, 1862-12-06
Opinion OF Judge manneIfre as to the
Terms and Conditions OF Appeal In
mAAuRmU8 Cases.

mANuQmuB Cases.
We print entire the learned and able opfu-
lon OF Judge MRnnierre, of the Circuit Court,
in relation to the terms and conditions of up |
PEAL in Mandsmus cases, delivered in the case
Of the People ex rel. Michael Egaus vs. Leon
ard Lampeitz, known as the 'South town |
contested election case.'' The questions in. |
Volyed in the opinion have. heretofore been |
considered open, and it will be gratifying to |
the members ct the bar to knew that |
so far as the State Courts are concerned, they |
are now authoritiFely settled. The discussion |
ct the various points, ard the conclusions NJ |
rived at, beira5s the high legal ability OF the I
learned Judge, anda whole, are exhaustive |
Of the subject.
Tic opinion was delivered orally, aud WAS
reported by John Lyle King, one OF the coun-
fel IN the cast, a1d subsequently revised by
Judge Manneirre.
There are certain facts admitted on the record,
MeIt already given, namely: that the relafor Is
entitled to hare the specific duty imposed on tho
defendant. by law, as Town clerk, performed. An
Of the defendant. That right is given b. statute
power which :ie Court has over Tie snbjcct Is il
pfesctlblrg the terms upon which the appeal shall
be granted. Appeals may be taken from the decis-
lon Of the said Courts upon srch terms The entd
Circuit Courts sh:l prescribe" This is the STAT
ute, AID think, in. arriving at the intention OF
this set, reference should be had 10 the act con
cerCing quo ws1rauto. By that act it IL provided
the Circuit Court upon such terms as ths said Cir
cult Court shall prescribe, or writs Of error msy
b. prosecuted whenever The Supreme Court, or
presented with copy Of the record. ehall certify
that there is reasonable cause for bringing such
writ. The eaid Supreme Court or Judge In VACATION
may impose such terms and conditions upon the
party wlehing ro prosecute such writ Of error 81
10 The said Court or jndge NAY seem reasonable
and just" These two acts are identical in phrase
f~ 70
with the exception Of an unImpoTtant word OF
two. Both CotcGrn writ which is pecu1l8r-a
pre1ogatlre wrlt-a writ issuing at the suit Of the
people-and they are alike In their nature and pol
Icy. It was claimed In The argument submitted
BY defendant that the ect vests discretion in the
tie Jnd9s II The M terms and conditions nd
the thing directed to be done by the Judgment ia
ministerial act-that IN, count the votes ehown
tifcate-1he terms and conditions OF the appeal
bend cught to have reference to the nature and
purpolt ef the judgment; that, az the Court may
attachment. it would be illogical and al abuse Of
discretion lor the Court to REQUIRE the defendant
IL ToTp the saS eondto
Of The appeal; that that condition cannot be as
Simulated to the nature Of the act required by the
Court has power to require the defendant to Sc
cure, by his bond. what it would have had no
power to require him to do by its Judgment in the
cnEe-
This argument would seem TO be sound and M
ansWe1ahle. AID, if defective, 1t is in assuming
that the statnte requires bond to be given as q
| condition Of the appeal. and thnt Its condition
mnEt b. exactly aeElmiieted to the Judgment. But
the etatute does not in tesm= require bond to be
The words ere: '..AEpeala ma3 b. taken from the
deetsion Of the eaid Court upoa such terms as the
eaid Circuit Court shall prcscribe.''
nay asa N Ing g h q thls satate #
| 81, "Appeae from the Circuit Court to the Su-
pEeme Court shall be allowed In all cases. 1hen
thaii amount, excusiye Of coets,, to the sum Of
twt 2J doi'ats, or reats 10 franchise freehoid,
os7d.d such sppsals be prayed for at the ti1as Of
| rendering The Judgment or decree. and provided
tie party. give bond. &c, which bond shall be in
. reasonable sum fnf1c1cnt to Cover the amount Of
The appealed from and a!i colts and con-
interest sid tlauagcs,r' &c. At common law tacre
ie appe al from, nor would writ Of error lie
Judgment in msucaMus. An appeal or WITH Of er-
ltE n this class Of cases IS given y statute, both
in England and III this country. There is. there.
fore, clear difference In the acquisitions OF the
tn1e ypg Tie fg sd thos 81 apgsa II
be done y he party seeking ths appeal;
have certain psnel,y and be conditioned to pay
the judgment, hile, In the othar cases, he il en-
| tit1s 10 hia appeal only upon such terms Us the
error ''upon such rcrina and conditions asa Judge
| of the Snr1eI1e Court may Judge to be reasonable.
/ havc 70 dunbt that the power aud diacrs stion
: vtt:ed il The Ci1culL Courts may be gathered az
web froa The duty imposed. upon the Supreme
Judges ~ Granting writ Of crrors az from the
La1Ire Of rhe suhjcct ITSELF bCcAuse the granting
Of an appeal one:ates Is superaedeas. ard n0
further proce ecines cRa be hGd under the judi,
n:ent. That is The ELECT of q wtlt OF srte: when
| allowed 1lG u:aGe t1Ip1fsedeas. A5 the effs-t q
En- Gppea; il d:pt7cal With that of H1is OF error
II would set II thst tisse can he doubt 1a4t til.
