(fi Culver & Page, 
 
 3 BINDERS' 
 
 y AJTD BLANK BOOK ' 
 
 |j ISO Lake st.Ohicaato.! 
 
 PRACTICAL TREATISE 
 
 ON THE 
 
 POWERS AND DUTIES 
 
 OP 
 
 JUSTICES OF THE PEACE 
 
 AND 
 
 CONSTABLES, 
 
 IN THE STATE OF ILLINOIS, 
 
 WITH THE NECESSARY FORMS OF PROCEEDING; EMBRACING ALSO, A 
 
 COLLECTION OF ORIGINAL AND SELECTED FORMS, FOR POPULAR 
 
 USE IN THE TRANSACTION OF BUSINESS. 
 
 BY ELIJAH M, HAINES, 
 
 COUNSELOR AT LAW. 
 
 CHICAGO: 
 PUBLISHED BY KEEN & LEE. 
 
 1855.
 
 Entered according to the Act of Congress in the year 1855, by 
 
 ELIJAH M. HAINES, 
 
 In the Clerk's Office of the District Court of the United States, for the Northern District 
 
 of Illinois. 
 
 SCOTT & FULTON, 
 PRINTERS, CHICAGO.
 
 HAINES' TREATISE. 
 
 The following are among the many favorable notices of this Work, 
 which have been given by the Press of this State : 
 
 From the Greenville Journal. 
 
 " The work lias been prepared by a gentleman every way qualified for tbe 
 undertaking, and by whom no pains has been spared in making it the most con- 
 cise and useful work of the kind yet offered to the public- in the State. 
 
 " It embraces references to, and copious extract- th statute laws in force 
 
 relative to the powers and duties of Justices and ^ hies, from the Revised 
 
 Statutes of 1845 to the session laws of 1855, thereby & ishing to those officers 
 so much of the statute laws as may be necessary to guide them in their respective 
 duties, which they can now scarcely obtain from other sources." 
 
 From the Macoupin Spectator. 
 
 " It will supply a desideratum long felt amongst magistrate and constab'es, 
 and from the very copious table of contents we perceive that it covers the whole 
 ground, from the election of these officers to the minutest details of their duties. 
 A reference to its pages will save those interested a great deal of perplexity and 
 labor." 
 
 From the Tazewell Weekly Mirror. 
 
 " The forthcoming work will doubtless be one which has long been needed by 
 Justices and Constables in this State, as they have had to depend on the Statute, 
 which in many instances furnishes no guide whatever to the mode of procedure.' 
 This work is intended, and from the reputation of its author, we have no doubt 
 it will supply the deficiency that has heretofore existed for want of a guide to 
 those officers in the performance of their duties. 
 
 "The author of this work is also the author of a compilation of the laws of 
 the State relative to Township Organization." 
 
 The following extract from the Chicago Daily Tribune of Sept. 18, 
 1855, shows the favor with which the Work has been received at home, 
 where the author and publishers are best known : 
 
 " The book is being very creditably printed, and will compare well with the 
 law publications of Philadelphia. The Board of Supervisors of this (Cook) 
 county, at their last meeting, passed the following resolution in regard to this 
 work : 
 
 " On motion of Supervisor Cool, it was 
 
 'Resolved, That there be a sufficient number of copies of the Practical Trea- 
 tise on the Powers and Duties of Justices of the Peace and Constables, (by 
 E. M. Haines,) purchased at the expense of the county, so that each Justice 
 and Supervisor may have a copy.' "
 
 HAINES' TOWNSHIP ORGANIZATION. 
 
 A COMPILATION OF THE 
 
 GENERAL LAWS OF THE STATE OF ILLINOIS 
 
 RELATIVE TO 
 
 TO WHICH ARE ADDED 
 
 Numerous Practical Forms and Notes iviili References to Decisions of the older 
 States on questions upon like Statutes, 
 
 WITH A COPIOUS INDKX. 
 
 BY ELIJAH M. HAINES, Counselor at Law. 
 
 Published by KEEN & LEE, No. 146 Lake Street, Chicago, Illinois. 
 
 Price Fifty Cents. Orders by mail, addressed to the Publishers, promptly 
 attended to. 
 
 NEW EDITION OF THE 
 
 REVISED STATUTES OF ILLINOIS, 
 
 1856. 
 
 The attention of the public is respectfully called to the fact that a new and 
 complete edition of the REVISED STATUTES OF ILLINOIS, being a compilation 
 of the Statutes of the State of Illinois, of a general nature, in force January 1st, 
 1856, collected with reference to Decisions of the Supreme Court of said State, 
 and to prior Laws in relation to the same subject matter, is now 
 
 IN PREPARATION BY THE 
 
 HON. NORMAN H. PURPLE, 
 
 OF PEORIA, ILLINOIS, 
 
 And will be issued in a few months. No expense will be spared to make this 
 work a complete and valuable Edition of the Laws of Illinois. 
 
 Such a work has been long and urgently demanded, by the members of the 
 Bar, and the public generally, and we congratulate ourselves and them, on hav- 
 intercstcd a gentleman of such high legal attainments, in its preparation. The 
 mechanical part of the work will be executed in the best manner. The whole 
 when completed, will be contained in One Volume of about 1000 pages. 
 
 Price Seven Dollars, on receipt of which sum, a copy will be sent to the per- 
 son remitting, free of further charge. 
 
 KEEN & LEE, 
 
 BOOKSELLERS AND PUBLISHERS, 
 
 No. 146 Lake Street, Chicago, 111.
 
 PREFACE 
 
 THE object and design of this Work, as indicated by the title, is to 
 furnish to JUSTICES OF THE PEACE and CONSTABLES, a summary of the 
 law in relation to their powers and duties, with all the necessary forms 
 of proceeding. But a short space of time has been allotted for the 
 preparation of the work, and its progress has been attended with many 
 perplexing difficulties ; the author, nevertheless, flatters himself that he 
 is enabled to present to those officers of the law, for whose benefit it 
 has been more immediately intended, such a work as they have long 
 been in need of, to guide them in the discharge of those important 
 duties which they have taken upon themselves to perform. 
 
 Much, it is true, has already been written upon the subject of the 
 duties of Magistrates, and our libraries are favored with the excellent 
 and popular works of Cowen, Barbour, Edwards, Pennington, Swan 
 and others ; yet the local legislation of the various States, calls, in each 
 instance, for a work more immediately adapted to the peculiar legislation 
 of such States. The treatise of Mr. Cotton, prepared in 1844, as 
 also that prepared by Mr. Asbury in 1850, are now entirely out of 
 print. These have been the only works prepared for the use of 
 Justices of the Peace in this State. They were both equally deserv- 
 ing of the favor which they received ; but since the publication of 
 those works, our statute laws have been materially changed in many 
 respects, and a work adapted to our present statutes, seems to be 
 earnestly demanded at the present time. 
 
 It has been the design of the author to give all such forms as both 
 Justices and Constables would require to aid them in the discharge of 
 their respective duties ; the collection which the work embraces, includes
 
 IT PREFACE. 
 
 those both original and selected. For the selected forms, the author 
 is indebted to Edwards' Treatise, third edition, Barbour's Criminal 
 Law, Cotton's Treatise, Asbury's Justice, and the late excellent edition 
 of Cowen's Treatise, by William Tracy, Esq. A collection of original 
 and selected forms for common use in the transaction of business, has 
 also been added, trusting that it may render the work not only more 
 acceptable to the Justice, but that it may be found generally useful to 
 the business man. The country Magistrate is invariably the person 
 upon whom his neighbors rely for their conveyancing, the drafting of 
 their contracts, and generally the preparing of all such writings as 
 may be required in the course of their business transactions ; 
 hence the collection of Forms contained in Part Fifth will be found 
 almost indispensable to the Justice in the discharge of his duties. 
 
 Some few typographical errors have been discovered in the work, 
 but too late for correction ; these, however, will readily be observed 
 by the reader, and the intention will no doubt be at once understood. 
 
 The author would here take occasion to express his gratitude to his 
 friends, and especially to the members of the Waukegan Bar, for the 
 interest they have so warmly manifested in his success, and for their 
 many kind offices in affording him such aid as he has, from time to 
 time, solicited in preparing the following pages. 
 
 THE AUTHOR. 
 WAUKEGAN, ILL., 1855.
 
 CONTENTS. 
 
 PART FIRST. 
 
 OF JUSTICES OF THE PEACE, THEIE ELECTION AND QUALI- 
 
 CATION, AND PROCEEDINGS BEFORE THEM 
 
 IN CIVIL CASES. 
 
 CHAPTER I. 
 
 OF THE OFFICE OF JUSTICE OF THE PEACE. 
 
 I. Of the Justice, 17-19 
 
 II. Of the Election of Justices, 19 
 
 1. In Counties not adopting Township Organization, 20, 21 
 
 2. In Counties adopting Township Organization, 21, 22 
 HI. Of Qualification, 22-24 
 IV. Of Resignations, 24, 25 
 
 CHAPTER II. 
 
 OF THE JURISDICTION OF JUSTICES OF THE PEACE IN CIVIL CASES. 
 
 I. Of what the Justice has Jurisdiction to hear and de- 
 termine, 26-29 
 II. Of Jurisdiction of the Subject Matter, 29 
 
 III. Of Jurisdiction of the Person, 30, 31 
 
 IV. Of Proceedings without Jurisdiction, 31 
 
 CHAPTER III. 
 
 OF THE DIFFERENT FORMS OF ACTIONS. 
 
 I. What Actions may be brought before Justices of the 
 
 Peace, 32 
 
 II. Of the Action of Debt, 33 
 
 HI. Of the Action of Covenant, 33, 34 
 
 IV. Of the- Action of Assumpsit, 34, 35
 
 CONTENTS. 
 
 V. Of the Action of Trespass, 36-39 
 
 1. Of this Action generally, 36 
 
 2. Injuries to Personal Property, 36, 37 
 
 3. Injuries to Real Property, 37-39 
 VI. Of theAction of Trover, 39 
 
 CHAPTEE IV. 
 
 OF THE COMMENCEMENT OF SUITS, AND THE SERVICE AND KETUBN 
 OF PKOCESS. 
 
 I. How Suits may be instituted, 40 
 II. Of the Process of Summons, and Forms thereof, 40-46 
 
 III. Of the Warrant, and Forms thereof, 46-48 
 
 IV. Of the Arrest, and Special Bail, 48-52 
 
 1. Of the Arrest, 48 
 
 2. Of Persons privileged from Arrest, 48, 49 
 
 3. Of Special Bail, 49-52 
 V. Of Suits by the voluntary Agreement of the Parties, 52 
 
 VI. General Rules applicable to the Summons, Warrant, or 
 
 Writ of Attachment, 52-54 
 
 VII. Of security for costs, 54, 55 
 
 CHAPTER V. 
 
 OF THE APPEARANCE OF THE PARTIES. 
 
 I. Of Appearance of Parties of full Age, 56, 57 
 
 II. Of Appearance of Infants, 57, 58 
 III. Of Default or Want of Appearance, and the Effect 
 
 thereof, 58, 59 
 
 CHAPTER VI. 
 
 OF PLEADINGS. 
 
 I. Of Pleadings in General, 60, 61 
 
 II. Of the proper Parties to the Action, 61, 62 
 
 1. Plaintiffs, 61, 62 
 
 2. Defendants, 62 
 
 III. Of Pleadings which usually occur in Justices' Courts, 62, 63 
 
 IV. Of the Declaration, 63-66 
 V. Of Pleadings on the Part of the Defendant, 66-77 
 
 1. When incumbent on the Defendant to Plead, 66 
 
 2. Of Pkas to the Jurisdiction and in Abatement, 66-71 
 
 3. Of Pleas in Bar, 71-73
 
 CONTENTS. / 
 
 X 
 
 4. Of Set-Off, 73-75 
 
 5. Of Pleas puis darrein continuance, 75 
 
 6. Of Pleading Title, 75-77 
 VI. Of the Replication, 77 
 
 VII. Of Demurrers, 77, 78 
 
 CHAPTER VII. 
 
 OF WITNESSES, COMPELLING THE ATTENDANCE THEREOF, TAKING DEPO- 
 SITIONS, AND OF OATHS AND AFFIRMATIONS. 
 
 I. Of compelling the Attendance of Witnesses ; and herein, 
 
 1. Of the Subpoena, and Service thereof, 79, 80 
 
 2. Of the Fees allotved to Witnesses, 80, 81 
 
 3. Of proving Demand, Discount or Set- Off by 
 adverse Parly, 81, 82 
 
 4. Of Attachment against defaulting Witness, 82, 83 
 II. Of taking Depositions, 83-90 
 
 III. Of Oaths and Affirmations, 90, 91 
 
 CHAPTER VIII. 
 
 OF THE TRIAL, AND INCIDENTS THERETO. 
 
 I. Of Incidents occurring previous to the Trial, 92-95 
 
 1. Of Continuance, 92, 93 
 
 2. Of Change of Venue, or removing the Cause 
 from one Justice to Another, 94, 95 
 
 II. Of Trial in the Absence of the Defendant, 95 
 
 III. Of Trial before the Justice without a Jury, 95, 96 
 
 IV. Of Trial by Jury, 96-103 
 
 1. When the Jury shall be demanded, and how ob- 
 tained, 96, 97 
 
 2. Who shall be competent to serve as Jurors, 98 
 
 3. Proceedings against defaulting Jurors, 98, 99 
 
 4. Of Challenges, 99-103 
 
 5. Of Swearing the Jury, 103 
 V. Of Proceedings on the Trial, 103-109 
 
 VI. Of referring the Difference between the Parties to Ar- 
 bitrators, 109-112 
 
 CHAPTER IX. 
 
 OF EVIDENCE. 
 
 I. Of the Nature of Evidence, 113-116 
 
 II. Of the Competency of Witnesses, 116-121
 
 IV. Of WiJtfcalhMMi, 122-125 
 
 1. <y/fclfirBrf/*vMfe WrUay^ 122,123 
 
 2. Of At Pipttf tf Prtvtte Wntutyt, 123, 124 
 
 3. Of Pn*f<f yfaiJaritoy, 124.125 
 
 I flf ' > - *~- imff^m - - - tAZ 
 
 - ftwffty frwOStmUiyf ^DVW t/WMC^ . _ 
 
 V. Of Anl BnBBMe, to cxyfam, vaiy or ooBtradxs 
 
 TT~ _'- i T -* IAS 1M^ 
 
 viHHBK ZIBDMBCH^ -_ 
 
 CHAPTER X. 
 
 :_--: 
 
 : -: 
 
 % Jry. 130. 131 
 
 CHAPTER XI. 
 
 ; 
 
 L cf 
 
 139-141 
 
 141.142
 
 CONTENTS. 9 
 
 CHAPTER XII. 
 
 OF APPEALS AND WRITS OF CERTIORABI. 
 
 I. Of Appeals, 143-145 
 
 II. Of Certiorari, 146, 147 
 
 CHAPTER XIII. 
 
 OF EXECUTION AND GARNISHMENT. 
 
 I. Of the Execution, its Office and Nature, 148 
 
 El. Of Executions against the Goods and Chattels, 148-151 
 
 m. Of Executions against the Body, 151-154 
 
 VI. Of Garnishment, 154-156 
 
 PART SECOND. 
 
 OF PROCEEDINGS BEFORE JUSTICES OF THE PEACE 
 CRIMINAL CASES. 
 
 CHAPTER I. 
 
 OF THE POWERS OF JUSTICES OF THE PEACE RELATIVE TO THE 
 ENFORCEMENT OF THE LAWS FOR THE PREVENTION AND 
 PUNISHMENT OF OFFENSES, AND PRESERVATION AND OBSERV- 
 ANCE OF THE PEACE, 157, 158 
 
 CHAPTER II. 
 
 OF PERSONS CAPABLE OF COMMITTING CRIMES, OF ACCESSORIES, AND 
 WHO MAY BE WITNESSES IN CRIMINAL CASES. 
 
 I. Of Persons capable of committing Crimes, 159161 
 
 II. Of Accessories to Crimes, 161 
 
 III. Who may be Witnesses in Criminal Cases, 161 
 
 CHAPTER III. 
 
 OF PROCEEDINGS WHERE A CRIMINAL OFFENSE HAS BEEN COMMITTED. 
 
 I. Duty of the Justice on Complaint that a Criminal 
 
 Offense has been committed, 162-164 
 
 H. Of the Complaint, 164-166 
 
 m. Of the Warrant, 166-172 
 
 IV. Of the Arrest. 172 
 
 V. Of the Examination, 173-178 
 
 VI. Of Proceedings subsequent to the Examination, 178-192 
 1. Of the Discharge, 
 2. Of Bail and Eecoynizance,
 
 10 CONTENTS. 
 
 3. Of Commitment, 181-185 
 
 4. Of Recognizance of Witnesses, 185-190 
 
 5. Of Bail after Commitment, 190-192 
 
 CHAPTER IV. 
 
 FORMS OF STATEMENTS OF OFFENSES IN WARRANTS. 
 
 I. Offenses against the Persons of Individuals, . 193-201 
 II. Crimes and Offenses against Habitations and other 
 
 Buildings, 202, 203 
 
 IH. Crimes and Offenses relative to Property, 204-209 
 
 IV. Forgery and Counterfeiting, 209-214 
 
 V. Crimes and Offenses against Public Justice, 214222 
 
 VI. Offenses against the Public Peace and Tranquility, 223, 224 
 
 VII. Offenses against the Public Morality, Health and 
 
 Police, 225-230 
 
 VIII. Offenses committed by Cheats, Swindlers and other 
 
 fraudulent Persons, 230-232 
 
 IX. Fraudulent and Malicious Mischief, 232, 233 
 
 CHAPTER V. 
 
 OF PROCEEDINGS IN RELATION TO THE OBSERVANCE AND 
 
 SURETY OF THE PEACE AND GOOD BEHAVIOR, 234-240 
 
 CHAPTER VI. 
 
 OF FUGITIVES FROM JUSTICE, 241-245 
 
 CHAPTER VII. 
 
 OF SEARCH WARRANTS, 246-249 
 
 CHAPTER VIII. 
 
 OF PROCEEDINGS IN RELATION TO VARIOUS MISDEMEANORS, BY AT- 
 TEMPTING TO INFLUENCE ELECTORS; OF SABBATH-BREAKING, 
 AND OF DISTURBING WORSHIPING ASSEMBLIES. 
 
 I. Of Penalties, and Manner of Proceeding by Justice, 250-252 
 II. Forms of Proceeding in case of Sabbath-Breaking, 252-255 
 III. Forms of Proceeding in case of disturbing Worshiping 
 
 Assemblies, 255-258
 
 CONTENTS. 11 
 
 CHAPTER IX. 
 
 OF PROCEEDINGS IN CASE OF ASSAULT, ASSAULT AND BAT- 
 TERY, AND AFFRAYS, 259-268 
 
 CHAPTER X. 
 
 OP DOCKET ENTRIES IN CRIMINAL AND SUMMARY PROCEEDINGS, 
 
 AND FORMS THEREOF, 269-271 
 
 CHAPTER XI. 
 
 OF JUSTICES' FEES IN CRIMINAL CASES, 272 
 
 PART THIRD. 
 
 OF THE POWERS AND DUTIES OF JUSTICES OF THE PEACE 
 UNDER PARTICULAR STATUTES. 
 
 CHAPTER I. 
 
 OF ATTACHMENTS BEFORE JUSTICES OF THE PEACE. 
 
 I. Of the Ordinary Proceeding by Attachment against the 
 
 Goods and Chattels of the Defendant, 273-281 
 
 II. Of the Attachment of Boats and Vessels, 281-288 
 
 CHAPTER I_I. 
 
 OF THE ACKNOWLEDGMENT AND PROOF OF DEEDS AND OTHER 
 
 INSTRUMENTS, 289-296 
 
 CHAPTER III. 
 
 OF BASTARDY, AND PROCEEDINGS IN CASES THEREOF, 297-303 
 
 CHAPTER IV. 
 
 OF CONTEMPT OF COURT, 304-307 
 
 CHAPTER V. 
 
 OF DISTRESS FOR RENT, 308-313 
 
 CHAPTER VI. 
 
 OF CONTESTING ELECTIONS, 314-319
 
 12 CONTENTS. 
 
 CHAPTER VII. 
 
 OP ESTRAYS, 320-333 
 
 CHAPTER VIII. 
 
 OV FORCIBLE ENTRY AND DETAINER, 334-345 
 
 CHAPTER IX. 
 
 OP INCLOSURES AND FENCES, 346-354 
 
 CHAPTER X. 
 
 OF MARRIAGES, 355-358 
 
 CHAPTER XI. 
 
 OF TRIAL OP THE RIGHT OF PROPERTY, 359-366 
 
 A PART FOURTH, 
 
 OF THE CONSTABLE, HIS ELECTION AND QUALIFICATION, 
 
 AND THE POWEES AND DUTIES OF CONSTABLES 
 
 IN BOTH CIVIL AND CRIMINAL CASES. 
 
 CHAPTER I. 
 
 OF THE OFFICE OF CONSTABLE. 
 
 I. Of the Constable, 367-369 
 
 II. Of the Election of Constable, 369, 370 
 
 1. In Counties not adopting Township Organization, 395 
 
 2. In Counties adopting Township Organization, 369, 370 
 
 III. Of Qualification, 370-375 
 
 1. In Counties not adopting Township Organiza- 
 
 tion, 370-372 
 
 2. In Counties adopting Township Organization, 372-375 
 
 IV. Special Constables, when and how appointed, 375, 376 
 
 CHAPTER II. 
 
 POWERS AND DUTIES OF CONSTABLES IN CIVIL PROCEEDINGS. 
 
 I. Of the Service and Return of Process ; and herein, 
 
 1. Of the Summons, 377, 378 
 
 2. Of the Warrant, 378, 379 
 
 3. Of the Venire, 379, 380 
 
 4. Of the Writ of Attachment, 380, 381 
 
 5. Of the Execution, 381, 384 

 
 CONTENTS. 13 
 
 CHAPTEK III. 
 
 OF THE LIABILITY OF CONSTABLES AND SURETIES, 385, 386 
 
 CHAPTEK IV. 
 
 OF THE POWERS AND DUTIES OF CONSTABLES IN CRIMINAL CASES. 
 
 I. His Powers generally, 381-388 
 
 II. Of Arrests, 388, 389 
 
 CHAPTER V. 
 
 OF FEES AND COMPENSATIONS ALLOWED TO CONSTABLES IN BOTH 
 
 CIVIL AND CRIMINAL CASES, 390, 391 
 
 PART FIFTH. 
 
 COMMON FORMS FOR THE TRANSACTION OF BUSINESS. 
 
 I. Apprentices, 392-396 
 
 H. Arbitrations and Awards, 397-399 
 
 IE. Agreements, 400-402 
 
 IV. Assignments, 402-411 
 
 V. Bills of Exchange and Promissory Notes, 412, 413 
 
 VI. Bills of Sale, 414, 415 
 
 VII. Bonds, 415-417 
 
 VIII. Copartnership, 418-422 
 
 IX. Conveyances, 422-425 
 
 X. Leases, 426-428 
 
 XI. Powers of Attorney, 429-432 
 
 XII. Releases, 432, 433 
 
 Wills, 433-435 
 
 INDEX, 437-459
 
 GLOSSARY. 
 
 GIVING THE DEFINITION OF TERMS AND PHRASES USED IN THIS WORK. 
 
 Ab initio. From the beginning. 
 
 Ante. Reference to a preceding page. 
 
 Assumpsit. He undertook (or promised.) 
 
 Bona fide. In good faith. 
 
 Capias. " You may take." A writ authorizing the defendant's arrest. 
 
 Capias ad satisfaciendum. That you take (defendant) to make satisfaction. 
 
 Certiorari. To be certified of ; to be informed of. 
 
 Chose in action. Things personal, not in possession, for which the owner has 
 the right of recovery by action. 
 
 Cognovit actionem. " He has acknowledged the action." After suit brought, 
 the defendant frequently confesses the action ; judg- 
 ment is then entered on the record, without trial ; or 
 the defendant signs an instrument, called a cognovit. 
 
 Conservator pads. Keepers of the peace. . 
 
 Consideratuin est per curiam. It is considered by the court. 
 
 Coram non judice. Not before a judge ; at an improper tribunal. 
 
 De bonis asportatis. Of goods carried away. 
 
 De novo. Anew ; afresh. 
 
 De probioribus et potentioribus comitatus sui in custodus pads. Concerning the 
 more worthy and capable persons of his county (to be) 
 keepers of the peace. 
 
 Eo nomine. Under that name. 
 
 Escrow. A deed or writing left with another, to be delivered on the perform- 
 ance of something specified. 
 
 Ex delicto. From (or by) an offense (or crime.) 
 
 Ex parte. On one part. 
 
 Feme covert. A married woman. 
 
 Feme sole. An unmarried woman. 
 
 Fieri fadas. That you cause to be made or done ; or levied. A writ of 
 execution so called. 
 
 In numero. In number (or amount.) 
 
 Locus in quo. The place in which. 
 
 Maleficium. A wrong act. 
 
 Nolle prosequi. " To be unwilling to proceed." Used in criminal cases when 
 further proceedings are discontinued. 
 
 Nomine penae. By way of penalty (or punishment.) 
 
 Non culpabilis. Not guilty. 
 
 Non est factum. It is not his deed.
 
 ABRREVIATIONS. 15 
 
 Nul tiel record. No such record. 
 Post. Reference to a subsequent page. 
 Pro tern. For the time being. 
 Propter affectum. On account of partiality. 
 Propter defectum. ( 0n account of some defect (as age, &c.) 
 Propter delictum. Because of an offense (or crime.) 
 Prima facie. At first view or appearance. 
 
 Puis darrein continuance. Since the last continuance (or adjournment.) 
 Quare clausumfregit. Wherefore (or why) did he break the close ? 
 Qui tarn. Who as well. 
 Res gesta. The subject-matter ; things done. 
 Respondeat ouster. That he answer over. 
 Scire facias. That you make known. 
 
 Subpoena duces tecum. "Bring with you under a penalty." The name of a 
 
 writ by which a witness is commanded to produce 
 
 something in his possession, to be given in evidence. 
 
 Supersedeas. " You may remove or set aside." A writ so called to stay 
 
 proceedings. 
 
 Tort. A wrong ; an injury. 
 Tort feasor. A wrong-doer ; a trespasser. 
 Vi et armis. By force and arms ; by unlawful means. 
 Voir dire. To speak truly ; to tell the truth. 
 
 EXPLANATION OF ABBREVIATIONS 
 
 DSED IN THIS WORK. 
 
 Bab. Set Off. Babbington on Set Off. 
 
 Bac. Ab. Bacon's Abridgment. 
 
 Barb. Grim. L. Barbour's Criminal Law, New York. 
 
 Barn. & Ores. Barnewall & Creswell's Eeports, English. 
 
 Bin. Binney's Reports, Supreme Court, Penn. 
 
 Bl. Com. or Black. Com. Blackstone's Commentaries. 
 
 Blackf. Blackford's Reports, Indiana. 
 
 Bouv. L. D. Bouvier's Law Dictionary. 
 
 Breese or Breese R. Breese's Reports, Illinois. 
 
 Bull. N. P. Buller's Nisi Prius, English. 
 
 Bun-. Burrow's Reports, English. 
 
 Caines. Games' Reports, New York. 
 
 Chit. Crim. L. Chitty's Criminal Law. 
 
 Chit. PI. Chitty's Pleadings.* 
 
 Co. Litt. Coke on Littleton. 
 
 Com. Con. Comyn on Contracts. 
 
 Const. 111. Constitution of Illinois. 
 
 * The work referred to is the Springfield edition, 1837.
 
 16 
 
 ABBREYIATIONS. 
 
 Cot. Tr. 
 
 Co wen. 
 
 Cowen Tr. or Cowen's Tr. 
 
 Cro. Jac. 
 
 Dalt. Just. 
 
 Davis' Just. 
 
 Dougl. 
 
 Dougl. Mich. R. 
 
 East. 
 
 East's P. C. 
 
 Edw. Tr. 
 
 Esp. 
 
 Fost. 
 
 Gil. or Gilm. 
 
 Gould PL 
 
 Green. 
 
 Greenl. 
 
 Greenl. Ev. 
 
 Haines' Town. Org. 
 
 Hale's P. C. 
 
 Hawk. P. C. 
 
 Hill. 
 
 Ibid. 
 
 Id. 
 
 111. 
 
 Johns. 
 
 Johns. Cas. 
 
 Ld. Raym. 
 
 M. & M. 
 
 Peake's R. 
 
 Penn. on Sm. Cau. 
 
 Phil. Ev. 
 
 Rawle R. 
 
 Rev. Stat. 
 
 Salk. 
 
 Saund. 
 
 Scam. 
 
 Sess. Laws. 
 
 Stark or Stark Ev. 
 
 Swan's Tr. 
 
 T.R. 
 
 Taunt. 
 
 Tidd or Tidd'a Pr. 
 
 Wend. 
 
 Willes or Willcs' It. 
 
 Wright's R. 
 
 Cotton's Treatise. 
 
 Cowen's Reports, New York. 
 
 Cowen's Treatise. 
 
 Croke's Reports during James I. 
 
 Dalton's Justice. 
 
 Davis' Justice. 
 
 Douglas' Reports, English. 
 
 Douglas' Reports, Michigan. 
 
 East's Reports, English. 
 
 East's Pleas of the Crown. 
 
 Edward's Treatise, New York. 
 
 Espinasse's Reports. 
 
 Foster's Reports, English. 
 
 Gilman's Reports, Illinois. 
 
 Gould's Pleading. 
 
 Green's Reports, New Jersey. 
 
 Greenleaf s Reports, Maine. 
 
 Greenleaf s Treatise on the Law of Evidence. 
 
 Haines' Township Organization. 
 
 Hale's Pleas of the Crown. 
 
 Hawkin's Pleas of the Crown. 
 
 Hill's Reports, New York. 
 
 Ibidem, (in the same place.) 
 
 Idem, (the same.) 
 
 Illinois Reports. 
 
 Johnson's Reports, New York. 
 
 Johnson's Cases, New York. 
 
 Lord Raymond. 
 
 Moody & Malkin's Reports, English. 
 
 Massachusetts Reports. 
 
 Peake's Reports, English. 
 
 Pennington on Small Causes, New Jersey. 
 
 Phillip's Evidence. 
 
 Rawle's Reports, Penn. 
 
 Revised Statutes. 
 
 Salkeld's Reports, English. 
 
 Saunders' Reports, English. 
 
 Scammon's Reports, Illinois. 
 
 Session Laws. 
 
 Starkie on the Law of Evidence. 
 
 Swan's Treatise. 
 
 Term Reports. 
 
 Taunton's Reports, English. 
 
 Tidd's Practice. 
 
 Wendell's Reports. 
 
 Willes' Reports, English. 
 
 Wright's Reports, Ohio.
 
 POWERS AND DUTIES 
 
 OF 
 
 JUSTICES OF THE PEACE. 
 
 PART FIRST. 
 
 OF JUSTICES OF THE PEACE, THEIR ELECTION AND QUALIFICA- 
 TION, AND PROCEEDINGS BEFORE THEM IN CIVIL CASES. 
 
 CHAPTER I. 
 
 OF THE OFFICE OF JUSTICE OF THE PEACE. 
 
 I. OF THE JUSTICE. 
 II. OF THE ELECTION OF JUSTICES. 
 
 1. In Counties not adopting Town Organization. 
 
 2. In Counties adopting Town Organization. 
 
 III. OF QUALIFICATION. 
 
 IV. OF KESIGNATIONS. 
 
 I. OF THE JUSTICE. 
 
 Justices of the peace are defined to be public officers invested with 
 judicial powers for the purpose of preventing breaches of the peace 
 and bringing to punishment those who have violated the law. 1 They 
 are so called, says DALTON, because they be judges of record, and 
 withal, to put them in mind (by their name) that they do justice, 
 which is, to yield to every man his own, according to the laws, cus- 
 toms, and statutes, without respect of persons. The common law has 
 ever had a special care and regard for the conservation of the peace ; 
 for peace is the very end and foundation of civil society and, there- 
 fore, before the constitution of justices was invented in England, 
 there were peculiar officers appointed by the common law for the 
 maintenance of the public peace, and were called conservatores pads. 
 
 (I) Bouv. L. D. 751.
 
 18 OF THE JUSTICE. ^ . . [PART 1, 
 
 They were simply conservators of the peace, which power they either 
 claimed by prescription, or were bound to exercise it by the tenure of 
 their lands ; or, lastly, were chosen by the freeholders in full county 
 court before the sheriff; the writ for their election directing them to be 
 chosen " de probioribus et potentioribm comitatus sui in custodus pa- 
 ds" (concerning the more worthy, and capable persons of his county 
 (to be) keepers of the peace.) But when Queen Isabel, the wife of 
 Edward II. had contrived to depose her husband by a forced resigna- 
 tion of the crown, and had set up his son Edward III. in his place ; this 
 being a thing then without example in England, it was feared would 
 much alarm the people. To prevent, therefore, any risings, or other 
 disturbances of the peace, the new King sent writs to all the sheriffs of 
 the realm, giving a plausible account of the manner of his obtaining 
 the crown, and withal commanding each sheriff that the peace be kept 
 throughout his bailiwick on pain and peril of disinheritance, and loss of 
 life and limb and in a few weeks after the date of these writs it was 
 ordained in parliament that for the better maintaining and keeping of 
 the peace in every county, good men and lawful, who were no main- 
 tainers of evil, or barretors in the country, should be assigned to keep 
 the peace. And in this manner, and upon this occasion was the elec- 
 tion of the conservators of the peace taken from the people and given 
 to the King ; this assignment being construed to -be by the King's per- 
 mission. But still they were only called conservators, wardens or keep- 
 ers of the peace, till the statute 34 Edw. III. c. 1, gave them the pow- 
 er of trying felonies ; when they acquired the more honorable appella- 
 tion of justices. 1 The statute of 36 Elizabeth, it seems, however, is 
 the first that names them justices of the peace, 2 which was upwards of 
 two hundred years after acquiring the appellation of justices. 
 
 The power, office and duty of a justice of the peace depends on his 
 commission, and on the several statutes which have created objects of 
 his jurisdiction. His commission first empowers him to conserve the 
 peace ; and thereby gives him all the power of the ancient conserva- 
 tors at the common law, in suppressing riots and affrays, in taking se- 
 curities for the peace, and in apprehending and committing felons and 
 other criminals. And as to the powers given to one, two or more jus- 
 tices by the several statutes, which from time to time have heaped upon 
 them such an infinite variety of business, that few care to undertake, 
 and fewer understand the office ; they are such, and of so great im 
 portance to the public, that the country is greatly obliged to any wor- 
 
 (1) Bl. Com. 360. (2) Dalt. Just. 6.
 
 CHAP. 1.] or THE ELECTION OF JUSTICES. . 19 
 
 thy magistrate, that, without sinister views of his own, will engage in 
 this troublesome service, and therefore, if a well-meaning justice makes 
 any undesigned slip in his practice, great lenity and indulgence are 
 shown to him in the courts of law ; and there are many statutes made 
 to protect him in the upright discharge of his office. But on the other 
 hand, any malicious or tyrannical abuse of their office is usually severely 
 punished. 1 
 
 If magistrates were always held liable for every trifling mistake they 
 commit in the performance of their various official duties, few persons 
 would be found willing to accept an office of so little profit and attend- 
 ed with such great risk. Courts, therefore, from necessity, are bound 
 to view their acts with reasonable indulgence, and if they are govern- 
 ed by good faith, and act within their jurisdiction, they will not be held 
 liable for errors of judgment in matters of mere form. 2 
 
 The office of justice of the peace was introduced by our forefathers 
 at their migration ; and in all particulars then applicable, or which have 
 since become applicable, to this jurisdiction, may be considered as pos- 
 sessing here the general character and functions allowed to it in Eng- 
 land, by force of the statutes which had there created and regulated 
 this ancient and important office.. 8 In this State as well as the States 
 of the Union generally, the statutes since enacted, have enumerated 
 the powers and duties of justices of the peace, both in civil and crimi- 
 nal matters ; so that now there is little, if any occasion to recur to the 
 ancient English statutes for the powers of this office ; and perhaps, the 
 enumeration itself will preclude to a certain extent such recurrence. 
 The office, therefore, exists in this country, principally, if not entirely 
 according to our statutes. 
 
 II. OF THE ELECTION OF JUSTICES. 
 
 By Art. V. $ 27 of the constitution of this State it is declared that 
 " There shall be elected in each county in this State, in such districts as 
 the General Assembly may direct, by the qualified electors thereof, 
 a competent number of justices of the peace, who shall hold their 
 offices for the term of four years, and until their successors shall have 
 been elected and qualified, and who shall perform such duties, receive 
 such compensation, and exercise such jurisdiction as may be prescribed 
 by law." 
 
 (1) 1 Bl. Com. 364. (2) Breese R. 145. (3) 1 Mass. R. 489.
 
 20 OF THE ELECTION OF JUSTICES. [PART 1, 
 
 1. In Counties not adopting Township Organization. 
 
 By section 16 of the act entitled " An act establishing county courts 
 and providing for the election of justices of the peace and constables, 
 and for other purposes," Approved Feb. 12th, 1849, and in force April 
 13th, 1849, it is enacted that " On Tuesday after the first Monday in 
 November in the year eighteen hundred and forty-nine, and on the 
 Tuesday after the first Monday in November quadrennially, forever 
 thereafter, there shall be elected in each of the several counties of 
 this State now organized, or that may hereafter from time to time be 
 organized, and in' the districts now established in pursuance of the 
 laws of this State, or that may hereafter be established and by the 
 qualified electors thereof, the number of justices of the peace and con- 
 stables to which such counties are now entitled by law, or to which 
 they may hereafter from time time be entitled ; and said justices of 
 the peace and constables so elected shall exercise the same powers 
 and jurisdiction, and perform the duties, and be under the liabilities, 
 in all respects whatever, of the justices of the peace and constables 
 now in office, and be entitled to the same fees and emoluments, or 
 such as may be provided by law." 
 
 By Chap. LIX. of the Kevised Statutes title, " JUSTICES OF THE 
 PEACE AND CONSTABLES," pp. 313, 314 which is understood as being 
 referred to by the foregoing section ; it is provided as follows : 
 
 "SEC. 2. Two justices of the peace and two constables shall be 
 elected in each election precinct in each county, except that precinct 
 in which the county seat is located, in which there shall be three jus- 
 tices of the peace and three constables elected." 
 
 " SEC. 5. The County Commissioners' Court 1 of any county may, 
 when they deem it necessary, cause an election to be held in the pre- 
 cinct in which the county seat is located, for the election of one addi- 
 tional justice of the peace and two constables, who shall hold their 
 offices until the next quadrennial election of justices of the peace 
 and constables, and until others are elected and qualified. At such 
 quadrennial election, the whole number of justices of the peace and 
 constables to which each precinct is herein entitled, shall be elected." 
 
 By the foregoing sections, it will be seen that each precinct, or elec- 
 tion district, in counties not adopting Township organization, is entitled to 
 two justices and two constables, except that in which the county seat is 
 located, which may have four justices and five constables. 
 
 (1) Now County Court.
 
 ClIAP. 1.] OF THE ELECTION OF JUSTICES. 21 
 
 Vacancy. Whenever any vacancy happens in. the office of the jus- 
 tice of the peace, it is made the duty of the clerk of the County Court 
 to issue his orders to the Judges of Election in the precinct in which 
 the vacancy shall happen, requiring them on a certain day therein nam- 
 ed, not less than twenty days from the issuing of such order, to hold an 
 election, to fill such vacancy, which order is to be immediately delivered 
 by said clerk to the sheriff of the county, and by him, within five days 
 thereafter, delivered to the Judges of election to whom directed, when 
 the Judges of election, shall, in pursuance of said order, hold said elec- 
 tion. 1 
 
 2. In Counties adopting Township Organization. 
 
 By the act to provide for Township organization, approved Februa- 
 ry 17th, 1851, Art. 3, Sec. 2, it is provided that two justices of the peace 
 and two constables shall be elected in each town on the first Tuesday in 
 April, at the time of choosing town officers, once in four years, only, 
 except to fill vacancies. By an act amendatory to the foregoing act, ap- 
 proved February 27th, 1854, Sec. 15, it is enacted " That in all towns 
 having a population of more than two thousand inhabitants, it shall 
 be lawful for the qualified voters thereof to elect one justice of the 
 peace and one constable for each and every thousand of its inhabit- 
 ants, until the population shall reach five thousand, after which, the 
 number of justices of the peace and constables shall not be increased. 
 Said justices of the peace and constables shall be elected in the same 
 manner, and shall hold their offices for the same term of time as other 
 justices of the peace and constables. Said justices of the peace shall 
 be commissioned by the Governor, and shall have the same jurisdic- 
 tion, power and authority, and be subject to the same liabilities, and 
 shall execute bond and be sworn in the same manner as other justices 
 of the peace." 
 
 It seems to be rather an unwise provision in having the term of office 
 of justices and constables all expire at the same time, for as it now is, it 
 not unfrequently happens that confusion arises, in determining who 
 shall hold over, or who is the successor of a former incumbent. For in- 
 stance, in a town or precinct having two justices of the peace, when 
 their term of office expires, two different persons are elected to succeed 
 them, one of which fails to qualify ; the question arises, which of the 
 former justices holds over. Under this state of things, probably neith- 
 er can claim the right of holding over. If, however, a town should 
 
 (1) See act establishing County Courts, &c., 1849, sections 6 and 19.
 
 22 QUALIFICATION. [PART 1, 
 
 neglect to choose the number of justices or constables, that it would be 
 entitled to, but should elect a less number than allowed by law, it has 
 been decided that this would oust all those of the preceding term ; neith- 
 er of the former incumbents could hold over on the pretense that no 
 person is chosen in his place, notwithstanding there may have been a 
 full number for the preceding term. 1 
 
 III. OF QUALIFICATIONS. 
 
 By the Kevised Statutes chap. LIX. sec. 9, it is enacted, " That jus- 
 tices of the peace and constables shall, before entering upon the duties of 
 their respective offices, be sworn, faithfully to perform the duties of 
 their respective offices according to law, and to the best of their under- 
 standing." 
 
 " SEC. 10. Every justice of the peace, before entering upon the 
 duties of his office, shall execute and deliver to the clerk of the county 
 commissioners' court 2 of his county, and within twenty days after his 
 said election, a bond to be approved by said clerk, with one or more 
 good and sufficient securities, in the sum of not less than five hundred 
 nor more than one thousand dollars : conditioned that he will justly 
 and fairly account for and pay over all moneys that may come to his 
 hands under any judgment or other wise, by virtue of his said office : 
 and that he will well and 'truly perform all and every act and duty 
 enjoined on him by the laws of this State, to the best of his skill and 
 abilities. Said bond shall be made payable to the county commission- 
 ers of the county in which such justice of the peace shall be elected, 
 and their successors in office, for the use of the people of the State of 
 Illinois, and shall be held for the security and benefit of all suitors 
 and others, who may be injured or aggrieved by the official acts or 
 misconduct of such justice of the peace." 
 
 There may be some doubt as to whom the bond of a justice of the 
 peace should be made payable, under our later statutes. In counties 
 adopting township organization, it should, doubtless, be made payable 
 to the Board of Supervisors, and in counties not adopting town organi- 
 zation, it is, perhaps, proper that it should be made payable to the 
 County Court of the proper County. 
 
 (1) 17 Wend. 81. (2) Clerk of the County Court.
 
 I 
 
 ClIAP. 1.] QUALIFICATION. 23 
 
 Form of Oath of Office of Justice of the Peace. 
 
 STATE OF ILLINOIS, ) c 
 Lake COUNTY, ) ss ' 
 
 I, , being elected a Justice of 
 
 the Peace, in and for the County of Lake, in the State of Illinois, do 
 solemnly swear, (or affirm,} that I will support the Constitution of the 
 United States, and of the State of Illinois, and that I will faithfully 
 perform the duties of my said office according to law, to the best of my 
 understanding. 
 
 I do solemnly swear, (or affirm, as the case may be,} that I have 
 not fought a duel, the probable issue of which might have been the death 
 of either party, nor been a second to either party, nor in any manner 
 aided or assisted in such duel, nor been knowingly the bearer of such 
 challenge or acceptance, since the adoption of the constitution, and that 
 I will not be so engaged or concerned, directly or indirectly, in or about 
 any such duel, during my continuance in office. So help me God. 
 
 Subscribed and Sworn to, before me, 
 
 A. B. 
 
 this day of A. D. 18. 
 
 J. C. BlDDLECOME, 
 
 Clerk of Co. Court of Lake County. 
 
 It is made the duty of the clerk of the county court to endorse the cer- 
 tificate of this oath upon the commission of the justice, upon receiving 
 or delivering out the same. 
 
 Form of Official Bond of Justice of the Peace. 
 
 KNOW ALL MEN BY THESE PRESENTS, That we, as principal, 
 
 and and as sureties, are held and firmly bound unto 
 
 the Board of Supervisors, (or as the case may be,} of the 
 
 County of , and their successors in office, for the use of the 
 
 people of the State of Illinois, in the sum of dollars, (not less 
 
 than Jive hundred nor more than one thousand dollars,} to be paid to 
 
 the said Board of Supervisors, (or as the case may be,} and 
 
 their successors in office, for the use aforesaid ; for the payment of which, 
 well and truly to be made, we bind ourselves, our executors and ad- 
 ministrators, and each of them firmly by these presents. Sealed with 
 our seals, and dated this day of A. D. 18 . 
 
 WHEREAS, at an election lately held in the town of (or pre- 
 cinct of ) in the county aforesaid, the above bounden 
 
 was duly elected a Justice of the Peace, in and for said county.
 
 24 RESIGNATION. [PART 1, 
 
 ^ 
 
 Now, therefore, the condition of this obligation is such, that if the 
 
 above bounden shall justly and fairly account for and pay over 
 
 all moneys that may come to his hands, under any judgment or other- 
 wise, by virtue of his said office ; and shall well and truly perform all 
 and every act and duty enjoined on him by the laws of the State of 
 Illinois, to the best of his skill and abilities, then the above obligation 
 to be void, otherwise to remain in full force and effect. 
 
 {Seal.} 
 (Seal.) 
 (Seal.) 
 
 Great care should be exercised by justices elect in steps for qualifica- 
 tion, in pursuing the law strictly, that questions in the future, may be 
 avoided, and particularly, in relation to the bond ; in the case of The 
 People v. PerceUs, 1 where a justice elect, had within twenty days after 
 his election, filed his official bond in compliance with the statute in 
 such cases made and provided, except that the condition thereof, omit- 
 ted to recite the following requirement : " and that he will well and 
 truly perform all and every act and duty enjoined on him by the laws 
 of this State, to the best of his skill and abilities;" and after the expi- 
 ration of twenty days, as aforesaid, he filed a new bond with other se- 
 curities, containing the provisions omitted in the first; it was held that 
 the first bond was insufficient, that the second was not filed within the 
 time required by the statute, and that therefore, the office became vacant. 
 
 Justices of the peace, when qualified according to law, have jurisdic- 
 tion throughout their county. 2 
 
 Justices of the peace who have given bond and received commissions 
 according to law, are authorized and empowered, and it is made their duty 
 to receive money on all notes and demands which may be placed in their 
 hands for suit or collection, and upon all judgments rendered by them 
 prior to the issuing execution thereon. 8 
 
 IV. OF RESIGNATIONS. 
 
 Resignations of the office of justice of the peace must be made to 
 the clerk of the county court of the proper county, who is required to 
 
 (1) 3 Gilm. 59. (2) Rev. Stat. 314, sec. 7. 
 
 (3) Rev. Stat. 316. sec. 19.
 
 CHAP. 1.] RESIGNATION. 25 
 
 immediately enter the date of every such resignation in a book provided 
 for that purpose, -which book, or a certified copy of entries therein, 
 will be received as evidence in all courts within the State. 1 When 
 any justice of the peace resigns his office, or removes from the county, 
 or from the township or precinct in which he was elected, it is his duty 
 to deliver over his docket and papers relating to the business transacted 
 before him, to the nearest justice of the peace in his county, and to 
 return to the office of the clerk of the county court all copies of the 
 statutes which he may have received from that office ; and in case of 
 the death of any justice of the peace, it is the duty of the person hav- 
 ing possession, of such docket, papers and statutes, to deliver them over 
 as aforesaid. 2 
 
 A person who has been elected a justice of the peace for a precinct, 
 if he is subsequently elected to the same office for a township, and ac- 
 cepts the latter, it is an implied resignation of the first office which be- 
 comes vacated. 8 
 
 (1) Rev.'Stat. 315, sec. 15. (2) Rev. Stat. 331, sec. 112. (3) 15 111. 375.
 
 26 JUSTICE'S JURISDICTION GENERALLY. [PART 1, 
 
 CHAPTER II. 
 
 OF THE JURISDICTION OF JUSTICES OF THE PEACE IN 
 CIVIL CASES. 
 
 I. OF WHAT THE JUSTICE HAS JURISDICTION TO HEAR AND DETER- 
 MINE. 
 II. OF JURISDICTION OFT?HE SUBJECT MATTER. 
 
 III. OF JURISDICTION OF THE PERSON. 
 
 IV. OF PROCEEDINGS WITHOUT JURISDICTION. 
 
 I. OF WHAT THE JUSTICE HAS JURISDICTION TO HEAR AND DETERMINE. 
 
 A justice's court is one of limited jurisdiction. The Statute is the 
 charter of its authority ; and whenever it assumes jurisdiction in a case 
 not conferred by the statute, its acts are null and void. 1 The jurisdic- 
 tion of the justice is conferred by statute, and in its exercise he must 
 proceed in strict conformity with the manner prescribed. 2 
 
 By Revised Statutes, chap. LIX., title, "JUSTICES OF THE PEACE AND 
 CONSTABLES," sec. 17, it is enacted that, "Justices of the peace shall 
 have jurisdiction in their respective counties, to hear and determine all 
 complaints, suits and prosecutions of the following description : 
 
 "1st. In actions of debt on bonds, contracts, agreements, promisso- 
 ry notes, or other instruments in writing, in which the amount claimed 
 to be due, does not exceed one hundred dollars. 
 
 " 2d. In actions of assumpsit upon any contract or promise, verbal 
 or written, express or implied, for a valuable consideration in which the 
 amount claimed to be due does not exceed one hundred dollars. 
 
 "3d. In suits brought for goods, wares or merchandise, sold and 
 delivered ; for work and labor done, or services rendered ; for money 
 had and received ; for money lent ; for money received by the defend- 
 ant, for the use of the plaintiff; or for money paid by the plaintiff, for 
 the defendant at his request ; in which the amount claimed to be due 
 does not exceed one hundred dollars. 
 
 (I) 1 Scam. 237. (2) 2 Scam. 469.
 
 CHAP. 2.] JUSTICES JURISDICTION GENERALLY. 27 
 
 "4th. In suits for money claimed to be due upon unsettled ac- 
 counts, in which the balance claimed to be due does not exceed one 
 hundred dollars. 
 
 " 5th. In suits for money claimed to be due upon settled accounts 
 between individuals, in which the balance ascertained to be unpaid shall 
 not exceed one hundred dollars. 
 
 " 6th. In all suits upon contracts or promises for rent, and in cases 
 of distress for rent, upon landlords' warrants, in which the amount 
 claimed to be due does not exceed one hundred dollars. 
 
 " 7th. In actions of debt for trespass, by cutting timber in which 
 the amount claimed does not exceed one hundred dollars. 
 
 " 8th. In actions for money claimed to be due for specific articles 
 of property whether claimed to be due by bond, note, or other instru- 
 ment in writing, or upon a promise express or implied, in which the 
 value of the property claimed does not exceed one hundred dollars. 
 
 " 9th. For all debts or demands claimed to be due not exceeding one 
 hundred dollars, in which the action of debt or assumpsit will lie. 
 
 "10th. In all actions in which an executor or administrator is 
 plaintiff, or for property purchased at an executor's or administrator's 
 sale, where the amount claimed does not exceed one hundred dollars. 
 
 "llth. In all actions in which an executor .or administrator is de- 
 fendant, where the amount claimed does not exceed twenty dollars. 
 
 " 12th. In all actions of trespass on personal property, and of tro- 
 ver and conversion, in which the damage claimed does not exceed one 
 hundred dollars. 
 
 " 13th. [This paragraph of the section gives jurisdiction in cases of 
 assault and battery and affrays, which will be treated upon in another 
 part of this work.] 
 
 " 14th. In all actions against sheriffs, coroners and constables for 
 malfeasance, misfeasance or nonfeasance in office, wherein the amount 
 claimed does not exceed one hundred dollars. 
 
 " The provisions of this section shall apply as well to proceedings 
 commenced by attachment, as to other cases." 
 
 " SEC. 18. In all suits provided for in the preceding section, the 
 jurisdiction of the justice shall be deemed to extend to cases in which 
 the original claim, debt, demand or damages may have originally ex- 
 ceeded the sums of one hundred dollars, and twenty dollars respective- 
 ly, but which shall have been reduced by fair credits below those sums." 
 
 By a late act, entitled " An act to extend the jurisdiction of justices 
 of the peace," Approved Feb. 15, 1855, it is enacted, "That the ju-
 
 28 JUSTICES JURISDICTION GENERALLY. [PART 1, 
 
 risdiction of justices of the peace be and the same is hereby extended 
 so as to include all actions for trespass upon real estate where the sum 
 claimed does not exceed one hundred dollars." 1 
 
 As we have already seen, 2 the courts from necessity will view the 
 acts of justices of the peace with great indulgence ; and where a justice 
 has jurisdiction, but proceeds erroneously, he is not a trespasser ; but 
 where he has not jurisdiction, it is otherwise, and he will be held a 
 trespasser. 8 
 
 A suit before a person assuming to act as a justice of the peace, will 
 not be dismissed on motion for the reason that he is not a legal justice 
 of the peace. It is sufficient that he assumes to act in such capacity ; 
 his right to act cannot be collaterally examined. 4 
 
 In suits where the original claim, debt or demand exceeds one hun- 
 dred dollars, and is to be reduced by credits, the credit must be bona 
 fide and not given merely to gain jurisdiction. 5 The court will pre- 
 sume such credit to be fair, until the contrary is shown. 6 
 
 Where a suit was commenced before a justice of the peace upon a 
 note for one hundred dollars, payable in twenty days, judgment was 
 rendered for the plaintiff for that amount, and the defendant appealed 
 to the Circuit Court, and there moved to dismiss the cause for want of 
 jurisdiction in the justice. Held, that the justice had jurisdiction, as 
 the face of the note did not exceed one hundred dollars, and the plain- 
 tiff did not claim interest. 7 
 
 If a controversy exists as to the amount of a set-off, a party is not 
 bound to give credit before the commencement of a suit for the exact 
 amount to which the trial may show the party entitled. 8 Where actions 
 are brought before a justice of the peace on two notes, returnable at the 
 same time, which if consolidated would exceed one hundred dollars, a 
 judgment on the first, is not a bar to a recovery on the second. Each 
 note constitutes a separate demand. 9 
 
 The question of jurisdiction with a justice of the peace, does not de- 
 pend upon the amount of the claim filed ; but the real amount due, as- 
 certained from the evidence, furnishes the test. 10 
 
 A justice of the peace has jurisdiction of a set-off exceeding one hun- 
 dred dollars where the balance claimed by the defendant does not exceed 
 that sum, and it appears that if the balance exceeds one hundred dollars, 
 the justice must do one of two things ; either allow and set off so much 
 
 (l)SeeSess. Laws, 1855, p.139. (2) Ante, p. 19. (3) Brcese 145. (4) 2 Gil. 129. 
 
 (5)1 Scam. 168. (6) Id. 575. (7) 2 Gil. 389. (8)11111.564. (9) Ibid. (10)14111.393.
 
 CHAP. 2.] JURISDICTION OP THE SUBJECT MATTER. 29 
 
 of the defendant's claim as will satisfy the plaintiff's claim and give 
 judgment for the defendant, for costs, or dismiss the suit altogether. 1 
 
 A justice of the peace has jurisdiction in an action of trespass for 
 injury to growing corn, if the damages claimed do not exceed one hun- 
 dred dollars f and has jurisdiction in an action against a constable, for 
 taking property not subject to levy ; and against a constable and his 
 sureties for the recovery of single damages for his malfeasance in taking 
 such property. 3 Single damages, likewise, can only be recovered be- 
 fore a justice of the peace in an action against the constable for taking 
 property exempt from levy ; but a suit should not be dismissed because 
 the plaintiff has claimed for treble damages, by way of penalty, given 
 by the statute, but the cause should be entertained and judgment given 
 according to the evidence. 4 
 
 In order to render the judicial proceedings or judgment of any in- 
 ferior court valid, it is necessary that the court should have jurisdiction 
 of the subject matter, and of the person. 5 
 
 II. OP JURISDICTION, OP THE SUBJECT MATTER. 
 
 It is a clear and salutary principle, that inferior jurisdictions not 
 proceeding according to the course of the common law, are confined 
 strictly to the authority given them. They can take nothing by impli- 
 cation, but must show the power expressly given them in every instance. 
 The sound rule of construction in respect to the courts of justices of 
 the peace, is, to be liberal in reviewing their proceedings as far as re- 
 spects regularity and form, and strict in holding them to the exact lim- 
 its of jurisdiction prescribed by the statutes. 6 Where the justice has a 
 general jurisdiction of the subject matter, and has obtained jurisdiction 
 of the persons, whatever errors he may commit in the subsequent pro- 
 ceedings in the suit, will not render them void, but voidable only. 
 
 If a court has no jurisdiction of the subject matter of the suit, con- 
 sent of the parties cannot confer it, 7 although it may take away error. 
 The law is well settled that in order to justify a court not of record 
 in taking cognizance of a cause, it must have jurisdiction of the subject 
 matter as well as of the person of the defendant. 8 
 
 (1) 3 Scam. 298. (2) 14 111. 257. (3) 15 111. 39. (4) Ibid. (5) 5 Wend. 170. 
 
 (6) 1 Johns, cas. 20; 3 Scam. 194. (7) Breese 32: 12 111. 122. (8) 1 Scam. 658.
 
 30 JURISDICTION OF THE PERSON. [PART 1, 
 
 III. OF JURISDICTION OF THE PERSON. 
 
 The individual proceeded against, must in general, be notified in some 
 legal form, in order to give the court or justice jurisdiction over him, 
 for it is an indispensable requisite that before the rights of a party can 
 be determined, either civilly or criminally, he shall have notice of the 
 proceedings to be had, that he may have an opportunity of defending 
 himself. 1 
 
 It is essential to the exercise of all jurisdictions rendering judg- 
 ments or decrees, affecting the person or property of the individual, 
 where the proceeding is by summons directed to the defendant, that 
 they should have indisputable evidence before them that the party to be 
 affected by their judgment or decree is regularly before them, or, in 
 other words, has been regularly summoned otherwise their proceed- 
 ings are coram non judice, consequently, irregular and void. This 
 appearance must be either actual or constructive. 
 
 The plaintiff in a case where the defendant does not appear, proceeds 
 at his peril ; he is bound to see that all the antecedent proceedings are 
 regular, and if they are not, he necessarily consents to meet the conse- 
 quences of such irregularities. 2 If the defendant appears, however, 
 and proceeds in the cause without objection to the process or service 
 thereof, this will cure not only all defects and informalities therein, but 
 also the want of process. 3 
 
 Objections to the proceedings of the justice on the ground that the 
 defendant has had no notice, or but an insufficient notice of such pro- 
 ceedings, are in the nature of a plea in abatement to the jurisdiction of 
 the justice, and are required to be made at the first moment at which 
 the defendant is able to make them ; 4 any objections to the process 
 should always be made in the first instance ; it will be too late after 
 pleading and going to trial. 6 
 
 A justice can render judgment against a defendant only where pro- 
 cess is personally served on him, or he appears in person before the jus- 
 tice and waives process. 
 
 A defendant cannot authorize a justice to render judgment against 
 him by sending a letter to such justice requesting him to enter judg- 
 ment against the defendant in favor of the plaintiff, for an amount named 
 in the letter, although the defendant expressly state that he waived 
 
 (1) 4 Bl. Com. 282; 1 Scam. 517. (2) 1 Scam. 174. (3) Id. 267. 
 
 (4) 4 Scam. 176. (5) 2 Caine 134. 

 
 CHAP. 2.] PROCEEDING WITHOUT JURISDICTION. 31 
 
 the service of the process and authorized the judgment. A judgment 
 obtained under such circumstances is not only voidable, but totally 
 void, and no one can acquire any benefit or right under it. 1 
 
 But notice to the defendant need not in all cases be personal; the 
 legislature may prescribe what notice shall be sufficient. Thus in suits 
 by attachment against the property of the defendant, personal service 
 is in certain cases dispensed with, and the justice may entertain juris- 
 diction of the cause, and render judgment for certain, purposes. 
 
 IV. OF PROCEEDING WITHOUT JURISDICTION. 
 
 It is a general and well settled rule, that where a court of special 
 and limited jurisdiction, like that of a justice of the peace, has neither 
 jurisdiction of the subject matter of the suit, nor of the person of the 
 defendant, everything done therein is absolutely void, and all are tres- 
 passers who are concerned in the proceedings. 2 But this rule, so far 
 as respects the officer serving the process, is somewhat modified. 8 
 
 A justice may also be liable as a trespasser, where there is not a total 
 want of jurisdiction, but where some proceeding or proof is wanting, 
 which is necessary, in order to give him authority to act in the particular 
 case ; as, if he issue an attachment without any proof of absconding or 
 concealment, as provided by the statute in such cases, which being exe- 
 cuted, not only the justice, but also the plaintiff, would be liable as tres- 
 passers ; but in such case the constable would be excused, the process 
 being regular upon its face. 4 
 
 In justices' court, no formal plea to the jurisdiction of the court is 
 necessary. The question may be raised, and objection stated, at any 
 stage of the proceedings ; and the justice, upon becoming satisfied that 
 he has not jurisdiction, should at once dismiss the cause. 
 
 (1)2 Scam. 468. (2) Breese 144 ; 12 Johns. 265 ; 16 Id. 152 ; 16 Id. 145. 
 
 (3) 5 Wend. 170 ; 6 Id. 367. (4) 11 Johns. 176 ; 3 Cowen 206.
 
 32 ACTIONS BEFORE JUSTICES OF THE PEACE. [PART. 1, 
 
 CHAPTER III. 
 
 OF THE DIFFERENT FORMS OF ACTIONS. 
 
 I. WHAT ACTIONS MAY BE BROUGHT BEFORE JUSTICES OF THE PEACE. 
 II. OF THE ACTION OF DEBT. 
 
 III. OF THE ACTION OF COVENANT. 
 
 IV. OF THE ACTION OF ASSUMPSIT. 
 
 V. OF THE AC TION OF TRESPASS. 
 
 1. Of this Action Generally. I 
 
 2. Injuries to Personal Property. 
 
 3. Injuries to Seal Property. 
 
 VI. OF THE ACTION OF TROVER. 
 
 I. WHAT ACTIONS MAY BE BROUGHT BEFORE JUSTICES OF THE PEACE. 
 
 Actions that may be brought before justices of the peace, which will 
 be here noticed, are of two kinds, viz. : those founded on contracts, ex- 
 press or implied ; and those founded on torts, or wrongs. 
 
 Those founded on contract, are Debt, Covenant and Assumpsit ; 
 those on torts, or wrongs, are Trespass and Trover. 
 
 While the principles of law, by which these several actions are dis- 
 tinguished, are of great importance to the lawyer, and are more closely 
 regarded in courts of record, they are, under our statute, at least, of 
 but little practical use to a justice of the peace. The cause of action 
 should, in general, be stated on the docket, by either copying the bill of 
 particulars, note, or contract filed by the plaintiff, by briefly noting 
 its contents, or by stating in substance the nature of the plaintiff's 
 claim ; yet it is not always absolutely necessary, and in general 
 it may be more safe not to designate the name of the action. It will 
 only be necessary, therefore, to define in general terms, the different 
 actions.
 
 CHAP. 3.] ACTION or DEBT ACTION OF COVENANT. 33 
 
 II. OF THE ACTION OF DEBT. 
 
 This action is so called because it is in legal consideration for the re- 
 covery of a debt. 1 Formerly, in this action, the plaintiff was bound 
 to prove the whole debt he claimed, or recover nothing at all. The 
 debt, being one single cause of action, fixed and determined, and, 
 therefore, if the proof varied from the claim, it could not be looked 
 upon as the same contract whereof the performance was sued for. But 
 this is no longer the case, for it is now completely settled, that the 
 plaintiff in an action of debt may prove and recover less than the sum 
 demanded by the writ. 2 
 
 It is not advisable to bring this action except in cases where no other 
 action will lie. A greater degree of nicety is necessary in prosecuting 
 it, than in covenant or assumpsit, which will lie in a great variety of 
 cases upon contract where debt may also be brought. The cases in 
 which debt is the sole remedy, may probably be reduced to the following : 
 1. Debt on & penal or single bond. 2. On judgments in courts of 
 record, and likewise in justices' courts. 8 3. For various penalties 
 imposed by statute. 
 
 As a general rule, however, debt will lie upon any contract, whether 
 under seal, written, verbal, express or implied, where the demand is for 
 a sum of money certain, or a sum that is capable of being readily 
 reduced to a certainty ; as, for goods sold, money lent, paid, had and 
 received, and upon a promissory note, bond, or other contract, for the 
 payment of money. 
 
 , III. OF THE ACTION OF COVENANT. 
 
 This action lies to recover damages for the breach of a contract or 
 agreement under seal, and it cannot be maintained except upon a sealed 
 instrument. Covenant is the only remedy for the non-performance of a 
 contract or agreement under seal, where the damages are unliquidated, 
 or cannot be ascertained from the instrument itself ; for in such case debt 
 will not lie, and assumpsit will not ordinarily He on a sealed instrument. 
 Covenant is the usual remedy on all contracts or agreements under seal. 
 
 It is not essential that the word covenant should be in the instrument 
 in order to render the defendant liable in covenant ; words to that effect 
 will be deemed sufficient. 
 
 (1) 1 Chit. pi. 123. (2) 3 Bl. Com. 154 n; 2 Chitty PI. 285, note o; 11 East 62. 
 
 (3) 16 Johns. 233.
 
 34 ACTION OP ASSUMPSIT. [PART 1, 
 
 In covenant there is strictly no plea which can be termed the general 
 issue, for non estfactum, (not his deed) only puts in issue the fact of 
 the execution of the deed, and therefore most matters of defense under 
 this form of action must be specially pleaded, or notice given under the 
 plea of non est factum. 1 
 
 The jurisdiction of the justice, in this action, is perhaps, under our 
 statute, somewhat limited. A justice, no doubt, has jurisdiction in this 
 form of action, upon contracts under seal, for rent, and perhaps in one 
 or two other instances under the 17th section of the justices' act. 
 
 IV. OF THE ACTION OF ASSUMPSIT. 
 
 This action is more extensively used than any other form of action, 
 and under it will be founcrthe largest and most general jurisdiction 
 of the justice. 
 
 It is so called from the word assumpsit, (he undertook or promised,) 
 which, when the pleadings in courts of record were in Latin, was 
 always inserted in the declaration as descriptive of the defendant's 
 undertaking. It may be defined to be an action for the recovery of 
 damages for the non-performance of a parol or simple contract ; or, 
 in other words, a contract not under seal nor of record, circumstances 
 which distinguish this remedy from others, for the action of debt is in 
 legal consideration for the recovery of a debt eo nomine and in numero, 
 and is most frequently brought upon a deed ; and the action of covenant, 
 although in form the recovery of damages is sought by the plaintiff, 
 can only be supported upon a contract under seal. Assumpsit however 
 is not sustainable, unless there have been an express contract, or unless 
 where the law will imply a contract. 2 
 
 A contract not under seal, whether it be in writing or merely verbal, 
 is a parol or simple contract. Parol or simple contracts are either 
 express or implied. Express contracts are where the terms of the 
 bargain, agreement, or promise, are openly uttered and expressed by 
 the contracting parties, and may be either to do, or to forbear to do, a 
 particular act, as to pay money on the sale or exchange of cattle or 
 goods ; to perlprm work ; to let or take lands or houses ; to warrant 
 the soundness or quality of cattle or goods ; to indemnify ; to forbear 
 to sue, &c. 8 So promissory notes and all agreements reduced to 
 writing are express contracts. Implied contracts, or promises, are 
 
 (1) 1 Chit. pi. 131 to 138. (2) 1 Chit. pi. 112. (3) 1 Com. Con. 3.
 
 CjIAP. 3.] ACTION OF ASSUMPSIT. 35 
 
 such as reason and justice dictate, and which, therefore, the law pre- 
 sumes every man undertakes to perform. As, if a person is employed 
 by another to do any business for him, or perform any work, and 
 nothing is agreed upon as the price of his labor. So when a man 
 orders goods of a tradesman, without any agreement as to the price, 
 the law implies that the buyer contracted to pay to the seller their real 
 value. 1 So likewise when money is lent and advanced, paid, laid out 
 and expended, or had and received, and nothing is expressly stipulated 
 by the parties as to the repayment thereof, the law raises an implied 
 promise that it shall be repaid on request. 2 But in such cases an actual 
 request is not necessary before commencing the suit, but the bringing 
 of the suit is a sufficient request. And in various other instances whieh 
 might be mentioned, though no express agreement be made, a legal 
 liability arises, and the law presumes that the party promised to pay the 
 debt, or perform the duty or service. In short, assumpsit is a proper 
 form of action to recover damages for the non-performance of all con- 
 tracts or agreements, verbal or written, express or implied, not under seal. 8 
 The declaration in this action should, except in cases of bills of 
 exchange, promissory notes and checks, disclose the consideration upon 
 which the contract was founded, the contract itself, whether express or 
 implied, and the breach thereof; and the damages should be laid suffi- 
 cient to cover the real amount ; 4 and in all actions upon contracts not 
 under seal, except in cases above mentioned, it is incumbent on the 
 plaintiff under the general issue to prove a consideration for the alleged 
 promise of the defendant. This may ordinarily be done, however, by 
 proof of all the circumstance's of the transaction. Thus proof of the 
 relation of landlord and tenant, is sufficient proof of consideration for 
 a promise to manage a farm in a husband-like manner. And this 
 manner is proved by evidence of the prevalent course of husbandry in 
 that neighborhood. The same evidence will also necessarily disclose a 
 privity existing between the defendant and plaintiff; for if the plaintiff 
 is a stranger to the consideration, he cannot recover ; and in all these 
 cases, the plaintiff may recover as much as he proves to be due him, 
 within the sum mentioned, or claimed, in his declaration. If the contract 
 is in writing, and recites that a valuable consideration has been received, 
 this is prima facie evidence of the fact, and the burden of disproving 
 it is devolved on the defendant. 5 
 
 (1) i Com. Con. 5 ; 2 Bl. Com. 443. ' (2) 1 Com. Con. 6. 
 
 (3) 1 Chit. pi. 112 to 122; CowenTr. 25 to ]57, 1st ed. (4) 1 Chit. pi. 122. 
 
 (5) 2Greenl. ET. sec. 105.
 
 36 ACTION OF TRESPASS. [PART. 1, 
 
 V. OF THE ACTION OP TRESPASS. 
 
 1. Of this Action generally. 
 
 The term trespass, in its most extensive signification, includes every 
 description of wrong ; on which account an action on the case has been 
 usually called " trespass on the case ;" but technically it signifies an 
 injury committed vi et armis, (by force and arms, or by unlawful 
 means.) The action of trespass lies for injuries committed with force, 
 and generally for such as are immediate. Force may be either actual 
 or implied. 1 
 
 Until recently, as will be seen, 2 justices of the. peace, under our 
 statute, had jurisdiction in this action only in case of trespass on per- 
 sonal property. The jurisdiction being now extended to real property, 
 this action will be considered under the two different heads of Injuries 
 to Personal- Property, and Injuries to Real Property. 
 
 2. Injuries to Personal Property. 
 
 The action of trespass on personal property lies to recover damages 
 for an injwy done to personal property, occasioned by actual or implied 
 force, as, for abusing or shooting the animal of another, or intermeddling 
 with his property in exclusion of his right. 8 The action of trespass, 
 in its application to injuries to personal property, may be considered with 
 reference, 1st, To the nature of the thing affected ; 2d, the pkintifi 's 
 right thereto ; and, 3d, the nature of the injury. 
 
 And, 1st, As to the nature of the thing affected. 
 
 Trespass lies for taking or injuring all inanimate personal property, 
 and certain domiciled and tame animals, of which the law takes notice, 
 and all domestic animals belonging to, or lawfully in possession of, 
 another, whether he be the owner or not. 
 
 2d, With respect to the plaintiff 1 s interest in the property affected. 
 
 He must, at the time when the injury was committed, have had an 
 actual or a constructive possession, and also a general or qualified 
 property therein, which may be either 1st, in the case of the absolute 
 or general owner, entitled to immediate possession ; 2d, the qualified 
 owner, coupled with an interest, and also entitled to immediate posses- 
 sion ; 3d, a bailee, with a mere naked authority, unaccompanied with 
 any interest, except as to remuneration for trouble, &c., but who is in 
 actual possession; or, 4th, actual possession, though without the 
 consent of the owner. 4 In the first instance, the person who has the 
 
 (1) 1 Chit. pi. 191. (2) Ante, pp. 27, 28. (3) 5 Cowen 323; 7 Id. 735. (4) 7 Johns 435.
 
 CHAP. 3.] ACTION OF TRESPASS. 37 
 
 absolute or general property may support this action, although he has 
 never had the actual possession, it being a rule of law, that the general 
 property of personal chattels prima facie, as to all civil purposes draws 
 to it the possession. 1 In the second case, also, that of the bailee who 
 has an authority, coupled with an interest, it would seem that trespass 
 may be supported, though he never had actual possession, for an injury 
 done during his interest, as in the case of a factor, or consignee of 
 goods, &c., in which he has an interest in respect to his commission. 
 In the third instance, that of a bailee, &c., with a mere naked authority, 
 coupled only with an interest as to remuneration, he may also support this 
 action for an injury done while he was in the actual possession of the 
 thing as a carrier, factor, pawnee, a sheriff, or the like ; but it is other- 
 Wise in case of a mere servant. 2 In the fourth instance, that of the 
 finder of any article, who may maintain trespass or trover against any 
 person but the real owner, and even a person not having a strict legal 
 right, but living in possession, may, it seems, support this action 
 against any person but the legal owner. 3 
 
 3. Injuries to Real Property. 
 
 Trespass is also the proper remedy to recover damages for an illegal 
 entry upon, or an immediate injury to, real property corporeal, in the 
 possession of the plaintiff. 4 This remedy, in its application to injuries 
 to real property, may be considered with reference 1st, to the nature 
 of the property affected ; 2d, to the plaintiff's right thereto ; and, 3d, 
 to the nature of the injury, and by whom committed. 
 
 1st, With respect to the nature of the real property affected. It 
 must in general be something tangible and fixed, as a house, a room, 
 outhouses, or other buildings, or land. Trespass may be supported for 
 an injury to land, though not fenced from the property of others ; the 
 term close being technical, and signifying the interest in the soil, and 
 not merely a close or inclosure in the common acceptation of that term. 5 
 It lies, however temporary the plaintiff's interest, and though it be 
 merely in the profits of the soil ; as where a person contracted with the 
 owner of a close for the purchase merely of a growing crop of grass,, 
 there, it was decided, that the purchaser had such an exclusive posses- 
 sion of the close, though for a limited purpose, that he might maintain 
 
 (1) 8 Johns. 435; 2 Saund. 47, a. (2) 2 Bl. Com. 396. 
 
 (3) See 1 Chit. pi. 194 to 197; see also, 4 Taunt. 549; 2 Saund. 47 d; 13 Johns. 141-276; 13 
 Wend. 113. 
 
 (4) 1 Chit. pi. 200. (5) 3 Scam. 259.
 
 38 ACTION OF TRESPASS. [PART 1, 
 
 trespass quare clausum fregit against any person entering the close and 
 taking the grass even with the assent of the owner. 1 
 
 2d, With respect to the plaintiff's right or interest in the property 
 affected. The gist of this action being the injury to the possession, 
 it follows, as a general rule, that a person must have the actual 
 possession of real property to enable him to maintain trespass, and 
 although the title may come in question, yet it is not essential to the 
 action that it should. 2 The owner of wild and uncultivated land is to 
 be deemed in possession so as to enable him to maintain trespass. 8 But 
 where the possession alone is relied on to maintain this action, it must 
 be an actual and not a constructive possession. 4 Actual and exclusive 
 possession, without a legal title, is held sufficient against a wrong doer, 
 or a person who cannot show any right or authority from the real 
 owner. 5 
 
 3d, With respect to the nature of the injury to real property. 
 Trespass can only be supported when the injury was committed with 
 force, actual or implied, and immediate, and it lies, however uninten- 
 tional the trespass ; and though the locus in quo (place where the 
 trespass was committed) were uninclosed, or the door of the house 
 were open, if the entry were not for a justifiable purpose, and it is held 
 that even shooting at and killing game on another's land, though 
 without an actual entry, is in law an entry. 6 Every unauthorized entry 
 on the land of another is trespass, for which an action will lie. 7 The 
 supreme court of this State have decided that in order to maintain an 
 action of trespass for damage done by cattle or other animals, the owner 
 of the close must show that it was protected by a good and sufficient 
 fence ; that the rule of the common law, which requires the cxtfner of 
 such animals to keep them on his own land, is not in force in Illinois. 8 
 It would no doubt be otherwise, however, when it is shown that the 
 defendant's beasts entered the plaintiff's land through a defect in the 
 partition fence, which the defendant was bound to keep in repair. 9 
 
 It is held that when a trespass is committed by the cooperation of 
 several persons, they are all trespassers, and may be sued jointly and 
 separately, and any one of them is liable to pay all the damages occa- 
 sioned by the acts of the whole, but there can be but one satisfaction 
 of damages. Thus, where joint trespassers are sued separately, and 
 separate judgments obtained, the plaintiff can have but one satisfaction 
 
 (1) 1 Chit. pi. 200. (2) 1 Chit. pi. 202; 15 111. 565. (3) 8 Johns. 270. (4) 1 Scam. 181. 
 (5) 11 East 65; 13 Johns. 141; TCowen 752; 2 Gil. 652. (6) 1 Chit. pi. 206. 
 
 (7) 15 El. 53. (8) 5 Gil. 130; 13 111. 609. (9) 12 Johns. 433; 1 Cowen 79.
 
 CHAP. 3.] ACTION OF TROVER. ' 39 
 
 for his damages, and he may elect the highest sum recovered. He is 
 entitled, however, to his costs in each suit, and when he receives his 
 damages from either one, or discharges either one, without payment, 
 such act discharges all. 1 
 
 VI. OF THE ACTION OF TROVER". 
 
 The action of trover and conversion was, in its origin, an action of 
 trespass on the case for the recovery of damages against a person who 
 had found goods and refused to deliver them on demand to the owner, 
 but converted them to his own use ; from which word finding, (trouver) 
 the remedy is called an action of trover. The circumstance of the 
 defendant not being at liberty to wage his law in this action, and the 
 less degree of certainty requisite in describing the goods, gave it so 
 considerable an advantage over the action of detinue, that by a fiction 
 of law, actions of trover were at length permitted to be brought against 
 any person who had in his possession, by any means whatever, the per- 
 sonal property of another, and sold them or used them without the 
 consent of the owner, or refused to deliver them when demanded. The 
 injury lies in the conversion and deprivation of the plaintiff's property, 
 which is the gist of the action, and the statement of the finding or 
 trover is now immaterial and not traversable ; and the fact of the 
 conversion does not necessarily import an acquisition of property in the 
 defendant. It is an action for the recovery of damages to the extent 
 of the value of the thing converted. The object and result of the suit 
 are not the recovery of the thing itself, which can only be recovered by 
 an action of detinue or replevin. Lord Mansfield thus defines this 
 action: "In form it (i. e. the trover) is a fiction; in substance 
 it is a remedy to recover the value of personal chattels wrong- 
 fully converted by another to his own use ; the form supposes that the 
 defendant might have come lawfully by it, and if he did not, yet by 
 bringing this action, the plaintiff waives the trespass ; no damages are 
 recoverable for the act of taking ; all must be for the act of converting. 
 This is the tort or maleficium, (a wrong act,) and to entitle the plaint- 
 iff to recover, two things are necessary: 1st, property in the plaintiff '; 
 2d, a wrongful conversion by the defendant. 7 ' 2 
 
 (1) 8 Cowen 111. (2) See 1 Chit. pi. 168.
 
 40 HOW SUITS MAY BE INSTITUTED. [PART 1, 
 
 CHAPTEE IV. 
 
 OF THE COMMENCEMENT OF SUITS, AND THE SEEVICE AND 
 EETUEN OF PROCESS. 
 
 I. HOW SUITS MAT BE INSTITUTED. 
 
 II. OF THE PROCESS OF SUMMONS, AND FORMS THEREOF. 
 
 III. OF THE WARRANT, AND FORMS THEREOF. 
 
 IV. OF THE ARREST AND SPECIAL BAIL. 
 
 1. Of the Arrest. 
 
 2. Of Persons privileged from Arrest. 
 
 3. Of Special Bail. 
 
 V. OF SUITS BY THE VOLUNTARY AGREEMENT OF THE PARTIES. 
 
 VI. GENERAL RULES APPLICABLE TO THE SUMMONS, WARRANT, OR 
 
 WRIT OF ATTACHMENT. 
 VII. OF SECURITY FOB COSTS. 
 
 I. HOW SUITS MAY BE INSTITUTED. 
 
 Suits may be instituted before justices of the peace by process, which 
 may be either a summons, warrant, (or capias,) or an attachment, or 
 by the voluntary agreement of the parties. The proceedings by attach- 
 ment will be properly noticed in PART THIRD hereof. 
 
 II. OF THE PROCESS OF SUMMONS, AND FORMS THEREOF. 
 
 By the Revised Statutes, chap. LIX., title JUSTICES AND CONSTABLES, 
 sec. 21, p. 317, it is enacted that " Every suit before a justice, except 
 such as are hereinafter provided for in a different manner, shall be com- 
 menced by summons, which shall be in the following form as nearly the 
 case will admit, viz :
 
 CHAP. 4.] PROCESS SUMMONS. 41 
 
 STATE OF ILLINOIS, 
 COUNTY, 
 
 > ss. 
 
 The People of the State of Illinois to any Constable of said County, 
 GREETING : 
 
 You are hereby commanded to summon A. B. to appear before me, 
 
 at , on the : day of , at o'clock to 
 
 answer the complaint of C. D. for a failure to pay him a certain demand 
 not exceeding one hundred dollars ; and thereof make due return as 
 
 the law directs. Given under my hand and seal this day of 
 
 , 184 . JOHN DOE, J. P. 
 
 In which summons the justice shall specify a certain place, day and 
 hour for the trial, not less than five, nor more than fifteen days from 
 the date of such summons ; at which tune and place the defendant is 
 to appear ; which process shall be served at least three days before 
 the time of trial mentioned therein, by reading the same to the defend- 
 ant or defendants." 
 
 In estimating time for the return of a summons, one day is to be 
 reckoned inclusive and the other exclusive : that is, the day the sum- 
 mons is issued is not reckoned, but the day of return is. Thus, a 
 summons which is to be made returnable in five days, and is issued on 
 the first day of June, must be made returnable on the sixth. 1 
 
 Upon the back of every summons, the justice should make the 
 following indorsement, showing the name of the process, the parties, the 
 amount of the plaintiff's demand and costs due at the time of issuing : 
 
 Form of Indorsement on the back of Summons. 
 
 SUMMONS. 
 
 A. B. 
 
 vs. 
 C.X 
 
 Demand $- 
 Cost due, ( 
 
 The object of the indorsement of the name of the process and par- 
 ties, will be, first, for the convenience of the constable, who may have 
 a large number of papers in his hands at the same time ; and, secondly, 
 for the convenience of the justice upon filing away, who may have frequent 
 occasion to refer to papers in suits that have passed or been disposed of. 
 
 (1) 4 Scam. 421 .
 
 42 PROCESS SUMMONS. [PART 1, 
 
 Too much care cannot be exercised by the justice in preserving and 
 filing all papers in cases disposed of, and in a manner that he may 
 readily refer to them at any moment when called upon to do so ; all 
 the papers belonging to or in any way pertaining to one cause should 
 be kept and filed together ; to which end it would be well for the justice 
 to provide himself with a sufficient quantity of large envelopes, which 
 may be done at a trifling cost, in each of which may be placed all the 
 papers pertaining to every cause disposed of, leaving the envelope 
 unsealed, and indorsing the names of parties upon the back thereof in 
 proper form. 
 
 The amount indorsed as the demand upon the back of the summons, 
 should in general be the true amount which the plaintiff expects to 
 recover, or considers himself entitled to, over and above any set-off of 
 the defendant. The object of this indorsement, therefore, together 
 with the costs due at the time of issuing the process, is to apprise the 
 defendant in due time of the plaintiff's claim, and afford him an oppor- 
 tunity of payirig the amount to the constable, if he so desires, and save 
 further costs, and being in accordance with the Revised Statutes, 
 p. 319, sec. 29. 
 
 The statute requiring the justice to indorse the amount of the plain- 
 tiff's demand upon the back of the summons or warrant, is directory ; 
 an omission to do so will not operate to defeat the action. The plaintiff 
 however will be limited to the amount indorsed, and cannot recover a 
 larger sum. 1 
 
 The issuing of the summons by the justice, or other original process, 
 is the commencement of the suit. 2 
 
 The form of summons on the preceding page is the general form pre- 
 scribed by the statute, in civil actions before justices of the peace, for the 
 commencement of suits, and which is required to be followed in every 
 instance, as nearly as the case will admit ; and is therefore the proper 
 form in all civil actions, save perhaps in trespass and trover, or 
 debt upon statute penalties, in which cases it is doubtless proper that 
 it should be varied sufficiently to inform the defendant of the nature of 
 the plaintiff's claim. 8 
 
 The following is therefore given as the proper form of summons in 
 the several actions of Trespass, Trover and Debt under penal statutes : 
 
 (1) 4 Gil. 64 ; 11 111. 619. (2) 1 Scam. 30. 
 
 (3) In the case of Bedell vs. Janney et al., (4 Gil. 209,) it is held that the common form of 
 summons, as prescribed by the statute, is the proper form for both the action of debt and 
 assumpsit.
 
 CHAP. 4.] PROCESS SUMMONS. 43 
 
 Form of Summons in Trespass on Personal Property. 
 
 STATE OF ILLINOIS, ") 
 
 COUNTY. ) 
 
 The People of the State of Illinois to any Constable of said County: 
 GREETING : 
 
 You are hereby commanded to summon A. B. to appear before me, 
 
 at my office in , on the day of , A. D., 18 , at 
 
 o'clock , to answer the complaint of C. D. in an action of 
 
 trespass on personal property, for a failure to pay him a certain demand 
 for damages, not exceeding one hundred dollars ; and thereof make 
 
 due return as the law directs. Given under my hand and seal, this 
 
 day of , A. D., 18 . 
 
 JOHN DOE, J. P. [Seal.'] 
 
 Indorse upon the back as in case of ordinary summons, except the 
 sum demanded, which should be thus : " Demand for damages," $ . 
 
 The foregoing form will be the proper form of summons in case of 
 trespass upon real estate, by striking out the words " on personal 
 property," and inserting " upon real estate." 
 
 Form of Summons in Trover. 
 
 STATE OF ILLINOIS, 
 
 COUNTY, 
 
 The People of the State of Illinois to any Constable of said County : 
 GREETING : 
 
 You are hereby commanded to summon A. B. to appear before me, 
 
 at my office in , on the day of , A. D., 18 , at 
 
 o'clock , to answer the complaint of C. D., in an action of 
 
 trover and conversion, for failure to pay him a certain sum, not exceed- 
 ing one hundred dollars ; and thereof make due return as the law directs. 
 
 Given under my hand and seal this day of , A. D., 18 . 
 
 JOHN DOE, J. P. [Seal.'] 
 
 Indorse upon the back, as in case of summons for trespass. 
 
 Form of the ordinary Summons in the Action of Debt. 
 
 STATE OF ILLINOIS, ") 
 
 COUNTY, j Sl 
 
 The People of the State of Illinois to any Constable of said County : 
 
 GREETING : 
 
 You are hereby commanded to summon A. B. to appear before me, 
 at , on the day of , A. D., 18 , at
 
 44 PROCESS SUMMONS. [PART 1, 
 
 o'clock , to answer the complaint of C. D., in an action of debt, 
 
 for a failure to pay him a certain demand, not exceeding one hundred 
 dollars ; and thereof make due return as the law directs. Given under 
 
 my hand and seal, this day of , A. D., 18 . 
 
 JOHN DOE, J. P. [/Sea/.] 
 
 Indorsed upon the back the same as in case of common summons, 1 
 except as to the demand, which should be thus : " Debt, $ ." 
 
 By chap. CIV. of the Rev. Stat., p. 525, a penalty of eight dollars 
 for each tree is given against any person who shall cut, fell, box, bore, 
 or destroy, or carry away, without permission from the owner of the 
 land, any trees of a certain kind therein enumerated, and a penalty of 
 three dollars for each tree of such kind as are not there enumerated ; 
 which penalties may be recovered, with costs of suit, either by action of 
 debt in the name and for the use of the owner of the land, or by action 
 qui tarn, 2 in the name of any person who will first sue for and recover 
 \the same ; the one half for the use of the person so suing and the other 
 half for the use of the owner of the land. We will now proceed to 
 suggest the proper form of summons in cases for the recovery of statute 
 penalties, including actions qui tarn. 
 
 Form of Summons in the Action of Debt for trespass by cutting 
 timber, where the owner of the land sues for himself. 
 
 STATE OF ILLINOIS, > 
 COUNTY, j ss ' 
 
 The People of the State of Illinois to any Constable of said County : 
 
 GREETING : 
 You are hereby commanded to summon A. B. to appear before me, 
 
 at , on the day of , A. D., 18 , at o'clock, to 
 
 answer the complaint of C. D., in an action of debt for cutting timber, 
 for a failure to pay him a certain demand, not exceeding one hundred 
 
 (1) Ante, p. 41. 
 
 (2) Qui tarn. The literal meaning of this term is, " Who as well." When a statute im- 
 poses a penalty for the doing or not doing an act, and gives that penalty in part to whosoever 
 will sue for the same, and the other part to the commonwealth, or some charitable, literary, 
 or other institution, or individual, and makes it recoverable by action, such actions are 
 called qui tarn actions, the plaintiff describing himself as suing as well for the commonwealth 
 (or, as the case may be,) as for himself. 2 Bouv. L. D. 402.
 
 CHAP. 4.] PROCESS SUMMONS. 45 
 
 dollars ; and thereof make due return as the law directs. Given under 
 my hand and seal, this - day of - , A. D., 18 . 
 
 JOHN DOE, J. P. [/SW.] 
 
 Indorse upon the back the same as in case of the ordinary summons 
 in the action of debt. 
 
 Form of Summons in an Action QUI TAW. for cutting Timber. 
 STATE OF ILLINOIS, 
 
 COUNTY, 
 
 ") 
 
 j 
 
 st 
 
 The People of the State of Illinois to any Constable of said County : 
 
 GREETING : 
 You are hereby commanded to summon A. B. to appear before me at 
 
 - , on the - day of - , A. D., 18 , at - o'clock 
 
 - , to answer the complaint of A. B., who sues as well for G. D. 
 as for himself, in an action of debt for cutting timber, for a failure to 
 pay on them a certain demand, not exceeding one hundred dollars ; and 
 thereof make due return as the law directs. Given under my hand 
 and seal this - day of - , A. D., 18 . 
 
 JOHN DOE, J. P. [*SW.] 
 
 The two preceding forms, with suggestions given, will doubtless 
 suffice to illustrate sufficiently the important features of the summons in 
 case of statute penalties. It should always be kept in mind that the 
 object and office of the summons, or process of that nature, is to inform 
 the defendant that proceedings are about to be had against him, giving 
 him notice of the time when, and the place where, such proceedings are 
 to be had. Whence it follows that he ought also to be sufficiently ad- 
 vised by the writ, or process, of the nature of such proceedings, to 
 afford him sufficient opportunity of preparing for his defense ; keeping 
 this in mind, the justice can generally determine at once what the pro- 
 cess should contain, whatever may be the cause of action, or its peculiar 
 foundation. A suit should not, however, in general be dismissed even 
 though it may seem from the defendant's showing that he may not have 
 been fully advised by the process of the particular nature or extent of 
 the plaintiff's claim or demand, but the justice may, in his discretion, 
 continue the case, to afford the defendant proper opportunity to prepare 
 for trial, if he shall deem it essential to justice so to do, upon being 
 satisfied that good cause is shown for such continuance. 1 
 
 (1) Rev. Stat.319, sec. 27.
 
 46 WARRANT. [PART 1, 
 
 The proper forms to be observed by the constable in making return 
 of the summons, or other process, will be found in PART FOURTH 
 hereof, relating more particularly to the office and duties of constables. 
 
 III. OF THE WARRANT, AND FORMS THEREOF. 
 
 By sec. 22 of the Justices' Act, Revised Statute 317, it is enacted, 
 that " If previous to the commencement of a suit, the plaintiff shall 
 make oath that there is danger that the debt or claim of such plaintiff 
 will be lost, unless the defendant be held to bail, and shall state, under 
 oath, the cause of such danger, so as to satisfy the justice that there is 
 reason to appro)? end such loss, the justice shall issue a warrant, which 
 shall be in the following form as nearly as the case will admit, viz : 
 
 Form of Warrant prescribed by Statute. 
 
 STATE OF ILLINOIS, 
 COUNTY. 
 
 The People of the State of Illinois to any Constable of said County : 
 GREETING : 
 
 You are hereby commanded to take the body of 
 
 and bring him forthwith before me ^unless special bail be entered ; and 
 if such bail be entered, you will then command him to appear before 
 
 me at , on the day of , at o'clock , to 
 
 answer the complaint of A. B. fi . a failure to pay him a certain demand, 
 not exceeding one hundred dollars ; and hereof make due return as the 
 
 law directs. Given under my hand and seal, this day of , 
 
 184. JOHN DOE, J. P. 
 
 4. 
 
 The foregoing is the ordinary or common form of warrant, or capias, 
 as it is sometimes termed ; but being styled warrant by the statute, it 
 should always, in justices' courts, be distinguished by that name. This 
 is the form to be observed in the action of debt or assumpsit, and gen- 
 erally in all cases in actions arising upon contracts ; but in case of 
 trespass or trover this form will be varied to suit the action, according
 
 CHAP. 4.] WARIUNT. 47 
 
 to see. 89 of the Justices' Act, Revised Statutes 328, which provides, 
 that " When any person shall be about to commence an action of 
 trespass or trover before a justice of the peace, and he shall make oath 
 before such justice, that he verily believes that the benefit of whatever 
 judgment may be recovered in such action, will be in danger of being 
 lost, unless the defendant or defendants be held to bail ; upon such oath 
 being made, the justice shall issue a warrant as in cases for debt, varying 
 the same to suit the action." 
 
 It will be observed that simply the oath of the plaintiff is all that is 
 required for the issuing of a warrant ; a written affidavit seems not to 
 be necessary, yet the oath may nevertheless be reduced to writing, and 
 filed with the justice, if the party so desires. It has evidently been the 
 policy of the legislature of this State to simplify the duties of justices 
 of the peace, as much as possible, by dispensing with written proceed- 
 ings as far as it could safely be done and yet ensure the rights of the 
 parties ; hence written affidavits, or documents of that nature, preced- 
 ing the writ, are not in most instances required, but in general the 
 matter may be stated orally by the party, and the law will generally 
 presume all the antecedent steps required by law to have been taken. 
 It is therefore recommended to the justice to avoid attempting to reduce 
 to writing any thing more than the statute actually requires, for while a 
 party may state orally all that is required to entitle nim to what he 
 seeks, yet should a justice, unskilled in the arbitrary forms and techni- 
 calities of the law, attempt to reduce the same to writing, he might fall 
 far short of the requirements of the law, and innocently do great in- 
 justice to the party ; but where, however, attorneys are employed, these 
 matters may properly be left at their discretion. 
 
 The following is suggested as the proper form of the oath to be 
 administered to the plaintiff applying for the ordinary warrant under 
 section 22 : 
 
 Form of Oath for Warrant in cases for Debt. 
 You solemnly swear (or affirm as the case may be) that there is 
 danger that your debt or claim against C. D. will be lost unless he, the 
 said C. D., be held to bail, and that you will well and truly state the 
 cause of such danger. So help you God. 
 
 The justice should then require the plaintiff to briefly state the cause 
 he has to apprehend such danger, and upon being satisfied from the
 
 48 ARKEST AND SPECIAL BAIL. [PART 1, 
 
 statement of the plaintiff that there is reason to apprehend such danger, 
 he will issue a warrant as aforesaid. 1 
 
 The following will be the proper form of the oath to be administered 
 to the plaintiff applying for a warrant in case of trespass or trover, 
 under section 89 : 
 
 Form of Oath for Warrant in case of Trespass or Trover. 
 You solemnly swear (or affirm as the case may be) that you verily 
 believe that the benefit of whatever judgment may be recovered by you 
 in an action of trespass (or trover as the. case may be) about to be com- 
 menced against C. D., will be in danger of being lost, unless he, the 
 said C. D., be held to bail. So help you God. 
 
 Upon the proper oath being made in case of trespass or. trover, the 
 justice is required, as will be seen, to issue & warrant without further 
 inquiry ; no discretion seems allowed him as in cases for debt. 
 
 The oath or affidavit for a warrant can be made by the agent of the 
 creditor or plaintiff as well as by the creditor himself. 2 
 
 IV. OF THE ARREST, AND SPECIAL BAIL. 
 
 1. Of the Arrest. 
 
 To arrest is to stop ; to seize ; to deprive one of his liberty by virtue 
 of legal authority. In a civil action, an arrest is the apprehension of a 
 person by virtue of a lawful authority, to answer the demand against 
 him in such action. 8 Upon a warrant in such case, the defendant is 
 actually arrested and brought before the justice who issued the warrant, 
 unless special bail be entered pursuant to the statute. An arrest, 
 technically and strictly speaking, is by the corporeal seizing or touching 
 the defendant's body. 4 But it is now held that to constitute an arrest, 
 no actual force or manual touching of the body is requisite ; it is suffi- 
 cient if the party be within the power of the officer, and submit to the 
 arrest. 5 
 
 2. Persons Privileged from Arrest. 
 Members of Congress, by Art. I. sec. 6, of the Constitution of the 
 
 (1) See 12 111. 63. (2) 12 111. 61. (3) 1 Bouv. L. D. 128. (4) 3 Bl. Com. 288. 
 (5) 8 Greenl. 127; 1 Wend. 210; 2 Blackf. 194.
 
 CHAP. 4.] SPECIAL BAIL. 49 
 
 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. Ill, Sec. 17, senators 
 and representatives in the State legislature are in like manner privi- 
 leged 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 re- 
 turning 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 busi- 
 ness, are not to be arrested during their actual attendance, which in- 
 cludes 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 de- 
 fault 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.
 
 50 SPECIAL BAIL. [PART 1, 
 
 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 execu- 
 tion, 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 de- 
 fendant." 
 
 " 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 suf- 
 ficiency 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 
 
 IS,) 
 cr, j 
 
 The People of the State of llllinois, to any Constable of said County, 
 GREETING : 
 
 You are hereby commanded to summon to appear before 
 
 me at , on the day of at 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 
 
 in favor of for the sum of dollars and cents, the 
 
 amount of the judgment rendered against the said in favor of 
 
 the said , and hereof make due return as the law directs. 
 
 Given under my 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 ap- 
 pointed 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
 
 lIAP. 4.] SPECIAL BAIL. 51 
 
 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 be- 
 tween 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 sur- 
 render 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 sub- 
 mit to be surrendered, the bail may arrest and take him at any time and 
 in any place for the purpose of surrendering him. 1 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 memo- 
 randum 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 like- 
 wise 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.
 
 52 OP SUITS BY VOLUNTARY AGREEMENT. [PART 1, 
 
 be discharged ;* and so where the plaintiff has prevented a surrender by 
 throwing the bail off his guard. 2 
 
 V. OP SUITS INSTITUTED BY THE VOLUNTARY AGREEMENT OF PARTIES. 
 
 Rev. Stat. 321, Chap. LIX, Sec. 42. "If both parties agree to have 
 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 8 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 tarn, 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 defend- 
 ant 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. 4 
 
 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 pro- 
 ceedings 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. (2) 4 Johns. 480. 
 
 (3) 2 Scam. 468. (4) 2 Caine, 136 ; 1 Chit. PI. 284.
 
 CHAP. 4.] RULES APPLICABLE TO SUMMONS, ETC, 53 
 
 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. 
 
 The practice of putting only the initial letter of the plaintiff or 
 defendant's first, or Christian name, in the process, is a very bad one, and 
 ought not to be practiced or countenanced. The full Christian and sur- 
 name should always be inserted, when known. 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 discharg- 
 ing 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 
 
 The omission of the middle name, or the initial letter thereof, com- 
 monly 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 
 immaterial, for the law knows but one Christian name. It is competent, 
 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. 8 
 
 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 war- 
 rant 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. PI. 280. (2) 6 Johns. 84; 2 Co.wen, 463. 
 
 (3) 3 Caine, 170; 1 Scam. 475.
 
 54 SECURITY FOR COSTS. [PART 1, 
 
 forward and deposit it with the justice of the peace, no costs which shall 
 thereafter accrue shall be adjudged against him, but the plaintiff shall 
 pay the same." 
 
 Irregularity of process, whether it be void or voidable, is cured by 
 appearance without objection. A defendant cannot take advantage of 
 any error or defect in the process, after he has appeared to it, even 
 though the process be void, and he was at the tune ignorant of the' 
 defect. 1 
 
 All objections to the issuing, the form, or the service or return of 
 process, must be taken advantage of the very first opportunity ; and if 
 the defendant plead to the suit, or take any similar step, which sup- 
 poses the process to be valid, he cannot afterwards object to the process 
 itself. 2 
 
 But the mere act of appearing to the process, for the purpose of rais- 
 ing the objection, cannot be construed into a waiver of its defects ; for 
 if this were the case, there could be no such thing as an objection to 
 process 8 
 
 The constable's return upon the process is conclusive upon the 
 defendant, and the truth of it cannot be traversed or questioned by him 
 in that suit, on a plea in abatement or otherwise, in the cause in which 
 it issues. But if it be false in any particular, an action will lie against 
 the constable, at the suit of the party injured. 4 
 
 The return is the evidence upon which the statute authorizes and re- 
 quires the justice to proceed. He must therefore obtain jurisdiction of 
 the person of the defendant by virtue of the return, and the judgment 
 which may be subsequently rendered, will protect the justice, the party, 
 and the officer who may be instrumental in enforcing it. The return of 
 the officer will be conclusive upon the defendant so far as the pro- 
 ceedings in that suit are concerned. 5 
 
 VII. OF SECURITY FOR COSTS. 
 
 Rev. Stat. 327, Chap. LIX. Sec. 83. " No person who is not a resi- 
 dent of this State shall commence any action before a justice of the peace 
 until such non-resident shall file with the justice before whom such action 
 may be brought, a bond, with sufficient security for the payment of 
 all costs which may be awarded against the plaintiff, should he fail in 
 
 (1) 1 Scam. 251. (2) 17 Johns. 63; 1 Scam. 266. (3) 14 Johns. 481. 
 
 (4) 14 Johns. 481-2. (5) 3 Wend. 302.
 
 CHAP. 4.] SECURITY FOR COSTS. 55 
 
 his suit ; which bond shall be in the following form, as near as may 
 be, inserting the names of the parties, the county and State : 
 
 STATE OP ILLINOIS, \ * if ' -n 
 
 COUNTY OF j * s " f Demand $ 
 
 (. t-. v. ) 
 
 I, E. F., do enter myself security for all costs that may accrue in the 
 above case this day of , 18 . 
 
 " SEC. 84. Such bond shall be signed by the security, and if the 
 said plaintiff shall be cast in his suit, discontinue or make default, and 
 shall not within ten days thereafter pay to the justice all the costs that 
 may have been occasioned to the defendant, to the justice and constable, 
 jurors or witnesses, the justice shall issue his execution against the 
 security for the amount thereof, accompanied with a bill of costs, in which 
 shall be set down every particular charged. And if any suit shall be 
 commenced by a non-resident as aforesaid, without filing a bond for costs 
 as aforesaid, the suit shall be dismissed on the motion of the defendant, 
 and the plaintiff shall be liable to pay all costs occasioned thereby, 
 which may be recovered before any justice of the county, hi the name 
 of the party injured." 
 
 "Nothing is more certain," to use the language of our supreme 
 court, 1 " from the act regulating the proceedings before justices of the 
 peace in civil actions, than that a non-resident plaintiff shall not institute 
 a suit until he shall have given a bond for costs." It is a disability 
 imposed on him, and effectually precludes his right to sue until the bond 
 be given ; and the disability will not be removed although he sues for 
 the use of a resident. 
 
 In all actions before justices of the peace on office bonds for the use 
 of any person, qui tarn actions, or actions on any penal statute, security 
 for costs shall also be filed before the commencement of the suit, the 
 same as in case of non-residents, 2 and the same form of bond may be 
 used as in case of non-residents. 
 
 (1) 1 Scam. 193. (2) 5 Oilm. 559; 12 111. 27.
 
 56 APPEARANCE OF PARTIES. [PART 1, 
 
 CHAPTER V. 
 
 OF THE APPEARANCE OF THE PARTIES. 
 
 I. OF APPEARANCE OF PARTIES OF FULL AGE. 
 II. OF APPEARANCE OF INFANTS. 
 III. OF DEFAULT OR WANT OF APPEARANCE, AND THE EFFECT 
 
 THEREOF. 
 I. OF APPEARANCE OF PARTIES OF FULL AGE. 
 
 In all courts plaintiffs have the liberty of prosecuting, and defendants 
 have the privilege of defending in their own proper person, 1 except 
 infants, however, and corporations aggregate. The former must appear 
 by guardian or next friend, 2 and the latter by attorney. 8 
 
 Appearance is the presence of the parties in court upon return of the 
 process, and although the party appear by attorney, yet in contempla- 
 tion of law, the party himself is presumed to be present. 4 
 
 In justices' court, it does not follow that the attorney should be a 
 licensed attorney at law, but it may be any person whom the party 
 thinks proper to select, to aid him in prosecuting or defending his suit. 
 
 The authority to appear and act as attorney may be either written or 
 by parol, and a mere verbal request for that purpose is sufficient 
 authority to appear and manage the cause, though not to release the 
 interest of a witness. 5 
 
 It is held that where an attorney commences an action in the name of 
 another, or appears for another, the court will presume that he has 
 authority to do so until the contrary is shown ; and if such suit is 
 instituted, or appearance entered without legal authority, the remedy is 
 by motion to the court founded on evidence, to show the abuse (in act- 
 
 (1) Her. Stat. 76, Sec. 12. (2) Rev. Stat. 267. (4) 1 BOUT. L. D. 114. 
 
 (5) 11 Johns. 464. (3) Tidd 63; 1 Chit. PI. 685.
 
 CHAP. 5.] APPEARANCE OP INFANTS. 57 
 
 ing without such authority) of process of the court, or irregular act of 
 the attorney in entering such appearance.' 1 
 
 A married woman when sued without her husband, must appear in 
 person, but where the husband and wife sue, or are sued, the husband 
 may retain an attorney for them both. 2 
 
 An idiot must likewise appear in person, and any one may be ad- 
 mitted to sue or defend for him, but a lunatic must appear by guardian, 
 if within age. 8 See Kev. Stat. 277, Sec. 5, which provides that con- 
 servators may sue and be sued in every instance as the representatives 
 of the lunatic. 
 
 II. OF APPEARANCE OF INFANTS. 
 
 An infant or minor is every person under twenty-one years. 4 The 
 term minor is synonymous with that of infant. The terms major and 
 minor are more particularly used in the civil law. The common law 
 terms are adult and infant. 5 An infant cannot appear by attorney, he 
 must therefore appear by guardian or next friend. 
 
 Kev. Stat. 267, Sec. 13. "Minors may bring suits in all cases 
 whatever, by any person that they may select as their next friend ; and 
 the person so selected shall file bond with the clerk of the circuit 
 court, or justice of the peace before whom the, suit may be brought, 
 acknowledging himself bound for all the costs that may accrue and 
 legally devolve upon such minor. And after bond shall have been 
 so filed, said suit shall progress to final judgment and execution, as in 
 other cases." 
 
 Form of Bond for Costs by next friend in suit by minor. 
 
 STATE OF ILLINOIS, ) In Justice's Court, 
 
 Lake COUNTY, ]" Before E. S. Ingalls, Esq., J. P. 
 
 A. B.^ 
 
 vs. >- Demand $ 
 
 C. D.) 
 
 I, E. F., do hereby acknowledge myself bound for all the costs that 
 may accrue and legally devolve upon the said A. B. in the above entitled 
 
 cause. Witness my hand and seal this day of A. D. 
 
 185. E. F. (Seal.*) 
 
 (1) 1 Scam. 293. (2) 2 Saund. 212. (3) 2 Saund. 333. 
 
 (4) 1 Bouv. L. D. 685. (5) 2 Id. 143.
 
 58 DEFAULT OR WANT OF APPEARANCE. [PART 1, 
 
 If an infant plaintiff appear and prosecute a suit in person, or by 
 attorney, the defendant can take advantage of it only by moving to set 
 aside the proceedings for irregularity, or by pleading in abatement. If 
 the defendant in such a case plead in chief or in bar of the action, he 
 admits the due appearance of the plaintiff and cannot take advantage of 
 it afterwards. It is not a ground of non-suit at the trial. 1 
 
 In a suit against an infant, the plaintiff should see that a guardian 
 is appointed for the defendant, for if no such appointment should be 
 made, a judgment against the defendant would be erroneous. 2 The 
 guardian may be nominated by the infant, and should he fail to do so, 
 the court will appoint such person as may be thought proper, which 
 guardian should be a real person. 8 
 
 III. OF DEFAULT OR WANT OF APPEARANCE, AND THE EFFECT THEREOF. 
 
 Rev. Stat. 318, Sec. 23. " If the defendant shall not appear at the 
 tune of trial, after giving bail as aforesaid, or after being served with a 
 summons, as described in the twenty-first section of this chapter, and 
 no sufficient reason be assigned to the justice why he or she does not 
 appear, then the justice shall proceed to hear and determine the cause, 
 in the absence of said defendant, but shall not give judgment in favor 
 of the plaintiff, unless the said plaintiff shall fully prove his demand in 
 the same manner as if the defendant had been present and denied the 
 same. 
 
 " SEC. 24. If the plaintiff or his agent shall not appear at the time 
 appointed for the trial aforesaid, and no sufficient reason shall be 
 assigned to the justice why such plaintiff or his agent does not appear, 
 the justice shall dismiss the suit, and the plaintiff shall pay the costs, 
 unless the defendant shall consent that such suit shall be continued to 
 another day, in which case the same proceedings shall take place at the 
 second day, so fixed for the trial as above provided ; but this section 
 shall not require the dismissal of a suit on a note placed in the hands 
 of a justice for collection." 
 
 The justice should always allow a reasonable time for the appearance 
 of the parties after the. hour appointed in the process or fixed, on continu- 
 ance, for trial. In some States this is regulated by statute. In the 
 
 (1) 7 Johns. 373. (2) 8 Johns. 418; 2 Cowen, 430. (3) 2 Cowen, 430.
 
 CHAP. 5.] DEFAULT OR WANT OF APPEARANCE. 59 
 
 state of New York, one hour is given after the tune specified in the 
 summons or attachment, and which is construed to apply also to 
 adjournments. 1 In this State there is no such statutory regulation, but 
 the general practice is to wait full one hour, and which delay is proper 
 and cannot be deemed unreasonable. 
 
 (1) 20 Johns. 809.
 
 6U OF PLEADINGS IN GENERAL. [PART 1, 
 
 CHAPTER VI. 
 
 i OF PLEADINGS. 
 I. OF PLEADINGS IN GENERAL. 
 
 H 
 
 IE. OF THE PROPER PARTIES TO THE ACTION. 
 
