AN ACT concerning bail in civil cases. [Approved Jan. 22, 1872. In force July 1, 1872. L. 1872, p. 192.J

1. WHEN DEFENDANT MAY BE HELD TO BAIL-AFFIDAVIT, ETC.] § 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly, That when any person shall be about to commence a suit in any court of record in this state, founded upon any specialty, bill or note, in writing, or on the judg ment of any court, and in all actions of covenant and account, and actions on verbal contracts or assumpsits at law, if the plaintiff, or his agent or attorney, shall make an affidavit setting forth the cause of action, and the amount due the plaintiff, and facts showing that the defendant fraudulently contracted the debt, or incurred the obligation, respecting which the suit is about to be brought, or that he has concealed, assigned, removed or disposed of his property with intent to defraud such plaintiff'; and shall present such affidavit to a judge of a court of record, or if there be no such judge in the county at the time, then to a master in chancery; and if such judge or master shall be satisfied that sufficient cause is shown to require bail, he shall indorse an order under his hand, ou said affidavit, directing the clerk of the court in which suit is about to be brought, to issue a capias ad respondendum, directed to the proper officer to execute, for the arrest of the defendant or defendants in such proposed action; and the judge or master shall, in such order, fix the amount of the bail; and upon the filing of such affidavit and order, it shall be the duty of the clerk to issue a capias and indorse thereon an order directing the sheriff or officer to whom such process is directed to hold the defendant to bail in the sum specified in such order, and the sheriff or officer serving such process shall take bail accordingly. [See Const., art. 2, § 12, p. 60; for bail before justices, see "Justices and Constables," ch. 79, § 22, seq. R. S. 1845, p. 80, § 2.

2. IN ACTIONS SOUNDING IN DAMAGES.] §2. In actions sounding merely in damages, where the same cannot be ascertained as aforesaid, the affidavit shall also set forth the nature and cause of the action, with the substantial or chief facts in relation thereto, and that the affiant verily believes that the benefit of whatever judgment may be obtained, will be in danger of being lost unless the defendant is held to bail, and if, upon examination thereof, the judge or master

shall be satisfied that sufficient cause is shown to require bail, he shall make an order thereon, specifying in what amount the defendant shall be required to give bail, and like proceedings shall be had thereon as is provided in the foregoing section. The officer serving the process shall, in like manner, take bail. [R. S. 1845, p. 80, § 2.

3. BOND OF PLAINTIFF.] $3. The judge or officer ordering the issuing of such capias, shall require bond of the plaintiff in a penal sum of double the amount sued for, with security to be approved by the clerk issuing the writ, conditioned that the plaintiff shall prosecute the capias with effect and without delay, and pay the defendant all costs and damages that may be sustained by the wrongful saing ont such capias. And no capias shall issue until such bond is approved and filed by such clerk.

4. BAIL BOND OF DEFENDANT.] §4. Where any writ shall have been is sued from any court of record in this state whereon bail is required, the sheriff or other officer to whom the same may be directed shall take a bail bond to himself, with sufficient security, in the sum for which bail is required. And for the purpose of avoiding errors in the taking thereof, the condition shall be substantially in the following form:

on the
on the

The condition of this obligation is such, that whereas A B has lately sued out of the court of the county of a certain writ of capas ad respondendum, in a certain plea of against C D, returnable to the next term of the said court, to be holden at day of...... next: Now, if the said C D shall be and appear at the said court, to be holden at day of next, and in case the said E F shall not be received as bail in the said action, shall put in good and sufficient bail, which shall be received by the plaintiff, or shall be adjudged sufficient by the court, or the said E F, being accepted as bail, shall pay and satisfy the costs and condemnation money which may be rendered against the said C D in the plea aforesaid, or surrender the body of the said C D in execution in case the said C D shall not pay and satisfy the said costs and condemnation money, or surrender himself in execution when by law such surrender is required, then this obligation to be void: otherwise to remain in full force and effect.

Which bond, so taken, shall be returned with the writ, on or before the first day of the term of the court to which the writ is returnable. The officer making an arrest under the provisions of this act, shall give to the person arrested reasonable time and opportunity to procure bail, before committing such person to the jail. [As amended by act approved February 25, 1874. [R. S. 1845, p. 81, § 3.

5. WHO MAY BE SPECIAL BAIL. § 5. No person shall be permitted to be special bail in any action, unless he be a householder and resident within this state, aud of sufficient property; and no counselor or attorney at law, sheriff, under sheriff, bailiff, constable, or other person concerned in the execution of process, shall be permitted to be special bail in any action. [R. S. 1845, p. 80, § 1; L. 1857, p. 103, § 3.

