Madison County IL Archives Court.....Hunter, Vs. Gilham 1819-31
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 4, 2008, 11:16 pm

Source: Reports Of Cases Illinois
Written: 1819-31

SUPREME COURT of the STATE OF ILLINOIS.

NOVEMBER TERM, 1824, AT VANDALIA.

Present, THOMAS REYNOLDS, Chief Justice. THOMAS. C. BROWNE, JOHN REYNOLDS, 
WILLIAM WILSON; Associate Justices. 

Charles W. Hunter, Plaintiff in Error, v. Samuel Gilham, Defendant in Error.

ERROR TO MADISON.

Under the practice act of 1819, bail bonds should be taken to the sheriff and 
suits on them should be brought in his name. The act gives him no power to 
assign them to the plaintiff in the action.

Hunter brought an action of debt in the Madison circuit court, against Gilham, 
on two bail bonds executed by Gilham to the sheriff of Madison county, in 
cases in which Hunter was plaintiff. The defendant demurred generally to the 
declaration, which the court sustained, and Hunter brought his writ of error 
to reverse that judgment, assigning for error, the sustaining the demurrer.

Opinion of the Court by Chief Justice Reynolds. The thirty-fourth section of 
the act entitled "An act regulating the practice in the supreme and circuit 
courts of this state, and for other purposes," approved March 22d, 1819,* 
authorizes the sheriff to take bail bonds to "himself." Such was the fact in 
this case. The bail bonds were taken in the name of the sheriff. The sheriff 
and the defendant were the legal parties to the bonds, and there being no law 
of this state authorizing the sheriff to assign such bonds to the plaintiff in 
the judgement, the action should have been commenced in the name of the 
sheriff, and not in the name of Hunter, who was no legal party to the bonds. 
The judgment below must be affirmed, and the defendant recover his costs. (l)

Judgment affirmed.

Starr, for plaintiff. 

Smith, for defendant.

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* Laws of 1819, p. 148, sec. 34.

(1) The statute now provides that when a bond is taken to the sheriff as in 
this case, the ball "may be proceeded against by an action of debt, in the 
name of the plaintiff in the original action, as in the case of a recognizance 
of ball." Purple's Statutes p. 124, sec. 4. Scates' Comp., 237.

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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