 1. Plaintiff's. 
 
 2. Defendants. 
 
 HI. OF^PLEADINGS WHICH USUALLY OCCUR IN JUSTICES' COURTS. 
 IV. QF THE DECLARATION. , 
 
 V. OF PLEADINGS ON THE PART OF THE DEFENDANT. 
 u 1. 'When incumbent on the Defendant to Plead. 
 
 2. Of Pleas to the Jurisdiction and in Abatement. 
 
 3. Of Pleas in Bar. 
 
 4. Of Set-off. 
 
 5. Of Pleas puis durrien continuance. 
 
 6. Of Pleading Title. 
 VI. OF THE REPLICATION. 
 
 VII. OF DEMURRERS. 
 
 I. OF PLEADINGS IN GENERAL. 
 
 The parties having properly appeared, the next subject of consider- 
 ation is, the pleadings in the cause. By the pleadings in a suit, it is 
 not meant, as by many people it is understood, the arguing or advocat- 
 ing the cause before the court; but the allegations of the parties, 
 briefly setting forth the cause of action on the part of the plaintiff, and 
 the defense on the part of the defendant, which in courts of record are 
 drawn out with great exactness and perspicuity, beginning with the 
 declaration on the part of the plaintiff, followed by the plea of the 
 defendant, the replication of the plaintiff, the rejoinder of the defendant, 
 and so on alternately to a surrejoinder, rebutter and surrebutter, until
 
 ClIAP. 6.] PROPER PARTIES TO TUB AtTION. 61 
 
 an issue is taken ; that is, a material fact is affirmed on one side and 
 denied on the other, -which fact the jury are called OB to try. 1 In other 
 words, pleading is the statement in a logical and legal form of the facts 
 which constitute the plaintiff's cause of action, or the defendant's 
 ground of defense ; and is the formal mode of alleging that on the 
 record which would be the support or defense of the party, in" evidence. 2 
 And the object of pleading, is to inform the court whose duty it is to 
 declare the law arising upon those facts, and of apprising the opposite 
 party of what is meant to be proved, in order to give him an opportu- 
 nity to answer or traverse it. 8 It has been the object of the legislature 
 in establishing justices' courts, to dispense with technical forms and' 
 pleadings, and to require causes to be disposed of with as little delay 
 and expense as possible. 4 Henee under our statute s no written plead- 
 ings are required. It will, therefore, be unnecessary to tlevote any 
 greater share of attention to the subject of pleading, than the require- 
 ments of proceedings in justices' courts actually demand. 
 
 Rev. Stat. 319, Sec. 28. "When the parties shall appear and be 
 ready for trial, the justice shall proceed to hear and examine their 
 respective allegations and proofs, and 'shall thereupon give judgment 
 against the party who shall be proved to be indebted to the other." 
 
 The allegations of the respective parties, previous to the proofs, 
 which, as we have seen, is understood to be the pleadings in the cause, 
 may or may not be reduced to writing. When reduced to writing, they 
 should be carefully kept and filed by the justice, together with the 
 papers in the case ; or if stated orally, the substance thereof should 
 be briefly noted by the justice on his docket, so ithat if subsequent 
 occasion should require, it may be known what questions were tried by 
 the justice. 5 
 
 Special pleading, by which is meant the allegation of special or new 
 matter, as distinguished from a direct denial of matter previously 
 alleged on the opposite side, ought not to Jpe countenanced in! Justices' 
 courts, as it can be of no practical avail, and tends only to embarrass 
 and mislead the justice. 6 ^. * 
 
 II. OP THE PROPER PARTIES TO THE ACTION. 
 
 1. Plaintiffs. 
 
 The general rule is, that the action should be brought in the name of 
 the party whose legal right has been affected, against the party who 
 
 (1) Perm, on Sin. Cau. 123. (2) 1 Chit. PI. 244. (3) Dougl. 159. 
 
 (4) Brcese, 96 ; 2 Oil. 393. (5) 2 Gil. 393. (6) 3 Caine, 272.
 
 62 PLEADINGS IN JUSTICES' COURTS. [PART 1, 
 
 committed the injury, or by or against his personal representatives. 1 
 In general, the action on a contract, whether express or implied, or 
 whether by parol or under seal, or of record, must be brought in the 
 name of the party in whom the legal interest in such contract is vested. 2 
 It is a general rule, that in case of partners all the members of the firm 
 should be plaintiffs in an action upon a contract made with the firm ; 
 nor can any private arrangement by the firm, that one only of the partr 
 ners shall bring the action, give him a right to sue alone. In case of 
 dormant partners not privy to the contract, it seems that the other 
 members of the firm may omit their names in an action. 8 It is a general 
 rule that a married woman cannot, during her marriage, maintain an 
 action without her husband ; either upon contracts made by her before 
 or after her marriage. 4 
 
 2. Defendants. 
 
 The action upon an express contract, whether it be by deed or merely 
 in writing, or by parol, must in general be brought against the party 
 who made it, either in person or by agent. 5 On implied contracts, 
 against the person subject to the legal liability. 6 A contract made by 
 an agent, as such, is in law the contract of the principal. 7 At law one 
 partner or tenant in common cannot in general sue his copartner or 
 cotenant in an action arising on contract, but must proceed by action 
 of account or bill in equity. 8 It seems that mere dormant partners, 
 and nominal partners having no interest, need not necessarily be joined 
 as defendants. And in case of infants and married women contracting 
 jointly with other persons competent to contract, it is a ground of non- 
 suit to sue them with the persons who are legally responsible. 9 In 
 general a feme covert cannot be sued alone at law : and when a feme 
 sole who has entered into a contract, marries, the husband and wife 
 must in general be jointly sued. 10 
 
 III. OF PLEADINGS .WHICH USUALLY OCCUR IN JUSTICES COURTS. 
 
 The pleadings which usually occur in justices' courts, are the declar- 
 ation and plea, replication and demurrers. The declaration is the 
 plaintiff's complaint, or statement of his cause of action ; the plea i.< 
 
 (1) 1 Chit. PI. 2. (2) Id. 3. (3) Id. 13. (4) Id. 31. (5) 8 East, 12. 
 
 (6) 1 Chit. PI. 38. (7) Id. 39. (8) Id. 44, and authorities there cited. 
 
 (9) Id. 49. (10) Id. 66.
 
 ClIAP. 6.] OF THE DECLARATION. 63 
 
 the defendant's answer thereto ; in which, if any new matter is set up, 
 beyond that mentioned, or contemplated in the declaration, as a justifi- 
 cation, or reason why the plaintiff should not recover, the plaintiff- 
 replies by what is called a replication. Thus, in an action of trespass 
 for damage done by cattle, the defendant may plead the general issue, 
 that is, deny the injury complained of, or might, perhaps, see fit to 
 admit the trespass, but allege by special plea that the close of the 
 plaintiff was not protected by a good and sufficient fence, and therefore 
 the plaintiff ought to be barred from having and maintaining his said 
 action, 1 to which the plaintiff will reply that the close was sufficiently 
 protected, and that he ought not to be barred, &c., when the parties 
 will be at issue, and the cause ready for trial. But in justices' courts, 
 the most proper mode of proceeding, is for the defendant to plead the 
 general issue and give notice of set-off, or of any special matter that he 
 may wish to show on trial to defeat the plaintiff's claim. The demurrer 
 may come from either party, and is that which objects' to the form or 
 substance of the pleading of the opposite party, and insists that it is 
 not sufficient in law to sustain or bar the action. 2 The other parts of 
 pleadings, as they seldom occur in this court, will be only occasionally 
 noticed. 
 
 IV. OF THE DECLARATION. 
 
 The declaration is a specification of the circumstances or statement of 
 the facts which constitute the plaintiff's cause of action. 8 Or in other 
 words, it may be defined to be an amplification, or exposition of the 
 original process, with the addition of the time when, and the place 
 where, the cause of action arose, and of all necessary circumstances^ 4 
 The general requisites of a declaration are, 1st' that it correspond with 
 the process ; 2nd, that it contain a statement of all the facts necessary 
 in point of law to sustain the action, and no more ; and 3rd, that these 
 circumstances be set forth with certainty and truth. 
 
 1. The declaration should correspond with the process in the name of 
 the parties ; but in case of the defendant being sued by a wrong name 
 and appearing in his right name, the plaintiff may declare against him 
 by the name in which he appears, stating that he was arrested or served 
 with process by the other ; for, by appearing, the defendant admits him- 
 
 (1) See 5 Gil. 130; 13 111. 609. (2) 3 Bl. Com. 315. (3) 1 Chit. PI. 279. 
 
 (4) Gould PI. 2; 3 Bl. Com. 299.
 
 64 OF THE DECLARATION. [PART 1, 
 
 self to be the person sued ; the variance therefore will be immaterial. 1 
 The declaration should also correspond with the process in the number of 
 the plaintiffs ; thus if the process be in the name of one plaintiff, the 
 declaration cannot be made in the name of two or more, and vice versa, 
 if the process is in the name of two or more, the declaration cannot be 
 in the name of one. 2 
 
 By Revised Statutes, 318, Sec. 25 : "If two or more persons shall 
 be sued jointly before any justice of the peace, and all of such defendants 
 shall have had notice as aforesaid by warrant or summons! the appear- 
 ance of any one of the said defendants at the time of trial, shall be 
 sufficient to justify the said justice in proceeding as if all were present ; 
 and if none of said defendants shall appear after such notice, the justice 
 shall, if the plaintiff's demand be established as aforesaid, proceed as in 
 other cases of default ; and in either of the aforesaid cases the justice 
 shall not divide the amount of the debt proved among the defendants, but 
 shall give one entire judgment for the whole amount proved to be due, 
 against so many of the defendants jointly, as shall be proved to be 
 jointly indebted to the plaintiff. But if it shall appear to the justice 
 that any two or more of the defendants are severally indebted to the 
 plaintiff, upon separate and different debts or causes of action, or upon 
 several or different promises or contracts, such plaintiff shall not be 
 allowed to bring in such separate claims; nor shall the plaintiff be 
 barred by the determination of his suit against such joint defendants, 
 from prosecuting his suit against the respective defendants for the 
 recovery of such separate demands." 
 
 But in actions of trespass or trover, if process be issued against two 
 and served on one only, the plaintiff may declare and proceed to judg- 
 ment against him alone without noticing the others. 3 The provisions of 
 the preceding section of the statute do not extend to cases for tort. 
 
 2. As to the facts necessary to be stated, it may suffice to say, that 
 the declaration, whether written or verbal, should allege all the circum- 
 stances necessary for the support of the action, and contain a full and 
 regular statement of the injury which the plaintiff has sustained ; and 
 the time and place and other circumstances ; with such precision, cer- 
 tainty and clearness, that the defendant knowing what he is called 
 upon to answer, may be able to plead a direct and unequivocal plea, 
 and that the court or jury may understand clearly what they are called 
 upon to try. 4 
 
 (1) 1 Cowen, 37. (2) 1 Chit. PI. 283; 2 Scam. 508. (3) 2 Johns. l6o. 
 
 (4) See 1 Chit. PI. 286; also 14 Johns. 369.
 
 CHAP. 6.] OP THE DECLARATION. 65 
 
 If the claim or demand of the plaintiff is upon book account, note 
 of hand or other instrument, it will be sufficient for him to declare gene- 
 rally, producing to the justice his books, note of hand or other instru- 
 ment, as the case may be, and which will form a part of the declaration, 
 and be sufficiently explicit to enable the opposite party to plead prop- 
 erly, and the court to proceed understandingly with the cause, and will 
 answer the most stringent requirement in justices' court. 1 
 
 3. These circumstances must be stated with certainty and truth. 
 The certainty necessary in a declaration is, to a certain intent in gene- 
 ral, which should pervade the whole declaration, and is particularly 
 required in setting forth : First, the parties it must be stated with 
 certainty who are the parties to the suit, and therefore a declaration by 
 or against "A. B. & Co." is not sufficient; 2 Secondly, the time the 
 declaration must, in general, state a time when every material or tra- 
 versable fact happened ; Thirdly, the place it is a general rule that 
 the place of every traversable fact stated in the pleadings must be dis- 
 tinctly alleged ; %&& fourthly , other circumstances necessary to maintain 
 the action. 
 
 In actions of assumpsit, and especially where the plaintiff's claim is 
 comprised in several items, as for work and labor done and performed, 
 personal property sold and delivered, and the like, the proper manner 
 of proceeding on the part of the plaintiff, on coming to trial, will be to 
 embody his claim in the form of a bill, or formal statement of the sev- 
 eral items, commonly called a bill of particulars, in the following form : 
 
 WAUKEOIAN, ILL., SEPT. 1, 1855. 
 
 A. B., 
 
 1855 To C. D. DR. 
 
 June 4, To 5 bushels of wheat, at $2 per bush., $10 QO 
 
 July 25, " 5 days' labor harvesting, at $2 a day, 10 00 
 
 August 1, "1 second hand plow (agreed) 8 00 
 
 " 1 cow 20 00 
 
 $48 00 
 
 Which bill or statement so made out, he will produce and file with the 
 justice upon his first appearance on return of process, and thereupon 
 state to the justice that he claims to recover of the defendant upon said 
 statement for the several items therein set forth, and that the articles 
 therein mentioned, were furnished, and the labor performed at the 
 request of the defendant, and at the times therein set forth, and that the 
 
 (1) See 3 Caine, 187; 3 Wend. 492. (2) 3 Caine, 170. 
 
 4
 
 66 PLEADINGS OP THE DEFENDANT. [PART 1, 
 
 defendant had promised to pay for the same, when thereunto requested ; 
 that such request had been made, but that the defendant had wholly 
 neglected and refused to pay the same or any part thereof. 
 
 V. OF PLEADINGS ON THE PAKT OF THE DEFENDANT. 
 
 . 
 
 1. When incumbent on the defendant to plead. 
 
 When the plaintiff has filed his declaration, the defendant must put 
 in his excuse or plea. 1 And in suits before justices of the peace it is 
 incumbent on' the defendant to state his defense particularly before the 
 commencement of the suit, so that the plaintiff may have notice of it ; 
 and it is the duty of the justice to note on his docket the substance of 
 the defense thus stated, that it may be known, should occasion subse- 
 quently require, what were the questions tried before the justice. 2 
 
 Pleas are of two sorts, dilatory pleas and pleas to the action. Dil- 
 atory pleas are such as .tend merely to delay or put off the suit by 
 questioning the propriety of the remedy, rather than by denying the 
 injury ; pleas to the action are such as dispute the very cause of suit. 3 
 
 The general order of pleading is, 
 
 1. To the jurisdiction of the court. 
 
 2. To the disability of the person. 
 
 1. Of the plaintiff". 
 
 2. Of the defendant. 
 
 3. To the process. 
 
 1. To the form. 
 
 2. To the action of the process. 
 
 4. To the action itself in bar thereof. 
 
 By this order of pleading each subsequent plea admits that there is 
 no foundation for the former ; as when the defendant pleads to the 
 person, he admits the jurisdiction of the court, and where he pleads to 
 the process, he admits the competency of the plaintiff, and his own 
 responsibility ; and when he pleads in bar of the action he admits that 
 there is no foundation for any dilatory plea. 4 
 
 2. Of Pleas to the Jurisdiction, and in Abatement. 
 
 Pleas to the Jurisdiction. The general rule in case of dilatory pleas 
 is, that if the party does not avail himself of them, at the first opportu- 
 
 (1) 3 Bl. Com. 301. (2) 2 Gil. 389. (3) 3 Bl. Com. 301. 
 
 (4) 1 Chit. PI. 475; Tidd Pr. 572.
 
 CHAP. 6.] PLEADINGS OF THE DEFENDANT. 67 
 
 nity, he waives his right to take advantage of them. 1 -But objections 
 to the jurisdiction of the justice may, in a variety of instances, be taken 
 under the general issue, or at any stage of the suit, where the want of 
 jurisdiction appears. Such are all those cases in which there is a total 
 want of jurisdiction, so that the proceedings before the justice are wholly 
 void, for it is a familiar doctrine that consent of parties cannot confer 
 jurisdiction. 2 As, for instance, where an executor or administrator is 
 defendant, where the amount claimed exceeds twenty dollars. 8 And so 
 in all cases not within the jurisdiction of the justice by statute ; yet in 
 all these cases the defendant may plead formally the want of jurisdic- 
 tion, should he choose to adopt that method. 
 
 Pleas in Abatement. Whenever the subject-matter of the plea or 
 defense is, that the plaintiff cannot maintain any action at any time in 
 respect of the supposed cause of action, it may, and usually must be 
 pleaded in bar ; but matter which merely defeats the present proceed- 
 ing, and does not show that the plaintiff is forever concluded, should 
 in general be pleaded in abatement. The leading feature of a plea in 
 abatement is, that it must point out the plaintiff's mistake, and give 
 him a better writ. 4 
 
 Pleas in abatement to the disability of the plaintiff are, that he is 
 not in existence (being only a fictitious person or dead) ; 6 that the 
 plaintiff is an infant, and has commenced the suit in person or by 
 attorney, and not by next friend. 6 
 
 Where a married woman is interested in the subject-matter of the 
 action, and might join with the husband, but sues alone, her coverture 
 must be pleaded in abatement. 7 
 
 Pleas in abatement to the disability of the defendant are, that the 
 defendant is a married woman, and is sued without her husband. 8 
 That the defendant is privileged from arrest where the process is by 
 warrant, &c. 
 
 Pleas in abatement to the process are various : As misnomer of the 
 plaintiff or defendant, that the plaintiffs or defendants suing or being 
 sued, as husband and wife, are not married, that one of the plaintiffs 
 or defendants was fictitious or dead at the time of the commencement 
 of the suit, or any other plea for want of proper parties, as that there 
 are other joint contractors, &c., other executors or administrators, or 
 Other persons not joined, who ought to be made parties to the suit. 9 
 
 (1) 1 Scam. 554 ; Breese, 96. (2) 12 111. 122. (3) 12 111. 122. 
 
 (4) 1 Chit. PI. 481. (5) 19 Johns. 308. (6) 7 Johns. 373. 
 
 (7) 1 Chit. PI. 484. (8) 1 Chit. PI. 484 . (9)1 Chit. PI, 487.
 
 68 PLEADINGS OF THE DEFENDANT. [PART 1, 
 
 Strictness is required in pleas in abatement. They are dilatory 
 pleas, and looked upon with suspicion. They will not be sustained by 
 any intendment in their favor. 1 
 
 If the plea be untrue in fact, the plaintiff should deny it by replica- 
 tion ; or if it be insufficient in point of law, he may demur. 2 If an 
 . issue in fact be joined on a plea in abatement, and found for the plaint- 
 iff, the judgment is final that the plaintiff recover ; but if there be 
 judgment in favor of the plaintiff, on demurrer to a plea in abatement, 
 or replication thereto, the judgment is that the defendant answer over, 
 that, is plead again. 8 The judgment for the defendant in either case is 
 that the writ be quashed, or if it be a temporary disability, that the 
 plaint remain without day. 4 
 
 Revised Statute, 43, title, "ABATEMENT," Sec. 1. "No plea in 
 abatement, other than a plea to the jurisdiction of the court, or when 
 the matters relied upon to establish the truth of such plea appear of 
 record, shall be admitted or received by any court of this state, unless 
 the party offering the same, or some other person for him, file an 
 affidavit of the truth thereof." 5 
 
 The foregoing provision, although no doubt intended more particu- 
 larly for courts of record, will apply with equal force and effect to 
 justices of the peace ; in which case a mere affidavit, embracing the 
 facts relied on, may suffice and answer the requirements of the statute. 
 Yet it will always be advisable to reduce the plea to writing in proper 
 form, and subjoin the proper affidavit of the truth thereof. The fol- 
 lowing forms are therefore given as applicable to justices' court. 
 
 Forms of Pleas in Abatement. 
 
 No. 1. 
 
 MISNOMER ; or where the defendant is sued by a wrong name. 
 In Justice's Court Before Joseph L. Williams, Esquire, Justice. 
 
 Sued by the name of C. D. 
 
 Ats. 
 A B . 
 
 E D sued by the name of C D comes, and by 
 
 way of plea in abatement for misnomer says, that he is named and 
 
 (1) 13 Wend. 495. (2) 1 Chit. PI. 498. (3) Id. 500. (4) 1 Scam. 319. 
 
 (5) See also Revised Statutes, 233, chap. XL. , sees. 7 and 8 in relation to actions by and 
 against partners and joint payees or obligees and joint payers or obligors.
 
 CHAP. 6.] PLEADINGS OP THE DEFENDANT. 69 
 
 called E D , and by that name ever has been known and 
 
 called, and that he has never been known or called by the name of 
 
 C D , and this he is ready to verify. Wherefore he prays 
 
 judgment of the said process and that the same may be quashed. 
 
 STATE OF ILLINOIS,") 
 Lake COUNTY, } 
 
 E D , defendant in the above entitled cause, sued by the 
 
 name of C D , being duly sworn says, that the above plea is 
 
 true in substance and fact. 
 
 Subscribed and sworn to before ^ 
 
 me, this dayof A.D., 18 . y E D 
 
 I 
 JOSEPH L. WILLIAMS, J. P. \ 
 
 To this plea the plaintiff may reply that the said defendant is as well 
 
 known by the name of C D as by the name of E D . 
 
 If the defendant shows by proof that his name is E D , the 
 
 plaintiff must prove that he is as well known by the name of C 
 
 D , or his suit will abate. 1 
 
 No. 2. 
 
 NONJOINDER Where all the parties liable are not sued. 
 In Justice's Court Before E. S. Ingalls, Esquire, Justice. 
 
 d T) 
 
 \J JLx 
 
 Ats. 
 A B 
 
 The said C D comes, and by way of plea in abatement for 
 
 nonjoinder, says that his supposed liabilities herein, if any such exist , 
 
 were made by the said defendant jointly with one E F , who 
 
 is still living, and not by the said defendant alone ; and this he is ready 
 to verify. Wherefore he prays judgment of the said process herein, 
 and that the same may be quashed. C D . 
 
 STATE OF ILLINOIS, ") 
 Lake COUNTY, ) 
 
 C D , the above named defendant, being duly sworn, says 
 
 that the above plea is true in substance and fact. 
 Subscribed and sworn to before ^ 
 
 me, this dayof , A.D., 18 . ( C D 
 
 E. S. INGALLS, /. P. J 
 
 (1) See 1 Chit. PI. 498.
 
 70 PLEADINGS OF THE DEFENDANT. [PART 1, 
 
 The names of all the contracting parties omitted must be disclosed 
 by the plea, with an averment that they are still living. 1 
 
 No. 3. 
 
 NONJOINDER Where all the persons contracted with have not joined 
 
 as plaintiffs. 
 
 (Commence as before, No. 2.) " Comes, and by way of plea in 
 abatement for nonjoinder of proper plaintifis, says that the supposed 
 liabilities herein, if any such exist, were made by the said defendant 
 with the said A. B. and one K. S. jointly, the said K. S. being still 
 living, and this he is ready to verify," &c. ( Conclude as before, No. 2.) 
 
 No. 4. 
 
 COVERTURE That the plaintiff is a married woman suing alone. 
 (Commence as before, No. 2.) "Comes, and by way of plea in 
 abatement for the nonjoinder of proper plaintiffs, says that the said 
 plaintiff, at and before the commencement of this suit, was and still is 
 married to one E. F. then and yet her husband, who is still living," 
 &c. ( Conclude as before.) 
 
 No. 5. 
 COVERTURE That the defendant is a married woman and is sued 
 
 without her husband. 
 
 In Justice's Court Before Orlando S. Wright, Esquire, Justice. 
 C. F. sued by the name of C. D. 
 
 Ats. 
 A- 
 
 The said defendant, to wit : C. F., sued by the name of C. D., 
 comes, and by way of plea in abatement for the nonjoinder of proper 
 defendants, says that at the time of the commencement of this suit, she 
 was and still is married to one E. F., who is still living, and this she 
 is ready to verify, &c. (Conclude as before, No. 2.) 
 
 No. 6. 
 ANOTHER ACTION PENDING That another action is pending for the 
 
 same cause. 
 
 (Commence as before, No. 2.) " Comes, and by way of plea in 
 abatement herein, says that at and before the commencement of this 
 suit, another action was and still is pending for the same cause (state 
 
 (1) 3 Chit. PI. 900, note.
 
 CHAP. 6.] PLEADINGS OF THE DEFENDANT. 71 
 
 where the suit is pending*) and between the same parties, and this he 
 is ready to verify," &c. (Conclude as before, No. 2.) 
 
 It will be understood, that all these several pleas must be verified by 
 affidavit. 1 
 
 3. Of Pleas in Bar. 
 
 Pleas in bar go to the merits of the case, and deny that the plaintiff 
 has any cause of action, and do not, like pleas in abatement, give a 
 better writ. They either conclude the plaintiff by matter of estoppel, 
 which, however, rarely occurs in a plea ; or they show that the plaintiff 
 never had any cause of action ; or admitting that he had, insist that it 
 is determined by some subsequent matter. 2 
 
 General issue. When the defendant means to deny the whole charge 
 contained in the declaration, or that which constitutes the gist or found- 
 ation of the action, he should plead the general issue, or general plea, 
 being that which traverses, thwarts and denies at once the whole declar- 
 ation ; without offering any special matter whereby to evade it ; as in 
 assumpsit, non-assumpsit, that he made no such promise, &c.; in debt 
 on simple contract, or on judgment before a justice of the peace, nil 
 debet, that he does not owe the debt ; in debt on speciality, non est 
 factum, that the instrument is not his deed ; in debt on record, nul tiel 
 record, that there is no such record ; in 'trespass, non culpabilis, not 
 guilty. 8 
 
 The following Rides will be observed as to what may be given in evi- 
 dence under the general issue, and what pleaded specially. 
 
 In Assumpsit. Under the general issue, in an action of assumpsit, 
 the defendant may give in evidence that another person ought- to have 
 been made coplaintiff; that at the time the supposed contract was 
 entered into, the defendant was an infant, a lunatic, or drunk by con- 
 trivance of the plaintiff, or a married woman, or under duress ; and 
 the want of sufficient or legal consideration for the contract. So a 
 release or parol discharge before breach, or an alteration in the terms 
 of the contract, or non-performance by the plaintiff of a condition pre- 
 cedent, or that the contract was performed by payment, &c., or that it 
 afterwards became illegal or impossible to be performed, may, when 
 they constitute a sufficient defense, be given in evidence under the gen- 
 eral issue. 4 These defenses show that the plaintiff never had any cause 
 
 (1) Upon the subject of pleas in abatement, see 3 Chit. PI. 895 to 905 and authorities cited. 
 (2) 1 Chit. PI. 503. (3) Tidd Pr. 591; 3 Bl. Com. 306. (4) 1 Chit. PI. 512.
 
 72 PLEADINGS OF THE DEFENDANT. ' [PART 1, 
 
 of action. 1 So the defendant may show, under the general issue, that 
 he offered to perform his part of the contract, but was prevented by the 
 plaintiff. 2 
 
 There are, however, some defenses which in assumpsit, must be pleaded 
 specially, or notice thereof given with the general issue, as tender, set- 
 off, and the statute of limitations. 3 And so of a former recovery. 4 
 Also the defense of usury. 6 
 
 In Debt. In the action of debt on simple contract or legal liabili- 
 ties, as for escape, &c. under the general issue nil debet, any matter 
 may be given in evidence which shows that nothing was due at that 
 time, as payment, performance, release, or other matter in discharge of 
 the action. The defense must plead specially, or give notice thereof, 
 with a general issue of the same matter as in assumpsit, as tender, set. 
 off, statute of limitations, and a former suit or recovery. 6 
 
 In debt on bond or other specialty under the general issue non est 
 factum, the defendant may give in evidence that the deed was delivered 
 to a third person as an escrow, or that it was void at common law ab 
 initio, or that it was obtained by fraud, or made by a married woman 
 or a lunatic, &c., or that it became void after it was made, and before 
 the commencement of the action, by erasure, alteration, addition or 
 otherwise. But matter which shows that the deed was merely voidable 
 on account of infancy, or duress, or that it was void by statute in 
 respect to usury, gaming or the like, must in general be pleaded. 7 
 
 In debt on record, as the general issue nul tiel record, merely puts 
 in issue the existence of the record as stated, any matter in discharge of 
 the action, must be pleaded ; such as payment, or release, or that the 
 debt was levied by execution. 8 
 
 In debt on statute, nil debet is the proper plea, though not guilty, 
 would in some cases suffice. The statute of limitations may, in an 
 action by a common informer, be given in evidence under the general 
 issue ; but a former recovery by another person cannot, but must be 
 pleaded specially, or notice given. 9 
 
 In Trover. In this action, under the general issue, not guilty, it 
 is not usual to plead any other plea, except the statute of limitations, 
 and a release. The defendant, however, is at liberty to plead specially 
 any thing which admits the property in the plaintiff, and the conversion, 
 
 (1) 1 Chit. PI. 513. (2) 13 Johns. 66. (3) 1 Chit. PI. 615. (4) Id. 514, note g. 
 
 (5) 1 Scam. 212; Rev. Stat.295, sec. 4. (6) 1 Chit. PI. 517. (7) 1 Chit. PI. 519. 
 
 (8) Id. 521. (9) Id. 623.
 
 CHAP. 6.] PLEADINGS OF THE DEFENDANT. 73 
 
 but justifies the conversion. The statute of limitations must be pleaded 
 specially ; and it seems to be injudicious to plead specially a former 
 recovery, or verdict in a prior action. 1 In this action, the defendant 
 may, under the general issue, give in evidence, property in a third 
 person. 2 
 
 In Trespass. In this action, whether it be trespass to personal or 
 real property, the defendant may give in evidence under the general 
 issue, any matter which directly controverts the truth of any allegations 
 which the plaintiff makes, and is bound to prove in the first instance in 
 support of his case. But where the act would prima facie appear to 
 be a trespass, any matter of justification or excuse, or done by virtue 
 of a warrant or authority, must, in general, be specially pleaded, or 
 notice thereof given with the general issue. 8 
 
 In all actions of trespass, matter in discharge of the action must be 
 pleaded, or notice thereof given ; as accord and satisfaction, arbitra- 
 ment, release, former recovery, and the statute of limitations. 4 
 
 4. Of Set-Off. 
 
 Set-off is a demand which a defendant makes against the plaintiff in 
 the suit for the purpose of liquidating the whole or a part of his claim. 5 
 It takes place only in actions on contracts for the payment of money, 
 as assumpsit, debt and covenant. A set-off is not allowed in actions 
 arising ex delicto, as upon the case, trespass, replevin or detinue, 6 nor 
 in an action of trover, 7 unless it arise out of the same subject matter. 8 
 A set-off was unknown to the common law, according to which, mutual 
 debts were distinct and inextinguishable except by actual payment or 
 release. 9 Set-off is therefore a matter of statutory regulation. 
 
 By the Rev. Stat. 320, Sec. 35, it is enacted that, "In all suits 
 which shall be commenced before a justice of the peace, each party shall 
 bring forward all his or her demands against the other, existing at the 
 time of the commencement of the suit, which are of such a nature as 
 to be consolidated, and which do not exceed one hundred dollars when 
 consolidated into one action or defense ; and on refusing or neglecting 
 to do the same, shall forever be debarred from the privilege of suing for 
 any such debt or demand ;" and by 
 
 (1) 1 Chit. PI. 537. - (2) 13 Johns. 276 ; 15 Johns. 207. (3) 1 Chit. PI. 539. 
 
 (4) 1 Chit. PI. 540. (5) 2 BOUT. L. D. 513. (6) Bull. N. P. 181. 
 
 (7) 12 111. 99. (8) 14 111. 424. (9) 1 Rawle R.293; Bab. Set-off 1.
 
 74 PTEADINGS OP THE DEFENDANT. [PART 1, 
 
 " SEC. 34. No party shall be permitted to introduce at the trial, 
 any note, bond, debt, or other claim against his adversary, which he 
 shall have acquired after the commencement of the suit." 
 
 Where actions are brought before a justice of the peace on two notes, 
 returnable at the same time, which if consolidated, would exceed 
 one hundred dollars, a judgment on the first note is not a bar to a judg- 
 ment on the second. Each note constitutes a separate demand. If a 
 controversy exist as to the amount of a set-off, a party is not bound to 
 give credit before the commencement of a suit for the exact amount to 
 which the trial may show the party entitled. 1 
 
 A note transferred by delivery _merely, cannot be set off by the 
 holder, in an action against him by a third party. The holder could 
 not sue upon the note in his own name, and it therefore is not a legal 
 subsisting cause of action in his favor. 2 Demands to be set off must 
 be mutual, and exist between the parties to the record. 3 
 
 A separate demand cannot be set off against a joint demand ; nor 
 can a joint demand be set off against a separate debt, 4 unless upon some 
 prior agreement. 5 
 
 Recoupment. Mutual demands arising out of the same subject-mat- 
 ter, and capable of being balanced against each other, may be adjusted 
 in one action, by recoupment. It is not necessary that the opposing 
 claims should be of the same character. A claim originating in con- 
 tract, may be set up against one founded in tort, if the counter claims 
 arise out of the same subject-matter, and are susceptible of adjustment 
 in one action ; but the defendant in such case cannot, as in set-off, 
 recover any excess in his favor ; his claim is used in mitigation of 
 damages only. 6 
 
 In an action of assumpsit for the recovery of the price of an article 
 sold at a stipulated sum, a defendant may give evidence showing the 
 true value of the article sold, in case of a breach of warranty, in 
 reduction of the amount claimed, as well in cases of a sale with war- 
 ranty, as in cases of fraud; such evidence being allowed to avoid 
 circuity of action, and to prevent further litigation upon the same 
 matter 7 
 
 The defendant should always, at the time of joining issue, give notice 
 with his plea, of his set-off, or he will in strictness thereafter be pre- 
 cluded from making it at the trial. 8 In case of recoupment the same 
 
 (1) 11 111. 563. (2) 15 111. 230. (3) 4 Gil. 136; 11 111. 28, 644. 
 
 (4) 11 111. 28. (5) 2 Taunt. 170. (6) 14 111. 424. 
 
 (7) 4 Wend. 483; 8 Id. 109. (8) 10 Johns. 108; 12 Id. 205.
 
 CHAP. 6.] PLEADINGS OF THE DEFENDANT. 75 
 
 precaution should likewise be takfcn. 1 But this will generally be a 
 matter of discretion with the justice. 
 
 5. Of Pleas, Puis Darrein Continuance? 
 
 Formerly there were formal adjournments or continuances of the por- 
 ceedings in a suit, for certain purposes, from one term to another, and 
 during the interval the parties were, of course, out of court ; and when 
 any matter arose which was a ground of defense, since the last continu- 
 ance, the defendant was allowed to plead it, which allowance was an 
 exception to the general rule that the defendant can plead but one plea 
 of one kind or class. 8 
 
 If any matter of defense has arisen in a suit, after an issue in fact or 
 joinder in demurrer, and before the trial of the cause, it may be pleaded 
 by the defendant ; as that the plaintiff has given him a release, that the 
 defendant has paid the demand ; and in short, any matter which if it 
 had occurred before the commencement of the suit, would have been a 
 good defense. 4 
 
 A plea^wt's darrein continuance waives all previous pleas, and if 
 the matter of that plea be determined against the defendant, it is a 
 confession of the matter in issue. The plaintiff must nevertheless prove 
 his demand, the same as if no plea had been put in, in the cause. 5 
 
 It seems to be settled that this plea may, in all cases, be received 
 in a justice's court, where it could properly be received in a court 
 of record. 6 
 
 6. Of Pkadijig title. 
 
 In case of trespass by cutting timber it is provided, by the Rev. Stat. 
 525, Sec. 2, ." That penalties herein above provided, shall be recover- 
 able, with costs of suit, either by action of debt, in the name and for 
 the use of the owner or owners of the land, or by action qui tarn in the 
 name of any person who will first sue for and recover the same ; the 
 one-half for the use of the person so suing, and the other half for the 
 use of the owner or owners of the land. Provided, That if in any 
 action that may be instituted by virtue of the provisions herein con- 
 tained, before a justice of the peace, the defendant shall set up a title 
 to the land on which the tree or trees are alleged to have been cut, 
 felled, boxed, bored or destroyed, and shall forthwith give good and 
 
 (1) 22 Wend. 155. (2) An old French word signifying since the last continuance. 
 
 (3) 2 Bouv. L. D. 389. 2 Bouv. L. D. 389. (4) 1 Chit PI. 697. 
 
 (5) 14 Wend. 161 ; 10 Id. 675. (6) 1 Hill, 69.
 
 76 PLEADINGS OF TIIK DEFENDANT. [PART 1, 
 
 sufficient security, to prosecute his claim or title to the said land to 
 effect, within one year, or to appear and defend an action to be insti- 
 tuted against him within one year, by virtue of the provisions herein 
 contained in any court of record within the State, having cognizance 
 thereof, and in either case to abide by and satisfy the judgment that 
 may be given in such court ; then the said justice shall proceeed no 
 further in the said cause, but shall forthwith dismiss the parties ; and it 
 shall be the duty of the said justice, thereupon, to tax the bill of costs 
 that may have accrued before him ; and so soon as the action shall be 
 renewed or instituted for the purpose aforesaid, to transmit the said bill, 
 together with the recognizance to be taken as aforesaid to the clerk of 
 the court in which such action shall be instituted or renewed ; which 
 costs so taxed and transmitted, shall be made a part of the judgment to 
 be rendered as aforesaid. 
 
 " SEC. 3. If the said recognizance shall be forfeited for not prose- 
 cuting, as aforesaid, the justice shall proceed to enter judgment against 
 the defendant for the demand of the plaintiff, which shall be taken to 
 be confessed, and execution shall thereupon issue against the defendant 
 and his security or securities ; ahd if the said recognizance shall be 
 forfeited for not appearing and defending, or not abiding by and satis- 
 fying the judgment that shall be given in the court above, the party, 
 for whose benefit such recognizance was taken, may, by a writ or writs 
 of scire facias, proceed to judgment and execution thereon." 
 
 Form of Recognizance of Defendant when Title to Land is set up. 
 
 STATE OF ILLINOIS, ") 
 COUNTY, ) ss ' 
 
 Be it remembered that on day of , 18 , A. B. of in 
 
 said county, and C. D., and E. F., of the same place, personally came 
 before L. M., Esquire, a Justice of the Peace of the .said county, 
 and severally and respectively acknowledge themselves to be indebted 
 to G. H., that is to say, the said A. B. in the sum of ffty dollars, and 
 the said C. D. and E. F. in the sum of Jiffy dollars, each to be levied 
 of their respective goods and chattels, lands, and tenements, to the use 
 of the said G. H., if the said A. B. shall make default in the condition 
 following : 
 
 WHEREAS, in an action of debt, under the Revised Statute, chapter 
 one hundred and four, title, "Trespass," before L. M., Esquire, a 
 
 Justice of the Peace of the county of , in which the above named 
 
 G. H. is plaintiff, and the above bounden A. B. defendant, the said
 
 ClIAP. 6.] OF REPLICATION OF DEMURRERS. 77 
 
 A. B. sets up title to the following described tract of land, to wit : 
 (describe the land,} upon which it is alleged by the said plaintiff that 
 the said defendant has cut certain trees, (or as the case may be.) 
 
 Now the condition of this recognizance is such, that if the said A. B. 
 shall prosecute his claim or title to the said land to effect within one 
 year, or appear and defend an action to be instituted against him within 
 one year, under and by virtue of the provisions contained in the aforesaid 
 chapter of the Revised Statutes, in any court of record within this State 
 having cognizance thereof, and in either case will abide by and satisfy 
 the judgment that may be given in such court, then this recognizance 
 to be void, otherwise to remain in full force. 
 
 Taken, subscribed and acknowl- ") A. B. [SEAL.] 
 
 edged, the day of 18 , V C. D. [SEAL.] 
 
 before me, L. M., J. P. ( E. F. [SEAL.] 
 
 VI. OF THE REPLICATION. 
 
 The replication is the plaintiff's answer to the defendant's plea. 1 
 When the plea of the defendant has been put in, if it does not amount 
 to an issue or total contradiction of the declaration, but only evades it, 
 the plaintiff may plead again, and reply to the defendant's plea, by 
 way of replication ; either traversing it, that is, totally denying it ; or 
 he may allege new matter in contradiction to the defendant's plea. 2 
 Pleadings before justices of the peace, however, will seldom extend 
 beyond i\x$ plea, or defendant's answer to the plaintiff's declaration. 
 
 VII. OF DEMURRERS. 
 
 When the declaration, plea or replication, &c., appears on the face of 
 it, and without reference to extrinsic matter, to be defective in point of 
 law, the opposite party may in general demur. A demurrer has been 
 defined to be a declaration, that the party demurring will "go no 
 further," because the other has not shown sufficient matter against 
 him. 3 Demurrers are either general or special ; they are general vflaen 
 no particular cause is alleged ; and special, when the particular imper- 
 fection is pointed out, and insisted upon as the ground of demurrer. 4 
 
 (1) 2 BOUT. L. D. 439. (2) 3B1. Com. 310. (3) 1 Chit. PI. 700. (4) Id. 701.
 
 78 OJF DEMURRERS. [PART 1, 
 
 In practice before justices of the peace, it is apprehended that as the 
 pleadings are generally put in orally, the party demurring to a plead- 
 ing, will usually point out at the tune the defect of which he complains, 
 so that demurrers in this court will usually be special. If the opposite 
 party be satisfied that the pleading demurred to is defective, he should 
 apply to the court for leave to amend, which should, of course, be 
 granted. If, however, he think the pleading sufficient, he should join 
 in demurrer, by insisting that the pleading demurred to is sufficient to 
 sustain or bar the action. This would form what is called an issue in 
 law, which is to be decided by the court upon the facts alleged by the 
 party in the pleading demurred to, for a demurrer admits the facts 
 alleged in the pleading to be true, but insists that they are not sufficient 
 in law to sustain, or bar the action. 
 
 If the justice should decide in favor of the party demurring, he 
 should, of course, permit the opposite party to amend his pleading thus 
 demurred to ; and on the other hand, if he should decide against the 
 party demurring, he will permit him to withdraw the demurrer, and 
 answer to the pleading demurred to. If, however, no application be 
 made to amend or answer the pleading, the judgment will be final ; if in 
 favor of the defendant, for his costs, and if the demurrer be to a declara- 
 tion, or other pleading of the plaintiff, or by the plaintiff to a pleading 
 of the defendant, and is decided in the plaintiff's favor, the court must 
 proceed and ascertain the amount of his demand, and render judgment 
 against the defendant therefor. 1 
 
 (1) See 1 Chit. PL 700 to 709; Gould'n PL Ch. 9.
 
 ClIAP. 7.] ATTENDANCE OF WITNESSES. 79 
 
 CHAPTER VII. 
 
 OF WITNESSES, COMPELLING THE ATTENDANCE THEREOF, 
 TAKING DEPOSITIONS, AND OF OATHS AND AFFIRMA- 
 TIONS. 
 
 I. OF COMPELLING THE ATTENDANCE OF WITNESSES ; AND HEREIN, 
 
 1. Of the Subpoena and Service thereof. 
 
 2. Of the fees allowed to Witnesses. 
 
 3. Of proving Demand, Discount, or Set-off by Adverse 
 
 Party. 
 
 4. Of Attachment against Defaulting Witness. 
 . II. OF TAKING DEPOSITIONS. 
 
 III. OF OATHS AND AFFIRMATIONS. 
 
 I. OF COMPELLING THE ATTENDANCE OF WITNESSES ; AND HEREIN, 
 
 1. Of the Subpoena, and Service thereof. 
 
 Revised Statutes, 320, Sec. 36: " When either party shall require 
 the attendance of a witness, in any suit pending before a justice, it 
 shall be the duty of the justice to issue a subpoena in the following 
 form, as nearly as the case will admit, viz : 
 
 Form of Subpoena. 
 
 STATE OF ILLINOIS, 
 COUNTY, 
 
 The People of the State of Illinois, to A. B. : 
 
 You are hereby commanded to appear before me at , on the 
 
 day of , at o'clock, then and there to testify 
 
 the truth in a matter in suit, wherein C. D. is plaintiff, and E. F. 
 defendant. And this you arc not to omit under the penalty of the law. 
 
 Given under my hand and seal, this day of , 18 . 
 
 JOHN DOE, J. P.
 
 80 ATTENDANCE OF WITNESSES. [PART 1, 
 
 Which subpoena may be served by a constable, or any other person, 
 by reading the same to the witness, but no mileage shall be allowed to 
 the person serving the same. 
 
 " SEC. 37. In all cases where a justice of the peace is required to 
 issue a subpoena, at the instance of either party to a suit, it shall be 
 his duty to insert the names of four witnesses in each subpoena, if the 
 party demanding the same shall require the attendance of that number. 
 And in no case shall a justice of the peace be permitted to charge and 
 receive pay for any subpoena commanding the citation of a less number, 
 where as many as four shall be required by the same party at the same 
 time, to be used in the same suit." 
 
 It not unfrequently happens that the party reqiiring the attendance 
 of a witness, wishes also the exhibition in court of certain books and 
 papers in his possession, or under his control, in which case a subpoena 
 duces tecum may be issued, which is a writ or process of the same kind 
 as the ordinary subpoena, including a clause requiring the witness to 
 bring with him and produce to the court, books, papers, &c., in his 
 hands, tending to elucidate the matter in issue. 1 
 
 Form of Subpoena duces tecum. 
 
 STATE OF ILLINOIS, 
 Pike COUNTY. 
 
 ois,) 
 < ) 
 The People of the State of Illinois, to A. B. : 
 
 You are hereby commanded to appear before me at , on the 
 
 day of , at o'clock, , then and there to testify 
 
 the truth in a matter in suit, wherein C. D. is plaintiff, and E. F. de- 
 fendant, and that you then and there bring with you, and produce at 
 the time and place aforesaid, to be used as evidence, (here describe the 
 document required particularly by date, fyc., as the case may permit.} 
 And this you are not to omit under the penalty of the law. 
 
 Given under my hand and seal, this day of , 18 . 
 
 JOHN DOE, J. P. 
 
 2. Of the Fees allowed to Witnesses. 
 
 Revised Stat. 320, Sec. 38. " Each witness so summoned shall be 
 entitled to fifty cents for attending on each trial, to be taxed with the 
 other costs of suit, and paid when the debt and costs are collected ; but 
 if more than two witnesses shall be sworn in any case to testify to one 
 
 (1) 3 Bl. Com. 383.
 
 CHAP. 7.] ATTENDANCE OP WITNESSES. 81 
 
 fact on the same side, the party requiring such extra witness shall 
 be at the whole expense of procuring the same ; but no such fee shall 
 be taxed by the justice, unless claimed by the witness attending." 
 
 By this section, it will be seen that witnesses are allowed fees only 
 in case they have been regularly summoned according to the provisions 
 of section 36, and also where fees are claimed ; which may be done at 
 any time before the costs are taxed up by the justice. Witnesses who 
 are subpoenaed and attend in a cause, on the trial, are entitled to their 
 fees whether they are sworn or not. 1 
 
 3. Of proving Demand, Discount, or Set-off by adverse party. 
 
 Rev. Stat. 320, Sec. 39. "In all trials before justices of the 
 peace, when either party may not have a witness or other legal testi- 
 mony to establish his or her demand, discount, or set-off, the party 
 claiming such demand, discount, or set-off, may be permitted to prove 
 the same by the testimony of the adverse party. And if such adverse 
 party shall not appear at the time of trial, or shall refuse to be sworn 
 or to testify, then the party claiming the same shall be permitted to 
 prove his or her demand, discount, or set>off, by his or her own oath ; 
 provided, that such party claiming the benefit of his own oath or that 
 of the adverse party, shall first make oath that he has a demand, dis- 
 count, or set-off, in said cause, and that he knows of no witness by 
 whom he can prove the same except by his own oath, or that of the 
 adverse party ; provided further, that no person shall be allowed to 
 prove his demand, discount, or set-off, unless the adverse party be pres- 
 ent, or shall have been notified thereof, and for which purpose the 
 justice may continue the cause for such time as may be necessary." 
 
 Form of Oath to be Administered, where evidence of adverse party 
 
 is desired. 
 
 You do solemnly swear that you have a demand, discount, or set-off, 
 against C. D. in the cause now in hearing, and that you know of no 
 witness by whom you can prove the same, except by your own oath, or 
 that of the said C. D. 
 
 " Sec. 40. When any plaintiff, at the time of commencing his 
 suit, shall signify his desire to prove his debt or demand, as provided 
 in the preceding section, and shall file the necessary affidavit, the justice 
 may issue his summons in the following form : 
 
 (1) 3 Scam. 17.
 
 82 ATTENDANCE OF WITNESSES. [PAST 1, 
 
 " STATE OF ILLINOIS, 
 
 i- set. 
 
 COUNTY, ) 
 
 " The People of the State of Illinois to any Constable of said County, 
 " GREETING : 
 
 " You are commanded to summon C. D. to appear before me at my 
 
 office in , in said county, on the day of , 18 , at 
 
 the hour of o'clock, , to answer the complaint of A. B. for a failure 
 to pay him a certain demand not exceeding one hundred dollars, and 
 hereof make due return as the law directs. The said defendant is 
 hereby also notified that the said plaintiff says that he has no witness 
 by whom to prove his demand, except it be by his own oath or the oath 
 of the said defendant ; and unless the said defendant appear at the 
 trial of said complaint, the plaintiff will be permitted to prove his 
 demand by his own oath, as by law is directed in such cases. 
 
 " Given under my hand and seal at my office in , in said 
 
 county, this day of , A.D. 18 . 
 
 " E F , J. P. [L. s.] 
 
 " Sec. 41. If the defendant or defendants shall not appear at the 
 tune of trial, after being served with such summons according to law, 
 and no sufficient reason be assigned to the justice why he or she does 
 not appear, then the plaintiff shall be permitted to prove his or her 
 demand by his or her own oath, without giving any other or further 
 notice to the defendant or defendants." 
 
 4. Of Attachment against Defaulting Witness. 
 
 By the Rev. Stat. 322, Sec. 48, it is provided that in all cases 
 where a witness shall be duly served with a subprena, and shall fail to 
 attend at the trial, conformably thereto, the justice shall have power 
 to issue an attachment, directed to any constable of the county, com- 
 manding him forthwith to bring before such justice the body of such 
 witness, so failing to attend as aforesaid, to show cause why he should 
 not be fined for such contempt ; and on the appearance of such witness 
 on such attachment, it shall be lawful for the justice of the peace to 
 fine him in any sum not less than one dollar nor more than ten dollars, 
 or wholly discharge him, if satisfactory excuse be made. 
 
 It has sometimes been held necessary that the cause should be called 
 on for trial, the jury sworn and the witness called to testify, before an 
 attachment can issue against him for default ; but the better opinion is, 
 that the witness is to be deemed guilty of contempt whenever it is dis-
 
 CHAP. 7.] TAKING DEPOSITIONS. 83 
 
 tinctly shown that he is absent from court with intent to disobey the 
 writ of subpoena, and that the calling of him in court is of no other 
 use than to obtain clear evidence of his having neglected to appear, but 
 that is not necessary, if it can be clearly shown by other means that he has 
 disobeyed the order of court. An attachment for contempt proceeds 
 not upon the ground of any damage sustained by an individual, but is 
 instituted to vindicate the dignity of the court ; and it is said, that it 
 must be a perfectly clear case to call for the exercise of this extraordi- 
 nary jurisdiction; the motion for an attachment should therefore be 
 brought forward as soon as possible ; and the party applying must 
 show by affidavit or otherwise that the subpoena was seasonably and 
 personally served on the witness. 1 
 
 Form of Attachment Against a Defaulting Witness. 
 
 STATE OF ILLINOIS, > 
 COUNTY, ) st 
 
 The People of the State of Illinois to any Constable of said County, 
 GREETING : 
 
 We command you to attach C. D., if he may be found in your 
 county, and bring him forthwith before E. F., Esquire, a justice of the 
 
 peace in and for the said county, at his office in , in said county, 
 
 to answer unto us and show cause, if any he has, why he should not 
 be fined for contempt, in not obeying our writ of subpoena, command- 
 ing him to appear on the day of , 18 , before the said justice, 
 to testify in a suit then and there depending, to be tried between J. K., 
 plaintiff, and L. M., defendant, on the part of the plaintiff, (or "defen- 
 dant"} And we further command you to detain him in your custody 
 until he shall be discharged by said justice, or be further dealt with 
 according to law. 
 
 Given under the hand and seal of said justice, this day of , 
 
 18. E. F., J. P. [SEAL.] 
 
 For further forms of proceeding in the foregoing case, see," DOCKET 
 ENTRIES." 
 
 II. OF TAKING DEPOSITIONS. 
 
 A Deposition, is the testimony of a witness reduced to writing in 
 
 (1) 1 Greenl. Ev. 319.
 
 84 TAKING DEPOSITIONS. [PART 1, 
 
 due form of law, taken by virtue of a commission or other authority of 
 a competent tribunal. 1 
 
 Revised Statutes, 319, Sec. 32. " If any witness residing within 
 the county wherein a suit shall be pending before a justice, shall be 
 unable to attend on account of age, sickness or other cause, it shall be 
 lawful for the justice before whom such suit shall be pending, or some 
 other justice of the county, to take the deposition of such witness in 
 writing ; and the justice before whom the suit shall be pending, shall 
 adjourn the trial, not more than six days, for that purpose, and shall give 
 both parties notice of the time and place of taking such deposition." 
 
 Form of Notice for taking deposition of Witness residing in the 
 County, who is unable to attend a trial on account of Sickness or 
 other cause. 
 
 In Justice's Court. Before E. F., Esquire, Justice. 
 A. B. 
 
 vs. 
 
 C. D. 
 
 It appearing satisfactorily to the undersigned, a justice of the peace, 
 of the county of , that Gr. H. of said county, is a material wit- 
 ness for the plaintiff in the above entitled suit now pending before him. 
 And that on account of his age, (or sickness, or other cause,} he is 
 unable to attend the trial. 
 
 You are therefore notified, that on the day of , A. D. 
 
 18 , at o'clock in the forenoon, the deposition of the said 
 
 Gr. H. will be taken by me, (or " by K. L., Esquire, a justice of the 
 peace of said county,"} in writing, at the residence of the said witness, 
 
 in , in said county, to be read in evidence on the trial of said 
 
 cause. 
 
 Dated the day of , A. D. 18. 
 
 To the plaintiff (or "defendant.") E. F., J. P. 
 
 Form of Deposition taken pursuant to the foregoing Notice. 
 
 In Justice's Court. Before E. F., Esquire, Justice. 
 A. B. 
 
 vs. 
 
 C. D. 
 Deposition of Gr. H., aged about years, a witness in the 
 
 (1) 1 BOUT. L. D. 445.
 
 CHAP. 7.] TAKING DEPOSITIONS. 85 
 
 above entitled suit, taken by E. F., Esquire, a justice of the peace of the 
 county of , on the day of , 18 , at the resi- 
 dence of the said witness in , in said county, in the presence of 
 
 the said plaintiff and defendant, on the part of said plaintiff (or " de- 
 fendant."} 
 
 County, ss : G. H., being duly sworn, deposes and says as 
 
 follows, viz : (Here insert the testimony of the witness, giving his own 
 language as near as possible.} 
 
 (Signed) G. H. 
 
 STATE OF ILLINOIS, 
 
 COUNTY, T 
 
 I, the subscriber, a justice of the peace of the said county, do certify 
 that the above deposition was taken by me at the time, and place men- 
 tioned in the caption thereof; that the said witness was first duly sworn, 
 and that the said deposition was carefully read to the witness and signed 
 by him. 
 
 Dated this day of , 18. E. F., 
 
 Justice of the Peace. 
 
 " SEC. 33. If any witness, whose testimony shall be material in a 
 suit pending before a justice, shall reside out of the county wherein such 
 suit shall be pending, the party desiring it, may take his, her or their 
 deposition or depositions, before any justice of the peace in the county 
 in which such witness or witnesses reside ; and the depositions taken in 
 conformity thereto may be given in evidence in said suit, if it shall be 
 made to appear that the opposite party had reasonable notice of the 
 time and place of taking such depositions." 
 
 Form of Notice to take the Deposition of a Witness residing out of 
 the County in which suit is pending. 
 
 In Justice's Court. Before E. F., Esquire, Justice. 
 A. B. 
 
 " Sir : Take notice that on the day of , A. D. 18 , 
 
 between the hours of in the morning and in the even- 
 ing of the same day, and continuing from day to day if necessary, at
 
 86 TAKING DEPOSITIONS. [PART 1, 
 
 the house of , in the county of and state of Illinois, 
 
 and before J. K., a justice of the peace of said county, I shall proceed 
 to take the deposition of L. M. of said county, to be read as evidence 
 in the above entitled cause. 
 
 Dated the day of , 18. 
 
 Yours, &c., 
 
 To A. B., C. D. 
 
 Plaintiff in the above entitled suit. 
 
 The form of- deposition heretofore given in case of witness being 
 unable to attend at a trial on account of sickness or other cause, can be 
 used in the foregoing instance by being varied to suit the occasion. 
 
 Rev. Stat. 322, Sec. 52. " In all cases before justices of the peace, 
 either party may have the case continued any reasonable tune, not 
 exceeding one month, for the purpose of taking the deposition of any 
 non-resident witness, which deposition shall be taken in conformity to 
 the manner of taking and returning depositions of non-resident witnesses 
 in the circuit courts in this State." 
 
 The following is the manner of taking and returning depositions of 
 non-resident witnesses in the circuit court as provided by the Rev. Stat. 
 233, Chap. XL., Sec. 10. "When the testimony of any non-resident 
 witness or witnesses shall be necessary in any civil cause depending in 
 any court of law or equity in this State, it shall be lawful for the party 
 wishing to use the same, on giving to the adverse party, or his attorney, 
 ten days' previous notice, together with a copy of the interrogatories 
 intended to be put to such witness or witnesses, to sue out from the 
 proper clerk's office a dedimus potestatum, or commission under the seal 
 of the court, directed to any number of persons not exceeding three, as 
 commissioners, or to any judge or justice of the peace of the county or 
 city in which such witnesses may reside, authorizing and requiring him 
 or them to cause such witness or witnesses to come before him or them, 
 at such time and place as he or they may designate, and appoint and 
 faithfully to take his, her, or their deposition or depositions upon all 
 such interrogatories as may be inclosed with or attached to said com- 
 mission, both on the part of the plaintiff and defendant, and none 
 others, and to certify the same when thus taken, together with the said 
 commission and interrogatories, into the court in which such cause shall 
 be depending, with the least possible delay."
 
 CHAP. 7.] TAKING DEPOSITIONS. 87 
 
 "Ssc. 12. Previous to the examination of any witness whose 
 deposition is about to be taken as aforesaid, he or she shall be sworn, 
 (or affirmed,^) by the person or persons authorized to take the same, to 
 testify the truth in relation to the matter in controversy so far as he or 
 she may be interrogated, whereupon the said commissioner or commis- 
 sioners, judge, justice of the peace, or clerk, (as the case may be,~) shall 
 proceed to examine such witness upon all such interrogatories as may 
 be inclosed with or attached to any such commission as aforesaid, and 
 which are directed to be put to such witness, or, where no such com- 
 mission shall be necessary, upon all such interrogatories as may be 
 directed to be put by either party litigant, and shall cause such inter, 
 rogatories, together with the answers of the witness thereto, to be 
 reduced to writing in the order in which they shall be proposed and 
 answered, and signed by such witness ; after which it shall be the duty 
 of the person or persons taking such deposition, to annex at the foot 
 thereof a certificate subscribed by himself or themselves, stating that it 
 was sworn to and signed by the deponent, and the time and place, when 
 and where the same was taken ; and every such deposition when thus 
 taken and subscribed, and all exhibits produced to the said commissioner 
 or commissioners, judge, justice of the peace, or clerk, as aforesaid, or 
 which shall be proved or referred to by any witness, together with the 
 commission and interrogatories, if any, shall be inclosed, sealed up, and 
 directed to the clerk of the court in which the action shall be pending, 
 with the names of the parties litigant endorsed thereon ; Provided, 
 That when any deposition shall be taken as aforesaid by any judge or 
 justice of the peace out of this State, such return shall be accompanied 
 by a certificate of his official character under the great seal of the State, 
 or under the seal of the proper court of record of the county or city 
 wherein such deposition shall be taken." 
 
 No authority is directly conferred by the foregoing sections upon 
 justices of the peace to appoint commissioners to take depositions. A 
 justice's court being one of inferior jurisdiction, can take nothing by 
 implication. 1 Hence it would seem that a justice of the peace had not 
 authority under the statute to appoint commissioners for taking deposi- 
 tions. It is therefore proper that the dedimus, or commission, should 
 be directed to a judge or justice of the peace upon whom authority is 
 conferred by our statute to take depositions in such cases. 
 
 (1) 1 Johns, cases, 20, 228; 1 Scam. 237; 3 Id. 194; 4 Id. 88.
 
 88 TAKING DEPOSITIONS. [PART 1, 
 
 Form of Notice for taking out Commission to examine a non-resi- 
 dent Witness. 
 
 In Justice's Court. Before Elislia P. Ferry, Esquire, Justice. 
 
 A. B. 
 
 vs. 
 C. D. 
 
 SIR : 
 
 Take notice that on the day of , A.D. 18 , at o'clock, in 
 the noon, I will attend before the said justice at his office in Wauke- 
 aan, in the county of Lake, for the purpose of suing out a commission 
 directed to William Fair child, Esq., a justice of the peace in and for 
 the county of Oneida, in the State of New York, residing in the town 
 of Augusta, to take the deposition of E. F., a resident of the last men- 
 tioned place, on the annexed interrogatories, to be read in evidence on 
 the trial of this cause now depending before the said justice, when and 
 where you may attend, and file cross interrogatories if you think proper. 
 
 Dated this day of , 18. 
 
 Yours, &c. A. B. 
 
 To C. D. 
 
 Form of Interrogatories to be annexed to the foregoing Commission. 
 
 Interrogatories to be propounded to E. F., of the town of Augusta, 
 in the county of Oneida and State of New York, a witness to be pro- 
 duced, sworn and examined, in a certain cause now depending before 
 Elisha P. Ferry, Esquire, a justice of the peace of the county of Lake 
 and State of Illinois, wherein A. B. is plaintiff and C. D. is defendant, 
 on the part and behalf of the said plaintiff, under and by virtue of 
 the commission hereto annexed. 
 
 First. What is your age, occupation and place of residence ? 
 
 Second. Do you know the parties, plaintiff and defendant, in the 
 title of these interrogatories named, or either, and which of them, 
 and how long have you known them respectively ? 
 
 Third. &c. 
 
 Fourth. Do you know any other matter or thing touching the 
 matter in question, that may tend to the benefit or advantage of the 
 plaintiff? 
 
 If yea, declare the same as fullyand at large, as if you had been 
 particularly interrogated thereto.
 
 CHAP. 7.] TAKING DEPOSITIONS. 89 
 
 X 
 
 Gross Interrogatories. 
 
 Interrogatories to be propounded to the said E. F., by way of cross 
 examination. 
 
 {State interrogatories as the circumstances of the case require.) 
 
 Form of Commission to take Deposition of non-resident Witness. 
 
 STATE OF ILLINOIS,") 
 Lake COUNTY, f ss ' 
 
 The People of the State of Illinois to William Fairchild, Esq., a Jus- 
 tice of the Peace of the county of Oneida, in the State of New York. 
 Whereas, it appears to Elisha P. Ferry, Esquire, one of the justices of 
 the peace in and for the county of Lake, that E. F., of the town of 
 Augusta, in the county of Oneida and State of New York, is a material 
 witness in a certain cause now depending before the said justice, between 
 A. B., plaintiff, and C. D., defendant, 
 
 Therefore we, in confidence of your prudence and fidelity, do, by 
 these presents, appoint you to examine said witness, and authorize and 
 employ you at a certain day and place to be by you for that purpose 
 appointed, to examine on oath the said witness, on all the interrogatories 
 hereto annexed, to be taken before you, and cause such examination to 
 be reduced to writing and signed by such witness, and to certify and 
 return the depositions annexed hereto to the said justice, under your 
 seal, with the names of the parties endorsed thereon. And you will 
 return also, with said deposition, a certificate of your official character, 
 under the seal of the proper court of record in the county for which 
 you are acting. 
 
 In witness whereof, the said justice has hereunto set his hand and 
 seal, the day of , A.D. 18. 
 
 ELISHA P. FERRY, /. P. [SEAL.] 
 
 Form of Deposition taken in pursuance of the foregoing Commission. 
 
 Deposition of E. F., of Oneida county, in the State of New York, 
 a witness, aged years, produced, sworn, and examined before Wil- 
 liam Fairchild, Esquire, a justice of the peace in and for the county and 
 State aforesaid, on the day of , 18 , at the office of the said 
 William Fairchild, Esq., in the town of Augusta, in said county, by 
 virtue of a commission issued by Elisha P. Ferry, a justice of the 
 peace of the county of Lake, in the State of Illinois, to me directed for
 
 90 OATHS AND AFFIRMATIONS. [PART 1, 
 
 the examination of the said E. F., a witness in a suit depending before 
 the said justice, between A. B., plaintiff, and C. D., defendant. 
 
 First. To the first interrogatory this deponent says, &c. 
 
 Second. To the second interrogatory this deponent says, &c. 
 
 (The witness must make answer to each interrogatory separately. If 
 there be any cross interrogatories, the witness will go on thus :) 
 
 First. To the first cross interrogatory he says, &c. 
 
 (Signed) E. F. 
 
 Form of Certificate to be attached to the foregoing Deposition. 
 STATE OF NEW YORK, ) 
 
 V *?*? 
 
 Oneida COUNTY, j 
 
 I, William Fairchild, a justice of the peace of said county, do 
 certify that the foregoing deposition was taken by me at the time and 
 pkce mentioned in the caption thereof; that the said witness was first 
 duly sworn, and that the same was carefully read to said witness, and 
 signed by him. 
 
 Dated this day of , A.D. 18. 
 
 WILLIAM FAIRCHILD, J. P. 
 
 In sending out a commission to take the deposition of a non-resident 
 witness, it would always be well to send also the form of the caption 
 and certificate, as a guide for the Commissioner. 
 
 III. OF OATHS AND AFFIRMATIONS. 
 
 An Oath is a declaration made according to law before a competent 
 tribunal or officer, to tell the truth ; or it is the act of one, who, when 
 lawfully required to tell the truth, takes God to witness that what he 
 says is true. It is a religious act, by which the party invokes God not 
 only to witness the truth and sincerity of his promise, but also to 
 avenge his imposture or violated faith, or, in other words, to punish his 
 perjury, if he shall be guilty of it. 1 By a later definition, an oath has 
 been briefly defined to be : " An outward pledge, given by the juror," 
 (or person taking it) " that his attestation, or promise, is made under 
 an immediate sense of his responsibility to God." 2 
 
 (1) 2 Bouv. L. D. 233; 1 Stark. Ev. 23; Seel Greenl. Ey. Sec. 328, where a somewhat different 
 definition of an oath has been given. (2) Tyler on oaths, 12, 13.
 
 CHAP. 7.] OATHS AND AFFIRMATIONS. 91 
 
 Oaths are taken in various forms ; the most usual is upon the gospel, 
 by taking the book in the hand ; the words commonly in use are : 
 
 " You do swear that," &c., (and concluding) " so help you God," 
 (and then kissing the book.*) 1 
 
 Another form is by the witness, or party promising, holding up his 
 right hand ; the words to be repeated by the officer, in this case, are : 
 
 " You do swear by the ever living God that," &c. 2 
 
 Another form of attestation, is by affirmation, which is defined to 
 be, a solemn declaration and asseveration, which a witness makes before 
 an officer competent to administer an oath in a like case, to tell the 
 truth as if he had been sworn. 8 
 
 Kev. Stat. 393, Section 1. " Whenever any person shall be 
 required to take an oath before he enters upon the discharge of any 
 office, place or business, or on any other lawful occasion, and such 
 person shall declare that he or she has conscientious scruples about the 
 present mode of administering oaths by laying the hand on and kissing 
 the gospels, it shall be lawful for any person empowered to administer 
 the oath, to administer it in the following form, to wit : The person 
 swearing shall, with his or her hand uplifted, swear by the ever living 
 God, and shall not be compelled to lay the hand on or kiss the 
 gospels. And oaths so administered shall be equally effectual, and 
 subject such persons to the like pains and penalties for willful and 
 corrupt perjury, as oaths administered in the usual form. 
 
 " Sec. 2. Whenever any person required to take or subscribe 
 an oath, as aforesaid, and in all cases where an oath is upon any lawful 
 occasion to be administered, and such persons shall have conscientious 
 scruples against taking an oath, he or she shall be admitted, instead of 
 taking an oath, to make his or her solemn affirmation, or declaration, 
 in the following form, to wit : ' You do solemnly, sincerely, and truly 
 declare and affirm,' which solemn affirmation, or declaration, shall be 
 equally valid as if such person had taken an oath in the usual form, 
 and every person guilty of falsely and corruptly declaring, as aforesaid, 
 shall incur and suffer the like pains and penalties as are or shall be 
 inflicted on persons convicted of willful and corrupt perjury." 
 
 Swearing the witness by the uplifted hand, is held to be a legal 
 swearing, independent of the statute. 4 
 
 (1) 2 Bouv. L. D. 233. (2) 2 Bouv. L. D. 233; Rev. Stat. 393, Sec. 1. 
 
 (3) 1 BOUT. L. D. 86; 1 Greenl. Ev. Sec. 371. (4) Breese, 28; 2 GU. 540.
 
 92 INCIDENTS PREVIOUS TO TRIAL. [PART 1, 
 
 CHAPTER VIII. 
 
 OF THE TRIAL AND INCIDENTS THERETO. 
 
 I. OF INCIDENTS OCCURRING PREVIOUS TO THE TRIAL. 
 
 1. Of Continuance. 
 
 2. Of Change of Venue, or removing the Cause from one 
 
 Justice to another. 
 
 II. OF TRIAL IN THE ABSENCE OF THE DEFENDANT. 
 HI. OF TRIAL BEFORE THE JUSTICE WITHOUT A JURY. 
 IV. OF TRIAL BY JURY. 
 
 1. When the Jury shall be demanded and how obtained. 
 
 2. Who shall be competent to serve as Jurors. 
 
 3. Proceedings against defaulting Jurors. 
 
 4. Of Challenges. 
 
 5. Of Swearing the Jury. 
 V. OF PROCEEDINGS ON THE TRIAL. 
 
 VI. OF KEFERRING THE DIFFERENCE BETWEEN TRE PARTIES TO 
 ARBITRATORS. 
 
 I. OF INCIDENTS OCCURRING PREVIOUS TO THE COMMENCEMENT OF 
 
 THE TRIAL. 
 
 1. Of Continuance. 
 
 Revised Statutes 318, Sec. 27. "Previous to the commencement 
 of any trial before a justice of the peace, either party may move to 
 have such trial put off for a time not exceeding ten days, upon 
 making proof, either upon his own oath or that of a credible witness, 
 that the said party cannot safely proceed to trial, on account of the 
 absence of a material witness, or on account of any other cause or disa-
 
 ClIAP. 8.] INCIDENTS PREVIOUS TO TRIAL. 93 
 
 bility, which would prevent them from obtaining justice at such trial ; 
 and if the justice be satisfied that the party so applying cannot safely 
 proceed to trial, and also that the party so applying has used due dili- 
 gence to be ready at the tune of trial first appointed, and that his not 
 being ready is not the effect of such party's own neglect or inattention, 
 then the said justice shall order the trial of said cause to be deferred to 
 another day and hour within ten days, to be by him appointed ; and the 
 party praying such continuance shall pay all the costs occasioned 
 thereby : Provided, the justice may at any tune continue any case 
 without oath, if the parties consent ; or if but one party be present and 
 shall consent, or if he shall deem it essential to justice so to do for any 
 good cause shown." 
 
 Form of Oath to be administered by the Justice upon application for 
 the continuance of a Cause. 
 
 You do solemnly swear that you will true answers make to such 
 questions as may be put to you, touching your present application for 
 continuance of the cause now pending, in which you are plaintiff and 
 C. D. is defendant, (or as the case may be}, so help you God. 
 
 The justice will then interrogate the party, as to the grounds of his 
 application for continuance, or may allow the opposite party to do so, 
 as he may think proper. 
 
 A suit may also be continued, or adjourned for a time not more 
 than six days, for the purpose of taking the deposition of a witness 
 residing in the county, who is unable to attend a trial on account of age, 
 sickness or other cause. 1 
 
 A cause may also be continued by the justice for such a time as may 
 be necessary, for the purpose of notifying the adverse party, who may 
 not be present, that the party applying has a demand, discount or set- 
 off, and that he knows of no witness by whom he can prove the same, 
 except by his own oath or that of the adverse party. 2 
 
 A case may likewise be continued any reasonable time, not exceeding 
 one month, for the purpose of taking the deposition of any non-resident 
 witness. 8 
 
 When a jury is demanded by either party, the justice may, if neces- 
 sary, adjourn the cause to any time, not exceeding three days, for the 
 purpose of empanneling a jury. 4 
 
 (1) Rev. Stat. 319, Sec. 32. (2) Rev. Stat. 320, Sec. 40. (3) Rev. Stat. 322, Sec. 52. 
 
 (4) Rev. Stat. 321, Sec. 44.
 
 94 INCIDENTS PREVIOUS TO TRIAL. [PART 1, 
 
 2. Of Change of Venue, or removing the Suit from one Justice to 
 
 another. 
 
 Revised Statutes, 322, Sec. 51. "Previous to the commence- 
 ment of any trial before a justice of the peace, the defendant, or 
 his or her agent, may make oath that it is the belief of such deponent 
 that the defendant cannot have an impartial trial before such justice ; 
 whereupon it shall be the duty of the justice immediately to transmit 
 all the papers and documents belonging to the suit, to the nearest justice 
 of the peace, who shall proceed as if the said suit had been instituted 
 before him." 
 
 Form of Oath to be administered by the Justice upon application for 
 Change of Venue. 
 
 You do solemnly swear that it is your belief that you cannot have an 
 impartial trial before me, in the case now pending, in which you are 
 defendant, and A. B. is plaintiff, (or in case the oath is made by the 
 agent, then say, " in the case now pending, in which A. B. is plaintiff 
 and C. D. is defendant.") 
 
 In case of change of venue, as aforesaid, the justice will copy from 
 his docket the proceedings of the cause as far as the same has progressed 
 before him, adding thereto a certificate in the following form : 
 
 Form of Certificate by the Justice to accompany the Papers and 
 Documents on Change of Venue. 
 
 STATE OF ILLINOIS, 
 
 COUNTY, f 
 
 I., E. F., a justice of the peace in and for the said county, do hereby 
 certify that the foregoing is a true copy of the proceedings in the cause 
 therein entitled had before me, and that herewith enclosed are all the 
 papers and documents belonging to the said suit. 
 
 Witness my hand this day of , A. D., 18 . 
 
 E. F., /. P. 
 
 Upon granting a change of venue, all the papers pertaining to the 
 cause, should be properly enclosed by the justice in a wrapper or envel- 
 ope, and addressed to the nearest justice of the peace, and it will be his 
 duty it is to see that they are safely transmitted, with as little delay as 
 possible. The papers are usually entrusted by the justice, with the 
 constable, if in attendance, or the plaintiff in the suit. 
 
 The consent of parties to a change of venue, without fulfilling any of
 
 CHAP. 8.] TRIAL WITHOUT A JURY. 95 
 
 the requirements of the statute, is proper. 1 A party who has obtained 
 a change of venue, cannot object to a trial in the court to which he has 
 caused the case to be removed, if enough appears to give the court 
 jurisdiction. 2 
 
 II. OF TRIAL IN THE ABSENCE OF THE DEFENDANT. 
 
 Revised Statutes, 318, Sec. 23. "If the defendant shall not 
 appear at the time of trial, after giving bail as aforesaid, or after 
 being served with a summons, as described in the twenty-first section of 
 this chapter, and no sufficient reason be assigned to the justice, why he 
 or she does not appear, then the justice shall proceed to hear and deter- 
 mine the cause, in the absence of said defendant, but shall not give 
 judgment in favor of the plaintiff, unless the said plaintiff shall fully 
 prove his demand in the same manner as if the defendant had been 
 present and denied the same." 
 
 The omission of the defendant to appear and plead, is not considered 
 as an admission of the plaintiff's demand, but he must establish it by 
 testimony in the same manner as though an issue had been joined. 
 
 The justice is bound to hear the merits in all cases before judgment 
 against the defendant. Strictly speaking there is no such a thing 
 before a justice of the peace as a judgment by default, but always a trial 
 or a hearing in the nature of a trial. 3 
 
 III. OF TRIAL BEFORE THE JUSTICE, WITHOUT A JURY. 
 
 Rev. Stat. 319, Sec. 28. "When the parties shall appear and 
 be ready for trial, the justice shall proceed to hear and examine 
 their respective allegations and proofs, and shall thereon give judg- 
 ment against the party who shall be proved to be indebted to the other, 
 for so much money in dollars and cents as shall appear to be due, with 
 costs of suit ; but if neither party shall appear to be indebted to the 
 other, then the judgment shall be against the plaintiff for the costs of 
 suit only ; and if such judgment be rendered upon any note or bond, 
 or for a balance due upon a settled account, the justice shall allow in- 
 
 (1) 3 Scam. 354. (2) 13 111. 76. (3) 8 Cowen, 133; 10 Johns. 106.
 
 96 TRIAL BY JURY. [PART 1. 
 
 tcrest from the time when the same became due, and include the same 
 in the said judgment ; and in all cases the judgment shall bear interest 
 at the rate of six per cent, per annum until paid." 
 
 A justice of the peace must not decide on his own previous knowl- 
 edge of facts, but only on evidence adduced before him. He must de- 
 cide upon evidence produced in court. 1 
 
 In trials before a justice alone, if the party means to submit to a 
 non-suit, he must do so before the cause is finally submitted for advise- 
 ment, or the judgment will be a bar to a new action. 2 
 
 In an action against several, for a tort, where the trial is before a 
 justice, without a jury, he may, when the plaintiff closes his proof, dis- 
 charge a defendant against whom no evidence has been given. No 
 judgment, however, should be entered under such circumstances, until 
 the final disposition of the cause. 8 Most of the rules which govern 
 proceedings in justices' courts in trials of issue of fact, are applicable as 
 well to trials by jury, as to trials before the justice, without a jury. 
 Hence, the further general rules which govern proceedings before jus- 
 tices of the peace in trials of issue of fact, will be found under the fol- 
 lowing head, and .to which reference will generally be had. 
 
 IV. OF TRIAL BY JURY. 
 
 1. When the jury shall be demanded, and how obtained. 
 
 Kevised Statutes 321, Sec. 44. " At any tune before judgment 
 is given in any suit before a justice, either party may demand to 
 have the cause tried by a jury, provided the matter in controversy ex- 
 ceed twenty dollars ; whereupon, it shall be the duty of the justice to 
 issue his writ, directed to any constable, commanding him to summon a 
 jury of six men, or twelve, if a less number be objected to ; and the 
 said jury shall be empanneled as soon as may be, the justice adjourning 
 the cause, if necessary, to any time not exceeding three days, for that 
 purpose. The jury, when empanneled, shall be sworn by the justice to 
 try the case according to the evidence, and the justice shall enter judg- 
 ment upon their verdict, according to the finding thereof." 
 
 (1) 2 Johns. 189. (2) 11 Johns. 457. (3) 3 Hill, 104.
 
 CHAP. 8.] TRIAL BY JURY. 97 
 
 " Sec. 45. The following shall be the form of the writ for summon- 
 ing the jurors, viz : 
 STATE OP ILLINOIS, 
 
 COUNTY 
 
 )is, ) 
 
 The People of the State of Illinois to any constable of said County, 
 GREETING : 
 
 We command you to summon lawful men of your county to 
 
 appear before me at , on the day of , 18 , who are 
 
 not of kin to , plaintiff, or to , defendant, to make a jury be- 
 tween said parties in a plea of , because as well the said plain- 
 tiff as the said defendant have put themselves upon the country for trial, 
 and have you then there the names of the jury and this writ. 
 
 Witness my hand and seal this day of ; 18 . 
 
 JOHN DOE, J. P." 
 
 " Sec. 47. No justice of the peace shall order a trial by jury with- 
 out the consent of all parties, unless such jury be demanded before the 
 hearing of any evidence in the case, nor unless the party demanding 
 such jury shall first pay the fees to which such are by law entitled." 
 
 Upon the return of the venire by the constable, with the panel of 
 jurors, the parties being ready for trial, the justice will proceed to call 
 the names of the jurors, for the purpose of ascertaining that the num- 
 ber required have been summoned, and all the persons so summoned 
 are in attendance. The justice should then enter upon his docket the 
 names of those who have been summoned, and the names of those who 
 appeared, and those who did not appear. 
 
 " Sec. 49. If any juror summoned as aforesaid shall be interested 
 in the event of the suit, or of kin to either party, or shall have ex- 
 pressed his opinion on the matter about to be tried, or shall for any 
 other cause, to be judged of by the justice, be considered as a partial or 
 improper juror in that case, the justice shall discharge such juror ; and 
 when, by such discharge, or the failure of any juror to attend, the jury 
 shall not be complete, the justice shall direct the constable to summon 
 as many persons as shall be required to complete such jury instantly 
 from among the bystanders or other persons in his bailiwick, which sum- 
 mons shall be verbal ; and the persons so summoned shall be bound to 
 serve on such jury, and on refusal or failure to do so, may be attached 
 and fined for contempt, as aforesaid." 1 
 
 (1) Jurors so summoned are called talesmen, from a latin word to denote persons of like 
 qualifications.
 
 98 TRIAL BY JURY. [PART 1, 
 
 2. Who shall be competent to serve as Jurors. 
 
 Rev. Stat. 308, Sec. 1. "All free white male taxable inhabitants 
 in any of the counties in this state, being natural born citizens of 
 the United States, or naturalized according to the constitution and laws 
 of the United States, and of this state, between the ages of twenty- 
 one and sixty years, not being judges of the supreme or circuit court, 
 county commissioners, judges of probate, clerks of the circuit or county 
 commissioners' court, sheriffs, coroners, postmasters, licensed attorneys, 
 overseers of the high way, or occupiers of mills, ferries, toll bridges or 
 turnpike-roads, being of sound mind and discretion, and not subject to 
 any bodily infirmity amounting to a disability, shall be considered and 
 deemed as competent persons, {except in cases ichere legal disabilities 
 may be imposed for the commission of some criminal offence,} to serve 
 on all grand and petit juries in and for the bodies of their counties re- 
 spectively." 
 
 By the act to establish and maintain a system of free schools, ap- 
 proved February 15, 1855, school commissioners, trustees of schools, 
 school directors, and all other school officers, are exempt from serving 
 on juries. 
 
 3. Proceedings against defaulting Jurors. 
 
 In all cases where a person has been summoned as a juror, to try 
 any cause before a justice of the peace, and shall fail to attend at the 
 time and place appointed in such summons, the justice has power to 
 issue an attachment, directed to any constable of the county, command- 
 ing him forthwith to bring before such justice, the body of such juror so 
 failing to attend as aforesaid, to show cause why he should not be fined 
 for such contempt ; and on the appearance of such juror on such at- 
 tachment, it is lawful for the justice to fine him in any sum not less 
 jhan one dollar, nor more than ten dollars, or wholly discharge him, if 
 satisfactory exeuse be made. 1 
 
 Form of Attachment against Defaulting Juror. 
 
 STATE OF ILLINOIS, 
 COUNTY, 
 
 The People of the State of Illinois, to any Constable of said County, 
 
 GREETING : 
 Whereas, C. D. was summoned to appear this day before E. F., 
 
 (1) Rev. Stat. 322, Sec. 48.
 
 ClIAP. 8.] TRIAL BY JURY. 99 
 
 Esquire, a justice of the peace in and for the county aforesaid, to 
 serve as a juror in a certain cause then and there depending, to be 
 tried between G. H., plaintiff, and J. K., defendant, and failed to 
 appear. 
 
 We therefore command you to attach the said C. D., and forthwith 
 to bring him before the said justice of the peace, to answer for contempt 
 in not obeying said summons, and to show cause, if any he has, why 
 he should not be fined for such contempt. 
 
 Given under the hand and seal of said justice, this day of 
 
 A. D. 18. E. F., (SEAL.) 
 
 Justice of the Peace. 
 
 In proceeding against a defaulting juror, the return of the constable 
 on the venire, will be taken as sufficient evidence of the summoning of 
 the juror. 1 And the docket of the justice will be sufficient evidence that 
 the juror made default in appearing. 
 
 4. Of Challenges. 
 
 Before the jury are sworn, if either party have any objection, either 
 of interest, or favor, or for other cause, against the constable summon- 
 ing them, or any of the jurors, whether originally summoned on a 
 venire, or from the bystanders as talesman, he must state his objection 
 to the justice, which is called a challenge. 2 Challenges are of two 
 sorts ; challenges to the array, and challenges to the polls* A chal- 
 lenge to the array is an objection at once to all the jurors returned by 
 the constable collectively ; not for any defect in them, but for some 
 partiality or default in the constable who summoned the jury. 4 It is 
 two fold, viz : a principal challenge, and a challenge to the array for 
 favor. 
 
 The causes of principal challenge to the array are such as the fol- 
 lowing : That the constable, or officer who makes the array, or in other 
 words, who summoned and returned the jury, is of kindred or affinity 
 to either party within the ninth degree ; that one or more of the jury are 
 returned at the nomination of either party ; that an action of battery, 
 or other action implying malice, is pending at the suit of either party 
 against the officer, or at the suit of the officer against either party ; that 
 the action of debt is pending at the suit of either party against the 
 officer, but not if by the officer against either party ; that the officer is 
 under the distress of either party ; that the officer is counsel, attorney, 
 
 (1) 14 Johns. 481. (2) Cowen Tr., 4th Ed., Sec. 1290. 
 
 (3) 3 Bl. Com. 359. (4) Co. Litt. 156, 158; 3 Bl. Com. 359. 
 
 '
 
 100 TRIAL BY JURY. [PART. 1, 
 
 or servant of either party, or is an arbitrator in the same matter, and 
 has treated thereof. 1 
 
 A justice has not a right to challenge a panel of jurors and issue a 
 new venire on his own motion without an objection by the party. 2 But 
 he may on his own motion challenge and set aside a juror for intoxica- 
 tion ; indeed, it is held to be his duty to do so, if the intoxication be 
 apparent. 8 
 
 The causes of challenge to the array for favor are such as imply at 
 least a probability of bias and partiality in the officer, but do not amount 
 to a principal challenge. Thus, that the plaintiff or defendant is the 
 tenant of the officer, or that the son of the officer has married the 
 daughter of the plaintiff or defendant. 4 
 
 A challenge to the polls is an objection made separately to each juror 
 as he is about to be sworn. Challenges to the polls, like those to the 
 array, are either principal or to the favor. 5 First, principal challenges 
 may be made on various grounds, and may be classed under the follow- 
 ing heads : 
 
 1. Propter Defectum ; that the juror is not qualified on account 
 of some personal objection, as alienage, infancy, old age, or want of 
 those qualifications required by legislative enactment. 6 But a matter 
 which merely exempts a man from serving on a jury, and does not 
 incapacitate him, is not a cause of challenge. 7 
 
 2. Propter Affectum ; because of some presumed or actual par- 
 tiality in the juror who is made the subject of the objection; on 
 this ground a juror may be objected to, if he is related to either 
 party within the ninth degree, or is so connected by affinity; this 
 is supposed to bias the juror's mind, and is only a presumption of par- 
 tiality. 8 The smallest degree of interest in the matter to be tried, is a 
 decisive objection against a juror. 9 But it is provided by statute, that 
 in all actions brought by or against a county, the inhabitants of the 
 county so suing, or being sued, may be jurors, if otherwise competent 
 or qualified according to law, 10 and also on the trial of every action in 
 which a town will be a party, or interested, the electors and inhabitants 
 thereof, are competent jurors ; but not so, in suits and proceedings by 
 and against towns. 11 So it is a principal cause of challenge that he has 
 
 (I) 10 Johns. 107; 1 Hill, 654; 7 Cowen, 479; note (a.) (2) 15 Johns. 469. 
 
 (3) 2 Cowen, 430. (4) Co. Litt. 156. (5) 1 Bouv. L. D. 233. 
 
 (6) See Rev. Stat. 308, Sec. 1. (7) Edw. Tr., 3d Ed. 87; 1 Cowen 438, note. 
 (8) 6 Greenl. 307 ; 3 Day, 491. (9) See 1 BOUT. L. D. 233, Tit. " Challenge," and authorities 
 (10) Rev. Stat. 132, Sec. 18. there cited. 
 
 (II) See Uaines' Town. Org. 31, Sec. 5, and note.
 
 ClIAP. 8.] TRIAL BY JURY. 101 
 
 taken information of the cause beforehand ; that he has declared his 
 opinion of the cause in advance, 1 or upon any one principal point or 
 ingredient in the cause, 2 but not when he merely expresses a conditional 
 opinion, thus : " If the reports of the neighbors be true the defendant 
 is wrong and the plaintiff is right;" 3 that since he has been returned 
 he has eaten or drank at the expense of one or more of the parties ; 
 that one of the parties had labored the juror and given him money or 
 other things for giving his verdict ; that an action implying malice or 
 displeasure is pending between the juror and one of the parties, but if 
 not implying malice or displeasure, it is but matter of challenge to the 
 favor. 4 
 
 3. Propter Delictum, as that the juror has been convicted of some 
 crime ; in that case he ceases to be a good and legal man, and is rendered 
 incapable of serving as a juror. 5 
 
 Secondly: Challenges to the poll for favor may be made, when, 
 although the juror is not so evidently partial that his supposed bias 
 will be sufficient to authorize a principal challenge, yet there are 
 reasonable grounds to suspect that he will act under some undue 
 influence or prejudice. The causes for such challenge are mani- 
 festly very numerous, and depend on a variety of circumtances. 
 The fact to be ascertained is whether the juror is altogether indiffer- 
 erent as he stands unsworn, because, even unconsciously to himself, 
 he may be swayed to one side. The line which separates the causes 
 for principal challenges and for challenge to the favor, is not very dis- 
 tinctly marked. That the juror has acted as godfather to the child of 
 the prosecutor or defendant, is cause for a principal challenge, 6 while the 
 fact that the party and the juror are fellow servants, and that the latter 
 has been entertained at the house of the former, is only cause for chal- 
 lenge to the favor. 7 
 
 Challenge, when and how made. There can be no challenge either 
 to the array or to the polls before a full jury appear ; therefore, if a 
 sufficient number of jurors who have been summoned on the venire, do 
 not appear, no challenge can properly be made until a sufficient number 
 have been summoned, and appeared as talesmen, to complete the jury. 8 
 And no juror can be challenged after he has been sworn to try the 
 cause. Challenges to the polls for favor, were, at common law, tried 
 
 (1) Brecso, 29. (2) Burr's Trial, 418. (3) 8 Johns. 445. 
 
 (4) 1 Cowen, 438, note; 3 Bac. Ab. 748; 4 Scam. 88. (5) Rev. Stat. 182, Sec. 174. 
 
 (6) Co. Litt. 157 a. (7) Co. Litt. 147; See 1 Bouv. L. D. 234. 
 
 (8) 7 Cowen, 478.
 
 102 TRIAL BY JURY. [PART 1, 
 
 by the aid of triors, being two indifferent persons named by the court. 1 
 But by our statute it is provided, that if any juror shall be interested 
 in the event of the suit, or of kin to either party, or shall have expressed 
 his opinion on the matter about to be tried, or shall, for any other cause, 
 to be judged of by the justice, be considered as a partial or improper 
 juror, in that case the justice shall discharge such juror. 2 By this 
 statute, it appears that a challenge to the polls for favor, as well as a 
 principal challenge, is to be tried by the justice alone, without the aid 
 of triors. 3 On a challenge, either principal or to the favor, the juror 
 may himself be examined on oath of voir dire, with regard 
 to such causes of challenge as are not to his dishonor or discredit ; 
 but not with regard to any crime, or any thing which tends to his dis- 
 grace or disadvantage. 4 The oath may be in the following form : 
 
 form of Juror's Oath, touching his competency. 
 
 You do swear, that you will true answers make to such questions as 
 may be put to you, touching your competency as an impartial juror, 
 between A. B., plaintiff, and C D., defendant, so help you, God. 5 
 
 Issuing of a new venire. If on a challenge to the array, the chal- 
 lenge is allowed, a new venire should be issued. 
 
 As a general rule, a justice cannot try a cause without a jury, after 
 a jury has been demanded. 6 
 
 But if a venire be improperly suppressed by the party demanding it, 
 the justice has a right to try the cause without a jury. As, if the 
 justice should deliver the venire to the party for the purpose of handing 
 to the constable, which he should neglect to do, and the party should 
 not appear at the return of the venire, the justice would have a right 
 to consider it as a waiver of the trial by jury ; and, although he might 
 issue another venire, he would not be bound so to do. 7 
 
 The party demanding a trial by jury has undoubtedly a right to waive 
 such trial after a venire has been issued ; but if the venire has been 
 served and returned, the other party would have a right to insist that 
 the cause should be tried by the. jury thus returned, notwithstanding 
 the party originally demanding such trial should waive it ; or, if a jury 
 should not be obtained on that venire, he might require that a new 
 venire should be issued at his instance. 8 
 
 When a new venire is issued, it will be considered as the process of 
 
 (1) 4 Bl. Com. 362. (2) Rev: Stat. 322, Sec. 49. (3) Cot. Tr. 428. 
 
 (4) 3 Bl. Com. 364; 19 Johns. 115. (5) Cowen Tr. 4th Ed., Sec. 1299. 
 
 (6) 8 Johns. 460. (7) 19 Johns. 384. (8) Edw. Tr. 3d Ed. 89.
 
 ClIAP. 8.] PROCEEDINGS ON THE TRIAL. 103 
 
 the p t arty at whoso instance the first venire was issued, and no objection 
 to the form of it can be made by him. 1 
 
 5. Of Swearing the Jury. 
 
 After a full jury has been obtained, they are then to be sworn to 
 try the cause. The whole panel may be sworn together, or any number 
 at a time, as may be thought convenient. They must be sworn by the 
 justice to try the case according to the evidence f the following will be 
 the proper form of the oath : 
 
 Form of Juror's Oath. 
 
 You, and each of you, do swear that you will well and truly try the 
 matter in difference between A. B., plaintiff, and C. D., defendant, 
 and unless sooner discharged by the court, a true verdict give according 
 to evidence. 
 
 Swearing the jury is a matter of form, and an irregularity in swear- 
 ing them, not objected to at the time, cannot be assigned as error. 8 
 
 After the jury are sworn, the justice should call over their names, 
 and as the jurors answer, the constable should count them for the pur- 
 pose of ascertajning that the jury contains the requisite uumb.0, awcl 
 the justice should then, likewise, take the precaution to ask them if 
 they have all been sworn. The jury should then be seated together, 
 to hear the proofs and allegations of the parties. 
 
 V. OF PROCEEDINGS ON THE TRIAL. 
 
 The jury being ready to hear the merits, and to fix their attention the 
 closer to the facts, which they are impanneled and sworn to try, the 
 nature of the case and the evidence intended to be produced, are next 
 laid before them by the plaintiff or party holding the affirmative, and 
 when the evidence of such party is gone through, the other side opens 
 the adverse case, and supports it by evidence; and then the party which 
 began is heard by way of reply. 4 
 
 The proper, and most expedient practice, however, is for the plaintiff, 
 or party holding the affirmative, before commencing the evidence, to 
 briefly state his case to the court or jury, as the case may be, and for 
 
 (1) 2 Caines. 134. (2) Rev. Stat. 321, Sec. 44. 
 
 (3) Breese, 12. (4) 3 Bl. Com. 367.
 
 104 OF PROCEEDINGS ON THE TRIAL. [PART 1. 
 
 the other party thereupon to answer, and state his defense, so that the 
 nature of the case may be fairly understood before commencing the 
 evidence, in order for a more clear understanding of the testimony, as 
 the trial progresses ; after which the plaintiff will call his witnesses to 
 prove his case. When the party thus holding the affirmative finishes 
 his evidence, the defendant or adverse party follows ; when he is clone, 
 the party having the affirmative will be permitted to give evidence to 
 rebut the testimony of his adversary, and impeach the credit of his 
 witnesses ; and then the other party the same right. 1 
 
 As a general rule the plaintiff holds the affirmative, but it will fall 
 upon the defendant in cases like the following : Where the defendant, 
 without pleading the general issue, merely pleads payment of the plaint- 
 iff's demand, on which issue is joined, this plea admits the matters 
 stated in the declaration, and it will be incumbent on the defendant in 
 the first place to prove the payment; he therefore holds the affirmative, 
 and will have the right to open the case and first call and examine his 
 
 witnesses. 2 
 
 * 
 
 When a witness has been sworn, he is first to be examined by the 
 party who calls him, and he has in general a right to go through with 
 his ex|mination before the other party puts any questions to him. The 
 witness may then be cross-examined by the other party, and afterwards 
 the party who first called him may reexamine him, and so alternately 
 until both parties are through. 3 
 
 In strictness, the party calling a witness is bound to finish his ques- 
 tions on the examination in chief ; then the defendant must do the same 
 on cross-examination ; and the witness can be reexamined only to cut 
 down or explain matter which comes out on the cross-examination. The 
 recalling of a witness after his examination has been closed, is a matter 
 of discretion in the court. 4 
 
 The judgment of the court or verdict of the jury, must be according 
 to the proof, or evidence adduced in the cause. 5 
 
 All evidence before a justice of the peace is required to be under 
 oath, and by parol, except where it shall be necessary to exhibit the 
 
 (1) Cowen Tr., 4th Ed., Sec. 1306. (2) Edw. Tr., 3d Ed., 90. 
 
 (3) Phil. Ev. 205. (4) 2 Scam. 494. 
 
 (5) Rev. Stat. 319, Sec. 28; 321, Sec. 44. Evidence signifies that which demonstrate.-, 
 makes clear, or ascertains the truth of the very fact or point in issue, cither on the one side 
 or on the other, and no evidence ought to be admitted to any other point. 3 Bl. Com. 367. 
 Proof is the conviction or persuasion of the mind of a judge or jury by the exhibition of 
 evidence, of the reality of a fact alleged, as to prove, is to determine or persuade that a thing 
 does or does not nxist. 2 Bouv. L. D. 380.
 
 ClIAP. 8.] 
 
 OF PROCEEDINGS ON THE TRIAL. 
 
 form of Oath to Witness, generally or in chief. 
 
 the whole truth, and nothing but the truth 
 
 , as to whether he has an interest in the cause or 
 -Pom of Witness' Oath of i-oir dire. 
 
 /4m ./ OaA of Witness to prove the Merest of another witness 
 When the Parties may be Shanm Ti 
 
 - r law is , thal a ^/r^Liriry^r 
 
 See Bev. Stat. 320, Sec. 39
 
 106 OF PROCEEDINGS ON THE TRIAL. [PART 1, 
 
 of the adverse party, under this provision of the statute, the supreme 
 court have laid down the following rule :* That the statute which 
 allows the parties in trials commenced before justices of the peace to 
 avail themselves of the oath of the adverse parties, is in derogation of 
 the principles of the common law, and must be construed to embrace 
 only such cases as are within both the letter and spirit of its provisions. 
 If the party to whom the oath is referred, declines to be sworn as a 
 witness, or refuses to testify when sworn, the opposite party may then 
 become a witness in his own behalf, and testify in relation to the matter 
 in question. But if the party first called is sworn, and testifies in good 
 faith, the object of the statute is answered, and the party claiming the 
 benefit of the statutory provision is not permitted to become a witness 
 for himself. 
 
 If a party to the suit is sworn, he is bound to testify fairly and fully 
 so far as he may be interrogated. If he manifests a disposition to 
 conceal or withhold the truth, does not give explicit answers, or deprives 
 the party calling him of the benefit of the facts within his knowledge, 
 the court may hold that he refuses to testify, and allow the other party 
 to become a witness. It is also held, 2 that where a party to a suit 
 pending before a justice of the peace makes the necessary preliminary 
 oath to authorize him to call upon the adverse party to testify, 
 and either the adverse party, or the party making such oath is 
 sworn, he does not become a general witness, but his testimony 
 will be confined "to the demand, discount, or set-off," in reference 
 to which he has been sworn. If the party has paid or discharged 
 the demand in reference to which he was sworn and interrogated, 
 he may state that fact, and such statement will be received as res- 
 ponsive to the question propounded to him. But if he only claims 
 that he is not legally bound to pay such demand, by reason of his hav- 
 ing a subsisting account or set-off against the party calling on him to 
 testify, he cannot proceed to establish such account, or set-off, by his 
 own oath, in the first instance, by virtue of his having been sworn at 
 the instance of the adverse party, but must prove the same by other 
 and disinterested evidence, if he has it, if not, he must first call on the 
 adverse party to be sworn. 
 
 Revised Statutes, 319, Sec. 31. " No party to any suit before a 
 justice shall be permitted to deny his or her signature to any written 
 instrument, upon which such suit shall be founded, or which shall be 
 offered as a set-off or acquittance for the debt demanded in such suit, 
 
 (1) See 11 111. 699. (2) 4 Scam. 543.
 
 CHAP. 8.] OF PROCEEDINGS ON THE TRIAL. 107 
 
 unless the said denial be under the oath of the party so denying the 
 signature purporting to be his or her own." 
 
 Form of Oath to be administered to Defendant denying Signature to 
 Instrument upon which Suit is founded. 
 
 You do swear that the written instrument upon which the suit now 
 in hearing, against you, is founded, and which is here now offered in 
 evidence, is not your signature. 
 
 Form of Oath to be administered to Plaintiff", denying Signature to 
 Instrument offered as Set-off or Acquittance. 
 
 You do swear that the written instrument here now offered as a set-off, 
 (or acquittance, as the case may be) for the debt demanded by you in 
 the suit now in hearing against C. D., is not your signature. 
 
 Contempt of Court. Our statute provides that every person who 
 shall apppear before a justice of the peace when acting as such, or who 
 shall be present at any legal proceeding before a justice, shall demean 
 himself in a decent, orderly and respectful manner, and for failure to do 
 so, such person shall be fined by the said justice for contempt, in any 
 sum not more than five dollars. 1 
 
 For forms of proceeding in relation to this subject, see PART THIRD, 
 chapter 4, title, CONTEMPT OF COURT. 
 
 Proceedings after the evidence is closed. After the evidence is 
 closed, the parties, by themselves or counsel, may make such observa- 
 tions to the jury as are -applicable to their case; the party holding the 
 affirmative closing the argument. This is the natural order of the trial 
 either before the justice or jury. 2 
 
 It is discretionary with the court to hear evidence after the argument 
 of a cause is opened by counsel. This is at all times, and before all 
 courts, matter of discretion, and before justices of the peace much more 
 ought this discretion to be indulged. 3 
 
 If the plaintiff be satisfied that his proof is insufficient to sustain his 
 action, he may at any time before the cause is submitted to the justice, 
 elect to withdraw, and submit to a non-suit ; but he cannot do this, it 
 seems, after the cause has been finally submitted for advisement. 4 But 
 
 (1) It is held that the power to punish for contempt is an incident to all courts of justice 
 independent of statutory provisions. Breese, 286 ; see also 3 Scam. 405. 
 (2) Cowen Tr. 4th Ed. Sec. 1307. (3) Breese, 35. (4) 11 Johns. 457.
 
 108 OF PROCEEDINGS ON THE TRIAL. [PART 1, 
 
 if the trial be by jury, he may submit to a non-suit at any time before 
 the verdict is pronounced by the foreman. 1 
 
 After the testimony of the plaintiff is closed, the justice may non- 
 suit the plaintiff, if, in his opinion, the testimony offered does not 
 support the action. 2 But after the cause has been submitted to the 
 jury, the justice -has no right to take the cause from them and non-suit 
 the plaintiff, 3 unless in case when the plaintiff fails to appear upon being 
 called, on return of the verdict of the jury. 4 
 
 The jury, after the proofs are summed up, unless the case be very 
 clear, withdraw to some convenient place, to consider their verdict ; and 
 in order to avoid intemperance and causeless delay, are to be kept without 
 meat, drink, fire or candle, unless by permission of the court, till they 
 are all unanimously agreed. 5 When the jurors retire to deliberate upon 
 the case, a constable ought to be sworn to take charge of them. 6 
 
 Form of Constable's Oath, on retiring with a Jury to consider their 
 
 Verdict. 
 
 You do swear that you will, to the utmost of your ability, keep the 
 persons sworn as jurors on this trial, together, in some private and 
 convenient place, without meat or drink, except ordered by the court ; 
 that you will not suffer any communication, orally or otherwise, to be 
 made to them ; that you will not communicate with them yourself, 
 orally or otherwise, unless by order of the court, or to ask them if they 
 have agreed on their verdict, until they shall be discharged ; and that 
 you will not, before they render their verdict, communicate to any person 
 
 the state of their deliberations, or the verdict they have agreed on. 
 
 .i.- 
 
 After the jury have retired to consider of their verdict, they may 
 come back into court and hear evidence of any matter of which they 
 have doubts, 7 or to ask any information or explanation of the justice in 
 regard to the law ; but this should only be in the presence of the 
 parties. 8 
 
 The justice should have no intercourse with the jury after they have 
 retired to consider of their verdict, except with the consent or in the 
 presence of the parties. 9 
 
 "When the jury are unanimously agreed, they will return into court 
 with their verdict, upon which the justice will call the names of the 
 
 (1) 5 Johns. 346. (2) 11 Johns. 299. (3) 3 Johns. 430. 
 
 (4) 5 Johns. 346; 3 Bl. Coin. 377. (5) 3 Bl. Com. 376. (6) 3 Bac. Ab. 768. 
 (7) 7 Johns 32. (8) 13 Wend. 274. (9) 1 Cowen, 258 ; 13 Johns. 487 ; 
 
 10 Id. 239.
 
 CHAP. 8.] EEFERJmQ DIFFEREXCEg 
 
 f-"-'^ plaintiff, (o, defendant I WWerS ' We 
 
 " 
 
 -." 
 
 twdte* ?" and should Pi'fhor nf *i separately. 'Is this your 
 
 arf ssi in fte -TK" * 
 
 fr a 
 
 -lifference of ! 
 
 h 
 
 ' 
 
 reasor, and understanding 
 
 aml 1 , flocliun 
 
 f : uldn , tbe kept ut s 
 
 ">IIon, and not of their 
 
 ARBITKATOKS. 
 
 ' 
 
 I0 
 
 1 
 
 18 
 
 to arbitrators, mn,n alr > 
 jn controve^, and i ^ , 
 
 E the san,o to the justice, who l ,1 en ,7 '" "* an<1 
 give jralgment aecerdi^g thereto " ' ^ """' 
 
 (1) 3 Bl. Com. 377.
 
 110 REFERRING DIFFERENCES TO ARBITRATORS. [PART 1, 
 
 Where parties agree to refer the matter in difference between them to 
 arbitrators, it is proper that such agreement be reduced to writing and 
 filed with the justice. 
 
 Form of Agreement referring a matter in difference to Arbitrators. 
 
 In Justice's Court : Before Enos W. Smith, Esquire, Justice. 
 
 John Smith, 
 
 vs. 
 John Doe. 
 
 We, the subscribers, the parties named in the above entitled suit, do 
 hereby agree to refer the matter in difference between us in said suit, to 
 A. B., C. D. and E. F., arbitrators mutually chosen by us. 
 
 Dated this day of , 18 . 
 
 JOHN SMITH. 
 JOHN DOE. 
 
 Form of Notice to Arbitrators. 
 
 In Justice's Court : Before Enos W. Smith, Esquire, Justice. 
 
 John Smith, 
 
 vs. 
 John Doe. 
 
 To A. B., C. D. and E. F. : 
 
 Gentlemen : You will please to take notice that the parties to the 
 above entitled suit have mutually referred the difference between them 
 in said suit, to you as arbitrators. You will, therefore, proceed and ex- 
 amine the matter in controversy between the said parties, and make 
 out your award thereon in writing, and deliver the same to me. 
 
 Dated this day of , 18 . 
 
 ENOS W. SMITH, J. P. 
 
 Form of Notice to Parties. 
 
 In Justice's Court : Before Enos W. Smith, Esquire, Justice. 
 
 John Smith, 
 
 vs. 
 John Doc. 
 
 To John Smith, 
 Sir: We, the undersigned arbitrators, to whom the difference
 
 CHAP. 8.] REFERRING DIFFERENCES TO ARBITRATORS. Ill 
 
 between the parties to the above entitled suit has been referred, will pro- 
 ceed to hear and determine the same on the day of , 
 
 18 , at o'clock in the noon, at the office of , in 
 
 , in the county of McHenry, and state of Illinois. 
 
 Dated this day of , 18 . 
 
 A. B. 
 
 C. D. 
 
 E. F. 
 
 A copy of the foregoing notice should be served on each party. 
 
 Form of Award of Arbitrators. 
 In Justice's Court : Before Enos W. Smith, Esquire, Justice. 
 
 John Smith, 
 
 v. 
 John Doe, 
 
 The matter in difference between the parties to the above entitled suit, 
 having been referred to the subscribers, arbitrators, mutually chosen by 
 them to examine the matter in controversy in said suit, and make out 
 their award thereon in writing, and deliver the same to the said justice, 
 and the said arbitrators being first duly sworn, and they having heard 
 the proofs and allegations of the parties, and having considered the 
 same, do award, adjudge and determine, that there is due from the de- 
 fendant to the plaintiff, the sum of dollars, and that the said 
 
 defendant pay the said sum to the said plaintiff; and all the costs of 
 suit. 
 
 In witness whereof, we have hereunto set our hands this day 
 
 of , 18. 
 
 A. B. 
 
 C. D. 
 
 E. F. 
 
 An award by arbitrators bars all suits springing out of the subject 
 matter of the award. 1 
 
 An appeal may be prosecuted from the judgment of a justice on an 
 award, not for the purpose of going behind the award, and re-investi- 
 gating the matters passed upon by the arbitrators, but for the purpose 
 of determining the correctness of the decision of the justice ; and if it 
 
 (1) 3 Scain. 245.
 
 112 REFERRING DIFFERENCES TO ARBITRATORS. [PART 1, 
 
 be found invalid, the parties will be remitted to their original rights, 
 and may investigate all the matters anew. 1 
 
 Where a suit is pending before a justice of the peace, and the par- 
 ties refer the same to arbitrators, they must be bound by the decision 
 of the arbitrators. 2 
 
 The award of two of three arbitrators is void, if the third arbitrator 
 has no notice to act in the matter. 8 
 
 (1) 13 HI. 293. (2) 2 Scam. 489. (3) 1 Gil. 92.
 
 ClIAP. 9.1 THE NATURE OF EVIDENCE. 113 
 
 CHAPTER IX. 
 
 OF EVIDENCE. 
 
 I. OFIHE NATURE OF EVIDENCE. 
 
 II. OF THE COMPETENCY OF WITNESSES. 
 
 III. OF THE EXAMINATION OF WITNESSES. 
 
 IV. OF WRITTEN EVIDENCE. 
 
 1. Of Public and Private Writings. 
 
 2. Of the Proof of Private Writings. 
 
 3. Of Proof of Hand- Writing. 
 
 4. Of Proving Proceedings before a Justice. 
 
 V. OF PAROL EVIDENCE, TO EXPLAIN, VARY, OR CONTRADICT 
 
 WRITTEN INSTRUMENTS. 
 VI. OF CONFIDENTIAL AND PRIVILEGED COMMUNICATIONS. 
 
 I. OF THE NATURE OF EVIDENCE. 
 
 Upon the subject of evidence, a few only of the rules of most gen- 
 eral use can be given ; the limits assigned to this work will permit 
 nothing like a full treatise upon this subject, which would require a 
 volume of itself. 
 
 Evidence consists of either positive or presumptive proof. The proof 
 is positive, when a witness speaks to a fact from his own immediate 
 knowledge ; and presumptive, when the fact itself is not proved by 
 direct evidence, but is to be inferred from the proof of circumstances 
 which either necessarily or usually attend such facts. 1 > . 
 
 Thus, a receipt for rent due on a certain day, is strong presumptive 
 evidence that the former rent has been paid. But it is only presump- 
 tive evidence, and the other party will be allowed to prove the contrary. 2 
 
 (1) Phil. EY. 111. (2) Phil. Ev. 113.
 