Leeitsaure intended To vest in The Ci1cuit Courts
I tie s.ue 6l:c1ction. and to require them il it.
exeicsse to impose tho Lcrsla aud condition:
e. would or proper ard right in the granting Of {
ma, be faksn must be- such 7easonabIe terms d
| the Circuit Juage may think proper tc imposl
under the eireu1as; Of The Case having ref-
arc Consequences to result ;her=from. ~ ssat
nice u1Lst receive ceesanabie construction. Il
is TITO tEty " the Court. then, in fixing thoa
sefer&.ct 10 lie cen5euGeIte5 flowing Iroza til
j:.denert. What are ths consequences 10 result
fen 'hs Is, gagmnt @ ir9% an spa! tn tes
II law-whuther igno1an1ly OF perversei,
ssea = ~ ,bs 'a; naxmess 1T f e tRs Saysa
ze14dvI. il this cast. Hh2t il the eject Of hi
rtftEa] fe co tie act: I: IL to dc rive ths relate
that pnteT all circumstances as against the defen
al IT.. il L., s1,sled e tsa5 ee1ii1leets and 70 tt
p.sl would nc 10 pnstpo,,= lhe relator from an IN
l. ms d'a:s' 5nvss'nYas # this eflicc sna to u
T ,p pn 70 q rs n5ce M H. ahe s fo
\ lSns, ard that tic. efice Of ,Coueco. Wit
"A sly. expires eomt1i1nc in February, hecan
fee ard return the Collector wa rant M tn
Is tina lIiE spl'attn; tee-;toT:, thas ;.ss a2pc:
# 1asen will post rome the rt1lzf RS right o es
| u)nM 1he flutes Of Eia Gilcc to p;int Of tin
bssotd TIC period d.HlrE which he fs required
% c'fufm its duties Tic return shoyEs ilaL &
j. persen to whom the CeF:iicletS-f election IT
o ss:e1:, las taken th= oath Of slcs iled his ban
::1d il a5out to sIEc up1n tho duties Of the ois
There IL notliil. LIFT TO conjecture upon tt
ppiht. Th;e patty thus cia11l1ug to be eleczcd,
! ffEE fH,. 30 I
ard hfIehY secure To himself the eypo9nments
cfi2e- TIL: eia7ute dcss nos tsquir: ihas p=rs.
Te tor5 with the cauEitieu Lha. IL. Eh1l reta1n u
g. snantan ents which he msy receive, IL. Jela:
Or u an5 ho1y else who may be entitled to 1hs
CtnstGI entity, there is no security to tle re Ut
u il hs IS entitled to the Office to7 restitution
y thcse &mulamGEts, ii the party claiming to
Ill elscs, j: suffered entrr npun the duties of
er Office. That is the position ct This case as sho'
lis ~ Tie 1ecure, and as the 1acss are admitted to
Lie allsaFeHt, the: efore, that the direct ind i
ae nsdiate effect Ut the defsudant's appeal would
to place this pv1so1 claiming 70 bG elected, il
the right to collect and receive It's emo,umel
lg This GINS queIce is not remote. and conseQu
sil,.ject only to the remote contingency, tAas
.c,:t may he s:u=tet fun the office o. q4o 7rs
ES 7un'e. BIT it 1s sad that the Judgment entered
~ to the Office Of Town Collector, nor entitlo him
~. no possession Of the cGsce and that that q1esti
pe can Gniy be settled, 60 as to eltitle hi en-
siitnted hy him as rsls or aganst the person c]a
i1g to be the present incumbent OF the Off
ID If that be q proper view Of this question,
irc!ined to 1hiIk the objection should he cons
49, cred aB well taken, that the interval is too 10
aFy d1he consequence ton remote, and, thareft
se- defendant cannot reasonably be required to z
bcnG to ecure the reta:or in the profits Of an ot
10 which the rolator ,sonld not ue entitled, III
-; he had settled his title tu it by quo 7caT7Qato
Ia Ia that the laW Certain cascs have been
M ana fe1ted 10 as eiye Vi that point There ia
W. c5pIefet tc1. in two cases. Judge Caton, il
case Of the People ex rel. Akin rs. Matteson
IL. Il. 1T. says: = Is was suggested a. thr
- y that man6anus wilt not liz to admit
teu @ rc!ato1s &n etiice which IL already e:i w
oo ctEL'zc tEt 1n!c as u, questioned that ttlinar
at-ltast, Inc Es:urt viii Eel by manda1nls Eura
exc officer and adui: another in Ills place. I
We dnl ct propose 10 do. We haye nothing tt
With tbos: parties VITO are Lot new btf;rc
This dtcisit1i GtCs lot I'll. c. theff rights TO Il
mt tt1tcs cEc way CT the ttncr." &c. Again, T.
enrc il lra1e to ease in Is III. Rpt where
expression cceurs .'Th1s Wit Is rot the pr,
mote by which to try. and finally determine
cid 1iElt e citt er Ealry to the oi7e,'4 &c. Ali
-. tLsse q; d;tl-1ulsS amount to, in ny Judgment
rta that the judgment in r,aGGa11us does
ing conclude tie parties. They may still try tho
- or Yao srGr7anto- Juagr Cation. IN the first c!
" observes that if tbs party is entitled to
ctliec h1 may show 1t by quo 7raTranto, and
H.. whntevtr tho decision may be in :msndamut
loA canEot effect the CONTEXT for the office now SO
ILL., en- IN the !1ibunals." Nevertheless, the CoNr
that csee did aajudget hat the relator was entil