Hunter v. Gilham, 1 Ill. 82, 1 Breese 82 (1824)

Nov. 1824 · Illinois Supreme Court

1 Ill. 82, 1 Breese 82

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 judgment, 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. ⁽¹⁾

Starr, for plaintiff.

Smith, for defendant.

Judgment affirmed.

* 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 bail “ 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 bail.” Purple’s Statutes, p. 124, sec. 4. Scates’ Comp., 237.