6. BAIL OFFERED MAY BE EXAMINED ON OATH.] § 6. In any and all cases where the sheriff shall be by law required to take bail upon any writ or process, such sheriff shall have the power to administer oaths, and to examine the person offered as bail, touching his sufficiency, and shall require such examination to be reduced to writing, and signed by the person offered as bail. [L. 1857, p. 103, § 5. 7. WHEN THE OFFICER IS LIABLE FOR BOND.] § 7. In case the sheriff or other officer executing such process, and to whom it shall be directed, shall neglect to take such bond, or the bail be held insufficient, on exception taken and entered of record during the term to which such writ shall be made returnable, the sheriff or other officer having reasonable notice of taking such exception shall, in either case, be deemed and stand as special bail in the action; and the plaintiff may proceed to judgment against such sheriff or other officer, as in other cases against special bail. [R. S. 1845, p. 81, § 3.

8. RIGHTS OF OFFICER.] 8. Where the bail shall be adjudged insufficient by the court, the bond shall in that case stand as a security to the sheriff, or other officer issuing such process, who may, upon a forfeiture of the condition to appear and perfect bail, proceed thereon, in an action of debt or covenant, to recover the amount of whatever damages he may have sustained by reason of the non-performance of such condition; and shall also have the same right to arrest and detain the principal in custody, in case the bail shall be adjudged insufficient

by the court, and the principal shall not perfect bail within the time required by law, as the bail might have had. If he shall elect to arrest and commit the principal to prison, then his remedy on the bond shall cease, and the bond be void. The sufficiency of the bail shall be excepted to, during the term to which the writ is returnable; otherwise the same shall be considered as accepted by the plaintiff. Objections to the sufficiency of the bail shall be decided by the court in which the exception is taken, without delay, on such evidence as may be produced, and as it may deem satisfactory. The burthen of proof shall lie on the party affirming the sufficiency, allowing the bail to be examined on oath or affirmation, touching his sufficiency. [R. S. 1845, p. 82. § 4.

9. DISCHARGE OF DEFENDANT.] § 9. The court in term time, or the judge in vacation, may, on application, discharge the defendant from arrest for insufficiency of the affidavit, or because the facts stated therein are not true, or other good cause which would entitle him to be discharged upon habeas corpus, or in case he has given bail may discharge the same, or reduce the amount thereof, upon good cause shown. [R. S. 1845, p. 80, § 2, last sentence.

10.

WHEN CAPIAS SHALL STAND AS SUMMONS.] § 10. In case of a discharge of the defendant, or his bail, the capias shall stand as a summons.

11. SURRENDER OF DEFENDANT.] § 11. It shall be lawful for the defendant in any action, in any court of record, when bail shall have been given as afore said, to surrender himself, or for his bail to surrender him, at any time before the return day of the process which may have been sued out against the bail, to the court in which the suit may be pending, during the sitting thereof, or in vacation, to the sheriff or other officer who executed the capias.] R. S. 1845, p. 82, § 5. 12. PROCEEDINGS ON SURRENDER IN TERM.] § 12. In case the surrender shall be made during the sitting of the court, an entry shall be made on the records of the court, stating the surrender and commitment of the defendant to the custody of the sheriff. [R. S. 1845, p. 82, § 5.

13. PROCEEDINGS ON SURRENDER IN VACATION.] § 13. If the surrender be made in vacation, the bail or principal shall obtain a certified copy of the bail bond from the sheriff or clerk of the court, in whosoever possession the same may be, and shall deliver himself, or be delivered by his bail to such sheriff, who shall thereupon indorse on such copy of the bail bond an acknowledgment of the surrender of the body of the defendant to his custody, and the defendant shall be committed to the jail of the county, there to remain until discharged by due course of law. [R. S. 1845, p. 82, § 5.

14. SURRENDER PENDING SUIT AGAINST BAIL.] § 14. If the surrender is made pending a suit against the bail, the said copy of the bond with such acknowledgment shall be filed in the office of the clerk of the court in which the action is pending. If before such suit, the same shall be filed with the clerk of the court in which the original action was brought. [R. S. 1845, p. 82, § 5.

15. DISCHARGE OF BAIL.] § 15. Upon giving notice of the surrender, whether made in term time or vacation, to the plaintiff or his attorney, and paying the costs of the action against the bail, if any have accrued, the bail shall be discharged from all liability. [R. S. 1845, p. 82, § 5.

16. DISCHARGE OF DEFENDANT.] § 16. If the surrender be after judgment, and the plaintiff shall not cause the defendant to be held on execution within five days after notice thereof, he shall be discharged out of custody; the plaintiff may, notwithstanding such discharge, have execution against the real and personal estate of the defendant. [R. S. 1845, p. 82, § 5.