 114 THE NATURE OF EVIDENCE. [PART 1, 
 
 The general rule is, that the matter in issue is to be proved by the 
 party who asserts the affirmative. 1 
 
 But where one party charges another with a culpable omission, or 
 breach of duty, the general rule above laid down does not apply. In 
 such a case, the person who makes the charge is bound to prove it, 
 though it may involve a negative ; for it is one of the first principles 
 of justice not to presume that a person has acted illegally until the 
 contrary is proved. 2 
 
 It is also a general rule, that the best evidence must be given of 
 which the nature of the case is capable. The true meaning of this 
 rule is not, that the strongest possible assurance of the matter in ques- 
 tion is required ; but that no evidence shall be given which, from the 
 nature of the thing, supposes still greater evidence behind in the party's 
 possession or power. Thus, if a party offer a copy of a leed or will, 
 when he is able to produce the original, this raises a presumption that 
 fchere is something in the deed or will, which, if produced, would make 
 against the party, and therefore a copy, in such a case, is not evidence. 
 But if he prove the original deed or will to be in the hands of the 
 adverse party, to whom he has given notice to produce it, who refuses, 
 or that the original has been lost or destroyed without his default, no 
 such presumption can reasonably be made, and a copy, Or parol evidence, 
 will be admitted. 8 
 
 Under this rule, it is not necessary, as above observed, to give the 
 strongest possible assurance of a fact. Thus, to prove the plaintiff's 
 demand satisfied, the defendant may prove the fact of payment, or the 
 plaintiff's admission to that effect, though it should appear that the 
 plaintiff had signed a receipt, and it may be said the receipt would be 
 more satisfactory proof. 4 
 
 So, if it should be necessary to prove the hand-writing of a person 
 to an instrument not a party to the suit, it will not be necessary to call 
 that person to prove that he signed the instrument; but it may be 
 proved by others acquainted with his hand-writing. 5 
 
 It is also a general rule, that hearsay evidence of a fact is not 
 admissible. 6 To this rule there are some exceptious. Thus, hearsay 
 evidence is admissible to prove a pedigree, 7 or the death of a person. 8 
 
 Hearsay is often admitted as evidence as part of the res gesta ; as, 
 where it is necessary to inquire into the nature of a particular act, and 
 
 (1) Phil. Ev. 150. (2) Id. 151 ; 19 Johns. 315. (3) Phil. Ev. 167. 
 
 (4) Id. 169; 7 Cowen, 334. (5) Phil. Ev. 69, 170. 
 
 (6) Id. 173. (7) 8 Johns. 128 ; 5 Cowen, 237, 314. (S) 15 Johns. 226.
 
 CHAP. 9.] THE NATURE OF EVIDENCE. 115 
 
 the intention of the person who did the act, proof of what the person 
 said at the time of doing it, is admissible evidence for the purpose of 
 showing its true character. 1 
 
 The declarations of deceased persons have also been admitted in cases 
 where they appear to have been made against their interest ; as, entries 
 in their books charging them with the receipt of money on account of 
 a third person, or acknowledging the payment of money due to them- 
 selves. 2 
 
 Entries in the books of a tradesman by his deceased clerk, who 
 therein supplies proof of a charge against himself, have been admitted, 
 on the same principle, to be evidence of the delivery of goods, or of 
 other matter there stated within his own knowledge. 8 
 
 The account books of a party, though the entries are made by him- 
 self, are in certain cases admissible in evidence. The general rule 
 upon this subject is laid down in Vosburgh v. Tkayer. 4 In that case, 
 it appeared that Thayer sued Vosburgh before a justice, for butchers' 
 meat furnished by him to Vosburgh and his family. It was proved by 
 several witnesses that he had been in the daily practice of supplying 
 them with meat during the period for which he claimed payment. It 
 was proved by some of those who dealt with him, that he kept just and 
 honest accounts. He then offered his books of account in evidence, it 
 appearing that he had no clerk. The books were objected to, but admit- 
 ted. In deciding this case, the court say, " the admission of books of 
 account in evidence, under proper limitations and restrictions, is not cal- 
 culated to excite alarm, or to produce injurious consequences. They are 
 not evidence of money lent. This was so held in Case v. Potter, 5 
 because such transactions are not, in the usual course of business, mat- 
 ter of book account. They are not evidence in the case of a single 
 charge, because there exists, in such case, no regular dealing between 
 the parties. They ought not to be admitted, when there are several 
 charges, unless a foundation is first laid for their admission, by proving 
 that the party had no clerk ; that some of the articles charged have been 
 delivered ; that the books produced are the account books of the party, 
 and that he keeps fair and honest accounts, and this by those who have 
 dealt and settled with him. Under these restrictions, from the necessity 
 of the case, and the consideration that the party debited is shown to 
 have reposed confidence by dealing with and being intrusted by the other 
 party, they are evidence for the consideration of the jury. Testing 
 
 (1) Phil. Ev. 202. (2) Id. 191. (3) Id. 195. (4) 12 Johns. 461. 
 
 (5) 8 Johns. 212.
 
 116 COMPETENCY OF WITNESSES. [PART 1, 
 
 the proceeding in this case, by these rules, there is no ground for 
 reversing the judgment." 
 
 In a suit by a shoemaker for work done in the line of his business, 
 to the amount of $11.50, after the proof of the delivery of one pair of 
 shoes and the mending of another pair, that the plaintiff kept honest 
 and fair books, and had no clerk, it was held that the plaintiff's account 
 books were competent evidence. 1 
 
 In the case of a public officer, as a sheriff, deputy sheriff, justice of 
 the peace, constable, &c., it is sufficient to prove by reputation, that he 
 acts as a public officer, without producing his appointment. 2 
 
 If a witness who has been sworn and examined on a former trial or 
 action between the same parties, and where the point in issue was the 
 same, is since dead, what he swore at the former trial may be given in 
 evidence j but the words of the witness must be proved, not what is 
 supposed to be the substance of his testimony. And the witness must 
 be dead ; his being out of the jurisdiction of the court will not be 
 sufficient. 3 In such case, also, the testimony of a witness who cannot 
 be found, after diligent inquiry, has been permitted to be proved, the 
 same as in case of a witness since deceased. 4 
 
 II. OF THE COMPETENCY OF WITNESSES. 
 
 The most formidable difficulty that presents itself to the justice, as 
 well on a hearing by himself as on trial before a jury, is to determine 
 upon the admission or rejection of testimony. This difficulty will dis- 
 cover itself in various shapes, and often in disguised forms. The in- 
 trinsic difficulty of the thing renders it next to impossible to lay down 
 abstract rules that will be a guide in all cases. We will, therefore, next 
 consider a few of the general rules in relation to the competency of 
 witnesses. 
 
 When a witness appears, he must be regularly sworn, unless an ob- 
 jection be made to his competency. An exception to the credibility of 
 a witness cannot exclude him from being sworn. The exception of kin- 
 dred, for example, although it is a good cause of challenge against a 
 juror, is not an objection to the competency of a witness ; a father is a 
 
 (1) 11 Wend. 568. (2) 3 Johns. 431. (3) 6 Cowen, 102 ; Phil. Ev. 199. 200. 
 
 (4) See 1 Greenl. 163, and note.
 
 ClIAP. 9.] COMPETENCY OF WITNESSES. 117 
 
 competent witness for or against his son, or a son for or against his 
 father. Such objections may affect the credibility, but do not affect 
 the competency of a witness. 1 
 
 Husband and wife, however, cannot be witnesses for or against each 
 other, in any civil suit. 2 
 
 The objections to the competency of witnesses are four-fold ; 1st. 
 For want of reason or understanding ; 2d. Defect of religious princi- 
 ples; 3d. Infamy of character ; and 4th. On the ground of interest. 3 
 
 1st. Persons who have not the use of reason are, from their infirmity, 
 utterly incapable of giving evidence, as persons insane, idiots and lunar 
 tics, under the influence of their malady. 4 
 
 But lunatics and others, who are subject to temporary fits of insanity, 
 may be witnesses in their lucid intervals, if they have sufficiently re- 
 covered their understanding. 
 
 A person born deaf and dumb is not on that account incompetent, 
 but if he has sufficient understanding, may give evidence by signs, with 
 the assistance of an interpreter. 5 
 
 There is no precise age at which infants are excluded from being 
 witnesses. Infants above fourteen are admissible the same as of full 
 age. But under that age, their admissibility is regulated by their ap- 
 parent sense and understanding of the nature and obligation of an oath. 6 
 
 A witness, while in a state of intoxication, ought not to be sworn, 
 nor be permitted to testify ; and the justice may decide, from his own 
 view, whether the witness is in such a situation that he ought not to be 
 sworn, or admitted to testify. 7 
 
 2d. Defect of religious principle. The proper test of a witness' 
 competency, on the ground of his religious principles, is, ' ' whether he 
 believes in the existence of a God, who will punish him if he swears 
 falsely." 8 
 
 All persons who believe in the existence of a God, and a future state, 
 though they disbelieve in a punishment hereafter for crimes committed 
 here, are competent witnesses. 9 
 
 A witness who believes in a God, and in punishment by him in this 
 life only, is a competent witness. It is not necessary, in order to ren- 
 der a man a competent witness, that he should believe anything more 
 
 (1) Phil. Ev. 13. (2) Id. 63, 64. (3) Id. 13. 
 
 (4) 10 Johns. 362; 16 Johns. 143. (5) Phil. Ev. 14. 
 
 (6) Id. 14, 16. (7) 16 Johns. 143. (8) 2 Cowen, 432, and note. 
 
 (9) Breese. 29.
 
 118 COMPETENCY OF WITNESSES. [PART 1, 
 
 than that there is a Supreme Being, and that he will reward and punish 
 either in this life, or a future life. Nothing but the belief of a God, 
 and that he will reward and punish us according to our deserts, is neces- 
 sary to qualify a man to take an oath. 1 
 
 If a witness believe that he will be punished by his God, even in 
 this world, if he swears falsely, there is a binding tie upon the conscience 
 of the witness, and he must be sworn ; and the strength or weakness of 
 that tie is only proper to be taken into consideration, in deciding upon 
 the degree of credit which is to be given to his testimony. It is a 
 question as to his credibility and not to his competency. 2 
 
 The common law recognizes any mode of swearing a witness, that he 
 believes to be binding on his conscience ; 8 and our statute, it seems, 
 does not vary the common law in this respect. 4 Therefore, a witness 
 may be sworn according to the form which he holds to be most solemn, 
 and which is sanctified by the usage of the country, or of the sect to 
 which he belongs. A Jew is sworn on the Pentateuch, a Mahomedan 
 on the Koran, &c. 6 
 
 3d. Incompetency on account of infamy of character. Each and 
 every person, who may have been convicted of the crime of rape, kid- 
 napping, wilful and corrupt perjury, or subornation of perjury, arson, 
 burglary, robbery, sodomy, or the crime against nature, incest, larceny, 
 forgery, counterfeiting, or bigamy, are deemed infamous, and are for- 
 ever rendered incapable of giving testimony. 6 The competency of a 
 witness may, no doubt, be restored, however, by executive pardon. 7 
 
 A conviction of a person for a crime, so as to exclude him from being 
 a witness, cannot, in any case be proved by parol ; and the witness 
 himself is not to be questioned respecting it. 8 
 
 4. Incompetency on account of interest. It is a general rule that 
 all persons interested in the event of a suit are to be excluded from 
 giving evidence in favor of the party to which their interest inclines 
 them. 9 
 
 In Van Nuys v. Terhune, 10 the court lay down .the following rule : 
 " That if a witness will not gain or lose by the event of the cause, or 
 
 (1) 2 Cowon, 572, note; 1 Starkie Ev. 93. (2) 2 Cowen, 433, note. 
 
 (3) 2 Gil. 554. (4) Breese, 28. 
 
 (5) 1 Starkie Ev. 23. ' (6) Rev. Stat. 182, Sec. 174. 
 
 (7) See Const. 111., Art. IV, Sec . 8 ; see also 1 Stark. Ev. 99, and authorities cited, by which 
 it is held, that a pardon restores competency in all cases where the disability is a consequence 
 of the judgment and not a part of it. 
 
 (8) Phil . Ev. 24 ; 13 Johns. 82 ; 14 Id. 182. (9) Phil. Ev. 34. 
 (10) 3 Johns. Cas. 82.
 
 ClIAP. 9.] COMPETENCY OF WITNESSES. 119 
 
 if the verdict cannot be given in evidence for or against him in another 
 suit, the objection goes to his credit only, and not to his competency." 
 
 When a witness is interested in any part of the demand of the party, 
 he cannot be permitted to testify as to another part. 1 
 
 If a witness have a direct interest, however small, in the event of a 
 cause, he cannot be permitted to testify in favor of such interest ; as, if 
 he has given a bond of indemnity to the plaintiff against the costs of 
 the suit. 2 
 
 But a remote or contingent interest, goes only to the credit of a 
 witness, not to his competency; 8 as, in a suit for a penalty which is to 
 be applied to the support of the poor of the town of which the 
 witness is a taxable inhabitant, the interest is too remote and con- 
 tingent. 4 
 
 An interest in the question alone will not render a witness incompe- 
 tent, but goes to his credit only ; as, when the witness has a cause 
 depending upon the same question, 5 or is a co-trespasser. 6 
 
 A person interested in the event, is competent when called to give 
 evidence contrary to his interest. 7 
 
 If a witness stands in that situation, that which way soever the suit 
 may terminate, he will be equally, liable, and to the same extent to the 
 losing party, he is admissible. 8 
 
 A witness liable to lose by the determination of the cause against the 
 party calling him, is yet competent if he be fully secured and indem- 
 nified against the loss. 9 
 
 Neither a party to a suit on record, nor a party in interest when a 
 suit is in the name of a third person as a trustee, can be compelled to 
 testify without his consent. 10 
 
 One defendant cannot regularly be a witness for his co-defendant ; 
 but in actions for torts, if no evidence has been produced against one 
 defendant, he is entitled to his discharge as soon as ftie plaintiff has 
 closed his case, and then may give evidence for the others. But if 
 there is any, even the slightest, evidence against him, he cannot be thus 
 discharged. 11 But in actions on contracts it is otherwise. 
 
 As a party on record is not a competent witness, so neither is the 
 husband or wife of the party competent to give evidence either for or 
 
 (I) 4 Johns. 293. (2) 11 Johns. 67. 
 
 (3) 5 Johns. 256; 9 Id. 219. (4) 12 Johns. 286; 1 Id. 486. 
 
 (5) 5 Johns. 256. (6) 1 Cowen, 344. 
 
 (7) 1 Johns. 159; 7 Cowen, 752. (8) 16 Johns. 89. 
 
 (9) 7 Cowen, 358. (10) 7 Cowen, 174. 
 
 (II) Phil. Ev. 61 j 14 Johns. 119; 1 Wend. 119.
 
 120 COMPETENCY OF WITNESSES. [PART 1, 
 
 against the party. They cannot be witnesses for each other, because 
 their interests are absolutely the same ; and they cannot be witnesses 
 against each other, because it is contrary to the legal policy of marriage. 1 
 
 As the parties to a suit cannot be compelled to give evidence, state- 
 ments or representations made by them against their interest, must be 
 evidence against them, and in many cases they will be the strongest 
 evidence. The admissions of a party to the suit against his interest 
 are evidence in favor of the other side, whether made by the real party 
 on the record, or by a nominal party who sues as trustee for the benefit 
 of another, or whether by the party who is really interested in the suit, 
 though not named on the record. 2 
 
 But where the plaintiff previous to the suit had assigned his interest 
 in the debt or chose in action, of which the defendant had notice, 
 evidence of confessions afterwards made by the plaintiff, as to the 
 demands of the defendant against him, and which might impair the 
 interest so assigned, or prejudice the rights of the assignee, for whose 
 benefit the suit is brought, is inadmissible. 3 
 
 When the confession or declaration of a party is given in evidence, 
 the whole must be taken together. 4 
 
 Thus, if a defendant in an action for money had and received, say 
 that he had received the money, but that it was his due, it amounts to a 
 denial of the plaintiff's demand. 5 
 
 The confession of a defendant that he had purchased goods, but that 
 he had paid for them, is not sufficient to entitle the plaintiff to recover. 6 
 
 A witness, however, after being sworn in chief, may be examined as 
 to his interest, and when a witness in any stage of his examination 
 discovers himself to be interested in favor of the party calling him, his 
 testimony may be rejected. 7 
 
 Whatever interest a witness may have had, if he be divested of it by 
 release or payment, or by any other means, when he is ready to be 
 .sworn, there is no objection to his competency. 8 
 
 But a release after the examination in chief of an interested witness, 
 is too late to render his testimony competent. 9 
 
 An actual release is in some cases unnecessary, and the witness, 
 though interested, will be admitted without a release. As, when the 
 
 (1) Phil. Ev. 63, 64. (2) Phil. Ev. 71, 72. 
 
 (3) 20 Johns. 142. (4) 3 Johns. 427; 10 Id. 38; 9 Id. 141. 
 
 (5) 3 Johns. 427. (6) 15 Johns. 329. 
 
 (7) 6 Johns. 523. (8) Phil. Ev. 97; 8 Johns. 377; 1 Johns. Gas. 270. 
 
 (9) 14 Johns. 378 ; 1 Caine, 14.
 
 CHAP. 9.] EXAMINATION OF WITNESSES. 121 
 
 witness offers to release his interest, but the other party refuses to accept 
 it, in that case the evidence of the witness may be received ; or, if 
 the party on whose side the witness is interested, make an offer to 
 remove all interest, by a release or otherwise, and the witness refuses, 
 that will not deprive the party of his testimony. 1 
 
 III. OF THE EXAMINATION OF WITNESSES. 
 
 When a witness is called, he is to be sworn in chief, unless an objec- 
 tion is made to his competency, 2 in which case, the party objecting 
 proves his incompetency ; or, if the objection be on account of interest, 
 the witness himself may be examined on his voir dire, as before no- 
 ticed f but latterly, it is not usual to examine a witness on his voir dire, 
 but to permit him to be sworn in chief, after which he may be examined 
 as to his interest. 4 
 
 A witness is not to be compelled to answer any question which will 
 render him infamous or disgraced. 5 But this is a personal privilege 
 only, and the witness may, if he see proper, waive it, and answer the 
 question ; but the court should inform him of his privilege. Thus, in 
 an action for a breach of promise of marriage, a witness may be asked 
 if he had had any improper connection with the plaintiff; and the wit- 
 ness may, if he see proper, answer the question, but he is not bound to 
 answer it. 6 
 
 A witness can depose to such facts only as are within his own recollec- 
 tion, but to assist his memory, he may use a written entry or memo- 
 randum, or the copy of a memorandum ; and if, afterwards, he can 
 swear positively to the truth of the fact there stated, such evidence will 
 be sufficient. 7 
 
 In general, the opinion of a witness is not evidence ; he must speak 
 to facts. But in questions of science, or trade, or others of the same 
 kind, persons of skill may speak not only as to facts, but are also al- 
 lowed to give their opinion in evidence. Evidence of character is 
 founded on opinion. 8 
 
 (1) Phil. Ev. 99. (2) See ante, p. 117. (3) Ante, p. 105. 
 
 (4) Phil. Ev. 204. (5) Phil. Ev. 206 ; 13 Johns. 82. 
 
 (6) 6 Cowen, 254. (7) Phil. Ev. 209 ; 2 Caino, 129. 
 
 (8) Phil. Ev. 209.
 
 122 WRITTEN EVIDENCE. [PART 1, 
 
 The party against whom a witness is called, may disprove the acts 
 stated by him, or may impeach his credibility by examining other wit- 
 nesses as to his general character, but they will not be allowed to speak 
 to particular facts or parts of his conduct. The regular mode is to in- 
 quire whether they have the means of knowing the witness' general 
 ^character as to truth and veracity, and whether, from such knowledge, 
 they would believe him on his oath. 1 The knowledge as to a witness' 
 character, must be derived from his general reputation, and not what an 
 individual knows of him. 
 
 The credit of a witness may also be impeached, by proof that he has 
 made statements out of court on the same subject, contrary to what he 
 swears at the trial. In answer to such evidence, the party calling the 
 witness, may show that he has affirmed the same thing before, on other 
 occasions, and that he is still consistent with himself. 2 
 
 But evidence is inadmissible to support the testimony of a witness, 
 by showing his good character, or the consistency between his former 
 declarations and his evidence on the trial, unless he is first impeached. 3 
 
 A party will not be permitted to produce general evidence, to dis- 
 credit his own witness ; that is, he will not be allowed to prove that his 
 character is bad, for the purpose of showing that he is unworthy of 
 credit. 4 But if a witness unexpectedly give evidence against the party 
 calling him, another witness may be called to prove the facts otherwise. 5 
 
 The competency of witnesses, and the inadmissibih'ty of evidence, 
 are questions to be decided by the justice alone. In the higher courts. 
 a bill of exceptions may be taken to the opinion of the court on ques- 
 tions of this kind. But this is a proceeding not applicable to a justice's 
 court. 
 
 IV. OP WRITTEN EVIDENCE. 
 
 1. Of Public and Private Writings. 
 
 Writings are either public or private. Some public writings are of 
 record ; others, not of record. 6 
 
 Public writings of record are acts of the legislature, and of courts 
 of justice which are courts of record. 
 
 (1) Phil. Ev. 212. (2) Id. 213. (3) 5 Cowen, 314. 
 
 (4) 7 Cowen, 23S. (5) Phil. Ev. 213. (6) W. 218.
 
 ClIAP. 9.]' WRITTEN EVIDENCE. 123 
 
 Acts of the legislature are of two kinds : public acts, which relate to 
 the whole State at large, and private acts, which relate to particular 
 classes of men, or to certain individuals. 1 
 
 The general rule is, that public acts of the legislature are to be taken 
 notice of judicially, by courts of law, without being formally set forth ; 
 but private acts are not regarded by the judges, unless formally shown 
 and pleaded. 2 
 
 Copies of records in courts of justice are of two kinds : under seal, 
 and not under seal. Those under seal are called exemplifications, and 
 are of higher credit than any sworn copy. 3 
 
 Copies of records not under seal are also of two kinds : sworn copies, 
 and office copies. 
 
 Copies of records may be proved by a witness who has compared the 
 copy with the original, or who has examined the copy while another 
 person read the original, and these are called sworn copies. 4 
 
 Office copies are such as are authenticated, under the hand of an 
 officer, or person intrusted for that purpose, as the clerk of the court. 5 
 
 2. Of the Proof of Private Writings. 
 
 The execution of every instrument to which there is a subscribing 
 witness, whether under seal or not, ought to be proved by the subscrib- 
 ing witness, if he can be procured, and is capable of being examined. 6 
 
 And this rule is so strictly observed that a deed executed by a third 
 person not a party to the suit to which there is a subscribing witness, 
 cannot be proved by the party executing it, nor by the party to whom 
 it is given, but the subscribing witness should be called. 7 
 
 So in the case of a deed or instrument under seal, to which there is 
 a subscribing witness, proof of the confession of the party that he executed 
 the deed is not sufficient, but the subscribing witness must be produced, 
 or if he cannot be, his hand-writing must be proved. 8 
 
 But as to instruments not under seal, the rule is otherwise ; in that 
 case the acknowledgement of the party is sufficient. 9 If a written instru- 
 ment is attested, but none of the witnesses are capable of being examined, 
 the course then is to prove an attesting witness' hand-writing, and this 
 will be a sufficient proof of the execution, without proving the hand- 
 writing of the party ; 10 as where the attesting witness is dead, 11 or blind, 
 
 (1) Phil. Ev. 219. (2) Id. 220. (3) Id. 289. (4) Id. 291. 
 
 (5) Id. 294. (6) Id. 356. (7) Id. 357; 9 Johns. 23G. 
 
 (8) 3 Johns. 477. (9) 2 Johns. 451; 16 Id. 201. 
 
 (10) 4 Johns. 461. (11) 1 Johns. Cas. 230 ; 4 Johns. 461.
 
 124 WRITTEN EVIDENCE. [PART 1, 
 
 or incompetent to give evidence, either from insanity or from infamy of 
 character, or from interest, or when the subscribing witness is out of 
 the State or the jurisdiction of the court, which, in a justice's court, is 
 when the witness is not in the same or next adjoining county, 1 or where 
 he cannot be found after strict and diligent inquiry. 2 
 
 If there are two or more subscribing witnesses, the calling of one to 
 prove the instrument is sufficient ; or if the absence of all of them be 
 accounted for, proof of the hand-writing of one of them, or of the party 
 signing the instrument, will be sufficient. 3 
 
 But if there are two or more subscribing witnesses, it is not enough to 
 prove one of them dead or out of the jurisdiction of the court, and then 
 prove his hand-writing with that of the party, but the absence of all the 
 subscribing witnesses must be accounted for. 4 
 
 But in cases where there is no subscribing witness, or the subscribing 
 witness denies having any knowledge of the execution ; 5 or where the 
 name of a fictitious person is inserted ; or where the attesting witness 
 was interested at the time of the execution, and continues so at the time 
 of the trial ; or where the person who has put his name as a subscrib- 
 ing witness, did so without the knowledge or consent of the parties ; 
 or if, after diligent inquiry, nothing can be heard of the subscribing 
 witness, so that he can neither be produced himself, nor his hand- 
 writing proved ; or if, at the time of the execution, he was of such an 
 infamous character as to make him incompetent to give evidence in 
 these cases the instrument may be proved by proving the hand-writing 
 of the party, or by any person present at the execution who did not 
 subscribe it as a witness, or by proof of the admission of the party that 
 he executed the instrument. 6 
 
 3 . Of Proof of Hand-writing. 
 
 The simplest and most obvious proof of hand-writing is the testimony 
 of a witness who saw the paper or signature actually written. But a 
 great variety of cases must continually occur where such a direct kind 
 of evidence cannot possibly be produced. 7 
 
 The hand-writing of a person may therefore be sufficiently proved by 
 a witness who is previously acquainted with his hand-writing, and who 
 testifies that he believes the hand-writing in question to be his. This 
 previous acquaintance with the hand-writing of a person may be 
 
 (1) 12 Johns. 188. (2) Phil. Ev. 362. (4) 11 Johns. 64; 12 Id. 188. 
 
 (4) 5 Cowen, 383. (5) 2 Johns. 451. (6) Phil. Ev. 361^1. 
 
 (7) Id. 364.
 
 CHAP. 9.] PAROL EVIDENCE. 125 
 
 derived either from having seen the person write, or from papers received 
 in the course of business, which there is sufficient reason to believe 
 were written by the party, as letters, notes which have been paid, &C. 1 
 Hand-writing cannot be proved by comparing the paper in dispute 
 with other papers acknowledged to be genuine, either by a witness or 
 by the court or jury. 2 
 
 4. Of Proving Proceedings before a Justice. 
 
 The proceedings and judgment in a justice's court, are not strictly 
 and technically a record ; yet the material parts are in writing, and 
 cannot be proved by parol. 3 
 
 A judgment of an inferior court, not of record, is usually established 
 by the production of the book containing the minutes of the proceedings 
 of the court, from the proper place of deposit, proved to be such by oral 
 testimony. 4 In order to entitle a transcript of a judgment of a justice 
 of the peace of another State, to be received in evidence in this State, 
 it must be shown, that by the laws of the State where the judgment was 
 rendered, the justice had jurisdiction over the subject-matter upon 
 which he attempted to adjudicate. 5 
 
 V. OF PAROL EVIDENCE TO EXPLAIN, VARY, OR CONTRADICT WRITTEN 
 
 INSTRUMENTS. 
 
 Parol evidence is not admissible to explain an ambiguity which 
 appears on the face of an instrument, but it can be explained only by 
 collecting the general intention from other parts of the writing, or by 
 a reference to some event, or some other writing, or some medium of 
 explanation adverted to in the instrument. If it be incapable of being 
 explained in this way, it will be void, for uncertainty. The declaration 
 of the parties as to their intention, is inadmissible. 6 
 
 But where there is no ambiguity on the face of an instrument, but 
 a doubt is produced by extrinsic evidence, or some collateral matter 
 out of the instrument, as, if it should appear that there were two per- 
 sons of the same name, as is mentioned in the instrument, parol 
 
 (1) Phil. Ev. 364; 2 Johns. Cas. 211 ; 19 Johns. 134. 
 
 (2) 2 Johns. Cas. 211; Phil. Ev. 371; 13 Johns. 238. (3) 11 Johns. 166. 
 (4) 1 Stark. 256. (5) 1 Scam. 558. 
 (6) Phil. Ev. 416; 11 Johns. 201.
 
 126 CONFIDENTIAL COMMUNICATIONS. PART 1, 
 
 evidence is admissible to explain the ambiguity, and show which person 
 was intended. 1 
 
 It is a general rule that written agreements, whether specialties or 
 simple contracts, and whether within or without the statute of frauds, 
 are not to be contradicted, varied, or materially affected by parol testi- 
 mony f as, to show that an agreement, absolute on its face, was in- 
 tended to be upon condition, 8 to show a mistake as to the time of 
 payment or other matter. 4 
 
 The above rule, however, does not exclude parol evidence of fraud, 
 or the icant or failure of consideration, or the enlargement of the time 
 for performance, or a waiver of the performance of a written simple 
 contract, 5 or of a bond. 6 
 
 But a receipt, although absolute in its terms, and expressed to be in 
 full, is not conclusive, and parol evidence is admissible to show a 
 mistake in it, or to explain or contradict it. 7 So, parol evidence may 
 be received to impeach the consideration of a note, but not to vary 
 its terms. 8 Bui parol evidence cannot be given of the contents of a 
 written instrument or record, in the power of the party to produce. 9 
 
 Parol evidence may be introduced to show the understanding with 
 which a note was indorsed, without violating the rule that a written 
 contract cannot be contradicted by parol proof. 10 
 
 Parol testimony may be given of the time of filing a deed for record. 11 
 
 The law presumes that an instrument was executed the day it bears 
 date ; but parol testimony is admissible to show that it was, in fact, 
 executed on a different day. 12 
 
 VI. OF CONFIDENTIAL AND PRIVILEGED COMMUNICATIONS. 
 
 A counsel or attorney is not to be permitted to testify as to confiden- 
 tial communications made to him by his client. This prohibition extends 
 
 (1) Phil. Ev. 416; 11 Johns. 201. 
 
 (2) 1 Cowen, 249; 1 Johns, 139; 3 Id. 68; 12 Id. 427-488. (3) 1 Cowen, 249. 
 
 (4) 8 Johns. 189, 375 ; 18 Id. 45. Parol evidence nay be admitted to show that an absolute 
 deed, whatever may be its covenants, was intended as a mortgage, or mere security for the 
 payment of a debt, and the grantor can have relief in equity. 3 Gil. 394. 
 
 (5) 1 Cowen, 250. (6) 3 Johns. 528. 
 
 (7) 7 Cowen, 334 ; 5 Johns. 58 ; 1 Johns. Cas. 145 ; 2 Johns. 37S ; 3 Id. 319 ; 8 Id. 389 ; 9 Id. 310. 
 
 (8) 12 111. 287. (9) Breese, 232; 2 Scam. 42. (10) 11 111. 575. 
 (11) 1 Gil. 575. (12) 133 111. 13.
 
 CHAP. 9.] CONFIDENTIAL COMMUNICATIONS. 127 
 
 not only to the suit in which the communication is made, but to any 
 other suit, and to any period of time. 1 
 
 To entitle communications between individuals to be considered as 
 confidential and privileged, the relation of client and attorney must 
 exist, the party must consult the attorney in a matter in which his 
 private interest is concerned, and make the statements to him, with the 
 view to enable the attorney correctly to understand his cause. 2 
 
 Where an attorney is consulted merely as a friend, and where neither 
 he nor the persons communicating with him, supposes that the relation 
 of attorney and client exists between them, the communications will 
 not be considered as privileged. 3 
 
 (1) Phil. Ev. 103; 1 Greenl. Ev. Sec. 237. (2) 3 Gil. 299. (3) 14 111. 89.
 
 128 DOCKET ENTRIES. [PART 1. 
 
 CHAPTER X. 
 
 OF THE DOCKET, AND FOKMS OF DOCKET ENTRIES. 
 
 I. OF THE DOCKET. 
 II. OF FORMS OF DOCKET ENTRIES. 
 
 1. Where the Parties appear, and the Trial is by Jury. 
 
 2. Where Suit is commenced by Warrant, the Execution 
 
 sworn out and returned not satisfied, and ca. sa. 
 issued against the Body. 
 
 3. Where Suit is brought on Promissory Note placed in 
 
 the hands of the Justice for collection, and the Parties 
 do not appear. 
 
 4. Where the Parties agree to have a Difference decided 
 
 by the Justice without process. 
 
 5. Where Judgment is by Confession. 
 
 6. Where Proceeding is against Garnishee after Execution 
 
 is returned, ( ' no property found." 
 
 7. Where Administrators or Executors are Parties to a 
 
 Suit. 
 
 8. Minutes of Conviction of Witness attached for Non- 
 
 attendance. 
 
 9. Memorandum to be entered where Cause is appealed. 
 10. Entry of Acknowledgement of Chattel Mortgage. 
 
 I. OF DOCKET ENTRIES. 
 
 By Kev. Stat. 316, Sec. 20, it is enacted, that "It shall be the duty of 
 every justice, whenever a suit shall be commenced before him, to record 
 in a book kept for that purpose, the names of the parties, the amount 
 and nature of the debt sued for, the date and description of the process 
 issued, and the name of the officer to whom such process shall be
 
 CHAP. 10.] DOCKET ENTRIES. 129 
 
 delivered, and throughout the whole of the proceeedings in any suit, it 
 shall be his duty whenever any process shall be issued or returned, or 
 any order made, or judgment rendered, to make a written memorandum 
 of the same, in the same book, and to file and safely keep all papers 
 given him in charge." 
 
 The book in which the justice records his proceedings, as required by 
 the foregoing section, is called his docket. The docket entry of a jus- 
 tice is not technically a record, but it has all the effect of a record, and 
 should be made in language as explicit and certain as to matters of 
 substance, as a judgment of a court of record. It should clearly 
 appear from the docket itself, who the parties are, plaintiff and defend- 
 ant, and in whose favor and against whom the judgment was rendered. 1 
 
 If strict attention is paid to the requirements of the statute, as con- 
 tained in the section hereinbefore given, there can be no difficulty in 
 determining what the entries upon the docket should be in each partic- 
 ular case. The requirements of the statute may be thus arranged : 
 
 1st. The names of the parties. 
 
 2d. The amount and nature of the debt sued for. 
 
 3d. The date and description of the process issued, and the name of 
 the officer to whom such process shall be delivered. 
 
 The justice will also note the return of the original process, and enter 
 every subsequent process issued ; also note the return thereof. 
 
 He will note every material incident occurring in the progress of the 
 trial, and make a memorandum of every order he shall make, and of 
 the judgment he may render. All of which matters should be stated 
 in the order of time in which they transpired. The justice is not bound, 
 however, and it is held that he ought not to state on his docket the 
 evidence that was given by witnesses on the trial, nor what testimony 
 was overruled, or what the parties said or urged before him. 2 A justice 
 may, after his docket is made up, amend it according to the truth, 8 and 
 correct mere clerical errors, or an omission or mistake in the costs. 4 
 
 A few forms of entries will here be given to illustrate the foregoing 
 directions, which may serve to some extent as a guide for the justice in 
 civil proceedings. Further illustrations, in case of summary proceed- 
 
 (1) 1 Dougl. Mich. R. 503. 
 
 (2) Wright's R. 418. This has no reference, however, to the statements of the parties 
 before the commencement of the trial, necessary to inform the court and the opposite party 
 of the plaintiff 's claim, or the defendant's ground of defence, for it is proper, as we have 
 before seen, (Ante, p. 61,) that these should be noted upon the docket. But it has reference 
 to the arguments or summing up of the parties, at the conclusion, or during the progress of 
 the trial. 
 
 (3) 1 Green, 195. (4) Swan's Tr. 3d Ed. 116.
 
 130 
 
 FORMS OF DOCKET ENTRIES. 
 
 [PART. 1, 
 
 ings, and the like, will be found in other parts of this work, which will 
 readily be found by reference to the index, under the head of " Docket 
 Entries." 
 
 II FORMS OF DOCKET ENTRIES. 
 
 1 . Where Parties appear, and the Trial is by Jury. 
 
 STATE OF ILLINOIS, ) 
 Lake COUNTY, j 
 
 In Justice's Court. Before William C. Newman, Justice. 
 A. B. ] Plaintiff's Demand, $10.00. 
 
 vs. > For property wrongfully taken and converted by the 
 C. D.J Defendant. 
 
 1855 September 1st. Summons issued, return- 
 able the 6th of September, instant, at one 
 o'clock, P. M., and delivered to Chaun- 
 cey Buell, constable, to serve. One subpoena 
 issued on the part of the plaintiff. One sub- 
 poena issued on the part of the defendant ; 
 both delivered to constable Buell to serve. 
 
 September 4th. Summons returned by 
 constable Buell. Personally served by read- 
 ing to the defendant, the 3rd day of Septem- 
 ber, 1855. Constable's fees, 30 cents. The 
 subpoenas of the plaintiff and defendant like- 
 wise returned by constable Buell. Served 
 on the persons therein named. Constable's 
 fees, 35 cents. 
 
 September 6th, 10 o'clock, P. M. Par- 
 ties appear ; Plaintiff claims of the defendant 
 Ten dollars, for a quantity of Hay, the prop- 
 
 
 PLAINTIFF'S COSTS. 
 
 Justice's Fees. 
 
 Summons, ................... l&J 
 
 Docketing suit, ............... 12 
 
 One subpoena, ................ 18J 
 
 Swearing one witness, ........ 61 
 
 Entering judgment, .......... 25 
 
 Constable's Fees. 
 
 30 
 
 On summons, 
 
 On subpoena, ................. 17 
 
 Two witness' fees, .......... 1 00 
 
 DEFENDANT'S COSTS. 
 
 Justice's Fees. 
 
 One subpoena, 
 
 " venire, 
 
 Swearing one witness, 
 " jury, 
 
 .25 
 
 .37] 
 
 constable, 
 
 Constable's Fees. 
 
 On subpoena, 17i 
 
 On venire, 50 
 
 Attending trial, 25 
 
 One witness' fee, 50 
 
 Jury fee, 150 
 
 erty of the plaintiff, wrongfully taken and 
 converted by the defendant. Defendant de- 
 nies the taking of the property, and demands 
 that the cause be tried by a jury, and pays 
 the fees required by law. Venire issued, 
 directed to any constable, commanding him 
 to summon a jury of six men. Cause 
 adjourned to September, 7th instant,
 
 CHAP. 10.] 
 
 FORMS OF DOCKET ENTRIES. 
 
 131 
 
 at two o'clock, P. M., to obtain a jury. Venire delivered to constable 
 Buell to serve. 
 
 September 7th, 2 o'clock, P. M. Parties reappear. Venire returned 
 by constable Buell, with the following names of the jury: A. B., C. D., 
 E. F., G. H., I. J. and K. L., who, upon being called, appeared, and 
 were sworn to try the cause. 
 
 John Doe and Richard Roe, were summoned and attended, and were 
 sworn as witnesses on the part of the plaintiff. 
 
 John Smith, summoned and attended, and was sworn as a witness on 
 the part of the defendant. All of whom claim fees. 
 
 After hearing the testimony, the jury retire, under the charge of 
 constable Buell, sworn for that-purpose. The jury return into court, and 
 say that they find for the plaintiff, and assess his damages at ten dollars. 
 It is, therefore, considered by the court, that the said plaintiff have and 
 recover of the said defendant the sum of ten dollars, for his damages, 
 
 with costs of suit herein, taxed at dollars and cents. 
 
 WILLIAM C. NEWMAN. 
 
 2. Where suit is commenced by Warrant, the Execution sworn out 
 and returned not satisfied, and ca. sa. issued against the Body. 
 
 STATE OF ILLINOIS, 
 Lake COUNTY. 
 
 In Justice's Court. Before Harrison P. Nelson, Justice. 
 
 A. B. 
 vs. 
 
 C. D. ; 
 
 1855 April 2d. This day comes the said plaint- 
 iff, who, having made oath that there is dan- 
 ger that his demand against C. D. will be 
 lost, unless the said defendant be held to bail, 
 and states under oath the cause of such dan- 
 ger, and it appearing satisfactorily that there 
 is reason to apprehend such loss, a warrant is 
 issued, returnable in case of special bail, 
 April 7th, instant, at 10 o'clock, A. M., and 
 delivered to Charles Haynes, constable, to 
 execute. Defendant brought into court forth- 
 with, by constable Haynes, and warrant re- 
 turned executed accordingly, April 2d, 1855. 
 Constable's fees, 35 cents. Plaintiff claims 
 
 Plaintiffs demand, $75.00. 
 On promissory note. 
 
 PLAINTIFF'S COSTS. 
 Justice's Fees. 
 
 One oath, 6| 
 
 Warrant, 25 
 
 Docketing suit, 12_! 
 
 Entering judgment, 25 
 
 Oath and execution, 31 
 
 Oath and ca. sa., 25 
 
 Constable's Fees. 
 On summons, 35 
 
 Serving and returning execu- 
 tion ..50
 
 132 
 
 FORMS OF DOCKET ENTRIES. 
 
 [PART 1, 
 
 April 2d, 1855. Execution 
 sworn out by plaintiff, and deliv- 
 ered to constable Buell, to exe- 
 cute. 
 
 June 12th, 1855. Execution re- 
 turned by constable Buell. " No 
 property found." 
 
 June 15th, 1855. Ca. Sa. issued 
 on oath of plaintiff, and delivered 
 to constable Buell, to execute. 
 
 of the defendant, $72 10, on promissory note, 
 drawn by said defendant, in favor of John 
 Tyler, and by him assigned to said plaintiff, 
 for $70, with interest, and bearing date Octo- 
 ber 1st, 1854, and due 90 days after date. 
 
 Defendant says he cannot deny the plaint- 
 iff's demand. The said promissory note is, 
 therefore, offered in evidence by the plaint- 
 iff. 
 
 Whereupon, it is considered by the court, 
 that the said plaintiff have and recover of the 
 said defendant, the sum of seventy-two dol- 
 lars and ten cents, for his demand against the 
 said defendant, with costs of suit herein, 
 taxed aione dollar and three and three-fourths 
 
 cents. 
 
 HARRISON P. NEWMAN. 
 
 3. Where Suit is brought on Promissory Note placed in the hands of 
 the Justice for Collection, and the Parties do not appear. 
 
 STATE OF ILLINOIS, ) 
 Lake COUNTY. ) 
 
 In Justice's Court Before Joseph L. "Williams, Justice. 
 
 A.B.) 
 
 VSf V Demand of plaintiff, $52.00, on promissory note. 
 
 C. D.j 
 
 1855 April 2nd. Summons issued, returnable 
 the 7th April instant, at 10 o'clock, A. M., 
 and delivered to Parnell Munson, constable, 
 to serve. 
 
 PLAINTIFF'S COSTS. 
 Justice's Fees. 
 
 Summons .................... 18f 
 
 Docketing suit ............... 12J 
 
 Entering judgment ........... 25 
 
 Constable's Fees. 
 On summons ................. 30 
 
 April 27th, 1S55. Execution 
 issued, and delivered to constable 
 Munson to serve. 
 
 July 6th, 1865. Execution re- 
 turned by constable Munson sat- 
 isfied, and money paid to plaintiff. 
 
 April 5th. Summons returned by con- 
 stable Munson. Personally served, by read- 
 ing to the defendant, the 4th day of April, 
 1855. Constable's fees, 30 cents. 
 
 April 7th, 10 o'clock, A. M. Demand of 
 the plaintiff being upon promissory note left 
 for collection, which is drawn by the defend- 
 ant in favor of the said plaintiff, for fifty
 
 CHAP. 10.] FORMS OF DOCKET ENTRIES. 133 
 
 dollars, with interest, dated October 6th, 1854, and due thirty days 
 after date. The defendant being called, comes not, but fails to appear 
 and show cause why judgment should not be rendered. Whereupon 
 it is considered by the court, that the said plaintiff have and recover 
 of the said defendant the sum of fifty-one dollars and fifty cents, for 
 his demand against the said defendant, and costs of suit herein, taxed 
 at eighty-seven and a half cents. JOSEPH L. WILLIAMS. 
 
 In case of suit upon notes placed in the hands of the justice for col- 
 lection, the cause should not be dismissed, although the plaintiff may 
 fail to appear. 1 And in such case, should the defendant set up any 
 defense to the note, it will be proper for the justice to continue the 
 cause to another day, if he should deem it essential to justice so to do, 
 and notify the plaintiff thereof. 
 
 In the three preceding examples', the costs attending the suit have 
 been set down in the margin, for the purpose of illustrating the man- 
 ner proper to be observed in taxing costs, which will doubtless suffice 
 as a precedent for all cases. 
 
 4. Where the Parties agree to have a Difference decided by the Justice 
 
 without process. 
 STATE OF ILLINOIS, ") 
 Lake COUNTY. j 
 In Justice's Court Before Amos S. Waterman, Justice. 
 
 A B 1 
 
 ( Demand of plaintiff, $50 J30, for goods sold and 
 
 VS i 
 
 ' I delivered. 
 
 L. 1). j 
 
 1855 October 2d. This day comes the said A. 
 B. and C. D., and agree to have the matter 
 in difference between them decided by me 
 without process. 
 
 Plaintiff claims of the defendant fifty dol- 
 lars for goods sold and delivered, and files a 
 bill of items. 
 
 Defendant denies the plaintiff 's account, 
 and claims that the same, if correct, has 
 been fully paid. 
 
 E. F. and G. II. sworn as witnesses on 
 the part of the plaintiff, and L. M. swdrn 
 on the part of the defendant. 
 
 (1) Rev. Stat. 318, Sec. 24.
 
 134 FORMS OF DOCKET ENTRIES. [PART 1, 
 
 Upon hearing the evidence in the cause, it is considered by the court, 
 that the said plaintiff have and recover of the said defendant the sum 
 of twenty-five dollars, for his demand against the said defendant, with 
 
 costs of suit herein, taxed at cents. 
 
 AMOS S. WATERMAN. 
 
 5. Where Judgment is by Confession. 
 
 STATE OF ILLINOIS, 
 Lake COUNTY. 
 
 In Justice's Court Before John L. Turner, Justice. 
 
 A B. 1 
 
 ( Plaintiff's demand, $25.00, for property sold and 
 vs / 
 
 delivered. 
 C. D.J 
 
 1855 September 3d. This day comes the 
 said A. B. and C. D. The said C. D. 
 waives process, and enters his appearance 
 herein, and confesses that he is indebted to 
 the said A. B. in the sum of twenty-five dol- 
 lars, and the said parties request that judg- 
 ment may be rendered accordingly for that 
 amount. Whereupon, it is considered by 
 the court, .that the said plaintiff have and 
 recover of the said defendant, the sum of 
 twenty-five dollars, for his demand against 
 the said defendant, and the costs of suit 
 
 herein, taxed at cents. 
 
 JOHN L. TURNER. 
 
 6. Where proceeding is against Garnishee, after execution is returned 
 " no property found." 
 
 STATE OF ILLINOIS, ") 
 Lake COUNTY, j" 
 
 In Justice's Court Before Hiram Hugunin, Justice. 
 
 A. B. 1 
 
 vs. I Demand, $50.00. 
 C. D. j Proceeding by Garnishee summons. 
 Garnishee of E. F. J 
 
 1855 September 3d. Garnishee summons is- 
 sued on affidavit of the said A. B., return-
 
 CHAP. 10.] FORMS OF DOCKET ENTRIES. 135 
 
 able forthwith, and delivered to Norman 
 Brown, constable, to serve. Summons re- 
 turned by constable Brown at this date, 
 personally served by reading to the said C. 
 D. Constable's fees, 35 cents. Whereas 
 judgment was rendered by me on the 10th 
 day of April, A.I). 1855, in favor of the 
 above A. B., and against E. F., for the sum 
 of forty-eight dollars debt, and one dollar and 
 fifty cents, costs of suit; and on the 10th 
 day of July, A.D. 1855, an execution was 
 returned by Horace Hinckley, constable, "no 
 property found." The above named C. D., on 
 examination on oath, as garnishee, testifies, 
 that he was and still is indebted to the said 
 
 E. F., in the sum of fifty dollars. It is therefore considered by the 
 court, that the plaintiff have and recover of the said C. D., as garnishee 
 
 of the said E. F., the sum of dollars and cents, being the 
 
 amount of judgment, costs and interest in the proceedings aforesaid, 
 
 together with the costs herein, taxed at . 
 
 HIRAM HUGUNIN. 
 
 7. Where Administrators or Executors are Parties to a Suit. 
 
 STATE OF ILLINOIS, 
 Lake COUNTY. 
 
 In Justice's Court Before L. M., Justice. 
 A. B. administrator of thel 
 Estate of C. D., deceased, I Demand, $20.00, for property purchased 
 
 v$- at administrator's sale. 
 
 E. F. and G. H. 
 
 (The entries will then follow as in other cases, according to the facts. ,) 
 
 Where an executor is a party, he will be described thus : " A. B., 
 executor of the last will and testament of C. D., deceased." When 
 executors or administrators are defendants, they will, of course, be 
 described in the same manner as when plaintiffs. 
 
 8. Minutes of Conviction of Witness attached for Non-attendance. 
 STATE OF ILLINOIS, 
 
 COUNTY, T ss ' 
 
 Be it remembered that on the day of , 18 , John Doe is 
 convicted before me, E. F., a justice of the peace of said county,
 
 136 FORMS OF DOCKET ENTRIES. [PART. 1, 
 
 for his non-attendance as a witness to testify in a suit depending before 
 me, wherein A. B. is plaintiff, and C. D. is defendant, it having been 
 made to appear to me that he was duly subpo3naed to attend as a 
 witness in said suit, and the said John Doe not having purged himself 
 when called upon by me to show cause why he should not be fined for 
 the said contempt ; I do, therefore, adjudge and determine that, for 
 the said contempt the said John Doe pay a fine of five dollars, and that 
 he be imprisoned in the common jail of said county until he pay the 
 fine aforesaid, or until he be duly discharged according to law. 
 
 In witness whereof, I have hereunto set my hand and seal this day 
 of _, 18 . E. F. [L. s.] 
 
 9. Memorandum to be entered where a Cause is appealed. 
 
 When a cause is appealed, the following memorandum should be 
 made upon the docket : 
 
 August 10, 1855. The above named defendant, with Alvin Marsh 
 as his security, filed his bond for an appeal to the Circuit court, which 
 bond was approved by me, and appeal granted. 
 
 August 12, 1855. Bond, transcript, and all the papers in the case, 
 this day filed in the office of the Clerk of the Circuit court. 
 
 AMOS S. WATERMAN, J. P. 
 
 11. Entry of Acknowledgment of Chattel Mortgage. 
 
 A. B.) 
 
 to V 
 C. D.) 
 
 Mortgage of (here describe the property,) acknowledged this 
 
 day- -of , 18. 
 
 The name of 4 the mortgagor will be inserted in place of A. B., and 
 the name of the mortgagee in place of C. D. 1 
 
 (1) Rev. Stat. 9, Sec. 2.
 
 CHAP. 11.] JUDGMENTS. 137 
 
 CHAPTER XI. 
 
 OF JUDGMENT, COSTS, AND FILING TRANSCRIPT. 
 
 I. OP JUDGMENTS. 
 II. OF COSTS. 
 III. OF FILING TRANSCRIPT. 
 
 I. OF JUDGMENTS. 
 
 A judgment is the decision or sentence of the law, given by a court 
 of justice, or other competent tribunal, as the result of proceedings 
 instituted therein, for the redress of an injury. 
 
 The language of judgments, therefore, is not that " it is decreed " 
 or " resolved " by the court ; but " it is considered " (consideraturn 
 est per curiam) that the plaintiff recover his debt, damages, or posses- 
 sion, as the case may require, or that the defendant do go without day. 1 
 This implies that the judgment is not so much the decision of the court 
 us the sentence of the law pronounced by the court after due delibera- 
 tion and inquiry. 2 To be valid, a judicial judgment must be given by 
 a competent tribunal, at a time and place duly appointed, incomformity 
 to law. A judgment would be null if the justice had not jurisdiction 
 of the matter; 3 or if, having such jurisdiction, he exercised it when there 
 was no court held, or out of his district ; or if he rendered judgment before 
 the cause was prepared for a hearing. The judgment must confine 
 itself to the question raised before the court, and cannot extend 
 beyond it. 4 
 
 There are four kinds of judgments in civil cases, namely : 1. When 
 the facts are admitted by the parties, but the law is disputed ; as in 
 
 (1) IBouv.L.D. title "judgment." (2) 3 Bl. Com. 395. (3) See ante, p. 29; 4 Scam. 371. 
 (4) 1 Bouv. L. D. title "judgment."
 
 138 JUDGMENTS. [PART 1, 
 
 case of judgment upon demurrer. 2. When the law is presumed to 
 be admitted, but the facts disputed ; as in case of judgment upon verdict. 
 3. When both the law and the facts are admitted by confession ; as in 
 case of coynovit actionem, (a confession or acknowledgment of the 
 action) on the part of the defendant ; or a nolle prosequi (proceed no 
 further) on the part of the plaintiff. 4. By default of either party in 
 the course of legal proceedings. But under our statute, where the 
 defendant fails to appear, it will not be taken as a confession of the 
 plaintiff's demand. The plaintiff is nevertheless bound to prove his 
 demand the same as if the defendant had appeared and denied the 
 same. 1 
 
 All these species of judgments, before mentioned, are either inter- 
 locutory or final. Interlocutory judgments are such as are given in 
 in the middle of a cause upon some plea, proceeding, or default which 
 is only intermediate, and does not finally determine or complete the suit. 
 Of this nature are all judgments for the plaintiff upon pleas in abate- 
 ment of the suit or action ; in which it is considered by the court, that 
 the defendant do answer over, respondeat ouster ; that is, put in a more 
 substantial plea. It is easy to observe that the judgment here given is 
 not final, but merely interlocutory ; for there are afterwards further 
 proceedings to be had, when the defendant has put in a better answer. 2 
 Final judgments are such as at once put an end to the action, by 
 declaring that the plaintiff has either entitled himself, or has not, to 
 recover the remedy he sues for. 8 
 
 The power of the justice in relation to rendering judgment, is a 
 matter of statutory regulation, and has no doubt been already suffi- 
 ciently recited or referred to in different portions of the preceding pages, 
 to give the justice a full and fair idea upon this subject, should he not 
 have already gained a sufficient knowledge in relation thereto from the 
 statute itself. The following general suggestions, may therefore suffice 
 in closing this division of the present chapter. 
 
 Nothing will be presumed against a judgment, and it will be regarded 
 as right, until the contraiy appears. 4 
 
 A judgment against one member of a firm, for a debt due by the 
 firm, is a bar to a recovery against the other members. 5 
 
 A party that has been compelled to pay money by compulsion, under 
 
 (1) Rev. Stat. 318, Sec. 23. (2) 3 Bl. Com. 397. 
 
 (3) 3 Id. 398. (4) 3 Scam. 117. 
 
 (5) 2 Gil. 414.
 
 CHAP. 11.] COSTS. 139 
 
 the judgment and process of a court of competent jurisdiction, cannot 
 be compelled to pay the same a second time. 1 
 
 The dismissal of a suit by a justice of the peace, is not such a judg- 
 ment as will bar a subsequent suit for the same demand, or for a differ- 
 ent cause of action. 2 A justice of the peace has no authority to render 
 a judgment against any defendant who is not served with process, 
 although one of the defendants is regularly served. 3 
 
 The admission of a party in an action before a justice of the peace, 
 that a claim produced against him is correct, is not confession of judg- 
 ment ; he may nevertheless prove payment or set-off; and such admis- 
 sion will not deprive him of his right of appeal. 4 
 
 II. OF COSTS. 
 
 Costs are the expenses of a suit, or action, which may be 'recovered 
 by law from the losing party. At common law, neither the plaintiff 
 nor the defendant could recover costs as is now allowed by statute. In 
 actions where damages were given, costs were taken into account, and 
 included in the amount of damages. But because those damages were 
 frequently inadequate to the plaintiff's expenses, a provision was finally 
 made, by statute, for costs. 6 In suits before justices of the peace, costs 
 can only be recovered, where expressly given by the statute. As we 
 have seen, the statute provides for costs in the following cases : Where 
 the plaintiff, or his agent, fails to appear at the time appointed for trial, 
 and the suit in consequence is dismissed, the plaintiff must pay the 
 costs. 6 Where a case is continued to another day, the party applying 
 for such continuance may be taxed with costs occasioned thereby. 7 
 Where the parties appear, and the justice shall give judgment against 
 the party who shall be proved to be indebted to the other, the costs of 
 suit will follow the judgment ; 8 but when neither party appears to be 
 'indebted to the other, then the judgment will be against the plaintiff 
 for the costs of suit only. 9 In case of a jury trial, the justice must 
 enter judgment upon the verdict of the jury. 10 
 
 (1)4 Gil. 354. (2) lid. 667. 
 
 (3) 1 Scam. 690. (4) 13 111. 313. 
 
 (5) 3 Bl. Com. 400. (6) Ante, p. 58; Rev. Stat. 318, Sec. 24. 
 
 (7) Ante, p. 93; Rev. Stat. 318, See. 27. (8) Ante, p. 95; Rev. Stat. 319, Sec. 28. 
 
 (9) Ibid. (10) Ante, p. 96; Rev. Stat. 321, Sec. 44.
 
 140 COSTS. [PART 1, 
 
 Where a matter in difference between parties to a suit is referred to 
 arbitrators, the justice must note the award upon his docket, and give 
 judgment according thereto. 1 
 
 Justices' Fees in Civil Cases. 
 
 Rev. Stat. 246, Sec. 17. " For every warrant, summons, or sub- 
 poena, eighteen and three-fourths cents. 
 
 For each continuance, twelve and a half cents. 
 
 Administering an oath, six and a fourth cents. 
 
 Issuing dedimus to take depositions, twenty-five cents. 
 
 Taking each deposition when required, for every seventy-two words, 
 twelve and a half cents. 
 
 Entering judgment, twenty-five cents. 
 
 Issuing execution, twenty-five cents. 
 
 Entering security on docket, twenty-five cents. 
 
 Scire facias to be served on security, twenty five cents. 
 
 Notification to each referee, twenty-five cents. 
 
 Entering the award of referees, thirty-seven and a half cents. 
 
 Entering appeal from justice's judgment, twenty-five cents. 
 
 For each transcript of the judgment and proceedings before the 
 justice on appeal, twenty-five cents. 
 
 Issuing process of attachment, and taking bond and security, seventy- 
 five cents. 
 
 Entering judgment on the same, twenty-five cents. 
 
 Docketing each suit, twelve and a half cents. 
 
 Taking the acknowledgment or proof of a deed or other instrument 
 of writing, twenty-five cents. 
 
 For each precept, on forcible entry and detainer, fifty cents. 
 
 On trial, per day, two dollars. 
 
 Making complete copy of proceedings thereon, two dollars. 
 
 For each jury warrant, twenty-five cents. 
 
 For each marriage ceremony performed, one dollar. 
 
 For each certificate thereof, twenty-five cents. 
 
 For administering the oath to the finder, or taker up in cases of estrays, 
 &c., making an entry thereof, with the report of the appraisers, and 
 making, and transmitting a certificate thereof to the clerk of the county 
 commissioners' court, fifty cents." 
 
 (1) Ante, p. 109; Rev. Stat, 321, Sec. 43.
 
 ClIAP. 11.] FILING TRANSCRIPT. 141 
 
 For taking acknowledgment of chattel mortgage, and entering the 
 same on his docket, the justice will receive twenty-five cents. 1 
 
 Jurors' Fees. 
 
 Each juror in a civil cause before a justice of the peace, is allowed 
 twenty-five cents. 2 
 
 Witnesses' Fees. 
 
 Each witness, when summoned, according to the statute, is allowed 
 fifty cents for attending on each trial. 8 
 
 Every witness, when attending for the purpose of having his deposi- 
 tion taken, per day, fifty cents. 4 
 
 Arbitrators' Fees. 
 
 For every arbitrator, or referee, for each day he shall be necessarily 
 employed in making up his award in cases before justices of the peace, 
 one dollar. 5 
 
 III. OF FILING TRANSCRIPT. 
 
 Whenever it appears, by the return of any execution issued pursuant 
 to the statute, 6 that the defendant has not personal property sufficient 
 to satisfy the debt and costs within the county in which judgment was 
 rendered, and it is desired by the plaintiff to have the same levied on 
 real property, in that or any other county, it is lawful for the justice to 
 certify to the clerk of the circuit court of the county in which such 
 judgment was rendered, a transcript, which must be filed by said clerk, 
 and the judgment will, thenceforward, have all the effect of a judgment 
 of the said circuit court, and execution may issue thereon, out of that 
 court, as in other cases. 7 
 
 By an act approved February 27th, 1847, 8 it is enacted, " Sec. 3. 
 Transcripts hereafter filed shall contain a copy of the original and each 
 subsequent summons or process issued by the justice of the peace, the 
 return of the officer or officers thereon, the judgment and execution or 
 executions issued thereon, with the return of the officer or officers upon 
 
 (1) Rev. Stat. 92, Sec. 2. (2) Id. 311, Sec. 20. (3) Ante, p. 80; Rev.[Stat. 320, Sec.38. 
 
 (4) Id. 247, Sec. 20. (5) Id. 248, Sec. 22. (6) See Id. 323, Sec. 54. 
 
 (7) Id. 323, Sec. 57. (8) See Sess. Laws, 1847, p. 56.
 
 142 FILING TRANSCRIPT. [PART 1, 
 
 the same ; [and no execution shall hereafter be issued upon a transcript, 
 unless the same be made conformable to this act. 
 
 " Sec. 4. Every transcript desired to be used for the purposes men- 
 tioned in this act, shall be certified by the justice of the peace making 
 the same, to be truly copied from the files and books of his office." 
 Which act took effect, by its terms, on the first day of June, 1847. 
 The following will be the proper method of making and certifying such 
 transcripts, to be varied according to circumstances : 
 
 Form of Transcript of Proceedings before a Justice, to be filed in 
 Circuit Clerk's Office, to become lien on real estate. 
 
 Transcript of proceedings lately had before Charles Hall, Esquire, 
 a justice of the peace in and for the county of LAKE, in the State of 
 Illinois, between A. B. plaintiff, and C. D. defendant. 
 
 (Here insert the summons or process preceding the judgment, and 
 then say :) 
 
 Upon which summons, (or other process, as the case may be), there 
 appears the following indorsement : 
 
 (Here insert the constable's return.} 
 
 (After the constable's return, a true copy from the docket of the 
 justice, in relation to the proceedings in the cause will then be given, 
 which of course will show the issuing and returning of the execution ; 
 then say:) 
 
 Upon which execution, issued and returned as aforesaid, there appears 
 the following indorsement : 
 
 (Here insert such indorsements as may have been made by the con- 
 stable in full.} 
 
 To all of which the justice will add the following certificate : 
 
 STATE OF ILLINOIS, ) 
 Lake COUNTY, j 
 
 I, Charles Hall, a justice of the peace in and for said county, do 
 certify that the foregoing transcript is truly copied from the files and 
 books of my office. In witness thereof, I have hereunto set niy hand, 
 
 this day of , A.D., 18. 
 
 CUARLES HALL, J. P.
 
 CHAP. 12.] APPEALS. 143 
 
 CHAPTER XII. 
 
 OF APPEALS AND WRIT OF CEETIOEARI. 
 
 I. Or APPEALS. 
 II. OF CERTIORARI. 
 
 I. OF APPEALS. 
 
 Rev. Stat. 323, Sec. 58. " Appeals from judgments of justices of the 
 peace to the circuit court shall be granted in all cases, except on judg- 
 ment confessed : Provided, The party praying for an appeal shall, 
 within twenty days from the rendering of the judgment from which he 
 desires to take an appeal, enter into bond with security, to be approved 
 and conditioned as hereinafter provided. 
 
 ' Sec. 59. The bond required to be given, shall be in substance as 
 follows : 
 
 " Know all men by these presents, that we, A. B. and C. D., are 
 held and firmly bound unto E. P. in the penal sum of (here insert 
 double the amount of judgment and costs) dollars, lawful money of the 
 United States, for the payment of which well and truly to be made, we 
 bind ourselves, our heirs and administrators, jointly, severally and firmly, 
 by these presents. 
 
 " Witness our hands and seals, this day of , 18 . 
 
 " The condition of the above obligation is such, that whereas the 
 
 said E. F. did, on the - - day of , A.D. 18, before , 
 
 a justice of the peace for the county of , recover a judgment 
 
 against the above bounden A. B., for the sum of dollars, from 
 
 which judgment the said E. F. has taken an appeal to the circuit court
 
 144 APPEALS. [PART!, 
 
 ' of the county of aforesaid and State of Illinois. Now, if the 
 
 said A. B. shall prosecute his appeal with effect, and shall pay whatever 
 judgment may be rendered by the court upon dismissal or trial of said 
 appeal, then the above obligation to be void, otherwise to remain in 
 full force and effect. 
 
 [L. S.] 
 [L. S.] 
 [L. S.] 
 
 " Approved by me at my office, this day of , 18 . 
 
 L. M., /. P. 
 
 " Sec. 60. The party desiring such appeal, may file his bond in 
 the office of the justice, who shall have rendered the judgment; such bond 
 to be approved by such justice, whose duty it shall be to suspend all pro- 
 ceedings in the case ; and if execution shall have been issued, he shall 
 recall the same, and who shall, within twenty days after receiving and 
 approving of the appeal bond, file the same in the office of the clerk of 
 the circuit court, together with all the papers and transcript of the judg- 
 ment he had given, with a certificate under his hand that the said 
 transcript and papers contain a full and perfect statement of all the 
 proceedings before him. 
 
 " Sec. 61. Or the appealing party may file his bond in the office of 
 the clerk of the circuit court of the proper county, within the time 
 aforesaid, which bond shall be approved by the clerk ; upon the filing 
 and approval of which bond the clerk shall issue a supcrsedeas enjoin- 
 ing the justice and constable from proceeding any further in said suit, 
 and suspending all proceedings in relation thereto ; and shall issue a 
 summons to the appellee to appear at the term of the court to which the 
 appeal is returnable, which summons shall be served and returned as in 
 other cases. 
 
 " Sec. 62. So soon as the clerk shall issue a supersedeas, as afore- 
 said, the justice who gave the judgment, and any constable in whose 
 hands an execution or other process may be, in relation thereto, shall 
 suspend all further proceedings thereon ; and the said justice shall 
 return all the papers, and a transcript of the judgment he had given, 
 to the clerk of said court, with a certificate, under his hand, that the 
 said transcript and papers contain a full and perfect statement of all 
 the proceedings before him. 
 
 " Sec. 63. One or more plaintiffs or defendants, in causes decided 
 by justices of the peace, shall be allowed the right of appeal to the
 
 CHAP. 12.] APPEALS. 145 
 
 circuit court without the consent of the others; and when one of several 
 appeals, the supersedeas shall issue, directing a suspension of all further 
 proceedings upon the judgment, as though all had joined in the appeal. 
 
 " Sec. 64. When an appeal bond shall be executed by one of several 
 parties from tlfe judgment of a justice of the peace, the clerk of the circuit 
 court shall issue a summons against the other parties, notifying them of 
 the appeal in the said circuit court, and requiring them to appear and 
 abide by and perform the judgment of the court in the premises ; which 
 summons shall be served as other process issued in appeal cases ; and 
 in case such summons shall be returned, that parties are not found, the 
 cause shall at the first term of the court be continued; but at the second 
 term shall be tried ; and the court shall have power to give the same 
 judgment in appeals taken under the provisions of this chapter as though 
 all the parties to the judgment had joined in the appeal. 
 
 " Sec. 65. If, upon the trial of any appeal, the bond required to 
 be given shall be adjudged informal, or otherwise insufficient, the party 
 who shall have executed such bond shall in no wise be prejudiced by 
 reason of such informality or insufficiency; provided, he will in a rea- 
 sonable time, to be fixed by the court, execute and file a good and suf- 
 ficient bond. 
 
 " Sec. 66. Upon the trial of all appeals before the circuit court, no 
 exception shall be taken to the form or service of the summons issued 
 by the justice of the peace, nor to any proceedings before him ; but the 
 court shall hear and determine the same in a summary way, according 
 to the justice of the case, without pleading in writing. 
 
 ' Sec. 67. If it shall appear, however, that the justice had no juris- 
 diction of the subject-matter of the suit, the same shall be dismissed at 
 the cost of the plaintiff. 
 
 Sec. 68. The plaintiff in the justice's court shall be plaintiff in the 
 circuit court, on the trial of the appeal, and the rights of the parties 
 shall be the same as in original actions. 
 
 " Sec. 60. Parties on the trials of appeals in the circuit court shall 
 have the benefit of the provisions of the thirty-ninth, fortieth and forty- 
 first sections of this chapter, as fully as in trials before justices of the 
 peace. 
 
 " Sec. 70. The security in any appeal bond shall be liable thereon 
 for the amount of the original judgment, and all costs thereon, in case 
 the said appeal be dismissed, and shall be liable also on said bond for what- 
 ever judgment maybe rendered by the circuit court, in case the original 
 judgment be affirmed by said circuit court, cither in whole or in part,"
 
 146 CERTIORARI. [PART 1, 
 
 II. OF CERTIORARI. 1 
 
 A writ of certiorari is a writ issuing from a superior court, directed 
 to one of inferior jurisdiction, commanding the latter to certify and re- 
 turn to the former, the record in the particular case. 
 
 Rev. Stat. 325, Sec. 72. " The judges of the circuit and probate 
 courts shall have power within their respective jurisdictions, and it shall 
 be their duty, upon application made as hereinafter mentioned, to grant 
 writs of certiorari, to remove causes from before justices of the peace, 
 into the circuit court, who shall indorse an order for the same, upon the 
 petition of the party praying such writ ; and on producing the same to 
 the clerk of the circuit court, he shall issue said writ in conformity to 
 the provisions of this chapter. 
 
 " Sec. 73. No writ of certiorari shall issue after the expiration of 
 six months from the time of the rendition of judgment. 
 
 " Sec. 74. Before any writ of certiorari shall issue, the party apply- 
 ing therefor shall give bond, with security, in the same manner and with 
 the same conditions, and when the same shall be defective, may be per- 
 fected as bonds, in cases of appeals from justices of the peace. The 
 writ of certiorari shall require the justice to certify to the circuit court 
 a transcript of the judgment and other proceedings had before him ; 
 and in no case shall the justice be required to send up a minute or mem- 
 orandum of the evidence given before him ; but upon the return of 
 said writ, such proceedings shall be had thereon, as in cases of appeals. 
 
 " Sec. 75. The petition on application for writs of certiorari shall 
 set forth, and show upon the oath of the applicant, that the judgment 
 before the justice of the peace was not the result of negligence in the 
 party praying such writ ; that the judgment, in his opinion, is unjust 
 and erroneous, setting forth wherein the injustice and error consists, and 
 that it was not in the power of the party to take and appeal in the ordi- 
 nary way, setting forth the particular circumstances which prevented 
 him from so doing. 
 
 "Sec. 76. The justice of the peace, constable and other persons 
 concerned, shall, as soon as the writ of certiorari shall be served, stay 
 all further proceedings in that case, until the further order of the cir- 
 cuit court. 
 
 " Sec. 77. If the judgment of the justice shall be reversed by the 
 circuit court, in whole or in part, such reversal shall not vitiate any sale 
 on execution, which shall have been effected before the issuing of the 
 
 (1) Certiorari, to be certified of ; to be informed of ; 1 Bouv. L. D. 215.
 
 CHAP. 12. CERTIORARI. 
 
 147 
 
 writ of certiorari; but in such cases, the circuit court shall have power 
 to assess the damages which shall have accrued in consequence of such 
 sale, and to cause judgment to be entered or a deduction made therefor ; 
 and in all cases of a partial reversal of judgment, either in case of 
 appeals or certiorari, the court shall have power to apportion the costs 
 between the parties according to justice." 
 
 A party who has not been guilty of negligence by omitting to take 
 an appeal from the judgment of a justice of the peace in proper time, 
 is entitled to take the cause to the circuit court by certiorari. 1 
 
 The petition must set forth that the judgment complained of was not 
 the result of negligence on the part of the petitioner, and that, in his 
 opinion, it is unjust; setting forth wherein the injustice consists. It 
 must also allege that it was not in the power of the party to take an 
 appeal in the ordinary way, and set forth particularly the circumstances 
 that prevented him from so doing. 2 
 
 The court will take into consideration the condition of a party where 
 he shows in his petition circumstances that prevented his using dilligence : 
 as, that he was a physician, and was necessarily attending upon patients 
 dangerouly ill, & c . &c. ; or, that he was sick at the time the judgment 
 was rendered against him, and unable to attend court. 3 
 
 Where a suit is taken up by certiorari, the trial is to be de novo, as 
 m cases of appeal, and no formal return is required to the writ ; and if 
 the writ is served and returned, and its mandate is not complied with, 
 an attachment may be issued against the justice. 4 
 
 The dismissal of an appeal, or certiorari, is equivalent to an affirm- 
 ance of the judgment, so as to entitle the party to claim a forfeiture of 
 the bond, and have his action therefor. 
 
 The condition of a certiorari bond, should be as broad as the statute ; 
 but a general motion to dismiss, will not reach a defect in the bond : the 
 objection should be specially taken. 5 
 
 [t is held that the circuit courts have power to award a writ of cer- 
 tiorari to all inferior tribunals, wherever it is shown that they have ex- 
 ceeded the limits of their jurisdiction, or in cases where they have pro- 
 ceeded illegally, and no appeal is allowed, and no other mode of 
 reviewing their proceedings is directly provided. 6 
 
 !o! ^ JJJ- J?f ' , (2)1 Scam. 264, 566; 4 Gil. 363 ;14I11.35. 
 
 111. 144 ; 14 Id. 3o ; 2 Gil. 65. (4) 12 111. 143. 
 
 (6) 13 111. 660 ; 14 111. 381.
 
 148 EXECUTI9N. [PART 1. 
 
 CHAPTER XIII. 
 
 OF EXECUTION AND GAENISHMENT. 
 
 . 
 
 I. OF THE EXECUTION, ITS OFFICE AND NATURE. 
 II. OF EXECUTIONS AGAINST THE GOODS AND CHATTELS. 
 
 III. OF EXECUTIONS AGAINST THE BODY. 
 
 IV. OF GARNISHMENT. 
 
 I. OF THE EXECUTION, ITS OFFICE AND NATURE. 
 
 An execution is a writ which authorizes the officer to whom it is 
 directed, to carry into effect the final judgment of a court or other juris- 
 diction. A distinction is made between an execution which is used to 
 make the money due on a judgment out of the property of the defen- 
 dant, and which is called a final execution ; and one which tends to an 
 end, but is not absolutely final, as a capias ad satisfaciendum, 1 by vir- 
 tue of which the body of the defendant is taken, to the intent that the 
 plaintiff shall be satisfied his debt, &c., the imprisonment not being ab- 
 solute, but until he shall satisfy the plaintiff's debt. 2 Hence, the for- 
 mer is properly styled an execution against the goods and chattels, and 
 the latter an execution against the body. 
 
 fl. OF EXECUTIONS AGAINST THE GOODS AND CHATTELS. 
 
 No execution can be issued by a justice of the peace, until after the 
 expiration of twenty days from the date of the judgment on which such 
 execution is issued, unless the party applying for the same, or the agent 
 of such party, shall make oath that he believes that the debt of sucli 
 party will be lost, unless execution be issued forthwith. If such oath 
 
 (1) Commonly called a " ca. fa.," being an abbreviation of the term. 
 
 (2) Sec 1 Bouv. L. D., title " Execution."
 
 CHAP. 12.] EXECUTION. 149 
 
 be made, then the execution can be issued immediately and levied; but 
 no sale of any property, under such execution, can take place within 
 twenty days from the date of the judgment ; nor can the issuing of such 
 execution deprive either party of the right to appeal. 1 
 
 Form of Oath, for Execution to issue forthwith. 
 
 You do swear that you believe that the debt upon which judgment has 
 
 this day been rendered in your favor, against C. D., for dollars 
 
 and cents, will be lost unless execution be issued forthwith. 
 
 Rev. Stat. 323, Sec. 54. " All executions issued by a justice of the 
 peace, shall be directed to any constable of the proper county, and made 
 returnable to the justice issuing the same, within seventy days from the 
 date ; ,such executions shall be levied only on personal property, and 
 shalt'be in the following form as near as may be, viz : 
 
 STATE OF ILLINOIS, "> 
 COUNTY, j 
 
 The People of the State of Illinois, to any Constable of said County, 
 GREETING : 
 
 We command you, that of the goods and chatties of A. B., in your 
 
 county, you make the sum of dollars and cents, debt, 
 
 and dollars and cents, cost, which C. D. lately recovered 
 
 before me, in a certain plea against the said A. B., and hereof make 
 return to me, within seventy days from ?his date. 
 
 . Given under my hand and seal this day of , 18 . 
 
 JOHN DOE, J. P. 
 
 " Sec. 55. When it shall appear, by the return of any execution 
 issued as aforesaid, that the defendant has not personal property within 
 the county sufficient to satisfy the debt, and it is desired by the plaint- 
 iff to have execution issued to some other county, in which it is alleged 
 that the defendant -has personal property, the justice shall issue execu- 
 tion, directed to any constable of the county where such property shall 
 be said to be, to which execution shall be attached an official certificate 
 of the clerk of the county commissioners' court of the county in which 
 the same shall be issued, setting forth under the seal of said court, that 
 such justice so issuing, was at the time of issuing of said execution, a 
 justice of the peace in and for said county ; and no constable shall be 
 bound to execute any such process, unless so authenticated." 
 
 (1) Rev. Stat. 322, Sec. 53.
 
 150 EXECUTION. [PART 1. 
 
 Form of Execution to a Foreign County. 
 
 STATE OF ILLINOIS, ) 
 
 Lake COUNTY, f Si 
 The People of the State of Illinois, to any Constable of Cook County, 
 
 GREETING : 
 
 Whereas, an execution has been issued, and directed to any constable 
 of the county of Cook, on a judgment recovered before the under- 
 signed, a justice of the peace of said county, in favor of A. B., and 
 
 against C. D., for dollars and cents, for the plaintiff's 
 
 demand, and dollars and cents, costs, and the same 
 
 has been returned by a constable of said county, " no property found," 
 (or as the case may be) and, whereas, it is alleged that the said C. D. 
 has personal property in the county of Cook, 
 
 Therefore, we command you, that of the goods and chatties of the 
 said C. D., in your county, you make the sum of, (insert the amount 
 not collected,) and make return to the said justice, at his ..office, in 
 , in said county, within seventy days from the date hereof. 
 
 Given under my hand and seal, this day of , 18 . 
 
 LEVI MAKBLE, J. P. [SEAL.] 
 
 Kev. Stat. 326, Sec. 78. " The personal property of every defend- 
 ant in a judgment before a justice of the peace, shall be bound for the 
 payment of such judgment from the delivery of the execution issued 
 thereon to the constable, and the real property of such defendant shall 
 be bound as aforesaid, from the date of the filing of a transcript of the 
 judgment in the clerk's office, as provided in this chapter. 
 
 " Sec. 79. Every constable to whom an execution shall be delivered, 
 shall endorse on the back of the same an exact memorandum of the day 
 and hour when the same shall have come to his hands, and shall imme- 
 diately proceed to levy the same ; indorsing also on the back of the 
 execution the date of such levy, and making an exact inventory of the 
 property on which the same shall have been levied, and shall appoint a 
 day and hour for the sale of said property, giving ten days' previous 
 notice of such sale, by advertisement in writing, to be posted up at 
 three of the most public places in the county ; and on the day so 
 appointed, the said constable shall sell the property so levied on, or so 
 much thereof as may be necessary to pay the debt, interest, and costs, 
 to the highest bidder." 
 
 When the docket and papers of any justice of the peace shall be 
 transferred to any other justice of the peace, as provided for by the
 
 CHAP. 12.] EXECUTION. 151 
 
 statute, 1 such justice receiving the same, may proceed to the comple- 
 tion of all unfinished business, the issuing of execution upon judgments 
 remaining unsatisfied upon such docket, and collect the same, and 
 have the same power in respect to such docket and papers, as if the 
 same pertained to proceedings originally instituted before him. 2 
 
 Form of Execution' In/ a Justice to whom the Docket and papers of 
 another Justice have been delivered over. 
 
 STATE OF ILLINOIS, ) 
 COUNTY, j 
 
 The People of the State of Illinois to any Constable of said County, 
 GREETING : 
 
 We command you, that of the goods and chattels of C. D., in your 
 
 county, you make the sum of dollars and cents, costs, 
 
 which A. B., on the day of , 18 , recovered before 
 
 L. M., then a justice of the peace of said county, in a certain plea 
 against the said C. D., as appears by the docket of said justice, here- 
 tofore delivered over to me, together with the papers of said justice ; 
 and now remaining with Henry Ames, then the nearest justice of the 
 peace of said county, upon the resignation (or death, or removal from 
 the district in which he was elected,} of said L. M. And do you 
 make a return thereof to the undersigned, within seventy days from 
 this date. 
 
 Given under my hand and seal, this day of , 18 . 
 
 HENRY AMES. J. P. (SEAL.) 
 
 The rules which apply to the levying, &c. of executions, and relate 
 more particularly to the duties of constables, will be found in PART 
 FOURTH. 
 
 III. OF EXECUTIONS AGAINST THE BODY. 
 
 Rev. Stat, 328, Sec. 91. "In cases of judgment for debt, when- 
 ever the plaintiff, or his authorized agent, shall make oath before the 
 justice in whose office such judgment may be, that he or she verily 
 believes the defendant or defendants to be able to pay such judgment, 
 and withholds the money, or secretes his, her, or their property from 
 the officer, so that the debt cannot be levied, it shall be lawful for the 
 plaintiff to demand, and for the justice to issue execution against the 
 
 (1) See Rev. Stat. 331, Sec. 112. (2) Rev. Stat. 331, Sec. 110.
 
 152 EXECUTION. [PART 1, 
 
 body of sucli defendant or defendants." And it is also enacted, 
 
 Rev. Stat. 282, Sec. 1 : " Whenever any debtor shall refuse to sur- 
 render his or her estate, lands, tenements, goods or chattels, for the satis- 
 faction of any execution which may be issued against the property of any 
 such debtor, it shall and may be lawful for the plaintiff in such execu- 
 tion, or his or her attorney, or agent, to make .affidavit of such fact 
 before any justice of the peace of the county ; and upon filing such 
 affidavit with the clerk of the court from which the execution issued, or 
 with the justice of the peace who issued such execution, it shall be 
 lawful for such clerk, oi\ justice of the peace, as the case may be, to 
 issue a ca. sa. against the body of such defendant in execution." 
 
 As far as relates to justices of the peace, the only substantial differ- 
 ence between the two foregoing sections of the statute is, that one 
 requires the filing of an affidavit, and the other merely the oath of the 
 party, to obtain an execution against the body. The following may be 
 the form of such oath : 
 
 Form of Oath to obtain Execution against the Body. 
 
 You do swear that you verily believe C. D. to be able to pay a cer- 
 tain judgment rendered in your favor, against the said C. D., on the 
 
 day of , 18 , for dollars and cents, and 
 
 withholds the money, (or secretes his property from the officer, so that 
 the same cannot be levied, as the case may oe.) 
 
 Form of Execution against the Body, or " Ca. /Sa." 
 
 STATE OF ILLINOIS, ) 
 COUNTY, ) ss ' 
 
 The People of the State of Illinois, to any Constable of said County, 
 
 GREETING : * 
 
 Whereas, A. B. lately recovered before the undersigned, a justice of 
 
 the peace of said county, the sum of dollars and cents, 
 
 debt, and dollars and cents, costs, against C. D., as appears 
 
 by the docket of said justice, (or if the docket containing the judgment 
 has been delivered over to another justice, then say: of L. M., a 
 justice of the peace of said county, heretofore delivered over, together 
 with his papers, to and now remaining with AMOS WRIGHT, then the 
 nearest justice of the peace of the said county, upon the resignation, 
 or if for any other cause, insert it, of said L. M.) And, whereas,
 
 CHAP. 13.] EXECUTION. 153 
 
 an execution, issued upon said judgment against the goods and chattels 
 of the said C. D., has lately been returned by E. F., a constable 
 of said county, " no property found ;" and, whereas, the said A. B. has 
 this day made oath before the undersigned that he verily believes the 
 said C. D. is able to pay the said judgment, and withholds the money, 
 (or that lie fraudulently secreted his property from said constable, so 
 that the judgment aforesaid could not be levied,) 
 
 Now, therefore, you are hereby commanded to take the body of the 
 said C. D., if he shall be found in your county, and convey him to the 
 common jail of said county, there to remain until he shall pay and 
 satisfy said A. 33., the judgment aforesaid; and do you make return 
 hereof as the law directs. 
 
 Given under my hand and seal, this day of , 18 . 
 
 AMOS WRIGHT, /. P. [SEAL.] 
 
 Judgment, $50.00 1 
 
 Costs, $2.50 > 
 
 Collect interest from , 18 . I 
 
 Form of Affidavit far " Ca. Sa." 
 
 STATE OF ILLINOIS,") 
 COUNTY, f ss 
 
 A. B. being duly sworn, doth depose and say that, on the day 
 
 of , 18 , a judgment was rendered, before L. M., a justice of 
 
 the peace of the county aforesaid, for the sum of dollars and 
 
 cents, in favor of the said A. B. and against C. D., and for the sum of 
 
 dollars and cents for costs of suit ; that an execution was 
 
 issued upon said judgment against the goods and chatties of the said 
 C. D., and delivered to one J. K,, a constable of said county, to levy, 
 and that the said C. D. refused to surrender his goods and chattels 
 upon said execution, for the satisfaction thereof. 
 
 Subscribed and sworn to 1 A. B. 
 
 before me this day 
 
 of , 18. 
 
 E. F., J. P. 
 
 The form of ca. sa. before given, may be used in cases of affidavit 
 filed, by varying the same according to the facts. 
 
 A justice of the peace cannot issue an execution against the body of
 
 154 GARNISHMENT. [PART 1, 
 
 a defendant before an execution against the property lias been returned 
 unsatisfied, except in actions of trover and trespass. 1 
 
 II. OF GARNISHMENT. 
 
 Rev. Stat. 307, Sec. 38. " Whenever a judgment shall be rendered 
 by any court of record, or any justice of the peace in this State, and an 
 execution against the defendant or defendants in said judgment shall be 
 returned by the proper officer, " no property found," on the affidavit of 
 the plaintiff, or other credible person, being made before the clerk of 
 said court, or justice of the peace, that said defendant or defendants 
 have no property within the knowledge of such affiant, in his or their 
 possession, liable to execution ; and that such affiant hath just reason 
 to believe that another person, or persons, is or are indebted to such 
 defendant or defendants, or hath, or have any effects or estate of such 
 defendent or defendants, in his or their hands ; it shall be lawful for said 
 court, or justice of the peace, to cause the person or persons supposed 
 to be indebted to, or supposed to have any of the effects or estate of the 
 said defendant or defendants, to be summoned forthwith to appeal- 
 before said court, or justice, as a garnishee or garnishees ; and said 
 court or justice of the peace, shall examine and proceed against such 
 garnishee or garnishees, in the same manner as is required by law against 
 garnishees in original attachments." 
 
 Form of Affidavit for Garnishee Process on Judgment. 
 LINOIS. ") 
 
 NTY, | ss - 
 
 STATE OF ILLINOIS, 
 COUNTY 
 
 B- 
 
 vs. \- Before L. M., Justice of the Peace. 
 
 C - D 
 
 A. B., the plaintiff in the above entitled suit, being sworn, on oath 
 says that he lately recovered a judgment in said suit before L. M., a 
 justice of the peace of said county, against said C. D., for the sum of 
 - dollars, debt, and - dollars, costs of suit ; that an execution 
 has been lately issued on said judgment, and returned by a constable 
 of said county, "no property found;" that the said C. D. has no 
 property within deponent's knowledge in his possession liable to execu- 
 
 (1) 13 III. 22.
 
 ClUP. 12.] GARNISHMENT. 
 
 iou; that deponent has just reason to believe, and does believ 
 
 Subscribed and sworn to before me ] 
 this - day of - ,1 8 _ ' 
 
 L. M., t 
 
 Justice of the Peace. I 
 
 Form of Garnishee Summons. 
 
 STATE OF ILLINOIS, > 
 - COUNTY, j SS- 
 
 The People of the State of Illinois to any Constalle of said county 
 GREETING : 
 
 usr^f T,', A ' B ' ha f tlli8 ^ mad alh W re the "Signed, a 
 just.ee of tte peace of said eounty, that he lately recovered a juLent 
 Wore 1 M., a justice of the peace of said eounty, against tlS C 
 D., for the sum of - - dollars, debt, and for _ dollars , 
 that an caution has been late.y issued on said judgn^t' a ^ed 
 by a constable of sari county, propert fomd * that ^ 
 
 ' 
 
 Now, therefore, we command you that you summon the said P n 
 to appear forthwith, as gamishee, before L undersi^d Ms office 
 C Wt ' then afd there objected 
 
 w , . .,. SEAL 
 
 When the person summoned as garnishee appears the iustice will 
 roqu.re that he be sworn touching his indebtedness to Ihe def^tlr 
 judgment debtor in question, or as to his having anv effects 
 
 * to said defendant - The 
 
 ^ e administeredto Ganlishee 
 
 You do swear that you will true answers make to such questions as
 
 156 GARNISHMENT. [PART 2, 
 
 may be put to you touching your indebtedness to C. D., or as to your 
 having in your hands any effects of the said C. D. 
 
 Kev. Stat. 307, Sec. 39. "No proceedings against a garnishee or 
 garnishees, shall be quashed or set aside, or said garnishee or gamishees 
 discharged, on account of any insufficiency of the original affidavit or 
 summons, if the plaintiff or plaintiffs, or other credible person for him, 
 shall cause a legal and sufficient affidavit to be filed, or the summons to 
 be amended in such tune and manner as the courts or justices of the 
 peace shall, respectively, in their discretion direct ; and, in that event, 
 the cause shall proceed as if such proceedings had originally been suf- 
 ficient." 
 
 A garnishee is liable for all that may be in his hands, or owing by 
 him to the principal debtor, upon a fair settlement between them from 
 the service of the garnishment. 1 
 
 The answer of a garnishee, until it is contradicted or disproved, must 
 be considered as true. 
 
 It must clearly appear that he is chargeable, or he will be discharged. 2 
 
 Surplus money made on execution, in the hands of an officer, belong- 
 ing to the defendant, may be garnisheed in the hands of an officer. 3 
 
 Where property had been placed in the hands of a garnishee to 
 indemnify him for becoming the security of such defendant, it was held 
 to be a pledge of the property, and gave the garnishee a right to retain 
 it until his liability as security was extinguished. 4 
 
 A defendant being notified that a judgment against him belongs to a 
 person other than the plaintiff on the record, he is as much bound by 
 the notice as if the record stated the judgment to be for the use of such 
 person. 5 
 
 A garnishee may inquire into the legality and regularity of all the 
 previous proceedings against a defendant in attachment, in order to 
 determine whether they were authorised or not. 6 
 
 (1) 1 Gil. 584. (2) Ibid. ; 12 111. 358. (3) 12 111. 358. (4) 1 Gil. 86. 
 
 (5) 12 111. 170. (6) 12 HI. 358.
 
 CHAP. 1.] POWERS OF JUSTICES. 157 
 
 PART SECOND. 
 
 OF PROCEEDINGS BEFORE JUSTICES OF THE PEACE IN 
 CRIMINAL CASES. 
 
 CHAPTER I. 
 
 OF THE POWERS OF JUSTICES OF THE PEACE, RELATIVE 
 TO THE ENFORCEMENT OF THE LAWS, FOR THE PRE- 
 VENTION AND PUNISHMENT OF OFFENSES, AND PRES- 
 ERVATION AND OBSERVANCE OF THE PEACE. 
 
 Rev. Stat. 190, Sec. 201. " The judges of the supreme and circuit courts 
 in their respective circuits, and justices of the peace in their respective 
 counties, shall jointly and severally be conservators of the peace within 
 their respective jurisdictions, as herein designated, and shall have full 
 power to enforce, or cause to be enforced, all laws that now exist, or 
 that shall hereafter be made, for the prevention and punishment of 
 offenses, or for the preservation and observance of the peace. They 
 shall have power to cause to be brought before them, or any of them, 
 all persons who shall break the peace, and commit them to jail, or 
 admit them to bail, as the case may require ; and to cause to come 
 before them, or any of them, all persons who shall threaten to break 
 the peace, or shall use threats against any person within this State, 
 concerning his or her body, or threaten to injure his or her property, 
 or the property of any person whatever ; and, also, all such persons 
 as are not of good fame ; and the said judge or justice of the peace, 
 being satisfied, by the oath of one or more witnesses, of his or her bad 
 character, or that he or she had used threats as aforesaid, shall cause 
 . such person or persons to give good security for the peace, or for then- 
 good behavior towards all the people of this State, and particularly 
 towards the individual threatened. If any person against whom such
 
 158 POWERS OF JUSTICES. [PART 2, 
 
 proceedings are had, shall fail to give a recognizance, with sufficient 
 security, it shall be the duty of the judge or justice of the peace before 
 whom he or she shall be brought, to commit such person or persons to 
 the jail of the proper county, until such security be given, or until the 
 next term of the circuit court. Such judge or justice of the peace shall 
 also take recognizance for the appearance of all witnesses at such courts. 
 All recognizance to be taken in pursuance of this section, shall be 
 returnable to the next circuit court, to be holden in the proper county, 
 where all such recognizance shall be renewed or dismissed, as the said 
 circuit court shall, upon examination of the witnesses, deem to be just 
 and right. And where the person or persons committed are in jail at 
 the sitting of such circuit conrt, the court shall examine the witnesses, 
 and either continue the imprisonment, bail the prisoner, or discharge 
 him or her, as to the said court shall appear to be right, having due 
 regard to the safety of the citizens of this State."
 
 CHAP. 2.] PERSONS CAPABLE OF COMMITTING CRIMES. 159 
 
 CHAPTER II. 
 
 OF PERSONS CAPABLE OF COMMITTING CRIMES, OF ACCES- 
 SORIES, AND WHO MAY BE WITNESSES IN CRIMINAL 
 CASES. 
 
 I. OF PERSONS CAPABLE OF COMMITTING CRIMES. 
 II. OP ACCESSORIES TO CRIMES. 
 III. WHO MAY BE WITNESSES IN CRIMINAL CASES. 
 
 I. OF PERSONS CAPABLE OF COMMITTING CRIMES. 
 
 Criminal Code, Sec. 1. "A crime or misdemeanor consists in a 
 violation of a public law, in the commission of which there shall be an 
 union or joint operation of act and intention or criminal negligence. 
 
 " Sec. 2. Intention is manifested by the circumstances connected 
 with the perpetration of the offense, and the sound mind and discretion 
 of the person accused. 
 
 "Sec. 3. A person shall be considered of sound mind, who is 
 neither an idiot nor lunatic, nor affected with insanity, and who hath 
 arrived at the age of fourteen years, or before that age, if such person 
 know the distinction between good and evil. 
 
 " Sec. 4. An infant under the age of ten years, shall not be found 
 guilty of any crime or misdemeanor. 
 
 ." Sec. 5. A lunatic or insane person, without lucid intervals, shall 
 not be found guilty of any crime or misdemeanor with which he may 
 be charged ; provided, the act so charged as criminal shall have been 
 committed in the condition of insanity. 
 
 " Sec. 6. An idiot shall not be found guilty or punished for any 
 crime or misdemeanor with which he or she may be charged. 
 
 " Sec. 7. Any person counseling, advising or encouraging an infant 
 under the age of ten years, lunatic or idiot, to commit any offense,
 
 160 PERSON'S CAPABLE OF COMMITTING CRIMES. [PART 2, 
 
 shall be prosecuted for such offense, when committed, as principal ; 
 and, if found guilty, shall suffer the same punishment that would have 
 been inflicted on such person counseling, advising or encouraging as 
 aforesaid, had he or she committed the offense directly, without the 
 intervention of such infant, lunatic or idiot. 
 
 " Sec. 8. A married woman, acting under the threats, command or 
 coercion of her husband, shall not be found guilty of any crime or mis- 
 demeanor not punishable with death ; provided, it appear, from all the 
 facts and circumstances of the case, that violent threats, command or 
 coercion were used ; and in such case, the husband shall be prosecuted 
 as principal, and receive the punishment which would otherwise have 
 been inflicted on the wife, if she had been found guilty. 
 
 " Sec. 9. Drunkenness shall not be an excuse for any crime or 
 misdemeanor, unless such drunkenness be occasioned by the fraud, con- 
 trivance or force of some other person or persons, for the purpose of 
 causing the perpetration of an offense ; in which case, the person or 
 persons so causing said drunkenness, for such malignant purpose, shall 
 be considered principal or principals, and suffer the same punishment 
 as would have been inflicted on the person or persons committing the 
 offense, if he, she or they had been possessed of sound reason and dis- 
 cretion. 
 
 " Sec. 10. Acts committed by misfortune or accident, shall not be 
 deemed criminal, where it satisfactorily appears that there was no evil 
 design or intention, or culpable negligence. 
 
 " Sec. 11. A person committing a crime or misdemeanor not pun- 
 ishable with death, under threats or menaces which sufficiently show 
 that his or her life or member was in danger, or that he or she had 
 reasonable cause to believe, and did believe, that his or her life or mem- 
 ber was in danger, shall not be found guilty ; and such threats or 
 menaces being proved and established, the person or persons compelling 
 by such threats and menaces the commission of the offense, shall be 
 considered as principal or principals, and suffer the same punishment 
 as if he or she had perpetrated the offense. 
 
 " Sec. 12. A person that becomes lunatic or insane, after the com- 
 mission of a crime or misdemeanor, ought not to be tried for the offense 
 during the continuance of the lunacy or insanity. If, after verdict of 
 guilty, and before judgment pronounced, such person become lunatic 
 or insane, then no judgment shall be given while such lunacy or insanity 
 shall continue. And if, after judgment and before execution of the 
 sentence, such person become lunatic or insane, then, in case the pun-
 
 CHAP. 2.] ACCESSORIES. WITNESSES. 161 
 
 ishment be capital, the execution thereof shall be stayed until the 
 recovery of said person from the insanity or lunacy. In all of these 
 cases it shall be the duty of the court to empannel a jury to try the 
 question whether the accused be at the time of empanneling, insane or 
 lunatic. 
 
 II. OP ACCESSORIES TO CRIMES. 
 
 " Sec. 13. An accessory, is he or she who stands by and aids, abets 
 or assists ; or who, not being present aiding, abetting or assisting, hath 
 advised and encouraged the perpetration of the crime. He or she who 
 thus aids, abets Or assists, advises or encourages, shall be deemed and 
 considered as principal, and punished accordingly. 
 
 " Sec. 14. An accessory, after the fact, is a person who, after full 
 knowledge that a crime has been committed, conceals it from the magis- 
 trate, or harbors and protects the person charged with or found guilty 
 of the crime. Any person being found guilty of being an accessory 
 after the fact, shall be imprisoned for any term not exceeding two years, 
 and fined in a sum not exceeding five hundred dollars, in the discretion 
 of the court, to be regulated by the circumstances of the case and the 
 enormity of the crime. 
 
 III. WHO MAY BE WITNESSES IN CRIMINAL CASES. 
 
 " Sec. 15. The party or parties injured, shall, in all cases, be com- 
 petent witnesses, unless he, she or they shall be rendered incompetent 
 by reason of his, her or their infamy, or other legal incompetency other 
 than that of interest; the credibility of all such witnesses shall be left 
 to the jury as in other cases. 
 
 " Sec. 16. No black or mulatto person, or Indian, shall be permitted 
 to give evidence in favor of or against any white person whatsoever. 
 Every person who shall have one-fourth part or more of negro blood, 
 shall be deemed a mulatto ; and every person who shall have one-half 
 Indian blood, shall be deemed an Indian. 
 
 " Sec. 16. Approvers shall not be allowed to give testimony. 
 
 " Sec. 18. The solemn affirmation of witnesses shall be deemed 
 sufficient. A false and corrupt affirmation shall subject the witness to 
 all the penalties and punishment provided for those who commit willful 
 and corrupt perjury." 
 
 10
 
 162 DUTY OF JUSTICES IN CRIMINAL OFFENSES. [PART 2, 
 
 CHAPTER III. 
 
 OF PROCEEDINGS WHERE A CRIMINAL OFFENSE HAS BEEN 
 COMMITTED. 
 
 I. DUTY OF THE JUSTICE, ON COMPLAINT THAT A CRIMINAL OF- 
 FENSE HAS BEEN COMMITTED. 
 
 II. OF THE COMPLAINT. 
 
 III. OF THE WARRANT. 
 
 IV. OF THE ARREST. 
 
 V. OF THE EXAMINATION. 
 VI. OF PROCEEDINGS SUBSEQUENT TO THE EXAMINATION. 
 
 1. Of the Discharge. 
 
 2. Of Bail and Recognizance. 
 
 3. Of Commitment. 
 
 4. Of Recognizance of Witnesses. 
 
 5. Of Bail after Commitment . 
 
 I. DUTY OF THE JUSTICE, ON COMPLAINT THAT A CRIMINAL OFFENSE 
 HAS BEEN COMMITTED. 
 
 Crim. Code, Sec. 202. "Where any felonious offense shall be com- 
 mitted, public notice thereof shall be immediately given in all public 
 places near where the same was committed, and fresh pursuit shall be 
 forthwith made after every person guilty thereof, by sheriffs, coroners, 
 constables, and all other persons who shall be by any one of them com- 
 manded or summoned for that purpose : every such officer, who shall 
 not do his duty in the premises, shall be punished by fine, in a sum not 
 exceeding one hundred dollars, or imprisonment not exceeding three 
 months. 
 
 " Sec. 203. It shall be lawful for any of the aforenamed judges or 
 justices of the the peace, upon oath or affirmation being made before him, 
 that any person or persons have committed any criminal offense, in this
 
 ClIAP. 3.] DUTY OF JUSTICES IN CRIMINAL OFFENSES. 163 
 
 State, or that a criminal offense has been committed, and that the witness 
 or witnesses, have just and reasonable grounds to suspect that such per- 
 son or persons have committed, the same, to issue his warrant under his 
 hand, commanding the officer, or person charged with the execution 
 thereof, to arrest the person or persons so charged, and bring him, her, 
 or them before the officer issuing said warrant, or in case of his absence, 
 before any other judge or justice of the peace ; the said judge or justice 
 of the peace, before whom any person or persons shall be brought, in 
 pursuance of such warrant, or shall be brought without warrant, and 
 charged with any criminal offense, before he shall commit such prisoner 
 to jail, admit to bail or discharge him or her from custody, shall inquire 
 into the truth or probability of the charge exhibited against such prison- 
 er or prisoners, by the oath of all the witnesses attending ; and shall, 
 upon consideration of the facts and circumstances then proved, either 
 commit such person or persons so charged to jail, admit him, her or 
 them to bail, or discharge him, her or them from custody. No justice 
 of the peace shall admit to bail any person or persons charged with treason, 
 murder, or any offense punishable with death; and provided, that in all 
 cases where the charge is for sodomy, rape, arson, burglary, robbery, 
 forgery or counterfeiting, it shall be the duty of any justice of the peace, 
 whenever any person or persons shall be brought before him for the same 
 or either of them, to associate with himself some neighboring justice of 
 tho peace, previous to the examination of the witnesses ; and they two 
 shall have power to bail such prisoner or prisoners, or commit him, 
 her or them to jail, in case no good and sufficient bail is offered, or 
 discharge the prisoner or prisoners, according to the proof that is 
 adduced and the law arising thereon. All recognizances taken in 
 pursuance of this section, shall require the accused to appear at and 
 on the first day of the next circuit court ; or, if the court be then sitting, 
 on some day of the term to be therein designated. 
 
 "Sec. 204. It shall be the duty of the judge or justice of the 
 peace, who shall commit any offender to jail, as aforesaid, or admit him 
 to bail, to bind by recognizance the prosecutor, and all such as do declare 
 anything material to prove the offense charged, to appear before the 
 next circuit court, on the first day thereof; or, if the said court shall be 
 then sitting, on some day to be therein designated, (and in all cases, at 
 the same time and place as the person or persons accused by said 
 witnesses, shall be bound to appear,) to give evidence touching the 
 offense so charged, and not depart the court without leave. If any 
 person, upon being required to enter into recognizance, as aforesaid,
 
 164 COMPLAINT. . [PART 2, 
 
 shall refuse, it shall be lawful for such judge or justice of the peace to 
 commit him or her to jail, there to remain until he or she shall enter 
 into such recognizance, or be otherwise discharged by due course of 
 law. 
 
 " Sec. 205. All recognizances that have any relation to criminal mat- 
 ters, shall be taken to the people of this State, shall be signed by the 
 person or persons entering into the same, be certified by the judge, jus- 
 tice of the peace, or other officer taking the same, and delivered to the 
 clerk of the circuit court, on or before the day mentioned therein for 
 the appearance of the witness or accused, therein bound. Recognizan- 
 ces taken in courts of record need not be signed or certified, as afore- 
 said. Recognizances for assaults, batteries and affrays, shall be for the 
 appearance of the accused before the justice of the peace taking the 
 same, or before some other justice of the county, on the day appointed 
 by the justice, for the trial of the offender. 
 
 " Sec. 206. Where any person shall be committed to jail, on a crim- 
 inal charge, for want of good and sufficient bail, except for treason, 
 murder, or other offense punishable with death, or for not entering into 
 a recognizance to appear and testify, a judge or any justice of the peace, 
 may take such bail or recognizance, in vacation, and may discharge such 
 prisoner from his or her imprisonment. It shall be the duty of the 
 judge or justice committing such person to jail, to endorse on the war- 
 rant for commitment, in bailable cases, in what sum bail ought to be 
 taken." 
 
 II. OF THE COMPLAINT. 
 
 Where a statute gives a justice jurisdiction over an offense, it impli- 
 edly gives him power to apprehend any person charged with such 
 offense. 1 
 
 The initiatory steps to be taken in order to procure the arrest and 
 examination of persons charged with having committed offenses, is to 
 make a complaint to any officer authorized by law to receive it, showing 
 that a criminal offense has been committed. 
 
 Criminal prosecutions are carried on in the name of the people, and 
 have for their principal object the security and safety of the people in 
 general, and not merely private redress. But as offenses for the most 
 
 (1) 1 Chit. Grim. L. 34.
 
 CHAP. 3.] COMPLAINT. 165 
 
 part more particularly affect a particular individual, it is not usual for 
 any other person to interfere. In general, however, every man is of 
 common right entitled to prefer an accusation against a party whom 
 he suspects to be guilty. 1 
 
 When a person competent to enter a complaint knows that another 
 has committed an offense, he should see that measures are taken to 
 bring the offender to justice. In point of morals this duty is quite 
 plain, and it is especially so with regard to those more aggravated 
 crimes which strike at the foundation of public tranquility, or endanger 
 the lives and property of individuals. 
 
 No one can be said to have fully discharged his obligations to 
 society, who, under such circumstances, should remain silent and in- 
 active, and allow the culprit to escape. In England this duty is 
 expressly enforced by statute, and the neglect of it, is in many cases 
 rendered criminal, and visited with exemplary punishment. It is 
 stated, moreover, to be an offense at common law, for one who knows 
 that felony or treason has been committed willfully, to omit informing 
 against the offender. 
 
 If a justice of the peace without complaint or information should 
 issue a warrant and cause a person to be arrested, trespass would lie 
 against him ; for though he is accused when he issues a warrant on a 
 false accusation, yet it is otherwise where he issues his warrant without 
 accusation. 2 
 
 The statute does not require, as will be seen by reference to section 
 '203 in the preceding division of this chapter, that the complaint or 
 information, in case where a felonious offense has been committed, 
 should be in writing. 
 
 It is laid down, however, by several writers, that it is the duty of the 
 magistrate, independent of any statutory provision, to take all charges, 
 of whatsoever kind or complexion they may be, in writing. 3 This 
 practice is recommended by a variety of considerations ; among which 
 are the following : It will ensure greater system and accuracy in the 
 subsequent proceedings enabling the justice, in case the complainant 
 or any of the witnesses are prosecuted for their doings in the matter, 
 to shew distinctly what they testify to and further, if the justice him- 
 self is prosecuted, it will facilitate his defense, by enabling him to 
 exhibit, at once, an information on oath authorizing the warrant and 
 giving him jurisdiction. 4 
 
 (1) 1 Chit. Crim. L. 1. (2) Breese, 165. (3) See Barb. Crim. L. 519, and authorities cited. 
 (4) See 2 Stark. Ev. 429, note a; Barb. Crim. L. 519.
 
 166 WARRANT. [PART 2, 
 
 When the complaint is reduced to writing, it may be in the follow- 
 ing form : 
 
 Form, of complaint, when any criminal offense has been committed. 
 ois, ) 
 
 r, I 88 ' 
 
 STATE OF ILLINOIS, 
 COUNTY, 
 
 The complaint and information of A. B. of said county made before 
 E. F. Esquire, one of the justices of the peace in and for said county, 
 
 on the day of , 18 , who being duly sworn, on his oath 
 
 says that (Jiere set forth the offense}. 1 
 Subscribed and sworn to before me, A. B. 
 
 this day of A.D. 18 . 
 
 E. F. 
 Justice of the Peace. 
 
 Form of oath of complaint, where the complaint is not reduced 
 to writing. 
 
 You do swear, that you will true answers make to such questions as 
 may be put to you touching the present complaint against C. D. So 
 help you God. 
 
 III. OF THE WARRANT. 
 
 If the justice determines that the case requires further proceedings, 
 his next duty is to issue his warrant for the apprehension of the 
 offender. The warrant to arrest persons with a view of obtaining 
 sureties of the peace, will be noticed hereafter. It is proposed here to 
 notice, in a general way, the more ordinary warrant to arrest persons 
 charged with having committed crimes ; though in most respects our 
 observations will apply to both species of warrants. 
 
 In respect to the form and requisites of this species of warrant, the 
 following particulars are deserving of attention : 
 
 1st. That it should show the county where it ivas made, either in 
 the body of the warrant, or in the margin? 
 
 (1) The manner of stating the various offenses will be the same as that recited in tin- 
 warrant; reference can therefore be had to the forms of statements in Chapter IV. post. 
 
 (2) 2 Hawk. P. C. Chap. 13, 23.
 
 CHAP. 3.] WARRANT. 167 
 
 This is usually done by a statement in the margin at the com- 
 mencement, thus : 
 
 STATE OF ILLINOIS, ) 
 
 > SQ 
 
 Lake COUNTY, j ^ 
 
 2d. It ought to set forth the year and day wherein it was issued, 
 that in an action brought upon an arrest made by virtue of it, it may 
 appear to have been prior to such arrest. 1 
 
 3d. It must be in the name of the people of the State of Illinois, 
 as required by the Constitution. 2 
 
 4th. It must be under the hand of the justice or magistrate who 
 issues it. This is expressly required by statute, 3 and by the common 
 law. 4 
 
 5th. It may be under seal or not. At common law it has been 
 said a seal was necessary ; 5 but such does not seem to be the case. 6 
 By our statute it is only necessary that it should be under the hand of 
 the justice. 7 
 
 6th. It should not be general, to apprehend all persons suspected, 
 but should direct the officer to apprehend some particular individual ; 
 otherwise it will be void. 8 
 
 7th. The name of the person to be apprehended should be accurately 
 stated, if known, and must not be left in blank to be filled up after- 
 wards. 9 If the name inserted be not the right one, or be fictitious, 
 merely, the arrest cannot be justified, even though the person arrested 
 be the one intended ; unless, indeed, he is known as well by the name 
 in the warrant as by his true name. 10 But if the name of the party be 
 unknown, the warrant may be issued against him by the best descrip- 
 tion the nature of the case will allow : as, " the body of a man whose 
 name is unknown, but whose person is well known, and who is 
 employed as the driver of cattle, wears a white hat, and has lost his 
 right eye." 11 Yet a warrant to apprehend " Hood, (omitting the 
 Christian name,) of B., in the parish of F., by whatsoever name he 
 may be called or known, the son of Samuel Hood, to answer," &c., 
 was held defective, as omitting the Christian name, and assigning no 
 
 (1) 2 Hawk. P. C. Chap 13, 22; 2 Kale's P. 0. Ill; 1 Chit. Crim. L. 38, 39. 
 
