Governor of Missouri v. Rector

• Decision Date: 31 May 1826
• Citation: 1 Mo. 638
• Court: Missouri Supreme Court
• Parties: GOVERNOR OF MISSOURI v. RECTOR.

1 Mo. 638

GOVERNOR OF MISSOURI

v.RECTOR.

Supreme Court of Missouri.

May Term, 1826.

ERROR FROM ST. LOUIS CIRCUIT COURT.

WASH, J.

This was a suit instituted in the name of the plaintiff, to the use of Richard Mason's Administrators, against the defendant, as security to an administrator's bond, in the Circuit Court, where two motions were made; one by the counsel for the defendant to dismiss the suit, for the want of bond and security for the costs; the other by the counsel for the plaintiff, to be permitted to file bond and security for costs. The first motion was sustained, and the suit dismissed; the other was consequently overruled. The question for the consideration of this court is, whether the Circuit Court erred in refusing to permit the security to be given, and in dismissing the suit for want thereof? The first section of “an act concerning costs,” passed the 26th of January, 1825, Rev. Code, p. 225, provides, “that in all actions on office bonds for the use of any person, actions on the bonds of executors, administrators, or guardians, qui tam actions, actions on any penal statute, and in all cases in law or equity, where the plaintiff or person for whose use the action is to be commenced, shall not be a resident of this State, the plaintiff or person for whose use the action is to be commenced, shall, before he institutes such suit, or cause to be filed with the Clerk of the Circuit Court in which the action i to be commenced, the bond or obligation of some person being a resident of this State, whereby he shall acknowledge himself bound to pay, or cause to be paid, all costs which may accrue in such actions; and if such action shall be commenced without filing such bond or obligation, the court, on motion, shall dismiss the same,” &c. The twenty-second section of the same act subjects the equitable plaintiff, or person to whose use an action is brought to the payment of costs, &c. The only object which these provisions of the statute seem intended to secure is, that the officers of the court shall be paid their legal demands for fees and services, and to that end it is provided, that the equitable as well as legal plaintiff, when non-resident, shall file, or cause to be filed, “the bond or obligation of some person being a resident of this State.” It is not to be supposed, that the policy of the statute is to restrain or discourage the bringing of suits. Its provisions, therefore, which are merely directory, should receive the construction...