Cromwell v. March, 1 Ill. 326, 1 Breese 326 (1829)

Dec. 1829 · Illinois Supreme Court

1 Ill. 326, 1 Breese 326

Nathan Cromwell, Plaintiff in Error, v. Enoch C. March, Defendant in Error.

ERROR, WITH SUPERSEDEAS, TO MORGAN.

The bond upon which a supersedeas had been obtained, was executed by “ M., attorney for the plaintiff,” on a motion to dismiss the writ of error for that cause, the court overruled it, but quashed the supersedeas, and awarded aprocedendo.

W. Thomas, for the defendant in error,

moved the court to dismiss this writ of error, on the ground that the plaintiff in error did not execute a bond as the statute required, and showed that the bond which had been executed, was executed by “ Murray M’ Connel, attorney for the plaintiff.”

Per Curiam.

The motion to dismiss the writ of error is overruled. Let the supersedeas be quashed, for the reason that it does not appear that McConnel was authorized to sign the bond as attorney, and let a procedendo issue to the clerk of the Morgan circuit court. ⁽¹⁾

Motion overruled.

(1) Where a bond was executed in order to make a writ of error a supersedeas, it appeared to be signed by the party, by his attorney in fact; the authority of the attorney was presumed, and the supreme court refused to inquire into the fact, unless it was shown by affidavit, that no such authority existed. Campbell v. State Bank, 1 Scam., 423. But now, rule 2d of the supreme court, adopted at the November term, 1858, (see 19 Ill. Rep.,) provides: “ Whenever a bond is executed by an attorney in fact, the clerk shall require the original power of attorney to be filed in his office, unless it shall appear that the power of attorney contains other powers than the mere power to execute the bond in question; in which case, the original power of attorney shall be presented to the clerk, and a true copy thereof filed, certified by the clerk to be a true copy of the original.”

The supreme court will presume that a bond, executed by an attorney in the name of his principals, and filed in the court below, was executed by a person duly authorized, and that the court below was satisfied of that fact, unless the contrary appears. Sheldon v. Reihle et al., 1 Scam., 519.