 (2) Const. 111. Art. V. 26. (3) Rev. Stat. 190, Sec. 203. 
 
 (4) 2 Hawk. P. C. Chap. 13, 21; 1 Halo's P. C. 577. 
 
 (5) 4 Black. Com. 290; 2 Hawk. P. C. Chap. 13, 21; 1 Hale's P. C. 577. 
 
 (6) Willes' R. 411; Bull N. P. C. 83; 1 Chit. Crim. L. 38. 
 
 (7) Rev. Stat. 190, Sec. 203. 
 
 (8) 4 Black Com. 291; 1 Hale's P. C. 580; 1 Chit. Crim. L. 41,42. 
 
 (9) 1 Chit. Crim. L. 39; 2 Hale's P. C. 114; Post. 312. 
 
 (10) 8 East. 328; 6 Co wen, 456; 7 Id. 332; 3 Wend. 350; 4 Id. 555; 9 Id. 320; 2 Taunt. 400. 
 
 (11) 1 Chit. Crim. L. 39, 40; 1 Hale's P. C. 577.
 
 168 WARRANT. [PART 2, 
 
 reason for the omission, nor giving any distinguishing particulars of the 
 individual. 1 
 
 8th. The warrant should recite the accusation made by the com- 
 plaint. Although this is not required by statute, and at common 
 law it was deemed rather discretionary than necessary, to set out the 
 accusation in the warrant, yet the practice of doing so has been univer- 
 sally recommended. 2 
 
 9th. The warrant must be properly directed. The statute requires 
 that it shall be directed to all sheriffs, coroners, and constables within 
 the State. 3 If a private person is authorized to execute the warrant, 
 his name should appear in the warrant ; that is, it should be directed 
 to the officers before named, and to the individual who is to execute it, 
 naming him. 4 
 
 Return of the warrant. The warrant of a magistrate is not 
 returnable at any particular time, and it continues in force until it is 
 fully executed and obeyed. 5 
 
 General form of warrant in the name of the people. 
 STATE OF ILLINOIS, 
 
 COUNTY, r ss> 
 
 The people of the State of Illinois to all Sheriff's, Coroners, and 
 
 Constables of said State : 
 
 Whereas A. B. hath this day made complaint on oath before L. M., a 
 justice of the peace of the said county, that (here set forth the offense:} 
 We therefore command you forthwith to take the said C. D. and 
 bring him before the said L. M., or in case of his absence, before any 
 other justice of the peace of the said county, to be dealt with according 
 to law. Hereof fail not at your peril. Witness the said L. M. at 
 
 , in said county, the day of , 18 . 
 
 L. M. 
 Justice of the peace. 
 
 Form of warrant directed to a private person. 
 
 STATE OF ILLINOIS, ^ 
 
 COUNTY, \ ss ' 
 
 The people of the State of Illinois to all Sheriffs, Coroners, and 
 
 Constables of said county, and to John Doe: 
 Whereas A. B. hath this day made complaint on oath before L. M., 
 
 (1) Rex v. Hood, I. M. & M. 281. 
 
 (2) See 1 Chit. Crim. L. 41 ; 2 Kale's P. C. Ill ; 1 Id. 580 ; Cro Jac. 81 ; 2 Willes, 158, 
 
 (3) Rey. Stat. 192, Sec. 207. (4) Id 192, Sec. 208. (5) Peake's R. 334.
 
 CHAP. 3.] WARRANT. 169 
 
 a justice of the peace of the said county, that (here set forth the 
 offense.) 
 
 We therefore command you forthwith to take the said C. D. and 
 bring him before the said justice, or in case of his absence, before some 
 other justice of the peace of the said county, to be dealt with according 
 to law. Hereof fail not. In witness whereof the said justice hath 
 
 hereunto set his hand at , in the county aforesaid, the 
 
 day of , 18. 
 
 L. M. 
 Justice of the Peace. 
 
 Form of order thereon. 
 
 Ordered that John Doe, named in the within warrant, be hereby 
 authorized to execute the same. (Dated) 
 
 L. M. 
 Justice of the Peace. 
 
 Warrant for Larceny. 
 STATE OF ILLINOIS, 
 
 COUNTY, 
 
 ss. 
 
 The people of the State of Illinois, to all Sheriff's, Coroners, and 
 Constables of said State : 
 
 Whereas A. B. hath this day made complaint on oath before L. M., 
 a justice of the peace of the said county, that on this present day at 
 
 , in said county, divers goods and chattels of him, the said 
 
 A. B. of the value of fifty dollars, that is to say, one silver watch, six 
 silver spoons, and one coat, were feloniously stolen, taken x and carried 
 away, and that he has just cause to suspect, and doth suspect that 
 C. D. did feloniously steal, take, and carry away the same. We 
 therefore, command you forthwith to take the said C. D. and bring 
 him before the said justice, or in case of his absence, before some other 
 justice of the peace of said county, to be dealt with according to law. 
 In witness whereof the said justice hath hereunto set his hand at 
 
 , in said county, the day of , 18 . 
 
 L. M. 
 Justice of the Peace.
 
 170 WARRANT. [PART 2, 
 
 Warrant for Burglary, when the name of the offender is unknown. 
 STATE OF ILLINOIS, 
 
 COUNTY, 
 
 ss. 
 
 The people of the State of Illinois to all Sheriff's, Coroners, and 
 Constables of said State : 
 
 Whereas A. B. hath this day made complaint on oath before L. M. 
 
 a justice of the peace of said county, that in the night of the 
 
 day of last, (or instant,) the dwelling house of him, the 
 
 said A. B. situate in , in said county, was willfully and ma- 
 liciously and forcibly broken and entered, with intent the goods and 
 chattels of the said A. B. in said dwelling house then and there being, 
 feloniously to steal, take and carry away : and one silver watch of 
 the value of twenty dollars, (state all the articles, with the value of 
 each,*) of the goods and chattels of the said A. B. was feloniously and 
 burglariously stolen, taken and carried away ; and that he hath just 
 cause to suspect, and doth suspect that a man whose name is unknown 
 to the said A. B., but whose person is known to him, and who is 
 employed as the driver of a four-horse team, has red hair, and has lost 
 his right eye, did break and enter the said dwelling house, and commit 
 the said felony and burglary. 
 
 We therefore, command you forthwith to take the said man, whose 
 name is so unknown, and bring him before said justice, or, in case of 
 his absence, before some other justice of said county, to be dealt with 
 according to law. In witness whereof the said justice hath hereunto 
 
 set his hand at , in said county, the day of , 
 
 18. 
 
 L. M. 
 Justice of the Peace. 
 
 Warrant to levy hue and cry, on a robbery having been committed. 
 STATE OF ILLINOIS, 
 
 COUNTY, 
 
 ss. 
 
 The people of the State of Illinois to all Sheriffs, Coroners, and 
 
 Constables of said State : 
 
 Whereas A. B. hath this day made complaint on oath before L. M., 
 a justice of the peace of the said county, that on this present day of
 
 CHAP. 3.] WARRANT. 171 
 
 , 18 , at a place called , in said county, in the public 
 
 highway there, two persons, to him the said A. B. unknown, in and 
 upon him the said A. B., did make an assault, and him the said 
 A. B. then and there feloniously did put in great fear and danger of 
 his life, and seventy-five pieces of the coin of the United States, called 
 dollars, of the goods and chattels of him the said A. B. from the 
 person and against the will of him the said A. B. then and there 
 forcibly and feloniously did steal, take and carry away ; and that one 
 of the persons to him the said A. B. unknown, is a tall, strong man, 
 and seemeth to be about the age of thirty-jive years, is pitted in the 
 face with small pox, and hath a scar of a wound under his left eye, 
 and had then on a dark brown riding coat, &c., and did ride on a bay 
 gelding with a star on his forehead. And the other, &c. And that, 
 after the said felony and robbery was committed, the said persons, to him 
 the said A. B. unknown, did fly and withdraw themselves to places 
 unknown, and are not yet apprehended. We therefore, command 
 you forthwith to raise the power of the (precincts or towns) in your 
 several counties, and to make diligent search for the persons above 
 described, and to make fresh pursuit, and hue and cry after them 
 from precinct to precinct, and from county to county, as well by horse 
 as by footmen, and give due notice thereof, describing the persons 
 and the offense aforesaid, unto every next Sheriff, Coroner and Con- 
 stable on every side, until the said persons shall be apprehended : and 
 all persons whom you or any of you shall, as well upon search and 
 pursuit as otherwise, apprehend or cause to be apprehended, as justly 
 suspected for having committed the said robbery and felony, that you 
 do carry forthwith before some justice of the peace of the county where 
 he or they shall be apprehended, to be by such justice (and some 
 neighboring justice associated with him,) examined and dealt with 
 according to law. And hereof fail you not respectively upon the peril 
 that shall ensue thereon. Given under the hand of said justice at 
 
 , in the county of , the day of , 18 . 
 
 L. M. 
 Justice of the Peace.
 
 172 ARREST. [PART 2, 
 
 Another form of warrant to levy hue and cry, on a robbery having 
 been committed. 
 
 STATE OF ILLINOIS, 
 
 COUNTY. 
 
 The people of the State of Illinois to all Sheriff's, Coroners, and 
 Constables of said State : 
 
 Whereas, A. B. hath this day made complaint on oath before L. 
 
 M., one of the justices of the peace of said county, that on the 
 
 day of , 185-, at in the county aforesaid, C. D., in and 
 
 upon the said A. B. feloniously did make an assault, and one silver 
 watch, the property of the said A. B., from his person, and against 
 his will, by force did then and there feloniously and violently take and 
 carry away ; and after the said felony and robbery was committed, 
 the said C. D. did fly and withdraw himself to places unknown, and 
 is not yet apprehended. We, therefore, command you and every 
 of you to search within your several counties for the said C. D., 
 and also make hue and cry after him from precinct to precinct, and 
 from county to county, and that as well by horsemen as footmen, and 
 if you shall find him, the said C. D., that then you carry him before 
 some one of the justices within the county where he shall be taken, to 
 be dealt with according to law. Hereof fail you not respectively at 
 
 your peril. Given under the hand of the said justice at , in the 
 
 county aforesaid, this day of , 185-. 
 
 L. M., 
 Justice of the Peace. 
 
 IV. OF THE ARREST. 
 
 An arrest in criminal cases is the apprehension or restraining of one's 
 person, in order to be forthcoming to answer an alleged or suspected 
 crime. To this arrest all persons whatsoever, are, without distinction, 
 equally liable in all criminal cases ; but no man is to be arrested unless 
 charged witli such a crime as will at least justify holding him to bail 
 when taken. 1 
 
 The subject of arrests pertains more particularly to the duties of 
 constables, and will therefore be treated upon more at length in that 
 part of this work which relates to the powers and duties of constables. 
 
 (1) 4 Bl. Com. 290.
 
 CHAP. 3.] EXAMINATION. 173 
 
 V. OF THE EXAMINATION. 
 
 It is apprehended that but few suggestions upon the subject of the 
 examination need here be given. The language of the statute is, no 
 doubt, sufficiently explicit upon this subject to supersede the necessity 
 of any lengthy illustration in reference to the duties of the justice in 
 this respect, and a mere recurrence to the statute, an extract from 
 which has already been given, may suffice. 1 The justice before whom 
 any person may be brought in pursuance of a warrant, or may be 
 brought without a warrant, and charged with any criminal offense, is 
 required, before he shall commit such prisoner to jail, admit to bail, or 
 discharge from custody, to inquire into the truth or probability of the 
 charge exhibited against such person, by the oath of all the witnesses 
 attending ; and upon the consideration of the facts and circumstances 
 then proved, he will either commit such person so charged to jail, ad- 
 mit him to bail, or discharge him from custody. 2 
 
 It seems, then, that the examination assumes the nature of a trial of 
 issue of fact before the justice, without a jury, and may be conducted 
 in the same manner, as nearly as the nature of the case will admit ; the 
 prisoner having the same right to introduce witnesses as if on trial. 
 When the charge is for sodomy, rape, arson, burglary, robbery, forgery, or 
 counterfeiting, it is the duty of the justice to associate with himself some 
 neighboring justice of the peace, previous to the examination of the 
 witnesses, who together will have power to bail the prisoner, commit to 
 jail, or discharge him, according to the proof adduced, and the law 
 arising thereon. 
 
 Commitment for further Examination. 
 
 STATE OF ILLINOIS, ) 
 COUNTY, ) s * 
 
 To the Keeper of the Common Jail of the said County : 
 
 Receive into your custody, and safely keep for further examination, 
 C. D., who is charged before me with having stolen, taken and carried 
 away a horse, the property of one A. B. 
 
 Given under the hand and seal of the said justice, this day 
 
 of , 18. 
 
 L. M., 
 Justice of the Peace. 
 
 (1) See ante, p. 163. (2) Her. Stat. 190, Sec. 203.
 
 174 EXAMINATION. [PART 2, 
 
 The same, in another form. 
 STATE OF ILLINOIS, 
 
 COUNTY, 
 
 To any Constable of the said County, and the Keeper of the Common 
 Jail of the said County : 
 
 Whereas, C. D. is now brought before L. M., a justice of the peace 
 of the said county, upon a charge under oath of having passed, as true 
 and genuine, ten counterfeit pieces of the silver coin of the United 
 States, current in this State, called half dollars, with intent to defraud 
 A. B. These are, therefore, in the name of the people of the State of 
 Illinois, to command you, the said constable, to convey the said C. D. 
 to the common jail of said county, and deliver him to the keeper thereof; 
 and you, the said keeper, are hereby required to receive and safely 
 keep the said C. D. in your custody, in said jail, for further examina- 
 tion, and until he shall be discharged by due course of law. 
 
 Given under the hand and seal of the said justice, this day 
 
 of , 18. 
 
 L. M., 
 Justice of the Peace. 
 
 Order to bring up a Prisoner for Examination. 
 
 STATE OF ILLINOIS, ) 
 COUNTY, ]" ss 
 
 To the Keeper of the Common Jail of the said County : 
 
 You are hereby commanded to bring C. D., a prisoner in your cus- 
 tody, to my office, in , in said county, for further examination. 
 
 Given under my hand and seal this day of , 18 . 
 
 L. M., 
 Justice of the Peace. 
 
 Summons for a Witness to give Evidence. 
 STATE OF ILLINOIS, 
 
 COUNTY, 
 
 > ss. 
 
 To any Constable of the said County: 
 Whereas, complaint has been made by A. B., before L. M., a jus-
 
 CHAP. 3.] EXAMINATION. 175 
 
 tice of the peace of said county, that (set forth the offense as in the 
 warrant,) and an information given that G. H. is a material and neces- 
 sary witness to be examined concerning the same : these are, therefore, 
 in the name of the people of the State of Illinois, to require you to 
 summon the said G. H. to appear before the said justice, at his office 
 
 at , in the said county, forthwith, (or on the day of 
 
 instant, at o'clock, in the noon,) to testify the 
 
 truth, according to his knowledge, concerning the premises. 
 
 Given under the hand and seal of the said justice, this day 
 
 of _ _ 18. 
 
 L. M., 
 Justice of the Peace. 
 
 Summons for a Witness, where two Justices are required to be asso- 
 ciated to take the Examination. 
 
 STATE OF ILLINOIS, ) 
 
 COUNTY, j Si 
 
 To any Constable of said County: 
 
 Whereas, complaint has been made by A. B., before L. M., a jus- 
 tice of the peace of said county, that (here set forth the offense as in 
 the warrant,) and information given that G. H., S. R., K. L., and 
 M. N. are material and necessary witnesses to be examined concerning 
 the same : these are, therefore, in the name of the people of the State 
 of Illinois, to command and require you to summon the said G. H., 
 S. R., K. L. and M. N. to appear before the said justice, (the name 
 of the neighboring justice may be inserted,) and some neighboring jus- 
 tice to be by him associated with himself, at the office of the said , 
 
 in , in said county, forthwith, (or on the day of , 
 
 instant, at o'clock, in the noon,) to testify the truth 
 
 according to their knowledge, concerning the premises. 
 
 Given under the hand and seal of the said justice, the day 
 
 of , 18. 
 
 L. M., 
 
 Justice of the Peace. 
 The like, when issued by two Justices. 
 
 STATE OF ILLINOIS, 
 
 COUNTY, 
 
 To any Constable of said County : 
 Whereas, complaint has been made by A. B., before L. M., a justice
 
 176 EXAMINATION. [PART '2. 
 
 of the peace of said county, that {here set forth the offense as in the 
 warrant,} and information given that G. H. is a material witness, and 
 necessary to be examined concerning the same. These are, therefore, 
 to command you, in the name of the people of the State of Illinois, to 
 summon the said G. H. to appear before the said L. M., and 0. P., a 
 neighboring justice associated with him, at the office of the said L. M., 
 
 forthwith, (or on the day of 18 , at o'clock, 
 
 in the noon,^ to testify the truth according to his knowledge, con- 
 cerning the premises. 
 
 Given under the hands and seals of the said justices, the day 
 
 of , 18. 
 
 L. M., 
 
 0. P., 
 
 Justices of the Peace. 
 
 Warrant for a Witness in case of Felony. 
 
 STATE OP ILLINOIS, 
 COUNTY, 
 
 > ss. 
 
 To any Constable of said County : 
 
 Whereas, oath hath been made before L. M., a justice of the peace 
 of the said county, by A. B., that a horse of the said A. B. was lately 
 
 stolen, taken and carried away, at , in the county aforesaid, and 
 
 that he has good cause to believe that G. H. is a material witness to 
 prove by whom the said larceny was committed. These are, therefore, 
 in the name of the people of the State of Illinois, to require you to 
 cause the said G. H. forthwith to come before the said justice, to give 
 such information and evidence as he knoweth concerning said felony. 
 
 Given under the hand and seal of the said justice, this day 
 
 of , 18. 
 
 L. M., 
 Justice of the Peace. 
 
 Warrant against a Witness who has refused to attend on Summons. 
 
 STATE OF ILLINOIS, ) 
 COUNTY, \ Si 
 
 To any Constable of said County: 
 
 These are in the name of the people of the State of Illinois, to com- 
 mand you, upon sight hereof, to take G. H. and bring him before the
 
 CHAP. 3.] EXAMINATION. 177 
 
 subscriber, a justice of the peace of the said county, to answer all such 
 matters and things as, on behalf of the said people, are on oath objected 
 against him, by A. B., for that he, the said G. H., being a material witness 
 to prove a certain felony lately committed, and, having been duly sum- 
 moned to give evidence touching the same, hath neglected to appear in 
 pursuance of said summons. 
 
 Given under the hand and seal of the sai4 justice, this day 
 
 of , 18. 
 
 L. M., 
 Justice of the Peace. 
 
 Commitment of a Witness for refusing to give evidence. 
 
 
 
 STATE OF ILLINOIS, ) 
 
 COUNTY, ) ss 
 
 To any Constable of the said County, and the Keeper of the Common 
 
 Jail of the said County : 
 
 These are in the name of the people of the State of Illinois, to com- 
 mand you, the said constable, forthwith to convey and deliver into the 
 custody of the said keeper, the body of G. H. , this day brought before 
 the subscriber, one of the justices of the peace of said county, for that 
 he, the said G. H. having knowledge that a certain felony and larceny 
 was committed in the county aforesaid, that is to say, that a certain 
 horse, the property of the said A. B., was feloniously stolen, taken and 
 
 carried away by C. D., on the day of last, touching 
 
 which the said G. H. can give material evidence, has refused to be ex- 
 amined on oath respecting the same ; and you, the said keeper, are 
 hereby required to receive the said G. H. into your custody, in the said 
 jail, and him there safely keep, until he shall submit to be examined 
 touching the said felony, or shall be discharged by due course of law. 
 
 Given under the hand and seal of the said justice, this day 
 
 of , 18. 
 
 L. M., 
 Justice of the Peace. 
 
 Oath of Complainant or Witness on the Examination. 
 
 You do swear, that the evidence you shall give between the people 
 of the State of Illinois, and C. D., touching the charge exhibited against 
 him, now in hearing, shall be the truth, the whole truth, and nothing 
 but the truth : so help you God. 
 
 11
 
 178 BAIL AND RECOGNIZANCE. [PART 2, ' 
 
 Form of Affirmation. 
 
 You do solemnly, sincerely, and truly declare and affirm, that the 
 evidence that you shall give between the people of the State of Illinois 
 and C. D., touching the charge exhibited against him, now in hearing, 
 shall be the truth, the whole truth, and nothing but the truth : and this 
 you do under the pains and penalties that may ensue thereon. 
 
 VI. OF PROCEEDINGS SUBSEQUENT TO THE EXAMINATION. 
 
 1. Of the Discharge. 
 
 The examination of a prisoner, when brought before a justice of the 
 peace, charged with having committed a criminal offense, was formerly 
 an ex parte inquiry, and the prisoner was not allowed the benefit of 
 counsel, or the privilege of introducing exculpatory evidence. And if 
 an express charge of felony on oath, against the prisoner, was made, 
 though his guilt appeared doubtful, yet the justice could not wholly 
 discharge him, but must have bailed or committed him. And if a 
 person was brought before a justice, charged with having committed a 
 felony, or upon suspicion thereof, though it appeared to the justice that 
 the prisoner was not guilty, it seems to have been the duty of the justice 
 to commit him to prison, or at least to join with some other in the bail- 
 ment of him, to the end the party may be discharged by a lawful trial. 
 This rule, however, has been modified, and the justice is not required 
 to commit any one unless a prima facie case is made out against him 
 by witnesses entitled to a reasonable degree of credit. 1 
 
 Under our statute, as we have before seen, 2 the justice must dis- 
 charge the prisoner, unless from the facts and circumstances proved, 
 there shall be a probability of the truth of the charge exhibited against 
 him. 8 
 
 2. Of Bail and Recognizance. 
 
 After the examination, should the justice determine that there is a 
 probability of the truth of the charge exhibited against the prisoner, he 
 will admit him to bail in such sum as he shall think the case demands, 
 and take his recognizance with good and sufficient security for his ap- 
 
 (1) 1 Barn. & Ores. 50. (2) Ante p. 163. (3) Rev. Stat. 191, Sec. 203.
 
 ClIAP. 3.] RECOGNIZANCE OF PRISONER. 179 
 
 pearance at and on the first day of the next circuit court, or if the 
 court be then sitting, on some day of the term, to be therein desig- 
 nated, 1 unless the offense charged be for treason, murder, or any other 
 offense punishable with death. - 
 
 All recognizances that have any relation to criminal matters must be 
 taken to the people of the State of Illinois, and signed by the person 
 or persons entering into the same, certified by the justice of the peace 
 taking the same, and delivered to the clerk of the circuit court, on or 
 before the day therein mentioned for the appearance of the accused. 8 
 
 Recognizance of a Prisoner. 
 
 STATE OF ILLINOIS, ) 
 COUNTY, ) Sk 
 
 Be it remembered, that on the day of , 185-, C. D. 
 
 of , in the county aforesaid, and E. F. and Gr. H., of , 
 
 in the county aforesaid, personally came before L. M., a justice of the 
 peace of the said county, (if taken by two justices, then say : " before 
 us, L. M. and R. S., two of the justices of the peace of the said 
 county,") and severally and respectively acknowledged themselves to 
 owe to the people of the State of Illinois, that is to say, the said C. D. 
 the sum of two hundred dollars, and the said E. F. and Gr. H. each 
 the sum of two hundred dollars, to be made and levied of their 
 respective goods and chattels, lands and tenements, to the use of the 
 said people, if default shall be made in the following condition : 
 
 The condition of this recognizance is such that if the said C. D. 
 shall personally appear at the next term of the circuit court, to be held 
 
 in and for the said county of , on the first day thereof, to answer 
 
 to an indictment to be preferred against him for (here set forth the 
 offense briefly,} and to do and receive what shall be by the court then 
 and there enjoined upon him, and shall not depart the court without 
 leave, then this recognizance to be void, otherwise to remain in full 
 force. 
 
 Taken, subscribed, and acknowledged^ C. D. 
 
 the day and year first above written, E. F. 
 
 before L. M., G. H. 
 
 Justice of the Peace. J 
 
 (1) Rev. Stat. 191, Sec. 203. (2) Ibid. (3) Rev. Stat. 191, Sec. 205.
 
 180 RECOGNIZANCE OF PRISONER. [PART 2, 
 
 Form of Recognizance of two Prisoners. 
 STATE OF ILLINOIS, 
 
 COUNTY, f ss< 
 
 Be it remembered, that on the day of 18 , C. D., and J. 
 
 K., of , in the county aforesaid, and E. F. and G. H., of , in 
 
 the county aforesaid, personally came before L. M., a justice (if taken 
 by two justices, then say: "before us, L. M., and R. S., two 
 justices") of the peace of the said county, and severally acknowledged 
 themselves to owe to the people of the State of Illinois, that is to say, 
 the said C. D. and J. K., the sum of three hundred dollars each, 
 and the said E. F. and G. H. the sum of three hundred dollars, to be 
 respectively levied of their several goods and chattels, lands and tene- 
 ments, to the use of the said people, if default shall be made in the 
 condition following : 
 
 The condition of this recognizance is such, that if the above bounden 
 C. D. and J. K. shall personally be and appear at the next term of 
 
 the circuit court, to be held in and for the said county of , on 
 
 the first day thereof, then and there to answer to an indictment to be 
 preferred against them, for (here state the offense briefly,) and to do 
 and receive what shall by the court be then and there enjoined upon 
 them, and shall not depart the court without leave, then this recogniz- 
 ance to be void, or else to remain in full force. 
 
 Taken, subscribed, and acknowledged, 
 the day and year above written, before 
 
 L. M., 
 Justice of the Peace. 
 
 C. D. 
 J. K. 
 E. F. 
 G. H. 
 
 Form of Recognizance by an Infant or Married Woman. 
 
 STATE OF ILLINOIS, ) 
 COUNTY, ) ss ' 
 
 Be it remembered, that on the day of , 185-, E. F. 
 
 and G. H., of the county aforesaid, personally came before L. M., a 
 justice of the peace of the said county, and severally and respectively 
 acknowledged themselves to owe the people of the State of Illinois the 
 sum of dollars, to be levied of their respective goods and chat- 
 tels, lands and tenements, to the use of the said people, if default 
 shall be made in the condition following : 
 
 The condition of this recognizance is such that if I. J., who is an 
 infant, (or "married woman,") shall personally appear, (a* in pre- 
 ceding forms.)
 
 ClIAP. 3.] COMMITMENT. MITTIMUS. 181 
 
 3. Of Commitment. 
 
 If no bail be offered by the person charged, or if such as may be 
 offered be considered by the justice to be insufficient, it will be his 
 duty to commit such person to jail, there to remain until he shall be 
 discharged by due course of law. 
 
 The warrant of commitment in such cases is technically called a 
 mittimus, which is a precept in writing under the hand and seal of the 
 justice, or other competent officer, directed to the jailer or keeper of 
 a prison, commanding him to receive and safely keep, a person charged 
 with an offense therein named, until he shall be delivered by due 
 course of law. 1 Under our statute it is not essential, however, to the 
 validity of a warrant of commitment, that it should be under the seal 
 of the justice ; being under his hand, it will be as valid as if a seal were 
 affixed. 2 
 
 Form of Mittimus by one Justice for an Offence not bailable. 
 STATE OF ILLINOIS, 
 
 COUNTY, 
 
 ss. 
 
 The People of the State of Illinois, to any Constable of the said 
 County, and to the Keeper of the Common Jail of said County : 
 
 Whereas C. D. has been arrested, and this day brought before 
 L. M., one of the justices of the peace of the said county, charged on 
 the oath of A. B. with [having feloniously, wilfully and of malice 
 
 aforethought, killed and murdered Gr. H. at , in the county 
 
 aforesaid, who was on the day of instant, there found 
 
 dead ;] and having inquired into the truth and probability of the 
 charge exhibited against him, by the oath of all witnesses attending ; 
 and upon consideration of the facts and circumstances proved, the said 
 justice did adjudge that the said offense had been committed, and did 
 further adjudge the said C. D. to be guilty of having committed the 
 said felony and murder. We therefore command you the said con- 
 stable forthwith to convey the said C. D. to the common jail of the 
 said county, and him deliver to the keeper thereof ; and you the said 
 keeper are hereby required to receive the said C. D. into your custody 
 in the said jail, and him there safely keep until he shall be discharged 
 
 (1) 2 Bouv. L. D. Title " Mittimus." (2) Rev. Stat. 192, Sec. 210.
 
 182 MITTIMUS. [PART 2, 
 
 by duo course of law. Witness the said L. M. at , in the 
 
 county of , the day of \ 18 . 
 
 L. M., 
 
 Justice of the Peace. 
 
 The names and residences of the principal witnesses must in all 
 cases be written on the warrant of commitment. 1 
 
 Form of Mittimus by one Justice for a bailable case. 
 
 STATE OP ILLINOIS, ) 
 COUNTY, ) 
 
 The People of the State of Illinois to any Constable of the said 
 County, and to the Keeper of the Common Jail of said County : 
 
 Whereas 0. D. has been arrested and this day brought before 
 L. M., one of the justices of the peace of the said county, charged on 
 the oath of A. B. with [suspicion of feloniously stealing, taking, and 
 
 carrying away at , in the county aforesaid, on the day 
 
 of , instant, one sorrel horse of the value of fifty dollars, the 
 
 property of the said A. B., which was then and there stolen,] and 
 having inquired into the truth and probability of the charge exhibited 
 against him by the oath of all witnesses attending, and upon consider- 
 ation of facts and circumstances, the said justice did adjudge that the 
 said offense had been committed, and that there was probable cause to 
 believe the said C. D. to be guilty thereof, and required him to enter 
 into a recognizance with good and sufficient sureties in the sum of 
 two hundred and ffty dollars, for his personal appearance at the next 
 
 term of the circuit court to be held in and for the county of , 
 
 on the first day thereof, with which requisition he has failed to comply. 
 
 We therefore command you the said constable forthwith to carry the 
 said C. D. to the common jail of the said county, and deliver him to 
 the keeper thereof; and you the said keeper are hereby required to 
 receive the said C. D. into your custody in the said jail, and him 
 there safely keep for the want of sureties until he shall be discharged 
 
 by due course of law. Witness the said L. M., at , in the 
 
 county of , the day of , 18 . 
 
 L. M., 
 Justice of the Peace. 
 
 (1) Rev. Stat. 193, Sec. 212.
 
 CHAP. 3.] MITTIMUS. 183 
 
 Form of Indorsement on the foregoing. 
 
 i 
 " Bail ought to be taken in the sum of $ ." 
 
 L. M., Justice of Peace. 
 
 Form of Mittimus by two Justices. 
 
 STATE OF ILLINOIS, "> 
 COUNTY, | SJ 
 
 The People of the State of Illinois, to any Constable of the said 
 County, and to the Keeper of the Common Jail of said County : 
 
 Whereas C. D. has been arrested and brought before L. M., one 
 of the justices of the peace of the said county, charged on the oath of 
 
 A. B. with [having on the day of , 18 , feloniously 
 
 and falsely made, forged, and counterfeited a certain promissory note, 
 purporting to be the promissory note of A. B. to the said C. D., for the 
 payment of fifty dollars,] and the said justice having associated with 
 him, K. L., a neighboring justice of the peace of the said county, and 
 they, having taken the examination of the witnesses, and considered 
 the proofs adduced and the law arising thereon, did adjudge that the 
 said offense had been committed, and that there was probable cause to 
 believe the said C. D. to be guilty of the charge exhibited against him, 
 and required him to enter into a recognizance with good and sufficient 
 
 sureties in the sum of dollars, for his personal appearance at 
 
 the next term of the circuit court to be held in and for the county of 
 
 , on the first day thereof, with which requisition the said C. D. 
 
 has failed to comply. 
 
 We therefore command you the said constable, forthwith to convey 
 the said C. D. to the common jail of the said county, and deliver him 
 to the keeper thereof; and you the said keeper are hereby required 
 to receive the said C. D. into your custody in the said jail, and him 
 there safely keep for the want of sureties until he shall be discharged 
 
 by due course of law. Witness the said L. M. and K. L., at , 
 
 in the county of , the day of , 18 . 
 
 L. M., Justice of Peace. 
 
 K. L., Justice of Peace. 
 
 Form of Indorsement on the above. 
 
 " Bail ought to be taken in the sum of $ ." 
 
 L. M., Justice of Peace.
 
 184 MITTIMUS. [PART 2, 
 
 Form of Mittimus where Prisoner confessed the Offence. 
 
 STATE OF ILLINOIS, > 
 COUNTY, j Sk 
 
 The People of the State of Illinois to any Constable of said County, 
 
 and to the Keeper of the Common Jail of the said County : 
 
 These are to command you the said constable forthwith to convey 
 
 and deliver into the custody of the keeper of the common jail of the 
 
 said county, the body of C. D., this day brought before L. M., one of 
 
 the justices of the peace in and for the said county, and charged upon 
 
 the oath of A. B. with [having on the day of , 18 , 
 
 at , in the county aforesaid, feloniously stolen, taken and 
 
 carried away one gold watch, of the value of fifty dollars, the property 
 of the said A. B.,] which the said C. D. has confessed upon his 
 examination before the said justice of the peace, and having been 
 required by the said justice to enter into a recognizance with sufficient 
 sureties for his appearance the first day of the next term of the circuit 
 court to be held in and for the county of , with which requisi- 
 tion the said C. D. has failed to comply : and you the said keeper are 
 hereby required to receive the said C. D. into your custody in the 
 said jail, and him there safely keep, for the want of sureties, until he 
 shall be discharged by due course of law. Witness the said justice 
 
 at , in the county of , the day of , 18 . 
 
 L. M., 
 Justice of the Peace. 
 
 Form of Indorsement on the above. 
 
 " Bail ought to be taken in the sum of $ ." 
 
 L. M., 
 Justice of the Peace. 
 
 Mittimus by a Justice for an Offence in his presence. 
 
 STATE OF ILLINOIS, 
 COUNTY 
 
 ns, ) 
 
 , i ss - 
 
 The People of the State of Illinois to any Constable of said County, 
 
 and to the Keeper of the Common Jail of the said County: 
 These are to command you the said constable forthwith to convey 
 and deliver into the custody of the keeper of the common jail of the
 
 ClIAP. 3.] RECOGNIZANCE OF WITNESSES. 185 
 
 said county, the body of C. D., charged by L. M., one of the justices 
 of the peace of the said county, upon the view of the said justice, with 
 
 having on this present day at , in the said county, with an 
 
 abandoned heart, and without provocation, feloniously, with a deadly 
 weapon, to wit, a hatchet, made an assault upon A. B., with intent to 
 inflict upon the person of the said A. B., a bodily injury, he, the said 
 C. D. having been required to enter into a recognizance with sufficient 
 sureties to be and appear t at the next term of the circuit court to be held 
 
 in and for the county of , on the first day thereof, and having 
 
 neglected to comply with such requisition ; and you the said keeper are 
 hereby required to receive the said C. D. into your custody in the said 
 jail, and him there safely keep for want of sureties until he shall be 
 
 discharged by due course of law. Witness the said L. M. at , 
 
 in the county aforesaid, the day of , 18 . 
 
 L. M., 
 Justice of the Peace. 
 
 Form of Indorsement on the above. 
 
 " Bail ought to be taken in the sum of $ ." 
 
 L. M., 
 Justice of the Peace. 
 
 4. Of Recognizance of Witnesses. 
 
 Rev. Stat. 191, Sec. 204. " It shall be the duty of the judge or 
 justice of the peace who shall commit any offender to jail as aforesaid, 
 or admit him to bail, to bind by recognizance, the prosecutor, and all 
 such as do declare anything material to prove the offence charged, 
 to appear before the next circuit court on the first day thereof, or if 
 the said court shall be then sitting, on some day to be therein desig- 
 nated, (and in all cases at the same time and place as the person or 
 persons accused by said witnesses shall be bound to appear,) to give 
 evidence touching the offence so charged, and not depart the court 
 without leave. If any person, upon being required to enter into 
 recognizance as aforesaid, shall refuse, it shall be lawful for such judge 
 or justice of the peace, to commit him or her to jail, there to remain 
 until he or she shall enter into such recognizance, or be otherwise 
 discharged by due course of law."
 
 186 RECOGNIZANCE OF WITNESSES. [PART 2, 
 
 Form of Recognizance of a Witness. 
 
 STATE OF ILLINOIS, ) 
 COUNTY, \ 
 
 Be it remembered that on the day of , 18 , A. B. 
 
 of , in the county aforesaid, comes before L. M., a justice of 
 
 the peace of the said county, and acknowledges himself to owe the 
 
 people of the State of Illinois the sum of : dollars, to be made 
 
 and levied of his goods and chattels, lands and tenements, to the use 
 of the said people, if default shall be made in the condition following : 
 
 The condition of this recognizance is such, that if the said A. 
 B. shall personally be and appear at the next term of the circuit 
 
 court to be held in and for the said county of , on the first day 
 
 thereof, to give evidence on behalf of the said people against C. D. for 
 [feloniously stealing, taking and carrying away a silver watch, the 
 property of A. B.,] as well to the grand jury as to the petit jury, and 
 do not depart the court without leave, then this recognizance to be 
 void, otherwise to remain in full force and effect. 
 
 Taken, subscribed and acknow- ] A. B. 
 
 lodged the day and year first above 
 written, before L. M., 
 
 Justice of the Peace. 
 
 Form of Recognizance by several Witnesses. 
 
 STATE OF ILLINOIS, ) 
 COUNTY, J si 
 
 Be it* remembered, that on the day of , 18 , A. B., 
 
 E. F. and Gr. H., all in the county aforesaid, came before L. M., a 
 justice of the peace of said county, and each of them separately 
 acknowledges himself severally and individually to owe to the people 
 
 of the State of Illinois the sum of dollars, to be made and 
 
 levied of his goods and chattels, lands and tenements, to the use of the 
 said people, if default shall be made in the condition following : 
 
 The condition of this recognizance is such, that if the said A. B., 
 E. F. and G. H. shall severally appear at the next term of the circuit 
 court, on the first day thereof, to be held in and for the said county of 
 
 , to give evidence in behalf of the said people, against C. D., for 
 
 (here state the offense briefly,) as well to the grand jury as to the petit
 
 ClIAP. 3.] RECOGNIZANCE OP WITNESSES. 187 
 
 jury, and do not depart the court without leave, then this recognizance 
 to be void, otherwise to remain in full force. 
 
 Taken, subscribed and acknowledged, ^ A. B. 
 
 the day and year first above written, be- L E. F. 
 
 fore L. M., J. P. j G. H. 
 
 For a Recognizance of a Witness with Sureties. 
 STATE OF ILLINOIS, 
 
 COUNTY, 
 
 ss. 
 
 Be it remembered, that on the r day of , 18 , A. B., of 
 
 -, in the county aforesaid, and E. F. and Gr. H. of the same place, 
 
 personally came before L. M., a justice of the peace of the said county, 
 and severally and respectively acknowledged themselves to owe to the 
 people of the State of Illinois, that is to say, the said A. B., the sum 
 
 of dollars, and the said E. F. and Gr. H., each the sum of 
 
 dollars, to be levied of their respective goods and chattels, lands and 
 tenements, to the use of the said people, if default shall be made in the 
 condition following : 
 
 The condition of this recognizance is such, that if the said A. B. 
 shall personally appear on the first day of the next term of the circuit 
 court, (conclude as in the preceding forms, page 186, by varying to 
 suit the case.) 
 
 Form of Recognizance by Sureties, by an Infant or Married Woman. 
 
 STATE OF ILLINOIS, ) 
 COUNTY, C 
 
 Be it remembered, that on the day of , 18 , E. F. 
 
 and Gr. H., of the county aforesaid, personally came before L. M., one 
 of the justices of the peace of the said county, and severally and re- 
 spectively acknowledged themselves to owe to the people of the State 
 
 of Illinois, each the sum of dollars, to be levied of their goods 
 
 and chattels, lands and tenements, to the use of the said people, if de- 
 fault shall be made in the condition following : 
 
 The condition of this recognizance is such, that if I. J., who is an 
 infant, (or " married woman,") shall personally appear on the first day 
 of the next circuit court, {conclude as in the preceding forms, page 
 186, by varying to suit the case.)
 
 188 COMMITMENT OF WITNESSES. [PART 2, 
 
 Commitment of a Witness for refusing to enter into a Recognizance. 
 
 STATE OF ILLINOIS, ) 
 COUNTY, j K 
 
 The People of the State of Illinois to any Constable of the said 
 County, and to the Keeper of the Common Jail of said County: 
 
 We command you, the said constable, forthwith to convey and deliver 
 into the custody of the said keeper, the body of G. H., it appearing by 
 the examination of the said G. H., taken on oath before L. M., one of 
 the justices of the peace of the said county, that he is a material witness 
 against C. D., on a charge made on oath against the said C. D., for 
 (here set forth the offense truly,) it having been adjudged by the said 
 justice, that the said offense has been committed, and that there is pro- 
 bable cause to believe the said C. D. to be guilty thereof : and the said 
 G. H. having been required to enter into a recognizance in the sum of 
 
 dollars, for his personal appearance at the next term of the 
 
 circuit court, to be held in and for the county of , on the first 
 
 day thereof, to give evidence, in behalf of the pepple, against the said 
 C. D. for the offense aforesaid, with which requisition the said G. H. has 
 refused to comply; and you, the said keeper of the said jail, are hereby 
 required to receive the said G. H. into your custody in the said jail, and 
 him there safely keep, until he shall enter such recognizance, or be other- 
 wise discharged according to law. 
 
 Witness the said justice at , in the county of , the 
 
 day of , 18. 
 
 L. M., 
 Justice of the Peace. 
 
 Form of Commitment of Witness for want of Sureties. 
 STATE OF ILLINOIS, 
 
 COUNTY 
 
 jINOIS> I ss 
 
 TY, j 
 
 The People of the State of Illinois to any Constable of the said 
 
 County, and to the Keeper of the Common Jail of said County : 
 
 We command you, the said constable, forthwith to convey and deliver 
 
 into the custody of the keeper of the common jail of the said county, 
 
 thj body of G. H., it appearing by the examination of the said G. H., 
 
 taken on oath before L. M., one of the justices of the peace of the said 
 
 county, that he is a material witness against C. D., on a charge made 
 
 on oath against him, for (Jiere set forth the offense briefly,) it having
 
 ClIAP. 3.} COMMITMENT OF ACCOMPLICE. 189 
 
 been adjudged by the said justice that the said offense has been com- 
 mitted, and that there is probable cause to believe the said C. D. to be 
 guilty thereof, and the said justice being satisfied by due proof, (or " by 
 admissions of the said G.-H.,") that there is good reason to believe that 
 the said G. H. would not fulfil the condition of a recognizance, unless 
 sureties be required, and the said G. H., being required by the said 
 justice to enter into a recognizance, with one good and sufficient surety, 
 in the sum of - dollars, for his personal appearance at the next 
 term of the circuit court, to be held in and for the said county of - , 
 on the first day thereof, to give evidence on behalf the said people 
 against the said C. D., for the offense aforesaid, with which requisition 
 the said G. H. has failed to comply ; and you, the said keeper, are 
 hereby required to receive the said G. H. into your custody, in the 
 said jail, and him there safely keep, until he shall enter into such recog- 
 nizance, with such surety as aforesaid, or be otherwise discharged by 
 due course of law. 
 
 Witness the said L. M., at - , in the county of - , the - 
 day of - , 18. 
 
 L. M., 
 Justice of the Peace. 
 
 Form of Commitment of an Accomplice to give Evidence. 
 STATE OF ILLINOIS, 
 
 COUNTY, s ' 
 
 The People of the State of Illinois to any Constable of the said 
 County, and to the Keeper of the Common Jail of said County : 
 We command you, the said constable, forthwith to convey and deliver 
 into the custody of the said keeper, the body of G. H., charged before 
 L. M., one of the justices of the peace of the said county, on his own 
 confession, in being an accomplice with C. D., in [feloniously stealing, 
 taking, and driving away one yoke of oxen, of the value of forty dol- 
 lars, the property of A. B.,] he, the said G. H., being by the said 
 justice admitted as a witness against the said C. D., on the part and 
 behalf of the people, and on being required so to do, has not offered 
 security for his appearance at the next term of the circuit court, to be 
 held in and for the said county of - , on the first clay thereof; and 
 you, the said keeper, are hereby required to receive the said G. H. into 
 your custody, in the said jail, and him there safely keep for the want of 
 sureties, until he shall be discharged by due course of law.
 
 190 BAIL AFTER COMMITMENT. [PART 2, 
 
 "Witness the said L. M. , at , in the county of , the 
 
 day of , 18. 
 
 L. M., 
 Justice of the Peace. 
 
 5. Of Bail after Commitment. 
 
 When any person shall be committed to jail on a criminal charge, 
 for want of good and sufficient bail, except for treason, murder, or 
 other offense punishable with death, or for not entering into recogniz- 
 ance to appear and testify, any judge or any two justices of the peace 
 may take such bail or recognizance in vacation, and may discharge 
 such prisoner from his or her imprisonment. 1 
 
 Form of Recognizance of a Prisoner after Commitment. 
 
 STATE OF ILLINOIS, ") 
 COUNTY, f SJ 
 
 Be it remembered, that on the day of , 185-, C. D. 
 
 of , in the county aforesaid, and E. F. and G. H. of the same 
 
 place, personally came before L. M. and J. K., two of the justices of 
 the peace of said county, and severally and respectively acknowledge 
 themselves to owe to the people of the State of Illinois, that is to say, 
 
 the said C. D. the sum of dollars, and the said E. F. and G. 
 
 H. each, the sum of dollars, separately, to be made and levied of 
 
 their respective goods and chattels, lands and tenements, to the use of 
 the said people, if default shall be made in the condition following : 
 
 The condition of this recognizance is such, that if the said C. D., 
 who has been committed to the common jail of the said county, for 
 want of sureties, shall personally be and appear at the next term of 
 
 the circuit court, to be held in and for the said county of , on 
 
 the first day thereof, to answer to an indictment to be preferred against 
 him for (here state the offence briefly,*) and to do and receive what 
 shall, by the court, be then and there enjoined upon him, and shall not 
 depart the court without leave, then this recognizance to be void, 
 otherwise to remain in full force. 
 
 Taken, subscribed and acknowledged 1 C. D. 
 
 the day and year first above written, | E. F. 
 
 before L. M., J. P. j G. H. 
 
 J. K., J. P. 
 
 (1) Rev. Stat. 191, Sec. 206.
 
 ClIAP. 3.] BAIL AFTER COMMITMENT. 191 
 
 Liberate or Warrant to discharge a Prisoner, upon his finding 
 Sureties after Commitment. 
 
 STATE OP ILLINOIS, \ 
 
 COUNTY, ) ss ' 
 
 The People of the State of Illinois, to the Keeper of the Common 
 
 Jail of the said County : 
 
 These are to require you to discharge from imprisonment C. D., now 
 in your custody, on the warrant of commitment under the hand of E. 
 
 F. , one of the justices of the peace of the said county, dated the * 
 
 day of , 185-, for [having feloniously stolen, taken and carried 
 
 away one gold watch, the property of A. 13.,] if detained for no other 
 cause, he having entered into a recognizance before L. M. and J. K., 
 two of the justices of the peace of the said county. Witness the said 
 
 L. M. and J. K., at , in the said county, the day of 
 
 , 185-. L. M., J. P. 
 
 J. K., J. P. 
 
 Another form for the above. 
 
 STATE or ILLINOIS, 
 COUNTY 
 
 :s,) 
 ' }- ss. 
 
 The People of the State of Illinois to the Keeper of the Common 
 
 Jail of the said County : 
 
 Discharge from imprisonment C. D., if detained in your custody for 
 no other cause than what is mentioned in the warrant for his commit- 
 ment under the hand of E. F., justice, (or "under the hands of 0. P. 
 and R. S., two of the justices ") of the peace of the said county, dated 
 
 the day of , 185-. Witness the said L. M., and J. K., 
 
 two of the justices of the peace of the said county, the d ay of 
 
 , 185-. L. M., /. P. 
 
 J. K., /. P. 
 
 Form of Recognizance of a Witness after Commitment. 
 
 STATE OF ILLINOIS, ") 
 COUNTY, j 
 
 Be it remembered, that on the day of , 185-, E. F., 
 
 of , in the county aforesaid, comes before L. M. and J. K., 
 
 two of the justices of the peace of the said county, and acknowledges 
 
 himself to owe to the people of the State of Illinois, the sum of 
 
 dollars, to be made and levied of his goods and chattels, lands and 
 tenements, to the use of the said people, if default shall be made in 
 the condition following :
 
 192 BAIL AFTER COMMITMENT. [PART 2, 
 
 Whereas, on the day of , 185-, C. D. was brought 
 
 before L. M., one of the justices of the peace of the said county, 
 charged on the oath of A. B. with [having feloniously stolen, taken 
 and led away, one sorrel horse, of the value of sixty dollars, the 
 property of the said A. B.,] and upon the examination of the said C. 
 D. before the said justice on that day, the said E. F. was produced 
 and sworn, whose evidence the said justice deemed material to prove 
 the offense so charged, and required him to enter into a recognizance 
 to appear at the next term of the circuit court, to be held in and for 
 the said county, on the first day thereof, and not depart without leave, 
 which he refused to do, and was therefore committed to the common 
 jail of the said county. Now, therefore, the condition of this recog- 
 nizance is such that if the above bounden E. F. shall personally be and 
 appear at the next term of the circuit court, to be held in and for the 
 
 said county of , on the first day thereof, to give evidence in 
 
 behalf of the people, against the said C. D., touching the said offense 
 so charged, as well to the grand jury as to the petit jury, and do not 
 depart the court without leave, then this recognizance to be void, oth- 
 erwise to remain in full force. 
 
 Taken, subscribed and acknowledged, "1 
 the day and year first above written, 
 before L. M., J. P. 
 
 J. K., J. P.
 
 CHAP. 4.] STATEMENT OF OFFENSES. 193 
 
 CHAPTER IV. 
 
 FORMS OF STATEMENTS OF OFFENSES IN WARRANTS. 
 
 I. OFFENSES AGAINST THE PERSONS OF INDIVIDUALS. 
 II. CRIMES AND OFFENSES AGAINST HABITATIONS AND OTHER 
 BUILDINGS. 
 
 III. CRIMES AND OFFENSES RELATIVE TO PROPERTY. 
 
 IV. FORGERY AND COUNTERFEITING. 
 
 V. CRIMES AND OFFENSES AGAINST PUBLIC JUSTICE. 
 VI. OFFENSES AGAINST THE PUBLIC PEACE AND TRANQUILITY. 
 VII. OFFENSES AGAINST THE PUBLIC MORALITY, HEALTH, AND 
 
 POLICE. 
 VIII. OFFENSES COMMITTED BY CHEATS, SWINDLERS, AND OTHER 
 
 FRAUDULENT PERSONS. 
 IX. FRAUDULENT AND MALICIOUS MISCHIEF. 
 
 I. OFFENSES AGAINST THE PERSONS OF INDIVIDUALS. 
 
 For murder committed by shooting with a gun. Grim. Code, Sec. 22. 
 
 (Commence as before, page 168 ;) that, on the day of 
 
 -, instant, (or " last,") at , in the county aforesaid, C. D. 
 
 did feloniously, willfully, and of his malice aforethought, fire a gun, 
 loaded with powder and ball, at G. H., and gave to him one mortal 
 wound, of which he instantly died. (Conclude as before, page 168.) 
 
 For murder, by stabbing. Crim. Code, Sec. 22. 
 
 (Commence as before, page 168 ;) that, on the day of 
 
 -, instant, (or "last,") at , in the county aforesaid, C. D. 
 
 did feloniously, willfully, and of his malice aforethought, with a knife, 
 12
 
 194 STATEMENT OF OFFEXSES. [PART 2, 
 
 stab one G. H., and give him several mortal wounds, of which said 
 mortal wounds, the said G. H. languished a short time, and then died. 
 (Conclude as before, page 168.) 
 
 For murder, by striking. Grim. Code, Sec. 22. 
 
 (Commence as before, page 168 ;) that, on the day of , 
 
 &c., at , in the county aforesaid, C. D. did feloniously, willfully, 
 
 and of his malice aforethought, with an iron poker, strike one G. H., 
 and give him one mortal wound, of which said mortal wound, the said 
 G. H. languished a short tune, and then died. (Conclude as before, 
 page 168.) 
 
 For suspicion of murder. Crim. Code, Sec. 22. 
 
 (Commence as before, page 168 ;) that, on this present day, at 
 -, in the county aforesaid, one G. H. was feloniously, willfully, 
 
 and of malice aforethought, killed and murdered, and that he the 
 said A. B., hath just cause to suspect, and doth suspect, that C. D. 
 did commit the said felony and murder. (Conclude as before, page 
 168.) 
 
 The like in another form. 
 
 (Commence as before, page 168 ;) that, on the day of 
 
 instant, at , in the county aforesaid, one G. H. was 
 
 found dead, and that he the said A. B. hath just cause to suspect, and 
 doth suspect that the said G. H. was on that day, feloniously, willfully, 
 and of malice aforethought, killed and murdered, and that C. D. did 
 commit the said felony and murder. (Conclude as before, page 
 168.) 
 
 For murder by poison. 
 
 (Commence as before, page 168 ;) that, on, &c., at, &c., C. D. 
 did feloniously, wickedly, and of his malice aforethought, administer, 
 (or " cause and procure to be administered,") unto G. H. a large 
 quantity of deadly poison, called arsenic, with intent to kill and 
 murder the said G. H., which poison was actually taken by the said 
 G. H., by means whereof the said G. H. became sick, and greatly 
 distempered in his body, of which sickness, until the day of
 
 CHAP. 4.] STATEMENT OF OFFENSES. 195 
 
 , at the place in the county aforesaid, he did languish, and, 
 
 languishing did live, and afterwards, on the day and at the place 
 aforesaid, he the said G. H., of the poison and sickness and distemper 
 occasioned thereby, died. (Conclude as before, page 168.) 
 
 For suspicion of murder by poison. 
 
 (Commence as before, page 168 ;) that, on, &c., at, &c., one 
 G. H. died, and that he, the said A. B., hath just cause to suspect, 
 
 and doth suspect, that, on the said day of , at , 
 
 in the county aforesaid, C. D. did feloniously, willfully, and of his 
 malice aforethought, administer to the said G. H., a certain deadly 
 poison, called arsenic, by reason whereof the said Gr. H. languished a 
 short time, and then died. (Conclude as before, page 168.) 
 
 Form against accessory before the fact, as principal. 
 
 (Commence as before, page 168 ;) that, on, &c., at, &c., L. M., 
 did feloniously, willfully, and of his malice aforethought, assault one 
 Gr. H., and feloniously, willfully, and of his malice aforethought, with 
 his hands and feet, did strike, beat, kick, and give to him thesaid 
 G. H., several mortal wounds, of which said mortal wounds, the said 
 G. H. instantly died: and that C. D. was present, aiding, abetting 
 and assisting the said L. M. in the said murder. (Conclude as before, 
 page 168.) 
 
 For suspicion of murder against accessory before the fact. 
 
 (Commence as before, page 168;) that, on, &c., at, &c., one 
 G. H. was murdered, and that he the said A. B., hath just cause to 
 suspect, and doth suspect, that L. M. did commit the said murder : 
 and that C. D. was then and there present, and did aid, abet, and 
 assist the said L. M. in the said murder. (Conclude as before, page 
 168.) 
 
 Against an accessory after the fact of murder. 
 
 (Commence as before, page 168;) that, on, &c., at, &c., L. M. 
 did feloniously, willfully, and of his malice aforethought, make an 
 assault upon G. H., and the said L. M. with both hands, about the 
 neck and throat of him the said G. H., then and there feloniously,
 
 196 STATEMENT OF OFFENSES. [PART 2, 
 
 willfully, and of his malice aforethought, did choke and strangle, of 
 which said choking and strangling, he the said G. H. instantly died : 
 and that C. D. well knowing the said L. M'. to have done and com- 
 mitted the said felony and murder, afterwards, on the day of 
 
 , in the county aforesaid, did conceal the said felony and 
 
 murder from the magistrates of said county. (Conclude as before, 
 page 168.) 
 
 Against an accessory after the fact of murder, second form. 
 
 (Commence as before, page 168;) that on, &c., at &c., L. M. 
 did feloniously, willfully, and of his malice aforethought, cast and 
 throw a stone in and upon G. H., and did strike and wound the said 
 G. H., giving the said G. H., by the casting and thro wing of the stone, 
 a mortal wound, of which mortal wound the said G. H. instantly died : 
 that on, &c., at, &c., the said L. M. was charged with the said felony 
 
 and murder, before , one of the justices of the said county, and 
 
 a warrant issued for the arrest of the said L. M. : and that C. D. having 
 full knowledge that the said L. M. had done and committed the said felony 
 and murder, afterwards, to wit, on, &c., at, &c., in the county afore- 
 said, him, the said L. M., feloniously did harbor and protect, with in- 
 tent that the said L. M. might avoid an arrest. (Conclude as before, 
 page 168.) 
 
 For manslaughter. Crim. Code, Sec. 25. 
 
 (Commence as before, page 168 ;) that on this present day, at , 
 
 in the county aforesaid, C. D. did feloniously, and willfully, with a 
 certain stick, strike one G. H., and give him one mortal wound, of 
 which mortal wound the said G. H. languished a short time and then 
 died. (Conclude as before, page 168.) 
 
 For suspicion of manslaughter. 
 
 (Commence as before, page 168;) that on, &c., at, &c., in the 
 county aforesaid, one G. H. was feloniously and willfully killed, and that 
 the said A. B. hath just cause to suspect, and doth suspect, that C. D. 
 did commit the said felony. (Conclude as before, page 168.) 
 
 For a mother concealing death of bastard child. Crim. Code, Sec. 41. 
 
 (Commence as before, page 168;) that C. D., a single woman, on 
 the day of , 18 , at , in the county aforesaid, being
 
 ClIAP. 4.] STATEMENT OF OFFENSES. 197 
 
 pregnant with a male child, was then and there delivered of the said 
 child alive, which said male child then and there instantly died, and 
 which said male child, by the laws of this State, was a bastard : and 
 that the said C. D. did then and there endeavor privatelyto conceal 
 the death of said child, so that it might not come to light whether it 
 was murdered or not, contrary to the form of the statute in such case 
 made and provided. (Conclude as before, page 168.) 
 
 For dueling. Grim. Code, Sec. 43. 
 
 (Commence as before, page 168 ;) that on, &c., at, &c., C. D. did 
 willfully and maliciously engage in and fight a duel with one L. M., 
 with deadly instruments, the probable consequence of fighting with which 
 might be the death of either of them, the said C. D. and L. M., in 
 which duel, fought as aforesaid, the said C. D. did kill the said L. M.. 
 contrary to the form of the statute in such case made and provided. 
 (Conclude as before, page 168.) 
 
 Another form for dueling. 
 
 (Commence as before, page 168;) thaton, &c., at, &c., C. D. andL. M. 
 did, by agreement, engage in and fight a duel with each other, with deadly 
 weapons, the probable consequence of fighting with which might have 
 been the death of either party, in which duel, fought as aforesaid, the 
 said C. D. did inflict a wound in and upon the said L. M., whereof the 
 
 said L. M. died within one year thereafter, to wit, on the day of 
 
 , 18 , contrary to the form of the statute in such case made and 
 
 provided. (Conclude as before, page 168.) 
 
 For challenging a person to fight a duel. Crini. Code, Sec. 44. 
 
 (Commence as before, page 168 ;) that C. D., on the day of 
 
 -, 18 , in the county aforesaid, unlawfully did challenge G. H. to 
 
 fight a duel with and against him, the said C. D., with deadly weapons, 
 the probable issue of which might result in the death of either of said 
 parties, contrary to the form of the statute in such case made and pro- 
 vided. (Conclude as before, page 168.) 
 
 For accepting a challenge to fight a duel. Crim. Code, Sec. 44. 
 
 (Commence as before, page 168 ;) that on, &c., at, &c., C. D. did 
 accept a challenge to fight a duel with one G. H., and did then and
 
 198 STATEMENT OF OFFENSES. [PART 2, 
 
 there consent to fight therein with him, the said G. H., with deadly 
 weapons, the probable issue of which might result in the death of either 
 of said parties, contrary to the form of the statute in such case made 
 and provided. (Conclude as before, page 168.) 
 
 For delivering a challenge. Grim. Code, Sec. 45. 
 
 (Commence as before, page 168;) that on, &c., at, &c., C. D. did, 
 willfully and knowingly, deliver a written challenge, from and on the 
 part and by the desire of G. H., to L. M., to fight a duel with said 
 L. M., with deadly instruments, the probable consequence of fighting 
 with which might be the death of either party, contrary to the form of 
 the statute in such case made and provided. (Conclude as before, 
 page 168.) 
 
 For being present at the fighting of a duel, as a second. Grim. 
 Code, Sec. 45. 
 
 (Commence as before, page 168 ;) that on, &c., at, &c., L. M. did, 
 by agreement, fight a duel with G. H., with deadly weapons, the pro- 
 bable consequence of fighting with which might have been the death of 
 either of the said parties : and that C. D. was present at the fighting 
 .of the said duel, as the second of the said L. M., contrary to the form 
 of the statute in such case made and provided. (Conclude as before, 
 page 168.) 
 
 For an attempt to murder by poisoning. Grim. Code, Sec. 46. 
 
 (Commence as before, page 168 ;) that on, &c., at, &c., C. D., in- 
 tending to cause the death of G. H., did, willfully and maliciously, 
 administer to him, the said G. H., a certain poison, called arsenic, 
 which was actually taken by the said G. H., but whereof death did not 
 ensue. (Conclude as before, page 168.) 
 
 For administering poison to procure the miscarriage of a worn an 
 with child. Grim. Code, Sec. 46. 
 
 (Commence as before, page 168 ;) that on, &c., at, &c., C. D. did 
 administer to G. H., a woman then being with child, a large quantity 
 of a certain noxious and destructive substance, called savin, with intent
 
 CHAP. 4.] STATEMENT OF OFFENSES. 199 
 
 thereby to procure the miscarriage and premature birth of the said child, 
 with which the said G. H. was then and there pregnant, contrary to the 
 form of the statute in such case made and provided. (Conclude as 
 before, page 168.) 
 
 For mayhem. Grim. Code, Sec. 47. 
 
 (Commence as before, page 168;) that on, &c., at, &c., C. D. did 
 unlawfully, with a certain ax, strike and cut the right hand of the said 
 A. B., and thereby render the same useless. (Conclude as before, page 
 168. 
 
 Another form for mayhem. 
 
 (Commence as before, page 168 ;) that on, &c., at, &c., C. D., 
 voluntarily, and of purpose, with a certain dirk-knife, unlawfully put 
 out the left eye of the said A. B. (Conclude as before, page 168.) 
 
 For a rape. Crim. Code, Sec. 48. 
 
 (Commence as before, page 168;) that on, &c., at, &c., C. D., in 
 and upon the said A. B., violently and feloniously did make an assault, 
 and her, the said A. B., against her will, then and there forcibly did 
 ravish and carnally know. (Conclude as before, page 168.) 
 
 For having carnal knowledge of a female child under ten years of 
 age. Crim. Code, Sec. 48. 
 
 (Commence as before, page 168 ;) that on, &c., at, &c., C. D., a 
 male person, above the age of fourteen years, in and upon one G. H., 
 a female child, under the age of ten years, feloniously did make an as- 
 sault, and her, the said G. H., then and there, wickedly, unlaw- 
 fully, and feloniously did carnally know. (Conclude as before, page 
 168.) 
 
 For sodomy. Crim. Code, Sec. 50. 
 
 (Commence as before, page 168 ;) that on, &c., at, &c., C. D., in 
 and upon one G. H., feloniously did make an assault, and then and there 
 feloniously, wickedly, and against the order of nature, had a venereal 
 affair with the said G. H. : and then and there feloniously, wickedly,
 
 200 STATEMENT OF OFFENSES. [PART 2, 
 
 and against the order of nature, with the said Gr. H., did commit and 
 perpetrate the detestable and abominable crime of buggery. (Conclude 
 as before, page 168.) 
 
 Another form for sodomy. 
 
 (Commence as before, page 168;) that on, &e., at, &c., C. D., 
 with a certain cow then and there being, feloniously, wickedly, and 
 against the order of nature, had a venereal affair, and then and there 
 feloniously, wickedly, and against the order of nature, carnally knew 
 the said cow, and then and there feloniously, wickedly, and against the 
 order of nature, with the said cow, did commit and perpetrate the de- 
 testable and abominable crime of buggery. (Conclude as before, page 
 168.) 
 
 For an assault with intent to commit murder. Grim. Code, Sec. 52. 
 
 (Commence as before, page 168;) that on, &c., at, &c., C. D. in 
 and upon the said A. B., did unlawfully, willfully, and feloniously 
 make an assault with a drawn sword, with intent him, the said A. B., 
 feloniously, willfully, and of his malice aforethought, to kill and mur- 
 der. (Conclude as before, page 168.) 
 
 For an assault with intent to commit rape. Crim. Code, Sec. 52. 
 
 (Commence as before, page 168;) that on, &c., at, &c., C. D., in 
 and upon A. B., unlawfully did make an assault, with intent her, the 
 said A. B., against her will, forcibly to ravish and carnally know. 
 (Conclude as before, page 168.) 
 
 For an assault with intent to commit robbery. Crim. Code, Sec. 52. 
 
 (Commence as before, page 168 ;) that on, &c., at, &c., C. D., in 
 and upon the said A. B., did feloniously and violently make an assault, 
 with intent the moneys of the said A. B., from the person and against 
 the will of the said A. B., forcibly to steal, and take and cany away. 
 (Conclude as before, page 168.) 
 
 For an assault with a deadly weapon, with intent to inflict a bodily 
 injury. Crim. Code, Sec. 52. 
 
 (Commence as before, page 168;) that on, &c., at, &c., C. D., 
 with an abandoned heart and without provocation, did feloniously, with
 
 ClIAP. 4.] STATEMENT OP OFFENSES. 201 
 
 a deadly weapon, to wit, an ax, make an assault on the said, B. A. 
 with an intent upon the person of the said A. B., a bodily injury. 
 (Conclude as before, page 168.) 
 
 For false imprisonment. Crim. Code, Sec. 54. 
 
 (Commence as before, page 168 ;) that on, &c., at, &c., C. D. un- 
 lawfully and forcibly assaulted the said A. B., and him, the said A. B., 
 without sufficient legal authority, and against his will, did detain for a 
 long time, to wit, for the space of three days, then next following. 
 (Conclude as before, page 168.) 
 
 For kidnapping. Crim. Code, Sec. 56. 
 
 (Commence as before, page 168 ;) that on, &c., at, &c., C. D. did 
 feloniously and forcibly steal and take E. F., and carry him to the State 
 of Louisiana, contrary to the form of the statute in such case made and 
 provided, without having established a claim to the said E. F., accord- 
 ing to the law of the United States. (Conclude as before, page 168.) 
 
 Another form for kidnapping. 
 
 (Commence as before, page 168;) that on, &c., at, &c., C. D. did 
 feloniously, and without lawful authority, forcibly arrest E. F., with a 
 design to take him out of this State, without having established a claim 
 according to the laws of the United States, contrary to the form of the 
 statute in such case made and provided. (Conclude as before, page 
 168.) 
 
 For kidnapping, free negroes. Crim. Code, Sec. 57. 
 
 (Commence as before, page 168 ;) that on, &c., at, &c., C. D., by 
 false promises and misrepresentations, did persuade E. F., a negro, not 
 being a slave, to go to the State of Kentucky, for the purpose and with 
 the intent to sell such negro into slavery, contrary to the form of the 
 statute in such case made and provided. (Conclude as before, page 
 168.)
 
 202 STATEMENT OF OFFENSES. [PART 2, 
 
 II. CRIMES AND OFFENCES AGAINST HABITATIONS AND OTHER BUILDINGS. 
 
 For arson. Grim. Code, Sec. 58. 
 
 (Commence as before, page 168;) that on, &c., at, &c., C. D. did 
 willfully and maliciously set fire to and burn the dwelling house of said 
 
 A. B., situated in , in the county aforesaid. (Conclude as before, 
 
 page 168.) 
 
 Another form for arson. 
 
 (Commence as before, page 168;) that on, &c., at, &c., C. D. did 
 willfully and maliciously set fire to and burn the school house, situate 
 in township number thirty-three north, in range three east of the third 
 principal meridian, in the county aforesaid, contrary to the form of the 
 statute in such case made and provided. (Conclude as before, page 
 168.) 
 
 For suspicion of arson. 
 
 (Commence as before, page 168 ;) that on, &c., at, &c., the barn 
 of the said A. B., situate in the county aforesaid, was willfully and 
 maliciously set fire to, and that he, the said A. B., has just cause to 
 suspect and does suspect, that C. D. did, willfully and maliciously, set 
 fire to and burn the said barn. (Conclude as before, page 168.) 
 
 For setting jire to a storehouse, fyc., with intent to burn the same. 
 Grim. Code, Sec. 59. 
 
 (Commence as before, page 168;) that on, &c., at, &c., C. D. did 
 willfully and maliciously set fire to the storehouse of A. B., situate in 
 
 , in the county aforesaid, with intent to burn the same, but which 
 
 storehouse was not thereby burned : contrary to the form of the statute 
 in such case made and provided. (Conclude as before, page 168.) 
 
 For burglary and larceny. 
 
 (Commence as before, page 168 ;) that in the night of the 
 
 day of , instant, C. D. did, willfully and maliciously , and forcibly 
 
 break and enter the dwelling house of A. B., with intent the goods and 
 chattels of the said A. B., then and there feloniously and burglariously 
 to steal, take and carry away : and in the said dwelling house, one silver
 
 ClIAP. 4.] STATEMENT OF OFFENSES. 203 
 
 watch of the value of twenty-five dollars, of the goods and chattels of 
 the said A. B., then and there did feloniously and burglariously steal, 
 take and carry away. (Conclude as before, page 168.) 
 
 For suspicion of burglary and larceny. 
 
 (Commence as before, page 168 ;) that in the night of the 
 
 day of , instant, the warehouse of him, the said A. B., situate in 
 
 , in the county aforesaid, was willfully and maliciously entered, 
 
 without force, by a window then and there being open, with intent the 
 goods and chattels of G. H., then and there being, feloniously and bur- 
 glariously to steal, take and carry away: and one box of dry goods, of 
 the value of one hundred and fifty dollars, of the goods and chattels of 
 him, the said G. H., was feloniously and burglariously stolen, taken 
 and carried away from thence: and that he, the said A. B., hath just 
 cause to suspect, and doth suspect, that C. D. did commit the said fel- 
 ony and burglary. (Conclude as before, page 168.) 
 
 For burglary. Grim. Code, Sec. 60. 
 
 (Commence as before, page 168 ;) that, in the night of the 
 
 day of , instant, C. D. did willfully, maliciously, and forcibly 
 
 break and enter the shop of the said A. B. 1 , situate in , in the 
 
 county aforesaid, with intent the goods and chattels of him, the said 
 A. B., then and there being, feloniously and burglariously to steal, 
 take and carry away, contrary to the form of the statute in such case 
 made aiid provided. (Conclude as before, page 168.) 
 
 For suspicion of burglary. 
 
 (Commence as before, page 168 ;) that, in the night of the 
 
 day of , instant, the mill of the said A. B., situate in , 
 
 in the county aforesaid, was willfully, and maliciously, and forcibly 
 broken and entered, with intent the goods and chattels of G. H., then 
 and there being, feloniously and burglariously, to steal, take, and carry 
 away, contrary to the form of the statute in such case made and 
 provided : and that the said A. B. hath just cause to suspect, and doth 
 suspect, that C. D. did commit the said felony and burglary. (Con- 
 clude as before, page 168.)
 
 204 STATEMENT OF OFFENCES. [PART 2, 
 
 III. CRIMES AND OFFENCES RELATIVE TO PROPERTY. 
 
 For robbery. Grim. Code, Sec. 61. 
 
 (Commence as before, page 168;) that, on, &c., at, &c., in the 
 county aforesaid, C. D., in and upon the said A. B., did feloniously 
 make an assault, and him the said A. B., in bodily fear and danger 
 of his life, then and there feloniously did put ; and one gold watch, of 
 the value of seventy-five dollars, of the goods and chattels of him the 
 said A. B., from the person and against the will of the said A. B., 
 then and there feloniously and violently did steal, take, and carry 
 away. (Conclude as before, page 168.) 
 
 Another form for robbery. 
 
 (Commence as before, page 168 ;) that, on, &c., at, &c., in the 
 county aforesaid, C. D., in and upon the said A. B., feloniously did 
 make an assault, and one leathern purse, with ten current silver 
 dollars therein, the property of the said A. B., from his person and 
 against his will, by force, did then and there feloniously and violently 
 steal, take, and carry away. (Conclude as before, page 168.) 
 
 For larceny. Crim. Code, Sec. 62. 
 
 (Commence as before, page 168 ;) that, on, &c., at, &c., in the 
 county aforesaid, C. D., did feloniously steal, take, and carry away, 
 three pairs of shoes of the value of five dollars, of the goods and chat- 
 tels of the said A. B. (Conclude as before, page 168.) 
 
 For suspicion of larceny. 
 
 (Commence as before, page 168;) that, on, &c., at, &c., in the 
 county aforesaid, divers goods and chattels of the said A. B., to wit : 
 one coat, one vest, of the value of ten dollars, and six silver spoons, of 
 the value of thirty dollars, were feloniously stolen, taken and carried 
 away, and that he hath just cause to suspect, and doth suspect, that 
 C. D. did feloniously steal, take, and carry away the same. (Conclude 
 as before, page 168.)
 
 ClIAP. 4.] STATEMENT OF DEFENSES. 205 
 
 For suspicion of stealing a horse. 
 
 (Commence as before, page 168 ;) that, on, &c., at, &c., in the 
 county aforesaid, a sorrel horse, of the value of fifty dollars, the pro- 
 perty of the said A. B., was feloniously stolen, taken, and led away, 
 (or if oxen, cows, sheep, fyc., " driven away,") and that the said 
 A. B. hath just cause to suspect, and doth suspect, that C. D. did 
 feloniously steal, take, and lead away the same. (Conclude as before, 
 page 168.) 
 
 For suspicion of larceny in stealing writings relating to real estate. 
 
 (Commence as before, page 168 ;) that, on, &c., at, &c., in the county 
 aforesaid, a certain written (or " partly written and partly printed ") 
 paper, to wit : a deed, being evidence of the title of the said A. B., 
 to certain real estate, known and described as follows : viz., (describe 
 the real estate, ) in which real estate the said A. B. then and there 
 had, and still has, a present interest, was feloniously stolen, taken, and 
 carried away ; and the said A. B. has just cause to suspect, and doth 
 suspect, that C. D. did feloniously steal, take, and carry away the 
 same. (Conclude as before, page 168.) 
 
 For suspicion of larceny in stealing a promissory note. 
 
 (Commence as before, page 168;) that, on, &c., at, &c., in the 
 county aforesaid, one promissory note for the payment of fifty dol- 
 lars, made by E. F., and payable to the said A. B., was feloniously 
 stolen, taken, and carried away ; and that the said A. B. has just 
 cause to suspect, and does suspect, that C. D. did feloniously steal, 
 take, and carry away the same. (Conclude as before, page 168.) 
 
 For picking pockets or otherwise privately stealing from the person. 
 Grim. Code, Sec. 62. 
 
 (Commence as before, page 168;) that, on, &c., at, &c., in the 
 county aforesaid, C. D., from the person of the said A. B., one pocket 
 handkerchief, of the value of one dollar, one silver watch, of the value 
 of fifteen dollars, of the goods and chattels of the said A. B., subtilely, 
 privately, craftily, and without the knowledge of the said A. B., then 
 and there feloniously did steal, take, and carry away. (Conclude as 
 before, page 168.)
 
 206 STATEMENT OF OFFEND KS. [PART 2. 
 
 For larceny in stealing from a house in the daytime. Grim. 
 Code, Sec. 62. 
 
 (Commence as before, page 168 ;) that, on, &c., at, &c., in the 
 county aforesaid, in the daytime, divers goods and chattels of the 
 said A. B., of the value of twenty-five dollars, to wit : (describe the 
 property,} in the house of the said A. B., then and there being, were 
 feloniously stolen, taken, and carried away; and that the said A. B. 
 has just cause to suspect, and does suspect, that C. D. did feloniously 
 steal, take, and carry away the same. (Conclude as before, page 
 168.) 
 
 For receiving stolen goods. Crim. Code, Sec. 65. 
 
 (Commence as before, page 168 ;) that, on, &c., at, &c., in the 
 county aforesaid, C. D., for his own gain, did feloniously buy of one 
 G. H., one piece of broadcloth, of the value of fifty dollars, of the 
 goods and chattels of the said A. B., by the said G. H. then lately 
 before feloniously stolen, he, the said C. D., well knowing the said 
 piece of broadcloth to have been feloniously stolen. (Conclude as 
 before, page 168.) 
 
 For suspicion of receiving stolen goods. 
 
 (Commence as before, page 168 ;) that, on, &c., at, &c., in the 
 county aforesaid, divers goods and chattels of the said A. B., of the 
 value of fifty dollars, that is to say, (describe the property,} were 
 feloniously stolen by an ill-disposed person, to the said A. B. unknown, 
 (or "by one G. H.") and that he the said A. B. has just cause to 
 suspect, and does suspect, that C. D. at , in the county afore- 
 said, to prevent the said A. B. from again possessing his property, has 
 received the said goods and chattels, of the said ill-disposed person, 
 (or " of the said G. H.") he the said C. D. well knowing the goods and 
 chattels to have been feloniously stolen. (Conclude as before, page 
 168.) 
 
 For marking or branding a horse, fyc., with intent to steal him. 
 Crim. Code, Sec. 65. 
 
 (Commence as before, page 168;) that, on, &c., at, &c., in the 
 county aforesaid, C. D. did feloniously mark, (or " brand,") a certain
 
 CHAP. 4.] STATEMENT OF OFFENSES. 207 
 
 bay mare, the property of the said A. B., \vith intent thereby feloni- 
 ously to steal, take, and lead away the same, contrary to the form of 
 the statute in such case made and provided. (Conclude as before, 
 page 168.) 
 
 For altering or defacing marks or brands. Crim. Code, Sec. 65. 
 
 (Commence as before, page 168;) that, on, &c., at, &c., in the 
 county aforesaid, the mark (or " brand ") of one cow, the property of 
 the said A. B., was feloniously altered, (or " defaced,") with intent 
 thereby the said cow feloniously to steal, take, and drive away, (or 
 " to prevent the identification of the said cow by the said A. B.,") 
 and that the said A. B. has just cause to suspect, and does suspect, 
 that C. D. did feloniously alter (or " deface ") the said mark, (or 
 " brand,") contrary to the form of the statute in such case made and 
 provided. (Conclude as before, page 168.) 
 
 For officers embezzling money, fyc. Crim. Code, Sec. 66. 
 
 (Commence as before, page 168;) that, on, &c., at, c., in the 
 county aforesaid, C. D. was treasurer of the said county, and was 
 entrusted with, and had charge and custody of, certain money belong- 
 ing to, and being the property of the said county, that is to say, one 
 thousand dollars of the current coin of the United States, and then 
 and there feloniously did' embezzle, steal, and secrete the said money, 
 so in his charge and custody as aforesaid, contrary to the form of the 
 statute in such case made and provided. (Conclude as before, page 
 168.) 
 
 F\tr officers failing and refusing to pay over money, tyc. Crim. 
 Code, Sec. 67. 
 
 (Commence as before, page 168;) that, on the day o. 
 
 -, 18 , C. D. was collector of the county of .entrusted 
 
 by law to collect the revenue belonging to the said county, and there 
 and then, had collected and received one thousand dollars, current 
 money of the United States, for, and on account of the revenue of 
 the said county; and the said C. D., not regarding his duty as such 
 
 collector, but afterward, on the day of , 18 , at 
 
 . in the county aforesaid, demand for the payment of the
 
 208 STATEMENT OF OFFENSES. PART 2, 
 
 said money having been duly made by the treasurer of the said county, 
 fraudulently and unlawfully failed and refused to pay over the said 
 money to the said treasurer, contrary to the form of the statute in such 
 case made and provided. (Conclude as before, page 168.) 
 
 For fraudulently and maliciously destroying papers, fyc. Grim. 
 Code, Sec. 68. 
 
 (Commence as before, page 168;) that, on, &c., at, &c., in the 
 county aforesaid, C. D. did feloniously and maliciously burn a bond 
 for securing the payment of the sum of one hundred dollars, executed 
 by G. H. to the said A. B., the property of said A. B., with intent 
 to defraud, prejudice, and injure the said A. B., contrary to the form 
 of the statute in such case made and provided. (Conclude as before, 
 page 168.) 
 
 For removing landmarks. Crirn. Code, Sec. 69. 
 
 (Commence as before, page 168;) that, on, &c., at, &c., in the 
 county aforesaid, C. D. did knowingly, maliciously, and fraudulently 
 cut, fell, and remove a certain tree, being a boundary tree of the land 
 of the said A. B., situate in the said county, to the wrong of the said 
 A. B., contrary to the form of the statute in such case made and 
 provided. (Conclude as before, page 168.) 
 
 For embezzlement by a clerk, servant, fyc. Grim. Code, Sec. 70. 
 
 (Commence as before, page 168 ;) that C. D. was the clerk of the 
 said A. B. on the day of , 18 , in the county afore- 
 said, and that the said A. B. did then and there entrust to the said 
 C. D., (describe the property,) the goods and chattels of him the said 
 A. B., and that the said C. D. did then and there withdraw himself 
 from the said A. B., and went away with the said goods and chattels, 
 with intent feloniously to steal, take, and carry away the same, and to 
 defraud the said A. B. thereof, contrary to the form of the statute in 
 such case made and provided. (Conclude as before, page 168.) 
 
 Another form for embezzlement by clerk, servant, Sfc. 
 
 (Commence as before, page 168 ;) that, on, &c., at, &c., in the 
 county aforesaid, C. D. then and there being in the service and
 
 ClIAP. 4.] STATEMENT OF OFFENSES. 209 
 
 employment of the said A. B., and being so employed, the said A. B. 
 then and there entrusted and delivered to him one hundred pieces of 
 silver coin called dollars, and the said C. D, afterwards, and whilst he 
 was in the service of the said A. B., on the day and year and in the 
 connty aforesaid, did feloniously embezzle and convert the said money 
 to his own use, with intent feloniously to steal, take, and carry away 
 the same, contrary to the trust and confidence reposed in him by the 
 said A. B. ; contrary to the form of the statute in such case made and 
 provided. (Conclude as before, page 168.) 
 
 IV. FORGERY AND COUNTERFEITING. 
 
 For forging a Will. Crim Code, Sec. 73. 
 
 (Commence as before, page 168 ;) that, on, &c., at, &c., in the 
 county aforesaid, C. D. did feloniously and falsely forge and counter- 
 feit a certain will, purporting to be the last will and testament of 
 Gr. H., deceased, with intent to damage and defraud the said A. B. 
 (Conclude as before, page 168.) 
 
 For suspicion of forging a deed of lands. Crim. Code, Sec. 73. 
 
 (Commence as before, page 168;) that, on, &c., at, &c., in the 
 county aforesaid, a certain deed, purporting to be a deed executed by 
 the said A. B. to the said C. D., and by which the right and interest 
 of the said A. B. to certain lands situate in the said county, purport 
 to 'be transferred and conveyed by the said A. B. to the said C. D., 
 has been feloniously and falsely forged and counterfeited ; and that the 
 said A. B. has just cause to suspect, and does suspect, that the said 
 C. D. did feloniously forge and counterfeit the said deed, with intent 
 to damage and defraud the said A. B. (Conclude as before, page 
 168.) 
 
 For forging a promissory note. Crim. Code, Sec. 73. 
 
 (Commence as before, page 168 ;) that, on, &c., at, &c., in the 
 county aforesaid, C. D. did feloniously and falsely make, forge, and 
 counterfeit a certain promissory note, purporting to be the promissory 
 
 13
 
 210 STATEMENT OF OFFENSES. [PART 2, 
 
 note of the said A. B. to the said C. D., for the payment of the sum 
 of fifty dollars, with intent to damage and defraud the said A. B. 
 (Conclude as before, page 168.) 
 
 For suspicion of forging a promissory note. 
 
 (Commence as before, page 168 ;) that a certain promissory note 
 purporting to be a promissory note from the said A. B. to C. D., 
 
 for the payment of the sum of fifty dollars, has lately at , in 
 
 the county aforesaid, been feloniously and falsely made, (or "altered,") 
 forged and counterfeited ; and that the said A. B. has just cause to 
 suspect, and does suspect, that the said C. D. did feloniously commit 
 the said forgery, with intent to damage and defraud the said A. B. 
 (Conclude as before, page 168.) 
 
 For suspicion of forging a receipt. Crim. Code, Sec. 73. 
 
 (Commence as before, page 168 ;) that a certain receipt purporting 
 to have been made and signed by the said A. B., and that the said 
 A. B. had received from C. D. the sum of fifty dollars, has lately at 
 
 , in the county aforesaid, been feloniously and falsely made, 
 
 (or " altered,") forged, and counterfeited; and that the said A. B. 
 has just and reasonable grounds to suspect, and does suspect, that the 
 said C. D. did feloniously commit the said forgery, with intent to 
 damage and defraud the said A. B. (Conclude as before, page 168.) 
 
 For suspicion of forging bank notes. 
 
 (Commence as before, page 168 ;) that, lately at , in the 
 
 county aforesaid, three promissory notes purporting to have been made 
 and issued by the president, directors, and company of the bank of 
 Auburn, a corporation duly authorized for that purpose by the laws 
 of the State of New York, for the payment of five dollars each, were 
 feloniously and falsely made, (or "altered,") forged, and counterfeited ; 
 and that the said A. B. has just and reasonable grounds to suspect, 
 and does suspect, that C. D. did feloniously and falsely make, (or 
 alter,") forge and counterfeit the said promissory notes, with intent 
 to damage and defraud the said president, directors, and company of 
 the bank of Auburn. (Conclude as before, page 168.)
 
 CHAP. 4.] STATEMENT OF OFFENSES. 211 
 
 For uttering a forged bank note. 
 
 (Commence as before, page 168 ;) that, on, &c., at, &c., in the 
 county aforesaid, C. D. did feloniously utter, publish, and pass to the 
 said A. B., as true and genuine, a certain false, forged, and counter- 
 feited promissory note, purporting to have been issued by the president, 
 directors, and company of the bank of Missouri, a corporation duly 
 authorized for that purpose by the laws of the State of Missouri, for 
 the payment of the sum of twenty dollars, knowing the same to be 
 false, forged, and counterfeited, with intent to prejudice, damage, and 
 defraud the said A. B. (Conclude as before, page 168.) 
 
 For uttering an altered bank note. 
 
 (Commence as before, page 168;) that, on, &c., at, &c., in the 
 county aforesaid, C. D. did feloniously utter, publish, and pass as true 
 and genuine, a certain false, altered, and counterfeited promissory note, 
 purporting to be a promissory note issued by the State bank of 
 Indiana, a corporation duly authorized for that purpose by the laws of 
 the State of Indiana, for the payment of the sum of ten dollars, which 
 had been altered from a promissory note of the State bank of Indiana, 
 for the payment of the sum of one dollar, to make the sum resemble a 
 note for the payment of the sum of ten dollars, he the said C. D. 
 knowing the same to be altered and counterfeited, with intent to 
 prejudice, damage, and defraud the said State bank of Indiana. (Con- 
 clude as before, page 168.) 
 
 For uttering a forged county order. 
 
 (Commence as before, page 168;) that on, &c., at, &c., in the 
 county aforesaid, C. D. did feloniously utter, publish and pass, as true 
 and genuine, a certain county order, purporting to be drawn by M. M., 
 
 the clerk of the county commissioners' court of the county of , 
 
 upon the treasurer of said county, and payable to Gr. H., with intent 
 to damage and defraud the said county of . (Conclude as be- 
 fore, page 168.) 
 
 For counterfeiting coin. Crim. Code, Sec. 74. 
 
 (Commence as before, page 168;) that on, &c., at, &c., in the 
 county aforesaid, C. D. did feloniously counterfeit three pieces of the
 
 212 STATEMENT OF OFFENSES. [PART 2, 
 
 silver coin current in this State, by the laws and usages thereof, called 
 
 Spanish milled dollars. (Conclude as before, page 168.) 
 
 
 
 For suspicion of counterfeiting coin. 
 
 (Commence as before, page 168 ;) that on the day of , 
 
 instant, ten counterfeit pieces of gold coin of the kingdom of Great 
 Britain, current in this State, called guineas, were found concealed in 
 the barn of C. D., situate in the county aforesaid ; and that he, the 
 said A. B., hath just cause and reasonable grounds to suspect, and doth 
 suspect, that the said C. D. did feloniously counterfeit the same. 
 (Conclude as before, page 168.) 
 
 For passing or giving in payment counterfeit coin. Crim. Code, 
 
 Sec. 74. 
 
 (Commence as before, page 168 ;) that on, &c., at, &c., in the 
 county aforesaid, C. D. did feloniously pass or give in payment to the 
 said A. B., as true and genuine, one counterfeit piece of the gold coin 
 of the United States, current in this State, called an eagle, knowing 
 the same to be counterfeit, with intent to defraud the said A. B. 
 (Conclude as before, page 168.) 
 
 For offering to pay or give in payment counterfeit coin. 
 
 (Commence as before, page 168;) that on, &c., at, &c,, in the 
 county aforesaid, C. D. did offer to pass or give in payment, as true 
 and genuine, to the said A. B., five counterfeit pieces of the gold coin 
 of the United States, current in this State, called half-eagles, knowing 
 the same to be counterfeit, with intent to defraud the said A. B. (Con- 
 clude as before, page 168.) 
 
 For having in possession counterfeit coin, with intent to utter. Crim. 
 Code, Sec. 75. 
 
 (Commence as before, page 168;) that on, &c., at, &c., in the 
 county aforesaid, C. D. feloniously had in his possession five counter- 
 feit pieces of the silver coin current in this State, called Mexican dol- 
 lars, knowing the same to be counterfeit, with intent to defraud the 
 
 t
 
 CHAP. 4.] STATEMENT OF OFFENSES. 213 
 
 said A. B., by uttering or passing the same to him, as true and genuine. 
 (Conclude as before, page 168.) 
 
 For having in possession forged lank bills, with intent to pass them. 
 Crim. Code, Sec. 75. 
 
 (Commence as before, page 168 ;) that on this present day, at, &c., 
 in the county aforesaid, C. D. feloniously had in his possession, certain 
 forged promissory notes, commonly called bank bills, purporting to have 
 been issued by the president, directors, and company of the bank of 
 
 , a corporation duly authorized for that purpose by the laws of 
 
 the State of , for the payment of ten dollars, well knowing the 
 
 same to be forged, with intent to utter or pass the same as true and 
 
 genuine, with intent to defraud the said bank of . (Conclude 
 
 as before, page 168) v 
 
 For having in possession fictitious notes, with intent to utter. Crim. 
 Code, Sec. 77. 
 
 (Commence as before, page 168 ;) that on this present day, at , 
 
 in the county aforesaid, C. D. feloniously had in his possession certain 
 
 fictitious bills or notes, purporting to be bills or notes of the bank, 
 
 of , in the state of , for the payment of five dollars, each, 
 
 when, in fact, there is no such bank in existence, he, the said C. D., 
 knowing the said bills or notes to be fictitious, with intent to pass, utter 
 and publish the same as true, with intent to defraud the said A. B. 
 (Conclude as before, page 168.) 
 
 For having in possession apparatus for counterfeiting coin. Crim. 
 Code, Sec, 78. 
 
 (Commence as before, page 168 ;) that on, &c., at, &c., in the 
 county aforesaid, C. D. knowingly had in his possession a certain tool 
 and instrument designed for, and made use of in counterfeiting the coin 
 current in this State, called a die, with intent to use and employ the 
 same, or to cause and permit the same to be used and employed in coin- 
 ing and making the false coin, as aforesaid. (Conclude as before, 
 page 168.)
 
 214 STATEMENT OF OFFENSES. [PART 2, 
 
 For having in possession apparatus for counterfeiting bank bills. 
 
 (Commence as before, page 168 ;) that on this present day, at , 
 
 in the county aforesaid, C. D. knowingly had in his possession a certain 
 plate, engraven, devised, and designed for, and made use of in coun- 
 terfeiting bills or notes, in the similitude of the bills or notes which 
 
 have been issued by the bank of , the same being a bank or 
 
 banking company, established by law, in the State of , with 
 
 intent to use and employ the same, or cause and permit the same to be 
 used and employed in making such counterfeit bills or notes of the said 
 bank of . (Conclude as before, page 168.) 
 
 V. CRIMES AND OFFENSES AGAINST PUBLIC JUSTICE. 
 
 For perjury. Crim. Code, Sec. 82. 
 
 (Commence as before, page 168 ;) that on, &c., at, &c., in the 
 county aforesaid, a certain cause, in which G. H. was plaintiff and the 
 
 said A. B. defendant, was tried before , a justice of the peace 
 
 of the said county of , and that, upon the trial of the said cause, 
 
 C. D. appeared as a witness for and on behalf of said G. H., and was 
 
 then and there duly sworn (or "affirmed") by the said , who had 
 
 full power and authority to administer the oath, (or " affirmation,") that 
 the evidence he should give relating to the matter in difference between 
 the said parties, should be the truth, the whole truth, and nothing but 
 the truth ; and that, upon the trial of said cause, it became a material 
 question, whether the said G. H. had sold to the said A. B. ten bushels 
 of wheat ; and that, thereupon, the said C. D. being so sworn, as afore- 
 said, did then and there, to wit, on the trial of said cause, before the 
 said , justice, as aforesaid, falsely, willfully, and corruptly de- 
 pose, swear, (or "affirm,") and give in evidence, amongst other things, in 
 
 substance as follows, to wit, that on or about the day of , 
 
 18 , the said G. H. did sell to the said A. B. ten bushels of wheat, 
 whereas, in truth and in fact, the said G. H. did not, on or about the 
 day of , 18 , or at any other time, sell to the said
 
 ClIAP. 4.] STATEMENT OF OFFENSES. 215 
 
 A. B. ten bushels of wheat, or any other quantity of wheat. (Conclude 
 as before, page 168.) 
 
 For subornation of perjury. 
 
 (Commence as before, page 168 ;) that on, &c., at, &c., in the 
 county aforesaid, a certain cause, in which G. H. was plaintiff, and 
 
 A. B. was defendant, was depending before , a justice of the peace 
 
 of the said county of , and whilst the same was depending, to wit, 
 
 on the day of , in the year aforesaid, in the county aforesaid, 
 
 C. D., wickedly contriving and intending to prevent the due course of 
 law and justice, and to aggravate the said A. B., the defendent in the 
 said cause, and to subject him to the payment of a large sum of money 
 and heavy costs, did, wickedly and corruptly, subject, suborn, and pro- 
 cure one E. F., to be and appear as a witness at the trial of the 
 said cause, for and in behalf of the said Gr. H., the plaintiff, and upon 
 the trial of the said cause, falsely, wickedly, and corruptly, to swear 
 
 and give in evidence to and before the said , justice of the peace, 
 
 as aforesaid, certain matters, material and relevant to the matters in 
 issue in said cause, in substance as follows, to wit, that on or about the 
 
 day of , 18 , the said G. H. sold and delivered to the said 
 
 A. B., a horse, for the consideration of forty dollars, which the said 
 A. B. promised to pay in one month from the time of delivery of the 
 horse, and that the said consideration was not paid at the time of de- 
 livery ; whereas, in truth and in fact, the said A. B. at the time of de- 
 livery did pay to the said G. H. the sum of forty dollars, the full con- 
 sideration for the said horse, and did not promise to pay the same in 
 one month from the time of the delivery thereof : and afterwards, to wit, 
 
 on the day of , 18 , before the said , justice of the 
 
 peace, as aforesaid, in the county aforesaid, the said cause was tried, 
 and upon the trial, the said E. F., in consequence and by means, en- 
 couragement, and effect of the said wicked and corrupt subornation and 
 procurement of the said C. D., did then and there appear as a witness 
 for and on behalf of the said G. H., the plaintiff, and was then and 
 
 there duly sworn before the said , then being a justice of the peace, 
 
 as aforesaid, and having sufficient and competent power and authority 
 to administer an oath, that the evidence which he should give, touching 
 the matters in question between the said parties, should be the truth, 
 the whole truth, and nothing but the truth ; and the said E. F., being 
 so sworn, as aforesaid, at the said trial, upon his oath falsely, willfully,
 
 216 STATEMENT OF OFFENSES. [PART 2, 
 
 and corruptly did depose and swear, among other things, in substance 
 
 as follows, to wit, that on or about the day of , 18 , the 
 
 said G. H. sold and delivered to the said A. B., a horse, for the con- 
 sideration of forty dollars, which the said A. B. promised to pay in one 
 month from the time of delivery of the horse, and that the said con- 
 sideration was not paid at the time of delivery ; whereas, in truth and 
 in fact, the said A. B., at the time of delivery, did pay to the said G. H. 
 the sum of forty dollars, the full consideration for said horse, and did 
 not promise to pay the same in one month from the time of the delivery 
 thereof; and whereas, in truth and in fact, the said C. D., at the time 
 he so solicited, suborned and procured the said E. F., falsely, wickedly 
 and corruptly to swear as aforesaid, well knew that the said A. B., at 
 the time of the delivery, did pay to the said G. H., the sum of forty 
 dollars, the full consideration for said horse, and did not promise to pay 
 the same in one month from the time of the delivery. (Conclude as 
 before, page 168.) 
 
 For acknowledging a deed in the name of another. Grim. Code, 
 
 Sec. 91. 
 
 (Commence as before, page 168 ;) that on, &c., at, &c., in the 
 county aforesaid, C. D. did feloniously, and without due authority so to 
 do, personate the said A. B., and did then and there feloniously acknow- 
 ledge, in the name of the said A. B-, before P. K, a justice of the 
 peace for said county, a certain deed of land, situate in the said county, 
 from the said A. B. to one G. H. (Conclude as before, page 168.) 
 
 For resisting an officer in the discharge of his duty. Crim. Code, 
 
 Sec. 92. 
 
 (Commence as 'before, page 168 ;) that on, &c., at, &c., in the 
 county aforesaid, C. D. did knowingly and willfully obstruct, resist and 
 oppose the said A. B., who was then and there a constable of the said 
 county, in attempting to serve an execution upon the goods and chattels 
 
 of G. H., which execution was issued by , a justice of the peace 
 
 of the said county, and delivered to the said A. B., constable, as afore- 
 said, to be by him executed, upon a judgment rendered by the said jus- 
 tice of the peace, against the said G. H., in favor of E. F. (Conclude 
 as before, page 168.)
 
 ClIAP. 4.] STATEMENT OF OFFENSES. 217 
 
 Fot rescuing a person from custody on civil process. Grim. Code, 
 
 Sec. 98. 
 
 (Commence as before, page 168 ;) that on, &c., at, &c., in the 
 
 county aforesaid, , a justice of the peace of said county, issued a 
 
 capias against G. H., and delivered the same to A. B., one of the con- 
 stables of said county, wherein he was commanded to bring the body 
 of the said G. H. forthwith before the said justice of the peace, unless 
 special bail be entered, then to command him to appear before the said 
 justice, on a certain day therein specified, to answer the complaint of 
 E. K, for a failure to pay him a certain demand, not exceeding one 
 hundred dollars ; that afterwards, on the same day, in the county afore- 
 said, the said A. B., constable as aforesaid, arrested the said G. H., on . 
 the said capias, and had him in custody ; and that afterwards, on the 
 day and year last aforesaid, in the county aforesaid, C. D. out of the 
 custody of the said A. B-, constable, as aforesaid, did unlawfully and 
 forcibly rescue the said G. H. (Conclude as before, page 168.) 
 
 For a rescue after conviction. Crim. Code, Sec. 93. 
 
 (Commence as before, page 168 ;) that G. H., at the last March 
 
 term of the circuit court, held in and for the county of , was tried 
 
 upon an indictment then preferred against him for larceny, to wit, for 
 feloniously stealing, taking, and carrying away one silver watch, the 
 property of E. F., and found guilty of the matters in said indictment 
 charged upon him, by the jury empannelled to try the same, and who 
 by their verdict said, the said G. H. should be confined in the peni- 
 tentiary for the term of two years ; and it was thereupon adjudged by 
 the said circuit court, that the said G. H., for the said offense, should be 
 imprisoned in the penitentiary, at Alton, for the said term of two years ; 
 
 and was, thereupon, on the day of , 18 , delivered to , 
 
 Esquire, sheriff of the said county of , in execution of said judg- 
 ment; and that, afterwards, to wit, on the day of , 18 , 
 
 in the county aforesaid, and whilst the said G. H. was in the custody of 
 
 the said sheriff, for the cause aforesaid, C. D. in and upon the said , 
 
 Esquire, sheriff, as aforesaid, did make an assault, and him, the said 
 G. H., unlawfully and forcibly, from the custody of the said sheriff did 
 rescue, and put at large, to go whithersoever he would. (Conclude as 
 before, page 168.)
 
 218 STATEMENT OF OFFENSES. PART 2, 
 
 Another form for rescue after conviction. 
 
 (Commence as before, page 168 ;) that on, &c., at, &c., in the 
 county aforesaid, G. H., who had been convicted of the crime of bur- 
 glary, and sentenced to imprisonment in the penitentiary, in Alton, was 
 
 in the custody of , Esquire, sheriff of said county, and whilst the 
 
 said G. H. was in custody, as aforesaid, afterwards, to wit, on the 
 
 day of , 18 , in the county aforesaid, C. D., out of the custody 
 
 of the said sheriff, unlawfully and forcibly the said Gr. H. did rescue 
 and put at large, to go where he would. (Conclude as before, page 
 168.) 
 
 for a rescue before conviction. Crim. Code, Sec. 94. 
 
 (Commence as before, page 168 ;) that Gr. H., on the day of 
 
 -, 18 , had been arrested by A. B., one of the constables of the 
 
 said county, and was then in the legal custody of the said A. B., as 
 such constable, in the county aforesaid, on a charge for an assault and 
 battery, committed by the said G. H. upon E. F. ; and C. D., well 
 knowing the said G. H. so to be arrested, afterwards, to wit, on the said 
 day of , 18 , in the county aforesaid, the said G. H., un- 
 lawfully and forcibly did rescue and put at large. (Conclude as before, 
 page 168.) 
 
 For assisting a prisoner confined in jail to escape. Crim. Code, 
 
 Sec. 99. 
 
 (Commence as before, page 168 ;) that on, &c., at, &c., in the 
 county aforesaid, C. D. did unlawfully aid and assist one G. H., who 
 was lawfully committed to and detained in the common jail of the said 
 
 county, situate in the town of , for an offense against this State, 
 
 that is to say, for feloniously stealing, taking, and carrying away a cer- 
 tain horse, the property of the said A. B., to make his escape from the 
 said jail, although the said G. H. did not actually escape. (Conclude 
 as before, page 168.) 
 
 For conveying a disguise to a person in jail to facilitate his escape. 
 
 (Commence as before, page 168 ;) that on, &c., at, &c., in the 
 county aforesaid, C. D. did feloniously convey a certain disguise, to wit,
 
 ClIAP. 4.] STATEMENT OF OFFENSES. 219 
 
 a woman's apparel, to G. H., who was lawfully committed to and de- 
 tained in the common jail of the said county, in , for a certain 
 
 felony by him committed, that is to say, for feloniously passing, as true 
 and genuine, ten counterfeit pieces of the silver coin of the United 
 States, current in this State, called half dollars, knowing the same to 
 be counterfeit, with intent to defraud one E. F. ; with intent thereby 
 to facilitate the escape of the said G. H. (Conclude as before, page 
 168.) 
 
 For the voluntary escape of a prisoner before conviction, against an 
 officer. Crim. Code, Sec. 101. 
 
 (Commence as before, page 168;) that on, &c., at, &c., in the 
 county aforesaid, C. D., being keeper of the common jail of the said 
 county, and then and there having in his legal custody, in said jail, one 
 G. H., on a charge of having committed a felony, to wit, for feloniously 
 stealing, taking and carrying away ten hats, the property of one J. F., 
 did voluntarily suffer and permit the said G. H. to escape and go at 
 large, whithersoever he would. (Conclude as before, page 168.) 
 
 For an officer refusing to arrest a person charged with a criminal 
 o/ense. Crim. Code, Sec. 102. 
 
 (Commence as before, page 168;) that on, &c., at, &c., in the 
 
 county aforesaid, G. H. was charged upon oath before , a justice 
 
 of the peace of said county, with having committed a criminal offense, 
 to wit, for passing four counterfeit bank bills, purporting to have been 
 
 issued by , a corporation for that purpose duly authorized by the 
 
 laws of the State of , for the payment of five dollars each, know- 
 ing the same to have been counterfeited, with intent to defraud one 
 
 A. B., for which offense the said , then and there issued a warrant, 
 
 directed to all sheriffs, coroners and constables of said State, requiring 
 
 them to take the said G. H., and bring him before the said , which 
 
 said warrant was afterwards, to wit, on the day of , 18 , 
 
 in the county aforesaid, delivered to C. D., then one of the constables 
 
 of the said county of , to be by him executed, and that the said 
 
 C. D. then and there willfully refused to arrest the said G. H. (Con- 
 clude as before, page 168.)
 
 220 STATEMENT OF OFFENSES. [P.A.RT 2, 
 
 For compounding a criminal offense. Grim. Code, Sec. 103. 
 
 (Commence as before, page 168 ;) that, on, &c., at, &c., in the 
 county aforesaid, E., the wife of G. H., feloniously stole, took, and 
 carried away one silver spoon, of the goods and chattels of C. D. ; 
 and that the said C. D. knowing the said felony to have been com- 
 mitted, afterwards, to wit, on the day of , 18 , in 
 
 the county aforesaid, contriving and intending unlawfully and unjustly 
 to prevent the due course of law and justice in this behalf, and to cause 
 and procure the said E., for the felony aforesaid, to escape with impu- 
 nity, unlawfully, and for the sake of gain, did compound the said 
 felony with the said G. H., the husband of the said E., and did then 
 and there exact and receive of the said G. H., ten dollars, as a reward 
 for compounding said felony, and desisting from all further prosecution 
 against the said E. (Conclude as before, page 168.) 
 
 For embracery, by persuading a juror to give his verdict in favor 
 of the defendant. Crim. Code, Sec. 106. 
 
 (Commence as before, page 168 ;) that, on, &c., at, &c., in the 
 county aforesaid, C. D. knowing that a jury of the said county of 
 
 , was then duly returned impanneled, and sworn to try a certain 
 
 issue joined in the circuit court then held according to law, at r , 
 
 in and for the county of aforesaid, between E. F. plaintiff, and 
 
 G. H. defendant, in a plea of trespass on the case upon promises, and 
 then also knowing that a trial was to be had upon the said issue, on 
 
 the "day of , 18 , in the year aforesaid, before said 
 
 circuit court then and there held for the county aforesaid, the said 
 C. D., devising wickedly and unlawfully to hinder the due and lawful 
 trial of the said issue, by the jurors aforesaid, returned impanneled, 
 
 and sworn as aforesaid, to try the said issue on the day of 
 
 , in the year aforesaid, at , in the county aforesaid, 
 
 unlawfully, wickedly, and unjustly on behalf of the said G. H., the 
 defendant in said cause, did solicit and persuade one S. R., one of the 
 jurors of the said jury returned impanneled, and sworn according to 
 law for the trial of said issue, to appear, and attend in favor of the 
 said G. H., the said defendant, and then and there did say and utter 
 to the said S. R., one of the jurors as aforesaid, divers words and 
 discourses, by way of commendation, on behalf of him the said G. H.,
 
 ClIAP. 4.] STATEMENT OF OFFENSES. 221 
 
 the said defendant, and disparagement of the said E. F., the plaintiff, 
 to influence the said S. R., one of the jurors as aforesaid, to give a 
 verdict for the said G. H., the defendant. (Conclude as before, page 
 168.) 
 
 For common Barratry. Grim. Code, Sec. 107. 
 
 (Commence as before, page 168;) that C. D., of the county of 
 on the day of , 18 , and on divers other 
 
 days and times, as well before as afterwards, was and yet is a common 
 
 barrator, and that he the said C. D., on the said day of 
 
 , 18 , and on divers other days and times, in the county 
 
 aforesaid, divers quarrels, strifes, suits, and controversies, among the 
 honest arid quiet citizens of this State, then and there did wickedly and 
 willfully stir up and excite, with a view to stir up strife and contention. 
 (Conclude as before, page 168.) 
 
 For maintenance. Crim. Code, Sec. 108. 
 
 (Commence as before, page 168 ;) that C. D., on, &c., at, &c., 
 in the county aforesaid, did officiously intermeddle in a certain suit, 
 that in no wise belonged to, or concerned the said C. D., which was 
 
 then depending in the circuit court in the county of , between 
 
 E. F., plaintiff, and G. H., defendant, in a plea of debt by maintaining 
 and assisting the said E. F., the plaintiff, with money to prosecute his 
 said suit, with a view to promote litigation. (Conclude as before, 
 page 168.) 
 
 For extortion, against a justice for taking greater fees than are 
 legally due. Crim. Code, Sec. 109. 
 
 (Commence as before, page 158;) that, on, &c., at, &c., in the 
 county aforesaid, C. D., then an acting justice of the peace in and for 
 the said county, in a certain suit then lately tried and determined 
 before the said C. D. as such justice, wherein A. B. was plaintiff, and 
 G. H., defendant, and wherein judgment was rendered against the said 
 Gr. H., C. D. did by color of his said office, willfully and corruptly 
 extort, receive, and take of and from the said G. H., the defendant, 
 the sum of fifty cents, under pretense that the sum was due to him 
 as his fee for issuing the summons in said case ; whereas in truth and
 
 222 STATEMENT OF OFFENSES. [PART 2, 
 
 in fact, the sum of eighteen cents and three fourths only, was legally 
 due from the said G. H. to the said C. D., as such justice of the 
 peace, for his said service in issuing said summons. (Conclude as 
 before, page 168.) 
 
 For extortion, against a constable for exacting money as a fee 
 not legally due. 
 
 (Commence as before, page 168;) that, on, &c., at, &c., in the 
 county aforesaid, C. D. being then and there one of the constables of 
 the said county, did take and arrest A. B., by color of a certain 
 warrant commonly called a bench warrant, which he, the said C. D., 
 then and there alleged to be in his possession, and afterwards and 
 whilst the said A. B. so remained in his custody, the said C. D., to 
 wit, on the day and in the county aforesaid, did willfully, corruptly, 
 and extortively, and by color of his said office, extort, receive, and 
 take of and from the said A. B., the sum of three dollars, as, and for 
 a fee due to him the said C. D., as such constable, as he alleged ; 
 whereas in truth and in fact no fee was due to the said C. D. from the 
 said A. B., in that behalf. (Conclude as before, page 168.) 
 
 For extortion, against a constable for exacting a greater fee than 
 is legally due. 
 
 (Commence as before, page 168 ;) that, on, &c., at, &c., in the 
 county aforesaid, C. D. being one of the constables of the said county, 
 
 had in his possession an execution issued by , a justice of the 
 
 peace in and for the said county, in favor of E. JF. against G. H., by 
 which execution the said C. D. as constable as aforesaid, was com- 
 manded to make of the goods and chattels of the said G. H., the sum 
 of twenty dollars debt, and two dollars costs ; and afterwards, to wit, 
 on the day and in the county aforesaid, the said C. D. by color of his 
 said office, did willfully, corruptly, and extortively demand, take, and 
 receive of, and from the said G. H., as a fee for his services in collect- 
 ing the amount due on the said execution, the sum of five dollars ; 
 whereas in truth and in fact the sum of two dollars only, was legally 
 due from the said G. H. to the said C. D., as such constable, as afore- 
 said, in that behalf. (Conclude as before, page 168.)
 
