Madison County IL Archives Court.....Mather, Vs People 1893 ************************************************ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm http://www.usgwarchives.net/il/ilfiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Deb Haines ddhaines@gmail.com April 19, 2006, 3:51 pm Source: Il Supreme Court Cases 1850-1851 Written: 1893 Andrew Mather, plaintiff in error, v. The People of the State of Illinois, defendants in error. pages 9-14 Error to Madison. The death of the principal in any recognizance, after forfeiture thereof, but before judgment rendered upon the scire facias issued thereon, may be pleaded by the securities, in discharge of such recognizance. (4) Elisha W. Dunn, on the eleventh day of February, 1850, entered into a recognizance before Charles Cook, a justice of the peace for Madison county, with Andrew Mather, the plaintiff in error, as his surety, to appear at the next term of the Madison Circuit Court, to answer a charge of having in his possession counterfeit coin, and apparatus for making the same. At the next term of the said court, being the March term, 1850, ------------------------------------------------ (a) A plea that the prisoner was dead at the time he should have been produced is a good defense to a scire facias on a recognizance: Mix v. The People, 26 Ill., 481. See R. S., 1874, chap. 38, sec. 312. Such a plea, to be good, must state the time of the prisoner's death: The People v. Watkins, 19 Ill., 117. See Huggins v. The People, 39 Ill., 241 (annotated edition), and note. ------------------------------------------------ an indictment for counterfeiting was found against said Dunn, and he failing to appear, the recognizance was forfeited, and a scire facias ordered, returnable to the next term. At the next term of the Circuit Court, being the August term 1850, the said Andrew Mather appeared, and waived service of process (no scire facias having been served on him) and plead in discharge of his recognizance, that the said Dunn, since the last term of the court, to wit, on the eighteenth day of April, A. D. 1850, departed this life. To this plea the prosecuting attorney interposed a demurrer, which was sustained by the court, and a judgment rendered against Mather, for the amount of the recognizance. To reverse this judgment, rendered by Underwood, Judge, at August term, 1850, Mather brings the case to this court by writ of error, and assigns for error that the court below should have overruled the demurrer and given judgment for the people. Davis & Edwards and J. Gillespie, for plaintiff in error: The term bail applies as well to criminal as to civil proceedings: Jacobs' Law Dict., vol. 1, p. 208; Bouvier’s Law Dict., vol. 1, pp. 163—4; 8th Amendment to the Constitution of the U. S. The tenth section of the act concerning bail (R. S. of 1845, p. 83), applies to all cases, criminal as well as civil. The eighth, twelfth and thirteenth sections are expressly made applicable to civil cases. The tenth section extends by its terms to all cases. If, however, the above is not correct, it is still insisted that the 196th section of the Criminal Code (R. S. p. 187), enters into and forms part of the recognizance, and gives to the surety the right to deliver up the principal, in discharge of his recognizance, at any time before the judgment is entered up against him upon the sci. fa. People v. Manney, 8 Cowen, 297. Where a man is prevented by the act of God, from the performance of an act or duty, he shall be discharged. P. Fowke, District Attorney, for the people: To show that the statute relating to bail does not apply to *criminal cases, 1 Scam., 25; 3 Gilman, 355; 3 U. S. Dig., p. 324, secs. 24, 49, 83; 2 Supp. U. S. Dig., p. 693, sec. 39; 3 Harrington, 333. Trumball, J., This case presents the question, whether the death of the principal, subsequent to a forfeiture of his recognizance, discharges the bail. The statute declares (R. S., ch. 30, sec. 196): In all cases of bail for the appearance of any person or persons charged with any criminal offense, the security or securities of such person may, at any time before judgment is rendered upon scire facias to show cause why execution should not issue against such security or securities, seize and surrender such person or persons, charged as aforesaid, to the sheriff of the county wherein the recognizance shall be taken; and it shall be the duty of such sheriff on such surrender, and the delivery to him of a certified copy of the recognizance by which such security or securities are bound, to take such person or persOns, so charged as aforesaid, into custody, and by writing acknowledge such surrender, and thereupon the security or securities, shall be discharged from any such recognizance, upon payment of all costs occasioned thereby." This law must be deemed to be within the purview of the recognizance, as much as if it were incorporated therein. What, then, is the obligation which the security takes upon himself? It is, that in case the recognizance is forfeited, he will either pay the amount thereof, or surrender up the principal before judgment is entered upon the scire facias to show cause. The surrender of the principal within the time thus prescribed, it is a matter of right, and the surety could clearly plead it in bar of proceedings upon the scire facias: Beers v. Houghton, 9 Pet., 330; Champion v. Noyes, 2 Mass., 480. Such being the right of the security, it only remains to inquire, whether when by the act of God the principal is taken out of the custody of his bail, so as to prevent his being surrendered, it is equivalent to a surrender. It is said in Co. Lit., 206, a: “If a man be bound by recognizance or bond with condition that he shall appear the next term in such a court, and before the day the conusee or obligor dieth, the recognizance or obligation is saved." The reason given is, that "the bond or recognizance is a thing in action, and executory, whereof no advantage can be taken till there be a default *in the obligor; and therefore in all cases where a condition of a