United States, are in all cases, except treason, felony and breach of the peace, privileged from arrest, during their attendance at the session of their respective Houses, and in going to or returning from the same. By the constitution of the State of Illinois, Art. III, Sec. 17, senators and representatives in the State legislature are in like manner privileged from arrest during the session of the general assembly, and in going to or returning from the same. By the State constitution also, Art. VI, Sec. 3, electors are, except in cases of treason, felony, or breach of the peace, privileged from arrest during their attendance at elections, and in going to or returning from the same. By Art. VIII, Sec. 6, the militia are for like causes as aforesaid privileged from arrest during their attendance at musters and election of officers, and in going to or returning from the same. Attorneys and counselors at law, judges, clerks and sheriffs, and all other officers of the several courts within this State, are likewise privileged from arrest while attending courts, and whilst going to or returning from the same.1 Suitors, witnesses, and other persons necessarily attending any courts of record upon business, are not to be arrested during their actual attendance, which includes their necessary going and returning.

The duties of constables, in relation to arrests, will be properly pointed out in that part of this work which relates more particularly to the office and duties of constables.

3. Of Special Bail.

By the Rev. Stat. 317, Justice Act, Sec. 22, it is provided that "in all cases the defendant shall have a right to release his or her body arrested by virtue of a warrant, by giving special bail to the constable executing the same, which shall be indorsed on the back of the warrant in the following form, as nearly as the case will admit, viz. :

"I, G. F., acknowledge myself special bail for the within named C. D. Witness my hand, this day of 184. G. F.

Which indorsement shall be signed by one or more securities, to be approved by the constable taking the same, and shall have the force and effect of a recognizance of bail, the condition of which is, that the defendant, if judgment shall be given against him or her, will pay the same with costs, or surrender his or her body in execution; and in default of such payment or surrender, the goods and chattels of the bail shall be liable for the payment of the judgment and costs. Provided,

(1) Rev. Stat., 74, Sec. 7.

That if the body of the defendant shall be rendered in execution by himself or his bail within thirty days after the issuing of such execution, or if a sufficiency of the defendant's property shall be found to satisfy the judgment and costs, the bail shall be exonerated; but if neither the body of the defendant shall be surrendered, nor a sufficiency of his or her property can be found within the time aforesaid to pay the judgment and costs, then the justice shall issue execution against the bail, who shall be dealt with in the same manner as if he were defendant."

"Sec. 92. In all cases in which a defendant shall give special bail under the provisions of this chapter, and shall not be surrendered on or before the return day of the fieri facias upon the judgment, nor a sufficiency of property be found to pay the judgment and costs within the time aforesaid, it shall be the duty of the justice of the peace, upon the application of the plaintiff or his agent, to issue a summons against the special bail in the following form as nearly as may be, to wit:

STATE OF ILLINOIS,
COUNTY, S

The People of the State of Illinois, to any Constable of said County, GREETING:

You are hereby commanded to summon

to appear before o'clock, to show

cause, if any he have, why judgment should not be rendered against him, as the special bail of upon a capias issued by me against him

for the sum of

dollars and

in favor of
amount of the judgment rendered against the said

cents, the in favor of

and hereof make due return as the law directs. hand and seal this

day of

18-.

JOHN DOE, J. P. [L. S.]

"SEC. 93. If the defendant does not appear, the justice shall hear the case, enter judgment, and award execution as in other cases.

"SEC. 94. If the defendant shall appear at the time and place appointed for trial, he shall be permitted to show cause for his failure to comply with the condition of his undertaking, or to show that he hath complied with the same; and if it shall appear that the defendant was prevented from surrendering the body of the original defendant by the act of the plaintiff, or that the said original defendant had departed this life previous to the time required for making such surrender, or that his

health was such as to endanger his life by such surrender, or that he had delivered the body in execution according to the condition of the recognizance, then the bail shall be released and discharged from all liability."

As will readily be seen there is some little conflict or discrepancy between sections 22 and 92; the first provides for execution direct against the bail in case of default of the defendant, while the second provides that a summons shall be issued against the bail in case of such default, and that judgment be obtained before execution. Section 92 being a subsequent section, however, will doubtless have the effect of qualifying the provisions of section 22, yet the effect of the indorsement of special bail upon the warrant is not changed by the provisions of section 92, but only the mode of enforcing the obligation; and it seems clear from this last section, that the bail, in order to exonerate himself, must surrender the defendant on or before the return day of the execution against the goods and chattels of such defendant, provided the same shall not have been satisfied.

