People Ex Rel. James Clemens v. Smith

• Decision Date: 31 January 1867
• Citation: 43 Ill. 219,1867 WL 5013,92 Am.Dec. 109
• Parties: THE PEOPLE OF THE STATE OF ILLINOIS ex rel. JAMES CLEMENS, JR.,v.GEORGE W. SMITH, State Treasurer, and O. H. MINER, Auditor of Public Accounts.
• Court: Illinois Supreme Court

43 Ill. 219

1867 WL 5013 (Ill.)

92 Am.Dec. 109

THE PEOPLE OF THE STATE OF ILLINOIS ex rel. JAMES CLEMENS, JR.,

v.GEORGE W. SMITH, State Treasurer, and O. H. MINER, Auditor of Public Accounts.

Supreme Court of Illinois.

January Term, 1867.

THIS was an application to this court for a peremptory writ of mandamus, on the relation of James Clemens, Jr., against George W. Smith, State treasurer, and O. H. Miner, auditor of public accounts. The facts in the case are fully stated in the opinion.

Mr. JAMES C. CONKLING, for the relator. Mr. JUSTICE BREESE delivered the opinion of the Court:

This is a petition for a mandamus to compel the State treasurer to pay to the relator, James Clemens, Jr., of St. Louis, the interest due upon certain bonds of this State, held and owned by Clemens.

The petitioner states, that he is a resident of St. Louis, in the State of Missouri, and the owner of a bond of this State, numbered 4983, bearing date July 1, 1847, and payable to petitioner in twenty-three years from date, for the sum of $1,085.76, with interest at the rate of six per cent per annum, payable in New York, on the first day of January and July of each year; that he is also the owner and holder of a bond of the State, numbered 2150, payable to him in thirty years from July 1, 1847, for the sum of $500, bearing interest at the rate of six per cent per annum from July 1, 1857.

He further states, that on the 23d day of August, 1856, the sum of $192.16, was paid to him for interest on the first mentioned bond, and that is all that he has ever received as interest on either of these bonds. He further states, that on the 12th of February, 1867, he applied by his attorney to the State treasurer, and demanded of him, the balance due him for interest on these bonds, which the treasurer refused to pay.

The demand on the treasurer is fully proved. The treasurer waives the alternative writ, and alleges, in justification of his refusal, that the books and files of his office show, that there was paid to S. Halliday, an agent of the United States Express company, on the fifteenth of December, 1862, all the interest which had accrued on these bonds, from 1856 up to July 1862, amounting to $540.84, the first payment being of the interest due January 1, 1857. That Halliday presented a power of attorney to collect this interest, purporting to have been executed by James Clemens, Jr., of the city of Philadelphia, Pa., on the 8th of December, 1862, and acknowledged before John B. Thayer, a commissioner of the State of Illinois, for that city. We are called upon to say, whether this payment discharged the State.

It is in evidence, that these bonds, described in the petition, are now, and have always been since their issue, in the possession of James Clemens, Jr., of St. Louis, Missouri, that he is an old resident of that city, and he testifies he was not in Philadelphia on the day the power of attorney bears date, and had not been...