People ex rel. Hamilton v. Harris

Burnett, J., delivered the opinion of the Court—Terry, C. J., and Field, J., concurring. Mandamus from the County Court to compel the defendant, a [572]justice of the peace, to transmit the papers and the copy of proceedings, in the case of Rabe v. Hamilton and others.

It appears that the bond was filed with the justice on the 20th May, 1857, in the sum of two thousand dollars, and the proper affidavit of the two sureties was made before the justice. The bond was not marked “approved” by the justice, but was received by him without objection at the time. On the next day the justice endorsed upon the bond “ not approved.”

We think the justice should have rejected the bond promptly. Under the circumstances, we must hold that the bond was approved.

The next point made by the defendant is, that his costs were not tendered as required by law. The affidavit of Hamilton states that he “was and is ready to pay the justice’s fees on appeal, so soon as the papers were ready to transmit to the County Court, and offered to do so within the ten days allowed by law.”

The 627th section of the Code requires the justices’ fees to be paid before the justice is required to send up the papers. We think this provision applies to appeals from Justices’ Courts, in cases of forcible entry and detainer. The sixteenth section of the act (Wood’s Digest, 469,) provides that either party “ may appeal within ten days, as in other cases tried before justices of the peace;” and the seventeenth section repeals all laws requiring a statement of the case, or evidence, or exceptions to be taken before a justice, in these cases of forcible entry and detainer. It would have been entirely unnecessary to put in this repealing provision, if the provisions of the Practice Act would not otherwise apply to such cases.

The true construction of this act, as to the mode of proceeding, would seem to be this: The case must be governed by the

provisions of the act, so far as they go, and as to other matters not embraced by the words of the act, the general rules governing proceedings in these Courts will apply.

An offer to pay, when the papers are made out, is not sufficient to constitute a tender of the fees. The appellant must tender to the justice the amount of his fees, unconditionally. If the justice refuses to state the exact amount, then the appellant should offer to deposit with him such amount as he may demand, as surety for the fees, when ascertained. If an excessive deposit be demanded, the appellant should tender the amount he may judge sufficient; but he must be careful to tender an amount equal to the fees; otherwise his tender will not be good. The justice is not bound first to make out the papers, and then rely upon his fees being afterwards paid. He is not bound to credit the appellant.