affidavit; and it shall be the duty of the sheriff or officer When the ac- serving such process, to take bail accordingly. In acdamages only, tions sounding merely in damages, where the same canwhat the affida- not be ascertained as aforesaid, the affidavit shall also

tion sounds in

vit shall set

forth.

set forth the nature and cause of the action, with the substantial or chief facts in relation thereto; if upon examination thereof, the clerk shall be satisfied that sufficient cause is shewn to require bail, he shall issue a capias in like manner, and make an order thereon, specifying in what amount the defendant or defendants shall be required to give bail; the officer serving the process shall, in like manner, take bail. The bail taken as herein directed may be discharged, or the amount thereof reduced by the court to which the writ is returned, on application during the term to which it is returned, upon satisfactory proof.

SEC, 2. Where any writ shall have been issued from Sheriff's duty any court of record in this state, whereon bail is required, when bail is re- the sheriff or other officer to whom the same may be diquired. rected, shall take a bail bond to himself, with sufficient security in a penalty of double 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 Bond to be tak- following form: en, &c.

When to be returned.

"The condition of this obligation is such, that whereas A. B. has lately sued out of the circuit court of the county of a certain writ of capias ad respondendum, in a certain plea of against C. D. returnable to the next term of the said court to be holden at on the day of next: Now if the said C. D. shall be and appear at the said court, to be holden at on the said 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 condem-. nation 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. 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, Liability of the sheriff or other officer having reasonable notice of sheriff in case taking such exception shall, in either case, be deemed of insufficient and stand as special bail in the action; and the plaintiff bail. may proceed to judgment against such sheriff or other officer, as in other cases against special bail.

SEC. 3. All bail taken according to the directions of. How bail may this act, shall be deemed and taken as special bail, and be proceeded may be proceeded against by an action of debt, in the against. name of the plaintiff in the original action, as in the case of a recognizance of bail, except where the bail shall be adjudged insufficient by the court; then the bond shall in

that case stand as a security to the sheriff, who may, upon Exception in a forfeiture of the condition to appear and perfect bail, favor of shff. 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 Exceptions to bail shall be excepted to, during the term to which the bail when to be writ is returnable, otherwise the same shall be considered made. as accepted by the plaintiff. Objections to the sufficiency of 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 suffi- Upon whom ciency, allowing the bail to be examined on oath or affirmation, touching his sufficiency.

the burthen of

surrender him

may surrender

SEC. 4. It shall be lawful for the defendant in any action in any court of record when bail shall have been Defendant may given as aforesaid, to surrender himself, or for his bail to self or his bail surrender him at any time before the return day of the process, which may have been sued out against him as him in vacation bail, to the court in which the suit may be pending, du- What proceedring the sitting thereof, or in vacation, to the sheriff of the ings to be had county in which process was served. In case the surren-in der shall be made during the sitting of the court, an entry Such cases. shall be made on the records of the court, stating the surrender and commitment of the defendant to the custody. of the sheriff: 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 whosesoever possession the same may be, and shall deliver himself, or be delivered by his bail to such sheriff, who shall thereupon endorse on such copy of the bail bond, an acknowledgment of the surrender of the body of the defendant to his custody, and thereupon 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. 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; the defendant shall be committed to the jail of the county, there to remain until discharged by due course of law. If the surrender If the surrender be after judgment, and the plaintiff shall be after judg- not charge the defendant in execution within fifteen days ment the effects after notice thereof, he shall be discharged out of custody;

thereof.

Defendant sur

the plaintiff may, notwithstanding such discharge, have execution against the real and personal estate of the defendant.

SEC. 5. Any defendant surrendered into custody or rendered into committed by his bail, in manner aforesaid, may at any custody may be time before final judgment shall have been rendered in discharged by the action, discharge himself from custody by giving other

giving other

bail.

Bail may ar

good and sufficient special bail; the sheriff or other officer authorized to take bail, shall take new bail to the same effect as is herein before provided.

