Dissenting opinion of Mr. JUSTICE WALKER.

all its partialities expire in its antipathy to fraud, will be but mere idle words, having no foundation in truth. A license procured by fraud and perjury, will have the same sanction as one based in truth, although immediately repudiated by the innocent party on whom it is attempted to be imposed. Whether she will or will not, she must be forced to become a virtual accomplice in the crime, and to receive to her embraces one who has polluted himself with perjury in the very act under which he claims the victim as his own."

We are inclined to think, with that court, that such can not be the conclusion of any law which has a due regard for its own authority, or for honesty, truth and conscience.

In this case, as in that, the child returned to her parents immediately after the ceremony, and continued to reside with them, repudiating the marriage, and which, in neither case, had been consummated. In that case, as in this, the crime of perjury was committed to obtain the license. Such a marriage we do not think should be held valid. If, however, notwithstanding this crime, the parties had voluntarily lived together as man and wife, she knowing it had been committed, the marriage would be held valid on the principle of acquiescence.

Upon the other point made by appellant, we are of opinion the defendant had a right to answer the amended bill, and setting aside the default, under the circumstances, was not necessary, for it appears, after the default was entered, complainant took leave to file an amended bill. This virtually set the default aside, and opened the way for an answer. Gibson et al. v. Ray et al. 50 Ill. 383.

The decree of the court below is reversed, and the cause remanded, with leave to the defendant to answer.

Decree reversed.

Mr. JUSTICE WALKER: I am unable to concur in the decision in this case. Whilst complainant was young, she was of age to consent, and should be bound by the contract of

Syllabus.

marriage precisely as if she were of more mature age. The case cited from the Supreme Court of Texas is, in my judgment, not only unsupported by but is opposed to authority, and should not control the decision of this case.

LIZZIE M. CHASE

v.

CALVIN DE WOLF.

1. BILL OF EXCEPTIONS—when necessary. The office of a bill of exceptions is to bring into and make something a part of the record which would otherwise be no part of the same. Where a case is decided on demurrer, there being no motion made or evidence heard, a bill of exceptions is wholly unnecessary.

2. ILLEGAL FEES-justice of the peace will not be compelled to issue execution for. Where a constable charges illegal and unreasonable fees for executing a writ of replevin issued by a justice of the peace, the latter named officer will not be compelled by mandamus to issue an execution for their collection.

3. JUDGMENT FOR COSTS-embraces only legal costs. Where a plaintiff in replevin before a justice of the peace recovers judgment for costs, it does not embrace all the costs and charges claimed, but only all the plaintiff's legal costs to be taxed, and any charge for services not enumer ated in the statute is not embraced in such judgment.

4. FEES for executing writ of replevin. The statute allowing reasonable charges to constables, to be allowed by the justice of the peace, for removing and taking care of property levied on, can not be construed to embrace a charge for taking and delivering property under a writ of replevin; and a charge of $85 for replevying one or two express wagon loads of goods, amounting to almost half the value of the goods, was held to be illegal, unjust and oppressive.

5. EXECUTION for collection of illegal costs claimed, properly recalled. Where a justice of the peace renders a judgment for costs generally, and afterwards taxes illegal and oppressive fees charged as costs in the case, and issues an execution for their collection, he has the right, and it is his duty, to recall the execution, as, if a levy and sale were made under it, he would be liable to an action of trespass.

Opinion of the Court.

APPEAL from the Circuit Court of Cook county; the Hon. HENRY BOOTH, Judge, presiding.

This was an application, by Lizzie M. Chase, for a writ of mandamus against Calvin De Wolf, to compel him to issue an execution for the collection of certain costs in a judgment recovered before him by the petitioner. The opinion of the court states the material facts of the case.

Mr. DANIEL F. BUCKLEY, for the appellant.

Mr. ALFRED BARTOW, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

Appellant sued out a writ of replevin from U. B. Boyden, a justice of the peace, to recover possession of certain articles. of personal property. The venue was changed to Calvin De Wolf, another justice of the peace, before whom a trial was had resulting in a finding that the property was in plaintiff, and a judgment that she recover the same and one cent damages, and costs. The property having been delivered to plaintiff under the writ, there could only issue an execution for the damages and costs.

