Caton v. Harmon

• Decision Date: 31 December 1839
• Parties: JOHN DEAN CATON, appellant,v.ISAAC HARMON, who sues for the use of Lemuel C. P. Freer, appellee.
• Court: Illinois Supreme Court

1 Scam. 581

2 Ill. 581

1839 WL 2826 (Ill.)

JOHN DEAN CATON, appellant,

v.

ISAAC HARMON, who sues for the use of Lemuel C. P. Freer, appellee.

Supreme Court of Illinois.

December Term, 1839.

Appeal from the Municipal Court of the City of Chicago.

Where an action is brought by a non-resident, for the use of a resident, no security for costs is required.

CITED: Affidavit, when defective. 51 Ill. 308. Security for costs, doctrine as to. 11 Ill. 120; 93 Ill. 29.

THIS cause was heard in the Court below at the April term, 1838, before the Hon. Thomas Ford. Judgment was rendered for the plaintiff, and the defendant appealed to this Court.

G. SPRING and GRANT GOODRICH, for the appellant.

J. GRANT and J. Y. SCAMMON, for the appellee.

BROWNE, Justice, delivered the opinion of the Court:

This was an action of assumpsit brought in the Municipal Court of the City of Chicago, by Isaac Harmon, for the use of Lemuel C. P. Freer, against John D. Caton. The defendant below moved the Court to dismiss the cause, predicated upon the following affidavit:

“John Dean Caton, being duly sworn, doth depose and say, That the said plaintiff, Isaac Harmon, removed from the State to the Territory of Wiskonsin about one year since, where he hath resided with his family ever since, as deponent hath been informed, and verily believes. That he was informed by said plaintiff a short time before the commencement of this suit that he, the said plaintiff, was then residing in Wiskonsin with his family, that he was cultivating a farm there, and that he liked the place, and intended to reside there permanently. And deponent further saith, that he has not seen the said plaintiff in this State since, nor has he heard of his being here since, and further deponent saith not.”

The suit was brought for the use of Freer, and he was the person beneficially interested. Nothing in the affidavit showing that Freer was a non-resident, it is to be strongly inferred that he was a resident. In all cases in law or equity where the plaintiff or person for whose use an action is to be commenced shall not be a resident of this State, the plaintiff or person for whose use the action is commenced shall, before he institute such suit, file, or cause to be filed, with the clerk of the Circuit or Supreme Court in which the action is to be commenced, an instrument in writing of some responsible person, being a resident of this State, to be approved of by the clerk, whereby such person shall...