The State, on the Relation of Anderson, Treasurer, &c., v. Leonard and Others

The State, on the Relation of Anderson, Treasurer, &c., v. Leonard and Others. Thursday, July 18. If, in a suit by the state on a collector’s bond, the relator’s name be inserted in the body of the writ, an indorsement of his name on the writ is unnecessary. A motion to dismiss a suit for want of an indorsement of the relator’s name on the writ, must be made on the defendant’s first appearance to the suit. ERROR to the Clay Circuit Court. [MAJORITY — Blackford, J. Per Curiam.] Blackford, J. — This was an action of debt on a collector’s bond, brought by the state on the relation of Anderson, treasurer, &c. The declaration was demurred to and the demurrer sustained. The judgment was reversed by this Court, and the cause remanded for further proceedings. When the cause was called in the Circuit Court after it had been remanded, the defendants moved to dismiss it for the want of an indorsement on the writ of the name of the relator, and the motion was sustained. This judgment of dismissal is erroneous. The name of the relator, as shown by a bill of exceptions, was inserted in the body of the writ; and when that is the case, an indorsement of his name on the writ is unnecessary. The State, ex rel., &c. v. Anderson et al., decided at this term. Besides, the motion to dismiss for want of the indorsement on the writ, were it otherwise tenable, came too late. It should have been made on the first appearance of the defendants to the suit. The object of the statute, in requiring the writ to show the name of the relator, is to render him liable for costs should he fail in the suit. R. S. 1838, p. 448. In the analogous case of moving to dismiss a suit, either at law or in chancery, for want of security for costs when the plaintiff is a non-resident, the motion must be made at the first opportunity after the non-residence is discovered, as the defendant ought not to wait until expense has been necessarily incurred. Duncan v. Stint, 5 Barn. & Ald. 702.—Long v. Majestre, 1 Johns. Ch. R. 202. J. M. Hanna, for the plaintiff. A. Kinney and S. B. Gooldns, for the defendants. Per Curiam. — The judgment is reversed with costs. Cause remanded, &c.