| Ill. | Apr 15, 1864
delivered the opinion of the Court:
This was an action of debt on an ordinary replevin bond brought by the sheriff of Kendall county for the use of Ward against the obligors. The court gave judgment on the defendants’ demurrer to the plaintiff’s declaration for the amount of the penalty of the bond, and proceeded to assess the damages, whereupon the defendant objected to an assessment of damages without a jury. The court overruled the objection, to which' the defendant excepted, and has brought the case here and assigns this as one of the principal errors.
By section 15 of the practice act, it is provided, in all cases where interlocutory judgment shall be given in any action brought upon a penal bond or upon any instrument of writing for the payment of money only, and the damages rest in computation, the court may refer it to the clerk to assess and report the damages, and may enter final judgment therefor without a writ of inquiry and without impanneling a jury for that purpose; and in all other actions where judgment shall go by default, the plaintiff may have his damages assessed by the jury in court. Scates’ Comp. 261, 262.
This was the general law up to February 14, 1863, on which day the legislature passed this law: In all suits in the courts of record of this State upon default, where a writ of inquiry has heretofore been required to assess the damages, it shall be lawful for the court to hear the evidence and assess the damages without a jury for that purpose; provided that, if either party shall claim a jury, the damages shall be assessed as heretofore. Sess. Laws of 1863, p. 47.
But it will be observed that in 1857, a special law applicable to the thirteenth judicial circuit was passed, authorizing the court without a jury, to assess damages in all cases of default. Scates’ Comp. 637; and by an act passed February 18, 1859, it was provided that the practice in the Circuit Court of Kendall county, should be the same in all respects as that in the thirteenth judicial circuit. Session Laws, 1859, page 58. This is a mere matter of practice, none will deny, and being so, the assessment of damages could be made by the court without a jury. The idea that a party has a constitutional right to have a trial by jury is not controverted. Here was no trial in any sense of that term. The defendant has declined putting his case on trial by abiding the judgment on the demurrer. The inquiry afterwards involved no consideration of any right of the defendant. His position was fixed by the judgment on the demurrer, no issue of fact was presented. The law of 1859 conferred on the Circuit Court of Kendall county full authority to assess the damages even against the defendant’s objections, and there was no error in that respect.
Nor do we perceive any error in the whole record. The declaration was in the usual form on a penal bond, and there was no variance between it and the bond. It is full of apt averments in such a case, and the breach is well assigned, that the obligor did not prosecute his suit with effect, but that the suit was dismissed for his failure to file a declaration at the first or second term after the writ of replevin was sued out, and that on the dismissal, the court adjudged that Ward should have a return of the property without delay, concluding with an averment that Hopkins did not make return of the property, but wholly neglected and refused to do so.
These facts were admitted by the demurrer, and the only •question which remained was the value of the property, which the court found without a jury, and properly so, according to the statute.
As to the question of interest on the value of the property, the defendant not having returned the property, interest was recoverable. Rowley v. Gibbs, 14 Johns. 485.
The judgment must be affirmed.
• Judgment affirmed.