Hancock County IL Archives Court.....Smith, V Robinson 1849
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 22, 2008, 12:17 am

Source: Reports Of Cases Illinois
Written: 1849

Jeremiah Smith, for the use of Warburton & Rosseter, v. Major Robinson.

Error to Hancock.

1. Costs — security for — non resident. Section 1, chapter 26, revised stat., 
[1845] requires the court to dismiss a suit on motion, whenever the plaintiff, 
or in case the suit is brought in the name of one for the use of another, 
whenever that other is a non resident of the state, and fails to file security 
for costs.(l)

2. Same. Security for costs must be given in all cases, where the real 
plaintiff is a non resident; and in all cases where the person for whose use a 
suit is commenced, is a non resident.(2)

This was a suit originally commenced by the plaintiffs in error against the 
defendant in error, before a justice of the peace, in Hancock county. The 
plaintiffs recovered a judgment, and the defendant took an appeal to the 
circuit court.

At the September term, 1849, of the Hancock circuit court, the defendant, upon 
affidavit filed, moved to dismiss the appeal, on the ground that the 
plaintiffs for whose use the suit is brought, are non residents of the state, 
and that they had not filed a bond for costs. Minshall, judge, sustained the 
motion to dismiss, and the plaintiffs brought the case to this court by writ 
of error.

In this case, a similar motion to dismiss, grounded upon similar affidavit, 
was entered; which was allowed by the court.

G. Edwards, jr., for the motion, cited 3 Gilman, Buckmaster, use of Denham, v. 
Beames, p. 97; 1 Scammon, 192; Revised Stat., p. 126, section 1.

R. S. Blackwell, contra, cited 1 Scammon, 581; 3 Gilman, p. 1; Revised Stat., 
p. 128, section 16.

Trumbull, J. The defendant moves to dismiss this writ of error, for the reason 
as shown by affidavit, that Warburton & Rosseter, for whose use it is 
prosecuted, are not residents of the state, and because no security for costs 
has been filed.

Section 1, ch. 26, R. S., declares, that "in all cases in law or equity, where 
the plaintiff, or person for whose use the action is to be commenced, shall 
not be a resident of this state, the plaintiff, or person for whose use the 
action is to be commenced, shall, before he institutes such suit, file, or 
cause to be filed, with the clerk of the circuit or supreme court in which the 
action is to be commenced," security for costs; and the second section of the 
same chapter declares, that "if any such action shall be commenced without 
filing such instrument of writing, the court, on motion, shall dismiss the 
same."

These provisions of the statute are plain and positive, requiring the court to 
dismiss a suit on motion, whenever the plaintiff — or in case the suit is 
brought in the name of one for the use of another — whenever that other is a 
non resident of the state, and fails to file security for costs.

The court has no discretion in the matter, and there is no room for 
construction, where the terms of a statute are clear and unambiguous. The 
legislature had an undoubted right to pass the law in question, and it is 
enough for the court to know, that thus it is written.

It is, however, insisted, that a different construction has been put upon this 
statute in the case of Gaton v. Harmon, 1 Scam., 581. That case was unlike 
this. There the objection was, that the nominal plaintiff— not the person for 
whose use the suit was brought — was a non-resident. A proper construction of 
the statute, in connection with the decisions that have been made, requires 
security for costs in all cases, where the real plaintiff is a non resident; 
or in case the suit is instituted by one person for the use of another, where 
the person for whose use the suit is commenced is a non resident. The statute 
does not require a non resident nominal plaintiff, suing for the use of a 
resident, to file security for costs, and this is all that is decided by the 
case of Gaton v. Harmon, but it does require that the person for whose use the 
action is to be commenced, should, if a non resident, file security for 
costs, "before he institutes suit," thereby treating the person, for whose use 
the suit is brought, for this purpose, as the real party instituting it.

This construction reconciles all the decisions that have been made — Seward v. 
Wilson, 1 Scam., 192; Ripley v. Morris, 2 Gilm., 381 — and gives force and 
efficacy to the statute, while a different decision would render wholly 
nugatory one of its plainest requirements.

The motion to dismiss the writ of error must be allowed.

Motion sustained.

----------------------
(1) See R. Stat., 1874, p. 297, § 1.
(2) See White v. Stafford, Breese (ed. 1885), p. 38, note 1, where authorities 
as to security for costs are collated.

Additional Comments:
Reports of Cases Argued and Determined in the Supreme Court of the State of 
Illinois, from November Term, 1849, to June Term, 1850, Both Inclusive. By 
Ebenezer Peck. Volume XI. Annotated by Henry Binmore, of the Chicago Bar. 
CHICAGO: CALLAGHAN & CO. 1886.

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