Union Bank ex rel. Morrison v. McBride

Lancaster, Justice: This cause comes up by Writ of Error, from the Circuit Court for Jefferson County, Chief Justice Thomas Douglas having sat at the trial. » [8] The statute of February 12, 1836, Thompson’s Digest, 447, section 5, referred to by defendant’s attorney, provides that “ no “ appeal, or Writ of Error, shall hereafter be granted to tho original “ plaintiff in any suit, unless said plaintiff first pay all costs which “ may have accrued, in and about said suit, up to tho time when “ said appeal or Writ of Error is prayed; and, also, ontor into bond, “ with one or more securities, in a sum sufficient to cover all costs “ which may accrue, in the prosecution of said appeal, or Writ of “ Error, conditioned to pay the same, if tho judgment, sentence, or “ decree of the court shall be affirmed.” This act of the Legislature (believed by the Court to be in full force) is regarded by them as applicable to, and conclusive on this motion. The payment of all costs below, and entering into bond, as in the act proscribed, seem to be steps precedent to granting a Writ of Error, imperatively required by the statute. Any other construction would, they think, be repugnant to the act, an evasion of it, and, in some measure, render it inoperative. The reason assigned for not having given tho required bond does not, in tho opinion of the Court, strengthen the plaintiffs position. He is admitted to be a non-resident, and, therefore, not within the reach of process from the Courts of this State. It is not sufficiently apparent that he paid all costs which accrued in and about his suit in the Circuit Court, the best evidence of which would be the certificate of the Clerk of that Court, and in the opinion of this Court, therefore, the most proper evidence. He failed in his suit below, yet, without payment of past costs, or security for those which may hero accrue, he seeks further to pursue this defendant. His being a non-resident adds legal force to tho liability he was under to pay all costs below, as well as give bond for those which might accrue here, before suing out his writ. The Court are unanimously of opinion the motion must be allowed, and do order this cause to be dismissed, and that tho defendant, Burwell McBride, have judgment for his costs.