 ClIAP. 4.] STATEMENT OF OFFENSES. 223 
 
 VI. OFFENSES AGAINST THE PUBLIC PEACE AND TKANQUILITY. 
 
 For disturbing the public peace. Grim. Code, Sec. 112. 
 
 (Commence as before, page 168;) that C.D. and E. F., (if more 
 than two, say, "together with divers other persons, to the said A. B. 
 
 unknown,") at , in the county aforesaid, at a late and unusual 
 
 hour of the night of the day of , 18 , unlawfully and 
 
 willfully did assemble and meet together, and being so assembled and 
 met together, did then and there unlawfully and willfully, by loud and 
 unusual noises, disturb the peace and quiet of the family of the said 
 A. B. (Concludeas before, page 168.) 
 
 For disturbing the peace, and not dispersing on being commanded. 
 Grim. Code, Sec. 113. 
 
 (Commence as before, page 168 ;) that C. D. and E. F. (if more than 
 two, say, " and divers other persons to the said A. B. unknown,") on the 
 day of , 18 , at , in the county aforesaid, did unlaw- 
 fully assemble and meet together for the purpose of disturbing the public 
 peace ; and that afterwards, to wit, on the same day and at the place 
 
 aforesaid, , one of the justices of the peace of the said county, 
 
 desired and commanded all persons then and there assembled, imme- 
 diately to disperse, and notwithstanding the said desire and command 
 
 of the said , justice of the peace as aforesaid, the said C. D. 
 
 and E. F., (and said divers other persons,) did then and there unlaw- 
 fully, riotously and tumultuously, and to the disturbance of the public 
 peace, remain and continue together for the space of one hour after 
 
 such desire and command made by the said , justice of the 
 
 peace as aforesaid. (Conclude as before, page 168.) 
 
 For an unlawful assembly. Crim. Code, Sec. 115. 
 
 (Commence as before, page 168;) that, on, &c., at, &c., in the 
 county aforesaid, C. D. and E. F. unlawfully did assemble together, 
 to pull down, remove, and destroy a certain dwelling house, in the 
 possession of the said A. B., and having so assembled for the purpose 
 aforesaid, did separate without doing or advancing towards it. (Con- 
 clude as before, page 168.)
 
 224 STATEMENT OF OFFENSES. [PART 2, 
 
 For a rout. Grim. Code, Sec. 116. 
 
 (Commence as before, page 168;) that, on, &c., at, &c., in the 
 county aforesaid, C. D. and E. F., upon a common cause of quarrel, 
 unlawfully and riotously did assemble together, to break, pull down, 
 and remove the fences upon the land then and there in the peaceable 
 possession of the said A. B., and then and there unlawfully and riot- 
 ously did advance to break, pull down, and remove said fences. (Con- 
 clude as before, page 168.) 
 
 For a riot. Crim. Code, Sec. 117. 
 
 (Commence as before, page 168 ;) that, on this present day, at 
 -, in the county aforesaid, C. D. and E. F. did unlawfully and 
 
 riotously assemble together, to disturb the peace, and being so assembled 
 together, in and upon the said A. B. with force and violence did make 
 an assault, and him the said A. B. then and there did beat, wound, 
 and ill treat. (Conclude as before, page 168.) 
 
 Another form for a Riot. 
 
 (Commence as before, page 168 ;) that on, &c., at, &c., in the coun- 
 ty aforesaid, C. D. and E. F. (if more than two, say, " together with 
 divers other persons to the said A. B. unknown,") unlawfully and riot- 
 ously did assemble together to disturb the peace, and being so as- 
 sembled together, a certain building and out house, in the possession 
 and lawful occupation of the said A. B., then and there, with force and 
 violence, did break, pull down, remove and destroy. (Conclude as 
 before, page 168.) 
 
 Another form for a Riot. 
 
 (Commence as before, page 168 ;) that on the day of 
 
 last, at , in the county aforesaid, C. D. and E. F. 
 
 did unlawfully and riotously assemble together to disturb the peace, and 
 being so assembled together, the dwelling house of the said A. B., there 
 situate, then and there, with force and violence, did break and enter, 
 and then and there with force and violence, put, cast, and throw divers 
 goods and chattels of the said A. B., to wit, (liere set out the goods,} 
 then being in the said dwelling house, from and out of the same. (Con- 
 clude as before, page 168.)
 
 ClIAP. 4.] STATEMENT OP OFFENSES. 225 
 
 VII. OFFENSES AGAINST THE PUBLIC MORALITY, HEALTH AND POLICE. 
 
 For bigamy, against the husband. Crim. Code, Sec. 121. 
 
 (Commence as "before, page 168;) that on, &c., at, &c., in the 
 county aforesaid, C. D., being then married, and then the husband of 
 E. D., feloniously did marry and take to wife, L. M., the said E. D., 
 his former wife, being then alive. (Conclude as before, page 168.) 
 
 For bigamy, against the wife. 
 
 (Commence as before, page 168;) that on, &c., at, &c., in the 
 county aforesaid, E. D., being then married, and then the wife of C. 
 D., feloniously did marry and take to husband, L. M., the said C. 
 D., her former husband, being then alive. (Conclude as before, page 
 168.) 
 
 For a single person marrying the wife of another. Crim. Code, 
 
 Sec. 122. 
 
 (Commence as before, page 168;) that on, &c., at, &c., in the 
 county aforesaid, C. D., being then unmarried, feloniously and knowingly 
 did marry and take to wife, L. M., being then married, and then the 
 wife of Gr. M. (Conclude as before, page 168.) 
 
 For incest. Crim. Code, Sec. 125. 
 
 (Commence as before, page 168;) that on the day of 
 
 last, at , in the county aforesaid, C. D. did felonious- 
 ly intermarry with Gr. D., then being sister of the said C. D. (Conclude 
 as before, page 168.) 
 
 Against a father cohabiting with his daughter. Crim. Code, 
 Sec. 126. 
 
 (Commence as before, page 168 ;) that on the day of 
 
 last, at , in the county aforesaid, C. D. did rudely and 
 
 licentiously cohabit with Gr. D., his daughter. (Conclude as before, 
 page 168.) 
 
 For living in an open state of adultery. Crim. Code, Sec. 123. 
 
 (Commence as before, page 168 ;) that C. D., on the day 
 
 of instant, and for a long time previous thereto, to wit, for 
 
 14
 
 226 STATEMENT OF OFFENSES. [PART 2, 
 
 three months previous thereto, at , in the county aforesaid, did wrong- 
 fully, lewdly and lasciviously, in an open state of adultery, live with G. 
 H., the wife of E. H., who was during all that time alive. (Conclude 
 ,as before, page 168.) 
 
 For living in an open state of fornication. Grim. Code, Sec. 123. 
 
 (Commence as before, page 168 ;) that on the day of 
 
 instant, and for a long space of time previous thereto, to wit, for the 
 
 space of two months previous thereto, at , in the county aforesaid, C. 
 
 D. did wrongfully, lewdly and lasciviously, in an open state of fornication, 
 live with a certain woman, named G. H. (Conclude as before, page 
 168.) 
 
 For keeping a disorderly house. Grim. Code, Sec. 127. 
 
 (Commence as before, page 168 ;) that on the day of 
 
 last, and from thence to this present day, at 
 
 in the county aforesaid, C. D. did keep and maintain, and still keeps 
 and maintains, a certain common ill governed and disorderly house for 
 his own lucre and profit, where persons assemble by Jiis encourage- 
 ment and permission, and there remain gaming. (Conclude as before, 
 page 168.) 
 
 For open kwdness. Grim. Code,*Sec. 127. 
 
 (Commence as before, page 168 ;) that C. D., on the day 
 
 of instant, at , in the county aforesaid, was guilty of 
 
 open lewdness, by openly, grossly, lewdly and lasciviously, lying on a 
 bed with one E. F., a single woman, for the space of four hours. 
 (Conclude as before, page 168.) 
 
 For keeping a lewd house. Grim. Code, Sec. 127. 
 
 (Commence as before, page 168 ;) that on the day of , 
 
 185-, and from thence until the present time, at , in the 
 
 county aforesaid, C. D. unlawfully did, and still does, keep and main- 
 tain a certain common lewd house, and in said house certain evil dis- 
 posed persons, as well as women of dishonest conversation, did cause 
 and procure to frequent and come together, and in the said house un-
 
 CHAP. 4.] STATEMENT OF OFFENSES. 227 
 
 lawfully did permit the said men and women, as well in the night as in 
 the day, to remain in the practice of fornication. (Conclude as before, 
 page 168.) 
 
 For keeping an open tippling house on the Sabbath. 
 
 (Commence as before, page 168 ;) that C. D., on the day 
 
 of instant, it being the first day of the week commonly called 
 
 the Sabbath, at , in the county aforesaid, unlawfully and will- 
 fully did keep open a certain tippling house, and for his own lucre and 
 gain, in the said house did procure and permit certain evil and ill dis- 
 posed persons to remain drinking and tippling. (Conclude as before, 
 page 168.) 
 
 For keeping a common gaming house. Grim. Code, Sec. 129. 
 
 (Commence as before, page 168 ;) that C. D., on the day of 
 
 last, and on divers other days and times, as well before as after- 
 
 wards, at , in the county aforesaid, a certain common gaming 
 
 house there situate, for his gain and profit, unlawfully and injuriously 
 did exercise, keep, have and maintain, and in the said common gaming 
 
 house, on the said day of , and on the said other days and times, 
 
 there unlawfully and injuriously did procure and permit divers persons to 
 frequent and come together to play for money, at a certain unlawful 
 game, called billiards. (Conclude as before, page 168.) 
 
 For obstructing the public highway. Crim. Code, Sec. 134. 
 
 (Commence as before, page 168 ;) that on the day of , 
 
 185-, and on divers other days and times, as well .before as afterwards, 
 
 at , in the county aforesaid, the public highway, then leading 
 
 from , unto the town of , C. D. did obstruct and render in- 
 convenient (or " dangerous") to pass, that is to say, divers large pieces 
 of timber, then and there put and placed, and caused to be put and 
 placed, and the same obstruction, from the said day of afore- 
 said, until the day of exhibiting this charge, in and upon the said pub- 
 lic highway, to be and remain, has permitted, and still does permit. 
 (Conclude as before, page 168.)
 
 228 STATEMENT OF OFFENSES. [PART 2, 
 
 For obstructing a common street. Grim. Code, Sec. 134. 
 
 (Commence as before, page 168 ;) that on the day of 
 
 18 5-, and on divers other days and times as well before as afterwards, 
 
 at in the county aforesaid, the common street in the town 
 
 of , called Washington street, C. D. did obstruct and render 
 
 inconvenient to pass, that is to say, divers cartloads of filth and rubbish 
 then and there did put and place, and cause to be put and placed, to 
 the great inconvenience of the citizens of the said town and of the 
 said State, so that they could not freely pass and repass along the said 
 
 street, and from the said day of aforesaid, until the 
 
 day of exhibiting this charge, has permitted, and still does permit, the 
 said obstruction to be, lie and remain. (Conclude as before, page 168.) 
 
 For setting unwholesome provisions. Crim. Code, Sec. 135. 
 
 (Commence as before, page 168;) that on, &c., at &c., in the coun- 
 ty aforesaid, C. D. did knowingly sell to the said A. B. a quantity of 
 diseased and unwholesome provisions for meat, that is to say, one hun- 
 dred pounds of the flesh of a diseased ox, knowing the said ox to have 
 been diseased, and without making it known to the said A. B. (Con- 
 clude as before, page 168.) 
 
 Another form for selling unwholesome provisions. 
 
 (Commence as before, page 168 ;) that on, &c., at, &c., in the 
 county aforesaid^ C. D. did knowingly sell to the said A B. a certain 
 quantity of diseased and unwholesome provisions for meat, that is to 
 say, one hundred pounds of diseased and unwholesome pork, knowing 
 the same to be diseased and unwholesome, and without making it 
 known to the said A. B. (Conclude as before, page 168.) 
 
 For defacing notices. Crim. Code, Sec. 137. 
 
 (Commence as before, page 168;) that on, &c., at, &c., in the 
 county aforesaid, A. B., one of the constables of the said county, had 
 
 in his hands an execution, issued by , a justice of the peace of 
 
 said county, upon a judgment then lately entered by him in favor of 
 E. F. plaintiff, against G. H. defendant, by which execution the said 
 A. B., constable as aforesaid, was commanded to make of the goods
 
 ClIAP. 4.] STATEMENT OF OFFENSES. 229 
 
 and chattels of the said G. H. the sum of thirty dollars debt, and two 
 dollars costs, and for the purpose of making the same, the said A. B., 
 constable as aforesaid, by virtue of said execution, afterwards, to wit, 
 on the day of 18 5-, levied upon the goods and chat- 
 tels of the said G. H., and afterwards, on the same day and in the 
 
 county aforesaid, appointed the day of , at o'clock 
 
 in the noon, as the time for the sale, by advertisement thereof in 
 
 writing, posted up at three of the most public places in the said county, 
 one of which advertisements was posted on the outer door of the house 
 
 of , innkeeper in said county ; that on the day of , 
 
 1851, G. D. did intentionally tear down and destroy the said adver- 
 tisement so posted up, before the expiration of the time for which by 
 law it was to remain so posted up. (Conclude as before, page 168.) 
 
 For having tools with which to break into a dwelling house, fyc. 
 Grim. Code, Sec. 139. 
 
 (Commence as before, page 168 ;) that on the night of the 
 
 day of , 185-, near the store occupied by A. B., containing 
 
 valuable property, situate in the town of , in the said county, 
 
 C. D. was found, having upon him and in his possession, a pick-lock, 
 crow, and bit, with intent then and there feloniously to break and 
 enter the said store. (Conclude as before, page 168.) 
 
 For having weapons with intent to assault, fyc. Grim. Code, 
 Sec. 139. 
 
 (Commence as before, page 168;) that on, &c., at, &c., in the 
 county aforesaid, C. D. had in his possession and upon him a certain 
 offensive weapon, to wit, a pistol, with intent to assault the person of 
 the said A. B. (Conclude as before, page 168.) 
 
 For disinterring the dead. Grim. Code, Sec. 141. 
 
 (Commence as before, page 168;) that on, &c., at, &c., in the 
 county aforesaid, C. D. did unlawfully and indecently open the grave 
 where the body of G. H., deceased, had there lately been deposited, 
 and the body of the said G. H., deceased, from the said grave did 
 then and there remove for the purpose of dissection, without the knowl- 
 edge and consent of the near relations of the said deceased. (Conclude 
 as before, page 168.)
 
 230 STATEMENT OP OFFENSES. [? a g6 2, 
 
 For voting more than once at an election. Grim. Code, Sec. 142. 
 
 (Commence as before, page 168 ;) that at a general election held on 
 
 the first Monday of August last, (it being the day of August,) in 
 
 and for the county of , in the several precincts (or " town- 
 ships") of the said county, for the purpose of electing county officers, 
 C. D., being an elector in said county, did appear at the place of hold- 
 ing said election in precinct (or " township,") and did then and 
 
 there vote for, and mention by name E. F. as the person whom he in- 
 tended to vote for to fill the office of sheriff of said county to be filled 
 at said election, and cause his name and vote to be entered by the 
 clerks of said election in said precinct or (" township") for the said 
 E. F. for sheriff as aforesaid ; and the said C. D. being a person re- 
 gardless of the rights of the people, and of the freedom and purity of 
 elections in this State, afterwards, on the said first Monday last, did 
 
 appear at the place of holding said election in precinct (or " 
 
 township") in said county, and did then and there again vote for, and 
 mention by name the said E. F., as the person he intended to vote for 
 to fill the office of sheriff, to be filled at said election, and cause his 
 name and vote to be entered by the clerks of said election for the said 
 E. F. for the office of sheriff as aforesaid, contrary to the form of the 
 statute in such case made and provided. (Conclude as before, page 
 168.) 
 
 VIII. OFFENSES COMMITTED BY CHEATS, SWINDLERS, AND OTHER 
 FRAUDULENT PERSONS. 
 
 For fraudulently conveying property, fyc. Grim. Code, Sec. 151. 
 
 (Commence as before, page 168;) that on the day of , 
 
 185-, at , in the county aforesaid, C. D. being the owner in 
 
 fee of a certain tract of land situate, lying and being in the said 
 county, bounded and described as follows, to wit, (describe the land) 
 being then and there indebted to the said A. B. in a large sum of 
 money, to wit, the sum of one hundred dollars, for the collection of 
 which the said A. B. had then lately commenced a suit in the circuit 
 
 court of county against the said C. D., he, the said C. D., did 
 
 unlawfully and fraudulently convey the said land to Gr. H., with intent 
 to hinder, delay and defeat the said A. B. in the collection of his said 
 debt. (Conclude as before, page 168.)
 
 CHAP. 4.] STATEMENT OF OFFENSES. 231 
 
 For swindling. Grim. Code, Sec. 152. 
 
 (Commence as before, page 168 ;) that on, &c., at, &c., in the 
 county aforesaid, C. D., by a certain false representation, to wit, that 
 he was worth the sum of five thousand dollars after the payment of 
 every debt he owed, thereby obtained a credit of one month for the 
 price of divers goods and chattels, to wit, five horses of the value of 
 three hundred dollars, then and there sold and delivered to him by the 
 said A. B., with intent then and there to defraud the said A. B. of the 
 same ; when in fact the said C. D. then and there, as he well knew, 
 was entirely insolvent and unable to pay for said horses, and by the 
 said false representations, and obtaining the credit aforesaid, the said 
 C. D. did defraud the said A. B. of the said goods and chattels. 
 (Conclude as before, page 168.) 
 
 For obtaining goods, $c., by false pretenses. Crim. Code, Sec. 153. 
 
 (Commence as before, page 168 ;) that on, &c., at, &c., in the 
 county aforesaid, C. D., knowingly and designedly, by a certain false 
 pretense, to wit, by falsely pretending that G. H. had in- his hands a 
 large sum of money, belonging to him, he, the said C. D., did obtain 
 from the said A. B., divers goods and chattels, to wit, ten cows and 
 six oxen, by giving in payment for the same his order upon the said 
 G. H., whereby he required the said G. H. to pay to the said A. B. 
 the sum of one hundred and fifty dollars, one week after the date thereof, 
 with intent thereby to cheat and defraud the said A. B. ; when, in fact, 
 the said G. H. had no money in his hands belonging to the said C. D., 
 and did not, and would not pay the said order when it became due, or 
 at any other time. (Conclude as before, page 168.) 
 
 For fraudulently selling land a second time. Crim. Code, Sec. 154. 
 
 (Commence as before, page 168 ;) that on, &c., at, &c., in the county 
 aforesaid, C. D. did enter into an agreement in writing with G. H., to sell 
 and convey to the said G. H., for the consideration of five hundred dollars, 
 to be paid three months after the date of the said agreement, all that certain 
 piece or parcel of land, situate in said county, and bounded as follows, to 
 
 wit, (here describe the land); and that afterwards, to wit, on the day 
 
 of , 18 , and while the said agreement was in force, in the county 
 
 aforesaid, for the consideration of five hundred dollars, he, the said 
 C. D. did, knowingly and fraudulently, dispose of and convey the
 
 232 STATEMENT OF OFFENSES. PART 2, 
 
 same land to the said A. B., contrary to the form of the statute in such 
 case made and provided. (Conclude as before, page 168.) 
 
 For selling by false weights, Sfc. Grim. Code, Sec. 155. 
 
 (Commence as before, page 168 ;) that on the day of , 
 
 18 , and from thence until the time of making this charge, C. D. 
 was a grocer, engaged in buying and selling divers goods, wares and 
 merchandise, and did keep in his shop false weights, for weighing goods, 
 wares and merchandise, by him sold, which caused them to appear of 
 greater weight, to wit, of a greater weight by one ounce in every pound 
 of goods weighed, than the real and true weight 'thereof ; and during 
 that time did then and there knowingly sell to divers citizens of this 
 State, divers goods, wares and merchandise, weighed with said false 
 weights. (Conclude as before, page 168.) 
 
 For destroying a bridge, fyc. Grim. Code, Sec. 156. 
 
 (Commence as before, page 168 ;) that on the day of , 
 
 18 , C. D. did, willfully and maliciously, and for mischief, cut down 
 
 a certain common bridge, then being over the river, commonly 
 
 called the bridge, lying and being in the county of ; con- 
 trary to the form of the statute in such case made and provided. 
 (Conclude as before, page 168.) 
 
 Another form for destroying property. 
 
 (Commence as before, page 168;) that on, &c., at, &c., in the 
 county aforesaid, three stacks of hay, of the value of twenty dollars, 
 the property of the said A. B., willfully and maliciously, and for mis- 
 chief, did set fire to, burn and destroy ; contrary to the form of the 
 statute in such case made and provided. (Conclude as before, page 
 168.) 
 
 IX. FRAUDULENT AND MALICIOUS MISCHIEF. 
 
 For suspicion of girdling fruit trees. Grim. Code, Sec. 156. 
 
 (Commence as before, page 168 ;) that on the day of , 
 
 18 , a large number of fruit trees, to wit, twenty apple trees, stand-
 
 ClIAP. 4.] STATEMENT OF OFFENSES. 233 
 
 ing and growing upon the lands of the said A. B., situate at , in 
 
 the county aforesaid, were for mischief, willfully and maliciously girdled ; 
 and that he, the said A. B. has just and reasonable ground to suspect, 
 and does suspect, that C. D. did, willfully and maliciously, and for mis- 
 chief, girdle the same. (Conclude as before, page 168.) 
 
 For maliciously killing an ox, fyc. Crim. Code. Sec. 156. 
 (Commence as before, page 168 ;) that on the day of , 
 
 18 , at , in the county aforesaid, C. D. did, unlawfully, willfully 
 
 and maliciously, and for mischief, kill a certain ox, belonging to the 
 said A. B. (Conclude as before, page 168.) 
 
 For suspicion of maliciously disfiguring a horse. 
 
 (Commence as before, page 168 ;) that on the day of , 
 
 18 , at , in the county aforesaid, a certain horse of him, the 
 
 said A. B., was for mischief, wantonly and maliciously disfigured, that 
 is to say, the ears, mane and hairs of the tail of the said horse, were 
 cut off; and that he, the said A. B. has just and reasonable grounds 
 to suspect, and does suspect, that C. D. did, unlawfully, wantonly and 
 maliciously, disfigure the said horse. (Conclude as before, page 168.) 
 
 For setting on fire prairie, fyc. Crim. Code, Sec. 158. 
 
 (Commence as before, page 168 ;) that on the day of , 
 
 18 , C. D. did, willfully and intentionally, set fire to the prairie in 
 
 precinct, (or " township,") in the county of , in an 
 
 inhabited part of this State ; contrary to the form of the statute in 
 such case made and provided. (Conclude as before, page 168.)
 
 234 OBSERVANCE OF THE PEACE. [PART 2, 
 
 CHAPTER V. 
 
 OF PROCEEDINGS IN RELATION TO THE OBSERVANCE AND 
 SURETY OF THE PEACE AND GOOD BEHAVIOR. 
 
 The duty of a justice of the peace, under this head, consists in com- 
 pelling persons threatening to commit certain crimes, to give sureties to 
 keep the peace, or, in default thereof, committing them to prison. 1 
 
 Surety of the peace consists in being bound with one or more sureties, 
 in a recognizance or obligation to the people, entered on record, and 
 taken in some court, or by some judicial officer ; whereby the parties 
 acknowledge themselves to be indebted to the people in the sum re- 
 quired, with a condition to be void and of no effect, if the party com- 
 plained of shall appear in court on such a day, and not depart the same 
 without leave, and in the mean tune to keep the peace towards the peo- 
 ple of the State, and particularly towards the person requiring such 
 security. 2 
 
 It is provided by statute, 8 as we have already seen, 4 that justices of 
 the peace, hi their respective counties, shall jointly and severally be 
 conservators of the peace, within their respective jurisdictions, and have 
 power to cause to be brought before them, or any of them, all persons 
 who shall break the peace, and commit them to jail, or admit them to 
 bail, as the case may require, and to cause to come before them, all 
 persons who shall threaten to break the peace, or shall use threats 
 against any person within this State, concerning his or her body, or 
 threaten to injure his or her property, or the property of any person 
 whatever ; and also all such persons as are not of good fame ; and the 
 said justice of the peace, being satisfied by the oath of one or more 
 witnesses, of his or her bad character, or that he or she has used threats, as 
 
 (1) Barb. Crim. L. 509. (2) 4 Bl. Com. 253. 
 
 (3) Rev. Stat. 190, Sec. 201. (4) Ante, p. 157.
 
 CHAP. 5.] OBSERVANCE OF THE PEACE. 235 
 
 aforesaid, must cause such person or persons to give good security for 
 the peace, or for their good behavior towards all the people of this 
 State, and particularly towards the individual threatened ; and if any 
 person against whom such proceedings are had, shall fail to give a re- 
 cognizance with sufficient security, it will be the duty of the justice of 
 the peace, before whom he or she shall be brought, to commit such per- 
 son or persons to the jail of the proper county, until such security be 
 given, or until the next term of the circuit court. The justice must 
 also take recognizance for the appearance of all witnesses at such courts. 
 All recognizances taken in pursuance of the foregoing provisions, must, 
 be returnable to the next circuit court, to be holden in the proper county, 
 where all such recognizances will be renewed or dismissed, as the said 
 circuit court may, upon examination of the witnesses, deem to be just 
 and right. 
 
 STATE OF ILLINOIS, 
 COUNTY 
 
 Form of Warrant for the Peace. 
 
 )is, ) 
 
 ' > ss. 
 
 The People, of the State of Illinois to any Constable of said County: 
 
 Whereas A. B. of , in the said county, hath this day 
 
 personally appeared before L. M., Esquire, one of the justices of the 
 peace, in and for the said county, and made oath that he is afraid 
 C. D. will beat, [wound, maim, or kill] him, for that the said C. D. 
 hath lately assaulted him with a large knife, and threatened to plunge 
 it through his heart, and to kill him at any rate, and hath demanded 
 security for the peace against the said C. D., and the said justice of 
 the peace being satisfied by the oath of the said A. B., that the said 
 C. D. has used threats as aforesaid, and that there is just cause to 
 fear the execution thereof by him : 
 
 We therefore command you, that immediately upon the receipt hereof, 
 
 you bring the said C. D. before the said justice, at his office in , 
 
 in said county, to give good and sufficient security, as well for his 
 personal appearance at the next term of the circuit court to be held in 
 and for said county, on the first day thereof, as also for his keeping 
 the peace in the mean time towards all the people in this State, and 
 particularly towards the said A. B. 
 
 Witness the said L. M., Esquire, at , in the said county, 
 
 the day of , 18 . 
 
 L. M., 
 Justice of the Peace.
 
 236 OBSERVANCE OF THE PEACE. [PART 2, 
 
 Form of Warrant for good behavior. 
 
 STATE OF ILLINOIS, 
 
 COUNTY 
 
 HS, 7 
 
 , I 88 - 
 
 The People of the State of Illinois to any Constable of said County: 
 
 Whereas A. B. hath this day personally appeared before L. M., 
 
 Esquire, one of the justices of the peace in and for the said county, 
 
 and made oath that he is afraid that C. D., of , in said county, 
 
 will burn his house, (or " kill his cattle," or other injury threatened 
 to the property, according to the facts,} for that the said C. D. has 
 lately threatened to burn his house, (or "kill his cattle, &c.") and 
 hath demanded security for the good behavior against the said C. D. ; 
 and the said justice of the peace being satisfied by the oath of the said 
 A. B., that the said C. D. has used threats, as aforesaid, and that 
 there is just cause to fear the execution thereof by him : 
 
 We therefore command you, that immediately upon receipt hereof, 
 
 you bring the said C. D. before the said justice in , in said 
 
 county, to give good and sufficient security, as well for his personal 
 appearance, at the next term of the circuit court to be held ha said 
 county, on the first day thereof, as also for his being of good behavior 
 in the meantime, towards all the people of this State, and particularly 
 towards the said C. D. 
 
 Witness the said L. M., Esquire, at , in the said county, the 
 
 day of , 18. 
 
 L. M., 
 Justice of the Peace. 
 
 Form of Warrant for peace or good behavior, on oath of two or 
 more witnesses. 
 
 STATE OF ILLINOIS, ) 
 COUNTY, j ss " 
 
 The People of the State of Illinois to any Constable of said County : 
 Whereas A. B., hath this day personally appeared before L. M., 
 Esquire, one of the justices of the peace in and for the said county, 
 and made oath that he is afraid that the said C. D. will beat him, 
 [wound, maim, kill, or do him some bodily hurt,] for that the said 
 C. D. hath lately threatened to beat him, [wound, maim, kill, or do 
 him some bodily hurt,] and hath demanded surety for the peace, (or 
 "for the good behavior") against the said C. D. ; (or "that he is
 
 ClIAP. 5.] OBSERVANCE OF THE PEACE. 237 
 
 afraid that the said C. D. will burn his house, (or "kill his cattle,") for 
 that the said C. D. hath lately threatened to burn his house, (or " kill 
 his cattle,") and hath demanded security for the good behavior against 
 the said C. D.) And the said justice of the peace being satisfied, by 
 the oaths of the said A. B. and of G. H. and I. J., that the said C. D. 
 has used threats as aforesaid, and that there is just cause to fear the 
 execution thereof: 
 
 We therefore command you, that immediately upon the receipt 
 hereof, you bring the said C. D. before the said justice, at his office in 
 
 the town of , in the said county, or before some other justice of 
 
 the peace of the said county, to give good and sufficient security, as well 
 for his personal appearance at the next term of the circuit court, to be 
 held in said county, on the first day thereof, as also, for his keeping 
 the peace, (or " for his being of good behavior") in the mean time, 
 towards all the people in the State, and particularly towards the said 
 A. B. 
 
 Witness the said L. M., Esquire, at , in the said county, 
 
 the day of , 18. 
 
 L. M., 
 Justice of the Peace. 
 
 Form of Warrant for good behavior against a person not of 
 good fame. 
 
 STATE OP ILLINOIS, ) 
 COUNTY, j ss 
 
 The People of the State of Illinois to any Constable of said County : 
 
 Whereas we are given to understand, by the information and testi- 
 mony of A. B. and G. H., under oath, this day taken before L. M., 
 Esquire, one of the justices of the peace in and for the said county, 
 
 that C. D. of , in the said county, is not of good fame, but an 
 
 evil doer, (or " a rioter, barrator, &c.," or any one of these or the like 
 causes, ~) and a common disturber of the peace, and have demanded 
 that the said C. D. be required to give security for his good behavior; 
 and the said justice of the peace being satisfied by the oath of the said 
 A. B. and G. H. of the bad character of the said C. D., and that he 
 is not a person of good fame : 
 
 Therefore, we command you, that immediately upon receipt hereof,
 
 238 .OBSERVANCE OF THE PEACE. [PART 2, 
 
 you bring the said C. D. before the said justice, at his office in the 
 
 town of , in the said county, to give good and sufficient security, 
 
 as well for his personal appearance at the next circuit court to be held 
 in and for the said county, on the first day thereof, as also, for his 
 being in good behavior in the mean time, towards all the people of this 
 State, according to the form of the statute in such case made and 
 provided. 
 
 Witness the said L. M., Esquire, at , in the said county, 
 
 the day of , 18. 
 
 L. M., 
 Justice of the Peace. 
 
 Form of Recognizance for the peace or good behavior. 
 
 STATE OP ILLINOIS, ") 
 COUNTY, f ss 
 
 Be it remembered that on this day of , 18 -, G. D. 
 
 of , and in the said county, and E. F. and I. J. of , in 
 
 the said county, personally come before me, L. M., Esquire, one of 
 the justices of the peace in said county, and severally and respectively 
 acknowledge themselves to owe to the people of the State of Illinois, 
 
 to wit, the said C. D. the sum of dollars, and the said E. F. 
 
 the sum of dollars, and the said I. J. the sum of dol- 
 lars, to be respectively made and levied of their several goods and 
 chattels, lands and tenements, to the use of the said people, if default 
 shall be made in the condition following : 
 
 The condition of this recognizance is such, that if the said C. D. 
 shall personally be and appear at the next circuit court to be held in 
 
 and for the said county of , on the first day thereof, to do and 
 
 receive what shall then and there be enjoined on him by the court, and 
 in the mean time, shall keep the peace (or " be of good behavior ") 
 towards all the people of this State, and particularly towards A. B., 
 then this recognizance to be void, else to remain in full force. 
 
 Taken, subscribed and acknowledged, 
 the day and year first above written, 
 before me, L. M., 
 
 Justice of the Peace. 
 
 C. D. 
 E. F. 
 I. J.
 
 ClIAP. 5.] OBSERVANCE OF TIIE PEACE. 239 
 
 Form of Mittimus for want of Sureties. 
 
 STATE OF ILLINOIS, 
 COUNTY, 
 
 The People of the State of Illinois to any Constable of the said 
 
 County, and to the Keeper of the Common Jail of said County: 
 
 Whereas, A. B. lately appeared beforfe L. M., Esquire, one of the 
 
 justices of the peace of the said county, and made oath that he is afraid 
 
 that C. D., of , in said county, will [beat, wound, and kill him, 
 
 for that the said C. D. hath lately assaulted him with a large knife, and 
 threatened to plunge it through his heart and to kill him, at any rate,] 
 (or " burn his house, for that the said C. D. hath lately threatened to 
 burn his house, and has actually attempted to set fire to the same," or, 
 if for any other cause, here set it forth,') and the said justice of the 
 peace, being satisfied by the oath of the said A. B., (if there are two 
 witnesses, then say, " oaths of the said A. B. and E. F.,") Ijiat the 
 said C. D. has used threats, as aforesaid, has caused the said C. D. this 
 day to be brought before him, and required him, the said C. D., to give 
 good and sufficient security, as well for his personal appearance at the 
 next term of the circuit court, to be held in and for the said county, 
 on the first day thereof, as, also, in the mean time, for his keeping the 
 peace (or "being of good behavior") towards all the people of this 
 State, and particularly towards the said A. B. ; and, whereas he, the 
 said C. D., hath refused, and doth now refuse, before the said justice of 
 the peace, to find such security : 
 
 We, therefore, command you, the said constable, forthwith to convey 
 the said C. D. to the common jail of the said county, and him deliver 
 to the keeper thereof; and you, the said keeper, are hereby required to 
 receive the said C. D. into your custody, in the said jail, for the want of 
 sureties, and him there safely keep until he shall be discharged by due 
 course of law. 
 
 Witness the said L. M., Esquire, at , in the said county, the 
 
 day of , 18. 
 
 L. M., 
 Justice of the Peace.
 
 240 OBSERVANCE OF THE PEACE. [PART 2. 
 
 Form of Liberate, to discharge one committed for want of Sureties. 
 
 STATE OF ILLINOIS,) 
 COUNTY, ) 
 
 The People of the State of Illinois to the Keeper of the Common 
 Jail of said County : 
 
 Whereas, C. D., who is now in the common jail, in your custody, at 
 
 the suit of A. B., of , in said county, for not giving good and 
 
 sufficient security, as well for his personal appearance at the next term 
 of the circuit court, held in the said county, on the first day thereof, as, 
 also, for his keeping the peace, (or, "being of good behavior,") in the 
 mean tune, towards all the people of this State, and particularly 
 towards the said A. B., hath given before L. M., Esquire, one of the 
 justices of the peace in the said county, good and sufficient securities 
 that he will personally appear at the nc'xt circuit court, to be held in 
 and for the said county, on the first day thereof, and will well and truly 
 keep the peace, (or, " be of good behavior,") in the meantime, towards 
 all the people of this State, and particularly towards the said A. B. : 
 
 We, therefore, command you, that if the said C. D. do remain in the 
 said jail, for the said cause, and none other, then you forbear to detain 
 him any longer, but that you deliver him thence, and suffer him to go 
 at large, and that upon the penalty that will fall thereon. 
 
 Given under the hand and seal of the said justice, at , in the 
 
 said county, the day of , 18 . 
 
 L. M., J. P. [SEAL.] 

 
 CHAP. 6.] FUGITIVES FROM JUSTICE. 241 
 
 CHAPTER VI. 
 
 OF FUGITIVES FROM JUSTICE. 
 
 Rev. Stat. 262, Sec. 4. " Whenever any person within this State 
 shall be charged, upon the oath or affirmation of any credible witness, 
 before any judge or justice of the peace, with the commission of any 
 murder, rape, robbery, burglary, arson, larceny, forgery or counterfeit- 
 ing, in any other State or territory of the United States, and that the 
 said person hath fled from justice, it shall be lawful for the said judge 
 or justice to issue his warrant for the apprehension of said person. If, 
 upon examination, it shall appear to the satisfaction of such judge or 
 justice, that the said person is guilty of the offense alleged against him, 
 it shall be the duty of the said judge or justice to commit him to the 
 jail of the county ; or, if the offense is bailable, according to the laws 
 of this State, to take bail for his appearance at the next circuit court, 
 to be holden in that county. It shall be the duty of the said judge or 
 justice to reduce the examination of the prisoner, and those who bring 
 him, to writing, and to return the same to the next circuit court of the 
 county where such examination is had, as in other cases ; and shall also 
 send a copy of the examination and proceedings to the executive of this 
 State, so soon thereafter as may be. If, in the opinion of the execu- 
 tive of this State, the examination so furnished, contains sufficient evi- 
 dence to warrant the finding of an indictment against such person, he 
 shall forthwith notify the executive of the State or territory, where the 
 crime is alleged to have been committed, of the proceedings which have 
 been had against such person, and that he will deliver such person on 
 demand, without requiring a copy of an indictment to accompany such 
 demand ; when such demand shall be made, the executive of this State 
 shall forthwith issue his warrant, under the seal of the State, to the 
 
 15
 
 242 FUGITIVES FROM JUSTICE. [PART 2, 
 
 sheriff of the county where the said person is committed or bailed, com- 
 manding him to surrender him to such messenger as shall be therein 
 named, to be conveyed out of this State. If the said person shall be 
 out on bail, it shall be lawful for the sheriff to arrest him forthwith, 
 anywhere within the State, and to surrender him agreeably to said 
 warrant." 
 
 " Sec. 7. In all cases where complaint shall be made, as aforesaid, 
 against any fugitive from justice, it shall be the duty of the judge or 
 justice to take good and sufficient security for the payment of all costs 
 which may accrue from the arrest and detention of such fugitive ; which 
 security shall be by bond, to the clerk of the circuit court, conditioned 
 for the payment of costs as above ; which bond, together with a state- 
 ment of the costs which may have accrued on the examination, shall be 
 returned to the office of the clerk of the circuit court; and, upon the. 
 determination of the proceedings against such fugitive within that county, 
 the clerk shall issue a fee bill, as in other cases, to be served on the 
 persons named in the bond, or any of them ; which fee bill shall be 
 served and returned by the sheriff, for which he shall be allowed the 
 same fees as are given him for serving notices. If the fees be not paid 
 on or before the first day of the next circuit court, to be holden in and 
 for that county, nor any cause then shown why they should not be paid, 
 the clerk may issue an execution for the same, against those parties on 
 whom the fee bill has been served; and when the said fees are collected, 
 shall pay over the same to the persons respectively entitled thereto. 
 The clerk shall be entitled to fifty cents for his trouble in each case, be- 
 sides the usual taxed fees which are allowed in other cases for like ser- 
 vices : Nothing herein contained shall prevent the clerk from instituting 
 suits on said bonds, in the ordinary mode of judicial proceedings, if he 
 shall deem it proper." 
 
 Form of Oath to be administered to Witnesses. 
 
 You do swear that you will true answers make to such questions as 
 may be asked you touching the present complaint against C. D. So 
 help you God. 
 
 form of Bond for Costs. 
 
 Know all men by these presents, that we, A. B., E. F., and G-. H., 
 
 of , in the county of : , and State of Illinois, are held and 
 
 firmly bound unto Augustus B. Coates', clerk of the Circuit Court of
 
 CHAP. 6.] FUGITIVES FROM JUSTICE. 243 
 
 Lake County, in said State of Illinois, and to his successors in office, 
 in the penal sum of dollars, to be paid to the said clerk as afore- 
 said, or his successors in office, to which payment well and truly to be 
 made, we jointly and severally bind ourselves, our heirs, executors and 
 administrators firmly, by these presents. Sealed with our seals, dated 
 
 this day of , in the year of our Lord, one thousand eight 
 
 hundred and fifty . 
 
 Whereas the said A. B. has this day made complaint, on oath, 
 against C. D., before L. M., Esquire, a justice of the peace of the 
 
 said county of Lake, that the said C. D., on the day of , 
 
 18 , at , in the county of , and State of Wisconsin (set 
 
 out the offense,*) and that the said C. D. hath fled from justice, and 
 Eas prayed that a warrant issue for the apprehension of the said C. D. 
 
 Now, therefore, the condition of the obligation is such, that if the 
 said A. B. shall well and truly pay all costs, which may accrue from 
 the arrest and detention of the said C. D., then the obligation to be 
 void, otherwise to be and remain in full force and effect. 
 
 Executed and delivered in the ^ [SEAL.] 
 
 presence of > [SEAL.] 
 
 L. M., J. P. J [SEAL.] 
 
 Form of Warrant. 
 
 STATE OF ILLINOIS, 
 
 COUNTY 
 
 us,) 
 
 , r- 
 
 The People of the State of Illinois to any Constable of said County : 
 
 Whereas, A. B. hath this day made complaint on oath, (or "affirma- 
 tion") before L. M., Esquire, one of the justices of the peace of said 
 
 county, that C. D., on the day of , 18 , at , in the 
 
 county of , and State of Wisconsin, (here set out the offense,) 
 
 and that the said C. D. hath fled from justice : 
 
 We therefore command you forthwith to take said C. D., and bring 
 him before the said L. M., Esquire, to be dealt with according to law. 
 Hereof fail not at your peril. 
 
 Witness, the said L. M., Esquire, at , in the said county, the 
 
 day of , 18. 
 
 L. M., /. P. [SEAL.]
 
 244 FUGITIVES FROM JUSTICE. [PART 2, 
 
 Form of Examination of Witnesses. 
 
 STATE OF ILLINOIS, ) 
 COUNTY, ]" ' 
 
 The examination of A. 33., G. H., and I. J., taken upon oath before 
 me, L. M., Esquire, a justice of the peace of the said county of Lake, 
 
 on the day of , 18 , in the presence and hearing of C. D., 
 
 charged before me, by the said A. B. with, on the day of , 
 
 18 , at , in the county of , and State of Wisconsin, feloni- 
 ously stealing, taking, &c., (set out the offense as in the warrant,} and 
 with having fled from justice. 
 
 The said A. B., on the part of the prosecution, on his oath aforesaid, 
 before me, the said justice, in the presence and hearing of said C. D., 
 saith. (Set forth the evidence of A. .5.) 
 
 The said G. H., on the part of the prosecution, on his oath aforesaid, 
 before me, the said justice, in the presence and hearing of said C. D., 
 saith. (Here set forth the evidence of 0. H.~) 
 
 The said I. J., on the part of the said C. D., on his oath aforesaid, 
 before me, the said justice, in the presence and hearing of the said C. 
 D., saith. (Here set forth the evidence of I. J.~) 
 
 Taken before me the day and^j A. B. 
 
 year first above mentioned. G. H. 
 
 L. M., /. P. J I. J. 
 
 Form of Examination of Prisoner. 
 
 STATE OF ILLINOIS, 
 COUNTY, 
 
 >BS. 
 
 The examination of C. D., taken before me, L. M., Esquire, a jus- 
 tice of the peace, of the said county, on the day of , 18 , 
 
 the said C. D. being charged by A. B., with (set out the offense and 
 fleeing from justice, as in the examination of witnesses.*) He, the said 
 C. D., upon his examination now taken before me, saith that. (Here set 
 out the prisoner' s statement.*) 
 
 Taken before me, the day and. j 
 year first above mentioned. 
 
 L. M., J. P.
 
 CHAP. 6.] FUGITIVES FROM JUSTICE. 245 
 
 Form of Certificate to be attached to the examination and proceed- 
 ings in the foregoing case. 
 
 STATE OF ILLINOIS, ) 
 COUNTY, j 
 
 I, the subscriber, a justice of the peace, in and for the county afore- 
 said, do hereby certify that the above is a true copy of the examination 
 and proceedings had and taken before me. 
 
 L. M., J. P. 
 
 The forms of commitments, recognizances, &c., heretofore given, in 
 cases of the examination of persons charged with a criminal offense, will 
 answer in the foregoing case, with slight alterations, to conform to the 
 facts.
 
 246 SEARCH WARRANTS. [PART 2, 
 
 CHAPTER VII. 
 
 OF SEAKCH WAKKANTS. 
 
 Kev. Stat. 192, Sec. 211. "It shall be lawful for any judge or 
 justice of the peace, upon complaint made before him upon oath or 
 affirmation, that a larceny has been committed, and that the person 
 affirming or swearing does verily believe that the stolen goods or other 
 property, are or is concealed in any dwelling house, out-house, garden, 
 yard or other place or places, to issue a warrant under his hand, com- 
 manding every such dwelling house or place to be searched in the day 
 time ; and if any of the goods described in any such warrant, be found 
 therein, then that the said goods be seized or brought before the judge 
 or justice issuing said warrant. If, upon examination of witnesses 
 before the judge or justice of the peace who issued said warrant, it 
 shall be determined by such judge or justice, that the goods so brought 
 before him have been stolen, it shall be the duty of such judge or jus- 
 tice, either to keep possession of, or to deliver, or cause to be delivered, 
 such goods to the sheriff of the proper county, there to remain until 
 the conviction of the thief, or the claimant's right be otherwise legally 
 ascertained. If the thief shall not be indicted at the next circuit court 
 after the goods shall be seized, and an action shall not be commenced 
 against the person or persons in whose possession such goods shall have 
 been found, for the recovery thereof, within one month after a circuit 
 court shall have been held after such seizure, the said circuit court 
 shall, at then: next session, order such goods to be re-delivered to the 
 person in whose possession they were found, which order shall be 
 obeyed by the person in whose possession such goods may, at the time, 
 be. In case the judge or justice of the peace shall, upon such exami- 
 nation as aforesaid, determine that such goods so seized had not been 
 stolen, then the goods shall be immediately restored to the person from 
 whose possession they were so taken."
 
 CHAP. 7.] SEARCH WARRANTS. 247 
 
 STATE OF ILLINOIS, 
 COUNTY, 
 
 Form of Search Warrant. 
 
 > ss. 
 
 The People of the State of Illinois to the Sheriff or any Constable of 
 said County : 
 
 Whereas A. B. hath this day made complaint on oath, before L. M., 
 Esquire, one of the justices of the peace of the said county, that on 
 
 the day of , 18 , in the county aforesaid, divers 
 
 goods and chattels of the said A. B., that is to say (describe the stolen 
 articles accurately,} were feloniously stolen, taken, and carried away 
 by some person or persons unknown, or by C. D., (describe the place 
 
 ivith certainty, according to the fact,} situate in in the said 
 
 county : 
 
 We therefore command you, with necessary and proper assistance, to 
 enter in the day time into the said dwelling house (the place above 
 described,) and there diligently search for the said goods and chattels, 
 and if the same, or any part thereof, shall be found upon such search, 
 that you bring the goods and chattels so found before the said justice, 
 to be disposed of according to law. 
 
 Witness the said L. M., Esquire, at in the said county, the 
 
 day of , 18. 
 
 L. M., 
 Justice of the peace. 
 
 Form of Warrant for a Witness. 
 
 STATE OF ILLINOIS, 
 COUNTY, 
 
 The People of the State of Illinois to the Sheriff, or to any Constable 
 of said County : 
 
 Whereas complaint hath been made on oath before L. M., Esquire, a 
 justice of the peace of the said county, by A. B., that (here set out the 
 larceny and the concealment of property as in the warrant,} and that 
 C. D. is a material and necessary witness to be examined concerning 
 the stealing of the same, and it appearing that said goods and chattels 
 have been brought before the said justice : 
 
 We therefore command and require you to cause the said C. D.
 
 248 SEARCH WARRANTS. [PART 2, 
 
 forthwith to come before the said justice, to give such information and 
 evidence as he knoweth concerning the premises. 
 
 Witness the said L. M., Esquire, at in the county aforesaid, 
 
 this day of , 18 . 
 
 L. M., 
 Justice of the peace. 
 
 Form of Record. 
 
 > ss. 
 
 Be it remembered, that on the day of , 18 , A. B. 
 
 appeared and made complaint on oath before L. M., Esquire, a justice 
 
 of the peace of said county, that, on the day of , 18 , 
 
 at -, in the said county, divers goods and chattels of the said 
 
 A. B., that is to say, one gold watch and six silver tea spoons, 
 (describe the articles stolen,} were feloniously stolen, taken, and 
 carried away by some person or persons unknown, (or " by E. F.,") 
 and that he verily believes that the said goods and chattels, or some 
 part thereof, were concealed in the dwelling house then occupied by 
 
 E. F., (the place describe as in the warrant,} situate in , in 
 
 the said county ; whereupon I the said justice issued a warrant to the 
 sheriff or any constable of the said county, to enter and diligently search 
 the said dwelling (the place describe,} in the day time, for the said 
 goods and chattels, and if any of them should be found, to seize the 
 same and bring them before me, to be disposed of according to law. 
 
 That afterwards, on the day of , 18 , J. K., one 
 
 of the constables of the said county, returned the said warrant, and 
 therewith brought before me the goods and chattels therein described, 
 
 whereupon I did immediately, (or "on the day of , 
 
 18 ,") proceed to the examination of all witnesses produced before 
 me, touching the said complaint, and after considering the proofs 
 adduced, I did adjudge and determine that the said goods and chattels 
 had been stolen, (or " had not been stolen.") 
 
 And I did therefore deliver the said goods and chattels to the 
 sheriff of the said county, there to remain until the conviction of the 
 thief, or the claimant's right be otherwise ascertained, (or if the justice 
 keeps the goods, &c. then say,} 
 
 And I did thereupon retain and keep possession of the said goods 
 and chattels, so that they should remain with me until the conviction
 
 CHAP. 7.] SEARCH WARRANTS. 249 
 
 of the thief, or the claimant's right be otherwise ascertained. {If the 
 justice determines that the goods, &c. were not stolen, then say,) 
 
 And did thereupon immediately restore to the said E. F., the said 
 goods and chattels, from whose possession they were so taken. 
 
 In witness whereof, I the said L. M., justice as aforesaid, have 
 
 hereunto set my hand, this day of 18 , at , in the 
 
 county aforesaid. 
 
 L. M., 
 Justice of the Peace.
 
 250 VARIOUS MISDEMEANORS. [PART 2, 
 
 CHAPTER VIII. 
 
 OF PROCEEDINGS IN RELATION TO VARIOUS MISDEMEAN- 
 ORS, BY j ATTEMPTING TO INFLUENCE ELECTORS; OF 
 SABBATH BREAKING, AND OF DISTURBING WORSHIPING 
 ASSEMBLIES. 
 
 I. OF PENALTIES, AND MANNER OF PROCEEDING BY THE 
 
 JUSTICE. 
 
 II. FORMS OF PROCEEDING IN CASE OF SABBATH BREAKING. 
 III. FORMS OF PROCEEDING IN CASE OF DISTURBING WORSHIPING 
 ASSEMBLIES. 
 
 I. OF PENALTIES AND MANNER OF PROCEEDING BY THE JUSTICE. 
 
 Rev. Stat. 177, Sec. 143. "If any person shall by bribery, menace, 
 treating, or other corrupt means or device whatsoever, either directly 
 or indirectly attempt to influence any elector of this State in giving his 
 vote at any election, every person so offending, and being thereof 
 convicted, shall be fined not exceeding five hundred dollars, and shall 
 thereafter be disqualified from voting at any election in this State for 
 five years. 
 
 " Sec. 144. Any person who shall hereafter knowingly disturb the 
 peace and good order of society by labor or amusement on the first day 
 of the week, commonly called Sunday, (works of necessity and charity 
 excepted,) shall be fined upon conviction thereof, in any sum not 
 exceeding five dollars. 
 
 " Sec. 145. The preceding section shall not bo construed to prevent 
 watermen from landing their passengers, lading and unlading their 
 cargoes, or ferrymen from carrying over the water travelers or persons 
 moving with their families on the first day of the week ; nor to prevent 
 the due exercise of the rights of conscience by any person who may
 
 CHAP. 8.] VARIOUS MISDEMEANORS. 251 
 
 think proper to keep any other day as a Sabbath, than the first day of 
 the week. 
 
 " Sec. 146. Whoever shall be guilty of any noise, rout or amuse- 
 ment on the first day of the week, called Sunday, whereby the peace 
 of any private family may be disturbed, such person so offending, shall 
 be deemed guilty of a misdemeanor, and upon conviction thereof, shall 
 be fined in any sum not exceeding twenty-five dollars. 
 
 " Sec. 147. Any person who shall, by menace, profane swearing, 
 vulgar language, or any disorderly or immoral conduct, interrupt and 
 disturb any congregation or collection of citizens assembled together for 
 the purpose of worshiping Almighty God, or who shall sell, or attempt 
 to sell, or otherwise dispose of ardent spirits or liquors, or any articles, 
 which will tend to disturb any worshiping congregation or collection of 
 people, within one mile of such place, unless the person so selling or 
 disposing of said spirituous liquors or articles, shall be regularly 
 licensed to keep a tavern or grocery, and shall sell the same at his said 
 tavern or grocery, any person so offending shall be deemed guilty of a 
 high misdemeanor, and upon conviction, shall be fined, in any sum not 
 exceeding fifty dollars : Provided, That this section shall not be so con- 
 strued as to affect any person who may sell whisky or any other ardent 
 spirits at his own distillery, store or dwelling house. 
 
 ' ; Sec. 148. Justices of the peace, respectively, in their several 
 counties, shall have jurisdiction of the aforesaid offenses, and may, on 
 view or upon information on oath, cause every such person, having 
 offended as aforesaid, to be apprehended and brought before him to 
 answer such charge. 
 
 " Sec. 149. Any person who shall be accused of either of the 
 offenses specified in the five preceding sections, if he choose it, shall 
 have the cause tried by a jury of six lawful jurors, and if he shall in- 
 sist on a full jury, by twelve, who shall be summoned to try the cause ; 
 and if the jury shall find the accused guilty, they shall assess and state 
 the amount of the fine, not more than in said sections specified ; upon 
 which the justice before whom the trial shall be had, or in case the per- 
 son shall plead guilty, shall give judgment for fine and costs, and pro- 
 ceed to collect the same without delay ; and when said fine shall be 
 collected, the officer or person collecting the same shall be required to 
 pay it over without delay to the treasurer of the proper county, taking 
 his receipt therefor ; and which receipt shall be filed with the clerk of 
 the county commissioners' court ; after which the said fine or fines which 
 may be thus deposited shall be subject to the control of said court, and
 
 , 
 
 252 FORMS. SABBATH BREAKING. [PART 2, 
 
 appropriated to the education of any poor orphan child or children of 
 the proper county. 
 
 " Sec. 150. The judgments rendered under the six preceding sec- 
 tions shall be subject to appeals as in cases of assault and battery and 
 affrays, and shall be collected in the same manner." 
 
 II. FORMS OF PROCEEDING IN CASE OF SABBATH BREAKING. 
 
 Form of Warrant for offense injustice's presence. 
 
 STATE OF ILLINOIS,") 
 COUNTY, j Si 
 
 The People of the State of Illinois to any Constable of said County : 
 
 Whereas, on the day of instant, at in said 
 
 county, C. D. did, in the presence of the subscriber, L. M., Esquire, 
 one of the justices of the peace of said county, knowingly disturb the 
 peace and good order of society by amusements on the first day of the 
 week, commonly called Sunday, to wit, by (Jiere state the manner of 
 the disturbance.) 
 
 These are therefore to command you forthwith to take the said C. D. 
 and bring him before the said justice to answer the said charge, and to 
 be dealt with according to law. 
 
 Given under the hand and seal of the said justice, the day 
 
 of , 185-. 
 
 L. M., J. P. [SEAL.] 
 
 STATE OF ILLINOIS, 
 COUNTY, 
 
 Form of Information. 
 
 > S3. 
 
 The information and complaiat of L. M., made before E. F., Esquire, 
 
 one of the justices of the peace of the said county, the day of 
 
 , 185-, who upon oath, says, that on the day of 
 
 instant, being the first day of the week, called Sunday, C. D. did make 
 a noise (Jiere state the facts) whereby the peace of the family of the 
 said L. M. was disturbed, contrary to the form of the statute in such 
 case made and provided. He therefore prays that the said C. D. may 
 be required to answer this complaint. 
 
 Exhibited before me, this day ) L. M. 
 
 of ,185-. E. F., 
 
 Justice of the Peace.
 
 CHAP. 8.] FOKMS. SABBATH BREAKING. 
 
 Form of Warrant on Information. 
 STATE OF ILLINOIS, 
 
 COUNTY, 
 
 ss. 
 
 The People of the State of Illinois to any Constable of said County : 
 
 Whereas, L. M. has this day made and exhibited an information and 
 
 complaint, upon oath, before E. F., Esquire, a justice of the peace of 
 
 the said county, that on the day of , 18 , being the first 
 
 day of the week, being Sunday, at , in said county, C. D. did 
 
 make a noise, (state the offense as in the complaint,*) whereby the 
 peace of the family of the said L. M. was disturbed, contrary to the 
 form of the statute in such case made and provided : 
 
 We, therefore, command you forthwith to take the said C. D. and 
 bring him before the said justice, to answer the said charge, and further 
 to be dealt with according to law. 
 
 Given under the hand and seal of the said justice, the day of 
 
 1Q 
 
 , J.O 
 
 E. F., /. P. [SEAL.] 
 
 Record of Conviction for offense in the view of the Justice. 
 
 STATE OF ILLINOIS, ) 
 COUNTY, j ss< 
 
 Be it remembered that on the day of , 18 , at 
 
 the said county, C. D. did, in my view, (set forth the offense, as in 
 the information,) and, thereupon, I caused the said C. D. to be arrested 
 and brought before me, he still remaining in my view, and I proceeded, 
 in the presence of the said C. D., (if a jury was required, add, "and 
 of a jury, at the request of the said C. D., for that purpose empan- 
 neled and sworn,") to enquire into the truth of the said charge, and, 
 after hearing the proofs and allegations of the parties, the said C. D., 
 
 on the said day of , 18 , by me, the said justice, (if a 
 
 jury was sworn, say, " by the verdict of the said jury,") was convicted 
 of the offense aforesaid, and I, (or " the said jury,") assessed the fine 
 
 which he should pay at the sum of dollars : 
 
 Therefore, it is adjudged and determined by me, the said justice, the 
 said C. D., for the offense aforesaid, shall forfeit and pay the said sum 
 
 of dollars, so assessed by me, (or " by the said jury,") and I 
 
 did further adjudge and determine that the said C. D. should pay the 
 sum of dollars, for the costs and charges of this prosecution.
 
 254 FORMS. SABBATH BKEAKIXG. [PART 2, 
 
 In witness whereof I have hereunto set my hand and seal, this 
 
 day of , 18 . 
 
 L. M., /. P. [SEAL.] 
 
 Record of Conviction on an Information. 
 STATE OF ILLINOIS, 
 
 COUNTY, f ss ' 
 
 Be it remembered, .that on the day of , 18 , L. M., 
 
 came before me, E. F., Esquire, a justice of the peace of said county, 
 and made .and exhibited his complaint and information upon oath, and 
 
 gave me to understand and be informed, that on the day of , 
 
 instant, at , in the said county, C. D. did (set forth the offense 
 
 as in the complaint) ; that thereupon I issued a warrant and caused 
 the said C. D. to be apprehended and brought before me ; that after- 
 wards, on the day of , 18 , I proceeded (conclude 
 
 as in the preceding form.) 
 
 Warrant of Distress to levy Fine and Costs. 
 
 STATE OF ILLINOIS, 
 COUNTY, 
 
 >-ss. 
 
 The People of the State of Illinois to any Constable of said County : 
 
 Whereas upon the information and complaint of L. M., lately 
 
 exhibited upon oath before E. F., a justice of the peace of said county, 
 
 against C. D., for that on the day of , 18 , being the 
 
 first day of the week, called Sunday, he did make a noise (here state 
 the facts as in the complaint) whereby the peace of the family of the 
 said L. M. was disturbed, and thereupon the said justice issued his 
 warrant and caused the said C. D. to be apprehended and brought 
 before him, and proceeded in the presence of the said C. D., (if a 
 jury was sworn, then add, " and of a jury at the request of the said 
 C. D. for that purpose empanneled and sworn,) to enquire into the 
 truth of the said charge, and after hearing the proofs and allegations 
 
 of the parties, the said C. D., on the day of , 18 , by 
 
 the said justice, (or " by the verdict of the said jury,") was convicted 
 of the offense aforesaid, and the said justice (or "the said jury") 
 
 assessed the fine which he should pay, at the sum of dollars. 
 
 And the said justice thereupon adjudged and determined that the said 
 C. D., for the said offense, should forfeit and pay the said sum of
 
 CHAP. 8.] FORMS. DISTURBING WORSHIPING ASSEMBLIES. 255 
 
 dollars, and the sum of dollars for the costs and 
 
 charges of said prosecution : 
 
 We therefore command you immediately to levy the said sum of 
 
 dollars for the fine aforesaid, and also the sum of 
 
 dollars for the costs and charges aforesaid, by distress and sale of 
 the goods and chattels of the said 0. D., giving twenty days' notice 
 of the day of sale, by posting up written or printed advertisements in 
 three of the most public places in the county. And do you return 
 this precept with all convenient speed, with what you shall do by 
 virtue hereof. 
 
 Given under the hand and seal of the said justice, the day 
 
 of , A. D. 18 . 
 
 E. F. /. P. [SEAL.] 
 
 III. FORMS OF PROCEEDING IN CASE OF DISTURBING WORSHIPING 
 ASSEMBLIES. 
 
 Form of Complaint. 
 STATE OF ILLINOIS, 
 
 COUNTY, $ ss ' 
 
 The complaint and information of E. F. of said county, made before 
 C. D., Esquire, one of the justices of the peace in and for the said 
 
 county, on the day of , 18 , who being duly sworn 
 
 by the said justice on his oath, says that on the day of , 
 
 in the year of our Lord one thousand eight hundred and , at 
 
 , in the said county, L. M. of said county, did interrupt and 
 
 disturb a collection of citizens, then and there in a (describe the house 
 or grove, ,) assembled together for the purpose of worshiping Almighty 
 God, by loud and profane swearing (or as the case may be~), in the 
 presence and hearing of said collection of citizens so assembled. 
 
 Exhibited before me on the day and 
 year first aforesaid. 
 
 C. D., 
 Justice of the Peace. 
 
 E. F.
 
 256 FORMS. DISTURBING WORSHIPING ASSEMBLIES. [PART 2, 
 
 Form where the disturbance is by selling liquor by a person licensed, 
 
 but who does not sell at his tavern or grocery. 
 STATE OF ILLINOIS, 
 
 COUNTY, f ss ' 
 
 The complaint and information of E. F. of said county, made before 
 C. D., Esquire, one of the justices of the peace in and for the said 
 
 county, on the day of , in the year of our Lord, &c., 
 
 who being duly sworn by the said justice, upon his oath says that 
 
 L. M., on the day of, &c., at , in said county, and 
 
 not at the store, distillery, dwelling house, tavern or grocery, of the 
 said L. M., and within one mile of the place where a congregation of 
 citizens were then and there actually assembled together in a (describe 
 the house or grove} for the purpose of worshiping Almighty God, did 
 sell ardent spirits to S. R., and to divers other persons, and thereby 
 did then and there interrupt and disturb the said congregation so 
 assembled. 
 
 Exhibited before me on the day and ^ E. F. 
 
 year first aforesaid. 
 
 C. D., 
 Justice of the Peace. 
 
 Form where the disturbance is by selling liquor by a person 
 
 not licensed. 
 STATE OF ILLINOIS, 
 
 DIS, ) 
 
 , r- 
 
 The complaint and information of E. F. of said county made before 
 C. D., Esquire, one of the justices of the peace in and for said county, 
 
 on the day of, &c., who being duly sworn, on his oath says 
 
 that L. M. of said county, on the day of, &c., at , in 
 
 said county, and not at the store, distillery, or dwelling house of the 
 said L. M., and without being regularly licensed to keep a tavern or 
 grocery, and within one mile of the place where a congregation of 
 citizens were then and there actually assembled together in a (describe 
 the house or grove} for the purpose of worshiping Almighty God, did 
 sell ardent spirits to G. H., and to divers other persons, and thereby 
 did then and there interrupt and disturb the said congregation so 
 assembled. 
 
 Exhibited before me on the day and ^j E. F. 
 
 year first aforesaid. 
 
 C. D., f 
 
 Justice of the Peace.
 
 CHAP. 8.] FORMS. DISTURBING WORSHIPING ASSEMBLIES. 257 
 
 Form of Warrant. 
 
 STATE OF ILLINOIS, ) 
 COUNTY, j Sf 
 
 The People of the State of Illinois to any Constable of said County : 
 Whereas, E. F. of said county, has this day made complaint, on oath, 
 before J. K., Esquire, one of the justices of the peace in and for said 
 county, that L. M., of said county, on (set out the complaint.) 
 
 These are, therefore, to command you forthwith to apprehend the 
 said L. M., and bring him before the said justice, to answer the said 
 complaint, and further to be dealt with according to law. 
 
 Given under the hand and seal of the said justice, the day of 
 
 , 18. 
 
 J. K., /. P. [SEAL.] 
 
 The various forms heretofore given in other cases, for subpoana, venire, 
 &c., may be used here, by being varied to suit the occasion. 
 
 Record of Conviction. 
 
 '* 
 
 STATE OF ILLINOIS, 
 
 COUNTY, f 
 
 Be it remembered, that on the day of , in the year of, &c., 
 
 E. F., of said county, came before me, J. K., Esquire, one of the 
 justices of the peace in and for the said county, and made and exhibited 
 his complaint, upon oath, and gave me to understand and be informed 
 that on, &c., at, &c., (recite the complaint to the end); that, thereupon, 
 I issued a warrant, and caused the said L. M. to be apprehended, and 
 brought before me ; that afterwards, on the day of, &c., I pro- 
 ceeded, in the presence of the said L. M., (if there was a jury, say, 
 " and of a jury, at the request of the said L. M. for that purpose em- 
 panneled and sworn,") to enquire into the truth of the said charge, 
 and after hearing the proofs and allegations of the parties, the said L. M., 
 on the said day of, &c., by me, the said justice, (or, if a jury, say, 
 " by the verdict of the jury,") was convicted of the said offense, and I, 
 (or " the said jury,") assessed the fine which he should pay at the sum 
 of dollars. 
 
 Therefore, it is adjudged and determined by me, the said justice, that 
 the said L. M., for the offense aforesaid, shall forfeit and pay the sum 
 
 of dollars, so assessed ; and I do further adjudge and dcter- 
 
 16
 
 258 FOKMS. DISTURBING WORSHIPING ASSEMBLIES. [PART 2, 
 
 mine that the said L. M. shall pay the sum of dollars, for the 
 
 costs and charges of this prosecution. 
 
 In witness whereof I have hereunto set my hand and seal, this 
 
 day of , 18 . 
 
 J. K., J. P. [SEAL.] 
 
 Warrant of Distress. 
 
 STATE OP ILLINOIS,") 
 COUNTY, j ss ' 
 
 The People of the State of Illinois to any Constable of said County : 
 Whereas, upon the information and complaint of B. F., of said 
 county, lately exhibited upon oath, before J. K., a justice of the peace 
 in and for said county, against L. M., of the said county, for that on, 
 &c., at, &c., (as in complaint) and, thereupon, the said justice issued 
 his warrant, and caused the said L. M. to be apprehended and brought 
 before him, and proceeded, in the presence of the said L. M., (if a 
 fury, then add, " and of a jury, at the request of the said L. M. for 
 that purpose empanneled and sworn,") to enquire into the truth of the 
 said charge, and after hearing the proofs and allegations of the parties, 
 
 the said L. M., on the day of, &c., by the said justice, (or " by 
 
 the verdict of the said jury,") was convicted of the offense aforesaid; 
 and the said justice, (or " the said jury,") assessed the fine which he 
 
 should pay at the sum of dollars ; and the said justice thereupon 
 
 adjudged and determined that the said L. M. for the said offense should 
 
 forfeit and pay the sam of dollars, for the costs and charges of 
 
 the said prosecution : 
 
 We, therefore, command you, without delay, to levy the said sum of 
 
 dollars, for the fine aforesaid, and also the sum of dollars 
 
 for the costs and charges aforesaid, by distress and sale of the goods and 
 chattels of the said L. M. ; and do you return this precept with all con- 
 venient speed, with what you shall do thereon. 
 
 Given under the hand and seal of the said justice, the day of 
 
 , 18. 
 
 J. K., J. P. [SEAL.]
 
 CHAP. 9.] ASSAULT AND BATTERY. 259 
 
 CHAPTER IX. 
 
 OF PROCEEDINGS IN CASES OF ASSAULT, ASSAULT AND 
 BATTERY, AND AFFRAYS. 
 
 Assault and battery is the unlawful beating of another. 1 
 
 Kev. Stat. 329, Sec. 95. ' ' In all cases of assault, assault and bat- 
 tery, and frays, any justice of the peace may, upon his own knowledge, 
 or upon oath of any competent person, issue his warrant to any consta- 
 ble in his county for the arrest of every person charged with either of 
 said offenses ; and upon the arrest of such person, shall cause a jury to 
 be summoned, (unless the party accused shall dispense with a jury,) 
 who shall hear the cause, and if they find the accused guilty, shall assess 
 such fine as they shall deem just, not, however, to be less than three nor 
 more than one hundred dollars. 
 
 " Sec. 96. Upon the jury returning their verdict of guilty, and the 
 assessment of the fine, the justice shall record the same in his docket or 
 record book, and proceed to render judgment thereon for the amount 
 of the said fine and costs ; but if the jury return a verdict of not guilty, 
 the justice shall record the same, and discharge the defendant or defend- 
 ants without costs. 
 
 " Sec. 97. Upon the rendition of such judgment, the justice shall 
 issue execution for the fine and costs, which may be levied upon any 
 personal property of the defendant or defendants, which shall be sold 
 for whatever it will bring in cash, after giving notice as in other cases : 
 Provided, however, That if the party so convicted have a family, then 
 the constable shall reserve from execution one bed and bedding, one 
 cow, and ten dollars' worth of household and kitchen furniture. 
 
 " Sec. 98. If the constable shall return upon such execution, that the 
 defendant or defendants have no goods and chattels whereof to make 
 the money, the justice shall issue a capias against the body of the de- 
 
 (1) Kev. Stat. 159, Sec. 53.
 
 260 ASSAULT AND BATTERY. [PART 2, 
 
 fendant or defendants, and the constable shall arrest such person or 
 persons, and commit him or them to the jail of the county, there to re- 
 main forty-eight hours ; and if the fine exceed ten dollars, then to re- 
 main in said jail twenty-four hours for every five dollars over and above 
 the said ten dollars, and so on in proportion to the amount of said fine. 
 
 " Sec. 99. If any person so convicted, shall wish to appeal to the circuit 
 court, he shall signify the same to the justice of the peace who gave the 
 judgment, and the justice shall give him a statement of the amount of the 
 fine and costs, and upon producing the same to the clerk of the circuit 
 court of the proper county, the clerk shall write a bond to the people of 
 the State of Illinois, in a penalty double the amount of the fine, and a 
 sufficiency to cover all costs, conditioned for the payment of the amount 
 of whatever judgment the court may render against said defendant, 
 which the said party appealing shall execute, with sufficient security to 
 be approved by the said clerk ; and when such bond shall be executed, 
 the clerk shall notify the justice who tried the cause thereof, and the 
 said justice shall stay all further proceedings, and return the papers to 
 the next succeeding circuit court, when the same shall be tried : Pro- 
 vided, All such appeals shall be prayed for, and the bond executed, 
 within five days after judgment rendered. 
 
 ' ' Sec. 100. If the defendant shall be found guilty in the circuit court, 
 judgment shall be rendered against both principal and security in the 
 appeal bond, for the amount of the fine assessed by the jury in said 
 court, and all costs that may have accrued. 
 
 " Sec. 101. If any person shall be dissatisfied with the verdict given 
 in such cases, before any justice of the peace, because of the fine being 
 too low, or because the defendant may have been acquitted, he shall be 
 permitted to remove the said case into the circuit court, upon his exe- 
 cuting bond to the people of the State of Illinois, before the clerk, in a 
 penalty sufficient to cover all costs that have or may accrue, conditioned 
 for the payment of all costs, in case the defendant shall be acquitted, 
 or the fine not increased ; which bond shall be executed in ten days 
 after the judgment of the justice shall have been given ; and when said 
 bond is executed, the clerk shall notify the justice thereof, and said 
 justice shall return all the proceedings to the said court ; and if the de- 
 fendant shall be acquitted in the circuit court, or the fine not increased 
 by the jury, the court shall render judgment against the party who re- 
 moved the said case into the circuit court, and his security in the appeal 
 bond, for all costs occasioned by the appeal : Provided, The party re- 
 moving a case into the circuit court shall not be a witness against the 
 defendant in said court, upon the trial of such appeal.
 
 CHAP. 9.] ASSAULT AND BATTERY. 261 
 
 "Sec. 102. When any defendant convicted of either of the said 
 offenses, or any person dissatisfied with the verdict as aforesaid, appeals 
 to the circuit court, it shall be the duty of the justice to return to the 
 clerk when he returns the papers in the case, the names of all the ma- 
 terial witnesses who shall have testified on the trial, and the clerk shall 
 issue subpoenas for them. 
 
 " Sec. 103. When the case is removed into the circuit court, as 
 provided by the one hundred and first section, the party removing it 
 shall cause a summons to be issued and served upon the defendant, 
 notifying him of the appeal ; and if the defendant cannot be found in 
 the county, to serve said process upon, the case shall not be continued ; 
 but the court shall cause his appearance to be entered, and proceed to 
 trial, as though the defendant were present, and had filed the plea of 
 not guilty. 
 
 " Sec. 1 04. If any person accused of either of the above offenses shall 
 confess himself guilty, the jury, or the justice, if he shall not require a 
 jury, shall hear the evidence and assess the fine ; and the justice shall 
 enter judgment and issue execution, subject to appeal as in other cases. 
 
 " Sec. 105. No person shall be proceeded against for the commis- 
 sion of any of the offenses herein enumerated, after the expiration of 
 twelve months from the time the offense was committed, unless such 
 offender shall withdraw himself from the county for the purpose of 
 avoiding trial, in which case he shall be tried at any time within twelve 
 months after his return or apprehension." 
 
 Form of Complaint for an Assault. 
 
 STATE OF ILLINOIS, ) 
 COUNTY, ) ss 
 
 The information and complaint of A. B., of , in said county, 
 
 who. being duly sworn, upon his oath says, that C. D., of , in the said 
 
 county, on the day of , 18 , with force and arms, at , 
 
 in the county aforesaid, him, the said A. B., did unlawfully make an 
 attempt to strike, beat, and wound with a cane, then and there having 
 the ability to commit the said injury. He, therefore, prays that the said 
 C. D. may be arrested and dealt with according to law. 
 
 Subscribed and sworn before me, this ^ A. B. 
 
 day of , 18. (. 
 
 L. M., J. P.
 
 
 262 ASSAULT AND BATTERY. [PART 2, 
 
 Form of Information and Complaint for Assault and Battery. 
 
 STATE OF ILLINOIS, ) 
 COUNTY, } Sk 
 
 The information and complaint of A. B., of , in said county, 
 
 who, being duly sworn, upon his oath says, that C. D., of , in the 
 
 said county, on the day of , 18 , with force and arms, at 
 
 , in the county aforesaid, in and upon the said A. B., did make 
 
 an assault, and with his hands and feet did then and there beat, bruise, 
 wound and injure him, the said A. B. He, therefore, prays that the 
 said C. D. may be arrested and dealt with according to law. 
 
 Subscribed and sworn before me, this ") A. B. 
 
 day of , 18. 
 
 L. M., J. P. 
 
 form of Information and Complaint for an Affray. 
 
 STATE OF ILLINOIS, 
 
 COUNTY 
 
 )is, ) 
 
 , } ss - 
 
 The information and complaint of A. B., who being duly sworn, upon 
 
 his oath says, that C. D. and G. H., on the day of , 18 , 
 
 at , in the county aforesaid, did, by agreement, fight in a public 
 
 place, that is to say, in the public highway, there situate, and did then 
 and there make an affray, to the terror of the citizens of this State then 
 and there being. He, therefore, prays that the said C. D. and G. H. 
 may be arrested and dealt with according to law. 
 
 Sworn and subscribed before me, this 1 A. B. 
 
 day of , 18. 
 
 L. M., J. P. J 
 
 form of Warrant for an Assault. 
 STATE OF ILLINOIS, 
 
 COUNTY, 
 
 ss. 
 
 The People of the State of Illinois to any Constable of said County : 
 
 Whereas, A. B. has this day made complaint in writing, upon oath, 
 
 before L. M., Esquire, a justice of the peace of said county, that on 
 
 the day of , 18 , at , in the county aforesaid, C. D. 
 
 did unlawfully attempt to violently strike, beat, and wound him, the 
 said A. B., with a cane, then and there having the ability to commit 
 the said injury :
 
 CHAP. 9.] ASSAULT AND BATTERY. 263 
 
 These are, therefore, to command you forthwith to arrest the said 
 C. D., and bring him before the said justice, to answer unto the said 
 complaint, and to be further dealt with according to law. 
 
 Given under the hand and seal of the said justice, at , in said 
 
 county, the day of , 18 . 
 
 L. M., J. P. [SEAL.] 
 
 Form of Warrant for Assault and Battery. 
 STATE or ILLINOIS, 
 
 COUNTY, 
 
 ss. 
 
 The People of the State of Illinois to any Constable of said County : 
 Whereas, A. B. has this day made complaint in writing, upon oath, 
 
 before L. M., Esquire, a justice of the peace of said county, that on 
 
 the day of , 18 , at , in the county aforesaid, C. D. 
 
 did violently assault and unlawfully beat him, the said A. B. : 
 
 These are, therefore, to command you forthwith to arrest the said 
 
 C. D., and bring him before the said justice, to answer unto the said 
 
 complaint, and to be further dealt with according to law. 
 
 Given under the hand and seal of the said justice, at , in the 
 
 said county, the day of , 18 . 
 
 L. M., J. P. [SEAL.] 
 
 Form of Warrant for an Affray. 
 
 STATE OF ILLINOIS, 
 COUNTY, 
 
 >S8. 
 
 The People of the State of Illinois to any Constable of said County : 
 
 Whereas, A. B. hath this day made complaint in writing, upon oath, 
 
 before L. M., Esquire, a justice of the peace of said county, that on 
 
 the day of , 18 , at , in the county aforesaid, C. D. 
 
 and G. H. did, by agreement, fight in a public place, that is to say, in 
 the public highway, there situate, and did then and there make an 
 affray, to the terror of the citizens of this State, then and there being : 
 These are, therefore, to command you forthwith to arrest the said 
 C. D. and G. H., and bring them before the said justice, to answer unto 
 the said complaint, and to be further dealt with according to law. 
 
 Given under the hand and seal of the said justice, at , in the 
 
 said county, the day of , 18 . 
 
 L. M., J. P. [SEAL.]
 
 264 ASSAULT AND BATTERY. [PART 2, 
 
 Form of Recognizance of Defendant to appear before the Justice, in 
 case of continuance of trial. 
 
 STATE OF ILLINOIS, \ 
 COUNTY, j~ SJ 
 
 Be it remembered that on this day of , 18 , C. D., of 
 
 -, in the said county, and Gr. H., of , in the said county, and 
 
 I. J., of , in the said county, personally come before me, L. M., 
 
 Esquire, a justice of the peace of said county, and severally and re- 
 spectively acknowledge themselves to owe to the people of the State 
 of Illinois, that is to say, the said C. D., the sum of one hundred dol- 
 lars, and the said Gr. H. and I. F., the sum of fifty dollars each, to be 
 levied of their respective goods and chattels, lands and tenements, to 
 the use of the said people, if the said C. D. shall make default in the 
 condition following : 
 
 The condition of this recognizance is such that if the said C. D. 
 shall personally be and appear before the said justice, at his office, in 
 
 , on the day of , 18 , at a court then and there to be 
 
 held, before the said justice, for the trial of an assault and battery, 
 alleged to have been committed by the said C. D., upon A. B., (or if 
 for an assault or an affray, state it here,) and to do and receive what 
 shall by the court be then and there enjoined upon him, and shall not 
 depart the court without leave ; then this recognizance to be void, or 
 else to remain in full force. 
 
 Taken, subscribed and acknowledged, ") C. D. 
 
 the day and year first above written, be- v Gr. H. 
 
 fore me, L. M., /. P. ( I. J. 
 
 Form of a Venire. 
 
 STATE OF ILLINOIS, 
 COUNTY, 
 
 > ss. 
 
 The People of the State of Illinois to any Constable of said County: 
 
 We command you to summon twelve (or "six," as may be required 
 by the accused,) good and lawful men, qualified to serve as jurors, 
 and not exempt from such service by law, and who are not in any wise 
 related either to A. B. or C. D., to be and appear before L. M., Esquire, 
 
 a justice of the peace of the said county, on the day of 
 
 instant, at o'clock in the noon, at the office of the said jus- 
 tice, in , to make a jury for the trial of the said C. D., for an
 
 CHAP. 9.] ASSAULT AND BATTERY. 265 
 
 assault and battery upon the said A. B., and have you then and there 
 a panel of jurors and this precept. 
 
 Given under the hand and seal of the said justice the day 
 
 of 18. 
 
 L. M., /. P. [SEAL.] 
 
 Form of Juror's Oath or Affirmation. 
 
 You do swear, (or " you do solemnly, sincerely, and truly declare 
 and affirm,") that you will well and truly try this issue of traverse be- 
 tween the people of the State of Illinois and C. D., the defendant, and 
 a true verdict give therein according to the evidence. 
 
 Form of a Subpoena. 
 
 STATE OF ILLINOIS, 
 
 COUNTY, 
 
 I ss. 
 
 The People of the State of Illinois to E. P., G. If., S. T. and K. L. : 
 We command you, and every of you, that you do in your proper 
 persons appear before L. M., Esquire, a justice of the peace of said 
 county, at his office in - , in said county, forthwith, (or " on the 
 - day of - , 18 , at - o'clock in the - noon,") 
 to testify the truth according to your knowledge touching an informa- 
 tion and complaint against C. D., for an assault and battery, (or "for 
 an assault," or as the offense is,} for which the said C. D. is then and 
 there to be tried, on the part of the people, (or " on the part of the 
 defendant.") 
 
 Given under the hand and seal of the said justice, the - day 
 
 L. M., /. P. [SEAL.] 
 Form of Oath of Witness. 
 
 You do swear, that the evidence you shall give in this issue of tra- 
 verse, between the people of the State of Illinois and C. D. the defend- 
 ant, shall be the truth, the whole truth, and nothing but the truth. 
 
 Form of a Constable' s Oath on retiring with a jury to consider their 
 
 verdict. 
 
 You do swear that you will, to the utmost of your ability, keep the 
 persons sworn as jurors on this trial, together in some private and con-
 
 266 ASSAULT AND BATTERY. [PART 2, 
 
 venient place, without meat or drink, except ordered by the court ; that 
 you will not suffer any communication, orally or otherwise, to be made 
 to them ; that you will not communicate with them yourself, orally or 
 otherwise, unless by order of the court, or to ask them if they have 
 agreed on their verdict, until they shall be discharged ; and that you 
 will not, before they render their verdict, communicate to any person 
 the state of their deliberations, or the verdict they have agreed on. 
 
 Form of Execution to levy Fine and Costs. 
 
 STATE OF ILLINOIS, 
 
 COUNTY, 
 
 The People of the State of Illinois to any Constable of said County : 
 Whereas, upon the information and complaint of A. B., lately ex- 
 hibited before L. M., Esquire, a justice of the peace of said county, 
 upon oath, against C. D. for an assault and battery, the said C. D. was 
 arrested and tried before the said justice and a jury, and found guilty 
 of the charge, and the said jury assessed the fine which the said C. D. 
 should pay, at the sum of ten dollars, and it was thereupon adjudged 
 and determined by the said justice, that the said C. D. pay the fine so 
 assessed, and, also, the sum of three dollars and ninety-four cents 
 costs : 
 
 We therefore command you immediately to levy the said sum of ten 
 dollars so assessed, and, also, the said sum of three dollars and ninety- 
 four cents costs, by distress and sale of the goods and chattels of the 
 said C. D., (except such goods and chattels as are by law exempt 
 in such cases,) giving twenty days' public notice of the day of sale, 
 by putting up written advertisements at three of the most public 
 places in the county ; and do you return this precept with all conve- 
 nient speed with what you shall do thereon. Hereof fail not. 
 
 Given under the hand and seal of the said justice, the day 
 
 O f 18 
 
 L. M., J. P. [SEAL.] 
 
 form of Execution to levy Costs in case of Malicious Prosecution. 
 
 STATE OF ILLINOIS, 
 
 COUNTY, 
 
 The People of the State of Illinois to any Cbnstable of said County: 
 Whereas upon the information and complaint of A. B., lately ex- 
 hibited before L. M., Esquire, a justice of the peace of said county,
 
 CHAP. 9.] ASSAULT AND BATTERY. 267 
 
 upon oath, against C. D., for an assault and battery, the said C. D. 
 was arrested and tried before the said justice, (or, "and jury") and 
 found not to be guilty of the charge, and it was therefore adjudged and 
 determined by the said justice, that the said C. D. be discharged 
 and acquitted of the said charge ; and it appearing to the said justice 
 on the said trial, that there was no reasonable ground for the said 
 prosecution, and that it was maliciously entered, it was adjudged and 
 determined that the said A. B. pay the costs of said suit, and judgment 
 was thereupon entered against him for the sum of seven dollars, the 
 amount of said costs : 
 
 We therefore command you to levy the said sum of seven dollars, 
 costs as aforesaid, by distress and sale of the goods and chattels of the 
 said A. B., (except such goods and chattels as are by law exempt from 
 execution,) giving twenty days' notice of the day of sale, by putting 
 up written advertisements at three of the most public places in the 
 county; and do you return this precept with all convenient speed, 
 with what you shall do thereon. Hereof fail not. 
 
 Given under the hand and seal of the said justice, the day 
 
 of ,18. 
 
 L M., /. P. [SEAL.] 
 
 Form of Capias against the body, or Mittimus. 
 
 STATE OF ILLINOIS, 
 
 COUNTY 
 
 )is, ) 
 > ss. 
 
 The People of the State of Illinois to any Constable of said County, 
 and to the Keeper of the Common Jail of the said County: 
 
 Whereas upon the information and complaint of A. B., lately ex- 
 hibited before L. M., Esquire, a justice of the peace of said county, 
 upon oath, against C. D. for an assault and battery, the said C. D. was 
 arrested and tried before the said justice and a jury, and found guilty 
 of the charge, and the said jury assessed the fine which he should pay 
 at the sum of ten dollars ; and it was thereupon adjudged and deter- 
 mined by the said justice, that the said C. D. should pay the fine so 
 assessed, and also the sum of three dollars and ninety-four cents, 
 costs : 
 
 And whereas it appears by the return of J. K., constable, dated the 
 
 day of , 18 , that he hath made diligent search for, 
 
 but doth not know of, nor can find any goods and chattels of the said 
 C. D., by distress and sale whereof the said sum of ten dollars fine,
 
 268 ASSAULT AND BATTERY. . [PART 2, 
 
 and three dollars and ninety-four cents costs, may be levied pursuant 
 to the command of our writ of execution to him delivered for that 
 purpose : 
 
 We therefore command you to apprehend the said C. D., and convey 
 him to the common jail of the said county, and deliver him into the 
 custody of the said keeper. And you the said keeper are hereby 
 required to receive the said C. D. into your custody in the said jail, 
 and him there safely keep for the space of forty-eight hours, unless the 
 said fine and costs shall be sooner satisfied, or until he shall be dis- 
 charged by due course of law. 
 
 Given under the hand and seal of the said justice, the day 
 
 of , 18. 
 
 L. M., /. P. [SEAL.]
 
 CHAP. 10.] DOCKET ENTRIES. 269 
 
 CHAPTER X. 
 
 OF DOCKET ENTRIES IN CRIMINAL AND SUMMARY PRO- 
 CEEDINGS, AND FORMS THEREOF. 
 
 In cases of assault, assault and battery, and affrays, the justice is 
 required to enter the proceedings upon his docket, and to render 
 judgment according to the finding of the jury. 1 And in cases of 
 offenses specified in sections one hundred and forty-three, one hundred 
 and forty-four, one hundred and forty-five, one hundred and forty-six, 
 and one hundred and forty-seven of the Criminal Code, he will in like 
 manner enter the proceedings upon his docket. 2 He should also, when 
 any person is examined before him on any criminal charge, enter so 
 much of the proceedings as may be material, upon his docket. In 
 short, all proceedings had before him, or acts done of a judicial 
 nature, ought properly to appear upon his docket. This should not 
 only be done for the benefit of the parties, but may operate in many 
 instances as a further protection to the justice. 
 
 Form of Docket Entry on the examination of a person charged with 
 any criminal offense. 
 
 STATE OF ILLINOIS, 
 COUNTY, 
 
 Before L. M., Justice of the Peace. 
 
 The People ~) 
 
 vs. > Charge of Larceny. 
 
 C. D. ) 
 
 1855 September 10th. This day personally 
 appeared A. B., who being duly sworn, says, 
 that on the 9th day of September, instant, at 
 
 (1) Rev. Stat. 329, See. 96. (2) Rev. Stat. 177, Sees. 149, 150.
 
 270 DOCKET ENTRIES. [PART 2, 
 
 the county aforesaid, C. D. did feloniously 
 steal, take, and carry away, one gold watch, 
 of the value of one hundred dollars, the 
 property of the said A. B. Whereupon a 
 warrant is issued for the arrest of the said 
 C. D., and delivered to constable E. F., to 
 serve. 
 
 September llth. "Warra'nt returned by con- 
 stable E. F., with the said C. D. in custody, 
 before me. Gr. H. and I. K., sworn as witnesses 
 and testified on the part of the people. 0. P. 
 sworn and testified on the part of the prisoner; 
 being all the witnesses attending. 
 
 Upon consideration of the facts and cir- 
 cumstances proved by said witnesses, it 
 appears to me, that the said charge against 
 the said C. D. is true, and he is admitted to 
 bail in good and sufficient security in the 
 sum of Jive hundred dollars, which the said 
 C. D. fails to give, whereupon he is committed 
 
 to the common jail of the county of . 
 
 L. M. 
 
 The foregoing form will probably suffice for the various occasions of 
 examinations, by being varied to conform to the facts. 
 
 Form of Docket Entry in case of assault and battery. 
 
 STATE OP ILLINOIS, > 
 COUNTY, j~ 
 
 Before L. M., Justice of the Peace. 
 
 The People ) 
 
 vs. > Assault and Battery. 
 
 C. D. ) 
 
 1855 September 6th. Information and com- 
 plaint of A. B., a competent person, upon 
 oath, against C. D., for an assault and 
 battery committed upon him, the said A. B. 
 Warrant issued for the arrest of the said 
 C. D., and delivered to constable E. F. to 
 serve.
 
 CHAP. 10.] DOCKET ENTRIES. 271 
 
 Warrant returned at this date by constable 
 E. F., executed by arresting the said C. D., 
 who is now in custody. Constable's fees, 50 
 cents. The accused pleads not guilty, and 
 dispenses with a jury. A. B. and J. K. 
 sworn as witnesses on the part of the people. 
 Upon hearing the evidence adduced, it is 
 adjudged by the court, that the accused is 
 guilty of the charge alleged against him, and 
 that he should pay a fine of ten dollars; 
 judgment is therefore rendered against the 
 said C. D. for ten dollars, with the costs- of 
 
 this proceeding herein taxed at . 
 
 L. M. 
 
 When the cause is tried by jury, the form of docket entry in civil 
 proceedings may be observed, with alterations to conform to the facts. 
 
 The two preceding forms, together with such examples as have been 
 already given, will no doubt suffice in affording a sufficient illustration 
 in regard to docket entries, for every occasion which may arise.
 
 272 JUSTICES' FEES IN CRIMINAL CASES. [PART 3, 
 
 
 CHAPTER XL 
 
 OF JUSTICES' FEES IN CRIMINAL CASES. 
 
 Eev. Stat. 246, Sec. 16. "For taking each complaint in writing, 
 under oath, twenty-five cents. 
 
 For taking the examination of the accused and the testimony of wit- 
 nesses in cases of felony, and returning the same to the circuit court, 
 for every seventy-two words, twelve and a half cents. 
 
 For each warrant, twenty-five cents. 
 
 Taking recognizance, and returning the same, fifty cents. 
 
 For each subpo3na, twenty-five cents. 
 
 Administering each oath, six and a fourth cents. 
 
 For each jury warrant in a trial of assault and battery, twenty-five 
 cents. 
 
 For entering the verdict of the jury, twelve and a half cents. 
 
 For each order or judgment thereon, twenty-five cents. 
 
 For each mittimus, twenty-five cents. 
 
 For each execution, twenty-five cents. 
 
 For entering each appeal, twenty-five cents. 
 
 For transcript of judgment and proceedings in cases of appeal, fifty 
 cents. 
 
 But in all cases where the defendant shall be acquitted, or otherwise 
 legally discharged without the payment of costs, the justice shall not be 
 entitled to any fees." 
 
 In prosecutions in behalf of the people, where no conviction is had, 
 neither the State nor county is bound to pay the fees of officers ; and 
 where the defendant is convicted, it is held that the officers must look 
 to the defendant's estate for their costs, and run the risk of losing them, 
 if he be insolvent. 1 
 
 (1) 4 Scam. 163.
 
 ClIAP. 1.] ATTACHMENTS BEFORE JUSTICES. 273 
 
 PART THIRD. 
 
 OF THE POWERS AND DUTIES OF JUSTICES OF THE PEACE 
 UNDER PARTICULAR STATUTES. 
 
 CHAPTER I. 
 
 OF ATTACHMENTS BEFORE JUSTICES OF THE PEACE. 
 
 I. OP THE ORDINARY PROCEEDING BY ATTACHMENT AGAINST THE 
 
 GOODS AND CHATTELS OF THE DEFENDANT. 
 II. OF ATTACHMENTS OF BOATS AND VESSELS. 
 
 I. OF THE ORDINARY PROCEEDING BY. ATTACHMENT AGAINST THE 
 GOODS AND CHATTELS OF THE DEFENDANT. 
 
 Rev. Stat. 58, Sec. 1. "If any creditor, his agent or attorney, 
 shall file an affidavit with any justice of the peace in this State, setting 
 forth that any person is indebted to such creditor, in a sum not exceed- 
 ing one hundred dollars, and that such debtor has departed, or is about 
 to depart from this State, with the intention of having his effects re- 
 moved from this State ; or is about removing his property from this 
 State, to the injury of such creditor ; or that such debtor conceals him- 
 self, or stands in defiance of an officer, so that process can not be served 
 upon him ; or that such debtor is not a resident of this State, it shall 
 be lawful for the justice to grant a writ of attachment against the perso- 
 nal estate, goods, chattels, rights, moneys and effects of the debtor, 
 directed to any constable of his county, and returnable within thirty 
 days from the date thereof. 
 
 17
 
 274 ATTACHMENTS BEFORE JUSTICES. [PART 3, 
 
 " Sec. 2. The writ of attachment required in the preceding section, 
 shall be substantially in the following form : 
 STATE OF ILLINOIS, 
 
 COUNTY, f sctl 
 
 The people of the State of Illinois, to any constable of said county, 
 greeting : Whereas, A. B., (or agent or attorney of A. B., as the 
 case may be,) hath complained on oath (or affirmation) before C. D., 
 a justice of the peace in and for said county, that E. F. is justly in- 
 debted to the said A. B., in the amount of dollars, and oath 
 
 (or affirmation) having been also made that the said E. F. so absconds 
 or conceals himself, or stands in defiance of a peace officer, authorized 
 to arrest him or her, with civil process, so that the ordinary process of 
 law can not be served on him (or her, as the case may be,) and the 
 said A. B., having given bond and security according to the directions 
 of the act in such cases made and provided; We therefore, command 
 you that you attach so much of the personal estate of the said E. F. to 
 be found in your county as shall be of value sufficient to satisfy the 
 said debt and costs, according to the complaint, and such personal 
 estate so attached, in your hands to secure, or so to provide that the 
 same may be liable to further proceedings thereon, according to law, 
 before the undersigned justice of the peace. And in case personal pro- 
 perty of value sufficient can not be found, that you summon all persons 
 whom the plaintiff or his agent shall direct, to appear before said jus- 
 tice, on the day of next, then and there to answer 
 
 what may be objected against him or them, when and where you shall 
 make known how you executed this writ ; and have you then and there 
 
 this writ. Given under my hand and seal, this day of 
 
 18. 
 
 C. D., Justice of the Peace. Seal. 
 
 "Sec. 3. Upon the issuing of any such writ of attachment, the justice 
 shall take .from the creditor, his agent or attorney, a bond to the defen- 
 dant with good security, to be approved by said justice in a penalty of 
 at least double the amount of the plaintiff's claim, conditioned that 
 said creditor will pay to the defendant and to all others interested in 
 such attachment, or the proceedings to grow out of it, all damages and 
 costs which may be sustained by reason of the wrongful suing out 
 of said attachment. 
 
 " Sec. 4. The condition of the bond required in the preceding sec- 
 tion, shall be substantially as follows :
 
 ClIAI>. 1.] ATTACHMENT AGAINST GOODS AND CHATTELS. 275 
 
 " The condition of the above obligation is such, that whereas the above 
 bounden hath, on the day of tha date hereof, prayed an attach- 
 ment at the suit of , against the personal estate of the above 
 
 named , for the sum of , and the same being about to 
 
 be sued out, returnable on the day of , before (said justice.) 
 
 Now if the said , shall prosecute his suit with effect, or in case 
 
 of failure therein, shall well and truly pay and satisfy the said , 
 
 all such costs in such suit, and such damages as the said may 
 
 sustain by reason of wrongfully suing out the said attachment, then the 
 above obligation to be void, else to remain in full force and virtue. 
 
 Witness our hands and seals, this day of , 18 . 
 
 Seal. 
 Seal. 
 
 " Sec. 5. The constable to whom any attachment may be delivered, 
 shall, without delay, execute the same by levying on the personal pro- 
 perty of the defendant, of value sufficient to satisfy the debt or 
 damages claimed to be due, and all costs attending the collection of the 
 same ; he shall also read the same to the defendant, if the defendant 
 can be found in the county, and make return thereof, stating how he 
 has executed the same. If the defendant, or any other person for him, 
 shall be in the act of removing such personal property, the officer may 
 pursue and take the same, in any county in this State, and convey the 
 same to the county from which such attachment issued. 
 
 " Sec. 6. No attachment shall be abated or dismissed for want of 
 form, if the essential matters required in this chapter be substantially 
 set forth ; and justices of the peace shall allow any amendment to be 
 made, of any affidavit, writ, return or bond, or allow a new affidavit 
 or bond to be filed, which may be necessary to obviate objections to the 
 same ; and in cases of appeals to the circuit courts, the courts shall 
 allow amendments as aforesaid. And in case a plea in abatement, 
 traversing the facts set forth in the affidavit, shall be filed, and if, on a 
 trial to be had thereon, the issue be found for the defendant, the attach- 
 ment shall be quashed. 
 
 " Sec. 7. Upon the return of any attachment issued J&y a justice of 
 the peace, if it shall appear that the defendant has been personally 
 served with the same ; or if such defendant shall appear without such 
 service, the justice shall proceed to hear and determine the cause, as in 
 cases of proceeding by summons. But if it does not appear that the 
 defendant has been served, and no appearance be entered by the defen- 
 dant as aforesaid, the justice shall continue the case ten days, and shall
 
 276 ATTACHMENT AGAINST GOODS AND CHATTELS. [PART 3, 
 
 immediately prepare a notice to be posted up at three public places in 
 the neighborhood of the justice, directed to the defendant, and stating 
 the fact, that an attachment had been issued, and at whose instance 
 the amount claimed to be due, and the time and place of trial ; and 
 also stating that unless the said defendant shall appear at the time and 
 place fixed for trial, judgment will be entered by default, and the 
 property attached ordered to be sold to satisfy the same ; which notice 
 shall be delivered to the constable, who shall post three copies of the 
 same at three public places in the neighborhood of the justice, at least 
 eight days before the day set for trial ; and on or before that day, he 
 shall return the notice delivered to him by the justice, with an endorse- 
 ment threon, stating the time when and the place where he posted copies 
 as herein required. 
 
 " Sec. 8. When notices shall be given of any proceedings by 
 attachment, as required by the seventh section of this chapter, the 
 justice shall on the day set for trial of the cause, proceed to hear and 
 determine the same, as though process had been personally served upon 
 the defendant, and if judgment be given against the defendant, shall 
 order a sale of the property attached, or so much thereof, as will satis- 
 fy the judgment and all costs of suit. But if the constable shall have 
 failed to post the notices as herein required, the justice shall again con- 
 tinue the cause, and require notices to be posted as aforesaid, previous 
 to any trial of the cause. 
 
 " Sec. 9. When any constable shall be unable to find personal 
 property of any defendant, sufficient to satisfy any attachments issued 
 under the provisions of this chapter, he is hereby required to notify any 
 and all persons within this county, whom the creditor shall designate 
 as having any property, effects or choses in action, in his possession or 
 power, belonging to the defendant, or who are in anywise indebted to 
 such defendant, to appear before such justice on the return day of the 
 attachment, then and there to answer upon oath what amount he or she 
 is indebted to the defendant in the attachment, or what property, effects 
 or choses in action, he or she had in his or her possession or power at 
 the time of serving the attachment. The person or persons so sum- 
 moned, shall be considered as garnishees, and the constable shall state 
 in his return, the names of all persons so summoned, and the date of 
 service on each. 
 
 " Sec. 10. When an attachment shall be returned executed upon 
 any person, as garnishee, the justice shall make an entry upon the 
 record of his proceedings in the cause, stating the name of each per-
 
 CHAP. 1.] ATTACHMENT AGAINST GOODS AND CHATTELS. 277 
 
 son summoned, and continue the case as to such garnishee, and shall 
 proceed with the cause as against the defendant, in the attachment, as 
 though the attachment had been levied on personal property. 
 
 " Sec. 11. When judgment is entered by a justice of the peace, 
 against a defendant in attachment, and any person or persons have been 
 summoned as garnishee in the case, it shall be the duty of the justice 
 to issue a summons against each person so summoned, requiring him or 
 her to appear before the justice, at a time 'and place to be fixed in the 
 summons, not less than five nor more than fifteen days from the date 
 thereof, and show cause, if any he or she has, why a judgment shall not 
 be entered against him or her, for the amount of the judgment and costs 
 against the defendant in attachment, which summons shall be served 
 and returned by some constable of the county, and on the return day 
 thereof, if any person so summoned shall fail to appear, the justice shall 
 enter judgment against the person so failing to appear, for the amount 
 of the judgment obtained against the defendant in attachment, and ex- 
 ecution shall be issued thereon, as in other cases. 
 
 " Sec. 12. If any garnishee shall appear at the time and place re- 
 quired by the constable, as aforesaid, and shall upon oath deny all 
 indebtedness to the defendant in the attachment, and deny having any 
 property or effects, or choses in action in his possession or power, be- 
 longing to such defendant, the justice shall forth with discharge him, un- 
 less the plaintiff in the attachment shall satisfy the justice by other tes- 
 timony, that the garnishee was indebted to the defendant in the attach- 
 ment, or had property, effects or choses in action in his possession or 
 power, at the time he was garnisheed, in which case the justice shall give 
 judgment in the premises, according to the right and justice of the 
 cause, and issue execution as in other cases. 
 
 " Sec. 13. Judgments obtained under the provisions of this chapter, 
 where the defendant has been personally 'served with process, or shall 
 have appeared to the action, shall have the same force and effect, as 
 judgments obtained upon a summons ; but the property attached shall 
 be sold before any execution is issued upon such judgment, and if such 
 property shall not sell for a sum sufficient to pay the judgment and 
 costs, execution may be issued to collect the balance. 
 
 " Sec. 14. Judgments obtained under the provisions of this chap- 
 ter, when the defendant has not been personally served with process, 
 and no appearance being entered, shall only authorize a sale of the prop- 
 erty levied upon, and proceedings against garnishees to collect the amount 
 thereof. Defendants in attachments issued under the provisions of this
 
 
 278 ATTACHMENT AGAINST GOODS AND CHATTELS. [PART 3, 
 
 chapter, where property may be levied upon, or the person in whose 
 possession the property may be found, may retain possession of such 
 property upon executing a bond to the plaintiff in the attachment, with 
 good security in a penalty of double the amount claimed by the attach- 
 ment, conditioned that the property shall be delivered to any constable 
 of the county, whenever demanded, to be sold in satisfaction of any 
 judgment which may be Obtained in the attachment suit, or in case the 
 property is not delivered, that the obligors will pay and satisfy the said 
 judgment and costs ; and when a bond shall be executed, the constable 
 shall return the same with the attachment, and upon a breach of any 
 condition thereof, the plaintiff shall have a right to prosecute suit thereon, 
 and to recover the amount due upon his judgment and costs. 
 
 "Sec. 15. In all cases arising under the provisions of this chapter, 
 when two or more attachments shall be levied on the same property, or 
 be proved on the same garnishee, and judgment shall be entered on the 
 same day, the proceeds of the property attached, or the money obtained 
 from gamishees, shall be divided among the several plaintiffs in ataeh- 
 ment, according to the amount of their judgments respectively : provided, 
 that, when the property sought to be attached shall have been removed 
 from the county in which the attachment issued, and shall be overtaken 
 and returned to such county, the claim of such attaching creditor shall 
 have priority over attachments subsequently issued. 
 
 "Sec. 16. Persons summoned as gamishees may set up the same 
 defense in trials under this chapter, as they might against the defendant 
 in the attachment ; and may, in like manner, make any set-off against 
 the defendant, whether the same be due or not. 
 
 " Sec. 17. Whenever judgment shall have been rendered against 
 any garnishee, and it shall appear that the debt from him to the defend- 
 ant in the attachment, is not yet due, execution shall not issue against 
 him until twenty days after the same shall become due : provided, the 
 plaintiff may swear out execution, as in other cases, after the said debt 
 becomes due. 
 
 " Sec. 18. Any garnishee having effects of the defendant in his 
 hands, may, by delivering the same, or any part thereof, to the consta- 
 ble, and taking his receipt therefor, be discharged from his liability re- 
 specting such effects so delivered. 
 
 " Sec. 19. When two or more persons not residing in this State, are 
 jointly indebted, either as joint obligors, partners, or otherwise, the writ 
 or writs of attachment may be issued against the separate and joint 
 estate of such debtors, or any of them, either by their proper names,
 
 CHAP. 1.] ATTACHMENT AGAINST GOODS AND CHATTELS. 279 
 
 or by, or in the name or style of the partnership, or by whatever other 
 name or names such joint debtors shall be generally reputed, known or 
 distinguished in this State, or against the heirs, executors or adminis- 
 trators of them, or either of them ; and the goods, chattels, rights, 
 credits and effects of such debtors, or either or any of them, shall be 
 liable to be seized and taken for the satisfaction of any just debt or other 
 legal demand, and may be sold to satisfy the same. 
 
 " Sec. 20. The right of property may be tried, and appeals taken 
 in all cases arising under this chapter, in the same manner as when 
 property is taken on execution or judgment rendered in ordinary cases. 
 
 " Sec. 21. The affidavit required in the first section of this chapter, 
 may be sworn to in the manner prescribed in section thirty-two of chap- 
 er nine of the revised statutes. 
 
 " Sec. 22. This chapter shall be construed in all courts in the 
 most liberal manner for the detection of fraud. 
 
 "Sec. 23. The provisions of chapter one of the revised statutes 
 shall apply as well to suits in attachment, as to other cases." 
 
 Form of Affidavit for Attachment. 
 
 STATE OP ILLINOIS, ") 
 Cook COUNTY, ) 
 
 A. B., of said county, being duly sworn, doth depose and say, that C. 
 D., against whom the said A. B. is about to sue out an attachment, is justly 
 indebted to him in a sum not exceeding one hundred dollars, to wit, the 
 sum of twenty-five dollars ; and that the said C. D. has departed from 
 this State, (or "is about to depart from this State, with the intention of 
 having his effects removed from this State ;" or " is about removing 
 his property from this State to the injury of such creditor;" or "that 
 such debtor conceals himself, or stands in defiance of an officer, so 
 that process cannot be served upon him ;" or " that such debtor is not 
 a resident of this State.") 
 
 Subscribed and sworn to before | A. B. 
 
 me, this day of , A. D. 18 . V 
 BENJAMIN COOL, J. P. J 
 
 Form of Attachment Bond. 
 
 Know all men by these presents, that we A. B. and C. D. are held and 
 
 firmly bound unto E. F. in the penal sum of dollars, (insert at least 
 
 double the amount of the plaintiff ' s claim,') for the payment of whick.:
 
 280 ATTACHMENT AGAINST GOODS AND CHATTELS. [PART 3, 
 
 well and truly to be made, we bind ourselves, our heirs, executors and 
 administrators, jointly and severally, firmly by these presents. 
 
 The condition of the above obligation is such that, (conclude accord- 
 ing to the form prescribed by the statute, see ante, Page 274, Sec. 4.) 
 
 Approved by me, this day 1 
 
 of , A. D. 18-. B; 
 
 BENJAMIN COOL, J. P. J 
 
 Writ of attachment. For form of the writ of attachment, see Page 
 274, Sec. 2, being the same as prescribed by the statute. 
 
 Form of Attachment Notice, when defendant is not personally served. 
 
 In Justice's Court. 
 A. B. ) 
 vs. ^ 
 
 C. D. ) 
 
 To the above named defendant : 
 
 You are hereby notified that an attachment has been issued by the 
 
 undersigned, a justice of the peace in and for the county of , at 
 
 the instance of A. B., the above named plaintiff, against your personal 
 property ; that the said attachment was issued for the sum of fifty dol- 
 lars, which amount the said plaintiff claims to be due to him from you; 
 
 that the cause will be tried before me at my office in , in said 
 
 county, on the day of , and that, unless you shall appear at 
 
 the time and place fixed for trial, judgment will be entered by default, 
 and the property attached ordered to be sold to satisfy the same. 
 
 Dated this day of , 18. L. M., 
 
 Justice of the Peace. 
 
 Form of Summons for Garnishee who does not appear on return 
 day of attachment. 
 
 STATE OF ILLINOIS, ) 
 Cook COUNTY, j ss ' 
 
 The People of the State of Illinois to any Constable of said County, 
 
 GREETING : 
 
 Whereas A. B. recovered a judgment in attachment before the under- 
 signed, justice of the peace of said county, against C. D., and whereas 
 R. T. was duly served with said attachment as garnishee, and has not 
 made answer therein ; you are therefore hereby commanded to summon
 
 CHAP. 1.] ATTACHMENTS OF BOATS AND VESSELS. 281 
 
 the said R. T., to appear before me at my office in North Chicago, on 
 
 the day of , A. D. 185-, at o'clock, M., to 
 
 show cause, if any he have, why judgment shall not be entered against 
 
 him for dollars and cents, the amount of said judgment 
 
 and costs against the said defendant in attachment. Hereof make due 
 service and return as the law directs. 
 
 Given under my hand and seal this day of , A. D. 18 5-. 
 
 THOS. G. PRENDERQAST, J. P. [SEAL.] 
 
 II. OF ATTACHMENTS OF BOATS AND VESSELS. 
 
 Rev. Stat. 71, Sec. 1. " Boats and vessels of all descriptions, built, 
 repaired or equipped, or running upon any of the navigable waters 
 within the jurisdiction of this State, shall be liable for all debts contract- 
 ed by the owner or owners, masters, supercargoes or consignees thereof, 
 on account of all work done, supplies or materials furnished by mechanics, 
 tradesmen and others, for, on account of, or towards the building, 
 repairing, fitting, furnishing or equipping such boats and vessels, their 
 engines, machinery, sails, rigging, tackle, apparel and furniture ; and 
 such debts shall have the preference of all other debts due from the 
 owners, or proprietors, except the wages of mariners, boatmen and 
 others, employed in the service of such boats and vessels, which shall 
 first be paid. 
 
