Brion v. Kennedy

Graves, O. J. Whether the security for costs sued on ■was given in the mode described in the statute would be important if the question concerned the right to enter judgment on it on motion. But being sued as a common-law •obligation the point relied on is immaterial. There can be no doubt of its validity as a common-law undertaking. The •consideration was sufficient. It was made to enable the plaintiff in that case to go on against the present plaintiff •and it effected the purpose, and the liability was assumed on request and understandingly. The facts found are conclusive •of the right of action and the court erred in ruling to the ■contrary. The judgment must be reversed and one entered here in favor of the plaintiff for $93.98, the amount of the costs covered by the undertaking, with interest from March •8, 1881, at which time this suit was commenced; it appear [500] ing that payment was previously demanded but the date of the demand not being shown. The plaintiff will recover his costs of both courts. The other Justices concurred.