch terms and conditions as
lhe Judge may enppose to be reasonable and justs
n MT 1A meant BY Tl4t1 Does It. lOt 1nEluQt &c.
Curity to the party? The Legislature could not
prescribe terms upon which an appeal ahould be
granted in caees Of this sort because the cases are
Vested led WITH % reasonabe ON discretion IL hsing those
terms. In exercising this discretion. the court
must have reference to the circumsta1c2s Of thc
VIEW Il he rights Of the 1elator md for his pro
tection sgainet any p1sjudicjal consequences
which may result to him from the dslay sought.
In The case Of judgments at Inv. the party appeal
Ing TEnu}rHH fy1V6 bGTi1 for the f,f
the money, without regard to the fact Of being Sol
vent er insolrent. he may be wealthy, yet he is
required to give security. It lB not for me- he-e,
to inquire and as certain whether The ereun claim
frg this office ls solvent and eau respond from his
private estate to the re]ator for the emolumeuts
aconGition would be reasonable. have reflected
| much rpon it since the question was first pro-
pounded was FIRST inclined TO the view taken
BY the counsel for the defendant; thought his az
| gument sound one, but more mature consldera.
Lion and reelection satisfied me that 1t proceeded
upon false hypothesis ard lead me to the conclu-
sioae already Expressed Il seems to me that ona
pn1poee, If not the veIy purpose, for which this
| discretion was vested in The Court waa that it
might be left free to prescribe auch term, and con,
dftlGns as ehould be deemed reasonable and proper
under the circumstances and e1igencieB Of each
case. The statute has prescribed none. To re.
auis1ts t aefsndant to ge bend hy which the
cannot be considered an unreasonable exercise ol
discse,ion on the part of tho ourt especially In
should be pnrg@ Of the Illegal votes said to have
been csst for the re1ator tbs rea.or would still be
elected. As already Observed the direct effect o1
the appeal In this would be to exclude the re-
lator from the possession Of the office aud deprive
Kim Of its e11olumenta, and any other conclusion
tLan the one have reached would deprive him o.
all eecu1it1 for restitution.
But IS this proceeding does rot conclude B1ake
from asserting hstitle TO the Office, notwithstand
Ing the Judgment herein, though for the purpose:
OF this it has been that all tire facts
are correctly set forth In the defendants return il
It 1s proper that come reference should oe had ts
that contingency in fixing the condition Of tht
bond which The defendanris requiredto give. The
bond required will therefore be conditioned fu
tie payment to the relatoc Of a sum of none,
equal to the commissions and ernolumcnts deriva
bic from the Gfice during the current year In TIL
event that the judgment Of this Court ahall be ai
fIDed and th6J the re13tor'e title to the of1lc
shall not be overthrown in any proceeding instiEu
| ted py quo WaTranto, or othc:Wise. for that p1r
pose. -.....
Gogdy snd nay: " F1l3eE s . for fhe t. relato1
the defendant.