17. NEW BAIL AFTER SURRENDER.] § 17. Any defendant surrendered into custody or committed by his bail, in manner aforesaid, may, at any time before final judgment shall have been rendered in the action, discharge himself from custody by giving other good and sufficient special bail; the sheriff or other officer authorized to take bail, shall take new bail to the same effect as berein before provided. [R. S. 1845, p. 82, § 6.

18. SECURITY MAY SURRENDER PRINCIPAL.] § 18. In all cases of bail, under this act, it shall be lawful for the bail to arrest and secure the body of the principal, until a surrender can be made to the sheriff of the county where the suit may be pending, or to the court to which the process was returnable, and may, by indorsement upon the back of a duly certified copy of the bail bond, authorize any other person to arrest, secure and surrender the body of the principal. [R. S. 1845, p. 82, § 7.

19. SUIT ON BAIL BOND.] § 19. All bail taken according to the directions of this act, shall be deemed and taken as special bail, and may be proceeded against by proper action, in the name of the obligee, for the use of the party injured. R. S. 1845, p. 82, § 4, first part.

20. WHEN SUIT MAY BE BROUGHT.] $20. Hereafter, no suit shall be commenced upon any bail bond, in any civil action, until a writ of capias ad satisfaciendum shall have issued against the defendant in the original action, directed to the sheriff of the county in which such defendant was arrested, and such sheriff' shall have returned that the said defendant was not found in his county; if any action shall hereafter be commenced upon such bond, and it shall not appear upon the trial thereof that the writ of capias ad satisfaciendum was issued and returned in the manner herein [before] mentioned, a verdict shall be found for the defendant. It shall be also necessary to charge the bail that such writ of capias ad satisfaciendum should be issued and delivered, at least ten days before the return day thereof, to the sheriff of the county, or officer to whom it may be directed; such sheriff or other officer shall endeavor to serve such writ upon the defendant, any directions which he may receive from the plaintiff or his attorney to the contrary notwithstanding. [R. S. 1845, p. 83, § 8.

21. SURETY MAY HAVE JUDGMENT AGAINST PRINCIPAL, ON MOTION.] $21. In all cases where judgment shall hereafter be entered up in any court of record in this state, against any person as bail for another, and the amount of such judgment or any part thereof has been paid, or discharged by such bail, his executor, administrator or heirs, it shall and may be lawful for such bail, his heirs, executor or administrator, to obtain judgment by motion against the person for whom he was bound, for the full amount of what shall have been paid by the said bail, his heirs, executor or administrator, in such court where judgment shall have been entered up against such bail. Before judgment shall be entered up against the principal, ten days' previous notice of such motion shall be given to him, if a resident of this state; and if a non-resident, then notice of such motion shall be published, for four weeks successively, in some newspaper printed in the county in which said proceeding shall be had, and in case no newspaper shall be published in said county, then in the nearest county in which a newspaper shall be published. [R. S. 1845, p. 83, § 9; p. 494, § 8.

22. EFFECT OF DEATH OF PRINCIPAL.] § 22. In all actions against bail, it it shall be lawful for the bail to plead, in bar of such actions, the death of the principal before the return day of the process against the bail; if, on the trial of any such issue, the death of the principal be found to have happened before such return day, judgment shall be given in favor of the defendant; he shall, notwithstanding, be liable to judgment and execution for the costs of suit, unless such death shall be found to have taken place before the commencement of the action. [R. S. 1845, p. 83, § 10.

23. EFFECT OF ARREST BY U. S., OR'ON_REQUISITION.] § 23. If any defen daut, having given special bail in any action, shall afterwards be legally arrested and delivered over to the executive authority of the United States, or of any state or territory thereof, upon a charge of having committed a crime out of the jurisdic tion of this state, and shall be thereupon carried beyond the limits thereof, such bail shall be discharged from all liability incurred as bail, if the defendant has not returned to this state discharged from such arrest, before he shall be liable to be charged as bail for such defendant. [R. S. 1845, p. 83, § 11.

24. EFFECT OF DISCHARGE IN BANKRUPTCY.] § 24. When any defendant in any civil action shall have been discharged as an insolvent debtor, agreeably to the laws of this state respecting insolvent debtors, or under any bankrupt law of the United States, and a certificate from the authority lawfully granting the same shall be produced to the court, the bail of such defendant shall, in all cases, be entitled to have an exoneretur entered upon the records of the court, which shall, thereupon, operate as a discharge from the bond in the same manner as if he had surrendered his principal in court, or to the sheriff, as hereinbefore directed: Provided, that judgment shall not have been recovered against him as the bail of such defendant. [R. S. 1845, p. 83, § 12.

25. NO SCIRI FACIAS AGAINST BAIL.] § 25. Hereafter, proceedings by seiri facias against bail, in civil cases, shall not be allowed in any court of record in this state. [R. S. 1845, p. 84, § 13.

[§ 26, repeal, omitted. See "Statutes," ch. 131, § 5.