Lawrence v. Yeatman

• Decision Date: 31 December 1839
• Citation: 2 Scam. 15,1839 WL 2843,3 Ill. 15
• Parties: DANIEL LAWRENCEv.PRESTON YEATMAN.
• Court: Illinois Supreme Court

2 Scam. 15

3 Ill. 15

1839 WL 2843 (Ill.)

DANIEL LAWRENCE

v.PRESTON YEATMAN.

Supreme Court of Illinois.

December Term, 1839.

This was an action of debt commenced by attachment by Yeatman & Kent against Lawrence, to recover a debt of $339.75, and $375 in damages. The affidavit and bond were made by A. Cowles, as agent for the plaintiffs. The condition or the bond was as follows:

“The condition of this obligation is such that whereas the above bounden Preston Yeatman and Germanicus Kent, partners in company, have, on the day of the date hereof, prayed an attachment, at the suit of Preston Yeatman and Germanicus Kent, partners in company, against the estate of the said Daniel Lawrence, for the sum of five hundred and seventy-three dollars and thirty-five cents, and the same being about to be sued out returnable on the third Monday of August next. Now, if the said Preston Yeatman and Germanicus Kent, partners in company, shall prosecute their suit with effect, or in case of failure therein, shall well and truly pay and satisfy the said Daniel Lawrence all such costs in said suit, and such damages as shall be awarded against the said Daniel Lawrence, his heirs, executors, or administrators, in any suit or suits which may hereafter be brought for wrongfully suing out said attachment, then the above obligation to be void, otherwise to remain in full force and virtue.”

No service was effected upon Lawrence, but the requisite notice by publication having been given, judgment was rendered against him by default, at the August term of the St. Clair circuit court, 1838, for $320 debt, and $253 damages. The suit was instituted against Lawrence as the assignor of a writing obligatory made by one Hardy Robinson, dated September 3d, 1824, for $320, payable to said Lawrence, by December 25th, 1825. Lawrence, before said instrument became due, assigned the same, for value received, to Yeatman & Kent, who brought suit thereon against said Robinson to the October term, 1826, of the circuit court of Madison county, Alabama; and upon an issue joined in said court upon a plea of fraud and failure of consideration, said issue was found for the defendant, and judgment entered against said Yeatman & Kent for costs of suit, amounting to $17.25; to recover which, together with the amount due on the said writing obligatory, this action was commenced.

The points taken and authorities referred to on the part of the plaintiff in error are:--

1st. Insufficiency of the affidavit upon which the attachment issued, in not stating of whom the person making it was the agent; also in not disclosing either in the body of the affidavit or the jurat annexed thereto, the official character of the person before whom it was made. Mears v. Morrison, Breese 172. Advantage may be taken by writ of error of...