On the twenty-first day after rendering the judgment, the justice of the peace issued an execution, but on the next day recalled it, and on demand refused to issue another. Thereupon appellant filed a petition setting out these facts, and praying that an alternative writ of mandamus might issue from the circuit court of Cook county. The writ was issued and the justice of the peace returned that there was no law authorizing him to issue an execution for the fees charged by the constable, as they were illegal and oppressive. To his return appellant filed a demurrer, which was overruled by the court, and appellant electing to abide by her demurrer, the court rendered judgment against her for costs.

We find in this case a bill of exceptions where there was no motion, evidence or other proceeding necessary to be

Opinion of the Court.

brought into the record. The petition, the return, the demurrer, and all orders of the court thereon, were matters of record, and acquired no additional force by being embodied in what is called a bill of exceptions. The office of such a bill is to bring into, and make something a part of the record which would otherwise be no part of the same. Such bills of exceptions are useless, encumber the record, and increase the costs of litigation, and are contrary to correct practice, and should be omitted, except where they are necessary and proper.

It is urged that the court below erred in overruling the demurrer. We are at a loss to see upon what ground it can be supposed this was error. The return avers that the charges made by the constable were not authorized by law, and the demurrer admits the truth of this averment. With such an admission it is difficult to see how a party can expect a court to compel an officer to violate the law, and enforce an illegal and unjust claim. If this is true, and the demurrer admits it, it would be monstrous to compel such injustice, wrong and oppression.

It, however, seems that counsel has the impression that because the justice of the peace rendered judgment for costs, therefore it was for all the costs and charges claimed, whether legal or illegal. The language and legal effect of the judgment is, that the plaintiff recovered judgment for all of her legal costs to be taxed. Any charge for services not enumerated in the statute is not, nor is there any pretense for calling it, costs. Nor does the justice, any more than the circuit court, tax and allow the items of costs on the trial of the case. He only renders judgment, in that regard, that the party recover costs, and they are known by the entire profession to be the expenses of a suit which may be recovered by law from the losing party. And to ascertain what expenses in a suit may be recovered, we must look to the statute fixing fees and salaries for the various officers in the government. And in this case there is no pretense that the statute has 4-69TH ILL

Opinion of the Court.

authorized the constable to make the charges returned by him.

When examined, they seem to be unjust and oppressive in the extreme. To allow such charges would be to perpetrate an outrage on litigants that would amount to a denial of justice. That a person should be compelled to pay $85 for the delivery of perhaps only one or two express wagon loads of goods to the plaintiff in a writ of replevin, amounting to almost half the value of the goods, strikes the mind as unjust and outrageous, especially when claimed and exacted by an officer of the law, who thereby probably renders himself liable to a prosecution. And that he should ask a court to compel the payment of such extortionate charges, is incomprehensible. Courts are created to administer justice, not to aid and assist in oppression, injustice and wrong. The sense of justice implanted in mankind revolts at such an outrage upon justice, and that, too, under the forms of law, and by an officer of the law. An examination of the law fixing the fees of constables. (Sess. Laws 1872, pp. 446, 447.) contains no provision allowing these charges; but it contains a provision that constables shall be allowed reasonable charges, to be fixed by the justice, for removing and taking care of property levied on by them.

This provision relates only to levies under execution, etc., and can not be so tortured as to embrace the charges in this case. The taking and delivering property under a writ of replevin, is not a levy on property, and bears but slight resemblance to it. But counsel do not pretend that the statute allows the charges. They do not refer to the statute.

We are unable to see, as claimed, that the justice of the peace changed any judgment he had rendered. If he did, it fails to appear in this record. After rendering the judgment, he proceeded to tax the costs, and issued an execution; but he, no doubt, found, on reflection, or on obtaining legal advise, that these charges were not embraced in the judgment he had rendered, it only embracing legal costs, and not for any