SEC. 6. In all cases of bail under this act, it shall and may be lawful for the bail to arrest and secure the body rest the body of of the principal, until a surrender can be made to the the principal. sheriff of the county, where the suit may be pending, or to the court to which the process was returnable.

When suits on bail bond.

may be bro't

SEC. 7. Hereafter, no suit shall be commenced upon any bail bond or recognizance of bail, 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 or recognizance, and it shall not appear upon the trial thereof that a writ of capias ad satisfaciendum was issued and returned in the manner herein before mentioned, a verdict shall be found ry to charge the 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 officer shall

What necessa

bail.

endeavor to serve such writ upon the defendant, any directions which he may receive from the plaintiff or his attorney, to the contrary notwithstanding.

SEC. 8. In all cases where judgment shall hereafter be Remedy of bail entered up in any court of record in this state, against against princiany person or persons as bail for another, and the amount pal. of such judgment, or any part thereof, has been paid, or discharged by such bail, his, her, or their executors, administrators, or heirs, it shall and may be lawful for such bail, his, her, or their heirs, executors, or administrators, to obtain judgment by motion against the person or persons for whom he, she, or they were bound, for the full amount of what shall have been paid by the said bail, his, her, or their heirs, executors or administrators, 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 have been given to him, if a resident of this state, and if a non-resident, then notice of such motion, shall have been published, for four weeks successively, in some newspaper printed in this state.

Death of principal to be plead

SEC. 9. In all actions against bail, it shall be lawful for the bail to plead in bar to such actions, the death of the principal before the return day of the process against the in 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.

bar,

SEC. 10. If any defendant having given special bail Arrest of dein any action, shall afterwards be legally arrested and fendant to disdelivered over to the executive authority of the United charge bail in States, or of any state or territory thereof, upon a charge certain cases. of having committed a crime out of the jurisdiction 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.

bail.

SEC. 11. When any defendant in any civil action, shall A discharge have been discharged as an insolvent debtor, agreeably under insolvent. to the laws of this state respecting insolvent debtors, and law to release 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 exoneratus entered upon the records of the court, which shall there

Proceedings by

upon operate as a discharge from his bond or recognizance, in the same manner as if he had surrendered his principal in court, or to the sheriff as herein before directed: Provided, That judgment shall not have been recovered against him as the bail of such defendant.

SEC. 12. Hereafter, proceedings by scire facias against scire facias not bail, in civil cases, shall not be allowed in any court of record in this state. Proceedings already instituted may be proceeded in as though this act had not been passed.

allowed.

Repealing clause.

SEC. 13. All acts and parts of acts coming within the intent, spirit, and meaning of this act, and the objects and proceedings to which it relates, and heretofore in force in this state, are hereby repealed. No proceedings, however had, or rights secured under them, shall be inany way impeded or impaired, but may be prosecuted. and enforced, as if this act had not taken effect. This. act shall take effect on the first day of June next. APPROVED, January 26, 1827...

BILLS OF EXCHANGE.

AN ACT concerning Bills of Exchange.

SECTION 1. Be it enacted by the people of the state of Illinois, represented in the General Assembly, That when any foreign bill of exchange, which may be drawn for any sum of money, expressed that the value has been received, shall be duly presented for acceptance or payment, and protested for non-acceptance or non-payment, the drawer or endorser thereof, due notice being given of such non-acceptance or non-payment, shall pay said bill, with legal interest, from the time such bill ought to have been paid, until paid, and ten per cent. damages in addition, together with the costs and charges of protest.

SEC. 2. If any bill of exchange drawn upon any person, or body politic, or corporate, out of this state, but within the United States, or their territories, for the payment of money, and expressed to be for value received, shall be duly presented for acceptance or payment, and protested for non-acceptance or non-payment, the drawer or endorser thereof, due notice being given of such non-acceptance or non-payment, shall pay said bill, with legal interest from the time such bill ought to have been paid, until paid, and five per cent. damages in addition, together with costs and charges of protest.