Trustees of Sch. For Twp. No. Two v. Walters

• Decision Date: 31 December 1850
• Citation: 2 Peck 154,12 Ill. 154,1850 WL 4341
• Parties: Trustees of Schools for Township Number Two, etc., plaintiffs in error,v.Ezekiel Walters et al., defendants in error.
• Court: Illinois Supreme Court

12 Ill. 154
1850 WL 4341 (Ill.)
2 Peck (IL) 154

Trustees of Schools for Township Number Two, etc., plaintiffs in error,
v.
Ezekiel Walters et al., defendants in error.

Supreme Court of Illinois.

December Term, 1850.

Error to Brown.

The statute which provides that security for costs shall be given where actions are brought upon official bonds, applies to cases where the action is prosecuted solely for the benefit of a particular person or party; and not to cases where the object is to enforce a public duty.^a

A motion to dismiss for want of security for costs, even in cases within the statute, comes too late after answering to the merits. It is a dilatory motion, and if not interposed in due time, it will be considered as waived. The objection cannot be raised after the time has passed for pleading in abatement. ^b

The facts of this case are stated in the opinion of the court. The motion to dismiss was sustained, and the judgment of dismissal entered, by Minshall, Judge, at the August term, 1850, of the Brown Circuit Court. The Trustees of Schools prosecute this writ of error, and assign for error the dismissal of the suit, because security for costs had not been given.

R. S. Blackwell and J. Bailey, for plaintiffs in error.

1. This is not an action upon an “office bond” for “the use of any person” within the meaning of the Revised Statutes, 126, section 1.

[12 Ill. 155]

This law was intended to apply to the bonds of sheriffs (R. S., 514), coroners ( ib., 514), recorders ( ib., 431), clerks of the Supreme ( ib., 144), Circuit ( ib., 147) and County courts ( ib., 131), justices ( ib., 314), constables ( ib., 315), notaries ( ib., 392) and others of a like nature; where an individual, aggrieved by the neglect or misconduct of a public officer, institutes a suit against such officer upon his official bond, in the name of the people, governor, or county commissioners, in whom the legal interest is vested, and who, though nominal parties to the record, have no beneficial interest in the subject matter of the suit. The object of this law was to prevent groundless and vexatious litigation upon official bonds, to indemnify the nominal plaintiff, and to secure to the defendant and the officers of the court all of the costs, in case the plaintiff is successful.

But actions upon the official bonds of public printers (R. S., 442), public binders ( ib., 425), collectors ( ib., 441), auditors and treasurers ( ib., 77), attorney general and state's attorneys ( ib., 75), warden of the penitentiary ( ib., 583), school commissioners ( ib., 498), school trustees ( ib., 505), school treasurer...