 " Sec. 2. Any person having a demand, contracted as before men- 
 tioned, against any such boat or vessel, may have an attachment to be 
 issued out of any court, or by any justice of the peace having juris- 
 diction thereof in any county in this State in which such boat or 
 vessel may be found, either against the owner or owners by their 
 proper names, or by the name and style of their copartnership, if 
 known, otherwise against such boat or vessel, by her name or de- 
 scription only, authorizing and directing the seizure and detention 
 of the same, with her engine, machinery, sails, rigging, tackle, 
 apparel and furniture, .by the sheriff or constable, upon affidavit 
 being made of the justice of such demand, and bond given by the 
 plaintiff as in other cases of attachment : Provided, That in all cases 
 where such proceedings are instituted against such boat or vessel 
 by her name and description only, the bond to be given by the 
 plaintiff, shall be made payable to the people of the State of Illi-
 
 282 ATTACHMENTS OP BOATS AND VESSELS. [PART 3, 
 
 nois, but for the use and benefit of the owner or owners of such boat 
 or vessel, who may institute a suit thereon, if damages be occa- 
 sioned by the issuing of such attachment, and have recovery thereon, 
 in, the same manner as if said bond had been given to such person 
 or persons by their proper names, or in the name and style of their 
 copartnership. 
 
 " Sec. 3. Upon the return of such attachment, the person or persons 
 having demands of the description aforesaid, and for whose benefit 
 such attachment was issued, shall file a written declaration or state- 
 ment, against such boat or vessel by her name or description, or 
 against the owner or owners, if known as aforesaid, briefly reciting 
 the nature of the demand, whether for work done, or materials, fire- 
 wood, or supplies of provisions furnished ; and whether at the re- 
 quest of the owner, master, supercargo or consignee of such boat or 
 vessel, and that such demand remains unpaid ,annexing to such declara- 
 tion or statement, a bill of the particulars constituting such demand, 
 in separate and distinct items ; and the like proceedings shall be 
 had in all other respects, and the like judgment and execution as 
 in other cases of attachment. 
 
 " Sec. 4. All engineers, pilots, mariners, boatmen and others 
 employed in any capacity, in or about the service of any such boat or 
 vessel, who may be entitled to arrearages of wages in consequence of 
 such service, may proceed to collect such wages under the provisions 
 of this chapter, and shall be entitled to all the benefits hereof. 
 
 " Sec. 5. If the owner or owners, master, supercargo or consignee, 
 of any such boat or vessel, seized by attachment as aforesaid, shall at 
 any time before final judgment, give bond to the plaintiff, with security 
 to be approved by the clerk of the circuit court, or by the judge in 
 term tune, (or justice of the peace, as the case may be,) in double the 
 amount of the demand sued for, and a sufficiency to discharge all costs 
 which may accrue thereon, conditioned to pay and satisfy such judg- 
 ment as the court (or justice of the peace,) may render against such 
 boat or vessel or defendant party, together with the costs of suit, then 
 such boat or vessel shall be forthwith discharged from such attachment, 
 seizure and detention ; but shall nevertheless be liable to be taken and 
 sold on any execution to be issued on such judgment, or upon the 
 judgment which may be rendered at any time on the bond required to 
 be given by the defendant party as aforesaid. 
 
 " Sec. 6. No creditor shall be allowed to enforce the lien created 
 under the provisions of this chapter, as against, or to the prejudice of 

 
 CHAP. 1.] ATTACHMENTS OF BOATS AND VESSELS. 283 
 
 any other creditor, or subsequent incumbrancer, or bonafide purchaser, 
 unless suit be instituted to enforce such lien as provided in this chapter, 
 within three months after the indebtedness accrues or becomes due, 
 according to the terms of the contract." 
 
 As will be seen by section 3 of the preceding chapter of the statute, 
 the like proceedings will be had in all other respects from those pointed 
 out by said chapter, as in other cases of attachment ; therefore some of 
 the forms heretofore given in cases of attachment, may be used in pro- 
 ceeding under this chapter ; and which it has been thought unnecessary 
 to repeat in the following list of forms. 
 
 Form of Affidavit for an Attachment against a boat or vessel. 
 
 STATE OF ILLINOIS, "> 
 COUNTY, \ 
 
 ss. 
 
 C. D. of , in said county, being duly sworn, says that on 
 
 the day of , 18 , at , in said county, he made 
 
 a contract with E. F., then the master of the steamboat , to 
 
 furnish for the said boat certain materials towards repairing the said 
 boat, and in pursuance of said contract, did furnish the same, and that 
 the said master contracted and agreed on his part to pay him therefor 
 
 the sum of dollars, which said sum is still due and unpaid ; 
 
 and that he does not know whether the said boat is owned by co-part- 
 ners, nor does he know who are the owners thereof. He therefore 
 prays an attachment against said steamboat by her name, authorizing 
 and directing the seizure and detention of the same, with her engine, 
 machinery, apparel, and furniture. 
 
 Subscribed and sworn to before me, C. D. 
 
 L. M., a justice of the peace of said 
 
 county, this day of , 18 . 
 
 L. M., J. P. 
 
 Form of Bond for an Attachment against a boat or other vessel. 
 
 Know all men by these presents, that we, C. D. and E. F., of the 
 
 county of , and the State of Illinois, are held and firmly bound 
 
 unto the people of the State of Illinois, for the use and benefit of the 
 
 owner or owners of the steamboat , in the sum of (insert double 
 
 the sum for which the complaint is made,} to be paid to said people 
 of the State of Illinois for the use aforesaid ; to which payment well
 
 284 ATTACHMENTS OF BOATS AND VESSELS. [PART 3, 
 
 and truly to be made, we bind ourselves, our heirs, executors and 
 administrators, jointly and severally, firmly by these presents. 
 
 Sealed with our seals, and dated this day of , 18 . 
 
 Whereas, the above bounden C. D. hath on the day of the date 
 hereof, prayed an attachment in favor of the said C. D., against the 
 
 steamboat , with her engine, machinery, apparel, and furniture, 
 
 the owners of which are unknown, for the sum of dollars, 
 
 and the same being about to be sued out, returnable on the 
 
 day of , instant, (or " next,") before L. M., a justice of the peace 
 
 of county : 
 
 Now therefore, the condition of this obligation is such, that if the 
 said C. D. shall prosecute his suit with effect, or in case of failure 
 therein, shall well and truly pay and satisfy all such costs in said suit, 
 and such damages as shall be awarded against the said C. D., his heirs, 
 executors, or administrators, in any suit or suits which may hereafter 
 be brought for wrongfully suing out the said attachment, then the 
 above obligation to be void, or otherwise to remain in full force and 
 effect. 
 
 Sealed and delivered in the ^ C. D. [SEAL.] 
 
 presence of E F [ SEAL -j 
 
 L. M. 
 
 Form of Attachment against a boat or vessel. 
 
 STATE OF ILLINOIS, ") 
 COUNTY, ) 
 
 The People of the State of Illinois to any Constable of said County, 
 GREETING : 
 
 Whereas, A. B. hath this day complained on oath, that, on the 
 
 day of , 18 , he made a contract with C. D., then the master 
 
 of the steamboat , to furnish for the said boat certain materials 
 
 towards repairing the said boat, and, in pursuance of said contract, did 
 furnish the same ; and that the said master contracted and agreed on 
 
 his part, to pay him therefor the sum of dollars, which said sum 
 
 is still due and unpaid; and that he did not know whether the said boat 
 was owned by co-partners, nor did he know who were the owners thereof; 
 and, whereas the said A. B. thereupon made application to me, the un- 
 dersigned, a justice of the peace of said county, for an attachment for 
 said sum of dollars, against said steamboat, by her name, authori- 
 zing and directing the seizure and detention of the same, with her en-
 
 CHAP. 1.] ATTACHMENTS OF BOATS AND VESSELS. 285 
 
 gine, machinery, apparel, and furniture, and gave bond and security 
 according to the directions of the statute in such case made and pro- 
 vided : 
 
 We, therefore, command you that you attach the said steamboat 
 
 , with her engine, machinery, apparel and furniture, if to be 
 
 found in your county, and detain the same, so that they may be liable 
 to further proceedings thereon according to law, before the undersigned, 
 
 a justice of the peace, at his office in , in said county, on the 
 
 day of instant, (or " next,") at o'clock in the noon, 
 
 when and where you shall make known to the said justice of the peace 
 how you have executed this writ ; and have you then and there this 
 precept. 
 
 Given under the hand and seal of said justice, this day of 
 
 , A. D. 18. 
 
 L. M., J. P. [SEAL.] 
 
 Form of Affidavit against the owners of a vessel. 
 
 STATE OF ILLINOIS, 
 COUNTY, 
 
 A. B., of , in said county; being duly sworn, deposes and 
 
 says, that C. D., E. F. and G. H., the owners of the schooner , 
 
 are justly indebted to him in the sum of dollars, for work done 
 
 upon the said schooner , and for materials furnished for the 
 
 same, by this deponent, at the request of I. J., the master of the said 
 schooner. 
 
 Subscribed and sworn to before me, | A. B. 
 
 L. M., a justice of the peace of said 
 
 county, this day of , 18 . 
 
 L. M., J. P. 
 
 Form of Bond for an Attachment against the owners of a vessel. 
 
 Know all men by these presents, that we, C. D. and K. L., of the 
 county of Lake and State of Illinois, are held and firmly bound unto 
 E. F., G. H. and I. J. in the sum of (insert double the sum for which 
 the complaint is made,) to be paid to the said E. F., G. H. and I. J., 
 their executors, administrators or assigns, to which payment, well and 
 truly to be made, we bind ourselves, our heirs, executors and adminis- 
 trators, jointly and severally, firmly by these presents. 
 
 Sealed with our seals, and dated this day of , 18 .
 
 286 ATTACHMENTS OF BOATS AND VESSELS. [PART 3, 
 
 Whereas, the above bounden C. D. hath, on the day of the date 
 hereof, prayed for an attachment in favor of C. D., against the said 
 E. F., G. H. and I. J., for the sum of - dollars, authorizing and 
 directing the seizure and detention of the schooner - , with her 
 sails, rigging, tackle, apparel and furniture, and the same being about 
 to be sued out, returnable on the - day of - instant, (or 
 " next,") before L. M., a justice of the peace of the county of Lake : 
 
 Now, therefore, the condition of this obligation is such, that if the 
 said C. D. shall prosecute his suit with effect, or in case of failure 
 therein, shall well and truly pay and satisfy to the said E. F., G. H. I 
 and I. J., all such costs in said suit, and such damages as shall be 
 awarded against the said C. D., his heirs, executors, or administrators, 
 in any suit or suits which may hereafter be brought for wrongfully suing 
 out the said Attachment, then the above obligation to be void, otherwise 
 to remain in full force and effect. 
 
 Sealed and delivered in the ~\ C. D. [SEAL.] 
 
 presence of I K . L. [SEAL.] 
 
 Form of Attachment against the owners of a boat or vessel. 
 
 *., 
 
 oil- i* 
 
 COUNTY, 
 
 STATE OF ILLINOIS, ) ' ' J^ 
 
 , ]" s{ 
 
 The People of the State of Illinois to any Constable of said County, 
 
 GREETING : 
 
 Whereas, C. D. hath this day complained, on oath, that E. F., G. H. 
 and I. J., the owners of the schooner - , were justly indebted to 
 him in the sum of - dollars, for work done upon said schooner 
 
 - , and for materials furnished for the same by this deponent, at 
 the request of K. L., the master of said schooner : 
 
 We therefore command you, that you attach the said schooner, with 
 her sails, rigging, tackle, apparel, and furniture, if to be found in your 
 county, and detain the same, so that they may be liable to further 
 proceedings thereon according to law, before the undersigned, a justice 
 of the peace, on the - day of - , instant, (or "next,") at 
 
 - o'clock in the - noon, at his office in -- , in said 
 county, when and where you shall make known to the said justice of 
 the peace, how you have executed this writ. And have you then and 
 there this precept.
 
 ClIAP. 1.] ATTACHMENTS OF BOATS AND VESSELS. 287 
 
 Given under my hand and seal at my office in , in said 
 
 county, this day of , A. D. 18 . 
 
 L. M., J. P. [SEAL.] 
 
 Form of Declaration or Statement in Attachment against boats or 
 
 vessels. 
 
 STATE OF ILLINOIS, 
 COUNTY 
 
 fOIS, ) 
 
 Y, r s - 
 
 Before L. M., a justice of the peace of said county : 
 
 C. D. J 
 
 vs. > Attachment. 
 
 The steamboat ) 
 
 The steamboat was attached in this case at the suit of C. D., 
 
 the plaintiff, and thereupon the said plaintiff complains of said steam- 
 boat, for that whereas, on the day of , 18 , at said 
 
 county, the said steamboat was indebted to the plaintiff in the sum 
 
 of dollars, for the work and labor of the plaintiff, before that 
 
 time done, performed, and bestowed, in and about the repairing of the 
 said steamboat, at the request of one E. F., then the master thereof; 
 which said demand remains wholly unpaid : the plaintiff further avers, 
 that he does not know who are the owners of said boat. 
 
 C. D., Plaintiff-. 
 
 BiU of Particulars. 
 18. 
 
 Jan. 1st. The Steamboat to , Dr. 
 
 To. ten days' labor hi painting said boat, at $ 
 
 per day, $ 
 
 Another form, in Attachment against Owners. 
 
 STATE OF ILLINOIS, ) 
 COUNTY, \ 
 
 as. 
 
 Before L. M., a justice of the peace of said county. 
 
 A. B. > 
 
 vs. > Attachment. 
 
 C.D..E. F.andG.H. ) 
 
 C. D., E. F. and G. H., the defendants, were attached in this case 
 at the suit of A. B., the plaintiff, and thereupon the said plaintiff
 
 288 ATTACHMENTS OF BOATS AND VESSELS. [PART 3, 
 
 complains, for that whereas, on the day of , 18 , at 
 
 the said county, the said C. D., E. F. and G. H. were indebted to the 
 plaintiff in the sum of dollars, for certain firewood and mate- 
 rials before that time furnished by the plaintiff to the defendants, to be 
 used in and about the repairing, furnishing and fitting the steamboat 
 , at the request of the said defendants ; which demand now re- 
 mains wholly unpaid. 
 
 A. B., Plaintiff. 
 
 * 
 
 Bill of Particulars. 
 
 C. D., E. F. and G. H., owners of the 
 
 18 . steamboat to , Dr. 
 
 Jan'y 1st. To 1,000 feet pine Lumber, $ 
 
 " To 1 doz. Common Chairs 
 
 " To 10 cords Wood, at $ per cord, 
 
 Deputation of Constable pro. tern, to serve Attachment. 
 
 STATE OF ILLINOIS, "> 
 COUNTY, j 
 
 It being made to appear to the undersigned, a justice of the peace of 
 said county, that there is a probability that the goods and chattels of the 
 within named defendant will be removed before application can be 
 made to a qualified constable to execute the within attachment, he there- 
 fore appoints 0. P. to execute this precept. 
 
 Given under my hand and seal, this day of , 18 . 
 
 L. M., /. P. [SEAL.]
 
 CHAP. 2.] ACKNOWLEDGMENT AND PKOOF OF DEEDS. 289 
 
 CHAPTER II. 
 
 OF THE ACKNOWLEDGMENT AND PROOF OF DEEDS AND 
 OTHER INSTRUMENTS. 
 
 Rev. Stat. 106, Sec. 17. "When any husband and wife residing 
 in this State, shall wish to convey the real estate of the wife, it shall 
 and may be lawful for the said husband and wife, she being above the 
 age of eighteen years, to execute any grant, bargain, sale, lease, release, 
 feoffment, deed, conveyance or assurance, in law whatsoever, for the 
 conveying of such lands, tenements and hereditaments; and if, after the 
 executing thereof, such wife shall appear before some judge or other 
 officer, authorized by this chapter to take acknowledgments, to whom 
 she is known, or proved by a credible witness to be the person who 
 executed such deed or conveyance, such judge or other officer shall make 
 her acquainted with, and explain to her the contents of such deed or 
 conveyance, and examine her separate and apart from her husband, 
 whether she executed the same voluntarily, freely, and without com- 
 pulsion of her said husband ; and if such woman shall, upon such ex- 
 amination, acknowledge such deed or conveyance to be her act and 
 deed, that she executed the same voluntarily and freely, and without 
 compulsion of her husband, and does not wish to retract, the said judge 
 or other officer shall make a certificate indorsed on, or annexed to such 
 deed or conveyance, stating that such woman was personally known to 
 the said judge or other officer, or proved by a witness, (naming him,) 
 to be the person who subscribed such deed or conveyance, and setting 
 forth the examination and acknowledgment aforesaid, and that the con- 
 tents were made known and explained to her ; and such deed, (being 
 acknowledged or proved according to law as to the husband,) shall be 
 as effectual in law as if executed by such woman while sole and un- 
 married. No covenant or warranty contained in any such deed or, 
 18
 
 290 ACKNOWLEDGMENT AND PROOF OF DEEDS. [PART 3, 
 
 conveyance, shall in any manner bind or affect such married woman, or 
 her heirs, further than to convey from her and her heirs effectually, her 
 right and interest expressed to be granted or conveyed in such deed or 
 conveyance." 
 
 When by Husband and Wife, conveying the real estate of the wife. 1 
 
 STATE OF ILLINOIS, ) 
 Cook COUNTY, j 
 
 I, Homer Wilmarth, a justice of the peace in and for said county, 
 do certify that C. D. and E. D., his wife, whose signatures appear to 
 the foregoing deed, and who are personally known to me to be the 
 persons whose names are subscribed to such deed, as having executed 
 the same, appeared before me this day in person, and did acknowledge 
 the same to be their free act and deed. 
 
 And the said E. D., who is above the age of eighteen years, having 
 been by me examined separate and apart from her said husband, and 
 the contents of said deed having been by me made known and explain- 
 ed to her, she acknowledged that she had executed the same voluntarily, 
 freely and without compulsion of her said husband, and does not wish 
 to retract the same. 
 
 Given under my hand and seal this day of , A. D., 18 . 
 
 HOMER WILMARTH, J. P. [SEAL.] 
 
 " Sec. 20. No judge or other officer, shall take the acknowl- 
 edgment of any person to any deed, or instrument of writing as 
 aforesaid, unless the person offering to make such acknowledgment, 
 shall be personally known to him to be the real person who, and in 
 whose name such acknowledgment is proposed to be made, or shall be 
 proved to be such, by a credible witness, and the judge or officer taking 
 such acknowledgment, shall, in his certificate thereof, state that such 
 person was personally known to him to be the person whose name is 
 subscribed to such deed or writing, as having executed the same, or that 
 he was proved to be such by a credible witness, (naming him.) And 
 on taking proof of any deed or instrument of writing, by the testimony 
 of any subscribing witnesses, the judge or officer shall ascertain that 
 the person who offers to prove the same, is a subscribing witness, either 
 from his own knowledge, or from the testimony of a credible witness ; 
 and if it shall appear from the testimony of such subscribing witness, 
 
 (1) ROT. Stat. 106, Sec. 17. See ante, Page 289.
 
 CHAP. 2.] ACKNOWLEDGMENT AND PROOF OP DEEDS. 291 
 
 that the person whose name appears subscribed to such deed or writing, 
 is the real person who executed the same, and that the witness sub- 
 scribed his name as such, in his presence and at his request, the judge 
 or officer shall grant a certificate, stating that the person testifying as 
 subscribing witness, was personally known to him to be the person whose 
 name appears subscribed to such deed as a witness of the execution 
 thereof, or that he was proved to be such by a credible witness, (naming 
 him, and stating the proof made by him ; and where any grantor or 
 person executing such deed or writing, and the subscribing witnesses 
 are deceased, or cannot be had, the judge or officer as aforesaid, may 
 take proof of the hand writing of such deceased party and subscribing 
 witness or witnesses (if any,) and the examination of a competent and 
 credible witness, who shall state on oath or affirmation, that he person- 
 ally knew the person, whose hand writing he is called to prove, and 
 well knew his signature, (stating his means of knowledge,) and that he 
 believes the name of such person subscribed to such deed or writing, 
 as party or witness (as the case may be), was thereto subscribed by 
 such person ; and when the hand writing of the grantor or person 
 executing such deed or writing, and of one subscribing witness (if any 
 there be,) shall have been proved as aforesaid, the judge or officer shall 
 grant a certificate thereof, stating the proof aforesaid." 
 
 Form of Certificate of Acknowledgment by one Grantor, personally 
 known to the Justice. 1 
 
 STATE OF ILLINOIS, ) 
 
 ? ^!^ 
 
 Cook COUNTY, | ' l 
 
 I, 0. De Wolf, a justice of the peace in and for said county, do 
 certify that C. D., whose signature appears to the foregoing deed, and 
 who is personally known to me to be the person whose name is sub- 
 scribed to such deed, as having executed the same, appeared before ine 
 this day in person, and did acknowledge the same to be his free act 
 and deed. 
 
 Given under my hand and seal, this day of , A. D. 18 . 
 
 C. DEWOLF, J. P. [SEAL.] 
 
 (1) Rev. Stat. 107, Sec. 20.
 
 '292 ACKNOWLEDGMENT AND PROOF OF DEEDS. [PART 3, 
 
 By a Grantor, when proved by a credible witness* 
 
 STATE OF ILLINOIS, ") 
 Cook COUNTY, j S 
 
 I, Patrick Lamb, a justice of the peace in and for said county, do 
 certify, that C. D., whose signature appears to the foregoing deed, who 
 was proved to me, by the oath of E. F., a competent and credible wit- 
 ness, to be the person whose name is subscribed to such deed, as having 
 executed the same, appeared before me this day in person, and did 
 acknowledge the same to be his free act and deed. 
 
 Given under my hand and seal, this day of , A. D. 18 . 
 
 PATRICK LAMB, J. P. [SEAL.] 
 
 When proof of deed or instrument is taken by the testimony of a 
 subscribing witness known to the justice. * 
 
 STATE OF ILLINOIS, ) 
 Cook COUNTY, j 
 
 I, Owen Me Carthy, a justice of the peace in and for said county, do 
 certify, that C. D., who is personally known to me to be the person 
 whose name appears subscribed to the foregoing deed as a witness of the 
 execution thereof, appeared before me this day in person, and being 
 duly sworn, according to law, testified that E. F., whose name appears 
 subscribed to such deed as having executed the same, is the real person 
 who executed the same, and that he, the said C. D., subscribed his 
 name as such witness, in the presence of the said C. D., and at his 
 request. 
 
 Given under my hand and seal, this day of , A. D. 18 . 
 
 OWEN MCCARTHY, J. P. [SEAL.] 
 
 When proof of deed or instrument is taken by subscribing icitness, 
 not known, but proved to the justice? 
 
 STATE OF ILLINOIS, , 
 
 ' ss. 
 
 Cook COUNTY, ) 
 I, Andrew Aiken, a justice of the peace in and for said county, do 
 certify, that C. D., whose name appears subscribed to the foregoing 
 deed, as a witness of the execution thereof, and who was proved to me, 
 by the oath of E. F., a competent and credible witness, to be the per- 
 
 (1) Rev. Stat. 107, Sec. 20. See ante, Page 290. (2) Ibid. See ante, Page 290. 
 
 (3) Ibid. See ante, Page 290.
 
 ClIAP. 2.] ACKNOWLEDGMENT AND PROOF OF DEEDS. 293 
 
 son whose name appears subscribed to such deed as a witness to the 
 execution thereof, appeared before me this day in person, and being duly 
 sworn according to law testified, that G. H., whose name appears sub- 
 scribed to such deed as having executed the same, is the real person 
 who executed the same, and that he, the said C. D., subscribed his 
 name as such witness in the presence of the said G. H., and at his re- 
 quest. 
 
 Given under my hand and seal, this day of , A. D. 18 . 
 
 ANDREW AIKEN, J. P. [SEAL.] 
 
 When Proof of Deed is made, where the grantor and subscribing 
 witnesses are deceased, or not to be had. 1 
 
 STATE OF ILLINOIS, ") 
 Cook COUNTY, j ss> 
 
 I, M. L. Dunlap, a justice of the peace in and for said county, do 
 certify, that C. D., a competent and credible witness, appeared before 
 me this day in person, and being duly sworn according to law, stated 
 on oath, that he personally knew E. F., whose name appears subscribed 
 to the foregoing deed, as having executed the same, and G. H., whose 
 name appears subscribed to such deed as a witness to the execution 
 thereof; that they are now deceased, (or "cannot be had," as the 
 case may be) that he well knew the signature of each of said persons, 
 having seen each of them 1 frequently write their names, (or other 
 means of knowledge,} and that he believes the name of said E. F. ; 
 subscribed to such deed as having executed the same, and the name of 
 said G. H., subscribed thereto as a witness of the execution thereof, 
 were thereunto subscribed by said persons. 
 
 Given under my hand and seal, this day of , A. D. 18 . 
 
 M. L. DUNLAP, J. P. [SEAL.] 
 
 " Sec. 21. It shall and may be lawful for any married woman to 
 release her right of dower of, in and to any lands and tenements, 
 whereof her husband may be possessed or seized, by any legal or equi- 
 table title during coverture, by joining such husband in the deed or 
 conveyance, for the conveying of such lands and tenements, and ap- 
 pearing and acknowledging the same before any judge or other officer 
 authorized to take acknowledgments by this chapter ; and it shall be 
 the duty of such judge or other officer, if such woman be not person- 
 ally known to him to be the person who subscribed such deed or con- 
 
 (1) Rev. Stat. 107, Sec. 20. See ante, Page 290.
 
 294 ACKNOWLEDGMENT AND PROOF OF DEEDS. [PART 3, 
 
 veyance, to ascertain the same by the testimony of at least one compe- 
 tent and credible witness ; and upon being satisfied of that fact, shall 
 acquaint such woman with the contents of the deed or conveyance, and 
 shall examine her separate and apart from her husband whether she 
 executed the same, and relinquished her dower to the lands and tenements 
 therein mentioned, voluntarily, freely, and without compulsion of her 
 said husband ; and if she acknowledged that she executed the same, 
 and relinquishes her dower in the lands and tenements therein men- 
 tioned, voluntarily, freely and without the compulsion of her husband, 
 such judge, or other officer, shall grant a certificate to be indorsed on, 
 or annexed to such deed, stating that such woman was personally known 
 to him, or was proved by a witness (naming him) to be the person who 
 subscribed such deed or writing ; and that she was made acquainted 
 with the contents thereof, and was examined and acknowledged such 
 deed as aforesaid ; which being recorded, together with the deed duly 
 executed and acknowledged by the husband according to law, shall be 
 sufficient to discharge and bar the claim of such woman to dower in 
 the lands and tenements conveyed by such deed or conveyance." 
 
 When by Husband and Wife for relinquishment of Dower. 1 
 
 STATE OF ILLINOIS, ) 
 Cook COUNTY, j S{ 
 
 I. Benjamin Cool, a justice of the peace, in and for said county, do 
 certify that C. D. and E. D., whose names appear to the foregoing deed, 
 and who are personally known to me to be the persons whose names are 
 subscribed to such deed as having executed the same, appeared before 
 me this day in person, and did acknowledge the same to be their free act 
 and deed. 
 
 And the said E. D., wife of the said C. D., having been by me 
 made acquainted with the contents of said deed, and being examined 
 by me separate and apart from her said husband, she acknowledged that 
 she executed the same, and relinquished her dower to the lands and 
 tenements therein mentioned, voluntarily, freely and without compul- 
 sion on the part of her said husband. 
 
 Given under my hand and seal, this day of , A. D. 18 . 
 
 BENJAMIN COOL, J. P. [SEAL.] 
 
 " Sec. 24. All powers or letters of attorney, or agency, authorizing 
 the granting, selling, conveying, assuring, releasing or transferring, 
 
 (l)Rev. Stat. 107, Sec. 21.
 
 ClIAP. 2.] ACKNOWLEDGMENT AND PROOF OF DEEDS. 295 
 
 or for the executing or acknowledging of any grants, 
 leases, assurances, or other conveyances or writings whatsoever concern- 
 ing any lands and tenements, or whereby the same may be effected in 
 law or equity, shall be acknowledged or proved, and recorded as herein 
 before required in cases of deeds and other assurances ; after which all 
 grants, conveyances and assurances, made and acknowledged pursuant 
 to the powers granted, unless the same be revoked by a deed duly ac- 
 knowledged and proven, and recorded as aforesaid, shall be as valid 
 and effectual as if executed and acknowledged by the constituent or 
 constituents." 
 
 When the Grantor executes under a Power of Attorney. 1 
 
 STATE OF ILLINOIS, ) 
 Cook COUNTY, j 
 
 I, Nicholas Berdel, a justice of the peace in and for said county, do 
 certify that C. D., whose signature appears to the foregoing deed, as 
 the attorney of E. F., and who is personally known to me to be the 
 person who thus subscribed and executed the same, appeared before me 
 in person, and did acknowledge the same to be his free act and deed. 
 
 Given under my hand and seal, this day of , A. D. 18 . 
 
 NICHOLAS BERDEL, J. P. [SEAL.] 
 
 "Sec. 41. If any grantor shall not have duly acknowledged the 
 execution of any deed or instrument, entitled to be recorded, and the sub- 
 scribing witnesses be dead, or not to be had, it may be proved by evi- 
 dence of the hand writing of the grantor, and of at least one of the sub- 
 scribing witnesses, which evidence shall consist of the testimony of two or 
 more disinterested persons, swearing to each signature." 
 
 Proof of Deed of Grantor, when the subscribing witnesses are dead, 
 or not to be had. 2 
 
 STATE OF ILLINOIS, > 
 Cook COUNTY, ) S5 
 
 I, James O'Donohue, a justice of the peace in and for said county, 
 do certify, that C. D. and E. F., two disinterested persons, being com- 
 petent and credible witnesses, appeared before me this day, in person, 
 and being duly sworn according to law, testified that they were person- 
 
 (1) Rer. Stat. 108, Sec. 24. (2) Rev. Stat. 110, Sec. 41.
 
 296 ACKNOWLEDGMENT AND PROOF OF DEEDS. [PART 3, 
 
 ally acquainted with Gr. H., the person whose name appears subscribed 
 to the foregoing deed as grantor, and that said signature is in the hand 
 writing of the said Gr. H., and also that they were acquainted with J. 
 K., one of the subscribing witnesses, (or " the subscribing witness," if 
 but one,) thereto, and that said signature of said witness is in the hand 
 writing of the said J. K. 
 
 Given under my hand and seal this day of , A. D. 18 . 
 
 JAMES O'DONOHTJE, J. P. [SEAL.]
 
 ClIAP. 3.] BASTARDY. 297 
 
 CHAPTER III. 
 
 OF BASTARDY, AND PROCEEDINGS IN CASES THEKEOF. 
 / 
 
 Rev. Stat. 85, Sec. 1. " When any unmarried woman, who shall be 
 pregnant or delivered of a child, which by law would be deemed a 
 bastard, shall make complaint to any one or more of the justices of the 
 peace of the county where she may be so pregnant or delivered, and 
 shall accuse, under oath or affirmation, any person with being the father 
 of such child, it shall be the duty of such justice or justices to issue a 
 warrant, directed to the sheriff or any constable of such county, against 
 the person so accused, and cause him to be brought forthwith before him 
 or them. Upon his appearance, it shall be the duty of said justice or 
 justices, to examine the said woman, upon oath or affirmation, in the 
 presence of the man alleged to be the father of the child, touching the 
 charge against him. If the said justice or justices shall be of opinion 
 that sufficient cause appears, it shall be his or their duty to bind the 
 person so accused, in bond, with sufficient and good security to appear 
 at the next circuit court to be holden for said county, to answer to 
 such charge ; to which such court said warrant and bond shall be 
 returned. On neglect or refusal to give such bond and security, the 
 justice or justices shall cause such person to be committed to the jail 
 of the county, there to be held to answer such complaint." 
 
 BASTARDY. 
 
 Form of Complaint before birth. 
 STATE OF ILLINOIS, 
 
 COUNTY, f ss ' 
 
 The complaint of A. B. of , in said county, an unmarried 
 
 woman, made before L. M., Esquire, one of the justices of the peace
 
 298 BASTARDY. [PAET 3, 
 
 in and for said county, under oath, who says that she is now pregnant 
 with a child, and that the said child is likely to be born a bastard ; 
 
 and that C. D., of , in the said county, is the father of the 
 
 said child. 
 
 Taken, signed, and sworn, this ^| A. B. 
 
 day of , 18 , before me, 
 
 L. M., J. P. 
 
 Form of a Complaint, after birth. 
 
 STATE OF ILLINOIS, 
 
 COUNTY 
 
 )is, ) 
 
 , r s - 
 
 The complaint of A. B., of , in the said county, an unmar- 
 ried woman, made before L. M., Esquire, one of the justices of the 
 
 peace in and for said county, under oath, who says, that on the 
 
 day of , 18 , at , in the county aforesaid, she was 
 
 delivered of a (male) bastard child, and that C. D. of , in the 
 
 said county, is the father of the said child. 
 
 Taken, signed, and sworn, this ^ A. B. 
 
 day of , 18 , before me, 
 
 L. M., J. P. 
 
 Form of Warrant, before birth. 
 STATE OF ILLINOIS, 
 
 COUNTY, r ss ' 
 
 The People of the State of Illinois to the Sheriff or any Constable of 
 said County : 
 
 Whereas A. B. of , in the said county, an unmarried woman, 
 
 has this day made complaint upon oath, before L. M., Esquire, a 
 justice of the peace in and for said county, that she is pregnant with a 
 child, which is likely to be born a bastard, and that C. D. is the father 
 of the said child : 
 
 We therefore command you to arrest the said C. D., and bring him 
 before the said justice, to answer unto the said complaint, and to be 
 further dealt with according to law. 
 
 Given under the hand and seal of the said justice, the day 
 
 of ,18. 
 
 L. M., /. P. [SEAL.]
 
 CHAP. 3.] BASTARDY. 299 
 
 Form of Warrant, after birth. 
 
 STATE OF ILLINOIS, ") 
 COUNTY, f" ss 
 
 The People of the State of Illinois to the Sheriff or any Constable 
 of said County : 
 
 Whereas A. B. of , in the said county, an unmarried woman, 
 
 has this day made complaint under oath, before L. M., Esquire, a 
 
 justice of the peace in and for the said county, that on the 
 
 day of , 18 , at , in the county aforesaid, she was 
 
 delivered of a (male) bastard child, and that C. D. is the father of the 
 said child : 
 
 We therefore command you to arrest the said C. D., and bring him 
 before the said justice, to answer unto the said complaint, and to be 
 further dealt with according to law. 
 
 Given under the hand and seal of the said justice the day 
 
 of , 18. 
 
 L. M., /. P. [SEAL.] 
 
 Form of Oath or Affirmation upon the examination. 
 
 You do swear (or, " you do solemnly, sincerely, and truly declare 
 and affirm,") that you will true answers make to all such questions 
 as shall be put to you, touching the present complaint now in hearing 
 against C. D. 
 
 Form of Bond for appearance at the Circuit Court. 
 STATE OF ILLINOIS, 
 
 COUNTY, f ss ' 
 
 Know all men by these presents, that we, C. D., P. Q. and R. S., 
 are held and firmly bound unto the people of the State of Illinois, in 
 
 the sum of dollars, to be paid to the said people, for which 
 
 payment well and truly to be made, we bind ourselves, our heirs, exe- 
 cutors and administrators, jointly and severally, firmly by these presents. 
 
 Sealed with our seals, and dated the day of- , 185. 
 
 Whereas complaint has been made before L. M., Esquire, one of 
 
 the justices of the peace in and for the said county of , by A. 
 
 B. of , in said county, an unmarried woman, that she is preg- 
 nant with a child, which is likely to be born a bastard, (or " that on
 
 BASTARDY. [PART 3, 
 
 the day of , 185-, she was delivered of a (male) bastard 
 
 child,") and that C. D. is the father of the said child ; whereupon the 
 said justice issued a warrant, and caused the said C. D. to be brought 
 before him to answer the said complaint, and to be further dealt with 
 according to law ; and upon examination of the said A. B., upon oath 
 (or "affirmation,") in the presence of the said C. D., touching the 
 said charge, and upon due consideration thereupon had, the said justice 
 was of opinion that sufficient cause appeared, and did adjudge and 
 determine that the said C. D., enter into a bond with good and suffi- 
 cient security, to appear at the next circuit court, to be held in and for 
 the said county of , to answer to such charge. 
 
 Now therefore the condition of this obligation is such, that if the 
 above bounden C. D., shall appear at the next circuit court, to be held 
 
 in and for the said county of , and answer to the said complaint, 
 
 and not depart the court without leave, then this obligation to be void, 
 otherwise to remain in force. 
 
 Signed, sealed and delivered ""j C. D. [SEAL.] 
 
 in the presence of P. Q. [SEAL.] 
 
 L. M., /. P. j R . g. [ SEAL> ] 
 
 Form of Commitment on neglecting or refusing to give bond. 
 
 STATE OF ILLINOIS, ) 
 COUNTY, C ss> 
 
 The People of the State of Illinois to the Sheriff" or any Constable 
 of said County, and to the Keeper of the Common Jail of said 
 County : 
 
 Whereas complaint has been made before E. F., Esquire, one of 
 the justices of the peace of the said county, by A. B., of (Grafton 
 precinct), in said county, an unmarried woman, that she is pregnant 
 
 with a child which is likely to be born a bastard, (or "that on the day 
 
 of , 185-, she was delivered of a (male) bastard child,") and 
 
 that C. D. is the father of the said child, whereupon the said justice 
 issued a warrant, and caused the said C. D. to be brought before him, 
 to answer to the said complaint, and to be further dealt with according to 
 law ; and upon examination of the said A. B. upon oath (or " affirm- 
 ation,") in the presence of the C. D., touching the said charge, and 
 upon due consideration thereupon had, the said justice was of opinion 
 that sufficient cause appeared, and did adjudge and determine that
 
 CHAP. 3.] BASTARDY. 301 
 
 the said C. D. enter into a bond with good and sufficient security, 
 
 in the sum of dollars, to appear at the next circuit court, to be 
 
 held in and for the said county of , to answer such charge; and 
 
 the said C. D., having neglected (or refused) to give such bond and 
 security : 
 
 We, therefore, command you, the said sheriff or constable, forthwith 
 to convey the said C. D. to the common jail of the said county, and 
 deliver him to the keeper thereof, together with this precept ; and you, 
 the said keeper, are hereby required to receive the said C. D. into your 
 custody,, in the said jail, there to be held to answer such complaint, 
 until he shall give such bond and security, or until he shall be dis- 
 charged by due course of law. 
 
 Given under the hand and seal of the said justice, the day 
 
 of , 185-. 
 
 E. F., J. P. [SEAL.] 
 
 " Sec. 2. The circuit court of such county, at their said next term, 
 shall have full cognizance and jurisdiction of the said charge of bas- 
 tardy, and shall cause an issue to be made up, whether the person 
 charged as aforesaid, is the real father of the child or not, which issue 
 shall be tried by a jury. Such inquiry shall not be ex parte, when the 
 person charged shall appear and deny the charge ; but he shall have a 
 right to appear and defend himself by counsel, and controvert, by all 
 legal evidence, the truth of such charge. 
 
 " Sec. 3. If at the time of such court, the woman be not delivered, 
 or be unable to attend, the court shall order a recognizance to be taken 
 of the person charged as aforesaid, in such an amount, and with such 
 sureties as the court may deem just, for the appearance of such person 
 at the next court, after the birth of the child ; and should such mother 
 not be able to attend at the next term after the birth, the recognizance 
 shall be continued until she is able. 
 
 ' ' Sec. 4. On the trial of every issue of bastardy, the mother shall 
 be admitted as a competent witness, and her credibility shall be left to 
 the jury. She shall not be admitted as a witness, in case she has been 
 duly convicted of any crime which would, by law, disqualify her from 
 being a witness in another case. 
 
 " Sec. 5. In case the issue be found against the defendant, or reputed 
 father, or whenever he shall, in open court, have confessed the truth of 
 the accusation against him, he shall be condemned by the judgment of 
 the said court, to pay such sum of money, not exceeding fifty dollars,
 
 302 BASTARDY. [PART 3, 
 
 yearly, for seven years, as in the discretion of the said court may seem 
 just and necessary for the support, maintenance, and education of such 
 child ; and shall, moreover, be adjudged to pay all the costs of the 
 prosecution, for which execution shall issue as in other cases of costs. 
 The said defendant, or reputed father, shall give bond and security for 
 the due and faithful payment of such sum of money, as shall be ordered 
 to be paid by the said court, to be paid by him for the period aforesaid ; 
 which shall be made payable quarter-yearly to the judge of the court of 
 probate, and his successor in office for the county in which the prosecu- 
 tion aforesaid was commenced ; and the same, when received, shall be 
 laid out and appropriated, from time to time, by the said judge, under 
 his order and direction, for the purposes aforesaid. In case the defend- 
 ant, or reputed father, shall refuse or neglect to give such security as 
 may be ordered by the court, he shall be committed to the jail of the 
 county, there to remain until he shall comply with such order, or until 
 otherwise discharged by due course of law : Provided, always, That the 
 said reputed father, after giving bond with approved security, to the 
 court of probate, in said county, conditioned for the suitable mainte- 
 nance of any such child, for the term aforesaid, shall be permitted to 
 take charge and have the control of his said child, at any time after 
 said child shall arrive at the age of three years ; and from the time of 
 , the said father taking charge of such child, or should the mother refuse 
 to surrender the said child, when so demanded by the said father, then 
 and from thenceforth, the said father shall be released and discharged 
 from the judgment of all such sum or sums of money as may thereafter 
 become due against the said father, for the support, maintenance, and 
 education of any such child. If the said child should never be born 
 alive, or being born alive, should die at any time, and the fact shall be 
 suggested upon the record of the said court, then the bond aforesaid 
 shall from thenceforth be void. But when a guardian shall be appointed 
 for such bastard, the money arising from such bond shall be paid over 
 to such guardian. 
 
 " Sec. 6. If, upon the trial of the issue aforesaid, the jury shall find 
 that the child is not the child of the defendant, or pretended father, then 
 the judgment of the court shall be, that he be discharged. The woman 
 making the complaint shall pay the costs of the prosecution, and judg- 
 ment shall be entered therefor, and execution may thereupon issue. 
 
 " Sec. 7. If the mother of any bastard child, and the reputed 
 father, shall at any time after its birth, intermarry, the said child shall
 
 CHAP. 3.] BASTARDY. 303 
 
 in all respects, be deemed and held legitimate, and the bond aforesaid 
 be void. 
 
 " Sec. 8. No prosecution, under this chapter, shall be brought after 
 two years from the birth of the bastard child : Provided, The time any 
 person acccused shall be absent from the State, shall not be computed." 
 
 Under the fifth section of the foregoing chapter of the statute, it will 
 be observed that the father after entering into the bond required by said 
 section, may demand, and is entitled to the possession, control, and 
 charge of the child. If the mother refuse to surrender it, he is dis- 
 charged from his liability upon the bond, so long as she continues to 
 refuse ; if she surrender it, the father is not required to give a further 
 bond, but he is bound for its maintenance, support and education there- 
 after, during its minority, in the same manner as though it had been 
 born in lawful wedlock. Under the common law, it was otherwise ; 
 the reputed father was not entitled to the custody of the child. 1 
 
 Bastardy is in law a misdemeanor, which may be compromised or 
 compounded, at the discretion of the parties interested. 2 
 
 (1) 2 Gil. 587. (2) 3 Scam. 380.
 
 304 CONTEMPT OF COURT. [PART 3, 
 
 CHAPTER IV. 
 
 OF CONTEMPT OF COURT. 
 
 Rev. Stat. 322, Sec. 50. " Every person who shall appear before 
 a justice of the peace, when acting as such, or who shall be present at 
 any legal proceeding before a justice, shall demean himself in a decent, 
 orderly, and respectful manner; and for failure to do so, such person 
 shall be fined by the said justice, for contempt, in any sum not more 
 than five dollars." 
 
 The power to punish for contempt is incident to all courts of justice, 
 independent of statutory provisions. 1 
 
 When a contempt is committed, in violation of the foregoing section 
 of the statute, the offender may be instantly apprehended and dealt 
 with according to law, without any further proof or examination. The 
 justice may at once draw up a conviction, according to the truth of the 
 case. 2 
 
 Form of Record of Conviction. 
 
 STATE or ILLINOIS, ) 
 COUNTY, } ss ' 
 
 Be it remembered that on this day of instant, dur- 
 ing the trial of a case between A. B., plaintiff, and C. D., defendant, 
 before me, L. M., Esquire, one of the justices of the peace in and for 
 
 the county of , at my office in , in said county, J. K. 
 
 did willfully and contemptuously accuse me of gross partiality and abuse 
 of power, in the office of justice of the peace, in the presence of a nuin- 
 
 (1) Breese, 266 ; 3 Scam. 403. (2) 4 Bl. Com. 286.
 
 ClIAP. 4.] CONTEMPT OF COURT. 305 
 
 ber of bystanders, (or " interrupted me while engaged in the trial of 
 the said cause, by making a great noise and disturbance, and being 
 ordered by me to cease, refused so to do, and said that he did not regard 
 me nor my authority," or if for any other cause, set it forth particu- 
 larly*) and, whereas the said J. K. was forthwith called upon by me, 
 and required to answer for the said contempt, and show cause why he 
 should not be convicted thereof, but did not make any defense, nor show 
 any cause why he should not be convicted, nor make any apology for 
 his said conduct : 
 
 Therefore I, the said justice, do hereby convict the said J. K. of the 
 said contempt, and adjudge and determine that he pay a fine of five 
 dollars, and that he be committed to the common jail of said county, 
 until he pay the said fine, or until he shall be discharged by due course 
 of law. 
 
 In witness whereof I have hereunto set my hand and seal, this 
 
 day of - , 18. 
 
 L. M., J. P. [SEAL.] 
 
 Form of Commitment for a Jine. 
 
 STATE OF ILLINOIS, ) 
 COUNTY, ) Sf 
 
 The People of the State of Illinois to any Constable of the said 
 County, and to the Keeper of the Common Jail of said County : 
 
 Whereas, on this day of , 18 , while L. M., Esquire, 
 
 one of the justices of the peace of the said county, was engaged in the 
 trial of a cause between A. B., plaintiff, and C. D., defendant, at his 
 office in , in the said county. J. K. did willfully and contemptu- 
 ously [interrupt the proceedings in said cause by making a great dis- 
 turbance, and being ordered by said justice to cease, refused so to do, 
 and said that he did not regard him nor his authority] ; and, whereas, 
 the said J. K. was forthwith called upon by the said justice, and re- 
 quired to answer for the said contempt, and show cause why he should 
 not be convicted thereof, but did not make any defense nor show any 
 cause why he should not be convicted, nor make any apology for his 
 said conduct ; and, whereas, the said justice did thereupon convict the 
 said J. K. of the said contempt, and adjudge and determine that he 
 pay a fine of five dollars, and that he be committed to the common jail 
 of the said county until he pay the said fine, or until he be discharged 
 by due course of law : 
 19
 
 306 CONTEMPT OF COURT. [PART 3, 
 
 We, therefore, command you, the said constable, to take the said 
 J. K. and deliver him to the keeper of the common jail of the said 
 county, together with this warrant; and you, the said keeper, are hereby 
 required to receive him into your custody, in the said jail, and him there 
 safely keep, until he pay the said fine, or until he shall be discharged 
 by due course of law. Hereof fail not at your peril. 
 
 Given under the hand and seal of the said justice, this day of 
 
 , 18. 
 
 L. M., /. P. [SEAL.] 
 
 Form of Commitment of Witness on neglecting to pay a fine for non- 
 attendance. 1 
 
 STATE OF ILLINOIS, > 
 COUNTY, } ss 
 
 The people of the State of Illinois to any Constable of said County, 
 GREETING : 
 
 Whereas, John Doe has this day been convicted before me, L. 
 M., Esquire, a justice of the peace in and for the said county, for a 
 contempt, for that the said John Doe was duly subpoenaed to appear 
 and testify in a suit depending before the said justice, between A. B., 
 
 plaintiff, and C. D., defendant, on the day of , 18 , and 
 
 failing so to attend, and he not having purged himself when called upon 
 by me to show cause why he should not be fined for such contempt, and, 
 whereas, upon such conviction the said justice did adjudge and deter- 
 mine that the said John Doe should pay a fine of five dollars, and 
 be imprisoned in the common jail of the said county, until he paid the 
 said fine or was discharged by due course of law ; and, whereas the 
 said John Doe has neglected to pay the said fine : 
 
 We, therefore, command you, the said constable, to take the said 
 John Doe and deliver him into the custody of the said keeper of the 
 said jail. And you the said keeper are hereby required to receive the 
 said John Doe into your custody in the said jail, and him there safely 
 keep until he pay the said fine or be discharged by due course of law. 
 Hereof fail not. 
 
 Given under the hand and seal of the said justice, this day 
 
 of ,18. 
 
 L. M., J. P. [SKAL.] 
 
 (1) This form should more properly have been embraced under the head of " attachment 
 againxt defaulting witnesses," ante, page 83, but was inadvertently omitted, and is therefore 
 inserted here.
 
 ClIAP. 4.] CONTEMPT OF COURT. .'i(>7 
 
 Form of Commitment of a Witness for refusing to be sworn, or for re- 
 fusing to testify. 1 
 
 STATE OF ILLINOIS, ) 
 COUNTY, j ss 
 
 The people of the State of Illinois to any Constable of the said 
 County, and to the Keeper of the Common Jail of said County, 
 GREETING : 
 
 Whereas, on the trial of a cause before L. M., Esquire, a justice of 
 the peace of the said county, between A. B., plaintiff, and C. D., de- 
 fendant, John Doe being called as a witness on the part of the plaintiff, 
 (or " defendant,") and being present and admitting that he had been 
 duly subpoenaed to attend the said trial as a witness on the part of the 
 said plaintiff, (or "defendant,") (or " it being proved to me by the 
 oath of the said plaintiff," (or " defendant,") or "by the oath of J. 
 K.," or "by the return of R. S., one of the constables of said county, 
 that the said John Doe had been duly subpoenaed," &c.) ; refused to 
 be sworn as such witness in any form prescribed by law, (or "John 
 Doe was called and sworn as a witness on the part of said plaintiff, and 
 on his examination as such witness the said John Doe was asked by the 
 said plaintiff the pertinent and proper question, "whether he was ac- 
 quainted with the hand writing of C. D. ?" to which question the said 
 John Doe refused to make answer.") 
 
 And the said A. B. having made oath before the said justice of the 
 peace that the testimony of the said John Doe was so far material that 
 without it he could not safely proceed to the trial of said cause : 
 
 We, therefore, command you, the said constable, to take and deliver 
 the said John Doe into the custody of the said keeper of the said 
 jail. And you the said keeper are hereby required to receive the 
 said John Doe into your custody, in the said jail, and him there 
 safely keep until he shall submit to be sworn as such witness as afore- 
 said, and shall be discharged by due course of law, (or " until he shall 
 submit to answer the said question so put to him by the said A. B., 
 and be discharged by due course of law.") Hereof fail not at your 
 peril. 
 
 Given under the hand and seal of the said L. M., justice of the 
 
 peace, this day of , 18 . 
 
 L. M., /. P. [SEAL.] 
 
 (1) This form, like the preceding one, is not strictly in place under this chapter, but was 
 inadvertently omitted in its proper order.
 
 308 DISTRESS FOB RENT. [PART 3, 
 
 CHAPTER V. 
 
 OF DISTKESS FOR RENT. 
 
 A distress is defined to be the taking of a personal chattel, without 
 legal process, from the possession of the wrong doer into the hands of 
 the party grieved, as a pledge for the redress of an injury, the perform- 
 ance of a duty, or the satisfaction of a demand. 1 It is a general rule, 
 that a man who has an entire duty, shall not split the entire sum, and 
 distrain for part of it at one time, and part of it at another time. But 
 if a man seizes for the whole sum that is due him, but mistakes the 
 value of the goods distrained, there is no reason why he should not 
 afterwards complete his execution by making a further seizure. 2 It 
 is to be observed also, that there is an essential difference between 
 distress at common law, and distress prescribed by statute. The 
 former are taken nomine penae, (by way of penalty,) as a means of 
 compelling payment ; the latter are similar to executions, and are taken 
 as satisfaction for a duty ; the former could not be sold ; the latter 
 might be. Their only similarity is that both are replevisable. 8 
 
 Rev. Stat. 334, Sec. 6. "In all cases of distress for rent, the 
 person making the same, shall immediately file with some justice of 
 the peace, in case the amount claimed does not exceed one hundred 
 dollars, or with the clerk of the circuit court, in case it exceeds that 
 sum, ti copy of the distress warrant, together with an inventory of the 
 property levied upon ; and thereupon the party against whom the 
 distress warrant shall have been issued, shall be duly summoned, and 
 the amount due from him assessed and entered upon the records of the 
 court finding the same. The said court shall certify to the person or 
 
 (1) 3 Bl. Com. 6. (2) 1 Burr. 589. (3) See 1 Bouv. L. D., title " Distress."
 
 ClIAP. 5.] DISTRESS FOR RENT. 309 
 
 officer making the same, the amount so found due, together with the 
 costs of court ; and said officer shall thereupon proceed to sell the 
 property so distrained, and make the amount thus certified to him, 
 and return the certificate so issued to him, with an endorsement thereon 
 of his proceedings, which return and certificate shall be filed in the 
 proper court. 
 
 " Sec. 7. In all cases of distress for rent, it shall be lawful for 
 the landlord, by himself, his agent, or attorney, to seize for rent any 
 personal property of his tenant that may be found in the county where 
 such tenant shall reside ; and in no case shall the property of any 
 other person, although the same may be found on the premises, be 
 liable to seizure for rent due from such tenant. 
 
 " Sec. 8. Every landlord shall have a lien upon the crops growing 
 or grown upon the demised premises in any year, for rent that shall 
 accrue for such year. 
 
 " Sec. 9. In case of the removal or abandonment of the premises, 
 or any part thereof, by such tenant, all grain or vegetables grown or 
 growing upon any part of the premises so abandoned, may be seized 
 by the landlord, his agent, or attorney, before the rent is due, and the 
 landlord' so distraining, shall cause the grain or vegetables so growing, 
 to be properly cultivated and perfected, and in all cases husband such 
 grain or vegetables grown and growing, until the rent agreed upon shall 
 become due, when it shall be lawful for such landlord, his agent, or 
 attorney, to sell and dispose of the same as in other cases of seizure, 
 after the rent shall have become due ; and also to retain a just com- 
 pensation for his care, culture, and husbanding of such grain or 
 vegetables : Provided, That such tenant may at any time redeem the 
 property so taken before the rent is due, by tendering the rent agreed 
 upon, and all reasonable expenses attending the same, for care, culti- 
 vation, and husbandry, as aforesaid, or replevy the same, as in case.of 
 seizure, where the rent is due. 
 
 " Sec. 10. When any goods or chattels shall be distrained for rent, 
 and the tenant or owner of the goods so distrained, shall not, within 
 five days after such distress taken, and notice thereof, and the cause 
 of taking, replevy the same with sufficient security, according to law, 
 the person distraining, or his agent duly authorized, may with the 
 sheriff or constable of the county, cause the goods and chattels so 
 distrained, to be appraised by two reputable freeholders under oath, 
 which oath may be administered by such sheriff or constable, to 
 appraise said goods and chattels, according to their best judgment and
 
 310 DISTRESS FOR RENT. [PART 3, 
 
 understanding ; the person making such distress, after having obtained 
 such assessment as specified in section six of this chapter, and on 
 giving ten days' notice, may sell such goods and chattels at public 
 auction, and after retaining the amount of rent distrained for, and the 
 costs of distress and sale, shall pay the overplus, if any there be, to 
 such tenant or tenants. 
 
 " Sec. 11. Any landlord distraining, or officer or other person, in 
 whose hands perishable property may be, when there is danger that 
 the same will perish or be lost if it shall remain undisposed of until 
 the conclusion of the suit, such landlord, officer, or other person, may 
 sell the same, as provided in the pi^ceding section, and after paying 
 the costs attending such sale, shall pay over the balance to the person 
 or persons to whom the same shall be due. 
 
 " Sec. 12. The same articles of personal property which are by 
 law exempt from execution, except the crops grown or growing upon 
 the demised premises, shall also be exempt from distress for rent." 
 
 Warrant of Distress by Landlord. 
 
 STATE OF ILLINOIS, 
 COUNTY, 
 
 To the Sheriff or any Constable of the said County : 
 Distrain the goods and chattels of C. D., which are liable to be dis- 
 trained, wherever they may be found in the county of , where 
 
 the said C. D. resides, for the sum of twenty-jive dollars, being one 
 
 quarter's (or "one year's") rent due me on the day of 
 
 185-, for the premises now in his possession, demised to him by me, 
 and situated in said county. A. B. 
 
 Dated the day of 185-. 
 
 Form of Inventory. 
 
 An inventory of the several goods and chattels of C. D., distrained 
 
 by me, 0. P., Constable, on the day of , 18 , in the 
 
 county of , where the said C. D. resides, by virtue of the war- 
 rant and authority, and in behalf of E. F., the landlord, for the sum 
 
 of dollars, being one quarter's (or " one year's") rent due to 
 
 the said landlord, on the day of , 18 , for the premises 
 
 in the warrant mentioned, to wit : 
 
 Two tables, six chairs, &c. 
 
 One cow, two mules, one wagon, &c.
 
 ClIAP. 5.] DISTRESS FOR RENT. 311 
 
 Form of Notice to the Tenant. 
 
 Mr. C. D. : 
 
 Take notice, that I have distrained the several goods and chattels 
 
 specified in the above inventory, for the sum of dollars, being 
 
 one quarter's (or as the case is) rent, due to E. F., your landlord, on 
 
 the day of ,.18 , for said premises. (If the beasts 
 
 are impounded in a private pound, then say, " and the beasts therein 
 mentioned are impounded in the private pound, or enclosure, of R. S., 
 near his house, in said county,") and that, unless you pay the said rent, 
 with the costs of distraining for the same, within five days from the ser- 
 vice hereof, after the landlord's demand shall be proved, pursuant to 
 the statute, the said goods and chattels will be appraised and sold 
 according to law. 
 
 Given under my hand, at , in the county of , the 
 
 day of , 18. 
 
 0. P., Constable. 
 
 The landlord, having distrained the goods and chattels of the tenant, 
 the same proceedings should then be had as in cases arising under the 
 statute, conferring civil jurisdiction upon justices of the peace. It is 
 also held to be an indispensable requisite in all proceedings affecting the 
 rights of an individual, that the individual to be affected shall have 
 notice of such proceedings, and the justice should not proceed to judg- 
 ment without evidence before him that such notice has been given. 1 
 
 A landlord has a right to distrain for rent, where no power of dis- 
 tress is contained in the lease. 2 
 
 In case of distress for rent, the court has only to inquire whether the 
 relation of landlord and tenant exists, and to ascertain the amount of 
 rent due, when the distress was made, and enter the assessment on the 
 record, and certify the amount and costs to the bailiff. 8 
 
 In such a proceeding, the landlord cannot introduce a demand against 
 the tenant for which he has not the right to distrain ; nor can the ten- 
 ant set up, by way of set-off, any demand against the landlord. The 
 tenant may show that he has made payment on account of rent, to re- 
 duce the amount of the assessment. 4 
 
 The goods of a sub-lessee of a part of demised premises, are not 
 liable to be distrained for rent reserved in the original lease. 5 
 
 (1) 1 Scam. 515. See also Rev. Stat. 316, Sec. 17, paragraph 6th, in relation to jurisdiction 
 of justices of the peace ; also, ante, p. 27. 
 (2; 3 Scam. 306. (3) 14 III. 75. (4) Ibid. (6) 11 111. 527.
 
 312 DISTRESS FOR RENT. [PART 3, 
 
 . 
 
 Form of Summons after the goods have been distrained. 
 
 STATE OF ILLINOIS, ) 
 COUNTY, } ss 
 
 The People of the State of Illinois to any Constable of said County, 
 GREETING : 
 
 Whereas A. B. has lately distrained the goods and chattels of C. D., 
 
 for the sum of dollars, claimed to be due to him for the rent of 
 
 certain premises leased to the said C. D. : 
 
 We, therefore, command you to summon the said C. D., to appear 
 before L. M., Esquire, one of the justices of the peace of the said 
 
 county, at his office in , in the said county, on the day of 
 
 , 185-, at o'clock in the noon, to answer the com- 
 plaint of the said A. B., for a failure to pay him a certain demand not 
 exceeding one hundred dollars, and do you make return hereof, as the 
 law directs. 
 
 Given under the hand and seal of the said justice, the day of 
 
 , 185-. 
 
 L. M., /. P. [SEAL). 
 
 After the rent shall have been proved to the satisfaction of the justice, 
 he will render judgment accordingly, and if the same is not paid, and 
 the goods distrained are not replevied according to law, the landlord will 
 then apply to the constable, and procure the goods and chattels to be 
 appraised by two reputable freeholders under oath. 
 
 form of Oath to be administered to Appraisers. 
 
 You and each of you, do swear, that you will, well and truly, 
 appraise the goods and chattels of C. D., pointed out to you as being 
 distrained by A. B., according to your best judgment and understand- 
 ing. 
 
 The constable will then endorse on the inventoiy before taken, the 
 following memorandum : 
 
 Memorandum. That on the day of , 18 , L. M. 
 
 and J. N., appraisers, were severally sworn (or "affirmed,") by the 
 
 subscriber, a constable of the county of , well and truly to 
 
 appraise the goods and chattels mentioned in this inventory, according 
 to their best judgment and understanding. 
 
 As witness my hand. 0. P., Constable.
 
 CHAP 5.] DISTRESS FOR RENT. 313 
 
 Form of the Appraisement to be etidorsed on (lie inventory. 
 
 We, the above named L. M. and J. N., being duly sworn (or 
 "affirmed,") by 0. P., the constable above named, well and truly to 
 appraise the goods and chattels mentioned in this inventory, according 
 to our best judgment and understanding, and having viewed the goods 
 
 and chattels, do appraise and value the same at the sum of 
 
 dollars and cents. 
 
 As witness our hands the day of , 18- 
 
 L. M., 
 J. 
 
 M ~) 
 ? mr? i Appraisers. 
 
 form of Notice of Sale. 
 
 Notice is hereby given, that on the day of , 18 , at 
 
 o'clock, M., at in , in pursuance of the statute in 
 
 such case made and provided, I shall expose to sale at public vendue, 
 (describe the property,) of the goods and chattels of C. D., lately dis- 
 trained for rent due to A. B. 
 
 Dated this day of-- , 18. 
 
 0. P., Constable.
 
 314 CONTESTING ELECTIONS. [PART 3, 
 
 CHAPTER VI. 
 
 OF CONTESTING ELECTIONS. 
 
 Rev. Stat. 222, Sec. 42. "When any candidate shall desire to con- 
 test the validity of any election, or the right of any person declared 
 duly elected, to hold the office to which such candidate claims the right, 
 such candidate shall give notice of his intention in writing, to the per- 
 son whose election he intends to contest, or leave a notice thereof at his 
 usual place of residence, within thirty days after the day of election, 
 expressing the points on which the same will be contested, the name of 
 one of the justices of the peace who will attend at the taking of the 
 depositions, the place where, and the time when said depositions will 
 be taken ; which time so fixed upon for the taking of the depositions, 
 shall not exceed sixty days from the day of election. 
 
 " Sec. 43. The party whose election is contested, may select another 
 justice of the peace to attend at the trial. Should the party whose 
 election is contested, refuse or neglect to select a justice, as aforesaid, 
 the justice chosen by the person contesting the election, as aforesaid, 
 shall make such selection for him. The two justices so elected or cho- 
 sen, shall make choice of a third justice ; and if they cannot agree upon 
 a third justice to act with them, they shall make such selection by lot ; 
 and the three justices thus selected, or either of them, shall have power, 
 and they are hereby authorized and required, to issue subprenas and 
 such other process as may be necessary to secure the attendance at such 
 trial, of all persons whose testimony may be required by either party, 
 in the same manner as is provided in other cases of proceedings before 
 justices of the peace. 
 
 "Sec. 44. The said justices, or any one of them , shall, in all such cases, 
 have power to issue subpoenas for witnesses to any county in this State, 
 directed to the sheriff of such county, who shall make service and re-
 
 ClIAP. 6.] CONTESTING ELECTIONS. 315 
 
 turn as in other cases. And any witness, duly subpoenaed, refusing or 
 neglecting to appear and testify, shall, in addition to the penalties other- 
 wise imposed by law, forfeit and pay a fine of fifty dollars, to be recov- 
 ered by action of debt, in any court having cognizance thereof, one-half 
 to the county, and one-half to the person suing for the same. 
 
 " Sec. 45. The said justices, or any one of them, may issue attach- 
 ments for witnesses so neglecting or refusing to attend, who may be 
 brought before them ; and at any time before the day for the decision 
 of the question between the contesting parties, the said justices shall, at 
 the request of either, after giving notice to the other party of five days, 
 if resident in their county, or ten days, if residing out of their county, 
 proceed to take the testimony of such witnesses, to be used in the case. 
 
 " Sec. 46. If any justice of the peace selected, as aforesaid, to at- 
 tend at the taking of the depositions, shall, without reasonable excuse, 
 fail or refuse to attend at the time and place appointed, after having 
 undertaken to attend, he shall forfeit and pay a fine of fifty dollars, to 
 be recovered by action of debt, in any court having cognizance thereof, 
 one half to the county, and the other half to the person who will sue 
 for the same. 
 
 " Sec. 47. The said justices shall hear and examine all the evidence 
 offered on either side. If the contest be respecting any county office, 
 they shall decide which of the said candidates shall have been duly 
 elected, and certify the same to the clerk of the county commissioners' 
 court of the proper county, who shall thereupon make out and deliver 
 to the successful party a certificate of his election. If such contest be 
 respecting a seat in the Senate or House of Representatives of this 
 State, the said justices shall hear and reduce to writing, all the testi- 
 mony taken in the case, and certify and transmit the same under seal, 
 together with all other papers and documents pertaining to the case, to 
 the speaker of the Senate or House of Representatives, as the case 
 may be. 
 
 " Sec. 48. No testimony shall be heard by the said justices on the 
 part of the person contesting the election, which does not relate to the 
 points specified in the notice. Such justices shall have power to appoint 
 a clerk, and may adjourn from day to day, until their duties shall be 
 completed. They shall have the same power to preserve order, and to 
 punish disorders and contempts, as justices of the peace may exercise, 
 when holding court, 
 
 "Sec. 49. In all contests for county offices, in which the justices 
 hearing the case are authorized to decide, they shall enter judgment on
 
 316 CONTESTING ELECTIONS. [PART 3, 
 
 the docket of the justice last chosen, for all the costs of such contest, 
 against the unsuccessful party, upon which execution may issue as in 
 other cases. Either party may appeal from the decision of such jus- 
 tices to the circuit court, as in other cases of appeal from the judgment 
 of a justice of the peace, the decision of which court shall be final. 
 
 " Sec. 50. In all contests other than for county offices, the proceed- 
 ings for taking testimony hereinbefore provided, may be had in such 
 county in which it is necessary to take testimony, and the like returns 
 shall in each case be made. In those cases in which the justices ex- 
 amining, do not decide the contest, they shall not be compelled to cer- 
 tify or transmit the testimony and documents pertaining to the case, 
 until the reasonable costs of the examination and of certifying the same, 
 are tendered or paid ; and the party who is finally unsuccessful shall 
 be liable for such costs, to the person who shall have paid the same. 
 But if neither party shall require or -cause such testimony and docu- 
 ments to be transmitted, then judgment may be entered and execution 
 had, as before provided, against the party at whose instance such ex- 
 amination was instituted. 
 
 Form of Notice to be given by candidate desiring to contest an election. 
 
 Sir: You will please take notice that as a candidate for the office 
 
 of county judge, at the late election for the county of in the State 
 
 of Illinois, I intend to contest your right to bold and exercise the office of 
 county judge of said county, and that the following are the points upon 
 which your election will be contested, to wit: (Here state the points.} 
 
 And that L. M., Esquire, one of the justices of the peace of the said 
 
 county of , will attend at the trial of such contest, on the day of 
 
 , 18 , at , in the forenoon, at his office in , in 
 
 said county, in pursuance of the statute in such case made and provided. 
 
 Dated this day of , 18. Yours, &c. A. B. 
 
 To Mr. C. D. 
 
 If depositions are to be taken, the time and place of taking the 
 same should be set forth in the notice. 
 
 Form of Subpoena for Witnesses. 
 
 STATE OF ILLINOIS, ) 
 COUNTY, } SJ 
 
 The People of the State of Illinois to G. H. and J. K. 
 
 You are hereby commanded to appear before the undersigned, three 
 justices of the peace of said county, on the day of instant,
 
 ClIAP. 6.] CONTESTING ELECTIONS. 317 
 
 at o'clock M., at the office of L. M., in , in said county, 
 
 to testify the truth, according to your knowledge, touching the mat- 
 ters relative to contesting the right of C. D. to hold and exercise the 
 office of county judge of said county by A. B., on the part of the said 
 A. B., and this you are not to omit. 
 
 Given under our hands and seals, this day of , 18 . 
 
 L. M., J. P. [SEAL.] 
 N. 0., J. P. [SEAL.] 
 P. Q., J. P. [SEAL.] 
 
 Form of Oath to be administered to Witnesses. 
 
 You do swear, that the evidence you shall give touching the matters 
 relative to the right of C. D. to hold the office of county judge, of Lake 
 county, contested by A. B., shall be the truth, the whole truth, and 
 nothing but the truth. 
 
 Form of Certificate of Election, or Record of Proceedings by Justices. 
 
 STATE OF ILLINOIS, 
 COUNTY 
 
 )IS,) 
 
 ' > ss. 
 
 Be it remembered that we, L. M., N. 0., and P. Q., three of the jus- 
 tices of the peace of the said county, were duly named, elected and chosen 
 
 to attend on the day of instant, at o'clock in the 
 
 noon, at the office of L. M., in , in said county, at the trial of 
 
 the right of C. D. to hold and exercise the office of county judge of the 
 
 said county of , contested by A. B., a candidate for the said office 
 
 at the last election, in the following manner : that the said L. M. was 
 named and selected by the said A. B., that the said N. 0. was selected 
 by said C. D., and that the said P. Q. was chosen (or " selected by 
 lot,") by the two justices first named and selected, and herein first above 
 mentioned, to act with them; that we met at the time and place above 
 mentioned, and the following notice and attestation of service thereof 
 was delivered to us. (Here set forth the notice given by A. B. to C. 
 D., and the affidavit of service.} That at the time and place aforesaid, 
 as well the said A. B. as the said C. D., appeared before us, and after 
 hearing and examining the evidence offered by both of the parties, we 
 do decide and determine that the said A. B. has been duly elected 
 county judge of the said county of , and we do adjudge and de- 
 termine, that the said C. D. pay all the costs of this contest, amounting 
 to the sum of dollars, and that execution issue for the same.
 
 318 CONTESTING ELECTIONS. [PART 3, 
 
 111 witness whereof we do hereunto set our hands and seals the 
 
 day of , 18. 
 
 L. M., /. P. [SEAL.] 
 N. 0., /. P. [SEAL.] 
 P. Q., /. P. [SEAL.] 
 
 Form of Certificate to be attached to the foregoing Record. 
 
 STATE OF ILLINOIS, ) 
 COUNTY, f* 
 
 We, the subscribers, three of the justices of the peace of the said 
 county, do certify to the clerk of the county commissioners' court 
 of the said county, that the above is a true record of the proceed- 
 ings before us, and of our decision in the matter, relative to 
 the right of C. D. to hold and exercise the office of county judge 
 
 of county, contested by A. B., and also of our adjudication 
 
 concerning costs. 
 
 Given under our hands, this day of , 18 . 
 
 L. M., J. P. 
 
 N. 0., /. P. 
 
 P. Q., J. P. 
 
 Form of Execution for Costs. 
 
 STATE OF ILLINOIS, ) 
 COUNTY, j Sf 
 
 The People of the State of Illinois to any Constable of said County, 
 
 GREETING : 
 
 Whereas, A. B., a candidate, lately gave notice to C. D., that he 
 intended to contest his right to hold and exercise the office of county 
 
 judge of the county of , and named L. M., a justice of the 
 
 peace of said county, to attend at the trial of such contest, on the 
 
 day of , 18 , at his office in , in said county ; 
 
 and whereas, the said C. D., did select N. 0., a justice of the peace of 
 said county, to attend at the said trial ; and whereas, the two justices 
 so named and selected, did make choice of (or " select by lot,") P. Q., 
 a justice of the peace of said county, to act with them ; and whereas, 
 the said justices in pursuance of their nomination, selection and choice, 
 and of the statute in such case made and provided, met at the time 
 and place above mentioned, and as well the said A. B., as the said 
 C. D., appeared before them, and the said justices having heard and
 
 ClIAP. 6.] CONTESTING ELECTIONS. 319 
 
 examined the evidence offered by both of the parties, did decide and 
 determine that the said A. B., had been duly elected county judge of 
 
 county, and the said justices did adjudge and determine that 
 
 the said C. D. pay all the costs of the said contest, amounting to the 
 
 sum of dollars, and that execution issue for the same : 
 
 We, therefore, command you, that of the goods and chattels of the 
 
 said C. D., in your county, you levy the said sum of dollars, costs, 
 
 as aforesaid ; and do you make return of what you shall do hereon, 
 with all convenient speed. 
 
 Given under the hands and seals of the said justices, the 
 
 day of , 18. 
 
 L. M., J. P. [SEAL.] 
 N. 0., J. P. [SEAL.] 
 P. Q., J. P. [SEAL.]
 
 320 ESTRAYS. [PART 3, 
 
 CHAPTER VII. 
 
 OF ESTRAYS. 
 
 Rev. Stat. 227, Sec. 1. " Every person who shall take up any 
 estray horse, mare, colt, mule, or ass, after having given not less than 
 ten, nor more than fifteen days' notice, by posting up notices in three 
 of the most public places in the justice's district in which he resides, 
 shall take the same before some justice of the peace of the county 
 where such estray shall be taken up, and make oath before such 
 justice, that the same was taken up at his or her plantation, or place 
 of residence in said county, and that the marks or brands have not 
 been altered since the taking up. 
 
 " Sec. 2. The said justice shall then issue his warrant to three 
 disinterested housekeepers in the neighborhood, unless they can other- 
 wise be had, causing them to come before him, to appraise said estray, 
 after they or any two of them being sworn to appraise such estray, 
 without partiality, favor, or affection ; which appraisement, together 
 with the marks, brands, stature, color and age of such horse, mare or 
 colt, mule, or ass, shall be entered in a book to be kept by such 
 justice, and certified under his hand, and transmitted to the clerk of 
 the county commissioners' court of such county, within fifteen days 
 after the same is taken up. 
 
 " Sec. 3. Any person who shall take up any head of neat cattle, 
 sheep, hog, or goat, after having given the notice required in section 
 oae of this chapter, shall go with some householder before a justice of 
 the peace of the county, and make oath before him, as is required in 
 taking up an estray horse, mare, or colt, mule, or ass, and then such 
 justice shall take from such housekeeper upon oath, a particular 
 description of the marks, brands, color and age of every such neat 
 cattle, sheep, hog, or goat, and said justice shall cause the said estrays
 
 CHAP. 7.] ESTRAYS. 321 
 
 to bo appraised in like manner as is required to be done in case of a 
 horse, mare or colt, mule or ass ; which description and valuation 
 shall be entered by such justice in a book to be kept by him as afore- 
 said, and by such justice transmitted to the clerk of the county com- 
 missioners' court of the county, to be by him kept as before directed : 
 Provided, That in all cases where the value of such neat cattle, sheep, 
 goat, or hog, does not exceed five dollars, said justice shall not be 
 required to make a return to the clerk as aforesaid ; but shall enter in 
 his estray book the description and appraisement value of such sheep, 
 hog, or goat, and advertise the same in three of the most public places 
 in his neighborhood. 
 
 " Sec. 4. Every such clerk shall cause a copy of such descrip- 
 tion and valuation of every neat cattle, sheep, hog, and goat returned 
 to him, to be publicly affixed at the court house door of his county, 
 within five days after the same shall be transmitted to him as aforesaid, 
 for which he shall receive the same fee as for entering the same in a 
 book, 
 
 " Sec. 5. If two or more estray s of the same species are taken up 
 by the same person at the same time, they shall bo included in one 
 entry and one advertisement, and in such case, such justice and clerk 
 shall receive no more pay than for one of such species. 
 
 " Sec. 6. No person shall be allowed hereafter to take up and 
 post any head of neat cattle, sheep, hog, or goat, between the month 
 ft- Aprif and the first day of November, unless the same may be found 
 in the lawful fence or inclpsure of the taker up, having broken in the 
 same ; and for a rewaM of taking up, there shall be paid by the owner, 
 one dollar for every horse, mare or coW, mule or ass ; and for every 
 head of neat cattle, fifty cents ; and for every hog, sheep, or goat, 
 twenty-five cents, together with all reasonable charges. 
 
 " Sec. 7. Proof of the giving of notice, as required in the first and 
 third sections of this chapter, may be made by the oath of the person 
 advertising, or a credible witness, previous to the appraisement. 
 
 " Sec. 8. If the owner of any such animals shall prove and take 
 them away before the appraisement thereof, he shall pay io >the person 
 who has care of the same, all reasonable charges for taking up and 
 keeping the same. 
 
 " Sec. 9. It shall not be lawful for persons taking up estrays, to 
 use the same previous to advertising them, unless it be to milk cows, 
 and the like, for the benefit and preservation of such animals. 
 
 " Sec. 10. It shall be the duty of the clerk of the county cominis- 
 
 20
 
 322 ESTRAYS. [PART 3, 
 
 sioners' court, when the description and valuation of any estray horse, 
 mare or colt, mule or ass, shall be transmitted to him by the justice, as 
 aforesaid, and in ten days thereafter make out a copy thereof, and trans- 
 mit the same to the public printer of the State, and endorse thereon, 
 " Estray papers," together with the sum of one dollar, to pay the said 
 printer ; which sum the taker up is required to deposit with the clerk 
 prior to the expiration of said ten days. It shall be the duty of the 
 public printer to publish said advertisement, and transmit one copy of 
 each number of his paper to each of the clerks of the county commis- 
 sioners' court of the several counties of this State, free of charge, which 
 shall be regularly filed by said clerks in their respective offices, for the 
 examination of those who may desire it. 
 
 " Sec. 11. And if no owner appear and prove his property within 
 one year after such publication, the property shall be vested in the 
 taker up ; nevertheless, the former owner may, at any time thereafter, 
 by proving his property, recover the valuation money, upon payment 
 of costs and all reasonable charges. 
 
 " Sec. 12. And if any person shall trade, sell or take away any 
 such estray or estrays out of the State, for any purpose whatever, before 
 the expiration of said one year, he or she so offending, shall be liable to 
 indictment in the circuit court of the proper county, and on conviction 
 thereof, shall be fined in a sum double the value of the property, one- 
 half to the owner thereof, and the other half to the county treasury ; 
 and when the owner of any estray head of neat cattle, sheep, hog or 
 goat, does not prove his property within twelve months after the same 
 has been published at the door of the court house, as aforesaid, and 
 when the valuation does not exceed five dollars, the property shall be 
 vested in the taker up ; but when the valuation shall exceed five dollars, 
 and no owner appear within the time aforesaid, the property shall also be 
 vested in the taker up ; nevertheless, the former owner may at any 
 time, by proving his property, recover the valuation thereof, upon pay- 
 ment of all reasonable costs and charges ; and if the taker up and the 
 owner cannot agree upon the charges, they shall call upon three disin- 
 terested householders, whose decision shall be binding on both parties ; 
 and it shall not be lawful for any person to take up any estray, (except 
 such as shall be hereinafter excepted,) unless he shall be a freeholder 
 or a housekeeper. 
 
 "Sec. 13. Any person finding a stray horse, mare, colt, mule or 
 ass, running at large without any of the settlements of this State, may 
 take up the same, and shall immediately take such estray or estrays be-
 
 CHAP. 7. ESTRAYS. 323 
 
 fore the nearest justice of the peace, and make oath that he has not 
 altered the marks or brands of such estray, since taking up ; and if 
 such taker up shall be a freeholder or housekeeper within that county, 
 it may and shall be lawful for him, to post such estray or estrays as 
 hereinbefore directed in this chapter, as if the same had been taken up 
 on his plantation or place of residence ; and when the taker up shall 
 not be qualified, as aforesaid, he shall take the oath before required, and 
 deliver such estray or estrays to the said justice, who shall cause the 
 same to be dealt with as directed by this chapter. 
 
 " Sec. 14. If no owner appear to prove his property within one 
 year, such estray or estrays shall be sold to the highest bidder, giving 
 public notice of such sale twenty days previous thereto, the purchaser 
 giving a bond and approved security, payable to the county commis- 
 sioners' court of the county where such estray shall be taken up ; and, 
 after paying the taker up all reasonable charges, the balance shall be 
 put into the county treasury by the said justice, who shall take a receipt 
 for the same from the county treasurer ; nevertheless, the former owner, 
 at any time within two years after taking up, by proving his property 
 before the clerk of the county commissioners' court of said county, or 
 before the justice of the peace before whom the property was taken up, 
 and obtaining a certificate thereof, from the clerk of said court or justice 
 of the peace, to the treasurer, shall receive the balance aforesaid. 
 
 " Sec. 15. And when any justice of the peace shall fail to pay any 
 money for any estray or estrays, to be sold agreeably to this chap- 
 ter, into the county treasury, within three months after selling such 
 estray or estrays, such justice shall forfeit and pay the sum of twenty 
 dollars with costs, to be recovered by action of debt, before any 
 justice of the peace of the county, or other court having jurisdiction 
 thereof, the one-half for the use of the county, and the other half 
 for the use of any person suing for the same ; and moreover, be liable 
 to pay the price of such estray or estrays, with interest thereon. 
 
 " Sec. 16. If any estray or estrays, taken up as aforesaid, shall 
 die or get away before the owner shall claim his or her right, the 
 taker up shall not be liable for the same ; and if any person shall 
 take up any estray or estrays, at any other place within the inhabit- 
 ed parts of this State, than his or her plantation or place of resi- 
 dence, or without being qualified as required by this chapter, he shall 
 forfeit and pay the sum of ten dollars with costs, recoverable before 
 any justice of the peace of the county where the offense shall have 
 been committed, and not having property sufficient to pay such fine,
 
 324 ESTKAYS. PART 3, 
 
 he shall he liable to he confined one month in the jail of the county 
 where he may be found, being found guilty of such offense accord- 
 ing to law ; and any person taking up any estray or estrays out of 
 the limits of the settlements of this State, and failing to comply with 
 the requisitions of this chapter, shall be liable to the same penalties ; 
 and if any person, taking up any estray or estrays of any species, 
 fail to comply with the requisitions of this chapter, he shall, for 
 every such offense, forfeit and pay to the informer, the sum of ten 
 dollars with costs, recoverable before any justice of the county where 
 such offense shall be committed, one-half to the use of the county, 
 and the other half to the use of the person suing for the same. 
 
 "Sec. 17. If any person or persons shall hereafter stop or take up 
 any keel, or flat boat, ferry flat, batteau, pirogue, canoe, or other ves- 
 sel or water craft, or raft of timber, or plank found adrift on any water 
 course within the limits or upon the borders of this State, and the same 
 shall be of the value of five dollars or upwards, it shall be the duty of 
 such person or persons, within five days thereafter, (provided the same 
 shall not, before that time, be proven and restored to the owner,) to go 
 before some justice of the peace of the proper county, and make affi- 
 davit in writing, setting forth the exact description of such vessel or 
 craft, when and where the same was found, whether any, and if so, 
 what cargo was found on board, and that the same has not been altered 
 or defaced, either in whole or in part, since the taking up, either by him, 
 her, or them, or by any other person or persons, to his, her, or their 
 knowledge ; and the said justice shall thereupon issue his warrant, 
 directed to some constable of his county, commanding him forthwith, 
 to summon three respectable householders of the neighborhood, if they 
 cannot otherwise be had, whose duty it shall be, after being sworn by 
 said justice, to proceed without delay, to examine and appraise such 
 boat or vessel, and cargo, if any, and make report thereof, under their 
 hands and seals, to the justice issuing such warrant, who shall enter 
 such appraisement, together with the affidavit of the taker up, at large, 
 in his estray book ; and it shall be the further duty of said justice, 
 within ten days after the said proceedings shall have been entered in 
 his estray book as aforesaid, to transmit a certified copy thereof, to the 
 clerk of the county commissioners' court of his county, to be, by him 
 recorded in his estray book, and filed in his office. 
 
 " Sec. 18. In all cases where the appraisement of such boat or 
 water craft, including her cargo, shall not exceed the sum of twenty 
 dollars, the taker up shall advertise the same on the door of the court
 
 ClIAP. 7.] ESTRATS. 325 
 
 house, and in three of the most public places in the county, within ten 
 days after the justice's said certificate shall have been entered on the 
 records of the county commissioners' court; and if no person shall 
 appear to prove and claim such boat or water craft, within six months 
 from the time of taking up as aforesaid, the property in the same shall 
 vest in the taker up ; but if the value thereof shall exceed the sum of 
 twenty dollars, it shall be the duty of the clerk of the county commis- 
 sioners' court, within twenty days from the time of the reception of the 
 justice's said certificate at his office, to cause an advertisement to be 
 set up on the door of the court house, and also a notice thereof to be sent 
 to the public printer as aforesaid, who shall publish the same as afore- 
 said ; and if the said vessel be not claimed and proven within six 
 months from said advertisement, the same shall be vested in the taker 
 up ; nevertheless the former owner may, at any time thereafter, recover 
 the valuation money, by proving his property and allowing to the taker 
 up a reasonable compensation for his trouble, and costs, and charges. 
 
 Sec. 19. In all cases where services shall be performed by any offi- 
 cers or other person or persons under this chapter, the following fees or 
 compensation, shall be allowed, to wit : To the justice of the peace, for 
 administering oath to the taker up or finder, making an entry thereof, 
 with report of the appraisers and making and transmitting a certificate 
 thereof to the clerk of the county commissioners' court, fifty cents ; to 
 the clerk or justice for taking proof of the ownership of, and granting a 
 certificate of the same, twenty-five cents ; for registering each certifi- 
 cate transmitted to him by any justice as aforesaid, twelve and a half 
 cents ; for advertisements, including the newspaper publications, fifty 
 cents in addition to the cost of such publication ; to the constable for 
 each warrant so served on appraisers, twenty-five cents ; and to each 
 appraiser, the sum of twenty-five cents ; which said fees shall be paid 
 by the taker up to the persons entitled thereto, whenever said services 
 shall be rendered. All which costs and charges shall be reimbursed to 
 the taker up or finder, in all cases where restitution of the property 
 shall be made to the owner, in addition to the reward to which such 
 person may be entitled for taking up as aforesaid. 
 
 " Sec. 20. If any person shall act contrary to the duties enjoined 
 by this chapter, for which no penalty is hereinbefore pointed out, the 
 person so offending shall, on conviction thereof, forfeit and pay for 
 every such offense, not less than five, nor more than one hundred 
 dollars, to be sued for in the name of the proper county, before any 
 justice of the peace, or other court having cognizance thereof."
 
 326 ESTRAYS. [PART 3, 
 
 Under the estray laws, a party who has not given the required 
 notice, cannot acquire the property by lapse of time, or by possession. 
 Neither could he recover the property from another in an action of 
 trover ; and one who retains an estray without giving notice as the 
 law directs, is a tortfeasor. 1 
 
 Notice of an IZstray. 
 
 Taken up as an estray by the subscriber, at his place of residence, 
 
 (or " plantation,") in , in county, on the ' 
 
 day of , 18 , a [sorrel mare, four years old, or thereabouts, 
 
 fifteen hands high, having a star in her forehead, and branded with the 
 letters K. S. on the left shoulder,] which I intend to have appraised 
 according to the statute in such case made and provided. 
 
 Dated the day of , 18. A. B. 
 
 Oath of the person taking up an Estray, and proof of posting 
 advertisements. 
 
 Lake COUNTY, ) 
 
 Town (or " Precinct ") of , } Sf 
 
 A. B., of said town, (or "precinct,") being duly sworn, deposes 
 and says that he is a freeholder (or " housekeeper ") of said county ; 
 
 that on the day of , 18 , at his place of residence 
 
 (or "plantation") in the said county, he took up an estray, a [sorrell 
 mare,] particularly described in the advertisement of which the following 
 
 is a copy, viz., (here insert the advertisement) ; that on the 
 
 day of , 18 , he posted up copies of the said advertisement 
 
 in three of the most public places in said town (or " precinct,") (or if 
 neat cattle, &c., then say, "his neighborhood") ; that the marks or 
 brands of the said mare have not been altered since the taking up. 
 
 Subscribed and sworn before me, this", 
 
 T /. A. B. 
 day of , 18 . 
 
 SHELDON WOOD, J. P. 
 
 (1) 13 111. 65.
 
 CHAP. 7.] ESTKAYS. 327 
 
 Form of an Advertisement when an Estray is taken up without any 
 of the settlements, fyc. 
 
 NOTICE OP AN ESTRAY. 
 
 Taken up as an estray by the subscriber, of the county of , 
 
 on the day of , 18 , in the said county, a [bay 
 
 horse, six years old, or thereabouts, fourteen hands high, having white 
 hind feet, branded with the letters L. M. on the right shoulder,] 
 running at large, without any of the settlements of this State ; which 
 I intend to have appraised, according to the 'statute in such case made 
 and provided. 
 
 Dated the day of , 18. A. B. 
 
 Oath of the person taking up an Estray, and proof of posting 
 the above advertisement. 
 
 Lake COUNTY, ) 
 
 Town (or "Precinct ") of , j S5 
 
 A. B., of said county, being duly sworn, deposes and says that he 
 is a housekeeper, (or "freeholder") (if the taker up is not a house- 
 keeper or freeholder, state according to facts) ; that on the 
 
 day of , 18 , in the said county, he took up an estray, a 
 
 [bay horse,] particularly described in an advertisement, of which the 
 following is a copy, (here insert the advertisement); that on the 
 day of , 18 , he posted up copies of the said adver- 
 tisement in three of the most public places in said town (or " precinct ") 
 and that the marks or brands of the said horse have not been altered 
 since the taking up. 
 
 Subscribed and sworn before me, the ^ A. B. 
 
 day of , 18. 
 
 J. BANGS, J. P. 
 
 Form of Appointment of Appraisers. 
 
 To E. F., G. H., and L J., three housekeepers in the neighborhood 
 
 of A. B., in , in the county of : 
 
 Whereas A. B. has made application before me, the subscriber, one 
 of the justices of the peace in and for county, for the appoint- 
 ment of three disinterested housekeepers in the neighborhood, to 
 appraise a [sorrell mare,] taken up by him as an estray, at his place of
 
 328 ESTRAYS. [PART 3, 
 
 residence, (or " plantation ") in said county, and proved before me 
 that he posted up written advertisements of the taking up ten days 
 previous to the making of said application : 
 
 This is therefore to appoint you to appear before me forthwith, (or 
 
 "on the day of , 18 , at o'clock in the 
 
 noon,") and after being duly sworn, to appraise the said estray, and 
 to report to me your appraisement. 
 
 Witness L. M., Esquire, a justice of the peace in , in said 
 
 county, the day of , 18 . 
 
 L. M., 
 Justice of the Peace. 
 
 Form of Warrant for Appraisers. 
 
 Lake COUNTY, 
 Town (or " Precinct ") of 
 
 The People of the State of Illinois to any Constable of said County : 
 Whereas, A. B. has made application before L. H. Bute, Esquire, one 
 of the justices of the peace of the said county, for the appointment of 
 three disinterested housekeepers in the neighborhood, to appraise a [sor- 
 rell mare,] taken up by him as an estray, at his residence, (or " planta- 
 tion,") in said county, and proved before the said justice that he had 
 posted up written advertisements of the taking up ten days previous to 
 the making of said application ; and, whereas, it has been made satis- 
 factorily to appear to the said justice, by the oath of the said A. B., 
 that appraisers cannot be had without a warrant for that purpose : 
 
 We, therefore, command you to cause E. F., G. H. and I. J. per- 
 sonally to appear before the said justice forthwith, (or "on the 
 
 day of , 18 , at o'clock in the noon,") at his office, 
 
 in , to appraise, under oath, the said estray, and report to him 
 
 the said appraisement. 
 
 In witness whereof the said justice has hereunto set his hand and 
 
 seal, this day of , 18 . 
 
 L. H. BUTE, J. P. [SEAL.] 
 
 Form of Oath or Affirmation of Appraisers. 
 
 You, and each of you, do swear, (or " you do solemnly, sincerely 
 and truly declare and affirm,") that you will appraise the [horse] now 
 shown to you as an estray, taken up by A. B., without partiality, favor, 
 or affection.
 
 CHAP. 7.] ESTKATS. 329 
 
 Form of Report of Appraisement. 
 
 -, } SS> 
 
 Lake COUNTY, 
 Town (or " Precinct ") of 
 
 We, the undersigned, housekeepers in said town, (or " precinct,") 
 appraisers, appointed and sworn by L. M., Esquire, one of the justices 
 of the peace of said county, do respectfully report to you, the said jus- 
 tice, that we have examined a [bay horse, six years old, or thereabouts, 
 fourteen hands high, having white hind feet, and branded with the let- 
 ters L. M. on the right shoulder,] shown to us as an estray, taken up 
 
 by A. B., and have appraised the said horse at the sum of 
 
 dollars. 
 
 Dated this day of , 18 . 
 
 E. F. [SEAL.] 
 G. H. [SEAL.] 
 I. J. [SEAL.] 
 
 Form of Entry to be made by Justice on Estray Book. 
 
 Lake COUNTY, ) 
 
 Town (or " Precinct ") of , j Ss 
 
 Be it remembered that on the day of , 18^-, A. B. of 
 
 said county appeared before me, L. M., Esquire, a justice of the peace 
 of the said county, and took and subscribed the following oath, viz : 
 (set out the oath at length) ; that I did thereupon appoint (or "cause") 
 E. F., Gr. H. and I. J., three disinterested housekeepers of the neigh- 
 borhood, to come before me forthwith, (or "on the day of , 
 
 18 ,) to appraise the said estray, and report to me their appraise- 
 ment : who did thereupon, forthwith (or " on the day of , 
 
 18 ) appear, and having been by me duly sworn to appraise the said 
 estray without partiality, favor or affection, did appraise the same and 
 report to me their appraisement, in the words following, viz : (here in- 
 sert the report at length.*) 
 
 In witness whereof the said justice of the peace has hereunto set his 
 
 hand and seal, the day of : , 18 . 
 
 L. M., J. P. [SEAL.] 
 
 A copy of the above should be transmitted to the clerk in all cases, 
 (except in case of neat cattle, sheep, hogs, and goats, when the valua- 
 tion does not exceed five dollars,) and certified as follows, viz :
 
 330 ESTRAYS. [PART 3, 
 
 Lake COUNTY, ") 
 
 Town (or " Precinct ") of , j " 
 
 I, L. M., one of the justices of the peace in and for the said county, 
 do hereby certify that the above is a true copy of the proceedings in 
 relation to the estray therein described, as entered by me on my estray 
 
 book. 
 
 Dated this day of , 18. 
 
 L. M., 
 Justice of the Peace. 
 
 Form of Advertisement of Neat Cattle, dec., by the justice, valuation 
 not exceeding Jive dollars. 
 
 NOTICE OF AN ESTRAY. 
 
 Taken up, as an estray, by A. B., of county, on the 
 
 day of , 18 , (describe the estray,) which has been appraised 
 
 at the sum of dollars, by three appraisers, appointed and sworn 
 
 by me. 
 
 Dated the day of , 18 . 
 
 L. M., 
 Justice of the Peace. 
 
 Form of Affidavit by taker up of water craft. 
 
 STATE OF ILLINOIS, ) 
 COUNTY, f K 
 
 A. B., of said county, being duly sworn, deposes and says that on 
 day of , 18 , (here state particularly where the boat 
 
 was found, and give an exact description of the craft, whether any, 
 and if so, what kind of cargo was found on board,) that he then and 
 there took up the said boat ; and that the same has not been altered 
 nor defaced either in whole or in part since the taking up, either by him 
 or any other person or persons, to his knowledge. 
 
 Subscribed and sworn to before | A. B. 
 
 me, this day of , A. D. 18 . > 
 L. M., /. P. J
 
 CHAP. 7.] ESTRAYS. 331 
 
 Form of a Warrant to summon Appraisers. 
 
 STATE OP ILLINOIS, ) 
 COUNTY, | ss 
 
 The People of the State of Illinois to any Constable of said County, 
 GREETING : 
 
 Whereas, A. B., of said county, has on the day of , 
 
 185-, made affidavit in writing, before L. M. Esquire, one of the justices 
 
 of the peace of the said county, that on the , day of , 185, he 
 
 found adrift on the river a (here describe the craft as in the affi- 
 davit,'} and then and there took up the same : 
 
 You are, therefore, hereby commanded to summon three respectable 
 householders of the neighborhood to appear forthwith before me, to be 
 by me duly sworn to examine and appraise said flat boat. 
 
 Witness L. M., Esquire, justice of the peace, at in said county, 
 
 this day of , 185-. L. M., 
 
 Justice of the Peace. 
 
 Oath of Appraisers. 
 
 You, and each of you, do solemnly swear that you will, without par- 
 tiality, favor or affection, examine and appraise a flat boat taken up 
 adrift by A. B., of county, and make a true report thereof. 
 
 Report of Appraisers. 
 
 STATE OF ILLINOIS, 
 COUNTY 
 
 ts, ) 
 > ss. 
 
 . We, the undersigned, householders of said county, appraisers appointed 
 and sworn by L. M., one of the justices of the peace in and for the said 
 county, do respectfully report that we have examined a flat boat, (de- 
 scribe the boat,} shown to us as the one found adrift on the river, 
 
 and taken up by A. B. of said county, and have appraised said flat 
 
 boat at the sum of dollars, (if it be a boat and cargo, then add) 
 
 and we do further report, that we have appraised the cargo of said boat 
 as follows, viz : 
 
 10 Barrels of flour, $40,00. 
 
 50 Bushels of potatoes 12,00. 
 
 In witness whereof, we have this day of , 185-, set 
 
 our hands and seals. E. F. [SEAL.] 
 
 G. H. [SEAL.] 
 I. J. [SEAL.]
 
 332 ESTRAYS. [PART 3, 
 
 Form of Entry by a justice in his estray book in case of taking up 
 ivater craft. 
 
 STATE OF ILLINOIS, ) 
 
 COUNTY, j SJ 
 
 Be it remembered that on the day of , 185-, A. B., 
 
 of said county, appeared before me, L. M., a justice of the peace, and 
 took and subscribed an affidavit in the words following, to wit : (set 
 out affidavit at length.) 
 
 That I did thereupon appoint E. F., G. H., and I. J., three respecta- 
 ble householders of the neighborhood, forthwith to appraise the said flat 
 boat, (" and cargo," if any,) who being by me first duly sworn to ex- 
 amine and appraise the same without partiality, favor or affection, and 
 make a true report thereof, made their report to me in the words follow- 
 ing, viz : (Here set out the report at length.) 
 
 In witness whereof, the said justice has hereunto set his hand and 
 
 seal, this day of , 185-. 
 
 L. M. [SEAL.] 
 
 STATE OF ILLINOIS, > 
 
 COUNTY, j 
 
 I, L. M., justice of the peace in and for the said county, do hereby cer- 
 tify that the above is a true copy of the proceedings in relation to the 
 flat boat, &c., therein described, as entered by me on my estray book. 
 
 Dated the day of , 185-. 
 
 L. M., /. P. [SEAL.] 
 
 Advertisement by the taker up, where appraisement of the craft, in- 
 cluding the cargo, does not exceed twenty dollars. 
 
 NOTICE. 
 
 Taken up by the subscriber, on the day of , 185-, 
 
 (describe accurately the craft, and cargo, if any,) found adrift, (state 
 
 ichen found,) in : county, which I have caused to be appraised 
 
 according to law. 
 
 Dated the day of , 185-. 
 
 A. B. [SEAL.]
 
 CHAP. 7.] ESTRAYS. 333 
 
 How to proceed in Counties adopting Township Organization. 
 
 By an act to amend chapter thirty-nine of the revised Statutes, enti- 
 tled "Estrays," approved February 15, 1855, it is enacted : 
 
 "Sec. 1. That in counties which have adopted or shall hereafter 
 adopt township organization, the town clerks of every town thereof shall 
 provide a book for the purpose of registering the mark, brand and color 
 of any animals enumerated in chapter thirty-nine of the revised statutes, 
 taken up as an estray, which book shall be open at all times for inspec- 
 tion by all persons interested therein, and shall be deemed a part of the 
 records of said town. 
 
 " Sec. 2. Any person who shall take up any estray according to the 
 provisions of the act to which this is an amendment, shall cause to be 
 registered in the book provided in the foregoing section, the marks, 
 brands and color of said estray within five days from the time of such 
 taking up."
 
 334 FORCIBLE ENTRY AND DETAINER. [PART 3, 
 
 CHAPTER VIII. 
 
 OF FORCIBLE ENTRY AND DETAINER. 
 
 Rev. Stat. 256, Sec. 1. "If any person shall make any entry into 
 any lands, tenements or other possessions, except in cases where entry 
 is given by law, or shall make any such entry by force, or if any per- 
 son shall willfully and without force, hold over any lands, tenements, or 
 other possessions, after the determination of the time for which such 
 lands, tenements, or possessions were let to him, or to the person 
 under whom he claims, after a demand made in writing for posses- 
 sion thereof, by the person entitled to such possession, such person 
 shall be adjudged guilty of a forcible entry and detainer, or a forcible 
 detainer, as the case may be, within the intent and meaning of this 
 chapter. 
 
 " Sec. 2. Any justice of the peace of any county in this State, 
 shall have jurisdiction of any case arising under this chapter, and 
 on complaint upon oath of the party aggrieved, or his authorized 
 agent, shall issue his summons directed to the sheriff (or coroner, if 
 the sheriff be interested,) of his county, commanding him to summon 
 the person against whom the complaint is made, to appear before 
 such justice at a time and place to be stated in such summons, not 
 more than twelve nor less than six days from the time of issuing 
 such summons, and which shall be served at least five days before 
 the return day thereof, by reading the same to the defendant, or 
 leaving a copy at his place of abode ; and the said justice shall 
 also, at the same time, issue a precept to the sheriff or coroner, com- 
 manding him to summon a jury of twelve good and lawful men of 
 the county, to appear before him at the return of such summons, 
 to hear and try the said complaint. And if any part of the jurors shall 
 fail to attend or be challenged, the said justice may order the sheriff 
 or coroner to complete the number, by summoning and returning 
 others forthwith.
 
 ClIAP. 8.] FORCIBLE ENTRY AND DETAINER. 335 
 
 " Sec. 3. The sheriff or coroner shall return to the said justice, 
 the summons and precept as aforesaid, on the day assigned for trial, 
 and shall state on the back of said summons, how the same was 
 served, and on the back of said precept, a list of the names of the 
 jurors. And if the defendant does not appear, the justice shall 
 proceed to try the said cause, ex parte, or may, in his discretion, post- 
 pone the trial for a time not exceeding ten days ; and the said justice 
 shall also issue subpoenas for witnesses, and proceed in the trial of said 
 cause, as in other cases of trial by jury. 
 
 " Sec. 4. No indictment or inquisition shall be necessary in any 
 case arising under this chapter ; but the justice shall set down in 
 writing, the complaint under oath, particularly describing the lands, 
 tenements, or possessions in question, and shall keep a record of the 
 proceedings had before him ; and if the jury shall find the defendant 
 guilty, he shall give judgment thereon, for the plaintiff to have restitu- 
 tion of the premises and his costs, and shall award his writ of restitu- 
 tion ; and if a verdict be given for the defendant, judgment shall be 
 given against the plaintiff for costs, and execution issued therefor. 
 
 " Sec. 5. If either party shall feel aggrieved by the verdict of 
 the jury or the decision of the justice on any trial had under this 
 chapter, he or she may have an appeal to the circuit court, to be 
 obtained in the same manner, and tried in the same way as appeals 
 from justices of the peace in other cases. 
 
 " Sec. 6. If the defendant or defendants appeal, he or they shall 
 also insert in the appeal bond, a clause conditioned for the payment 
 of all rents becoming due, if any, from the commencement of the 
 suit, until the final determination thereof. If the appeal be taken 
 within five days after the trial had before the justice, no writ of 
 restitution or execution shall be issued by him ; and the circuit court, 
 on giving judgment for the plaintiff, shall award a writ of restitu- 
 tion, and execution for costs, including the costs before the justice; 
 and if judgment be for the defendant, he shall recover costs in like 
 manner, and have execution for the same." 
 
 Amendment to the foregoing. By an act to extend the jurisdiction 
 of justices of the peace, and constables, in action of forcible entry and 
 detainer, or forcible detainer only, approved February 25th, 1845, * it 
 is enacted : 
 
 " Sec. 1. That in all actions of forcible entry and detainer, or 
 forcible detainer only, hereafter to be brought in this State, it shall be 
 
 (1) See Rev. Stat. 582.
 
 336 FORCIBLE ENTRY AND DETAINER. [PART 3, 
 
 lawful ifor constables in the respective counties where such shall be 
 broughf, to serve all process therein, and who shall be entitled to the 
 same fees and emoluments therefor, as sheriffs are now authorized by 
 law to receive for similar services. 
 
 " Sec. 2. That when any such action shall be hereafter brought, 
 the justice of the peace before whom such suit shall be commenced, 
 shall direct all process to be issued therein to the sheriff or any 
 constable of his county to execute ; and when such process shall be 
 issued and directed, it shall be at the option of the plaintiff and 
 defendant to give their respective process to the sheriff of the county, 
 or to any constable of the justice's district, to execute and return the 
 same, any law now in force in this State to the contrary notwith- 
 standing." 
 
 There are four cases in which a forcible entry and detainer may be 
 maintained in this State : 1. Where there has been a forcible entry 
 upon the possession of another. 2. Where there has been an illegal 
 as contradistinguished from a forcible entry upon such possession. 
 3. Where a person settles upon the unsold public lands within this 
 State, according to the pre-emption or claim law. 4. Where there 
 has been a wrongful holding over by a tenant, after the expiration of 
 the time for which the premises may have been let to him. In the 
 three first, there must be an illegal and forcible entry upon the actual 
 possession of another. 1 In order to give a justice of the peace juris- 
 diction in this action, the complaint should contain sufficient allegations 
 to bring it within one of the several cases contemplated by the statute, 2 
 and in order to maintain the action, two things must concur, First, The 
 possession must be illegally or forcibly taken, which constitutes the 
 entry ; and Second, The possession so taken must be withheld, which 
 constitutes the detainer. 3 It is not necessary to prove actual force and 
 physical violence. 4 
 
 A complaint for forcible entry and detain r, should show clearly the 
 foundation of the right which is sought to be enforced, and that the 
 wrongful or illegal entry was made upon the actual or constructive 
 possession, of the plaintiff, or the existence of landlord and tenant, and 
 a wrongful holding over. 5 
 
 There is no precise form for a complaint in an action of forcible 
 entry and detainer. It is sufficient, if the complaint show that the 
 relation of landlord and tenant existed, that the time for which the 
 
 (1) 1 Scam. 409. (2) 3 Gil. 449. (3) 5 Id. 219. 
 
 (4) 1 Scam. 409. (5) 3 Gil. 443.
 
 ClIAP. 8.] FORCIBLE ENTRY AND DETAINER. 337 
 
 premises let has expired, and that the tenant persisted in holding the 
 premises after demand made in writing for the possession. 1 
 
 The description of the premises sought to be regained, should be exact 
 and particular. 2 Where a complaint only stated that " the complainant 
 was entitled to the possession of a house and lot in the town of Galena, 
 wherein one Wells lives, and that said Wells refuses to give possession 
 of said house, although he was notified so to do in writing," it was 
 held insufficient. 8 
 
 The action of forcible entry and detainer is purely a civil remedy, 
 the sole object of which is to regain a possession which has been 
 invaded, and the only judgment that can be rendered is, that the 
 plaintiff have restitution of the premises. 4 
 
 The jurisdiction of this action is, in the first place vested exclusively 
 in justices of the peace; county and circuit courts obtain jurisdiction 
 only by appeal. 5 
 
 Where a tenant claims adversely to his landlord, his possession from 
 that moment becomes tortious, and the landlord may regain it by an 
 action of forcible entry and detainer, whether it is occupied by the 
 tenant, his agents or assigns. 6 
 
 In a case of forcible detainer by the landlord, against the tenant, the 
 latter is not permitted to show that the title of the former has expired, 
 or that some third person has the right to the possession. The tenant 
 must first surrender the possession to him from whom he received it, 
 before he shall be permitted to say that his landlord has no longer a 
 right to retain it. 7 
 
 Where a lease provides that the party may re-enter and take posses- 
 sion, on non-payment of rent, it will be sufficient to aver a demand in 
 general terms, and that the lease provides for re-entry, &c. ; the utmost 
 technical strictness is not necessary in a declaration before a justice of 
 the peace ; if it is substantially correct, it will be good. 8 
 
 In an action of forcible detainer only, the plaintiff should state that 
 the defendant willfully, and without force, holds over the premises after 
 the time has expired for which they are leased ; or, in other words, the 
 relation of landlord and tenant should be shown to exist, and a holding- 
 over after a demand made in writing by the landlord. 9 
 
 A verdict of a jury which simply finds the defendant guilty, will be 
 
 (1) 5 Gil. 293 ; 11 111. 93. (2) 11 111. 93 ; 1 Scam. 407. (3) Brcese, 264. 
 
 (4) 5 Gil. 219. (5) 4 Id. 131. (6) 14 111. 135 ; 5 Gil. 62. 
 
 (7) 5 Gil. 41. (8) 3 Id. 291. (9) Breese, 264. 
 
 21
 
 338 FORCIBLE ENTRY AND DETAINER. [PART 3, 
 
 sufficient. 1 The judgment in this action will be that the plaintiff have 
 restitution of the premises of which he has been unjustly deprived. 2 
 
 The proceedings in this action, under our statute, being contrary to 
 the common law, the statute must be strictly followed. 8 
 
 Form of Complaint for an Entry without force. 
 
 STATE OF ILLINOIS, > 
 Cook COUNTY, ) 
 
 The complaint of A. B., of , in said county, who, being duly 
 
 sworn, upon his oath gives L. M., one of the justices of the peace of 
 
 said county, to understand and be informed that C. D., on the 
 
 day of , 18 , at , in the county aforesaid, did unlaw- 
 fully enter into the lands (or " tenements ") and possessions of the 
 complainant, there situate, known and designated as follows, to wit : 
 (describe the land,) and then and there did unlawfully put out and ex- 
 pel the complainant from his said lands (or " tenements") and posses- 
 sions, wherein this complainant had, at the time aforesaid, an estate of 
 freehold then and still subsisting, (or ' ' was possessed of a certain term 
 of years, then and still to come and unexpired," or " been in quiet and 
 peaceable possession for the space of eight years preceding, and that 
 his interest therein still subsists,") and the said C. D. still doth hold 
 and detain the said lands (or " tenements") and possessions from the 
 said complainant, unlawfully and without right, contrary to the form of 
 the statute in such case made and provided. Therefore, he prays that 
 the said C. D. may be summoned to answer this complaint. 
 
 Subscribed and sworn before ) A. B. 
 
 me, the day of , 18 
 
 L. M., J. P. 
 
 Form of a Complaint for forcible Entry. 
 
 STATE OF ILLINOIS, ) 
 COUNTY, ) 
 
 The complaint of A. B., of , in the said county, who, being 
 
 duly sworn, upon his oath gives L. M., one of the justices of the peace 
 
 in said county, to understand and be informed that C. D. on the 
 
 clay of , 18 , at , in said county, did unlawfully make a 
 
 forcible entry into the lands (or " tenements ") and possessions of this 
 
 (1) 5 Gil. 293. (2) Id. 219; 2 Scam. 66. (3) Breese, 264.
 
