It is stipulated that the recovery in the suit on the bond was had upon the one breach assigned, the nonpayment of the judgment for damages, and did not include the costs. The statute requires an appeal bond to be conditioned for the prosecution of the appeal, for the payment of the judgment, interests, damages and costs, in case the judgment is affirmed. The non-payment of either would then be a breach of the bond for which an action would lie upon it. The payment of the judgment, interests, and damages would not discharge the bond, if the costs remained unpaid.
Under the authority of the-cases of McDole v. McDole, 106 Ill. 452, and People v. Harmon, 15 Bradwell, 190, there can be no ground for supposing that the recovery upon the bond for the breach alleged would be a bar to a suggestion of a further breach tiled under the statute allowing the proceeding. Heither was the suit commenced before the justice, and then pending on appeal in the county court, a matter to be relied upon as a bar to this proceeding. There was no final judgment conclusive upon the parties. At most, if available in any way, it was matter in abatement only and should have been so pleaded. Besides the penalty of the bond had already been passed into a judgment for the debt, and under the statute stood as further security for other breaches. In our opinion, however, the county judge had no power to try the cause and render judgment upon the breach alleged in vacation. The breach newly assigned in effect becomes a part of the original declaration, upon which the same issue can be formed respecting the cause of action therein assigned as could have been done if it had been a part of the declaration, except that the defendant is concluded by the former judgment from attacking the validity of the bond or the force and effect of the judgment forfeiting it. Ho liability is admitted upion the breach alleged. He can plead "any defense to the subject-matter of the new assignment that he could have done originally if it had been a part of the declaration. And herein the proceeding differs from a writ of inquiry issued as at common law upon default entered. By the default the defendant conclusively admits his indebtedness upon the cause alleged to some amount, and the writ of inquiry is issued to determine the sum for which judgment should be entered.
Final judgment for the qdaintiff in contemplation of law has already been entered, but as the court is not advised of the exact amount of damages sustained, the writ of inquiry goes to ascertain it. All the defendant can do upon such inquiry is to reduce the amount of recovery. He can not deny the cause of action nor introduce evidence to defeat it. As we understand the statute and the practice obtaining in proceedings like the present, these strict rules are not applied to the defendant. As has been said he may plead to and deny any liability arising out of the facts alleged in the new assignment, except as stated. He may show that he was never liable or that the cause of action has been satisfied. Even if he should allow a default to be entered against him in the cause for the breaches originally assigned, he would not be precluded from defending against breaches subsequently suggested. As to the former lie may have no defense but may have to the latter. A defendant surely can admit the right of recovery upon some of the breaches assigned and deny it upon others, and no reason is perceived why he can not do this, whether the breaches are suggested in the original declaration or subsequently suggested under the statute. Judges of courts can enter no orders in vacation except such as may be expressly authorized by the statute (Blair v. Reading, 96 Ill. 600), and we fail to find any authority therein for the county judge to take jurisdiction of the cause and determine it in vacation, as was done in this case; the judgment for this cause must be reversed and the cause remanded.
Judgment reversed.