#### Bryan Teague, Plaintiff in Error, v. Lansing S. Wells, Defendant in Error.

ERROR TO MADISON.

On an appeal taken by the defendant from the judgment of a justice of the peace, the circuit court can not rule the plaintiff to give security for costs.

Opinion of the Court by

Justice Lockwood.

This was an action commenced by the plaintiff before a justice of the peace, in which court he recovered a judgment for nine dollars and twenty-eight cents. The defendant took an appeal to the circuit court, and there, on filing an affidavit that the plaintiff was unable to pay the costs, obtained a rule that the plaintiff should give additional security for costs, or that the suit would be dismissed, and the judgment of the court below reversed. The plaintiff having failed to file. the required security, the suit was dismissed at the plaintiff’s costs, and the judgment of the justice of the peace reversed. To obtain a reversal of the judgment of the circuit court, a writ of error has been brought to this court.

*378 Semple, for plaintiff in error.

Blackwell, for defendant in error.

The only question presented for the decision of this court is whether the first section of the act concerning costs, passed 10th January, 1827,* applies to appeals taken from a justice of the peace to the circuit court. We are of opinion that the legislature only contemplated requiring voluntary plaintiffs to give security for costs by this section. In this case the plaintiff was satisfied with the decision of the magistrate, and it seems unreasonable to compel him to give security to prosecute a suit against his inclination and interest. Such a principle does not comport either with the act or with justice.

The judgment, therefore, of the circuit court, must be reversed with costs, and the cause remanded for further proceedings. (1)

Judgment reversed.

*

Rev. Code of 1827, p. 103, sec. 1, title “Costs.”

(1)

Affirmed in Campbell v. Giblin, 19 Ill., 54.