 ClIAP. 8. ] FORCIBLE ENTRY AND DETAINEE. 339 
 
 complainant, there situate, and known and designated as follows, to 
 wit: (insert the description,} and then and there with strong hand 
 and multitude of people, did violently, forcibly and unlawfully eject 
 and expel the complainant from the said lands (or " tenements ") and 
 possessions wherein this complainant had, at the time aforesaid, an estate 
 of freehold, then and still subsisting, (or " was possessed of a certain 
 tenn of years, then and still to come unexpired," or " been in quiet and 
 peaceable possession for the space of six months, then next preceding,") 
 and that the said C. D. still doth hold and detain the said lands (or 
 " tenements,") and possessions from the said A. B., unlawfully, forci- 
 bly, and with strong hand, against the form of the statute in such case 
 made and provided. Therefore, he prays that the said C. D. may be 
 summoned to answer to the said complaint. 
 
 Sworn and subscribed before ^ A. B. 
 
 me, the day of , 18 . 
 
 L. M., /. P. 
 
 Form of Demand of Possession. 
 
 To Mr. C. J). : 
 
 Sir : Take notice that I hereby demand that you quit and imme- 
 diately deliver up possession of the lands (or " tenements ") and pos- 
 sessions which you now hold of me, situate in , in the county of 
 
 , being the same now occupied by you. Mr. E. F. is hereby 
 
 authorized to receive possession of said land for me. 
 
 Dated the day of , 18. 
 
 Yours, &c., A. B. 
 
 Form of Notice, when given by an agent. 
 
 To Mr. C. D. : 
 
 Sir : Take notice that I do, as the agent for and on behalf of your 
 landlord, A. B., of , demand that you quit and immediately de- 
 liver up possession of the lands (or "tenements") and possessions 
 
 which you now hold of the said A. B., situate in , in county, 
 
 being the same on which you now reside. 
 
 Dated the - - day of , 18. 
 
 Yours, &c., G. H., 
 
 Agent for the said A. B.
 
 340 FORCIBLE ENTRY AND DETAINER. [PART 3, 
 
 Eorm of Complaint for a forcible Detainer. 
 
 STATE OF ILLINOIS, ) 
 COUNTY, ) S5 
 
 The complaint of A. B. of , in said county, who being duly 
 
 sworn, upon his oath gives L. M., Esquire, a justice of the peace of said 
 
 county, to understand and be informed that on or about the day of 
 
 , 18 5-, he did demise and lease to C. D. of the place aforesaid, 
 
 all that certain farm {or " messuage,") situate in , in the county 
 
 aforesaid, known and designated as follows : (describe the premises,} for 
 
 and during the term of one year from the said day of , 
 
 185-, and that the said C. D. willfully and without force, after the 
 expiration of the said lease, held over and still continues in possession 
 of the premises without the permission of this complainant, notwith- 
 standing demand has been made in writing by this complainant upon 
 the said C. D., to quit and deliver up possession thereof to him ; there- 
 fore he prays that the said C. D. may be summoned to answer to the 
 said complaint. 
 
 Subscribed and sworn before me, the ") A. B. 
 
 day of , 185-. 
 
 L. M., J. P. 
 
 Form of Summons. 
 
 STATE OF ILLINOIS, ") 
 COUNTY, } ss> 
 
 'The People of the State of Illinois to the Sheriff or any Constable of 
 the said County : 
 
 Whereas complaint has been made before L. M., Esquire, one of the 
 
 justices of the peace of said county, that C. D. on the day of 
 
 , 185-, at , in the county aforesaid, did unlawfully 
 
 enter into the lands and possessions of A. B. there situate, and known 
 and designated as follows, to wit : (describe the premises,} and then 
 and there did unlawfully put out and expel the said A. B. from his 
 said lands and possessions, wherein he had been in the quiet and peace- 
 able possession for the space of eight years preceding, and that his inter- 
 est therein still continues, and that the said C. D. still doth hold and 
 detain the said lands and possessions from the said A. B., unlawfully and 
 without right, (or if for any other cause, set it forth in the complaint] :
 
 CUAP. 8.] FORCIBLE ENTRY AND DETAINER. 341 
 
 We, therefore, command you to summon the said C. D. to appear 
 
 before the said justice at his office in , in said county, on the 
 
 day of , instant, at o'clock, in the noon, to 
 
 answer the said complaint ; and have you then and there this precept. 
 Hereof fail not at your peril. 
 
 Given under the hand and seal of said justice, the day of 
 
 1 185-. 
 
 L. M., /. P. [SEAL.] 
 
 Form of a Subpoena. 
 
 STATE OF ILLINOIS, 
 COUNTY, 
 
 The People of the State of Illinois to L J., K. L., M. N. and 0. P. : 
 
 You, and each of you, are hereby required to be and appear before 
 L. M., Esquire, one of the justices of the peace of the said county at 
 
 his office in , in said county, on the day of , instant, 
 
 at o'clock, in the noon, to testify the truth, according to 
 
 your knowledge, touching a certain complaint made and exhibited by 
 A. B. before the said justice, against C. D., for a forcible entry and 
 detainer (or "detainer,") and for which the said C. D. is then and 
 there to be tried on the part of the complainant, (or " on the part of the 
 defendant,") 
 
 Given under the hand and seal of the said justice, the day 
 
 of , 185-. 
 
 L. M., J. P. [SEAL.] 
 
 There may be four witnesses put in one subpoena. 
 
 Form of Precept for summoning a Jury. 
 
 STATE OF ILLINOIS, 
 COUNTY, 
 
 The People of the State of Illinois to the Sheriff" or or any Constable 
 of the said Connty : 
 
 We command you to summon twelve good and lawful men of your 
 county, who are in no wise of kin to A. B. or C. D., to appear before 
 L. M., Esquire, one of the justices of the peace in said county, at his 
 
 office in , in the said county, on the day of instant, 
 
 at o'clock hi the noon, to make a jury, upon their oaths to 
 
 hear and try the traverse of the complaint of the said A. B., and now
 
 342 FORCIBLE ENTRY AND DETAINER. [PART 3, 
 
 pending before the said justice against the said C. D., for a forcible 
 entry and detainer (or " detainer,") against the form of the statute, in 
 such case made and provided ; and that you make a list of the persons 
 summoned, and certify the same on the back of this precept, and make 
 return hereof to the said justice. 
 
 Given under the hand and seal of the said justice, the day of 
 
 , 185-. 
 
 L. M., J. P. [SEAL.] 
 
 Jurors' Oath upon the Traverse. 
 
 You, and each of you, do swear that you will well and truly hear, 
 try and determine this issue of traverse between A. B., the complain- 
 ant, and C. D., the defendant, and a true verdict give according to the 
 evidence. So help you God. 
 
 Form of Oath of Witness. 
 
 You do swear, (or "you do solemnly, sincerely and truly declare and 
 affirm,") that the evidence which you shall give upon the issue of 
 traverse, between A. B., the complainant, and C. D., the defendant, 
 shall be the truth, the whole truth, and nothing but the truth. So help 
 you God. 
 
 The verdict of the jury should be, " We find the defendant guilty in 
 manner and form as stated in complaint," or " We find the defendant 
 not guilty." 
 
 Form of Record of Proceedings. 
 
 A. B. ) 
 
 vs. v COUNTY, ss. 
 
 C. D. ) 
 
 Be it remembered that on the day of , 18 , at , in 
 
 said county, A. B. complains to me, L. M. Esquire, one of the justices 
 of the peace in and for the said county, (what follows in brackets must 
 
 correspond with the charge in the complaint,} [that C. D. on the 
 
 day of , 18 , at , in the county of , did unlawfully enter 
 
 into the lands and possessions of the said A. B., there situate, and 
 known and designated as follows, to wit : (insert the description} ; 
 and then and there did unlawfully put out and expel the complainant 
 from his said lands and possessions wherein the said A. B. had been in
 
 ClIAP. 8.] FORCIBLE ENTRY AND DETAINER. 843 
 
 the quiet and peaceable possession for the space of eight years preceding, 
 and that his interest therein still subsists, and that the said C. D. still 
 doth hold and detain the said lands and possessions from the said A. B. 
 unlawfully and without right.] 
 
 Whereupon the said A. B., on the day of , 18 , prayed 
 
 of me, being a justice as aforesaid, to issue a summons in this behalf, 
 and I, having heard the said complaint and prayer, did thereupon issue 
 a summons, in the name of the people of the State of Illinois, directed 
 to the Sheriff of said county, requiring him to summon the said C. D. 
 
 to appear before me, at my office in , on the day of , 
 
 18 , at o'clock, in the noon, which was duly returned with 
 
 an endorsement thereon, signed by the said sheriff, as follows : " Per- 
 sonally served, the ' day of , 18 , by reading to the within 
 
 named C. D.;" and on the said day of , 18 , I issued a 
 
 precept for a jury to the said sheriff, commanding him to summon a 
 jury of twelve good and lawful men of the county, to appear before me 
 at the return of the said summons, to hear and try the said complaint, 
 which was returned by the said sheriff with a list of the names of the 
 jurors on the back thereof, and certified by him. 
 
 And on the day of , 18 , in pursuance of the 
 
 said summons, personally appeared before me, as well the said C. D. 
 as the said A. B., and the said complaint having been read to the said 
 C. D., he said that he was not guilty of the matters set forth therein. 
 And the jurors, of the jury summoned as aforesaid, having been called, 
 tried, and sworn, did sit together before me, and hear the proofs and 
 allegations of said parties, which were delivered publicly in their 
 presence ; and after hearing the said proofs and allegations, the jury 
 were kept together in a convenient place by the said sheriff, until they 
 had agreed on their verdict. 1 And the said jury having agreed on 
 their verdict, came into court, and delivered the same publicly, and 
 thereby found the said C. D. guilty, in manner and form as set forth 
 in the complaint. 
 
 It is therefore considered by me, the said justice, that the said A. B. 
 recover and be restored to the possession of the lands and possessions 
 particularly described and designated in said complaint, and that he 
 
 (1) If the verdict is for the defendant, then say, '' And the said jury having agreed on their 
 verdict, came into court and delivered the same publicly, and thereby found the said C. D. 
 not guilty. It is therefore considered that the said C. D. recover against the said A. B., the 
 
 sum of dollars for his costs and charges by him laid out and expended in his defense 
 
 on this behalf, according to the form of the statute in such case made and provided, and that 
 he have execution therefor. In testimony whereof," &c.
 
 344 FORCIBLE ENTRY AND DETAINER. [PART 3, 
 
 have a writ of restitution therefor ; and it is further considered, that 
 
 he recover against the said C. D., the sum of dollars, for his 
 
 costs and charges, by him laid out and expended in and about the 
 prosecution of this suit, according to the form of the statute in such 
 case made and provided, and that he have execution therefor. 
 
 In testimony whereof, I, the said L. M., one of the justices of the 
 
 peace, as aforesaid, have hereunto set my hand and seal at , in 
 
 the county of , the day of , 18 . 
 
 L. M., J. P. [SEAL.] 
 
 Form of Writ of Restitution. 
 
 STATE OF ILLINOIS, 
 COUNTY, 
 
 > ss. 
 
 The People of the State of Illinois to the Sheriff" of the said County: 
 Whereas A. B., lately exhibited his complaint under oath, in writing, 
 before L. M., Esquire, one of the justices of the peace of said county, 
 that (set out the charge as in the complaint,^) and prayed that the said 
 justice issue a summons in that behalf; whereupon the said justice 
 issued a summons, directed to the sheriff, requiring him to summon 
 
 the said C. D. to appear before the said justice on the day of 
 
 , 18 , and at the same time issued a precept to the sheriff, 
 
 commanding him to summon a jury to appear before him at the same 
 time and place, on which day the said C. D. appeared before the said 
 justice, and traversed the said complaint, and the jury being sworn, 
 after hearing the proofs and allegations of the parties, found the said 
 C. D. guilty; whereupon it was considered by the said justice, that 
 the said A. B. be restored to the possession of the said lands and 
 possessions, and have a writ of restitution therefor ; and it was further 
 considered by the said justice that the said A. B. recover against the 
 
 said C. D. the sum of dollars for his costs and charges by him 
 
 laid out and expended, in and about the prosecution of said suit, as 
 appears to us by the record of the said justice : 
 
 We, therefore, command you to go to the said premises without de- 
 lay, taking with you the power of the county, if necessary, and to cause 
 the said A. B. to be restored and put in full possession of the said 
 lands (or "tenements,") and possessions, according to his estate and 
 right therein before the said entry, (or " detainer,") in pursuance of 
 the statute in such case made and provided. 
 
 And we also command you to levy of the goods and chattels of the
 
 CHAP. 8.] FORCIBLE ENTRY AND DETAINER. 345 
 
 said C. D. in your county, the said sum of dollars, which was 
 
 adjudged to the said A. B. for his costs and charges aforesaid, whereof 
 the said C. D. is convicted, as appears to us by the said record, and 
 that you make return of what you shall do hereon, with all convenient 
 speed. 
 
 Given under the hand and seal of the said justice, the day 
 
 of , 185-. 
 
 L. M., /. P. [SEAL.] 
 
 Form of Execution for Costs against the Complainant. 
 
 STATE OF ILLINOIS, 
 COUNTY, 
 
 > ss. 
 
 The People of the State of Illinois to the Sheriff of the said County : 
 
 Whereas, A. B. lately exhibited his complaint under oath in writing 
 
 before L. M., Esquire, one of the justices of the peace of the said county, 
 
 against C. D. for a forcible entry and detainer, whereupon the said C. 
 
 D. was summoned, and appeared before the said justice on the 
 
 day of , 185-, and traversed the said complaint, and the jury 
 
 for that purpose duly summoned and sworn, after hearing the proofs 
 and allegations of the parties, by their verdict found the said C. D. not 
 guilty ; whereupon it was considered by the said justice that the said 
 
 C. D. recover against the said A. B. the sum of dollars for his 
 
 costs and charges by him laid out and expended in and about his de- 
 fense in this behalf, as appears to us by the record of the said justice : 
 We therefore command you that of the goods and chattels of the said 
 
 A. B. in your county, you levy the sum of dollars for his costs 
 
 and charges by the said C. D. laid out and expended as aforesaid. And 
 do you make return of what you shall do hereon with all convenient 
 speed. 
 
 Given under the hand and seal of the said justice, the day of 
 
 , 185-. 
 
 L. M., J. P. [SEAL.]
 
 346 INCLOSURES AND FENCES. PART 3. 
 
 CHAPTER IX. 
 
 OF INCLOSURES AND FENCES. 
 
 Rev. Stat. 280, Sec. 11. " For the better ascertaining and regula- 
 ting of partition fences, it is hereby directed that when any neighbors 
 shall improve lands adjacent to each other, or when any person shall 
 inclose any land adjoining to another's land already fenced, so that any 
 part of the first person's fence becomes the partition fence between 
 them, in both these cases the charge of such division fence, (so far as 
 inclosed on both sides,) shall be equally borne and maintained by both 
 parties ; to which, and other ends in this chapter mentioned, the county 
 commissioners, yearly, and every year in the term next after the month 
 of January, shall nominate, and are hereby required to nominate and 
 appoint three honest, able men for each township, who being duly sworn 
 to the faithful discharge of the duties of their appointment, shall proceed 
 at the request of any person or persons feeling him or themselves 
 aggrieved, to view all such fence and fences, about which any differ- 
 ence may happen or arise ; and the aforesaid persons, or any two of 
 them, in each township respectively, shall be the sole judges of the 
 charge to be borne by the delinquent, or by both or either party, and 
 of the sufficiency of all fences, whether partition fences or others." 
 
 By the Act to provide for township organization, approved February 
 17th, 1851, Article 3, Sec. 3, the assessor and the three commissioners 
 of highways ~of each town, in counties adopting township organization, 
 are made fence viewers by virtue of their office. 1 
 
 It would seem that before a party can be made liable for making or 
 repairing a partition fence, the proportion which he is bound to make 
 
 (1) The forms here given, have been prepared with reference to township organization, (See 
 Haines' Town. Organ., page 88.) and when used in counties not adopting this system, the only 
 change necessary will be to insert the number of the township, according to the customary 
 description, instead of the name of the town.
 
 CHAP. 9.] INCLOSURES AND FENCES. 347 
 
 or repair, ought to be either agreed upon or else assigned according to 
 law, for until this is done, the obligation is undefined, unless it may 
 have been otherwise determined by prescription ; x and where there 
 exists in such case, a joint obligation to make the fence, it is held that 
 no legal effect would flow from it ; for then each party would be bound 
 equally to make every part ; and if the fence be defective, each party 
 would be chargeable with the deficiency ; and upon the escape of cattle 
 from either close to the other, through a defect in any part of the fence, 
 the owner of the cattle could not allege the escape to be from the defi- 
 ciency of the other's fence. 2 
 
 Agreement to divide Partition Fence. 
 
 On this day of , in the year of our Lord one thousand 
 
 eight hundred, &c., it is agreed by and between A. B. of the county 
 
 of , and State of Illinois, of the one part, and C. D. of said 
 
 county, of the other part, as follows, viz. : 
 
 Whereas, the said A. B. has heretofore erected a fence on the divi- 
 sion line, between his lands and the lands of the said C. D., which 
 said fence commences at the (Jiere describe location of fence,) and 
 whereas, after the erection of said fence, the said C. D. inclosed a field 
 on the cast side of said division line, so that sixty rods of said fence, 
 commencing at the (here describe the location of said portion of 
 fence,) has become, and now is a partition fence between the fields of 
 the said A. B. and C. D., and whereas, the said C. D. has paid to the 
 said A. B. one half of the expense of building said sixty rods of fence, it 
 is therefore, now agreed between the parties hereto, that the thirty rods 
 on the north part of the said sixty rods, shall be well and sufficiently 
 maintained and kept in repair by the said A. B., and the remainder of 
 the said sixty rods shall be kept in like repair by the said C. D. 
 
 In witness whereof, we have hereto set our hands and seals, the day 
 and year aforesaid. 
 
 Executed and delivered in the I A. B. TSEAL.! 
 
 presence of 
 
 C. D. [SEAL.] 
 
 (1)6 Mass. 100. (2) 6 Mass. 101 ; 19 Johns. 385.
 
 348 INCLOSCRES AND FENCES. [P.A.ET 3, 
 
 Form of Certificate of Fence Viewers of Value of Fence in case of 
 an adjoining Owner. 
 
 TOWN OF 
 
 COUNTY. ) 
 
 > ss. 
 
 Whereas, A. B. and C. D. were and are, as appears to us, the 
 
 owners of certain adjoining lands in said town of . The lands 
 
 of the said A. B. being described as (describe the premises in question 
 with reasonable certainty,} and the land of the said C. D. being 
 described as (describe the land,) and the said A. B. formerly permitted 
 his land so adjoining that of the said C. D., to lie open and unenclosed, 
 while the land of the said C. D., has been and is now enclosed by a 
 fence ; and whereas, the said A. B. has lately enclosed his said land, 
 so that now the fence of the said C. D., has become a division fence 
 between said lands ; and whereas a dispute or disagreement has arisen 
 between the said parties concerning the proper portion of the value of 
 said division fence to be paid by the said A. B. Now therefore, we, 
 
 the undersigned fence viewers of said town of , do hereby 
 
 certify that we have made inquiry into the facts, and examined the 
 premises ; that the following is a correct description of the fence built 
 by the said C. D. as aforesaid, to wit : Commencing at the north- 
 west corner of section eight in said town, and running thence south on 
 the west line of said section, one hundred and sixty rods to the south- 
 west corner of said quarter section ; and that we have estimated the 
 
 value of said fence to be dollars, and that the proportion of said 
 
 fence to be paid by said A. B. to the Said C. D., is dollars. 
 
 Given under our hands this day of , A. D. 18 . 
 
 E. F., 1 
 
 Fence Viewers 
 Or. H., i ,,. ,, 
 
 Y of the 
 1. J., 
 
 K. L 
 
 Town of 
 
 Form of Certificate of Fence Viewers in relation to Fence to be made 
 or maintained by (hvners of adjoining Lands. 
 
 COUNTY, ) 
 
 TOWN OF 
 
 Whereas, A. B. and C. D., are, as appears to us, the owners of cer- 
 tain lands adjoining, in the said town of , (liere describe the lands
 
 CHAP. 9.] INCLOSURES AND FENCES. 349 
 
 as in the foregoing form, with reasonable certainty,} and as dispute 
 or disagreement has arisen between them concerning the respective 
 portions of a division fence to be maintained (or " to be made," as the 
 case may be,} by them. Now therefore, we the undersigned fence 
 viewers of the said town of , do hereby certify that upon the appli- 
 cation of the said parties, we did, on the day of , A. D. 
 
 18 , proceed to examine the premises, and hear the allegations of the 
 parties, and that we do determine that (here state the determination of 
 the viewers according to the fact.} 
 
 Given under our hands this day of , A. D. 18 . 
 
 E. F., "I 
 
 G H I ^ ence Viewers 
 
 i. j.,' r f the 
 
 K. L., I Town f~ 
 
 " Sec. 12. When they shall judge any fence to be insufficient, they 
 shall give notice thereof to the owners or possessors ; and if any one 
 of the owoers or possessors, upon request of the others, and due notice 
 given by the said viewers, shall refuse or neglect to make or repair 
 the said fence or fences, or to pay the moiety of the charges of any 
 fence before made, being the division or common fence, within twenty 
 days after notice given, then, upon proof thereof before two justices of 
 the peace of the respective county, it shall be lawful for the said justices 
 to order the person aggrieved, and suffering thereby, to make or repair 
 the said fence or fences, who shall be reimbursed his costs and charges 
 from the person so refusing or neglecting to make or repair the partition 
 fence or fences aforesaid, or to order the delinquent to pay the moiety 
 of the charge of the fence before made, being a division or common 
 fence, as the case may be." 
 
 Form of Certificate of Fence Viewers in adjudging fence insufficient 
 between adjoining lands. 
 
 COUNTY, 
 
 UNTY, ) 
 
 ss. 
 
 TOWN OF 
 
 Whereas, A. B. and C. D. are, as appears to us, the owners of cer- 
 tain lands adjoining, in said town of , (here describe the lands of 
 
 each with reasonable certainty,} and a dispute or disagreement has 
 arisen between them as to the sufficiency of a division fence between 
 the said lands ; and we, the undersigned fence viewers of the said town
 
 350 INCLOSURES AND FENCES. [PART 3. 
 
 of having, at the request of the said parties, (or one of them, 
 
 as the case may be, naming him,) proceeded to view such fence, and 
 having viewed the same, and heard the allegations of the respective 
 parties, do adjudge and determine that the portion of said fence, to wit : 
 (here describe it,*) which belongs to the said C. D. to maintain and 
 keep in repair, is not a good and sufficient fence ; and that the said C. 
 D, ought, and he is hereby requested, to repair the same, or to make a 
 good and sufficient fence, within twenty days from the time he shall be 
 notified of this our determination in the premises, and in default thereof, 
 that the said A. B. will sufficiently repair said fence, to reimburse his 
 costs and charges from the said C. D. 
 Given under our hands this day of 
 
 E. F. 1 
 
 
 J-4. J- .. 1 
 
 G.H., J 
 I J | 
 
 Fence Viewens 
 of the 
 
 J-. " j 1 
 
 K. L., J 
 
 '/V-v 1/1/11 f\-f 
 
 
 Form of Notice to be given by Fence Viewers, to an adjoining owner, 
 of their determination in relation to insufficiency of partition fence 
 
 To A. B., of the town of , in the county of : 
 
 SIR : You will take notice that we, the undersigned fence viewers 
 of said town of , after full hearing, did make the following certifi- 
 cate, to wit : (here insert a copy of the certificate,} and you will repair 
 the said fence, in said certificate mentioned, (or make it, as the case 
 may be,~) so that the same shall be a good and sufficient fence, within 
 twenty days from the time you shall have received this notice. 
 Given under our hands this day of , A. D. 18 . 
 
 Fence Viewers 
 
 of the 
 Town of . 
 
 Form of Request by an adjoining owner, after determination offence 
 viewers, to make, or repair partition fence. 
 
 To A. B., of the town of , in the county of : 
 
 The fence viewers of the said town of , having, on the 
 
 day of , A. D. 18 , determined and certified that a certain par- 
 tition fence, between or adjoining in said town, so far as it belongs to 
 you to maintain the same, is not a good and sufficient fence ; you are, 
 therefore, hereby requested to repair the same, so as to make it good
 
 ClIAP. 3.] INCLOSUEES AND FENCES. 351 
 
 and sufficient, within twenty days from this date, (or make the same, 
 as the case may be,) and in default thereof, I shall apply to two jus- 
 tices of the peace of the said county of , for an order to authorize 
 
 me to repair (or make) the said fence, and requiring you to reimburse 
 my costs and charges thereof. C. D. 
 
 Dated this - - day of , A. D. 18. 
 
 In proceeding under the Act regulating Inclosures, it is necessary 
 that the justices of the peace, before whom proceedings are had, should 
 notify the defendant of the same. An appeal lies from the decision of 
 two justices of the peace, under the Act regulating Inclosures. 1 
 
 Form of Notice by two Justices of the Peace to person refusing or 
 neglecting to make or repair fence, &c. Of Proceedings to be had 
 before them. 
 
 STATE OF ILLINOIS, ) 
 
 COUNTY, j 
 
 To A. B.: 
 
 You are hereby notified that C. D. has this day filed with E. F., 
 Esquire, a justice of the peace in and for said county, a certain certifi- 
 cate of fence viewers of the town of , in said county, of which the 
 
 following is a copy : (here insert a copy of certificate of viewers,) and 
 that the said C. D. has applied to the above named E. F., Esquire, and 
 also to Gr. H., Esquire, a justice of the peace in and for said county, 
 to hear proof in the premises, and for such order thereon as the case 
 
 shall require ; and that the said justices will, on the day of , 
 
 A. D. 18, at o'clock M., at the office of the said E. F., 
 
 Esquire, in the town of , in said county, proceed to hear such 
 
 proof as may be then and there offered, and to make such order in the 
 premises as the case shall seem to require. You can then and there 
 appear, and be heard, if you so desire. 
 
 Given under the hands of said justices this day of , of 
 
 , A. D. 18. E. F. 
 
 G. H. 
 
 Form of Order of two Justices in relation to Partition Fence between 
 adjoining Lands. 
 
 STATE OF ILLINOIS, ) 
 
 COUNTY, j Sf 
 
 Whereas, the fence viewers of the town of , in said county, did, 
 
 on the day of , A. D. 18 , determine and certify as fol- 
 
 (1) 1 Scam. 615.
 
 352 INCLOSURES AND FENCES. [PART 3, 
 
 lows, to wit : (here insert a copy of the certificate of viewers in the 
 case,) and whereas it has been made to appear to us, by satisfactory 
 proof, that the said A. B. was duly notified of the action and determi- 
 nation of said viewers ; and whereas it has further been made to appear 
 to us, by other like satisfactory proof, that the said C. D. did, on the 
 
 day of , A. D. 18 , request the said A. B. to repair 
 
 the said fence, (or as the case may be,) within twenty days from 
 that date ; and it further appearing, by like satisfactory proof, that the 
 said A. B. hath wholly refused to repair (or as the case may be,) said 
 fence, therefore we, the undersigned justices of the peace, in and for the 
 county aforesaid, due notice having been given by us to the said A. B., 
 being now fully advised in the premises, do order that the said C. D. re- 
 pair (or a* the case may be,) said fence, and that he be reimbursed his 
 costs and charges therefor from the said A. B. 
 
 Witness our hands this day of , A. D. 18 . 
 
 E. F. 
 
 G. H. 
 
 " Sec. 13. If the delinquent shall neglect or refuse to pay the party 
 injured the moiety of the charge of any fence before made, or to reim- 
 burse the costs and charges of making or repairing the said fence or 
 fences, under the order aforesaid, then the same shall be levied upon 
 the delinquent's goods and chattels, under warrant from a justice of the 
 peace, by distress and sale thereof, the overplus, if any, to be returned 
 to the said delinquent." 
 
 Form of Warrant of Distress by a Justice of the Peace against a 
 Delinquent failing to comply with the foregoing order. 
 
 STATE OF ILLINOIS, ) 
 COUNTY, \ ss ' 
 
 The People of the State of Illinois to any Constable of said County, 
 GREETING : 
 
 Whereas, it was, on the day of , A. D. 18 , ordered by 
 
 E. F. and Gr. H., two justices of the peace in and for said county, that, 
 (here recite the order,) and whereas it has been made to appear to me, 
 the undersigned, a justice of the peace in and for said county, that the 
 said C. D. has repaired (or as the case may be,) the said fence, and 
 that the said C. D. hath not been reimbursed his costs and charges from
 
 CHAP. 9.] INCLOSUKES AND FENCES. 353 
 
 the said A. B., which is dollars and cents. Now, there- 
 fore, these are to command you, that of the goods and chattels of the 
 said A. B. to be found in "your county, you make the sum of dol- 
 lars and cents, together with costs of proceedings, and make re- 
 turn of this writ to me, the said justice, with your doings thereon, 
 within seventy days from the date hereof. And this you will not omit. 
 
 Given under my hand and seal this of , A. D. 18 . 
 
 L. M., J. P. [SEAL.] 
 
 " Sec. 14. But nothing herein contained shall be intended to pre- 
 vent or debar any person or persons from inclosing his or their grounds 
 in any manner they please, with sufficient walls or fences of timber, 
 other than those heretofore mentioned, or by dikes, hedges and ditches, 
 all such walls and fences to be in height at least five feet from the 
 ground ; and all dikes to be at least three feet in height from the bottom 
 of the ditch, and planted and set with thorns and other quickset, so 
 that such inclosures shall fully answer and secure the several purposes 
 meant to be answered and secured by this law : Provided, That such 
 walls or fences of timber, other than those heretofore mentioned, and 
 dikes, hedges and ditches shall be subject to all provisions, inspections 
 and restrictions, to which by this chapter, any other inclosure or fence 
 is made liable, according to the true intent and meaning hereof. 
 
 " Sec. 15. If any horse, mare, gelding, colt, mule or ass, sheep, lamb, 
 goat, kid, bull, cow, heifer, steer or calf, or any hog, shoat or pig, shall 
 break into any person's inclosure, the fence being good and sufficient, 
 the owner of such animal or animals, shall be liable in an action of tres- 
 pass, to make good all damages to the owner or occupier of the inclos- 
 ure, for the first offense single damages only, and ever afterward}* 
 double the damages sustained. 
 
 " Sec. 16. The condition of the fence at the time the trespass wa,< 
 committed, may be proven upon trial, and on complaint made by the 
 party injured before any justice of the peace of the county wherein such 
 trespass shall be made, such justice is hereby authorized and required 
 to issue a summons without delay, to three respectable householders of 
 the neighborhood, noways related to either of the parties, nor interested 
 concerning the trespass, reciting the complaint, and. requiring them to 
 view the fence where the trespass is complained of, and their testimony 
 in such case shall be good evidence touching the sufficiency of the 
 fence. 
 
 " Sec. 17. If any person injured for want of such sufficient fence. 
 
 22
 
 354 INCLOSUUES AND FENCES. [PART 3, 
 
 shall hurt, wound, kill, lame or destroy, or shall cause to be hurt, 
 wounded, killed, lamed or destroyed, by shooting, hunting with dogs, 
 or otherwise, any of the aforesaid animals, he or she so offending, 
 shall satisfy or pay the owner of the same, the damages with costs, 
 recoverable as aforesaid : Provided, That if the party liable to dam- 
 ages as aforesaid, in either case, will abide and pay what may be 
 deemed reasonable by three neighbors, indifferently chosen to assess 
 the same, it shall be a' bar against such suit. 
 
 " Sec. 18. All animals trespassing, the owners of the same (if 
 known) shall be notified thereof, and if they shall refuse to secure 
 the said animals and prevent their trespassing, the persons on whom 
 the trespass was committed, shall be authorized to secure the same, 
 supplying the aforesaid animals with provender and water, for which 
 they shall receive a compensation from said owner : Provided, That if 
 said animals shall receive any abuse or damage from said persons, they 
 shall be barred from any compensation for the aforesaid services. 
 
 " Sec. 19. When any person or persons may, by mistake, erect and 
 make a fence or inclosure on the land of another person, then, and in 
 that case, when the line or lines are legally run by the proper authority, 
 and the fence and inclosures are known to be on the land of such other 
 person, the person or persons making such fence or fences as aforesaid, 
 through mistake, shall be empowered and authorized by this chapter to 
 enter into the said land of another, doing as little damage as possible, 
 and take away the rails, posts, wood and stones of which said fence or 
 fences are made and erected, within one year from the time said line 
 or lines may be legally run. 
 
 " Sec. 20. The owner or owners of any land whereon a fence or 
 fences may have been made by mistake, shall not throw down, nor in 
 any manner disturb the said fence or fences for one year from the time 
 euch mistake is found out. 
 
 " Sec. 21. When either the owner of the rails, or the owner of the 
 land is desirous of having the line or lines run, dividing such land, then 
 in that case, the person wishing such survey, shall give the other person 
 notice in writing, ten days before such survey is made, of the time and 
 place of making such survey."
 
 CHAP. 10.] MARRIAGES. 355 
 
 CHAPTER X. 
 
 OF MARRIAGES. 
 
 Rev. Stat. 353, Sec. 1. " All male persons over the age of seven- 
 teen years, and females over the age of fourteen years, may contract and 
 be joined in marriage : Provided, In all cases where either party is a 
 minor, the consent of parents or guardians be first had, as is hereinafter 
 required. 
 
 " Sec. 2. No person of color, negro or mulatto, of either sex, shall 
 be joined in marriage with any white person, male or female, in this 
 State ; and all marriages or marriage contracts entered into between 
 such colored person and white person, shall be null and void in law ; 
 and any person so marrying, or contracting to marry, shall be liable to 
 pay a fine, be whipped in not exceeding thirty-nine lashes, and be im- 
 prisoned not less than one year, and shall be held to answer in no other 
 than a criminal prosecution, by information or indictment ; and any 
 clerk who shall knowingly issue a license to any such colored person, 
 negro or mulatto, or to any white person, to be joined to a negro or 
 mulatto, in manner aforesaid ; or if any officer, or person authorized 
 to solemnize marriages in this State, shall join any such colored person, 
 negro or mulatto in marriage with a white person, such magistrate or 
 other person, so offending, as aforesaid, on conviction thereof, shall be 
 fined in a sum not less than two hundred dollars, to be sued for and re- 
 covered, in any court of record in this State, the one half for the use 
 of the county in which said suit is brought, and the other half to the 
 person suing for the same ; and thereafter be ineligible to any office in 
 this State. 
 
 " Sec. 3. All persons belonging to any religious society, church or 
 denomination, may celebrate their marriage according to the rules and 
 principles of such religious society, church or denomination ; and a cer-
 
 356 MARRIAGES. [PART 3, 
 
 tificate of such marriage, signed by the regular minister, or if there be 
 no minister, then by the clerk of such religious society, church or de- 
 nomination, registered as hereinafter directed, shall be evidence of such 
 marriage. 
 
 " Sec. 4. Any persons wishing to marry, or be joined in marriage, 
 may go before any regular minister of the gospel, authorized to marry, 
 by the custom of the church or society to which he belongs, any justice 
 of the supreme court, judge of any inferior court, or justice of the 
 peace, and celebrate or declare their marriage, in such manner and form 
 as shall be most agreeable. 
 
 " Sec. 5. Any minister of the gospel, justice of the supreme court, 
 judge or justice of the peace, who shall celebrate any marriage, shall 
 make a certificate of such marriage, and return the same, with the 
 license, to the clerk of the county commissioners' court, who issued 
 such license, within thirty days after solemnizing such marriage. 
 
 " Sec. 6. The clerk of the county commissioners' court, after re- 
 ceiving such certificate, shall make a registry thereof, in a book to be 
 kept by him for that purpose only ; which registry shall contain the 
 Christian and surnames of both the parties, the time of their marriage, 
 and the name of the person certifying the same : and said clerk shall. 
 at the same time, indorse on such certificate, that the same is registered, 
 and the time when ; which certificate shall be carefully filed and pre- 
 served ; and the same, or a certified copy of the registry thereof, shall 
 be evidence of the marriage of the parties. 
 
 " Sec. 7. If any clerk shall, for more than one month, refuse or 
 neglect to register any marriage certificate, which has been, or may here- 
 after be delivered to him for that purpose, (his fee therefor being paid,) 
 he shall be liable to be removed from office, and shall moreover pay the 
 sum of one hundred dollars, to the use of the party injured, to be re- 
 covered by action of debt in any court having cognizance of the same. 
 
 "Sec. 8. If any minister, justice of the supreme court, judge or 
 justice of the peace, having solemnized a marriage, or clerk of any reli- 
 gious society, as the case may be, shall not make return of a certificate 
 of the same, as required, within the time limited, to the clerk of the 
 commissioners' court of the county in which such marriage was solem- 
 nized, he shall forfeit and pay one hundred dollars for each case so ne- 
 glected, to go to the use of the county, to be recovered by indictment. 
 And if any minister of the gospel, justice of the supreme court, judge, 
 or any other officer or person, except as hereinbefore excepted, shall 
 solemnize and join in marriage any couple without a license, as afore-
 
 CHAP. 10.] MARRIAGES. 357 
 
 said, he shall, for every such offense, forfeit and pay one hundred dol- 
 lars, to the use of the county, to be recovered by indictment. 
 
 " Sec. 9. No person shall be joined in marriage, as aforesaid, 
 unless their intention to marry shall have been published at least two 
 weeks previous to such marriage, in the church or congregation to 
 which the parties or one of them belong, or unless such persons have 
 obtained a license, as herein provided. 
 
 " Sec. 10. In all cases when publication of such intention to marry 
 has not been made as before described, the parties wishing to marry 
 shall obtain a license from the clerk of the county commissioners' court 
 of the county where such marriage is to take place, which license shall 
 authorize any regular minister of the gospel, authorized to marry by 
 the church or society to which he belongs, any justice of the supreme 
 court, judge, or justice of the peace, to celebrate and certify such 
 marriage ; but no such license shall be granted for the marriage of any 
 male under twenty-one years of age, or female under the age of eighteen 
 years, without the consent of his or her father, or if he be dead or 
 incapable, of his or her mother or guardian, to be noted in such license. 
 And if any clerk shall issue a license for the marriage of any such 
 minor without consent as aforesaid, he shall forfeit and pay the sum 
 of three hundred dollars to the use of such father, mother, or guardian, 
 to be sued for and recovered in any court having cognizance thereof ; 
 and for the purpose of ascertaining the age of the parties, such clerk is 
 hereby authorized to examine either party or other witness on oath." 
 
 Form of Marriage Ceremony. 
 
 {The man and woman rising, the justice will say to the man,) 
 Will you have this woman to be your wedded wife, to live together 
 after God's ordinance, in the holy estate of matrimony ; to love her, 
 comfort her, honor and keep her in sickness and in health ; and for- 
 saking all others, keep thee only unto her, so long as you both shall 
 live ? 
 
 {Then addressing the woman, the justice will say,) Will you have 
 this man to be your wedded husband, to live together after God's 
 ordinance, in the holy estate of matrimony ; to obey him and serve 
 him, love, honor and keep him in sickness and in health ; and forsaking 
 all others, keep thec only unto him, so long as you both shall live ''. 
 
 ( The parties answering in the affirmative, the justice will then 
 instruct them to join hands, and say,} By this act of joining hands,
 
 358 MARRIAGES. [PART 3, 
 
 you take upon yourselves the relation of husband and wife ; and for- 
 asmuch as you have consented together in holy wedlock, in the presence 
 of these witnesses, I do, in accordance with the laws of the State of 
 Illinois, pronounce you husband and wife. 
 
 A short form of Marriage Ceremony. 
 
 (The justice will direct the parties to rise and join hands, and 
 then say,) By this act of joining hands, you do take upon yourselves 
 the relation of husband and wife ; and solemnly promise and engage, 
 in the presence of these witnesses, to love and honor, comfort and 
 cherish each other as such, so long as you both shall live : therefore, 
 in accordance with the laws of the State of Illinois, I do hereby pro- 
 nounce you husband and wife. 
 
 Form of Certificate of Marriage. 
 STATE OF ILLINOIS, ) 
 
 \_ cc 
 
 COUNTY, ) 
 
 I, the subscriber, a justice of the peace in and for the said county, 
 do hereby certify that the marriage of A. B. and C. D., the persons 
 in the within license named, was solemnized by me on the day 
 
 A f _ 1 Q 
 
 I JL v * 
 
 L. M., 
 
 Justice of the Peace.
 
 CUAP. 11.] RIGHT OP PROPERTY. 359 
 
 CHAPTER XI. 
 
 OF TRIAL OF THE RIGHT OF PROPERTY. 
 
 Rev. Stat. 474, Sec. 1. " Whenever an execution or writ of 
 attachment shall be levied by any sheriff or coroner upon any personal 
 property, and such property shall be claimed by any person or persons, 
 other than the defendant in such execution or attachment, by giving 
 to the sheriff or coroner, notice in writing, of his, her, or their claim 
 and intention to prosecute the same, it shall be the duty of such sheriff 
 or coroner, forthwith to summon a jury of twelve respectable house- 
 holders of the county, to meet at a place to be designated by him, 
 before the day appointed for the sale of such property ; and then and 
 there proceed to inquire by the oath of said jury, whether the right of 
 such property be in such claimant or not. 
 
 ' ' Sec. 2. It shall be the duty of such sheriff or coroner, to notify 
 the plaintiff in the execution or attachment, of such claim, and the 
 time and place of trial ; and on the day appointed, the sheriff or 
 coroner shall swear the jury, and such witnesses as may be produced, 
 by either party, or may postpone the trial such reasonable time, on the 
 application of either party, as he shall think proper, for the purpose of 
 procuring testimony. 
 
 " Sec. 3. In all cases of the trial of the right of property before 
 any sheriff or coroner, it shall be the duty of such sheriff or coroner to 
 subpoena such witnesses as shall be required by either party to such 
 trial, to attend at the time and place at which such trial shall be held. 
 
 " Sec. 4. In all cases where a witness shall be so subpoenaed, and 
 shall fail to attend at such trial conformably thereto, and in all case* 
 where a juror shall fail to attend the same when subpoenaed by such 
 sheriff or coroner, such sheriff or coroner shall have power to compel
 
 360 RIGHT OF PROPERTY. [PART 3, 
 
 their attendance, in the same manner as may be done in the trial of 
 causes before justices of the peace, and in the circuit courts of this 
 State. 
 
 " Sec. 5. And any fine which such sheriff or coroner may impose 
 for such contempts, may be collected in the 'manner provided for the 
 collection of costs by the seventh section of this chapter. 
 
 " Sec. 6. After the jury shall have agreed on their verdict, the 
 sheriff or coroner shall reduce the same to writing, and it shall be 
 signed by all the jurors, and the sheriff or coroner shall thereupon 
 restore the property, if found to belong to the person or persons claim- 
 ing, or shall proceed on such execution or attachment, if the property 
 shall not be found to be in the claimant, in the same manner as if no 
 claim had been made. 
 
 " Sec. 7. The sheriff or coroner shall make up a bill of all the 
 costs accruing on such trial, according to the provisions of law regulat- 
 ing the fees of officers for similar services, and annex the same to the 
 verdict of the jury ; and shall have power to collect the same from the 
 claimant of such property, if the verdict be against him, or from the 
 plaintiff or plaintiffs in the execution, if such verdict be for the claim- 
 ant, in the same manner that bills of fees in other cases are authorized 
 by law to be collected. 
 
 " Sec. 8. In case either party shall think himself or herself ag- 
 grieved by the verdict of the jury, he or she may appeal to the circuit 
 court, in which case the party appealing shall give bond, with sufficient 
 security, to prosecute such appeal without delay, and to pay all costs 
 that have accrued or may accrue on such appeal, if judgment be given 
 against him, in the circuit court ; which bond shall be in a sum suffi- 
 cient to cover all costs, and be payable to the opposite party ; and the 
 sheriff or coroner shall thereupon deliver to the clerk of the circuit 
 court, the bond aforesaid, and all the papers relating to such trial, and 
 the clerk shall enter said appeal on his docket, and the court shall 
 proceed to try the right to such property, in the same manner as is 
 before directed in this chapter : and in all such cases, judgment shall 
 l? given against the party failing, for all costs, and the clerk shall issue 
 execution for the same. 
 
 " Sec. 9. In all cases where any personal property shall lie taken 
 by virtue of an execution or attachment, issued by any justice of the 
 peace, which shall be claimed by any person or persons, other than the 
 defendant, in such execution or attachment; and such claimant shall 
 give notice in writing of his or their claim and intention to prosecute
 
 CHAP. 11.] KIGIIT OF PROPERTY. 361 
 
 the same, it shall be the duty of the constable to notify the plaintiff in 
 execution or attachment, of such claim, and the time and place of trial ; 
 and if the justice who issued such execution or attachment reside in 
 another county, be absent from the county, or unable to attend to such 
 trial, it shall be the duty of the constable serving such execution or 
 attachment, to notify the plaintiff in execution, that he will attend 
 before some other justice of the peace of the county, (naming him,) 
 and shall also designate some day and hour for the trial of the right of 
 said property, of which time and place, the claimant shall also have 
 notice. 
 
 " Sec. 10. The same proceedings shall be had before the constable 
 serving such execution or attachment, together with the justice before 
 whom the trial of the right of property may be had, as are in this chap- 
 ter provided for the trial of the right of property before sheriffs and 
 coroners ; but the justice shall issue all process necessary in such trials. 
 He shall also administer the oaths to the jury and witnesses, and retain 
 the papers relating to the proceedings ; and in case the property shall 
 appear to belong to the claimant, the justice shall enter judgment against 
 the plaintiff in execution or attachment, for the costs that may have 
 accrued on such suit ; and on failure of the plaintiff to pay the same, 
 the justice may issue execution therefor ; but in all cases where it shall 
 appear that the property claimed belongs to the defendant in execution, 
 the justice shall enter judgment against the claimant of the property 
 for the amount of costs that shall have accrued, and issue execution there- 
 for as in other cases ; and in case of an appeal, shall take the bond 
 and transmit the same, with the other papers, to the clerk, as aforesaid. 
 
 " Sec. 11. It shall be the duty of any justice of the peace, other 
 than the one issuing the execution or attachment under which a levy 
 has been made, when notified by any constable, of any person or per- 
 sons claiming property levied upon as hereinbefore provided, to enter 
 such case on his docket, and to proceed in all cases, to have the right 
 of such property tried as if the execution had been issued by him. 
 
 " Sec. 12. In no case of the trial of the right of property under 
 this chapter, shall the defendant in execution be a competent witness, 
 and all appeals from the judgments on the trial of the right of property, 
 shall be demanded on the day of such trial, and bond entered into be- 
 fore the clerk of the circuit court within five days from such trial ; and 
 in all cases of the trial of the right of property before a justice of the 
 peace, either party may take the case into the circuit court by writ of 
 certiorari, as in other trials before justices of the peace : Provided, That
 
 8G2 RIGHT OF PROPERTY. [PART 3, 
 
 in all cases of said appeals, the praying thereof shall be a supersedeas, 
 and stay all further proceedings until the expiration of five days. 
 
 " Sec. 13. In all cases when the plaintiff in the execution neither 
 resides in the county where judgment was rendered, nor in the county 
 in which such trial of the right of property is had, it shall not be 
 necessary for the constable to give said plaintiff notice ; but the trial 
 shall be conducted in the same manner as if actual notice had been 
 given ; and in case the property shall be found to be the property of 
 the claimant, the plaintiff in the execution shall be bound for all costs 
 that may have accrued. 
 
 " Sec. 14. The verdict of the jury in all cases under this chapter, 
 shall be a complete indemnify to the sheriff or other officer, in proceed- 
 ing to sell or restore any such property according to the verdict ; and 
 in case of an appeal, the sheriff or other officer shall retain such prop- 
 erty, unless the party claiming, or the defendant in the execution shall 
 enter into a bond, with sufficient security, for the delivery of such pro- 
 perty to the sheriff or other officer, if the judgment of the court shall 
 be against the claimant. 
 
 " Sec. 15. In trials of the right of property taken on execution, 
 attachment or other process, by constables, the number of jurors shall 
 be six instead of twelve, unless all the parties to the trial shall agree 
 upon a larger number, not exceeding twelve ; in which case the num- 
 ber agreed on shall constitute the jury : Provided, That either party 
 shall have the right to require twelve jurors, upon advancing the ad- 
 ditional costs and fees accruing in consequence of increasing the num- 
 ber over six ; such additional costs and fees not being in any event 
 chargeable against the other party." 
 
 On the trial of the right of property between a mortgagee of chattels, 
 and an execution creditor of the mortgagor, evidence may be introduced 
 to prove what a deceased witness testified upon a former trial, between 
 the same parties. 1 
 
 A justice of the peace, before whom a trial of the right of property 
 is had, may proceed with the hearing, and render judgment upon the 
 finding of the jury, when he has been notified by the constable that the 
 property levied upon has been claimed, and that the time and place 
 have been named. 2 
 
 The giving of the notices for trial in such a case, is exclusively the 
 duty of the constable, and he will be held responsible for any damages 
 
 (1) 4 Scam. 575. (2) 14 111. 62.
 
 CHAP. 11.] RIGHT OF PROPERTY. 368 
 
 which may arise. The justice acts upon the return of the officer, and 
 it matters not to him whether it be true or false. 1 
 
 In an action of trespass, de bonis asportatis, against others than the 
 constable who made the levy and sale, the plaintiff should show title to 
 the property sold. It is not a legal presumption, because the property 
 was seized and sold under an execution against him, that it was his 
 property. 2 
 
 The provision of the statute which excludes the defendant in ex- 
 cution from being a witness, is confined exclusively to trials of the right 
 of property. 8 
 
 A landlord who has distrained upon the goods of his tenant, has 
 a sufficient interest in them to enable him to be the claimant of the 
 same, on a trial of the right of property, if they are subsequently taken 
 in execution. 4 
 
 The statute does not require the claimant, in the notice he serves on 
 the constable, to state on whose execution the levy has been made. It 
 is sufficient to notify the constable that he claims the goods levied on, 
 forbids the sale, and intends to prosecute his claim. Anything more is 
 surplusage, and could not vitiate the notice. 5 
 
 A trial of the right of property, which results in a verdict against 
 the claimant, does not establish or confirm a right to the property in the 
 defendant in execution. 6 
 
 In a trial of the right of property, the only question is, whether the 
 property levied on belongs to the claimant, and the verdict will be 
 against him, unless he affirmatively show that it belongs to him, and is 
 not subject to sale on execution. 7 
 
 On the trial of the right of property in the circuit court, the claim- 
 ant cannot object to the execution on which the levy has been made, 
 on the ground that it was a nullity and had been issued by a court not 
 having jurisdiction. By proceeding in this manner he admits the valid- 
 ity of the execution, and only claims that it has been levied on his 
 property, and not on the property of the defendant in execution. 8 
 
 Form of Notice to Constable of Claim of Property and intention to 
 prosecute the trial of the right thereto under the Statute. 
 
 To R. S., Constable : 
 
 Sir : I hereby claim property in the following goods and chattels, 
 to wit: (describe the articles particularly,') levied upon by you, by 
 
 (1) 14 111. 62. (2) Ibid. (3) Ibid.; 1 Gil. 572. (4) 1 Scam. 343. 
 (5) 1 Scam. 268. (6) 12 111. 387. (7) 13 111. 20. (8) 2 Scam. 22.
 
 \ 
 
 364 RIGHT OF PROPERTY. [PART 3, 
 
 virtue of an execution (or " attachment,") issued by L. M., Esquire, 
 
 a justice of the peace of county, and to you delivered in favor 
 
 of A. B., against the goods and chattels of C. D., and intend to prose- 
 cute my claim to the same, according to the statute in such case made 
 and provided. 
 
 Dated this day of- ,18. E. F. 
 
 Form of Notice of Trial to the Plaintiff". 
 
 A. B. 
 
 vs. 
 C. D. 
 
 Sir: Please take notice that the following described property, to 
 wit : (describe the property,) levied upon by virtue of an execution, 
 
 (or " attachment,") issued by L. M., a justice of the peace of 
 
 county, and in favor of A. B., against the goods and chattels of C. D., 
 to me delivered, has been claimed by E. F., who has notified me that 
 he intends to prosecute his claim to the same, according to the statute 
 in such case made and provided. 
 
 You are, therefore, notified that the said claim will be tried before 
 the said justice (or, if he is absent from the county or unable to attend, 
 
 then say, " before Gr. H., a justice of the peace of the county of , 
 
 the said L. M. being absent from said county," or, "unable to 
 attend,") and the subscriber and a jury then and there to be summoned 
 
 and sworn, at the office of in , in said county, on the 
 
 day of , 18 , at o'clock in the noon. 
 
 Dated this day of , 18. 
 
 R. S., Constable. 
 
 Form of Subpoena for Witness on trial of right of property. 
 
 STATE OF ILLINOIS, 
 COUNTY, 
 
 The People of the State of Illinois to J. K., <&c. : 
 
 You are hereby commanded to appear before L. M., a justice of the 
 peace of the said county, and R. S., constable of the said county, at 
 
 the office of the said , in , on the day of , instant, 
 
 (or " next,") at o'clock in the noon, to testify before them 
 
 and a jury of the county, on a claim of property made by E. F., to the 
 goods and chattels levied upon by the said constable, by virtue of an 
 execution, (or " attachment,") to him delivered in favor of A. B..
 
 ClIAP. 11.] RIGHT OF PROPERTY. 365 
 
 against the goods and chattels of C. D. ; and this you are not to omit 
 under the penalty of the law. 
 
 Given under the hand and seal of the said justice, this day of 
 
 , 185-. 
 
 L. M., /. P. [SEALj. 
 
 Form of Finding of the Jury on a trial of the right of property. 
 
 A. B. J 
 
 vs > Before L. M., Esquire, Justice, and R. S., Constable. 
 
 C. D. ) 
 
 We. whose names are hereunto subscribed, being the jury called to 
 try the right of property on a claim made by E. F. to the following de- 
 scribed goods and chattels, to wit : {describe them accurately,) levied 
 upon by R. S., constable, by virtue of an execution, (or "attachment,") 
 
 issued by L. M., Esquire, a justice of the peace of the county of , 
 
 in favor of A. B., against the goods and chattels of C. D., do upon 
 our oaths say that the property of the said goods and chattels so claimed 
 is (or " is not ") in said claimant. (Or, if part only, say, " of the 
 following described articles, to wit : [describe them,'] part of the above 
 so claimed, is in said claimant." 
 
 Witness our hands this day of , 18 . 
 
 [To be signed by all the jurors.] 
 
 Form of Execution for Costs. 
 
 STATE OF ILLINOIS, 
 COUNTY, 
 
 The People of the State of Illinois to any Constable of said County, 
 GREETING : 
 
 We command you that of the goods and chattels of C. D., in your 
 
 county, you make the sum of dollars and cents, which E. F. 
 
 lately recovered before the undersigned, a justice of the peace of the 
 said county, for his costs by him laid out and expended, in a certain 
 trial of the right of property, before the said justice and R. S., consta- 
 ble of the said county, and a jury for that purpose summoned and 
 sworn, wherein the said E. F. was claimant, and the said C. D. was 
 defendant. 
 
 Given under the hand and seal of the said justice, the day 
 
 of- , 185-. 
 
 L. M., J. P. [SEAL.]
 
 366 RIGHT OF PROPERTY. [PART 4, 
 
 Forthcoming Bond to Constable in. case of Appeal. 
 
 Know all men by these presents, that we, A. B. and C. D., are held 
 
 and firmly bound unto E. F., a constable of the county of , in 
 
 the sum of dollars, {double the amount in the execution^) to 
 
 be paid to the said E. F., constable, as aforesaid, to which payment, 
 well and truly to be made, we bind ourselves, our heirs, executors, ad- 
 ministrators, jointly and severally, firmly by these presents. 
 
 Sealed with our seals, and dated the day of , 18 . 
 
 Whereas, an execution has been issued by L. M., Esquire, a justice 
 
 of the peace of the county of , and delivered to the above 
 
 named constable, in favor of Gr. H., against the goods and chattels of 
 I. J., under and by virtue of which the said constable has levied upon 
 the goods and chattels following, to wit : (Jiere describe the property.') 
 
 Now, therefore, the condition of this obligation is such, that if the 
 said I. J. shall deliver the said goods and chattels to the said constable, 
 
 on the first day of next, at o'clock in the noon, at 
 
 the dwelling house of the said A. B., so that the said goods and chat- 
 tels may be then and there sold to satisfy the said execution, then this 
 obligation to be void, otherwise to remain in full force. 
 
 Sealed and delivered ^ A. B. [SEAL.] 
 
 in presence of \. C. D. [SEAL.]
 
 CHAP. 1.] CONSTABLE. 367 
 
 PART FOURTH. 
 
 OF THE CONSTABLE, HIS ELECTION AND QUALIFICATION, 
 AND THE POWERS AND DUTIES OF CONSTABLES IN BOTH 
 CIVIL AND CRIMINAL CASES. 
 
 CHAPTER I. 
 
 OF THE OFFICE OF CONSTABLE. 
 
 I. OF THE CONSTABLE. 
 II. OF THE ELECTION OF CONSTABLES. 
 
 1. In Counties not adopting Township Organization. 
 
 2. In Counties adopting Township Organization. 
 
 III. OF QUALIFICATION. 
 
 1. In Counties not adopting Township Organization. 
 
 2. In Counties adopting Township Organization. 
 
 IV. SPECIAL CONSTABLES, WHEN AND HOW APPOINTED. 
 
 I. OF THE CONSTABLE. 
 
 The office of constable is one of great antiquity ; so old, indeed, that 
 in the statute of Winchester, which was enacted in 1276, it is men- 
 tioned as having long existed. The word constable has afforded matter 
 of much disquisition among the learned. Some trace it to the Hebrew, 
 others to the Greek, and many derive it from the German. 1 
 
 " The word constable," says Sir William Blackstone, " is frequently 
 said to be derived from the Saxon, koning-stapel, and to signify the 
 support of the king. But as we borrowed the name as well as the office 
 of constable from the French, I am rather inclined to deduce it, with 
 Sir Henry Spelman and Dr. Cowel, from that language ; wherein it is 
 plainly derived from the Latin, comes stabuli, an officer well known in 
 
 (1) Constables' Hani. 5.
 
 368 CONSTABLE. [PART 4. 
 
 the empire ; so called, because, like the great constable of France, as 
 well as the lord high constable of England, he was to regulate all mat- 
 ters of chivalry, tilts, tournaments, and feats of arms, which were per- 
 formed on horseback." 1 
 
 This great office of lord high constable has been disused in England, 
 except only upon great and solemn occasions, as the king's coronation 
 and the like, since the attainder of Stafford, Duke of Buckingham, 
 under King Henry VIII. ; and in France it was suppressed about a 
 century after, by an edict of Louis XIII. f but from his high office, as 
 it is said, 8 this lower constableship was first drawn and fetched, and is, 
 as it were, a very finger of that hand. For the statute of Winchester, 
 which first appoints them, directs that for the better keeping of the 
 peace, two constables, in every hundred and franchise, shall inspect all 
 matters relating to arms and armor. 
 
 In England, from whence the office of constable has been borrowed in 
 this country, constables are of two sorts, high constables and petty con- 
 stables. The former are appointed at the court leets of the franchise 
 or hundred over which they preside, or in default of that, by the justices 
 at their quarter sessions. The petty constables are inferior officers in 
 every town and parish, subordinate to the high constable of the hundred. 
 These petty constables have two offices united in them, the one ancient, 
 the other modern. Their ancient office is that of headborough, tithing- 
 man or borsholder, and who are as ancient as the time of King Alfred, 
 A. D. 871 ; their more modern office is that of constable merely, which 
 was appointed so lately as the reign of Edward III., in order to assist 
 the high constable. 
 
 By the common law, the general duty of all constables, both high 
 and petty, is to keep the peace in their several districts ; and to that 
 purpose they are armed with very large powers, of arresting and im- 
 prisoning, of breaking open houses, and the like. 4 
 
 By various legislative enactments, the duties of constables have been 
 materially extended from that of the common law, which has occurred in 
 consequence of the increased powers of justices of the peace. Consta- 
 bles are, by the common law, it is said, regarded as the proper and 
 known officers of justices of the peace; 5 and it is laid down, that, in 
 England, if an act of parliament direct that a justice shall issue a war- 
 rant, and do not state to whom it shall be directed, it must be directed 
 to the constable and not the sheriff. 6 
 
 (1) 1 Bl. Com. 365. (2) Ibid. (3) Lambard. 
 
 (4) 1 Bl. Com. 356. (6) 1 Salk. 381. (6) 1 Chit. Crim. L.
 
 CHAP. 1.] ELECTION OP CONSTABLE. 369 
 
 Constables, by the laws of this State, are chosen by the people. In 
 counties not adopting township organization, they are chosen by the 
 electors of each precinct. In counties adopting township organization, 
 they are chosen by the electors of each town, and when elected and 
 qualified, they have jurisdiction in their respective counties. 1 
 
 II. OF THE ELECTION OF CONSTABLE. 
 
 1. In Counties not adopting Toivnship Organization. 
 
 In counties not adopting township organization, two constables are 
 allowed to be elected in each election precinct in each county, except 
 that precinct in which the county seat is located, in which three con- 
 stables are allowed. 2 And this number may be increased to five, 
 whenever the county court may deem it necessary. 8 
 
 By section 16 of the act to establish county courts, and provide for 
 the election of justices of the peace and constables, and for other 
 purposes, approved February 12, 1849, 4 it is provided, that the 
 election of constables shall be on Tuesday after the first Monday in 
 November ; the first election being in the year eighteen hundred and 
 forty-nine, and to take place on the Tuesday after the first Monday in 
 November, every four years forever thereafter. 5 
 
 Vacancies occurring in the office of constable in counties not adopting 
 township organization, are to be filled in the same manner as in cases 
 of justices of the peace in such counties. 6 Whenever there shall be 
 no constable in any precinct, any justice of the peace in such precinct 
 may appoint one, who will be qualified as in other cases, and hold his 
 office until superseded by an election. 7 
 
 2. In Counties adopting Township Organization. 
 
 The act to provide for township organization, approved February 
 17, 1851, Art. 3, Sec. 2, 8 provides for the election of two constables 
 at the annual town meeting in each town, once in four years, except 
 to fill vacancies, and that such constables shall be successors to precinct 
 constables. By the act above mentioned, 9 constables hold their offices 
 
 (1) Rev. Stat. 314, Sec. 7. (2) Rev. Stat. 313, Sec. 2. (3) Id. 314, Sec. 5. 
 
 (4) Sess. Laws, 1849, p. 62. (5) See ante, page 20. (6) See ante, page 21 . 
 
 (7) Rev. Stat. 315, Sec. 16. (8) See Sess. Laws, 1851. (9) Art. 6, Sec. 15. 
 
 23
 
 370 QUALIFICATION OF CONSTABLE. [PART 4, 
 
 for four years, or until others are chosen and qualified. The act 
 amendatory to the act above mentioned, approved February 27. 1854, 
 Sec. 15, 1 provides, that in all towns having a population of more than 
 two thousand inhabitants, it shall be lawful for the qualified voters 
 thereof, to elect one constable for each and every thousand of its 
 inhabitants, until the population shall reach five thousand ; after which 
 the number is not to be increased ; which constables are to be elected 
 in the same manner, and are to hold their offices for the same term of 
 time as other constables. 2 
 
 When a vacancy occurs in the office of constable, it is lawful in 
 certain cases, for the justices of the peace, together with the supervisor 
 and town clerk of the town, by warrant under their hands and seals, 
 to appoint some person to fill such vacancy, and the person so appointed 
 will hold his office until another shall be chosen or appointed in his 
 stead. 3 
 
 III. OF QUALIFICATION. 
 
 1. In Counties not*adopting Township Organization. 
 
 Constables before entering upon the duties of their respective offices, 
 are required to be sworn, faithfully to perform the duties of their 
 respective offices according to law, and to the best of their under- 
 standing. 4 
 
 Rev. Stat. 315, Sec. 11. " Every constable, before he shall enter 
 upon the duties of his office, shall execute and deliver to the clerk of 
 the county commissioners' court 5 of the proper county, a bond to be 
 approved by said clerk, with one or more good and sufficient freeholders 
 as his securities, in the sum of one thousand dollars, conditioned that 
 he will faithfully discharge the duties of his office of constable ; and 
 that he will justly and fairly account for, and pay over all moneys that 
 may come to his hands, under any process or otherwise, by virtue of 
 his office. The said bond shall be made payable to the county com- 
 missioners of the county in which such constable shall be appointed, 
 and their successors, for the use of the people of the State of Illinofe, 
 and shall be held for the security and benefit of all suitors and other 
 persons who may be interested in, or become injured by, the official 
 conduct of such constable." 
 
 (1) Sess. Laws, Special Sess. 1854. (2) See ante, p. 21, 22. (3) Sess. Laws. 1851, p. 43. 
 (4) Rev. Stat. 314, Sec. 9. (5) Now County Court.
 
 ClIAP. 1.] QUALIFICATION OF CONSTABLE. 371 
 
 The county commissioners being now superseded by the county 
 court, 1 the bond of the constable should perhaps be made payable to 
 the county court, as has already been suggested in relation to justices 
 of the peace f yet perhaps it would be more proper, in the absence of 
 any express statute on the subject, that it should be made payable to 
 the people of the State of Illinois. 
 
 It has been held in New York that the bond of a constable, in the 
 absence of any statutory direction, should properly be made to the 
 people of the State, 8 upon which bond an action might be maintained 
 in the name of the people for the use of the party aggrieved, and that 
 covenant might be maintained by the party aggrieved in his own name 
 upon the condition of such bond. 4 
 
 Form of Constable's official Bond. 
 
 Know all men by these presents, That we, A. B., as principal, and 
 C. D. and E. F. as sureties, are held and firmly bound unto the people 
 of the State of Illinois, in the sum of one thousand dollars, for the pay- 
 ment of which sum well and truly to be made, we bind ourselves, our 
 heirs, executors, and administrators, and each of them, firmly by these 
 presents. 
 
 Sealed with our seals, and dated this - day of - , 18 . 
 
 Whereas at an election lately held in - precinct, in the county 
 aforesaid, the above bounden A. B. was duly elected a constable for 
 said county : 
 
 Now, therefore, the condition of this obligation is such, that if the 
 above bounden A. B. shall faithfully discharge the duties of his said 
 office of constable, and shall justly and fairly account for and pay over 
 all moneys that may come to his hands under any process or otherwise 
 by virtue of his said office, then the above obligation to be void, other- 
 wise to remain in full force and effect. A. B. [SEAL.] 
 
 C. D. [SEAL.] 
 E. F. [SEAL.] 
 
 Form of Constable's Oath of Office. 
 STATE OF ILLINOIS, 
 
 COUNTY, i 
 
 I, A. B., being elected a constable in and for the county of 
 
 in the State of Illinois, do solemnly swear that, I will support the Con- 
 
 (1) See Sess. Laws, 1849, Sec. 15. (2) See ante, p. 22. 
 
 (3) 2 Wend. 281 ; 5 Id. 191197 ; 20 Johns. 74. (4) 5 Wend. 191 ; 4 Id. 414 ; 9 Id. 233.
 
 372 QUALIFICATION OF CONSTABLE. [PART 4, 
 
 stitution of the United States, and of the State of Illinois, and that I 
 will faithfully perform the duties of my said office, according to law and 
 to the best of my understanding. (Here add the dueling clause, as in 
 iltToafh of Justice of the Peace, ante, p. 23.) 
 Subscribed and sworn to before me, this ^ A. B. 
 
 day of , 18. 
 
 CHAS. B. FARWELL, 
 Clerk of the County Court. 
 
 Constables, as well as justices, are required, in addition to oaths to 
 support the Constitution of the United States and of this State, and an 
 oath for the faithful and prompt discharge of the duties of their respec- 
 tive offices, to take the oath prescribed in the twenty-sixth section of 
 the thirteenth article of the constitution of the State, in relation to du- 
 eling, 1 which applies equally to counties adopting township organization. 
 
 The oath of office of constable is required to be certified by the 
 county clerk, upon the certificate of election of such constable. The 
 same hints already given, 2 in relation to justices of the peace, in steps 
 for qualification, will apply with equal force to that of constables. 
 
 Rev. Stat. 331, Sec. 114. " All bonds given by justices of the peace 
 and constables shall remain in force five years after the expiration of their 
 respective terms of office, and when such bonds are renewed, or new 
 bonds are given, such renewal or giving of a new bond shall not satisfy 
 or vacate any such previous bond, but each bond shall stand good in 
 relation to all matters and things done, or omitted to be done, within 
 the term of office for which such bond shall have been given : Pro- 
 vided, That where by law, any justice or constable shall be authorized 
 or required to complete any business, or perform any duties grow- 
 ing out of business commenced, and in their hands previous to going 
 out of office, the bond shall apply to such cases until such business is 
 concluded by such justice or constable." 
 
 Resignations of the office of constable, in counties not adopting 
 township organization, must be made to the clerk of the county court. 8 
 
 2. In Counties adopting Township Organization. 
 
 In counties adopting township organization, every person chosen to 
 the office of constable, is required, before he enters upon the duties of 
 
 (1) Sess. Laws, 1849, page 66, 8ec. 20. (2) Ante, p. 24. (3) Rev. Stat. 315, Sec. 16.
 
 ClIAP. 1.] QUALIFICATION OF CONSTABLE. 373 
 
 his office, and within eight days after he shall be notified of his election 
 or appointment, to execute, in the presence of the supervisor or town 
 clerk of the town, with one or more sureties, to be approved of by such 
 supervisor or town clerk, an instrument in writing, in which suclTcon- 
 stable and his sureties shall jointly and severally agree to pay to each 
 and every person who may be entitled thereto, all such sums of money 
 as the said constable may become liable to pay, on account of any 
 executions which shall be delivered to him for collection, by virtue of 
 his office. 1 
 
 The oath prescribed by law, is that prescribed by Art. Ill, Sec. 30, 
 and Art. XIII, Sec. 26, of the constitution ; Rev. Stat, 314, Sec. 9, 
 and Sec. 20 of the Act to establish county courts, &c. 2 
 
 The law is silent as to what officer shall administer the oath of office 
 to constables elect, in counties adopting township organization. The 
 revised statute, by which it would be the duty of the county clerk, to 
 administer the oath, 8 has not been changed by the act to provide for 
 township organization ; and it is, therefore, doubtful whether the oath 
 of office of constable in this case, should not still be administered by the 
 clerk of the county court, the same as in case of justices of the peace. 
 
 By the Rev. Stat., chapter 76, title "Oaths and Affirmations ," 
 Sec. 3, all courts in the State, the judges, justices, notaries public and 
 clerks of said courts, within their respective districts, circuits or coun- 
 ties, and the justices of the peace within their counties respectively, 
 have power to administer all oaths of office, and other oaths required 
 to be taken by any person before entering upon the discharge of the 
 duties of any office, appointment, place or business. In view of this 
 provision of the law, it is contended also, that it will be proper for 
 justices of the peace of the several towns, to administer the oath of 
 office to constables, notwithstanding the former provision of the statute, 
 placing this duty upon the clerk of the county court, and which practice 
 has very generally prevailed. The form of the oath of office in this 
 case, will be the same as that heretofore given. 4 
 
 As to the instrument to be executed by the constable and sureties 
 for the faithful discharge of his duties, it may be in the form of a penal 
 bond, to the people of the State for the use of the party injured. 8 
 The approved form, however, is a simple agreement, without any 
 penalty, to pay any person who may be aggrieved by the constable's 
 neglect of duty. 6 
 
 (1) Sess. Laws, 1851, page 42, Sec. 8. (2) Id. 1849. page 66, Sec. 20. 
 
 (3) See Rev. Stat. 315, Sec. 14. (4) Ante, page 371. 
 
 (5) 20 Johns. 74 ; 2 Wend. 281. (6) 6 Wend. 191197.
 
 374 QUALIFICATION OF CONSTABLE. [PART 4, 
 
 Our law upon the subject of qualification of constables in counties 
 adopting township organization, is a literal re-enactment of the statute of 
 New York, under which it was held, that the following form of instru- 
 ment to be executed by the constable, was a substantial compliance 
 with the statute, and was held to be good. 1 
 
 Form of Instrument to be executed by a Constable and his Sureties for 
 performance of duties. 
 
 A. B. chosen (or "appointed") constable of the town of , 
 
 in the county of , and C. D. and E. F. as sureties, do hereby 
 
 jointly and severally agree to pay to each and every person who may 
 be entitled thereto, all such sums of money as the said constable may 
 become liable to pay on account of any execution which shall be 
 delivered to him for collection, by virtue of his said office. 
 
 Dated the day of , 18 . 
 
 Executed in the presence of } A. B. [SEAL.] 
 
 JOHN DOE, V C. D. [SEAL.] 
 
 Supervisor of the town of . J E. F. [SEAL.] 
 
 The supervisor or town clerk, will, if approved, endorse such appro- 
 val on such instrument, which will be his approval of the sureties there- 
 in named, and will then cause the same to be filed in the office of the 
 town clerk, and a copy of such instrument, certified by the town clerk, 
 will be presumptive evidence in all courts of the execution thereof by 
 such constable and his sureties. 2 
 
 Form of Supervisor's (or town clerk's) approval, to be indorsed on 
 Constable's instrument of security.- 
 
 I hereby approve the within instrument and the sureties therein 
 
 named, this day of , 18 . 
 
 JOHN DOE, 
 Supervisor of the town of 
 
 The omission of the constable to file his instrument of security within 
 the eight days, as prescribed by law, does not affect its validity, ;ts to 
 persons injured ; in this respect the statute is merely directory. 3 Nor 
 can the constable, or his sureties, object that the instrument is not un- 
 
 (1) 2 Wend. 615. (2) Sess. Laws, 1851, page 43, Sec. 9. (3) 2 Wend. 615.
 
 CHAP. 1.] SPECIAL CONSTABLES. 375 
 
 der seal ; nor in the form prescribed by the statute ; nor that the sure- 
 ties were not approved of by the town clerk or supervisor. 1 
 
 All actions against a constable or his sureties upon his instrument of 
 security, must be prosecuted within two years after the expiration of the 
 term of his office f this is only, however, when the suit is brought 
 upon the instrument. There can be no doubt that the constable himself 
 would be held liable in an action for money had and received, brought 
 by the party on whose execution he had collected money, if the suit is 
 brought before the claim become barred by the statute of limitations. 3 
 
 When the instrument of security is in the form of a bond to the peo- 
 ple, an action of debt in the name of the people, but not in the name 
 of the party aggrieved, may be maintained by any person to whom the 
 constable has become liable ; although covenant may be brought by 
 such person on the condition of the bond, in his own name. 4 
 
 Resignations of the office of constable, in counties adopting township 
 organization, should be made to the justices of the peace of the town, 
 who are authorized to accept the same for sufficient cause shown to them ; 
 and justices accepting any such resignation, should forthwith give notice 
 thereof to the town clerk of the town. 5 
 
 IV. SPECIAL CONSTABLES, WHEN AND HOW APPOINTED. 
 
 Rev. Stat. 327, Sec 86. " Any justice of the peace may appoint a 
 suitable person to act as constable in a criminal or other case, where 
 there is a probability that a person charged with any indictable offense, 
 will escape, or that goods and chattels will be removed before applica- 
 tion can be made to a qualified constable ; and the person so appointed 
 shall act as constable in that particular case, and no other ; and any 
 temporary appointment so made, as aforesaid, shall be made by a writ- 
 ten indorsement, under the seal of the justice deputing, on the back of 
 the process, which the person receiving the same shall be deputed to 
 execute." 
 
 The statute requires that the appointment of a special constable should 
 be made by a written indorsement on the back of the process, under 
 
 (1) 12 Wend. 306; 14 Johns. 401. (2) Seas. Laws, 1851, p. 43, Sec. 10. 
 
 (3) Cowen's Tr. 3d. ed. 561; 4th ed. Sec. 1641. 
 
 (4) 5 Wend. 191 ; 4 Id. 414 ; 9 Id. 233 ; see also, 2 Id. 281. 
 
 (5) Sess. Laws, 1851, p. 44.
 
 376 SPECIAL CONSTABLES. [PART 4, 
 
 the seal of the justice. An appointment upon a separate piece of paper, 
 is not a compliance with the statute. 1 
 
 But two cases are specified by the statute in which a justice is author- 
 ized to appoint a constable pro tern. The one is to execute criminal 
 process where the accused is likely to escape ; and the other is to exe- 
 cute civil process, where goods and chattels are about to be removed, 
 before application can be made to a qualified constable. 2 
 
 The indorsement upon the process, therefore, should always show the 
 reason why the appointment is made. The form given in cases of at- 
 tachments, 8 may be used for all occasions, by being varied to suit the 
 case. 
 
 Judges of elections are authorized and empowered to appoint one or 
 more special constables, to assist in preserving order during elections, 
 in case no constable shall be in attendance at such election. 4 
 
 (1) 1 Scorn. 489. (2) 1 Id. 489 ; Breese, 146. (3) Ante, p. 288. (4) ROY. Stat. 218, Sec. 21.
 
 CHAP. 2.] SERVICE AND RETURN OF SUMMONS. 377 
 
 CHAPTER II. 
 
 POWERS AND DUTIES OF CONSTABLES IN CIVIL PROCEED- 
 INGS. 
 
 I. OF THE SERVICE AND RETURN OF PROCESS, AND HEREIN 
 
 1. Of the Summons. 
 
 2. Of the Warrant. 
 
 3. Of the Venire. 
 
 4. Of the Writ of Attachment. 
 
 5. Of the Execution. 
 
 1. Service and Return of Summons. 
 
 Constables are the ministerial officers of courts held by justices of 
 the peace, and are required, as we have already seen, 1 to execute all 
 process emanating therefrom, unless the statute shall otherwise direct. 
 
 The most usual process for the commencement of suit, is that of a 
 summons, which, upon being placed in the hands of the constable, must 
 be served at least three days before the time of trial mentioned therein, 
 by reading the same to the defendant or defendants. 2 
 
 Form of Constable's Return on Summons. 
 
 Personally served the within, by reading the same to the within 
 named defendant. Sept. 18th, 1855. 
 
 Fees. Mileage, 10 miles, 50 cents. 
 
 Service, 25 " 
 
 75 cents. 
 PARNELL MUNSON, Constable. 
 
 1) Ante, p. 368.] (2) Rev. Stat. 317, Sec. 21. See ante, p. 41.
 
 378 SERVICE AND RETURN OF WARRANT. [PART 4, 
 
 * 
 
 Form of Constable's Return when Summons is against two or more, 
 and some are not found. 
 
 Personally served the within by reading the same to the within named 
 
 C. D., the day of , 18 . The within named E. F. not found 
 
 in my county. Fees, &c. Gr. H., Constable. 
 
 Form of Constable 's Return when defendant is not found. 
 
 The within named defendant not found in my county. 
 
 G. H., Constable. 
 
 Kev. Stat. 327, Sec. 85. "When any defendant shall evade the 
 service of process, and not listen to the same, or secrete himself, then 
 the officer shall serve the same by leaving a copy at his place of resi- 
 dence, with some white person of the age of ten years or upwards ; and 
 in all such cases the constable shall make a special return, when and 
 how served, and the circumstances attending the same; and if the jus- 
 tice shall be satisfied that the defendant evaded the service by reading, 
 and that the party is sufficiently notified and summoned, he shall pro- 
 ceed to hear and determine the case." 
 
 Form of Constable's Return on Summons, when served by copy. 
 
 Served the within, by leaving a copy thereof at the place of resi- 
 dence of the within named defendant, with a white person, upwards of 
 the age of ten years, the defendant having evaded the service of the 
 same. September 18th, 1855. 
 
 Fees, &c. NORMAN BROWN, Constable. 
 
 2. Of the Service and Return of Warrant. 
 
 The rules which govern the service of this process, have been already 
 noticed to some extent in PART FIRST hereof, 1 but it may be proper 
 here to add, that for the service of all civil process, every man's 
 dwelling house is inviolable, or, as the early writers express it, is his 
 castle, and an officer has no right to break its outer door, to open it if 
 shut, to lift a latch in order to enter it, or to enter against the owner's 
 command, in order to arrest him, or to levy upon his property : and 
 it makes no difference whether the owner be at home or absent. This 
 privilege is intended for the protection of himself and his family, and 
 
 (1) See ante, pages 48, 49.
 
 CHAP. 2.] SERVICE AND RETURN OF VENIRE. 379 
 
 is therefore confined to the dwelling house occupied by them, and does 
 not extend to a barn, store, shop or warehouse. 1 And when the 
 constable has once made the arrest, if the defendant escape without the 
 constable's consent, his own or any other dwelling house forms no 
 protection against a recaption ; but the officer may break outer doors 
 to seize his body, without a previous demand and refusal, where the 
 pursuit is fresh ; or may retake iim on any day, or at any place, or 
 on any business which would otherwise operate as a privilege from 
 arrest ; for the party is still considered in custody, and it is not an 
 original taking. 2 As to persons privileged from arrest, see ante, page 49. 
 When the defendant is arrested on a warrant, he has the right to release 
 his body, by giving special bail to the constable. 8 
 
 Form of Special Bail to be indorsed on Warrant. 
 
 I, G. F., acknowledge myself special bail for the within named C. D. 
 Witness my hand, this day of , 18 . G. F. 
 
 Form of Constable's Return on Warrant. 
 
 Executed the within, by arresting the within named defendant, and 
 he is now in custody. September 24, 1855. 
 
 Fees, &c. G. H., Constable. 
 
 In case of several defendants, when part only are arrested, or in case 
 the defendant is not found, the return in this respect will be the same 
 as in case of summons. 
 
 3. Of the Service and Return of Venire. 
 
 The constable on receiving a venire or jury^svarrant, will summon 
 the number of persons therein required, who ajp not exempt from such 
 service, or rendered incompetent. 4 He will then make the following 
 return upon the venire. 
 
 Form of Return on Venire. 
 
 Executed the within by summoning the following panel of jurors. 
 (Here give the names of the persons so summoned.) September 25, 
 1855. Fees, &c. J. K., Constable. 
 
 (1) 1 Hill, 336; 16 Johns. 287; 13 Mass. 520. (2) 10 Wend. 300; 2 Ld. Raym. 1028. 
 
 (3) Rev. Stat. 317, Sec. 22; see ante, page 49. (4) See ante, page 98. ,
 
 380 SERVICE AND RETURN OF WRITS OF ATTACHMENT. [PART 4, 
 
 When any juror shall be discharged by the justice for any cause, 
 or shall fail to attend, it becomes the duty of the constable, on direction 
 of the justice, to complete the panel at once from among the bystanders, 
 or elsewhere in his bailiwick, which summons will be verbal. 1 The 
 names of the persons so summoned, need not be indorsed on the jury 
 warrant, but the justice should note the facts upon his docket, that the 
 transaction may there regularly appear. 
 
 4. Of the Service and Return of Writs of Attachment. 
 
 The constable, on receiving a writ of attachment, must proceed to 
 levy the same without delay upon the personal property of the defend- 
 ant. He will also read the writ to the defendant, if found in the 
 county. 2 In case the constable shall be unable to find property of the 
 defendant sufficient to satisfy the attachment, he will notify all persons 
 within his county, whom the creditor shall designate, as garnishees, 
 requiring them to appear on the return day of said writ, and answer 
 upon oath as to their indebtedness, &c., to the defendant. 8 
 
 Form of Return on Writ of Attachment. 
 
 Executed the within writ, by levying upon the following personal 
 property : (here describe the property, ) which being insufficient to 
 satisfy said writ, I have notified the following persons, designated by 
 the plaintiff, to appear as garnishees. (Here give the names.^) The 
 defendant not found in my county. September 26, 1855. 
 
 Fees, &c. E. F., Constable. 
 
 Form of Return when no property is found. 
 
 No property of the within named defendant found in my county. 
 T have notified C. and D., persons designated by the plaintiff, to appear 
 as garnishees. The defendant not found in my county. September 
 26th, 1855. 
 
 E. F. Constable. 
 
 When the defendant is not served, and no appearance is entered for 
 him, the cause is to be continued by the justice ten days, and who will 
 immediately prepare a notice to the defendant in the suit, and deliver 
 the same to the constable, whose duty it is to post three copies thereof at 
 
 (1) Rev. Stat. 322. Sec. 49. (2) Rev. Stat. 69, Sec. 5 . (3) Rev. Stat. 60, Sec. 9.
 
 CHAP. 2.] SERVICE AND RETURN OF EXECUTION. 381 
 
 three public places in the neighborhood of the justice, at least eight 
 days before the day of trial. 1 The constable will post copies of the 
 notice delivered him by the justice, and return the original with an in- 
 dorsement thereon, stating the time when, and the place where, Jie 
 posted copies. 2 -I" 
 
 Form of Indorsement of Constable on Attachment Notice. 
 
 I have posted three copies of the within notice as follows : (state 
 the places where the notices were posted,) which were posted on the 
 day of - , 18. E. F., Constable. 
 
 5. Of the Service and Return of Execution. 
 
 Rev. Stat. 326, Sec. 79. " Every constable to whom an execution 
 shall be delivered, shall indorse on the back of the same, an exact 
 memorandum of the day and hour when the same shall have come to 
 his hands, and shall immediately proceed to levy the same ; indorsing 
 also on the back of the execution, the date of such levy, and making 
 an exact inventory of the property on which the same shall have been 
 levied, and shall appoint a day and hour for the sale of said property, 
 giving ten days' previous notice of such sale, by advertisement in 
 writing, to be posted up at three of the most public places in the 
 county ; and on the day so appointed, the said constable shall sell the 
 property so levied on, or so much thereof as may be necessary to pay 
 the debt, interest and costs, to the highest bidder." 
 
 Form of Constable's Indorsement oh receiving Execution. 
 
 Received this execution this day of , 18 , at 
 
 o'clock, M. E. F., Constable. 
 
 The personal property of the defendant in a judgment before a justice 
 of the peace, is bound for the payment of such judgment from the de- 
 livery of the execution issued thereon to the constable. 8 
 
 Any constable has authority to remove property levied on by him, 
 when it shall be necessary for the safe keeping of the same. But if 
 the defendant shall desire to retain the property so levied on, until the 
 day of sale, it will be lawful for the constable to allow the defendant so 
 to keep the same, if said defendant shall give bond to the constable in 
 
 (1) Rev. Stat. 60, Sec. 7; see ante, p 275, title, " Attachments," &c. (2) Ibid. 
 
 (3) Rev. Stat. 326, Sec. 78.
 
 382 SERVICE AND RETURN OF EXECUTION. [PART 4, 
 
 double the amount of the execution, with good security, conditioned 
 for the delivery of said property to such constable, at the time and 
 place of sale to be named in said bond ; and if the said property shall 
 not be delivered as aforesaid, at the time and place of sale, the constable 
 having the execution may proceed to levy the same, upon the same or 
 any other property of the defendant, or upon the property of the secu- 
 rity in such bond, and shall sell the same, giving two days' public notice 
 of such sale by advertisement, to be posted in one public place. 1 
 
 Any constable to whom an execution shall have been delivered, and 
 whose term of office shall expire before the expiration of the time 
 within which the return of such execution is required by law, is 
 authorized to proceed in all matters relating to said execution ; and 
 in the same manner to collect the same, that he might have done, 
 had the term of office of such constable not expired. 2 
 
 Form of Indorsement of Levy and Inventory of Property. 
 
 By virtue of the within, I have this day levied on the following 
 personal property of the within named defendant : (here describe the 
 
 property particularly,) this day of , 18 . 
 
 E. F., Constable. 
 
 ^ & Rev. Stat. 306, Bee. 32. " The necessary wearing apparel of every 
 person shall be exempt from execution, writ of attachment and dis- 
 tress for rent. 
 
 " Sec. 33. The following property, when owned by any person 
 being the head of a family and residing with the same, shall be 
 exempt from levy and sale on any execution, writ of attachment, or 
 distress for rent ; and such articles of property shall continue so ex- 
 empt, while the family of such person, or any of them, are removing 
 from one place of residence to another in this State, viz : First, 
 necessary beds, bedsteads and bedding ; the necessary utensils for 
 cooking ; necessary household furniture, not exceeding in value fifteen 
 dollars ; one pair of cards, two spinning wheels, one weaving loom 
 and appendage ; one stove and the necessary pipe therefor, being in 
 use, or put up for ready use, in any house occupied by such family. 
 Second, one milch cow and calf, two sheep for each member of the 
 family, and the fleeces taken from the same, or the fleeces of two 
 sheep for each member of a family which may have been purchased 
 
 (1) Rev. Stat. 326, Sec. 80. (2) Rer. Stat. 331, Sec. 113.
 
 CHAP. 2.] SERVICE AND RETURN OF EXECUTION. 388 
 
 by any debtor not owning sheep, and the yarn and cloth that may 
 be manufactured from the same, and sixty dollars' worth of property 
 suited to his or her condition or occupation in life, to be selected 
 by the debtor. Third, necessary provisions and fuel for the use of 
 the family for three months, and necessary food for the stock here- 
 inbefore exempted from sale, or that may be held under the provisions 
 of this chapter. 
 
 " Sec. 34. Whenever, in any case, the head of a family shall 
 die, desert, or cease to reside with the same, the said family shall 
 be entitled to and receive all the benefits and privileges which are, 
 in this chapter, conferred upon the head of a family residing with 
 the same." 
 
 If a defendant, after notice from an officer having an execution 
 against him, neglect or refuse to make a selection of property allowed 
 him by statute, the officer may proceed to levy upon any of his property, 
 not specifically exempt from execution, and sell the same, regardless of 
 any subsequent claim of such defendant to such property as having 
 been selected by him. But if the defendant make his selection and 
 notify the officer thereof, and the officer should then proceed to take or 
 seize such property on execution, he thereby becomes a trespasser. 
 
 If an officer proceed to seize or take the defendant's property on 
 execution, without giving the requisite notice, the defendant may make 
 his selection after the levy, of the very property levied on, (if it be 
 such in quality and value, as before the levy he might have selected,) 
 precisely as before the levy he could have done. But in such case, he 
 should, on notifying the officer, surrender, or offer to surrender, a suffi- 
 cient amount of other property to satisfy the execution ; and if he neg- 
 lects to surrender, or offer so to do, the officer may proceed with the 
 sale, unless the aggregate of the property levied on and afterwards 
 selected, and that still retained by the defendant and not specifically 
 exempt from execution, does not exceed sixty dollars, in which case the 
 officer will be liable to the penalty of the statute, if he sells such prop- 
 erty. If, however, a defendant aliens, conceals, or otherwise disposes 
 of all his property, except such as he desires to select, for the purpose 
 of delaying or hindering his creditors, he will not be entitled to the 
 benefit of the statute. 1 
 
 Property which is indivisible, and of greater value than sixty dollars, 
 cannot be claimed by a judgment debtor, as being exempt from execu- 
 
 (1) 1 Gil. 757, 758.
 
 384 SERVICE AND RETUKN OF EXECUTION. 
 
 tion, and he cannot retain such property by paying to the constable the 
 excess of value in money. 1 
 
 In the sale of personal property on execution, the property itself 
 must be present or the sale will be void. 2 
 
 
 
 Form of Notice of Constable's Sale. 
 
 CONSTABLE'S SALE. 
 
 Notice is hereby given, that by virtue of an execution issued by E. 
 
 F., Esquire, a justice of the peace of county, in favor of A. B., 
 
 and against the goods and chattels of C. D., and to me delivered, I 
 have levied on the following described goods and chattels, to wit : (here 
 describe the property,) which I shall expose for sale at public vendue, 
 
 at , in said county, on the day of , 18, at o'clock 
 
 M., to the highest bidder therefor. 
 
 Dated this day of , 18. G. H., Constable. 
 
 Form of Constable's Return on Execution, in case of levy and sale. 
 
 Executed the within by sale of the property hereon indorsed, the 
 
 proceeds of which amount to $ . My fees retained. Dated, &c. 
 
 G. H., Constable. 
 
 Whatever sum is made on sale, he should pay over to the justice on 
 return of the execution ; he may. however, pay to the plaintiff the 
 amount of his judgment, and take his receipt therefor. Should the prop- 
 erty sell for more than the amount of the execution, the constable 
 should pay the excess to the defendant in execution, and make return 
 accordingly. 
 
 form of Constable's Return, when no property is found. 
 
 No property of the within named C. D., subject to levy, found in 
 my county. 
 Dated, &c. G. H., Constable. 
 
 (1) 14 111. 84. (2) 15 El. 68.
 
 ClIAP. 3.] LIABILITY OF CONSTABLES AND SURETIES. 385 
 
 CHAPTER III. 
 
 OP THE LIABILITY OF CONSTABLES AND SURETIES. 
 
 Upon the failure of the constable to pay over any money by him 
 collected or received as provided by the statute, to any person entitled 
 to receive the same, his or her agent, or attorney, such person may 
 proceed against such justice or constable in a summary way, either 
 before the circuit court or some justice of the peace of the proper 
 county, by motion, upon giving to such constable five days' notice of the 
 application; and recover the amount so neglected or refused to be paid, 
 with twenty per cent, damages thereon, for such detention, and shall 
 have execution therefor. 1 
 
 If any constable shall neglect or fail to return an execution within 
 ten days after its proper return day, or if the demand, debt, or claim, 
 be wholly or in part lost, or if any special damage shall arise to any 
 party by reason of the neglect or refusal to act, or the misfeasance or 
 nonfeasance of any constable in the discharge of any official duty, the 
 party aggrieved may have his action in the circuit court, or, when the 
 amount claimed does not exceed one hundred dollars, before any justice 
 of the peace of the proper county, against such constable and his sure- 
 ties on the official bond of such constable, and shall recover thereon the 
 amount of said execution, with interest from the date of the judgment 
 upon which the original execution issued. 2 
 
 The responsibility of the sureties is held to be co-extensive with that 
 of the constable, and that they are liable whenever he is liable to a 
 party in whose favor an execution has been delivered to him ; hence an 
 action lies upon the constable's bond or instrument of security, against 
 the constable and his sureties, for the mere neglect to return an execu- 
 tion within the time prescribed by the statute after the return day 
 thereof, and this without showing any moneys collected. 8 
 
 (1) Rev. Stat. 332, Sec. 116. (2) Id. Sec. 118. (3) io Wend. 370. 
 
 24
 
 386 LIABILITY OF CONSTABLES AND SURETIES. [PART 4, 
 
 The remedy provided by the statute, does not deprive a party of his 
 common law remedy. 1 Therefore, where a constable has collected the 
 money on an execution, and neglects to pay it over to the person enti- 
 tled to receive the same, or to the justice who issued the execution, an 
 action of assumpsit for money had and received, will lie against the con- 
 stable to recover the amount collected, without any previous demand 
 being made. 2 So assumpsit lies against a constable for the amount of 
 goods sold by him, though the purchaser to whom they are delivered 
 refuses to pay for them. 8 
 
 Where a constable or other officer neglects his duty, or abuses the 
 trust reposed in him by law, to the injury or damage of another, an 
 action on the case lies against him in the circuit court, at the suit of the 
 party sustaining the injury. 4 Thus, if a constable neglect to serve a 
 writ or precept delivered to him, this action lies for the injury suffered 
 by such neglect or refusal. 5 
 
 (1) 10 Johns. 390. (2) 3 Johns. 182; 1 Wend. 534; 16 East, 274. 
 
 (3) 9 Johns. 96. (4) 1 Scam. 237. (5) 1 Scam. 200.
 
 CHAP. 4.] POWERS OP CONSTABLES IN CRIMINAL CASES. 387 
 
 CHAPTER IV. 
 
 OF THE POWERS AND DUTIES OF CONSTABLES IN CRIMINAL 
 
 CASES. 
 
 I. His POWERS GENERALLY. 
 II. OP ARRESTS. 
 
 I. HIS POWERS GENERALLY. 
 
 Rev. Stat. 328, Sec. 88. " It shall be the duty of every constable, 
 when any felony or breach of the peace shall be committed in his pres- 
 ence, forthwith to apprehend the person committing the same, and 
 bring him before some justice of the peace, to be dealt with according 
 to law ; to suppress all riots and unlawful assemblies, and to keep the 
 peace, and also to serve and execute all warrants, writs, precepts, and 
 other process to him lawfully directed ; and generally to do and per- 
 form all things appertaining to the office of constable within this State." 
 
 The offiee of constable is either ministerial in obeying warrants and 
 precepts, or is original as a conservator of the peace, at common law, 
 or by virtue of particular acts of the legislature. By the original and 
 inherent power which he possesses, he may, for treason, felony, breach 
 of the peace, and some misdemeanors less than felony, committed in his 
 view, apprehend the supposed offender, without warrant. 1 So if a fel- 
 ony has been committed, a constable, or any peace officer, may lawfully 
 apprehend a supposed offender, upon the information of others, without 
 any positive charge, or his own knowledge of the circumstances on 
 which the suspicion is founded. 2 In general, however, a constable can- 
 not of his own accord, and without an express charge or warrant, justify 
 
 (1) 1 Hale, 587. (2) 1 East's P. C. 301 ; 6 T. R. 315; 6 Bin. 316.
 
 388 ARRESTS. [PART 4, 
 
 the arrest of a supposed offender, upon suspicion of his guilt, unless be 
 can show that a felony was committed by some person, as well as the 
 reasonableness of the suspicion that the party imprisoned is guilty. 1 
 
 So a constable may, without warrant, apprehend any one for a breach 
 of the peace, in his presence, and detain him until he can bring him 
 before a magistrate. 2 A constable may, also, upon his own view, law- 
 fully interpose to prevent a breach of the peace, or to quiet an affray ; 
 and if he or any of his assistants, whether commanded or not, be killed, 
 it will be murder in all who take part ia the assistance, there being 
 either express or implied notification of the character in which he in- 
 terposed. 8 
 
 II. OP ARRESTS. 
 
 An arrest, in criminal cases, is the apprehending or detaining a per- 
 son, in order that he may be forthcoming to answer to a crime alleged 
 against him, or of which he is suspected to be guilty. 4 To this arrest 
 all persons without distinction are liable, when accused of a criminal 
 offense. The exemptions which exist in civil cases, here cease to ope- 
 rate. It is laid down that no person can be arrested unless charged 
 with such a crime as will at least justify holding him to bail when taken. 5 
 
 To constitute an arrest, the party must be actually touched by the 
 officer, or confined in a room, or submit himself, by words or actions, to 
 be in custody. The mere giving in charge, or causing him voluntarily 
 to appear before a magistrate, without the person being taken into 
 actual custody, will not amount to an arrest ; for bare words in this 
 respect, will not be of any avail. 6 But no manual touching of the 
 body, or actual force, is necessary, in order to constitute an arrest ; it 
 is sufficient if the party is within the power of the officer, and submits 
 to the arrest. 7 Yet, it is said to be better in all cases to touch the pris- 
 oner's person, in order to complete the arrest ; taking care, at the same 
 time, to use no greater force or constraint than is necessary for his safe 
 custody ; the degree of which will depend upon the particular circum- 
 
 (1) 4 Esp. 80; 1 Chit. Crim. L. 18. (2) Hale's P. C. 587; 3 Wend. 384. 
 
 (3) 1 East's P. C. 303. (4) 4 Bl. Com. 288; 1 Chit. Crim. L. 12. 
 
 (5) 4 Bl. Com. 289. 
 
 (6) 1 Clhit. Crim. L. 48; Davis' Just. 64; 1 East's P. C. 330. 
 
 (7) Barb. Crim L. 531, and authorities cited.
 
 CHAP. 4.] ARRESTS. 389 
 
 stances of the case as, the character of the party, the nature of the 
 offense charged, the state of the country, &C. 1 
 
 As no time is prescribed in the warrant within which it is to be exe- 
 cuted, it continues in force until fully executed, during the term of office 
 of the magistrate who granted it. And it is said that a person maybe 
 twice apprehended under it, if the purposes of justice have not been 
 effected. In case of a negligent escape, the prisoner may be retaken. 
 Otherwise, however, if the escape be voluntary. It is unquestionably the 
 duty of the officer to act according to the exigency of his process, which 
 is, "forthwith to take the person accused," if practicable. If the officer 
 should willfully neglect his duty in this respect, he would doubtless 
 render himself liable to be punished criminally. And should any per- 
 son having charge of such process, misconduct himself by keeping it 
 back, to be afterwards made use of for vexatious or improper purposes, 
 he may subject himself to an action for a malicious prosecution, at the 
 suit of the party aggrieved. 2 
 
 (1) 1 Nun. & Walsh, 203. (2) See Barb. Crim. L. 632.
 
 390 CONSTABLE'S FEES. [PART 4, 
 
 CHAPTER V. 
 
 OF FEES AND COMPENSATIONS ALLOWED TO CONSTABLES 
 IN BOTH CIVIL AND CRIMINAL CASES. 
 
 CONSTABLE'S FEES IN CRIMINAL CASES. 
 
 Rev. Stat. 247, Sec. 18. "For serving a warrant on each person 
 named therein, twenty-five cents. 
 
 Mileage, to be computed from the office of the justice who may have 
 issued the same, to the place of service, for each mile, six and a fourth 
 cents. 
 
 Serving each subpoena, twelve and a half cents. 
 
 Mileage from the justice's office to the residence of the witness, per 
 mile, six and a fourth cents. 
 
 Taking each person to jail when committed, twenty-five cents. 
 
 Mileage from the justice's office to the jail, per mile, six and a fourth 
 cents. 
 
 For summoning jury in case of assault and battery, fifty cents. 
 
 But in all cases where the defendant shall be acquitted, or otherwise 
 discharged, without the payment of costs, the constable shall not be 
 entitled to any fees." 
 
 CONSTABLE S FEES IN CIVIL CASES. 
 
 Rev. Stat. 247, Sec. 19. " Serving and returning each warrant 
 or summons, twenty-five cents. 
 
 Serving and returning each subpoena, twelve and a half cents. 
 Serving and returning execution, fifty cents.
 
 
 CHAP. 5.] CONSTABLE'S FEES. 391 
 
 Advertising property for sale, twenty-five cents. 
 
 Commission on sales not exceeding ten dollars, ten per centum, 
 and on all sales exceeding that sum, six per centum. 
 
 Attending trial before a justice in each jury cause, twenty-five cents. 
 
 Serving jury warrant in each case, fifty cents. 
 
 e Each day's attendance on the circuit court, when required to be 
 paid out of the county treasury, one dollar. 
 
 Mileage, when serving a warrant, summons or subpoena, from the 
 justice's office to the residence of the defendant or witness, per mile, 
 five cents. 
 
 For serving warrant on appraisers in cases of estrays, &c., twenty- 
 five cents."
 
 392 APPRENTICES. PART 5, 
 
 PART FIFTH. 
 
 COMMON FORMS FOR THE TRANSACTION OF BUSINESS. 
 
 I. APPRENTICES. 
 
 II. ARBITRATIONS AND AWARDS. 
 
 III. AGREEMENTS. 
 
 IV. ASSIGNMENTS. 
 
 V. BILLS OF EXCHANGE AND PROMISSORY NOTES. 
 
 VI. BILLS OF SALE. 
 
 VII. BONDS. 
 
 VIII. COPARTNERSHIP. 
 
 IX. CONVEYANCES. 
 
 X. LEASES. 
 
 XI. POWERS OF ATTORNEY. 
 
 XII. RELEASES. 
 
 XIII. WILLS. 
 
 I. APPRENTICES. 
 Indenture of Apprenticeship of a Minor, with the consent of the father. 
 
 THIS INDENTURE, made and entered into this first day of June, A. D. 
 1855, by and between A. B. a minor, of the age of eighteen years on 
 the eighth day of March last, of his own free will and accord, and by 
 and with the consent of E. B., his father, of the county of McHenry, 
 and State of Illinois, of the one part, and C. D. of Waukegan, in the 
 county of Lake and State aforesaid, of the other part, witnesseth : 
 
 That the said A. B. hath placed and bound himself apprentice to the 
 said C. D., to learn the trade of a Painter, and to dwell with the said 
 C. D., continue with and serve him for the term of three years from the 
 date hereof, until the said A. B. shall have attained the age of twenty- 
 one years, to wit, until the eighth day of March, A. D. 1858. And the 
 said A. B. on his part, hereby agrees, that during the said term, he
 
 PART 5.] APPRENTICES. 393 
 
 will well and faithfully serve the said C. D., keep his secrets, and obey his 
 lawful commands ; that he will do no hurt or damage to his said master 
 in his goods, estate, or otherwise, nor willingly suffer any to be done 
 by others, and whether prevented or not, shall forthwith give notice 
 thereof to his said master ; that he will not inordinately embezzle or 
 waste the goods of his said master, nor lend them without his consent, 
 to any person or persons whatsoever ; that he will not play at cards, 
 dice, or any other unlawful games ; that he will not contract matrimony 
 during said term, or haunt or frequent groceries, tippling houses, or 
 places of gaming ; and that he will not at any time, by day or night, 
 depart or absent himself from the service of his said master, without his 
 leave, but will, in all things, as a good and faithful apprentice, demean 
 and behave himself to his said master during said term. 
 
 And the said C. D. on his part, hereby agrees, in consideration of 
 one dollar to him paid, the receipt whereof is hereby acknowledged, to 
 teach and instruct the said A. B. in the art of Painting, or otherwise 
 cause him to be well and sufficiently instructed in said art ; that he will 
 find and allow unto the said A. B., meat, drink, washing, lodging and 
 apparel, both linen and woolen, and all other things necessary in sick- 
 ness and in health, meet and convenient for such an apprentice, during 
 the term aforesaid. 
 
 And the said C. D. hereby further agrees, in pursuance of the stat- 
 ute in such case made and provided, that he will teach, or cause to be 
 taught, the said A. B., within said term, to read and write, and the 
 ground rules of arithmetic; and at the expiration of said term of service, 
 will give unto the said A. B., a new bible, and two new suits of clothes 
 suitable to his condition in life. 
 
 In witness whereof, the said A. B. and the said E. B., father of the 
 said A. B. and the said C. D., have to this and one other indenture of 
 the same tenor and date, set their hands and seals the day and year 
 first above written. A. B. [SEAL.] 
 
 Signed and sealed in ) E. B. [SEAL.] 
 
 presence of C. D. [SKAL.] 
 
 Form of Indorsement on Indenture of Apprenticeship, when father 
 covenants for faithful performance of his son. 
 
 In consideration of the within mentioned agreements of the said C. 
 D., I do hereby separately covenant and agree with the said C. D.,
 
 4 APPRENTICES. [PART 5. 
 
 that the within named A. B. shall well and faithfully perform and 
 observe all the stipulations on his part within mentioned, to which true 
 and faithful performance and observance, I bind myself firmly by these 
 presents. 
 
 In witness whereof, I have hereunto set my hand and seal, the day 
 and year first within mentioned. 
 
 Signed and sealed in } E. B. [SEAL.] 
 
 presence of 
 
 s. c. ) 
 
 Form of Indenture binding poor child, by Overseer of Poor, 
 under township organization. 
 
 THIS INDENTURE, made and entered into on the first day of June, 
 A.D. 1855, by and between Francis H. Porter, Overseer of the Poor 
 of the town of Waukegan, in the county of Lake, for the year 1855, of 
 the first part, and Samuel I. Bradbury, of said town, of the second 
 part, witnesseth : 
 
 Whereas it hath been made to appear to said overseer of the poor, 
 that John Jones is the minor child of poor parents, who have become 
 chargeable to said town, as having a lawful settlement therein, (or, 
 " who are supported," &c., stating such a case as comes within the 
 law,) therefore the said overseer of the poor, by virtue and conformity 
 to the law in such case made and provided, hath bound the said John 
 Jones, who is now of the age of fifteen years, to the said Samuel I. 
 Bradbury, as an apprentice to learn the art or trade of a Printer ; and 
 as such apprentice to dwell with and serve the said Samuel I. Brad- 
 bury, from the date hereof, until the said John Jones shall have 
 attained the age of twenty-one years, which will be on the ninth of May, 
 1861. And it is hereby agreed and understood, that the said John 
 Jones shall well and faithfully serve the said Samuel I. Bradbury 
 during the said term, and shall obey all his lawful and reasonable 
 commands ; that he will not willingly do or suffer to be done, any harm 
 or damage to the goods, property or interest of the said master ; that 
 he will not, without leave, absent himself from the service of his said 
 master, but that he will in all things during the said term, demean and 
 behave himself as a good and faithful apprentice to his said master. 
 
 And the said Samuel I. Bradbury doth, on his part, hereby covenant 
 and agree, in consideration of the undertaking and binding aforesaid, 
 to teach and instruct the said John Jones in the trade of a Printer, or 
 otherwise cause him to be well and sufficiently taught and instructed
 
 PART 5.] APPRENTICES. 395 
 
 in said trade ; that ho will furnish and provide, or cause to be found, 
 furnished, and provided unto the said John Jones, meat, drink, lodg- 
 ing, and suitable and proper clothing, in sickness and in health, and 
 medicine, medical attendance and nursing, in sickness, during the said 
 term. 
 
 And the said Samuel 1. Bradbury further covenants and agrees 
 that he will teach, or cause to be taught, the said John Jones to read 
 and write, and the ground rules of arithmetic ; and at the expiration 
 of said term, will pay to him, the said John Jones, the sum of one 
 hundred dollars, a new bible, and two complete suits of new wearing 
 apparel suitable to his condition in life, (or suck other instruction, 
 benefit or allowance as may be agreed upon.) 
 
 In witness whereof, the said parties have hereto set their hands and 
 seals, the day and year first above written. 
 
 FRANCIS H. PORTER, [SEAL.] 
 Overseer of the Poor of the town of Waukegan. 
 . SAMUEL I. BRADBURY. [SEAL.] 
 
 Certificate of Approbation of County Judge, of the binding of an 
 infant tvho has no parents or guardian in the State. 
 
 I, the undersigned, judge of the county court, within and for the 
 county of Randolph, and State of Illinois, do hereby approve of the 
 binding of A. B., the within named infant, by himself to the within 
 named C. D., according to the statute in such case made and provided. 
 
 Given under my hand this first day of June, A. D. 1855. 
 
 J. M., County Judge. 
 
 Indenture of Apprentice by two Overseers 'of the Poor, of a minor. 
 
 THIS INDENTURE, made and entered into t\\\s first day of June, A.D. 
 1855, by and between A. B. and C. D., overseers of the poor, (or 
 "justices of the peace,") of the county of Randolph, in the State of 
 Illinois, of the one part, and E. F. of the same county, of the other 
 part, witnesseth : 
 
 That the said overseers of the poor, (or "justices of the peace,") 
 by virtue of the sixth section of the sixth chapter of the revised statutes 
 relating to apprentices, and by and with the consent of the judge of 
 probate of said Randolph county, have placed, and by these presents 
 do place and bind out as an apprentice, a poor child, named G. II., of
 
 396 APPRENTICES. [PART 5. 
 
 said county, of the age of fifteen years, the said G. H. being, &C., 1 to 
 the said E. F., to learn the Blacksmiths' trade, in which the said E. F. 
 is engaged, and after the manner of an apprentice to dwell with, and 
 serve the said E. F. from the date hereof, until the said G. H. shall 
 have attained the age of twenty-one years, to wit, on the ninth day of 
 May, 1861. 
 
 And it is hereby agreed and understood, that the said G. H. shall 
 'well and faithfully serve the said E. P., during the said term, keep 
 his secrets, and obey his lawful commands ; shall do no hurt or damage 
 to his said master in his goods, estate or otherwise, nor willingly suffer 
 any to be done by others, and whether prevented or not, shall forthwith 
 give notice thereof to his said master ; shall not inordinately embezzle 
 or waste the goods of his said master, nor lend them, without his 
 consent, to any person or persons whatsoever ; shall not play at any 
 unlawful game, contract matrimony, haunt or frequent any grocery, 
 tippling or gaming house ; nor at any time by day or night depart or 
 absent himself from the service of his said master, without his leave, 
 but shall in all things, as a good and faithful apprentice, demean and 
 behave himself to his said master. 
 
