Henderson v. Welch , 8 Ill. 340 ( 1846 )

The Opinion of the Court was delivered by

Treat, J.

This suit was commenced in the McHenry Circuit Court by Welch against Henderson. The declaration was for money paid; the plea non assumpsit. On the trial before the Court, the plaintiff read in evidence the record of the proceedings had in a cause in the Du Page Circuit Court, in which Welch for the use of Henderson was plaintiff, and Samuel and Daniel Shaw were defendants, showing that Samuel Shaw only was served with process, and that the suit was finally dismissed, and a judgment entered that Samuel Shaw recover of Welch and also Henderson his costs, and that he have execution therefor. He then introduced a fee bill against Welch for the . costs made by the plaintiff, amounting to $14-874; and an execution against Welch for the costs adjudged to Samuel and Daniel Shaw, both of which were returned satisfied. He then proved by the sheriff that the same were paid by Welch. The defendant objected to all of this testimony. The Court found the issue for the plaintiff and assessed his damages at $95-24, the amount of the fee bill and execution, and the interest thereon from the time of payment. The Court overruled a motion for a new trial, and rendered a judgment on the finding. Henderson prosecuted an appeal to this Court.

The equitable assignee of a chose in action may sue upon it in the name of the party having the legal title, but he is bound to indemnify such party against the payment of costs. Here, the former action was in assumpsit and no doubt founded on a chose in action, the legal interest in' which was vested in Welch. Henderson having the beneficial interest only had to sue in the name of Welch, who thereby became the plaintiff on the record, and a? such, liable in the first instance for the costs. The action failing, the whole of the costs were adjudged against him. If he has paid them, he has a clear cause of action against Henderson for so much money paid for his use. The production of the judgment showed the liability of Welch to pay costs incurred for the benefit of Henderson. The only question is, did the evidence establish the fact that he had discharged the liability. Of this there can be no reasonable doubt. The execution does not technically pursue the judgment, but enough appears on its face to warrant the presumption, that it was issued on the identical judgment. It issued out of the same Court, on a judgment rendered at the same term, and in a case between the same parties. The only discrepancy between the judgment and execution, consists in the recital in the latter, that the costs were adjudged to the Shaws, when in fact the judgment was in favor of but one of them, although both of them were defendants. The variance was not material for the purposes of this case. The execution was only collaterally in question. It was introduced merely to prove the fact of payment, and not as a foundation to uphold rights acquired under it.

The judgment of the Circuit Court is affirmed with costs.

Judgment affirmed.