Greene County IL Archives Court.....White, Vs. Stafford 1819-31
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 4, 2008, 10:58 pm

Source: Reports Of Cases Illinois
Written: 1819-31

NOVEMBER TERM, 1823.


Baynard White, Appellant, v. James Stafford, Appellee. 

APPEAL FROM GREENE.

If a non-resident gives a bond for costs, after the commencement of the suit 
but before the trial, it is sufficient.

Stafford, who it appears was a non-resident, brought a suit in the circuit 
court of Greene, against White, to which White pleaded an abatement, that the 
plaintiff was a non-resident, and that he had not given a bond for the costs, 
as the law required. The plaintiff replied to this plea, that although he had 
not executed a bond at the time of the commencement of the suit, yet at a 
certain day afterward, and before the trial, he gave bond with security, which 
the clerk approved. To this replication the defendant demurred, which the 
court overruled—from which decision the defendant appealed.

Opinion of the Court by Justice John Reynolds. The question presented by the 
pleadings in this case is, was the security given by the plaintiff, a 
sufficient compliance with the statute requiring a bond to be filed by a non-
resident, for the costs, before the commencement of the suit? The filing of 
this bond, can not be said to be a literal compliance with the statute, but 
surely it answers the object which was intended by it—the ends of justice are 
answered. The defendant can not complain. In some cases, neither the clerk or 
attorney may know the plaintiff to be a non-resident when the suit is 
commenced; in such cases, it would be hard to turn the plaintiff out of court, 
to answer no good purpose. In construing statutes, the intention of the 
legislature must be gone into. 6 Bacon, 384. The object of the legislature was 
to secure all parties in their costs, when a non-resident commenced a suit; 
this is answered in the present case, and the judgment must therefore be 
affirmed. (a) (1)

Judgment affirmed.

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(1) The statute in force when this decision was made was as follows: "No suit 
shall hereafter be commenced in any court, within this state, by any person 
who is non-resident, or who is not a freeholder in this state, or householder, 
until he shall file in the clerk's office, a bond with security, who shall be 
a householder and resident in the state, conditioned for the payment of all 
costs that may accrue in consequence thereof, either to the opposite party, or 
to any of the officers of such courts, which shall be in the form, or to the 
purport following," &c. Laws of 1819, p. 150. The present statute, after 
providing substantially as above so far as relates to non-residents, adds: "If 
any such action shall be commenced without filing such instrument of writing, 
the court, on motion, shall dismiss the same, and the attorney of the 
plaintiff shall pay all costs accruing thereon. Purple's Statutes, p. 275, 
sec. 2. Scates Comp., p. 244. Under this statute it has been held in the 
following cases, that where an action was commenced by a non-resident without 
giving security for costs, the suit must be dismissed, Hickman v. Haines, 5 
Gilm., 20. Ripley v. Morris, 2 Gilm., 381. In the last case a cross-motion was 
made for leave to file a cost bond at the time of entering the motion to 
dismiss, which was refused.

A motion to dismiss for want of security for costs is a dilatory motion, and 
must be made at the earliest opportunity. Edwards et al. v. Helm, 4 Scam., 
142. Robertson et al. v. County Com'rs., 5 Gilm., 559. Adams v. Miller, 12 
Ill., 27. Id. 14 Ill., 71.

If a bond for costs is objected to as insufficient, it is incumbent on the 
party presenting it to satisfy the court by competent proof that it is 
sufficient. Buckmaster v. Beamer et al., 3 Glim., 97.

On an application for security for costs, the affidavits of the respective 
parties may have equal weight. Hamilton v. Dunn, 22 Ill., 259.

The pendancy of a motion for security for costs in a suit pending on 
mechanic's lien, will not necessarily excuse a party for not filing an answer; 
nor will such motion prevent the rendition of a decree pro confesso. Id.

Additional Comments:
Reports of Cases at Common Law and in Chancery, Argued and Determined in the 
Supreme Court of the State of Illinois, From its First Organization in 1819, 
to the End of December Term, 1831. By Sidney Breese, Counsellor at Law. Second 
Edition, with Additional Notes, By Edwin Beecher. Chicago: Callaghan & 
Company, 1877.

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