Linn v. Buckingham

• Citation: 1838 WL 2548,2 Ill. 451,1 Scam. 451
• Parties: WILLIAM LINN, plaintiff in error,v.CHARLES BUCKINGHAM and WOLCOTT HUNTINGTON, defendants in error.
• Decision Date: 31 December 1838
• Court: Supreme Court of Illinois

1 Scam. 451

2 Ill. 451

1838 WL 2548 (Ill.)

WILLIAM LINN, plaintiff in error,

v.CHARLES BUCKINGHAM and WOLCOTT HUNTINGTON, defendants in error.

Supreme Court of Illinois.

December Term, 1838.

THIS cause was tried at the October term, 1838, of the Fayette Circuit Court, before the Hon. Sidney Breese. Judgment was rendered for the defendants in error. Upon the declaration, the following security for costs was indorsed:

+-----------------------------+
                ¦“ Charles Buckingham and   ¦)¦
                +---------------------------+-¦
                ¦Wolcott Huntington   v.    ¦)¦
                +---------------------------+-¦
                ¦William Linn.              ¦)¦
                +-----------------------------+
                

We hereby enter ourselves as security for costs in this entitled cause, and acknowledge ourselves bound to pay all costs that may accrue, either to the opposite party, or to any of the officers of this Court, in pursuance of the laws of the State of Illinois.

COWLES & KRUM.”

L. DAVIS and F. FORMAN, for the plaintiff in error, cited R. L. 170, § 23, (Gale's Stat. 199,) 165-6, § 1 (Gale's Stat. 195); Printed Opinions 288, ( ante 388,) 201, ( ante 252,) 114 ( ante 165); 13 Johnson, 486.

SMITH, Justice, delivered the opinion of the Court:

This was an action of assumpsit on a promissory note. The declaration is in the usual form, with the money counts, to which the defendant pleaded non-assumpsit. The defendant, before pleading in the Circuit Court, moved the Court to dismiss the cause from the docket, because the plaintiffs were non-residents at the time of the commencement of the action, and had not filed a sufficient bond for the payment of costs, in conformity to the provisions of the statute in such cases. Proof of non-residence was made, and a bond, it appears from the record, was indorsed on the declaration, signed in the partnership name of the attorneys. The Circuit Court refused the application; and the defendant's counsel excepted. The cause was then submitted to the Court for trial, without the intervention of a jury; and the plaintiffs, having proved the co-partnership, produced in evidence a note corresponding to the one described in the declaration, signed “Wm. Linn,” and there rested their case. Whereupon the defendant moved for a nonsuit, because the plaintiffs had failed to prove that the note offered in evidence, signed “Wm. Linn,” was executed by William Linn.

Two grounds are now assigned for error. First, the refusal of the Court to dismiss the suit for the alleged insufficiency of the bond for costs; Secondly, the refusal of the Court to nonsuit the plaintiffs upon the evidence produced.

Upon the first point it is to be remarked, that the record shows a bond written on the declaration entitled in the cause, and substantially in the form prescribed by the act requiring security for costs to be given in certain cases. It is urged, that because the entitling of the cause does not state it to be in any Court, it can not relate to the action described in the declaration; and that therefore the bond is not in conformity to the law. We do not perceive the force of the objection. On the contrary, it would be doing violence to a reasonable interpretation of the facts of the case, to...