bond, recognizance, etc., is possible at the time of the making of the condition, and before the same can be performed, the condition becomes impossible bt the act of God, or of the law, or of the obligee, there the obligation is saved." Under our law the obligation of the security may be regarded as executory, until the rendition of judgments against him upon the scire facias. He has till then to surrender the principal, but if the principal dies before that time and before surrender, that which it was possible for him to have performed in discharge of his obligation, is made impossible by the actof God. The forfeiture of the bond does not absolutely fix the liability of the security. He still has the right to adischarge upon the surrender of the principal, and ought not to be prejudiced by his death before his liability is absolutely fixed. At the common law, the bail in civil suits were said to be fixed, if the principal died after the return of non est inventus upon the writ, of capius ad satisfaciendum issued against him, although before the time indulged by the rules of court for his surrender had elapsed. If, however, the principal obtained a certificate in bankruptcy between the return of the writ and the time allowed for his surrender, the surety was entitled to his discharge. In several of the states, in statutes authorizing surrender of the principal in discharge of the bail at any time before judgment on scire facias against them, a similar distinction has been drawn as to the effect of the death of the principal and his discharge by operation of law: Champion v. Noyes, 2 Mass., 480; Olcott v. Lilly, 4 John., 407; Hamilton V. Dunklee, 1 N. H., 172. In other states the courts have recognized no such distinction, but have held that the death of the principal at any time before the expiration of the period allowed by law for his surrender, could be pleaded by the securities in their discharge. In the case of The Bank of Mount Pleasant v. Pollock, 1 Ohio, 27, it was held that the death of the principal could not prejudice the right of his bail, who had till the return the scire facias to make the surrender. The court say in that case: "The bail do nut undertake for the life of the principal, but for his surrender if alive. They are discharged by his death. The limitation of the English rule is not adopted by the legislature, and the court have no authority to insert it by inerpolation." So in Georgia, *bail may surrender their principal in discharge of their liability, at any time before final judgment against them, but not afterwards; and it is held, that the death of the principal before such judgment, discharges bail: Griffin v. Moore, 2 Kelly, 331. In this state it is expressly declared by statute, that "In all actions against bail, 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:" R. S., ch. 14, sec. 10. This statute, however, has no application to proceedings against bail upon a recognizance in a criminal case. The only question, therefore, is whether in the absence of any statute expressly authorizing it, the bail can plead in discharge of their obligation the death of the principal, when it occurs before the time for his surrender has expired. The authorities all agree that the discharge of the defendant by operation of law would be a good defense for the bail in such a case, but some of them hold that his death would not. The reason for this distinction is not very obvious. Particularly when the person only of the debtor is discharged under an insolvent law, as was the case in 9 Peters, 330, before referred to, where it was expressly held that the bail could plead such discharge in bar of proceedings against them. It can make but little difference to the bail whether the principal is taken from his custody by operation of law or by the act of God. In either event he is beyond his control. Whatever might be the rule in proceedings upon bail bonds given in civil suits, in the absence of any express statute upon the subject, we think it clear that no such distinction should exist as to the liability of bail in a criminal case. The case of The People v. Manning, 8 Cowen, 297, was analogous in principle to the present. There the action was against the bail upon a recognizance of the sheriff to appear and answer for a contempt, and it was contended in that case, as in this, that the recognizance was analogous to that of bail in a civil suit, where the death of the principal, after the bail are fixed, cannot be pleaded. The cOurt, however, held that the cases were not analogous. That the bail were not fixed by the failure of the sheriff to appear, and that his bail could plead his subsequent death in bar of a suit against them. The bail in a civil suit undertake that the defendant shall pay or surrender his body in execution or that they will pay for him, while in a criminal case, the undertaking is simply that the accused will appear and answer. The accused may never be convicted of the offense, or if convicted, he is discharged from human punishment quite as effectually by death, as he could possibly be of his debts by a certificate of bankruptcy. The liability of the principal undoubtedly became fixed by the forfeiture of his recognizance, but the statute gives his security further time within which to discharge themselves, and of the benefit of this provision they ought not to be deprived by the death of the principal. The demurrer of the plea of the security was therefore improperly sustained, and for that reason the judgment is reversed and the cause remanded. Judgment reversed. Additional Comments: Source: Reports of Cases Determined in the Supreme Court of the State of Illinois from November Term, 1850, to June Term, 1851, both inclusive, by E. Peck, Counsellor at Law; Volume XII; Reprinted from the Original Edition, with Annotations by William Gordon McMillan of the Chicago Bar; Callaghan & Company, Chicago, Ill. 1881 File at: http://files.usgwarchives.net/il/madison/court/mather9nwl.txt This file has been created by a form at http://www.genrecords.net/ilfiles/ File size: 12.5 Kb