| Ill. App. Ct. | Nov 23, 1889
This was an action of debt brought upon the bond of appellant, Cash, who was village constable of the village of Oakland. The declaration alleged that Cash, as such village constable, arrested appellee Gwinn for violating one of the village ordinances, and that, instead of taking him to the place of trial, unnecessarily, brutally and wilfully assaulted and beat him.
The pleas were, first, non, est factum; second, denying the assault; third, alleges that at the time when, etc., the said William F. Gwinn was found intoxicated in the public square of the village of Oakland, disturbing the peace of the public and the peace and quiet of the neighborhood by loud and unusual noises and tumultuous and offensive carriage, and the defendant Cash, who then and there had view of said offense, then gently laid hands on said Gwinn and took him into custody, using only necessary force to take and detain him, and doing no unnecessary damage, and because it was late at night and an unreasonable hour to carry the said Gwinn before a magistrate, said Cash necessarily imprisoned him in the village prison for a time, using only necessary force and doing no unnecessary damage, which are the same trespasses complained of. Appellee recovered a verdict and judgment for §275.
The first objection of appellant is that the declaration does not state a cause of action, entitling appellee to recover from the sureties upon the official bond of appellant, for the reason, as stated by counsel, that "the assault is charged to have been .unnecessary and wilful, and not in the execution of process.”
\ We do not think the objection is well taken because appellant was performing an official act in making the arrest, and if in so doing he acts illegally and wrongfully his sureties are liable.X Besides, the third plea expressly sets up the arrest and that no more force was used than necessary, and this seemed to have been the real question at issue before the jury. This being a question of fact, we are inclined to think the jury were warranted by the evidence in finding that appellant did unnecessarily, brutally and wilfully assault and beat appellee.
The judgment of the Circuit Court will be affirmed.
Judgment affirmed.