The defendant may come in at any time and surrender himself, or he may be surrendered by his bail, and in case he will not voluntarily submit to be surrendered, the bail may arrest and take him at any time and in any place for the purpose of surrendering him.' The power of taking and surrendering is not exercised under any judicial process, but results from the nature of the undertaking by the bail. The bail piece is not process, nor in the nature of it, but merely a record or memorandum of the delivery of the principal to his bail. It is clear that the jurisdiction of the court can in no way control the authority of the bail, and as little can the jurisdiction of the State affect his right, as between the bail and his principal; for in the language of the books, bail are said to have their principal always upon a string, which they may pull whenever they please, and surrender him in their own discharge; they may take him even on a Sunday, and may confine him till the next day, and then surrender him; and they may break open the outer door of the principal, if necessary, in order to arrest him; and bail may likewise depute another to take and surrender their principal.2

If the plaintiff makes an agreement with the defendant whereby the payment of the judgment is delayed until a later period than it could have been enforced, and without the assent of the bail, the latter will

(1) 2 Johns. 104; Tidd's Pr. 147.

(2) 7 Johns. 145.

be discharged;1 and so where the plaintiff has prevented a surrender by throwing the bail off his guard.

2

V. OF SUITS INSTITUTED BY THE VOLUNTARY AGREEMENT OF PARTIES.

"If both parties agree to have

Rev. Stat. 321, Chap. LIX, Sec. 42. a difference decided by a justice of the peace without process, he shall enter the same on his docket, noting particularly such consent, and proceed as in other cases."

In instituting suits before justices of the peace by the voluntary agreement of the parties, under our statute, it is held that the parties must actually appear before the justice in person, and there waive the service of process; that a defendant cannot authorize a justice to render judgment against him in favor of the plaintiff for an amount named in the letter, although the defendant expressly state that he waived the service of process and authorized the judgment; that a judgment obtained under such circumstances is not only voidable, but is totally void.

VI. GENERAL RULES APPLICABLE TO THE SUMMONS, WARRANT, OR WRIT OF ATTACHMENT.

In all process, either by summons, warrant, or writ of attachment, if either party sues or is sued in a particular character, such character ought regularly to be set forth in the process.

It is held, however, that upon common process, not bailable, and which does not specify the character or right in which the plaintiff sues, that is in his name alone, he may declare qui tam, or as executor, or administrator, or assignee, or in any other special character, for this does not tend to enlarge, but to narrow the demand which the defendant was called upon to answer. But if the process is in a special character, the plaintiff must declare in the same character and cannot declare generally.*

Where the plaintiff intends his suit to be in a special character, it ought properly to be so expressed in the process, in order that the proceedings may appear regular, and that the justice may enter the suit properly in his docket at its commencement, and for this further reason,

(1) 10 Johns. 587.

(8) 2 Scam. 468.

(2) 4 Johns. 480.

(4) 2 Caine, 136; 1 Chit. Pl. 284.

1

CHAP. 4.] RULES APPLICABLE TO SUMMONS, ETC,

that usually there is no formal written declaration wherein the character in which the plaintiff sues is set forth. When the suit is in a special character, it should also be set forth in all process subsequent to that at the commencement of the suit, as a subpoena venire, etc.

is

The practice of putting only the initial letter of the plaintiff or bad and in the one, a very process, defendant's first, or christian name, ought not to be practiced or countenanced. name should always be inserted, when known.

The full christian and sur

Names have been given

to distinguish individuals, and under our customs, the name of an individual is comprised in both his christian and surname, hence the necessity of using the full christian name in all cases where the name is material.

The mis-spelling a name, when the variation does not materially change the sound, is no ground for a plea in abatement, or for discharging the process. But the reversing the order of christian names, as Richard John" instead of "John Richard," is in law a mis-nomer, and may be pleaded in abatement.1

66

The omission of the middle name, or the initial letter thereof, commonly called the middle letter, as for instance John Doe, when the actual name is John S. Doe, is not a legal mis-nomer. The omission is It is competent, immaterial, for the law knows but one christian name. if necessary, to show that the individual is known as well without as with the middle name.2

Partners must sue and be sued in their individual names, and not in the name of the firm, unless, of course, the name or style of the firm shall properly express both the christian and surname of the partners composing the firm.3

Rev. Stat. 319, Sec. 29. "The justice shall indorse on the back of every summons or warrant, the sum demanded by the plaintiff, with the costs due thereon, and the defendant may pay the same to the constable in whose hands such process may be, who shall give a receipt therefor, which shall exonerate the defendant from debt and costs."

"SEC. 81. When the defendant, upon whom any summons or warrant issuing from a justice of the peace shall be served, shall pay, or tender to the constable the amount actually due, with all costs then accrued, and shall prove the same upon trial, and bring the money

(1) 1 Chit. Pl. 280.

(3) 3 Caine, 170; 1 Scam. 475.

(2) 5 Johns. 84; 2 Cowen, 463.