 And the said E. F, on his part, hereby agrees, in consideration of 
 one dollar to him paid, the receipt whereof is hereby acknowledged, to 
 teach and instruct the said G. H. in the Blacksmiths' trade, or otherwise 
 cause him to be well and sufficiently instructed in said trade ; that he 
 will find and allow unto the said G. H., meat, drink, washing, lodging, 
 and apparel suitable for working and holy-days, and all other things 
 necessary in sickness and in health, and meet and convenient for such 
 an apprentice, during the term aforesaid. 
 
 And the said E. F. hereby further agrees, in pursuance of the statute 
 in such case made and provided, that he will teach or cause to be taught 
 the said G. H., within said term, to read and write, and the ground 
 rules of arithmetic ; and at the expiration of said term of service, will 
 give unto the said G. H. a new bible, and two new suits of clothes, 
 suitable to his condition in life. 
 
 In witness whereof, the said A. B. and C. D., and the said E. F., 
 have to this, and one other indenture of the same tenor and date, set 
 their hands and seals, the day and year first above written. 
 
 Signed and sealed in ^ A. B. [SEAL.] 
 
 presence of C. D. [SEAL.] 
 
 J E. F. [SEAL.] 
 
 (1) See Rev. Stat. p. 62, Sec. 6.
 
 PART 5.] ARBITRATIONS AND AWARDS. 397 
 
 II. ARBITRATIONS AND AWARDS. 
 
 All persons having the requisite legal capacity, may, by an instru- 
 ment in writing, to be signed and sealed by them, and attested by at 
 least one witness, submit to one or more arbitrators, any controversy 
 existing between them, not in suit, and may in such submission agree 
 that a judgment of any court of record, competent to have jurisdiction 
 of the subject matter, to be named in such instrument, shall -be rendered ' 
 upon the award made pursuant to such submission. 1 
 
 General Form of a Submission, to be made a Rule of Court. 
 
 WHEREAS divers disputes and controversies have arisen and are now 
 depending and unsettled, between A. B., of Watikegan, in the county 
 of Lake, and State of Illinois, of the one part, and C. D., of said 
 Waukegan, of the other part : Now, therefore, for the purpose of set- 
 tling and determining such disputes and controversies, it is hereby mu- 
 tually agreed and understood by and between the said parties, that 
 the same shall be referred and submitted to the arbitrament and deter- 
 mination of E. F., Gr. H. and J. K., all of said county and State, or 
 any two of them ; add the said arbitrators, or any two of them, shall 
 make and publish their award in writing, under their hands and seals, 
 and deliver the same to the parties, or to either of them, who shall de- 
 sire the same on or before the first day of July next ; and it is hereby 
 further agreed and understood by and between the said parties, that this 
 submission shall be made a rule of the circuit court within and for the 
 county of Lake aforesaid. 
 
 In witness whereof, the said parties have to this and one other instru- 
 ment of the same tenor and date, set their hands and seals, this first 
 day of June, A. D. 1855. 
 
 Signed and sealed in ^) A. B. [SEAL.] 
 
 presence of v C. D. [SEAL.] 
 
 Short Form of General Submission. 
 
 \ We, the undersigned, hereby mutually agree to submit all our mat- 
 ters in difference, of every name or nature, to the award and determi- 
 
 (1) Rev. Stat. 56, Sec. 1.
 
 398 ARBITRATIONS AND AWARDS. [PART 5. 
 
 nation of E. F., L. M. and S. T., for them to hear and determine the 
 
 same, and make their award in writing, on or before the day of 
 
 next. 
 
 Witness our hands, this day of , 18 . 
 
 In presence of ) A. B. 
 
 G. H. > ' C. D. 
 
 Arbitration Bond, to be mutual. 
 
 KNOW ALL MEN BY THESE PRESENTS, That I, A. B., of Waukegan, 
 in the county of Lake, and State of Illinois, am held and firmly bound 
 unto C. D., of said Waukegan, in the sum of one thousand dollars, to 
 be paid to the said C. D., his executors, administrators and assigns, 
 to which payment well and truly to be made, I do bind myself, my 
 heirs, executors and administrators, and every of them firmly by these 
 presents. 
 
 Sealed with my seal, dated fas first day of June, A. D. 1855. 
 
 The condition of this obligation is such that if the above bound A. 
 B., his heirs, executors and administrators, shall in all things well and 
 truly stand to, abide, perform, observe, fulfill, and keep the award, 
 order, arbitrament and determination of E. F., Gr. H, and J. K., all 
 of said county and State, arbitrators indifferently selected as well on 
 the part and behalf of the above bound A. B. as of the above named 
 C. D., to arbitrate, award, order, adjudge, and determine, of, and con- 
 cerning all, and all manner of actions, suits, cause and causes of 
 action, bills, bonds, specialties, covenants, contracts, promises, judg- 
 ments, executions, accounts, debts, quarrels, controversies, damages, 
 trespasses and demands whatsoever, both in law, equity, or otherwise, 
 which, at any time or times heretofore, have been had, made, moved, 
 brought, commenced, sued, prosecuted, committed, done, suffered, or 
 depending and unsettled by or between the said parties ; so that the 
 said award be made in writing, under the hands and seals of the 
 said arbitrators, or any two of them, and ready to be delivered to the 
 said parties in difference, or such of them as shall desire the same, on 
 or before the first day of August next ; then this obligation to be void, 
 otherwise to remain in full force and effect. And the above named A. 
 B. doth agree and desire that this his submission may be made a rule 
 of the circuit court within and for the county of Lake, and State 
 aforesaid. 
 
 Signed and sealed in presence of) A -R r T 
 
 A. Jt>. |_SEAL.J
 
 PART 5.] ARBITRATIONS AND AWARDS. 399 
 
 Certificate of Oath of Arbitrators. 
 
 STATE OF ILLINOIS,] 
 Lake COUNTY, j ss 
 
 I, Amos S. Waterman, a justice of the peace of said county, do cer- 
 tify that E. F., G. H., and J. K., named as arbitrators in the foregoing 
 arbitration bond, before proceeding to hear any testimony in the 
 cause therein mentioned, made oath that they would faithfully and fairly 
 hear, examine and determine the cause according to the principles of 
 equity and justice, and make a just and true award to said court accord- 
 ing to the best of their understanding. 
 
 Given under my hand and seal this tenth day of June, A. D. 1855. 
 
 AMOS S. WATERMAN. [SEAL.] 
 
 Award of Arbitrators. 
 
 . We, the subscribers, arbitrators appointed by submission, (or "rule 
 of court," or " arbitration bond,") hereunto annexed, having notified 
 and met the parties, and heard their several allegations, proofs and ar- 
 guments, and duly considered the same, do award and determine that the 
 within named A. B. shall recover of the within named C. D., the sum 
 of dollars, and that the same shall be in full of all matters 
 
 within referred to us. E. F. 
 
 G. H. . 
 J. K. 
 
 Notice to the adverse party before Judgment is entered upon an award 
 in the Circuit Court. 
 
 To A. B. : 
 
 Sir : I send you herewith a copy of the award made the first day 
 of July, A. D. 1855, by E. F., G. H. and J. K., of the county of 
 Lake, and State of Illinois, on a reference to them of all disputes and 
 controversies existing between us prior to the^rs^ day of June, A. D. 
 1855, by our submission of that date ; and I hereby notify you to 
 appear on the first day of the next term of the Lake county circuit 
 court, to be holden at Waukegan, within and for said Lake county, at 
 the court house, on the second Monday of October next, and show 
 cause, if you can, why judgment should not then and there be entered 
 by said circuit court against you on the said award, agreeably to the 
 tenor and effect thereof. 
 
 July 1, 1855. C. D.
 
 400 AGREEMENTS. [PART 5. 
 
 III. AGREEMENTS. 
 General Form of Agreement. 
 
 THIS AGREEMENT, made this twenty-fourth day of September, one 
 thousand eight hundred and fifty-five, between A. B., of the town of 
 Waukegan, and State of Illinois, of the first part, and C. D., of the 
 village of Hainesville in said county and State, of the second part 
 
 Witnesseth, that the said A. B., in consideration of the covenants on 
 the part of the party of the second part hereinafter contained, doth cov- 
 enant and agree to and with the said C. D., that (liere insert the agree- 
 ment on the part of A. B.} 
 
 And the said C. D., in consideration of the covenants on the part of 
 the party of the first part, doth covenant and agree to, and with the 
 said A. B., that (Jiere insert the agreement on the part of C. D.) 
 
 In witness whereof, we have hereunto set our hands and seals, the 
 day and year first above written. 
 
 Signed, sealed and delivered ") A. B. [SEAL.] 
 
 in the presence of ^ C. D. [SEAL.] 
 
 L. M. 
 
 . Agreement to Sell Land. 
 
 ARTICLES OF AGREEMENT, made and entered into the tenth day of 
 June, A. D. 1855, between A. B. of, &c., of the first part, and C. D. 
 of, &c., of the second part, witnesscth : 
 
 That the said party of the first part, in consideration of the covenants 
 and agreements hereinafter contained on the part of the said party of 
 the second part, agrees to sell unto the said party of the second part, 
 all that piece or parcel of land bounded and described as follows : (here 
 describe the premises') for the sum of eight hundred dollars, in manner 
 following, to wit: three hundred dollars on the execution of these 
 presents, two hundred and fifty dollars on the tenth day of December 
 next, and the remaining sum of two hundred and fifty dollars on the 
 tenth day of June, A. D. 1856, with the lawful interest from this 
 date on each payment at the time of making the same ; and to pay all 
 taxes assessed on said premises during the continuance of this contract. 
 
 And the said party of the first part also agrees that on receiving the 
 said sum of eight hundred dollars at the time, and in the manner above 
 mentioned, he will execute and deliver to the said party of the second 
 part, at his own proper cost and expense, a good and sufficient deed,
 
 ClIAP. 3.] LIABILITY OF CONSTABLES AND SURETIES. 385 
 
 CHAPTER III. 
 
 OF THE LIABILITY OF CONSTABLES AND SURETIES. 
 
 Upon the failure of the constable to pay over any money by him 
 collected or received as provided by the statute, to any person entitled 
 to receive the same, his or her agent, or attorney, such person may 
 proceed against such justice or constable in a summary way, either 
 before the circuit court or some justice of the peace of the proper 
 county, by motion, upon giving to such constable five days' notice of the 
 application; and recover the amount so neglected or refused to be paid, 
 with twenty per cent, damages thereon, for such detention, and shall 
 have execution therefor. 1 
 
 If any constable shall neglect or fail to return an execution within 
 ten days after its proper return day, or if the- demand, debt, or claim, 
 be wholly or in part lost, or if any special damage shall arise to any 
 party by reason of the neglect or refusal to act, or the misfeasance or 
 nonfeasance of any constable in the discharge of any official duty, the 
 party aggrieved may have his action in the circuit court, or, when the 
 amount claimed does not exceed one hundred dollars, before any justice 
 of the peace of the proper county, against such constable and his sure- 
 ties on the official bond of such constable, and shall recover thereon the 
 amount of said execution, with interest from the date of the judgment 
 upon which the original execution issued. 2 
 
 The responsibility of the sureties is held to be co-extensive with that 
 of the constable, and that they are liable whenever he is liable to a 
 party in whose favor an execution has been delivered to him ; hence an 
 action lies upon the constable's bond or instrument of security, against 
 the constable and his sureties, for the mere neglect to return an execu- 
 tion within the time prescribed by the statute after the return day 
 thereof, and this without showing any moneys collected. 3 
 
 (1) Rev. Stat. 332, Sec. 116. (2) Id. Sec. 118. (3) 10 Wend. 370. 
 
 24
 
 386 LIABILITY OF CONSTABLES AND SURETIES. [PART 4, 
 
 The remedy provided by the statute, does not deprive a party of his 
 common law remedy. 1 Therefore, where a constable has collected the 
 money on an execution, and neglects to pay it over to the person enti- 
 tled to receive the same, or to the justice who issued the execution, an 
 action of assumpsit for money had and received, will lie against the con- 
 stable to recover the amount collected, without any previous demand 
 being made. 2 So assumpsit lies against a constable for the amount of 
 goods sold by him, though the purchaser to whom they are delivered 
 refuses to pay for them. 8 
 
 Where a constable or other officer neglects his duty, or abuses the 
 trust reposed in him by law, to the injury or damage of another, an 
 action on the case lies against him in the circuit court, at the suit of the 
 party sustaining the injury. 4 Thus, if a constable neglect to serve a 
 writ or precept delivered to him, this action lies for the injury suffered 
 by such neglect or refusal. 5 
 
 (1) 10 Johns. 390. (2) 3 Johns. 182 ; 1 Wend. 634 ; 16 East, 274. 
 
 (3) 9 Johns. 96. . (4) 1 Scam. 237. (5) 1 Scam. 200.
 
 ClIAP. 4.] POWERS OF CONSTABLES IN CRIMINAL CASES. 387 
 
 CHAPTER IV. 
 
 OF THE POWERS AND DUTIES OF CONSTABLES IN CRIMINAL 
 
 CASES. 
 
 I. His POWERS GENERALLY. 
 II. OF ARRESTS. 
 
 I. HIS POWERS GENERALLY. 
 
 Rev. Stat. 328, Sec. 88. " It shall be the duty of every constable, 
 when any felony or breach of the peace shall be committed in his pres- 
 ence, forthwith to apprehend the person committing the same, and 
 bring him before some justice of the peace, to be dealt with according 
 to law ; to suppress all riots and unlawful assemblies, and to keep the 
 peace, and also to serve and execute all warrants, writs, precepts, and 
 other process to him lawfully directed ; and generally to do and per- 
 form all things appertaining to the office of constable within this State." 
 
 The office of constable is either ministerial in obeying warrants and 
 precepts, or is original as a conservator of the peace, at common law, 
 or by virtue of particular acts of the legislature. By the original and 
 inherent power which he possesses, he may, for treason, felony, breach 
 of the peace, and some misdemeanors less than felony, committed in his 
 view, apprehend the supposed offender, without warrant. 1 So if a fel- 
 ony has been committed, a constable, or any peace officer, may lawfully 
 apprehend a supposed offender, upon the information of others, without 
 any positive charge, or his own knowledge of the circumstances on 
 which the suspicion is founded. 2 In general, however, a constable can- 
 not of his own accord, and without an express charge or warrant, justify 
 
 (1) 1 Hale, 587. (2) 1 East's P. 0. 301 ; 6 T. R. 315; 6 Bin. 316.
 
 388 ARRESTS. [PART 4, 
 
 the arrest of a supposed offender, upon suspicion of his guilt, unless he 
 can show that a felony was committed by some person, as well as the 
 reasonableness of the suspicion that the party imprisoned is guilty. 1 
 
 So a constable may, without warrant, apprehend any one for a breach 
 of the peace, in his presence, and detain him until he can bring him 
 before a magistrate. 2 A constable may, also, upon his own view, law- 
 fully interpose to prevent a breach of the peace, or to quiet an affray ; 
 and if he or any of his assistants, whether commanded or not, be killed, 
 it will be murder in all who take part in the assistance, there being 
 either express or implied notification of the character in which he in- 
 terposed. 8 
 
 II. OP ARRESTS. 
 
 An arrest, in criminal cases, is the apprehending or detaining a per- 
 son, in order that he may be forthcoming to answer to a crime alleged 
 against him, or of which he is suspected to be guilty. 4 To this arrest 
 all persons without distinction are liable, when accused of a criminal 
 offense. The exemptions which exist in civil cases, here cease to ope- 
 rate. It is laid down that no person can be arrested unless charged 
 with such a crime as will at least justify holding him to bail when taken. 5 
 
 To constitute an arrest, the party must be actually touched by the 
 officer, or confined in a room, or submit himself, by words or actions, to 
 be in custody. The mere giving in charge, or causing him voluntarily 
 to appear before a magistrate, without the person being taken into 
 actual custody, will not amount to an arrest ; for bare words in this 
 respect, will not be of any avail. 6 But no manual touching of the 
 body, or actual force, is necessary, in order to constitute an arrest ; it 
 is sufficient if the party is within the power of the officer, and submits 
 to the arrest. 7 Yet, it is said to be better in all cases to touch the pris- 
 oner's person, in order to complete the arrest ; taking care, at the same 
 time, to use no greater force or constraint than is necessary for his safe 
 custody ; the degree of which will depend upon the particular circum- 
 
 (1) 4 Esp. 80; 1 Chit. Crim. L. 18. (2) Bale's P. C. 587; 3 Wend. 384. 
 
 (3) 1 Kast's P. C. 303. (4) 4 Bl. Com. 288; 1 Chit. Crim. L. 12. 
 
 (5) 4 Bl. Com. 289. 
 
 (6) 1 Chit. Crim. L. 48; Davis' Just. 64; 1 East's P. C. 330. 
 
 (7) Barb. Crim. L. 531, and authorities cited.
 
 CHAP. 4.] ARRESTS. 389 
 
 .stances of the case as, the character of the party, the nature of the 
 offense charged, the state of the country, &C. 1 
 
 As no time is prescribed in the warrant within which it is to be exe- 
 cuted, it continues in force until fully executed, during the term of office 
 of the magistrate who granted it. And it is said that a person may be 
 twice apprehended under it, if the purposes of justice have not been 
 effected. In case of a negligent escape, the prisoner may be retaken. 
 Otherwise, however, if the escape be voluntary. It is unquestionably the 
 duty of the officer to act according to the exigency of his process, which 
 is, "forthwith to take the person accused," if practicable. If the officer 
 should willfully neglect his duty in this respect, he would doubtless 
 render himself liable to be punished criminally. And should any per- 
 son having charge of such process, misconduct himself by keeping it 
 back, to be afterwards made use of for vexatious or improper purposes, 
 he may subject himself to an action for a malicious prosecution, at the 
 suit of the party aggrieved. 2 
 
 (1) 1 Nun. & Walsh, 203. (2) See Barb. Crim. L. 532. 
 

 
 390 CONSTABLE'S FEES. [PART 4, 
 
 CHAPTER V. 
 
 OF FEES AND COMPENSATIONS ALLOWED TO CONSTABLES 
 IN BOTH CIVIL AND CRIMINAL CASES. 
 
 CONSTABLE'S FEES IN CRIMINAL CASES. 
 
 Rev. Stat. 247, Sec. 18. "For serving a warrant on each person 
 named therein, twenty-five cents. 
 
 Mileage, to be computed from the office of the justice who may have 
 issued the same, to the place of service, for each mile, six and a fourth 
 cents. 
 
 Serving each subpoena, twelve and a half cents. 
 
 Mileage from the justice's office to the residence of the witness, per 
 mile, six and a fourth cents. 
 
 Taking each person to jail when committed, twenty-five cents. 
 
 Mileage from the justice's office to the jail, per mile, six and a fourth 
 cents. 
 
 For summoning jury in case of assault and battery, fifty cents. 
 
 But in all cases where the defendant shall be acquitted, or otherwise 
 discharged, without the payment of costs, the constable shall not be 
 entitled to any fees." 
 
 CONSTABLE S FEES IN CIVIL CASES. 
 
 Rev. Stat. 247, Sec. 19. " Serving and returning each warrant 
 or summons, twenty-five cents. 
 
 Serving and returning each subpoena, twelve and a half cents. 
 Serving and returning execution, fifty cents.
 
 CHAP. 5.] CONSTABLE'S FEES. 391 
 
 Advertising property for sale, twenty-five cents. 
 
 Commission on sales not exceeding ten dollars, ten per centum, 
 and on all sales exceeding that sum, six per centum. 
 
 Attending trial before a justice in each jury cause, twenty-five cents. 
 
 Serving jury warrant in each case, fifty cents. 
 
 Each day's attendance on the circuit court, when required to be 
 paid out of the county treasury, one dollar. 
 
 Mileage, when serving a warrant, summons or subpoena, from the 
 justice's office to the residence of the defendant or witness, per mile, 
 five cents. 
 
 For serving warrant on appraisers in cases of estrays, &c., twenty- 
 five cents." 
 
 

 
 392 APPRENTICES. PART 5, 
 
 PART FIFTH. 
 
 COMMON FORMS FOB THE TRANSACTION OF BUSINESS. 
 
 I. APPRENTICES. 
 
 II. ARBITRATIONS AND AWARDS. 
 
 III. AGREEMENTS. 
 
 IV. ASSIGNMENTS. 
 
 V. BILLS OF EXCHANGE AND PROMISSORY NOTES. 
 
 VI. BILLS OF SALE. 
 
 VII. BONDS. 
 
 VIII. COPARTNERSHIP. 
 
 IX. CONVEYANCES. 
 
 X. LEASES. 
 
 XI. POWERS OF ATTORNEY. 
 
 XII. KELEASES. 
 
 XIII. WILLS. 
 
 I. APPRENTICES. 
 Indenture of Apprenticeship of a Minor, with the consent of the father. 
 
 THIS INDENTURE, made and entered into this fast day of June, A. D. 
 1855, by and between A. B. a minor, of the age of eighteen years on 
 the eighth day of March last, of his own free will and accord, and by 
 and with the consent of E. B., his father, of the county of McHenry, 
 and State of Illinois, of the one part, and C. D. of Waukegan, in the 
 county of Lake and State aforesaid, of the other part, witnesseth : 
 
 That the said A. B. hath placed and bound himself apprentice to the 
 said C. D., to learn the trade of a Painter, and to dwell with the said 
 C. D., continue with and serve him for the term of three years from the 
 date hereof, until the said A. B. shall have attained the age of twenty- 
 one years, to wit, until the eighth day of March, A. D. 1858. And the 
 said A. B. on his part, hereby agrees, that during the said term, he
 
 PART 5.] APPRENTICES. 393 
 
 * 
 
 will well and faithfully serve the said C. D., keep his secrets, and obey his 
 lawful commands ; that he will do no hurt or damage to his said master 
 in his goods, estate, or otherwise, nor willingly suffer any to be done 
 by others, and whether prevented or not, shall forthwith give notice 
 thereof to his said master ; that he will not inordinately embezzle or 
 waste the goods of his said master, nor lend them without his consent, 
 to any person or persons whatsoever ; that he will not play at cards, 
 dice, or any other unlawful games ; that he will not contract matrimony 
 during said term, or haunt or frequent groceries, tippling houses, or 
 places of gaming ; and that he will not at any time, by day or night, 
 depart or absent himself from the service of his said master, without his 
 leave, but will, in all things, as a good and faithful apprentice, demean 
 and behave himself to his said master during said term. 
 
 And the said C. D. on his part, hereby agrees, in consideration of 
 one dollar to him paid, the receipt whereof is hereby acknowledged, to 
 teach and instruct the said A. B. in the art of Painting, or otherwise 
 cause him to be well and sufficiently instructed in said art ; that he will 
 find and allow unto the said A. B., meat, drink, washing, lodging and 
 apparel, both linen and woolen, and all other things necessary in sick- 
 ness and in health, meet and convenient for such an apprentice, during 
 the term aforesaid. 
 
 And the said C. D. hereby further agrees, in pursuance of the stat- 
 ute in such case made and provided, that he will teach, or cause to be 
 taught, the said A. B., within said term, to read and write, and the 
 ground rules of arithmetic ; and at the expiration of said term of service, 
 will give unto the said A. B., a new bible, and two new suits of clothes 
 suitable to his condition in life. 
 
 In witness whereof, the said A. B. and the said E. B., father of the 
 said A. B. and the said C. D., have to this and one other indenture of 
 the same tenor and date, set their hands and seals the day and year 
 first above written. A. B. [SEAL.] 
 
 Signed and sealed in } E. B. [SEAL.] 
 
 presence of C. D. [SKAL.] 
 
 Form of Indorsement on Indenture of Apprenticeship, when father 
 covenants for faithful performance of his son. 
 
 In consideration of the within mentioned agreements of the said C. 
 D., I do hereby separately covenant and agree with the said C. D.,
 
 4 APPRENTICES. [PART 5. 
 
 
 
 that the within named A. B. shall well and faithfully perform and 
 observe all the stipulations on his part within mentioned, to which true 
 and faithful performance and observance, I bind myself firmly by these 
 presents. 
 
 In witness whereof, I have hereunto set my hand and seal, the day 
 and year first within mentioned. 
 
 Signed and sealed in ") E. B. [SEAL.] 
 
 presence of 
 
 S. C. J 
 
 Form of Indenture binding poor child, by Overseer of Poor, 
 under township organization. 
 
 THIS INDENTURE, made and entered into on the first day of June, 
 A.D. 1855, by and between Francis H. Porter, Overseer of the Poor 
 of the town of Waukegan, in the county of Lake, for the year 1855, of 
 the first part, and Samuel I. Bradbury, of said town, of the second 
 part, witnesseth : 
 
 Whereas it hath been made to appear to said overseer of the poor, 
 that John Jones is the minor child of poor parents, who have become 
 chargeable to said town, as having a lawful settlement therein, (or, 
 " who are supported," &c., stating such a case as comes within the 
 law,) therefore the said overseer of the poor, by virtue and conformity 
 to the law in such case made and provided, hath bound the said John 
 Jones, who is now of the age of fifteen years, to the said Samuel I. 
 Bradbury, as an apprentice to learn the art or trade of a Printer ; and 
 as such apprentice to dwell with and serve the said Samuel I. Brad- 
 bury, from the date hereof, until the said John Jones shall have 
 attained the age of twenty-one years, which will be on the ninth of May, 
 1861. And it is hereby agreed and understood, that the said John 
 Jones shall well and faithfully serve the said Samuel I. Bradbury 
 during the said term, and shall obey all his lawful and reasonable 
 commands ; that he will not willingly do or suffer to be done, any harm 
 or damage to the goods, property or interest of the said master ; that 
 he will not, without leave, absent himself from the service of his said 
 master, but that he will in all things during the said term, demean and 
 behave himself as a good and faithful apprentice to his said master. 
 
 And the said Samuel I. Bradbury doth, on his part, hereby covenant 
 and agree, in consideration of the undertaking and binding aforesaid, 
 to teach and instruct the said John Jones in the trade of a Printer, or 
 otherwise cause him to be well and sufficiently taught and instructed
 
 PART 5.] APPRENTICES. 395 
 
 in said trade ; that ho will furnish and provide, or cause to be found, 
 furnished, and provided unto the said John Jones, meat, drink, lodg- 
 ing, and suitable and proper clothing, in sickness and in health, and 
 medicine, medical attendance and nursing, in sickness, during the said 
 term. 
 
 And the said Samuel 1. Bradbury further covenants and agrees 
 that he will teach, or cause to be taught, the said John Jones to read 
 and write, and the ground rules of arithmetic ; and at the expiration 
 of said term, will pay to him, the said John Jones, the sum of one 
 hundred dollars, a new bible, and two complete suits of new wearing 
 apparel suitable to his condition in life, (or such other instruction, 
 benefit or allowance as may be agreed upon.} 
 
 In witness whereof, the said parties have hereto set their hands and 
 seals, the day and year first above written. 
 
 FRANCIS H. POUTER, [SEAL.] 
 Overseer of the Poor of the town of Waukegan. 
 SAMUEL I. BRADBURY. [SEAL.] 
 
 Certificate of Approbation of County Judge, of the binding of an 
 infant who has no parents or guardian in the State. 
 
 I, the undersigned, judge of the county court, within and for the 
 county of Randolph, and State of Illinois, do hereby approve of the 
 binding of A. B., the within named infant, by himself to the within 
 named C. D., according to the statute in such case made and provided. 
 
 Given under my hand this first day of June, A. D. 1855. 
 
 J. M., County Judge. 
 
 Indenture of Apprentice by two Overseers of the Poor, of a minor. 
 
 THIS INDENTURE, made and entered into tiai\$ first day of June, A.D. 
 1855, by and between A. B. and C. D., overseers of the poor, (or 
 "justices of the peace,") of the county of Randolph, in the State of 
 Illinois, of the one part, and E. F. of the same county, of the other 
 part, witnesseth : 
 
 That the said overseers of the poor, (or "justices of the peace,") 
 by virtue of the sixth section of the sixth chapter of the revised statutes 
 relating to apprentices, and by and with the consent of the judge of 
 probate of said Randolph county, have placed, and by these presents 
 do place and bind out as an apprentice, a poor child, named Gr. II., of
 
 396 APPRENTICES. [PART 5. 
 
 said county, of the age of fifteen years, the said G. H. being, &C., 1 to 
 the said E. F., to learn the Blacksmiths' trade, in which the said E. F. 
 is engaged, and after the manner of an apprentice to dwell with, and 
 serve the said E. F. from the date hereof, until the said G. H. shall 
 have attained the age of twenty-one years, to wit, on the ninth day of 
 May, 1861. 
 
 And it is hereby agreed and understood, that the said G. H. shall 
 well and faithfully serve the said E. F., during the said term, keep 
 his secrets, and obey his lawful commands ; shall do no hurt or damage 
 to his said master in his goods, estate or otherwise, nor willingly suffer 
 any to be done by others, and whether prevented or not, shall forthwith 
 give notice thereof to his said master ; shall not inordinately embezzle 
 or waste the goods of his said master, nor lend them, without his 
 consent, to any person or persons whatsoever ; shall not play at any 
 unlawful game, contract matrimony, haunt or frequent any grocery, 
 tippling or gaming house ; nor at any time by day or night depart or 
 absent himself from the service of his said master, without his leave, 
 but shall in all things, as a good and faithful apprentice, demean and 
 behave himself to his said master. 
 
 And the said E. F. on his part, hereby agrees, in consideration of 
 one dollar to him paid, the receipt whereof is hereby acknowledged, to 
 teach and instruct the said G. H. in the Blacksmiths' trade, or otherwise 
 cause him to be well and sufficiently instructed in said trade ; that he 
 will find and allow unto the said G. H., meat, drink, washing, lodging, 
 and apparel suitable for working and holy-days, and all other things 
 necessary in sickness and in health, and meet and convenient for such 
 an apprentice, during the term aforesaid. 
 
 And the said E. F. hereby further agrees, in pursuance of the statute 
 in such case made and provided, that he will teach or cause to be taught 
 the said G. H., within said term, to read and write, and the ground 
 rules of arithmetic ; and at the expiration of said term of service, will 
 give unto the said G. H. a new bible, and two new suits of clothes, 
 suitable to his condition in life. 
 
 In witness whereof, the said A. B. and C. D., and the said E. F., 
 have to this, and one other indenture of the same tenor and date, set 
 their hands and seals, the day and year first above written. 
 
 Signed and sealed in ^ A. B. [SEAL.] 
 
 presence of C. D. [SEAL.] 
 
 E. F. [SEAL.] 
 
 (1) See Rev. Stat. p. 52, Sec. 6.
 
 PART 5.] ARBITRATIONS AND AWARDS. 397 
 
 II. ARBITRATIONS AND AWARDS. 
 
 All persons having the requisite legal capacity, may, by an instru- 
 ment in writing, to be signed and sealed by them, and attested by at 
 least one witness, submit to one or more arbitrators, any controversy 
 existing between them, not in suit, and may in such submission agree 
 that a judgment of any court of record, competent to have jurisdiction 
 of the subject matter, to be named in such instrument, shall be rendered 
 upon the award made pursuant to such submission. 1 
 
 General Form of a Submission, to be made a Rule of Court. 
 
 WHEREAS divers disputes and controversies have arisen and are now 
 depending and unsettled, between A. B., of Waukegan, in the county 
 of Lake, and State of Illinois, of the one part, and 0. D., of said 
 Waukegan, of the other part : Now, therefore, for the purpose of set- 
 tling and determining such disputes and controversies, it is hereby mu- 
 tually agreed and understood by and between the said parties, that 
 the same shall be referred and submitted to the arbitrament and deter- 
 mination of E. F., Gr. H. and J. K., all of said county and State, or 
 any two of them ; and the said arbitrators, or any two of them, shall 
 make and publish their award in writing, under their hands and seals, 
 and deliver the same to the parties, or to either of them, who shall de- 
 sire the same on or before the first day of July next ; and it is hereby 
 further agreed and understood by and between the said parties, that this 
 submission shall be made a rule of the circuit court within and for the 
 county of Lake aforesaid. 
 
 In witness whereof, the said parties have to this and one other instru- 
 ment of the same tenor and date, set their hands and seals, this first 
 day of June, A. D. 1855. 
 
 Signed and sealed in ^ A. B. [SEAL.] 
 
 presence of C. D. [SEAL.] 
 
 Short Form of General Submission. 
 
 We, the undersigned, hereby mutually agree to submit all our mat- 
 ters in difference, of every name or nature, to the award and determi- 
 
 (1) Rev. Stat. 56, Sec. 1.
 
 398 ARBITRATIONS AND AWARDS. [PART 5. 
 
 nation of E. F., L. M. and S. T., for them to hear and determine the 
 
 same, and make their award in writing, on or before the day of 
 
 next. 
 
 Witness our hands, this day of , 18 . 
 
 In presence of "> A. B. 
 
 G. H. f C. D. 
 
 Arbitration Bond, to be mutual. 
 
 KNOW ALL MEN BY THESE PRESENTS, That I, A. B., of Waukegan, 
 in the county of Lake, and State of Illinois, am held and firmly bound 
 unto C. D., of said Waukegan, in the sum of one thousand dollars, to 
 be paid to the said C. D., his executors, administrators and assigns, 
 to which payment well and truly to be made, I do bind myself, my 
 heirs, executors and administrators, and every of them firmly by these 
 presents. 
 
 Sealed with my seal, dated the first day of June, A. D. 1855. 
 
 The condition of this obligation is such that if the above bound A. 
 B., his heirs, executors and administrators, shall in all things well and 
 truly stand to, abide, perform, observe, fulfill, and keep the award, 
 order, arbitrament and determination of E. F., Gr. H, and J. K., all 
 of said county and State, arbitrators indifferently selected as well on 
 the part and behalf of the above bound A. B. as of the above named 
 C. D., to arbitrate, award, order, adjudge, and determine, of, and con- 
 cerning all, and all manner of actions, suits, cause and causes of 
 action, bills, bonds, specialties, covenants, contracts, promises, judg- 
 ments, executions, accounts, debts, quarrels, controversies, damages, 
 trespasses and demands whatsoever, both in law, equity, or otherwise, 
 which, at any time or times heretofore, have been had, made, moved, 
 brought, commenced, sued, prosecuted, committed, done, suffered, or 
 depending and unsettled by or between the said parties ; so that the 
 said award be made in writing, under the hands and seals of the 
 said arbitrators, or any two of them, and ready to be delivered to the 
 said parties in difference, or such of them as shall desire the same, on 
 or before the first day of August next ; then this obligation to be void, 
 otherwise to remain in full force and effect. And the above named A. 
 B. doth agree and desire that this his submission may be made a rule 
 of the circuit court within and for the county of Lake, and State 
 aforesaid. 
 
 Signed and sealed in presence of) A B f 1
 
 PART 5.] ARBITRATIONS AND AWARDS. 390 
 
 Certificate of Oath of Arbitrators. 
 
 STATE OF ILLINOIS, ") 
 Lake COUNTY, ) ss ' 
 
 I, Amos S. Waterman, a justice of the peace of said county, do cer- 
 tify that E. F., G. H., and J. K., named as arbitrators in the foregoing 
 arbitration bond, before proceeding to hear any testimony in the 
 cause therein mentioned, made oath that they would faithfully and fairly 
 hear, examine and determine the cause according to the principles of 
 equity and justice, and make a just and true award to said court accord- 
 ing to the best of their understanding. 
 
 Given under my hand and seal this tenth day of June, A. D. 1855. 
 
 AMOS S. WATERMAN. [SEAL.] 
 
 Award of Arbitrators. 
 
 We, the subscribers, arbitrators appointed by submission, (or "rule 
 of court," or " arbitration bond,") hereunto annexed, having notified 
 and met the parties, and heard their several allegations, proofs and ar- 
 guments, and duly considered the same, do award and determine that the 
 within named A. B. shall recover of the within named C. D., the sum 
 of dollars, and that the same shall be in full of all matters 
 
 within referred to us. E. F. 
 
 G. H. 
 J. K. 
 
 Notice to the adverse party before Judgment is entered upon an award 
 in the Circuit Court. 
 
 To A. B. : 
 
 Sir : I send you herewith a copy of the award made the first day 
 of July, A. D. 1855, by E. F., G. H. and J. K., of the county of 
 Lake, and State of Illinois, on a reference to them of all disputes and 
 controversies existing between us prior to ike first day of June, A. D. 
 1855, by our submission of that date ; and I hereby notify you to 
 appear on the first day of the next term of the Lake county circuit 
 court, to be holden at Waukegan, within and for said Lake county, at 
 the court house, on the second Monday of October next, and show 
 cause, if you can, why judgment should not then and there be entered 
 by said circuit court against you on the said award, agreeably to the 
 tenor and effect thereof. 
 
 July 1, 1855. C. D. 
 
 m
 
 400 AGREEMENTS. [PART 5. 
 
 III. AGREEMENTS. 
 General Form of Agreement. 
 
 THIS AGREEMENT, made this twenty-fourth day of September, one 
 thousand eight hundred and fifty-five, between A. B., of the town of 
 Waukegan, and State of Illinois, of the first part, and C. D., of the 
 village of Hainesville in said county and State, of the second part 
 
 Witnesseth, that the said A. B., in consideration of the covenants on 
 the part of the party of the second part hereinafter contained, doth cov- 
 enant and agree to and with the said C. D., that (Jiere insert the agree- 
 ment on the part of A. ./?.) 
 
 And the said C. D., in consideration of the covenants on the part of 
 the party of the first part, doth covenant and agree to, and with the 
 said A. B., that (Jier'e insert the agreement on the part of C. D.) 
 
 In witness whereof, we have hereunto set our hands and seals, the 
 day and year first above written. 
 
 Signed, sealed and delivered "| A. B. [SEAL.] 
 
 in the presence of ^ C. D. [SEAL.] 
 
 L. M. 
 
 Agreement to Sell Land. 
 
 ARTICLES OF AGREEMENT, made and entered into the tenth day of 
 June, A. D. 1855, between A. B. of, &c., of the first part, and C. D. 
 of, &c. , of the second part, witnesseth : 
 
 That the said party of the first part, in consideration of the covenants 
 and agreements hereinafter contained on the part of the said party of 
 the second part, agrees to sell unto the said party of the second part, 
 all that piece or parcel of land bounded and described as follows : (here 
 describe the premises) for the sum of eight hundred dollars, in manner 
 following, to wit : three hundred dollars on the execution of these 
 presents, two hundred and fifty dollars on the tenth day of December 
 next, and the remaining sum of two hundred and fifty dollars on the 
 tenth day of June, A. D. 1856, with the lawful interest from this 
 date on each payment at the time of making the same ; and to pay all 
 taxes assessed on said premises during the continuance of this contract. 
 
 And the said party of the first part also agrees that on receiving the 
 said sum of eight hundred dollars at the time, and in the manner above 
 mentioned, he will execute and deliver to the said party of the second 
 part, at his own proper cost and expense, a good and sufficient deed,
 
 PART 5.] BONDS. 417 
 
 Condition of Bond for Payment of Money at different times. 
 
 The condition of this obligation is such that if the above bound A. 
 B., his heirs, executors or administrators, shall well and truly pay, or 
 cause to be paid, unto the said C. D., his executors, administrators or 
 assigns, the sum of two thousand dollars, in manner following, to wit : 
 Jive hundred dollars on the first day of January next, five hundred 
 dollars on \\\Q first day of March next ensuing, five hundred dollars on 
 the first day of July, A. D. 1856, and five hundred dollars on the 
 first day of January, A. D. 1857, then this obligation to be void ; but 
 if default be made in the payment of either of the said sums on the 
 day specified for the payment of each, then this bond shall be and re- 
 main in full force and effect. 
 
 Signed and sealed in presence of ) A T> r 
 
 A. B. [SEAL.] 
 
 Condition of Bond for Conveyance of Real Estate. 
 
 The condition of this obligation is such, that whereas the said A. B. 
 has this day sold unto the said C. D., (here describe the land,) for the 
 sum of three thousand dollars, one third part of which sum the said 
 C. D. has paid unto the said A. B. in hand, and for the remainder 
 thereof has given two promissory notes, bearing even date with these 
 presents, for the sum of one thousand dollars each, signed by the said 
 C. D., and payable to the said A. B. or order, one on \hefirst day of 
 January, A. D. 1856, and one on the first day of January, A. D. 
 1857, each bearing six per cent, interest: Now if the said A. B., 
 upon the payment of the said notes on the day specified and appointed 
 in each for the payment thereof, by the said C. D., shall make, execute 
 and deliver unto the said C. D., or his assigns, a warranty deed of the 
 said premises, containing the usual covenants, then this obligation is to 
 be void, otherwise to be and remain in full force and effect. 
 
 Signed and sealed in presence of) A w r 
 
 A. 15. ^SLAL.J 
 
 26
 
 418 COPARTNERSHIP. [PART 5. 
 
 VIII. COPARTNERSHIP. 
 
 
 
 Articles of Copartnership. 
 
 ARTICLES OF AGREEMENT, made and entered into this first day of 
 June, A. D. 1855, by and between A. B. and C. D., both of Wauke- 
 6an, in the county of Lake, and State of Illinois, wituesseth : 
 
 First, The said parties have agreed, and by these presents do agree, 
 to become partners in trade, and in buying, selling, vending and 
 retailing all sorts of goods, wares, and merchandise, which copartnership 
 shall continue for the term of three years from this date. And the 
 said A. B. and C. D. have each contributed and delivered, as his 
 proportion of the stock in trade, the sum of five thousand dollars, to 
 be laid out, expended and employed in the management of their said 
 business, for their best advantage and profit. And it is hereby agreed 
 between the said parties, that [the said A. B. shall immediately proceed 
 to Philadelphia for the purchase and forwarding by the way of New 
 Orleans, a suitable quantity of dry goods, and that the said C. D. 
 shall immediately proceed to St. Louis and New Orleans for the pur- 
 chase and forwarding of groceries and such other articles of stock as 
 may be most advantageously purchased at those places, each party to 
 accomplish the business thus specified as soon as may be.] 
 
 Second, The said parties further agree to and with each other, that 
 neither of them will, during the term of copartnership aforesaid, exercise 
 or follow the business herein before specified, or any other business, to 
 their private benefit and advantage ; but shall and will, at all times 
 during said term, if they shall so long live, devote their exclusive 
 attention, and exercise their best endeavors in every possible way and 
 manner, to promote the joint interest, benefit, advantage and profit of 
 the copartnership. And it is hereby mutually agreed, that all the 
 necessary expenses of said copartnership business shall be equally 
 borne and paid by said parties ; that all the gain, profit, and increase 
 arising from said business shall be equally divided between the said 
 parties ; and that all losses that may arise in said joint trade, by reason 
 of bad debts, ill commodities, or otherwise, not chargeable to the negli- 
 gence or inattention of either party, shall be borne and paid equally 
 between them. 
 
 Third, It is mutually agreed by the said parties, that there shall be 
 kept from time to time, and at all times during said term, perfect, just, 
 true and propar books of account, wherein each of said parties shall
 
 PAKT 5.] COPARTXEMBI*. 410 
 
 duly enter and set down as well all moneys by him received, paid, 
 expended and laid out, in and about the management of said baaineag, 
 or to either of themselves, or for their private account, as also all 
 goods, wares or merchandise, either of them may desire for their 
 individual benefit, and all other matters and things whatsoever, to the 
 said joint business and management thereof in any wise belonging or 
 appertaining, which said books shall be used in common by said parties, 
 ao that either of them may have free access thereto. 
 
 F "rth, It is further mutually agreed by the said parties, that they 
 will, as often as once in three months, make, yield and render, each with 
 the other, a true, just and perfect account of all profit and increase 
 by them, or either of them, made, and of all losses by them, or either of 
 them, sustained, and also of all payments, receipts and disbursements 
 whatsoever, by them, or either of them, made or received, and of all 
 other things, by them, or either of them, acted, done or suffered in 
 their said joint business ; and the same account being so made, shall 
 and will clear, adjust, pay and deliver, each unto the other, at the 
 time of making such account, their equal shares of the profits BO Bade 
 as aforesaid ; and at the end of said term, or sooner, should the partial 
 so determine, they will make a true and just account of all things as 
 aforesaid, and divide the profits aforesaid, and in all things well and 
 truly adjust the same ; and upon such settlement and adjustment, all 
 and every the stock and stocks, as well as the gain and increase thereof 
 which shall appear to be remaining, whether consisting of money, debts, 
 goods, wares or merchandise, shall be equally divided between the 
 said parties. 
 
 Neither of said parties shall sell on credit any goods, wares, 
 or merchandise of the said joint stock to any person or persons, agamat 
 the express wish or consent of the other, verbally or in writing ; or 
 release or compound any debt or demand due or coming to them OB 
 account of said joint business, without the consent of the other ; or use 
 his own or the copartnership name, without die consent of the other, 
 as promisor, obligor, covenantor, indorser. drawer or acceptor, or as 
 bail or surety in any way in any transaction, wherein the said firm, 
 or either of them, are not interested on their partnership or individual 
 account ; nor shall either of the said parties, without the consent of 
 the other, in writing first had and obtained, sell or assign his share 
 or interest in the said joint trade and business, to any person or persona 
 whatsoever. 
 
 In testimony whereof, the said parties hav .nd one other
 
 420 COPARTNERSHIP. [PART 5- 
 
 instrument of the same tenor and date, interchangeably set their hands 
 and seals, the day and year first above written. 
 
 Signed and sealed in ) A. B. [SKAL.] 
 
 presence of j C. D. [SEAL.] 
 
 Agreement to continue a Partnership by Indorsement thereon. 
 
 It is hereby agreed and understood between the within mentioned 
 parties, that their joint trade, as specified within, shall be continued for 
 a further term of two years on the same terms, and subject to the 
 same restrictions and requirements as within specified and expressed. 
 
 Witness our hands and seals, this first day of August, A. D. 1855. 
 
 Signed and sealed in 1 A. B. [SEAL.] 
 
 presence of j C. D. [SEAL.] 
 
 Agreement for a Law Partnership. 
 
 ARTICLES OF AGREEMENT, made and entered into this first day of 
 June, A. D. 1855, by and between A. B. and C. D., of Waukegan, 
 in the county of Lake, and State of Illinois, witnesseth : 
 
 That the said parties have this day mutually agreed to enter into, 
 and do hereby enter into, a copartnership, under the name and style 
 of B. & D., in the practice of Law generally, and particularly in the 
 circuit and district courts of the United States, and the supreme and 
 circuit courts of the State of Illinois ; and that their office shall be at 
 Waukegan, aforesaid. 
 
 And the said parties do hereby mutually agree, that they will give 
 their sole and undivided attention to the business of their profession, 
 and constant attendance at their said office, when not necessarily called 
 elsewhere on professional business, or absent for any stated time by 
 consent of the other ; that they will incur no liabilities in the name of 
 said firm, or obtain any credit, unless when necessary so to do, in the 
 business of said firm. 
 
 And it is further mutually agreed by the said parties, that they will 
 jointly investigate, prepare and argue all causes in which they may 
 be engaged, whensoever the same may be necessary, and will equally 
 share all the profits and expenses incident to said business. 
 
 And it hereby further agreed, that this copartnership shall continue 
 for the term of three years, from the date hereof, unless sooner termin- 
 ated by mutual consent. 
 
 In witness whereof, &c.
 
 PART 5.] COPARTNERSHIP. 421 
 
 Agreement to Dissolve a Copartnership. 
 
 ARTICLES OF AGREEMENT, made and entered into this first day of 
 June, A. D. 1855, by and between A. B. and C. D., now partners in 
 trade in the city of Waukegan, in the county of Lake and State of 
 Illinois, witnesseth : 
 
 That whereas the said partners, on the first day of June, A. D. 1852, 
 by articles of agreement of that date, entered into a copartnership in 
 trade, which has continued until the present time, and the said parties 
 being desirous that the same should cease on the thirty-first instant, it 
 is hereby mutually agreed and understood that said, copartnership do 
 expire, by limitation, on the thirty-first day of June instant ; that the 
 said parties will give public notice of such intention in the newspapers 
 of said city, requiring all persons indebted to make immediate settle- 
 ment, by note or otherwise, and requesting all persons having claims 
 to present them for settlement ; that the stock now on hand be adver- 
 tised and sold at retail, at prime cost for cash, and whatever may remain 
 on said thirty-first day of June, shall be sold at public auction to the 
 highest bidder, on such terms as these parties may then and there de- 
 termine ; that the said A. B. shall, immediately after such sale, proceed 
 to the settlement of all claims due to and from said firm, and for 
 that purpose, and that only, is hereby empowered to use the name of 
 said firm, whenever it may be necessary to institute suits at law, or in 
 equity ; and finally, after such settlement, or within six months from the 
 date hereof, the said A. B. and C. D. will equally divide the assets of 
 ,<aiil firm remaining on hand. 
 
 In witness whereof, &c., (as in articles of copartnership.) 
 
 Agreement for a Limited Law Partnership. 
 
 ARTICLES OF AGREEMENT, made and entered into this first day of 
 June, A. D. 1855, by and between A. B. of Waukegan, in the county 
 of Lake and State of Illinois, and C. D., of the city of Chicago, in 
 the county of Cook and State aforesaid, witnesseth : 
 
 That the said parties hereby agree to enter into a law partnership in 
 the business of the circuit court of said county of Lake, for the tcnn 
 of three years from this date, upon the terms and conditions hereinafter 
 expressed. 
 
 And the said A. B., on his part, hereby agrees with the said C. D., 
 that he will regularly attend the circuit court of said county of I^dke,
 
 422 CONVEYANCES. [PART 5. 
 
 and will argue, when required by said C. D., all questions of law or 
 fact which may arise in any suit commenced by the said C. D., or which 
 he may be employed to defend, and should any such suit be carried to 
 the supreme court of said State by appeal or writ of error, then and 
 there to manage, according to the best of his abilities, all such suits. 
 
 And the said C. D., in consideration of the agreements of the said 
 A. B., on his part, hereby agrees that in all suits which he may com- 
 mence in said county of Lake, or which he may be employed to defend, 
 he will cause all due preparation to be made bj the summoning of the 
 necessary witnesses, and the examination of such legal authorities hav- 
 ing a bearing upon the question at issue, as may be within his reach, 
 and prepare a brief of the same for the use of said A. B. And he 
 hereby further agrees, for the consideration aforesaid, that he will collect 
 and pay over to the said A. B., one half of all the fees accruing in 
 such litigated suits, in said circuit court, and all fees accruing by reason 
 of any such suit being carried to the supreme court ; and that in the 
 collection and payment of such fees, he will use all due diligence. 
 
 In testimony, &c. 
 
 IX. CONVEYANCES. 
 
 Warranty Deed. 
 
 THIS INDENTURE, made this first day of October, in the year of 
 our Lord one thousand eight hundred and fifty-five, between A. B. and 
 C. B. his wife, of the county of Cook and State of Illinois, of the 
 first part, and E. F., of the county and State aforesaid, party of the 
 second part, witnesseth : 
 
 That the said party of the first part, for and in consideration of the 
 sum of one thousand dollars in hand paid -by the said party of the 
 second part, the receipt whereof is hereby acknowledged, and the said 
 party of the second part forever released and discharged therefrom, have 
 granted, bargained, sold, remised, released, aliened and confirmed, and 
 by these presents do grant, bargain, sell, remise, release, alien and con- 
 firm, unto the said party of the second part, and to his heirs and .assigns 
 forever, all of the following described premises, situate, lying and being 
 in the county of Cook and State of Illinois, (here describe tltc. 
 premises.) 
 
 Together with all and singular the hereditaments and appurtenances
 
 PART 5. CONVEYANCES. 423 
 
 thereunto belonging, or in any wise appertaining ; and the reversion 
 and reversions, remainder and remainders, rents, issues and profits 
 thereof; and all the estate, right, title, interest, claim or demand what- 
 soever of the said party of the first part, either in law or equity, of, in 
 and to the above bargained premises, with the hereditaments and appur- 
 tenances ; to have and to hold the said premises, above bargained and 
 described, with the appurtenances, unto the said party of the second 
 part, his heirs and assigns forever. And the said A. B., for himself, 
 his heirs, executors and administrators, doth covenant, bargain and 
 agree, to and with the said party of the second part, his heirs and as- 
 signs, that at the time of the ensealing and delivery of these presents, 
 the said A. B. and C. B. are well seized of the premises above con- 
 veyed, as of a good, sure, perfect, absolute and indefeasible state of 
 inheritance in the law in fee simple, and have good right, full power 
 and lawful authority to grant, bargain, sell and convey the same in man- 
 ner and form aforesaid ; and that the same are free and clear of all 
 former and other grants, bargains, sales, liens, judgments, taxes, assess- 
 ments and encumbrances of what kind or nature soever ; and the above 
 bargained premises, in the quiet and peaceable possession of the said 
 party of the second part, his heirs and assigns, against all and every 
 person or persons lawfully claiming or to claim the whole or any part 
 thereof, shall and will warrant and forever defend. 
 
 In witness whereof, the said party of the first part have hereunto set 
 their hands and seals, the day and year first above written. 
 
 Sealed and delivered in | A. B. [SEAL.] 
 
 presence of j C. B. [SEAL.] 
 
 Quit Claim Deed. 
 
 Tins INDENTURE, made this first day of October, in the year of our 
 Lord one thousand eight hundred and fifty-five, between A. B. and 
 C. B. his wife, of the county of Lake and State of Illinois, party of 
 the first part, and E. F., of the said county and State, party of the 
 second part, witnesseth : 
 
 That the said party of the first part, for and in consideration of one 
 dollar in hand paid by the said party of the second part, the receipt 
 whereof is hereby acknowledged, and tho said party of the second part 
 forever released and discharged therefrom, have remised, released, con- 
 veyed and quit-claimed, and by these presents do remise, release, con- 
 vey and quit-claim unto the said party of the second part, his heirs and
 
 424 CONVEYANCES. [PART 5. 
 
 assigns forever, all the right, title, interest, claim and demand, which 
 the said party of the first part have in and to the following described 
 lot, piece or parcel of land, to wit : (Jiere describe the premises.) 
 
 To have and to hold the same, together with all and singular the 
 appurtenances and privileges thereunto belonging, or in any wise apper- 
 taining, and all the estate, right, title, interest and claim whatever, of 
 the said party of the first part, either in law or equity, to the onlj 
 proper use, benefit and behoof of the said party of the second part, his 
 heirs and assigns forever. 
 
 In witness whereof, the said party of the first part hereunto set their 
 hands and seals, the day and year first above written. 
 
 Signed, sealed and delivered } A. B. [SEAL.] 
 
 in presence of C. B. [SEAL.] 
 
 Deed of Gift of Real Estate. 
 
 KNOW ALL MEX BY THESE PRESENTS, That I, N. E., of Waukegan, 
 in the county of Lake and State of Illinois, for and in consideration of 
 the natural love and affection which I bear to my son, N. W. E., and 
 also in consideration of the sum of one dollar to me paid by my said 
 son, at and before the ensealing and delivery hereof, the receipt whereof 
 I do hereby acknowledge, have given, granted, aliened, released and 
 confirmed, and by these presents do give, grant, alien, release, and con- 
 firm unto the said N. W. E., his heirs and assigns, the following de- 
 scribed tract or parcel of land, to wit : (describe the land) together 
 with all the buildings thereon standing. 
 
 To have and to hold the said above granted premises and all the 
 appurtenances thereunto belonging, to him, the said N. W. E., his heirs 
 and assigns, to his and their proper use and behoof forever. And the 
 said N. E. doth covenant with the said N. W. E., his heirs and assigns, 
 that he is lawfully seized in fee of the aforegranted premises ; that they 
 are free from all encumbrances ; that he has good right to convey the 
 same to the said N. W. E., and that he will warrant and defend the 
 same to the said N. W. E., his heirs and assigns forever, against the 
 lawful claims and demands of all persons. 
 
 In witness whereof, I, the said N. E., have hereunto set my hand and 
 seal, this f-rst day of July, A. D. 1855. 
 
 Signed, sealed and delivered in ) N. E. [SEAL.] 
 
 presence of
 
 PAKT 5.] CONVEYANCES. 425 
 
 Mortgage. 
 
 THIS INDENTURE, made this third day of October, in the year of our 
 Lord one thousand eight hundred and fifty-jive, between A. B., of the 
 county of Lake and State of Illinois, of the first part, and C. D., of 
 the said county and State, party of the second part. Whereas, the said 
 party of the first part is justly indebted to the said party of the second 
 
 part, in the sum of dollars, secured to be paid by a certain 
 
 promissory note, {describe the note, or other instrument.} 
 
 Now, therefore, this indenture witnesseth, that the said party of the 
 first part, for the better securing the payment of the money aforesaid, 
 with interest thereon, according to the tenor and effect of the said 
 {promissory note) above mentioned ; and also, in consideration of the 
 further sum of one dollar to him in hand paid by the said party of the 
 second part, at the delivery of these presents, the receipt whereof is 
 hereby acknowledged, hath granted, bargained, sold, remised, aliened 
 and conveyed, and by these presents doth grant, bargain, sell, remise, 
 alien and convey unto the said party of the second part, and to his 
 heirs and assigns forever, all (here describe the premises.) 
 
 To have and to hold the same, together with all and singular the ten- 
 ements, hereditaments and appurtenances thereunto belonging, or in 
 any wise appertaining, with the rents, issues and profits thereof; and 
 also, all the estate, interest and claim whatsoever, in law or equity, 
 which the party of the first part hath in and to the premises hereby con- 
 veyed unto the said party of the second part, his heirs, executors, ad- 
 ministrators, or assigns, and to their only proper use, benefit and 
 behoof forever ; provided always, and these presents are upon this 
 express condition, that if the said party of the first part, his heirs, 
 executors, administrators or assigns, shall well and truly pay, or cause 
 to be paid, to the said party of the second part, his heirs, executors, 
 and administrators or assigns, the aforesaid sum of money, with such 
 interest thereon, at the time and in the manner specified in the above 
 mentioned (promissory note,) according to the true intent and mean- 
 ing thereof, that then and in that case, these presents, and everything 
 herein expressed, shall be absolutely null and void. 
 
 In witness whereof, the said party of the first part hereunto sets bis 
 hand and seal the day and year first above written. 
 
 Signed, sealed and delivered ) A. B. [SEAL.] 
 
 in presence of
 
 426 LEASES. [PART 5, 
 
 X. LEASES. 
 Usual Form of Lease. 
 
 THIS INDENTURE, made tins first day of July, in the year of our Lord 
 one thousand eight hundred and fifty-jive, between A. B., of Wauke- 
 gan, in the county of Lake, and State of Illinois, and C. I), of the same 
 place, witnesseth : 
 
 That the said A. B. doth hereby demise and lease unto the said C. D. 
 all that (here describe tne land) to hold for the term of two years from 
 the date hereof; yielding and paying therefor yearly, on every first day 
 of April, July, October, and January, during the said term, unto the 
 said A. B., or his assigns, the yearly rent of one hundred dollars, in 
 four equal payments of twenty-five dollars each. 
 
 And the said C. D. covenants and agrees to pay the said rent in 
 manner aforesaid, and to deliver up the premises to the said A. B., or 
 his attorney, peaceably and quietly at the end of said term, in as good 
 condition as the same now are or may be put into by the said A. B., 
 reasonable wear and tear thereof, and fire and other casualties excepted ; 
 and to pay all taxes and duties lawfully levied and imposed on the pre- 
 mises demised, except for making or repairing sidewalks, or grading 
 of any description during the said term ; and the said lessee further cov- 
 enants, that he will not do, or suffer any waste in the demised premises ; 
 that he will not underlet the same or any part thereef, nor permit any other 
 person or persons to occupy the same or any part thereof ; nor make or 
 suffer to be made, any alteration therein without the consent of the said 
 A. B., or his assigns, for that purpose in writing, first had and obtained ; 
 and the said lessee further covenants that the said A. B., or his attor- 
 ney, or agent, may enter the premises for the purpose of reviewing or 
 making improvements at reasonable times, in the day time, (other cov- 
 enants may be introduced according to circumstances.^) 
 
 In witness whereof, the said parties have to this and one other instru- 
 ment of the same tenor and date, interchangeably set their hands and 
 seals the day and year first above written. 
 
 Signed and sealed ) A. B. [SEAL.] 
 
 \ 
 
 in presence of ) C. D. [SEAL.]
 
 PART 5,] LEASES. 427 
 
 Another Form of Lease. 
 
 Tins INDENTURE, made this first day of July, in the year of our Lord 
 one thousand eight hundred and fifty-Jive, between A. B., of Wauke- 
 gan, in the county of Lake, and State of Illinois, and C. D. of Avon, 
 in the same county, witnesseth : 
 
 That the said A. B., for and in consideration of the yearly rents and 
 covenants hereinafter mentioned and reserved, on the part and behalf of 
 the said C. D., his executors, administrators, and assigns, to be paid, 
 kept and performed, hath demised, set, and to farm let, unto the said 
 C. D., his executors, administrators and assigns, all that [messuage and 
 lot of land situated, lying .and being in said county of Lake, being 
 known and described as the north-west quarter of section four (4) in 
 township one (1) north of the base line, and. range nine (9) west of 
 the fourth principal meridian, containing one hundred and sixty acres, 
 be the same more or less ;] to have and to hold the said messuage and 
 lot of land, and all and singular the premises hereby demised, with the 
 appurtenances, unto the said C. D., his executors, administrators and 
 assigns, from the first day of May next ensuing the date hereof, for 
 and during the term of three years then next .ensuing, and fully to be 
 complete and ended, yielding and paying for the same unto the said A. 
 B., his executors, administrators, and assigns, the yearly rent of one 
 hundred dollars in equal semi-annual payments of fifty dollars each, 
 the first of which to be made on the^rs^ day of November next. 
 
 And the said C. D. for himself, his heirs, executors, and administra- 
 tors, doth covenant, promise and agree to and with the said A. B., his 
 heirs, executors, administrators and assigns, by these presents, that he, 
 the said C. D., his heirs, executors and administrators, or some of them, 
 shall and will well and truly pay, or cause to be paid, unto the said A. 
 B., his heirs, executors, administrators or assigns, the said yearly rent 
 of one hundred dollars hereby reserved, on the several days and times 
 herein before mentioned and appointed for the payment thereof, accord- 
 ing to the true intent and meaning of these presents. 
 
 And the said A. B., for himself, his heirs, executors, and adminis- 
 trators, doth covenant, promise, grant and agree to and with the said 
 C. D., his executors, administrators and assigns, by these presents, 
 that he, the said C. D., his executors, administrators and assigns, 
 (paying the rent and performing the covenants aforesaid,) shall and 
 lawfully may, peaceably and quietly, have, hold, use, occupy, possess 
 and enjoy the said demised premises with the appurtenances, during the
 
 428 LEASES. [PART 5. 
 
 term aforesaid, without the lawful let, suit, trouble, eviction, molestation 
 or interruption of the said A. B., his heirs or assigns, or any other per- 
 son or persons whatsoever. 
 
 In witness whereof, the said parties have to this and one other instru- 
 ment of the same tenor and date, interchangeably set their hands and 
 seals, the day and year first above written. 
 
 Signed and sealed in } A. B. [SEAL.] 
 
 presence of C. D. [SKAL.] 
 
 A Short Form of Lease. 
 
 THIS INDENTURE, made this first day of June, A. D. 1855, between 
 A. B., of Waukegan, in the county of Lake, and State of Illinois, of 
 the one part, and C. D. of the same place, of the other part, wit- 
 nesseth : 
 
 That the said A. B. for the consideration hereinafter expressed, hath 
 demised, granted and leased, and by these presents doth hereby demise, 
 grant and lease unto the said C. D., and his assigns, (here describe the 
 premises,) together with all the privileges and appurtenances thereunto 
 belonging. 
 
 To have and to hold the above described premises for and diiring the 
 term of two years from the date hereof. 
 
 And the said C. D. doth covenant and agree to pay unto the said A. 
 B., or his assigns, the sum of one hundred dollars as yearly rent for said 
 premises, in two equal payments of fifty dollars each, at the expiration 
 of each and every six months from date, during the continuance of this 
 lease. 
 
 In witness whereof, the said parties have to this and one other instru- 
 ment of the same tenor and date, interchangeably set their hands and 
 seals the day and year first above written. 
 
 Signed and sealed in the } A. B. [SEAL.] 
 
 presence of C.D. [SEAL.]
 
 PART 5.] POWERS OF ATTORNEY. 429 
 
 X. POWERS OF ATTORNEY. 
 General form of Letters of Attorney. 
 
 KNOW ALL MEN BY THESE PRESENTS, that I, A. B., of Waukegan, 
 in the county of Lake, and State of Illinois, have made, constituted, 
 and appointed, and by these presents do make, constitute and appoint 
 C. D., of the same place, to be my true and lawful attorney, for me, 
 and in my name, and for my sole use, to (here state the specific pur- 
 poses of the power, in as concise terms as possible,^) hereby giving 
 and granting unto my said attorney, full power and authority in the 
 premises, to use all lawful means in my name, and for my sole benefit 
 for the purposes aforesaid. And generally to do and perform all such 
 acts, matters and things, as my said attorney shall deem necessary or 
 expedient for the completion of the authority hereby given, as fully 
 as I might and could do, if I were personally present ; and finally, 
 hereby ratifying and confirming all the acts of my said attorney or his 
 substitutes, done by virtue of these presents. 
 
 In witness whereof, I, the said A. B., have hereunto set my hand 
 and seal, this first day of June, in the year of our Lord one thousand 
 eight hundred and fifty-five. 
 
 Signed and sealed in ] A. B. [SEAL.] 
 
 presence of 
 
 Letter of Substitution appended to Power of Attorney. 
 
 KNOW ALL MEN BY THESE PRESENTS, that I, C. D., of Waukegan, 
 in the county of Lake, and State of Illinois, named in the letter of 
 attorney above mentioned, have made, appointed, and substituted, and 
 and by these presents do make, appoint- and substitute, E. F., of said 
 Waukegan, to be the true and lawful attorney of the said A. B., in 
 the above letter of attorney named, to do and perform all such acts, 
 matters and things, as he may deem necessary or expedient for the 
 complete execution of the authority therein given, as fully in all 
 respects and to all intents and purposes, as I myself might and could 
 do, by virtue of the power and authority therein delegated, if I were 
 personally present. 
 
 Hereby ratifying and confirming 'all the acts of my said substitute, 
 done by virtue of these presents 
 
 In witness whereof, I, the said C. D., have hereunto set my hand
 
 430 POWERS OF ATTORNEY. [PART 5. 
 
 and seal, the first day of October, in the year of our Lord one 
 thousand eight hundred and fifty-jive. 
 
 Signed and sealed in presence of \ C. D. [SEAL.] 
 
 General Letter of Attorney to collect Debts. 
 
 KNOW ALL MEN BY THESE PRESENTS, that I, A. B., of Waukegan, 
 in the county of Lake, and State of Illinois, have made, constituted 
 and appointed, and by these presents do make, constitute and appoint 
 C. D., my true and lawful attorney, for me, and in my name, and to 
 my use to ask, demand, sue for, recover and receive of E. F., and of 
 all and every person and persons whomsoever indebted to me by note, 
 account, or otherwise, all and every such sum and sums of money, 
 debts and demands whatsoever, as now are due and owing unto me, 
 the said A. B., from them or either of them. And in default of 
 payment thereof by them, or either of them, to have, use, and take, 
 all lawful ways and means in my name, or otherwise, for the recovery 
 thereof, by attachment, arrest, or otherwise, and to compound or agree 
 for the same ; and on receipt thereof, acquittances, or other sufficient 
 discharges for the same for me, and in my name to make, seal and 
 deliver ; and generally to do all lawful acts and things whatsoever, 
 concerning the premises, as fully, in every respect, as I myself might 
 or could do, if I were personally present ; and an attorney or attor- 
 neys under him, for the purposes aforesaid, to make, and at his pleasure 
 to revoke. 
 
 Hereby ratifying, allowing and confirming all and whatsoever my 
 said attorney shall, in my name, lawfully do, or cause to be done, in 
 and about the premises. 
 
 In ^Tftiess whereof, I, the said A. B., have hereunto set my hand 
 and "%eal, this first day of June, one thousand eight hundred and 
 fifty-five. 
 
 Signed and sealed in presence of ") A. B. [SEAL.] 
 
 < 
 
 Revocation of Letter of Attorney. 
 
 To ALL PERSONS to whom these Presents shall come : A. B., of 
 Waukegan, in the county of Lake, and State of Illinois, sendeth 
 Greeting : 
 
 Whereas, I, the said A. B., by my letter of attorney, bearing date 
 June first, 1854, did make, constitute and appoint C. D. of said Wau-
 
 PART 5.] POWERS OF ATTORNEY. 431 
 
 kegan, my attorney for certain purposes, to wit : in my name and for 
 my use to collect all debts due and owing unto me, as by said letter 
 of attorney will more fully appear : 
 
 Know ye, that I, the said A. B., for divers considerations me here- 
 unto moving, have made void, countermanded and revoked, and do 
 hereby make void, countermand and revoke the said letter of. attorney, 
 and all and singular the power and authority therein contained. 
 
 In witness whereof, I, the said A. B., have hereunto set my hand 
 and seal, this first day of June, in the year of our Lord one thousand 
 eight hundred and fifty-five. 
 
 Signed and sealed in presence of) . T> r 
 
 ? -A.. _D |_SEAL.J 
 
 Warrant of Attorney to Confess Judgment on Note. 
 
 WHEREAS A. B. is justly indebted unto C. D., in the sum of eighty- 
 four dollars and seventy-five cents with interest, by note hereunto an- 
 nexed, and of which the following is a true copy, to wit : (here copy 
 the note.) 
 
 Now, therefore, know all men by these presents, that I, A. B., of 
 Waukegan, in the county of Lake, and State of Illinois, do make, 
 constitute and appoint E. P. Ferry, of said Waukegan, attorney and 
 counsellor at law, my true and lawful attorney, in my name and behalf, 
 at the next term of the circuit court, within and for the said county of 
 Lake, to be holden at said Waukegan on the second Monday of Octo- 
 ber next, or at any term thereof subsequently, to confess a judgment 
 against me, and in favor of said C. D., for the amount of principal and 
 interest which shall be due on said aforedescribed note, according to 
 the tenor and effect thereof at the time such judgment may be confessed. 
 
 Hereby waving and releasing all errors, and ratifying and confirming 
 all that my said attorney may do in the premises. 
 
 In witness whereof, I, the said A. B., have hereunto set my hand 
 and seal, this first day of March, one thousand eight hundred and 
 fifty-five. 
 
 Signed and sealed in presence of ) . -p r , -\ 
 
 / 2\.. -L>. |^SEAL.J 
 
 Short form of Warrant of Attorney to Confess Judgment on Note. 
 
 I, A. B., do hereby authorize and empower Isaac L. Clark, or any 
 other attorney at law in the State of Illinois, to appear in the circuit court
 
 432 RELEASES. [PART 5. 
 
 of Lake county, in said State, at any regular term thereof, and waive the 
 issuing and service of process, and confess a judgment against me and 
 in favor of C. D., for the sum of eighty-four dollars and seventy-jive 
 cents, the same being the amount due and owing on a note hereunto an- 
 nexed, of which the following is a .true copy, to wit : (here copy the 
 note,) and thereupon to release all error, and waive all right and benefit 
 of appeal in my behalf. 
 
 Dated at Waukegan, this second day of June, A. D. 1855. 
 
 A. B. [SEAL.] 
 
 XII. RELEASES. 
 
 General form of Release. 
 
 KNOW ALL MEN BY THESE PRESENTS, That I, A. B., of Waukegan, 
 in the county of Lake, and State of Illinois, for and in consideration 
 of the sum of one dollar to me paid by C. D., of the same place, have 
 remised, released and forever discharged, and by these presents do re- 
 mise, release and forever discharge the said C. D. and his heirs, exec- 
 utors and administrators, of and from all and all manner of action and 
 actions, cause and causes of action, suits, debts, dues, sum and sums 
 of money, accounts, reckonings, bonds, bills, specialties, covenants, 
 contracts, controversies, agreements, extents, executions, claims and 
 demands whatsoever, in law and in equity, which against the said C. 
 D. I ever had, now have, or which I, my executors or administrators, 
 hereafter can, shall, or may have, for, upon, or by reason of any mat- 
 ter, cause or thing whatsoever, from the beginning of the world to the 
 date of these presents. 
 
 In witness whereof, I, the said A. B., have hereunto set my hand 
 and seal, this second day of July, A. D. 1855. 
 
 Sealed and delivered in presence of ) -n r -\ 
 
 A. B. [SEAL.]
 
 PAKT 5.] WILLS. 433 
 
 Release of Trust Deed. 
 
 KNOW ALL MEN BY THESE PRESENTS, That I, A. B., of the county 
 of Lake and State of Illinois, for and in consideration of one dollar, 
 and for other good and valuable considerations, the receipt whereof is 
 hereby confessed, do hereby grant, bargain, remise, convey, release 
 and quit-claim unto C. D., of the county of Cook and State of Illinois, 
 all the right, title, interest, claim or demand whatsoever, I may have 
 acquired in, through or by a certain indenture or trust deed, bearing 
 date the second day of July, A. D. eighteen hundred and fifty-five, and 
 
 recorded in the recorder's office of Lake county, Illinois, in book , 
 
 page , to the premises therein described, and which said deed was 
 
 made to secure a certain promissory note bearing even date with said 
 deed, for the sum of dollars and cents. 
 
 Witness my hand and seal, this day of , A. D. 18 . 
 
 In presence of ) A. B. [SEAL.] 
 
 L. M. ; 
 
 XIII. WILLS. 
 
 A wiU or testament is the legal declaration of a man's intention of 
 what he wills to be performed after his death. 
 
 Form of Witt of Real and Personal Estate. 
 
 In the name of God, Amen : I, A. B., of the town of , in the 
 
 county of , and State of , of the age of years, and being 
 
 of sound mind and memory, do make, publish and declare this my 
 last will and testament, in manner following, that is to say : 
 
 First. I give and bequeath to my wife, E. B., the sum of , to 
 
 be accepted and received by her in lieu of dower ; to my son, C. B., the 
 
 sum of ; to my daughter, M. B., the sum of ; and to 
 
 my daughter-in-law, S. B., widow of my son, R. B., deceased, the sum 
 
 of ; which said several legacies or sums of money I direct and 
 
 order to be paid to the said respective legatees, within one year after 
 my decease. 
 
 Second. I give and devise to my son, C. B. aforesaid, his heirs and 
 assigns, all that tract or parcel of land situate, &c., {describe the pre- 
 11 
 

 
 434 WILLS. PART 5.] 
 
 mises,*) together with all the hereditaments and appurtenances there- 
 unto belonging, or in any wise appertaining ; to have and to hold the 
 premises above described to the said C. B., his heirs and assigns for- 
 ever. 
 
 Third. I give and devise all the rest, residue and remainder of my 
 real estate, of every name and nature whatsoever, to my said daughter, 
 M. B., and my said daughter-in-law, S. B., to be divided equally be- 
 tween them, share and share alike. 
 
 And lastly, I give and bequeath all the rest, residue and remainder 
 of my personal estate, goods and chattels, of what nature or kind 
 soever, to my wife, E. B., whom I hereby appoint sole executrix of 
 this my last will and testament, hereby revoking all former wills by 
 me made. 
 
 In witness whereof, I have hereunto set my hand and seal, this 
 
 day of , in the year of our Lord one thousand eight hundred 
 
 and . 
 
 A. B. [SEAL.] 
 
 The above instrument, consisting of one sheet, (or "two sheets,") 
 was, at the date thereof, signed, sealed, published and declared by the 
 said A. B., as and for his last will and testament, in presence of us, 
 who, at his request and in his presence, and in the presence of each 
 other, have subscribed our names as witnesses thereto, (or " the above 
 instrument consisting of one sheet, was, at the date thereof, declared to 
 us by A. B., the testator therein mentioned, to be his last will and tes- 
 tament ; and he at the same time acknowledged to us, and each of us, 
 that he had signed and sealed the same, and we, therefore, at his re- 
 quest, and in his presence, and in the presence of each other, signed 
 our names thereto as attesting witnesses.") 
 
 C. D., residing at , in county. 
 
 Gr. H., residing at , in county. 
 
 Form of Codicil to a Will. 
 
 WHEREAS I, A. B., of, &c., have made my last will and testament 
 
 in writing, bearing date the day of , in the year of our 
 
 Lord one thousand eight hundred and , in and by which I have 
 
 given and bequeathed to, &c., (here set forth the bequest which the 
 testator desires to changed) 
 
 Now therefore, I do, by this my writing, which I hereby declare to 
 be a codicil to my said last will and testament, and to be taken as a
 
 PAKT 5.] WILLS. 435 
 
 part thereof, order and declare that my will is, that only the sum of 
 
 be paid to my daughter-in-law, S. B., in full of the said legacy; 
 
 and that the sum of be given and paid to my nephew K. F. ; 
 
 and lastly, it is my desire that this codicil be annexed to, and made 
 a part of, my kst will and testament as aforesaid, to all intents and 
 purposes. 
 
 In witness, &c., (as in foregoing form of will, except that the 
 attestion will read, " as and for a codicil to his last will," &c.) 
 
 Nomination of JSxecutors in a Witt. 
 
 And lastly, I do hereby nominate and appoint my sons, C. B. and 
 M. B., (or, " my friends, E. F. and L. M.,") to be the executors of 
 this my last will and testament, hereby revoking all former wills by 
 me made. 
 
 Devise to Executors in Trust, with power to sell, fyc. 
 
 I give and devise all my real and personal estate, of what nature 
 or kind soever, to E. F. and L. M., the executors of this my last will 
 and testament, hereinafter nominated and appointed, in trust for the 
 payment of my just debts and the legacies above specified, with power - 
 to sell and dispose of the same, at public or private sale, at such time 
 or times, and upon such terms, and in such manner, as to them shall 
 seem meet; provided, however, that no part of my real estate, as 
 aforesaid, shall be sold at public auction, until after the expiration of 
 three years from the time of my decease. 

 
 INDEX. 
 
 ABATEMENT. 
 
 Pleas in, .67, 68 
 
 Form of pleas in, 68-71 
 
 ACCESSORIES TO CRIMES. 
 
 Who considered to be, 161 
 
 ACTION. 
 
 What forms of, may be brought before Justice, 32 
 
 Qui tarn, in debt for cutting timber, 44, 45 
 
 ADVERSE PARTY. 
 
 When demand, discount, or^et-ofF may be proved by oath of, 81 
 
 Form of summons to obtain oath of, 82 
 
 AFFIDAVIT. \ 
 
 Form of, for ca. sa., 152 
 
 Form of, for garnishee process on judgment, 154 
 
 AFFRAY. 
 
 Form of warrant for, 263 
 
 AGENT. 
 
 Of plaintiff or creditor can make oath or affidavit for warrant, 48 
 
 AGREEMENTS. 
 
 Forms for, 400-402 
 
 APPEAL. 
 
 May be taken from judgment of Justice on award, 111 
 
 Form of docket entry in cases of, 136 
 
 When granted from Justice's judgment, 143 
 
 Form of bond in cases of, 143 
 
 Duty of Justice when appeal is taken, 144 
 
 On trial of, no exception taken to form or service of process, 145 
 
 APPEALS. 
 
 Statute provisions in relation to, 143-145 
 
 Party appealing, to give bond, 143 
 
 APPEARANCE. 
 
 Of parties of full age, 56 
 
 Authority to appear may be written or by parol, 56 
 
 Married woman must appear in person when sued alone, 57 
 
 Idiot to appear in person, 57 
 
 Of infants, 57 
 
 Effect of default or want of, 58
 
 438 
 
 INDEX. 
 
 APPRENTICES. 
 
 Forms for indenture of, &c., 392-396 
 ARBITRATION. (See ARBITRATORS.) 
 ARBITRATIONS AND AWARDS. 
 
 Forms for, 397-399 
 ARBITRATORS. 
 
 When difference between parties referred to, 109 
 
 Forms for arbitration, 110 
 
 Fees of, 141 
 ARRESTS. 
 
 In civil cases, what constitutes, 48 
 
 Persons privileged from, 48, 49 
 In criminal cases, 
 
 What constitutes, 172 
 
 Who are liable to, 388 
 
 How long warrant continues in force, 389 
 ASSAULT. 
 
 Form of complaint for, 261 
 
 Form of warrant for, 262 
 ASSAULT AND BATTERY. 
 
 Definition of, 259 
 
 Provisions of statute in relation to, 259-261 
 
 Form of information and complaint for, 262 
 
 Form of warrant for, 263 
 
 Form of recognizance of defendant, c. 264 
 
 Form of a venire, 264 
 
 Form of juror's oath or affirmation, 265 
 
 Form of a subpoena, 265 
 
 Form of oath of witness, 265 
 
 Form of Constable's oath, &c. 265 
 
 Form of execution to levy fine and costs, 266 
 Form of execution to levy costs in case of malicious prosecution, 266 
 
 Form of capias against the body, or mittimus, 267 
 ASSUMPSIT. 
 
 Of the action of, 34, 35 
 
 Form of summons in, 41 
 
 What may be given in evidence in, under general issue, 71 
 ATTACHMENT. 
 
 General rules applicable to writ of, 52-54 
 Statutory provisions in relation to ordinary proceedings by, 
 
 against goods and chattels of defendant, 273-279 
 
 Form of writ of, 274 
 
 Form of bond by creditor, 274 
 
 Form of affidavit for, 279 
 
 Form of bond, 279 
 
 Form of notice, 280 
 
 Form of summons for garnishee, &c., 280 
 
 Of boats and vessels, statute provisions, 281-283
 
 INDEX. 439 
 
 ATTACHMENT. (Continued.) 
 
 Form of affidavit for, against boat or vessel, 283 
 
 Form of bond for, against boat or vessel, 283 
 
 Form of, against boat or vessel, 284 
 
 Form of affidavit for, against owners of vessel, 285 
 
 Form of bond for, against owners of vessel, 285 
 
 Form of, against owners of boat or vessel, 286 
 
 Form of declaration or statement in, against boats or vessels, 287 
 
 Form of declaration, &c., against owners of vessel, 287 
 
 Form of bill of particulars, 288 
 
 Form of deputation of Constable, pro tern., to serv.e, 288 
 
 Service and return of writ of, by Constable, 380, 381 
 
 Form of return on writ of, 380 
 
 Form, wben no property is found, 380 
 On non-appearance of defendant, Constable to serve notice, and 
 
 return original, with indorsement thereon, to Justice, 381 
 
 Form of indorsement on attachment notice, 381 
 
 BASTARDY. 
 
 Proceedings in cases of, 297-303 
 Statute provisions, 297, 301-303 
 
 Form of complaint, before birth, 297 
 
 Form of complaint, after birth, 298 
 
 Form of warrant, before birth, 298 
 
 Form of warrant, after birth, 299 
 
 Form of oath or affirmation upon examination, 299 
 
 Form of bond, 299 
 
 Form of commitment, 300 
 Father, on giving bond, may demand possession and control of 
 
 child, 303 
 If child surrendered to him, father bound to maintain, 
 
 support and educate during minority, 303 
 
 May be compromised or compounded, at discretion, 303 
 
 BILL OF PARTICULARS. 
 
 Form of, to be filed at commencement of suits, 65 
 
 Form of, in attachments of boats and vessels, 288 
 
 BILLS OF EXCHANGE AND PROMISSORY NOTES. 
 
 Forms for, 412, 413 
 
 MILLS OF SALE. 
 
 Forms for, 414 
 
 BOND. 
 
 To be given by Justice upon going into office, 22 
 
 To whom payable, 22 
 
 Form of, 23 
 
 Form of, for security for costs, 55 
 
 Form of, for costs by next friend, 57 
 
 Form of, on appeal from Justice's judgment, 143 
 
 Given on appeal, may be amended when adjudged informal or 
 
 insufficient, 145
 
 440 INDEX. 
 
 BOND. (Continued.) 
 
 To be given by party applying for writ of certiorari, 146 
 
 Form of, for costs, in case of fugitives from justice, 242 
 
 BONDS. 
 
 Forms of, in ordinary cases, 415^117 
 
 BURGLARY. 
 
 Form of warrant for, 170 
 
 CA. SA. 
 
 When may be issued, 152 
 
 Form of oath to obtain, 152 
 
 Form of, 152 
 
 Form of affidavit for, 152 
 
 CERTIFICATE. 
 
 Form of, by Justice, on change of venue, 94 
 
 Form of, to be added to transcript of judgment, 142 
 
 Form of, in case of fugitives from justice, 245 
 
 CERTIORARI. 
 
 Who have power to grant writs of, 146 
 
 When to be granted, 146 
 
 Bond to be given by party applying for, 146 
 
 In what cases may be granted, 146 
 
 When granted, proceedings to be stayed, 146 
 
 What the petition for, shall contain, 147 
 
 Trial upon, to be de novo, 147 
 
 CHALLENGES. 
 
 Of jurors, 99-102 
 
 CHATTEL MORTGAGE. 
 
 Form of docket entry, on acknowledgment of, 136 
 
 COMMITMENT. (See MITTIMUS.) 
 
 Of prisoner, in default of bail, 181 
 Forms for, 181-184 
 
 Of witness for refusing to enter into recognizance, 188 
 
 Form of, for witness for refusing to enter into recognizance, 188 
 
 Form of, for witness for want of sureties, 188 
 
 Form of, for accomplice to give evidence, 189 
 
 COMPLAINT. 
 
 To be made in case of offense committed, 164 
 
 Who competent to make, 165 
 
 General form of, in criminal cases, 166 
 
 Form of oath of complainant, 1 66 
 
 CONFIDENTIAL COMMUNICATIONS. 
 
 Counsel or attorney not permitted to testify as to, 126 
 
 CONSTABLE. 
 
 Form of oath of, on retiring with jury, 108, 265 
 
 Form of forthcoming bond to, in ease of appeal in trial of right 
 
 of property, 366 
 
 Antiquity of office of, 367 
 
 Office of, in England, 368
 
 INDEX. 441 
 
 CONSTABLE. (Continued.) 
 
 Duty of, by common law, 368 
 
 Extension of duties of, by legislative enactment, 368 
 
 How chosen in this State, 369 
 
 Election of, in counties not adopting township organization, 369 
 
 How many elected in each precinct, 369 
 
 When number may be increased, 369 
 
 When election shall take place, 369 
 
 Vacancies in office, how filled, 369 
 
 When Justice of Peace may appoint, 369 
 
 Election of, in counties adopting township organization, 369 
 
 How many chosen in each town, 369 
 
 Term of office, 370 
 
 Vacancy, how filled, 370 
 
 Qualification of, in counties not adopting township organization, 370-372 
 
 Must be sworn, before entering upon duties of office, 370 
 
 Provisions of statute respecting bond to be given by, 370, 372 
 
 To whom bond made payable, 371 
 
 Form of official bond, 371 
 
 Form of oath of office, 371 
 
 By whom oath certified, 372 
 
 Resignations of, to whom made, 372 
 
 Qualification of, in counties adopting township organization, 372-375 
 
 Eequired to execute instrument in writing, with sureties, 
 
 before supervisor or town clerk, 373 
 
 Who to administer oath of office, 373 
 Form of instrument to be executed by Constable and 
 
 sureties, 374 
 
 Supervisor or town clerk to indorse and file instrument in 
 
 his office, 374 
 
 Form of such indorsement, 374 
 
 Within what time actions must be brought against, on 
 
 instrument of security, 375 
 When action of debt may be maintained on instrument of 
 
 security, 375 
 
 Resignations, to whom made, 375 
 
 Special, when and how appointed, 375, 376 
 
 Statute provisions, 375 
 
 How appointment made, 376 
 
 In what cases Justice authorized to appoint, 376 
 
 Indorsement should show reason of appointment, 376 
 
 May be appointed to preserve order at elections, 376 
 
 Service and return of process by, in civil cases, 377-384 
 
 Time in which summons must be served, 377 
 
 Form of return on summons, 377, 378 
 No right to break open dwelling-house in serving warrant, 378 
 Defendant may give special bail, 
 
 Form of special bail to be indorsed on warrant, 379
 
 442 INDEX. 
 
 CONSTABLE. 
 
 Service and return of process by, in civil cases. (Continued.) 
 
 Form of return on warrant, 397 
 Form of return on venire, 379 
 Duty of Constable to complete jury panel, 380 
 Duty of Constable, on receiving writ of attachment, 380 
 How to proceed, when unable to find property, 380 
 Form of return on writ of attachment, 380 
 Form, when no property is found, 380 
 Form of indorsement by Constable, on return of attach- 
 ment notice, 380 
 Form of Constable's indorsement on receiving execution, 381 
 Personal property of defendant when bound for payment 
 
 of judgment, 381 
 
 Constable may remove property for safe keeping, 381 
 Duty of Constable, when term of office expires before 
 
 return of execution in his hands, 382 
 
 Form of indorsement of levy and inventory of property, 382 
 
 In sale on execution, property must be present, 384 
 
 Form of notice of sale, 384 
 
 Form of return on execution, 384 
 
 Form, when no property is found, 384 
 
 Duty of, after sale on execution, 384 
 
 Kesponsibility of sureties of, 385 
 
 When action on the case lies against, in circuit court, 386 
 
 General powers of, 387, 388 
 
 Arrests by, 388, 389 
 
 Fees and compensations allowed to, in civil and criminal cases, 390, 391 
 
 CONTEMPT OF COURT. 
 
 Justice may fine for, 107 
 
 Statute provisions, 304 
 Power to punish for, incident to all courts of justice, independent 
 
 of statute, 304 
 
 Offender may be instantly apprehended, without further proof, 304 
 
 Form of record of conviction, 304 
 
 Form of commitment for a fine, 305 
 
 Forms of commitment of witness, c., 306, 307 
 CONTESTING ELECTIONS. 
 
 Statutory provisions, . 314-316 
 
 Form of notice by candidate contesting election, 316 
 
 Form of subpoena for witnesses, 316 
 
 Form of oath to witnes MS, 317 
 
 Form of certificate, or record of proceedings, 317 
 
 Form of certificate, to lie attached to record, 318 
 
 Form of execution for costs, 318 
 CONTINUANCE. 
 
 When and for what cause may be granted, 92, 93 
 
 Form of oath on application for, 93
 
 INDEX. 
 
 443 
 
 CONVEYANCES. 
 < Forms for, 422-425 
 
 COPARTNERSHIP. 
 
 Forms for, 418-422 
 
 COSTS. 
 
 Can only be recovered by express statute, 139 
 
 In what cases and to whom taxed, 139 
 
 COVENANT. 
 
 Of the action of, 33, 34 
 
 CRIMES. 
 
 Definition of, 159 
 
 Persons capable of committing, 159-161 
 
 Accessories to, . 161 
 
 Who may bo witnesses in criminal cases, 161 
 
 CRIMINAL CASES. 
 
 Who may be witnesses in, 161 
 
 Arrests in, . 172 
 
 Examination of the accused in, 173 
 
 DEBT. 
 
 Of the action of, 33 
 
 Form of summons in, 43 
 
 Form of summons in action of, for cutting timber, 44 
 
 What may be given in evidence under general issue in, 72 
 
 DECLARATION. 
 
 General requisites of, 63-66 
 
 DEEDS. 
 
 Provisions of statute in relation to acknowledgment and proof of, 
 
 by justice, 289-295 
 
 Various forms of acknowledgment of, 290-295 
 
 DEFENDANT. 
 
 On conviction of, in prosecutions in behalf of the people, officers 
 
 must look to defendant's estate for costs, 272 
 
 When personal property of, bound for payment of judgment, 381 
 
 DEMURRER. 
 
 When may be interposed, 77 
 
 Nature and requisites of, 77-78 
 
 DEPOSITIONS. 
 
 Taking of, 83-90 
 
 Forms for taking of, 84-90 
 
 DISCHARGE. 
 
 Of prisoner, 178 
 
 DISTRESS FOR KENT. 
 
 Justices have jurisdiction in cases of, 27 
 
 Definition of, 308 
 
 Party cannot distrain for part of entire sum at one time_ and part 
 
 at another, 308 
 
 But if value of goods distrained be mistaken, may afterwards 
 complete execution by further seizure, 308
 
 444 INDEX. 
 
 DISTRESS FOR RENT. (Continued.) 
 
 Distress at common law different from that prescribed by statute, 308 
 
 Statute provisions, 308-310 
 
 Form of warrant of, by landlord, 310 
 
 Form of inventory, 310 
 
 Form of notice to tenant, 311 
 
 Individual proceeded against in case of, must have notice, 31 1 
 
 Landlord may distrain though no power given in lease, 311 
 
 Duty of court in case of, 311 
 
 Tenant may show payment on account of rent, 311 
 
 Goods of sub-lessee not liable to be distrained, 311 
 
 Form of summons after goods distrained, 312 
 
 Form of oath to appraisers, 312 
 
 Form of Constable's memorandum on inventory, 312 
 
 Form of appraisement indorsed on inventory, 313 
 
 Form of notice of sale, 313 
 
 DOCKET ENTRIES. 
 
 General requisites of, 128-130 
 
 General forms of, in civil cases, 130-136 
 All proceedings before Justice must be entered upon his docket, 269 
 
 General forms of, in criminal cases, 269-271 
 
 ESTRATS. 
 
 Statute provisions in relation to, 320-325 
 Party not giving required notice, cannot acquire property in, by 
 
 lapse of time or by possession, 326 
 
 Could not recover in an action of trover, 326 
 
 One retaining estray without giving notice, a tort feasor, 326 
 
 Form of notice of, 326 
 
 Oath of person taking up, 326, 327 
 
 Forms of advertisements of, &c., 327, 330 
 
 Form of appointment of appraisers, 327 
 
 Form of warrant for appraisers, 328 
 
 Form of oath or affirmation of appraisers, 328 
 
 Form of report of appraisement, 329 
 
 Form of entry by Justice on estray book, 329 
 Form of certificate of copy of entry, to be forwarded to clerk 
 
 of county commissioners' court, 330 
 
 Form of affidavit by taker up of water craft, 330 
 
 Form of warrant to summon appraisers, 331 
 
 Oath of appraisers, 331 
 
 Report of appraisers, 331 
 
 Form of entry by Justice in case of taking up water craft, 332 
 
 Form of advertisement by taker up of water craft, 332 
 
 How to proceed in counties adopting township organization, 333 
 
 EVIDENCE. 
 
 Nature of, 113-116 
 
 Competency of witnesses, 116-121 
 
 Examination of witnesses, 121
 
 INDEX. 445 
 
 EVIDENCE. (Continued.) 
 
 Of written evidence, 122-125 
 
 Public and private writings, 122 
 
 Of proof of ^-ivate writings, 123 
 
 Of proof of hand- writing, 124 
 
 Proceedings before a Justice, how proved, 125 
 
 Parol evidence to contradict written instruments, 125 
 
 Confidential and privileged communications, 126 
 EXAMINATION. 
 
 By Justice, in criminal cases, 173 
 
 Commitment for further, 173 
 
 Form of commitment for further, 173 
 Forms of summons to witnesses, 174, 175 
 
 Form of warrant against witness refusing to attend, 176 
 
 Form of commitment of witness for refusing to testify, 177 
 
 Form of oath of witness on, 177 
 
 Form of, of prisoner, in case of fugitives from justice, 244 
 EXECUTION. 
 
 Office and nature of, r 148 
 
 When to be issued, 148 
 
 Form of oath on swearing out, 149 
 
 Form of, against the goods and chattels, 149 
 
 When may be issued to foreign county, 149 
 
 Form of, to foreign county, 150 
 
 When to become lien on property of defendant, 150 
 
 Levy to be indorsed on, 1 50 
 
 When Justice may issue, upon docket of another Justice, 150 
 
 Form of, when issued on docket of another Justice, 151 
 
 Against the body, when to issue, 151 
 
 Form of, against the body, 152 
 Service and return of, by Constable, 381-384 
 
 Form of Constable's indorsement on receiving, 381 
 Personal property of defendant bound for payment of judgment on, 381 
 
 Constable may remove property for safe keeping, 31 
 
 Form of notice of Constable's sale on, 384 
 
 Form of return on, 384 
 FEES. 
 
 Of Justice, in civil cases, 140 
 
 Of jurors, 141 
 
 Of witnesses, 141 
 
 Of arbitrators, 141 
 
 Of Justice,' in criminal cases, 272 
 Of Constable, in civil and criminal cases, 390, 391 
 FEME COVERT. 
 
 Cannot be sued alone, 62 
 FORCIBLE ENTRY AND DETAINER. 
 
 Statute provisions, 334, 335 
 
 Amendments, 335
 
 44G INDEX. 
 
 FORCIBLE ENTRY AND DETAINER. (Continued.) 
 
 In what cases an action for, may be maintained in this State, 336 
 
 What will give Justices of the Peace jurisdiction in actions of, 336 
 
 What must concur, to maintain actions for, 336 
 
 Not necessary to prove actual force, 336 
 
 What the complaint should show, 336 
 
 Description of premises should be exact, 337 
 
 Action for, a civil remedy, 337 
 
 In whom jurisdiction vested, 337 
 What tenant not permitted to show, in action of detainer by 
 
 landlord, 337 
 
 Technical strictness not required, 337 
 
 What plaintiff must state in action for forcible detainer, 337 
 
 Statute must be strictly followed, 338 
 
 Form of complaint for entry without force, 338 
 
 Form for forcible entry, 338 
 
 Form of demand of possession, 339 
 
 Form of notice by agent, 339 
 
 Form of complaint for forcible detainer, 340 
 
 Form of summons, 340 
 
 Form of a subpoena, 341 
 
 Form of precept for summoning a jury, 341 
 
 Jurors' oath upon traverse, 342 
 
 Form of oath of witness, 342 
 
 Form of record of proceedings, 342 
 
 Form of writ of restitution, 344 
 
 Form of execution for costs, 345 
 FORMS, COMMON, FOR THE TRANSACTION OF BUSINESS. 
 
 Indenture of apprenticeship of a minor, with the consent of the 
 
 father, 392 
 Indorsement on indenture of apprenticeship, when the father 
 
 covenants for faithful performance of his son, 393 
 Indenture binding poor child by overseer of poor, under township 
 
 organization, 394 
 Certificate of approbation of county Judge of the binding of an 
 
 infant who has no parents or guardian in the State, . 395 
 General form of submission, in case of arbitration, to be made a 
 
 rule of court, 397 
 
 Short form of same, 397 
 
 Arbitration bond, to be mutual, 398 
 
 Certificate of oath of arbitrators, 399 
 
 Award of arbitrators, 399 
 Notice to adverse party before judgment is entered upon an award 
 
 in circuit court, 399 
 
 Agreement, general form of, 400 
 
 Agreement to sell land, 400 
 
 Agreement for building, 401 
 
 Agreement for the delivery of wheat, or other article, 402
 
 INDEX. , 447 
 
 FORMS, COMMON, FOR THE TRANSACTION OF BUSINESS. (Continued.) 
 
 Assignment, general form of, by indorsement, 402 
 Shorter form of same, 403 
 Assignment of bond, by indorsement, 403 
 Conditional assignment of a bond to convey real estate, by indorse- 
 ment, 403 
 Assignment of a judgment, 404 
 Shorter form of same, 405 
 Assignment of mortgage and notes, by indorsement, 403 
 Assignment of lease, 405 
 Assignment of moneys due on account, 406 
 Assignment of shares in a company, 406 
 Assignment of shares of stock, 407 
 Assignment of notes of hand, 407 
 Assignment of indenture of apprenticeship, 407 
 Certificate of consent of parties to assignment of indentures of 
 
 apprenticeship, 408 
 Assignment by debtor to trustees for benefit of creditors, c., 408-411 
 
 Foreign bill of exchange, 412 
 Ordinary bill of exchange or draft at a certain time after sight, 412 
 
 Check or draft on a bank, 412 
 
 Promissory note not negotiable, 413 
 
 Note negotiable by indorsement, 413 
 
 Joint negotiable note, for money loaned, 413 
 
 Negotiable note, payable in property, 413 
 
 Bill of sale of goods, 414 
 
 Deed of gift of personal estate, 414 
 
 Bond, common form of, 415 
 
 Bond for a deed, 415 
 
 Bond from two to one, 416 
 
 Condition of bond for payment of money at different times, 417 
 
 Condition of bond for conveyance of real estate, 417 
 
 Articles of copartnership, 418 
 
 Agreement to continue a partnership by indorsement thereon, 420 
 
 Agreement for a law partnership, 420 
 
 Agreement to dissolve a copartnership, 421 
 
 Agreement for a limited law partnership, 421 
 
 Warrantee deed, 422 
 
 Quit-claim deed, 423 
 
 Deed of gift of real estate, 424 
 
 Mortgage, 425 
 Usual form of lease, 
 Another form of lease, 
 
 Short form of lease, 428 
 
 General form of letters of attorney, 429 
 Letter of substitution appended to power of attorney, 
 General letter of attorney to collect debts, 
 Revocation of letters of attorney,
 
 448 INDEX. 
 
 FORMS, COMMON, FOR THE TRANSACTION OF BUSINESS. (Continued.) 
 
 Warrant of attorney to confess judgment on note, 431 
 
 Short form of same, 431 
 
 General form of release, 432 
 
 Release of trust deed, 433 
 
 Form of will of real and personal estate, 433 
 
 Form of codicil to a will, 434 
 
 Nomination of executors in a will, 435 
 
 Devise to executor in trust, with power to sell. &c., 435 
 
 FUGITIVES FROM JUSTICE. 
 
 Provisions of statute in relation to, 241, 242 
 
 Form of warrant, in case of, 243 
 
 Form of examination of witnesses, 244 
 
 Form of examination of prisoner, 244 
 
 Form of certificate, 245 
 
 GARNISHMENT. 
 
 Garnishees, when to be summoned, 154 
 
 Form of affidavit for garnishee process on judgment, 154 
 
 Form of garnishee summons, 155 
 
 Form of oath to garnishee, 155 
 
 HAND-WRITING. , 
 
 How proved, 124 
 
 INCLOSURES AND FENCES. 
 
 Statute provisions, 346, 349, 352-354 
 What town officers to be fence viewers, ex offido, 346 
 Before a party can be held liable to make or repair fence, propor- 
 tion to be repaired must be agreed upon, 347 
 Form of agreement to divide partition fence, 347 
 Forms of certificates of fence viewers, 348, 349 
 Form of notice by fence viewers, 350 
 Form of request by adjoining owner, &c., 350 
 Form of notice by two Justices, &c., 351 
 Form of order of two Justices, &c., 351 
 Form of warrant of distress, 352 
 
 INFANTS, (see MINORS.) 
 
 JUDGMENT. 
 
 Definition of, . 137 
 
 Language of, 137 
 
 Different kinds of, in civil cases, 137, 138 
 
 Admission of party not confession of, 139 
 
 JURORS. 
 
 Who competent to serve as, 98 
 
 Attachment against, for default of attendance, 98 
 
 Form of attachment against, 9$ 
 
 Challenging of, 99-102 
 
 Form of oath touching competency of, 102 
 
 Form of oath to try cause, 103 
 
 Fees of, 141 
 
 Form of oath of, in assault and battery, 265
 
 INDEX. 449 
 
 JURISDICTION. 
 
 Justices to have, throughout their county, f 24 
 
 Of Justices of the Peace, conferred by statute, 26, 27 
 
 Of subject matter, 29 
 
 Of the person, 30 
 
 Proceedings without jurisdiction, 31 
 
 Formal plea to, unnecessary, 31 
 
 Pleas to, 66, 67 
 JURY. 
 
 Trial by, 96-103 
 
 Who competent to serve on, 98 
 
 Swearing of, 103 
 
 Form of oath, 103 
 
 Polling, manner of, 109 
 JUSTICE OF THE PEACE. 
 
 Why so called, 1 7 
 
 Antiquity of the office of, 1 8 
 
 Not always held liable for trifling mistakes, 19 
 
 Office exists in this country by statute, 1 9 
 
 To be elected by the people, 1 9 
 
 Term of office, four years, 19 
 
 Election of, in counties not adopting township organization, 20 
 
 When to be elected, 20 
 
 Statute provisions in relation to, 20 
 
 How many to be elected in each precinct, 20 
 
 Vacancy in office, how filled, 21 
 
 Election of, in counties adopting township organization, 21 
 
 When to be elected, 21 
 
 How many elected in each town, 21 
 
 To be commissioned by Governor of State, 21 
 
 Effect of less number of Justices being chosen than allowed 
 
 by law, 22 
 
 Qualification of, 22 
 
 Required to take oath on entering upon the duties of, 23 
 
 Required to give bond, 23 
 
 To whom bond made payable, 23 
 
 Territorial extent of jurisdiction of, 24 
 
 To receive money on demands held for collection, 24 
 
 To whom resignations must be made, 24 
 
 General jurisdiction of, in civil cases, as given by statute, 26, 27 
 
 Cannot take jurisdiction by implication, 29 
 
 How suits shall be instituted before, 40 
 
 When to issue summons for commencement of suits, 40 
 
 When to issue warrant, 46 
 
 Proceedings before, how proved, 125 
 
 Fees of, in civil cases, 140 
 
 To be conservators of the peace, 157, 234 
 
 May require surety of the peace, 157 
 
 28
 
 450 INDEX. 
 
 JUSTICE OF THE PEACE. (Continued.) 
 
 Duty of, when criminal offense is committed, 162-164 
 
 Powers and duties of, under particular statutes, 273-366 
 
 On non-appearance of defendant, cause to be continued by, ten 
 
 days, and notice served on defendant, 380 
 
 To direct Constable to complete panel, on discharge of juror, 380 
 Personal property of defendant bound for payment of judgment 
 
 before, 381 
 
 LARCENY. 
 
 Form of warrant for, . 169 
 
 LEASES. 
 
 Forms for, 426-428 
 
 LIBERATE. 
 
 Form of, to discharge one committed for want of sureties, 240 
 
 MARRIAGES. 
 
 Statute provisions, 355-357 
 
 Form of marriage ceremony, 357 
 A shorter form of same, . 358 
 
 Form of certificate of marriage, 358 
 
 MIKORS. 
 
 To bring suit by next friend, 57 
 
 Security for costs to be given by next Mend of, 57 
 
 Form of bond for security of costs, 57 
 
 MITTIMUS. 
 
 Forms for, 181-184 
 
 Form of, for want of sureties, 239 
 
 Form of, in assault and battery, 267 
 
 NON-IvESIDENTS. 
 
 To give security for costs in commencing suits, 54 
 
 NON-SUIT. 
 
 Justice to give, when plaintiff fails to appear, 58 
 OATH. 
 
 Form of, for warrant, in cases for debt, 47 
 
 Form of, for warrant, in case of trespass or trover, 48 
 
 For warrant, can be made by agent of plaintiff, 48 
 
 Form of, by adverse party, to prove demand, &c., 93 
 
 Form of, for change of venue, 94 
 
 Form of, touching competency of juror, 102 
 
 Form of, for jury to try cause, 103 
 
 Forms of, to witness on trial, 105 
 
 Form of, by party denying signature, 107 
 
 Form of, for Constable retiring with jury, 108 
 
 Form of, in swearing out execution, 149 
 
 Form of, for c r i. sa. 1 52 
 
 Form of, to garnisluv, 155 
 
 Form of, on complaint in criminal cases, 166 
 
 Form of, to witness in criminal examinations, 177 
 
 Form of, to witnesses, in case of fugitives from justice, 242
 
 451 
 
 OATH OF OFFICE. 
 
 Form of, for Justice of the Peace, 23 
 
 OATHS AND AFFIRMATIONS. 
 
 Nature of an oath, 90 
 
 Nature of an affirmation, 91 
 
 General form of oath, 91 
 
 Form of affirmation, 91 
 
 OBSERVANCE OF THE PEACE. 
 
 Proceedings in relation to, 234-240 
 
 Justice may compel certain persons to give sureties for, 234 
 
 In default of such surety, may commit to prison, 234 
 
 PARTIES TO THE ACTION. 
 
 Who shall be plaintiffs, 61, 62 
 
 Who shall be defendants, 62 
 
 When may be sworn, 105 
 
 Form of oath, 81 
 
 Not to deny signature except made under oath, 106 
 
 Form of oath denying signature, 107 
 
 Have benefit of certain provisions on appeals, 145 
 
 PERSONAL PROPERTY. 
 
 Injuries to, 36, 37 
 
 PLEADINGS. 
 
 In general, 60, 61 
 
 Proper parties to the action, 61 
 
 Of the plaintiffs, 61, 62 
 
 Of the defendants, 62 
 
 In Justice's courts, 62, 63 
 
 Of the declaration, 63-66 
 
 On the part of defendant, 66-77 
 
 When incumbent on defendant to plead, 66 
 
 General order of, 66 
 
 To the jurisdiction and in abatement, 66-68 
 
 Pleas in bar, 71-73 
 
 General issue, when to plead, 73 
 
 Set-off, 73 
 
 Recoupment, 74 
 
 Pleas puis darrein continuance, 75 
 
 Pleading title, 75-77 
 
 Of the replication, 77 
 
 Of demurrers, 77, 73 
 
 PLEAS PUIS DARREIN CONTINUANCE. 
 
 When may be interposed. 75 
 
 POWERS OF ATTORNEY. 
 
 Forms for, 429-432 
 
 QUALIFICATION. 
 
 Of Justice of the Peace, 22 
 
 Required to be sworn, 22 
 
 Required to give bond, 22
 
 452 INDEX. 
 
 QUALIFICATION. 
 
 Of Justice of the Peace. (Continued.) 
 
 To whom the bond shall be made payable, 22 
 
 Form of oath of office, 23 
 
 Form of official bond, 2" 
 Of Constable. 
 
 Required to be sworn, 370 
 
 Must give bond, 370 
 
 To whom bond made payable, 371 
 
 Form of bond, 371 
 
 Form of oath of office, 371 
 Form of instrument to be executed by Constable and 
 
 sureties, for performance of duties, 374 
 QDI TAM ACTION. 
 
 When brought for trespass by cutting timber, 44, 75 
 
 Form of summons in case of, 44 
 
 Security for costs to be given in, 55 
 REAL PROPERTY. 
 
 Injuries to, 37, 38 
 
 RECOGNIZANCE. 
 
 Of defendant, on pleading title to land, 7 1 
 
 Justice to take, of prisoner, 173 
 
 To be taken to the people in criminal matters, 179 
 
 Form of, by prisoner, 179 
 
 Form of, by two prisoners, 1 80 
 
 Form of, by infant or married woman, 180 
 
 Of witness in criminal examinations, 185 
 
 Forms for, of witness in criminal examinations, 186 
 
 Form of, by prisoner after commitment, 190 
 
 Form of, by witness after commitment, 191 
 
 Form of, for the peace or good behavior, 238 
 RECOUPMENT. 
 
 Mutual demands may be adjusted by, 74 
 RELEASES. 
 
 Forms for, 432, 433 
 
 REPLICATION. 
 
 Nature of, 77 
 RESIGNATION. 
 
 Of Justice of the Peace, 24, 25 
 To whom made, 24 
 Books and papers must be handed to nearest Justice, 25 
 Of Constable, 372, 375 
 To whom made in counties not adopting township organi- 
 zation, 372 
 In counties adopting township organization, 37") 
 KK;HT OF PROPERTY, TRIAL OF, 
 
 Statute provisions, 359-362 
 
 What evidence may be introduced on, between mortgagee and 
 
 execution creditor of mortgagor, 362
 
 INDEX. 458 
 
 RIGHT OF PROPERTY, TRIAL OF. (Continued.) 
 
 When justice may proceed in, 362 
 
 Constable hel'd responsible for giving notices, 362 
 Plaintiff must show title to property in actions of trespass against 
 
 others than Constable, 363 
 Defendant in execution cannot be witness in, 363 
 Landlord distraining goods of tenant subsequently taken in exe- 
 cution, may claim them on, 363 
 What is sufficient to state in notice served on Constable by 
 
 claimant, 363 
 
 Effect of verdict against claimant, 363 
 
 Claimant must show affirmatively his right of property, 363 
 
 Claimant cannot object to execution on, in circuit court, 363 
 
 Form of notice to Constable, 363 
 
 Form of notice to plaintiff, 364 
 
 Form of subprena for witness, 364 
 
 Form of finding of jury, 365 
 
 Form of execution for costs, 365 
 
 Forthcoming bond to Constable, in case of appeal, 366 
 
 SABBATH BREAKING. 
 
 Form of warrant for offense in Justice's presence, 252 
 
 Form of information, 252 
 
 Form of warrant, on information, 253 
 
 Form of record of conviction for offense in view of Justice, 253 
 
 Form of record of conviction on information, 254 
 
 Form of warrant of distress to levy fine and costs, 254 
 
 SEARCH WARRANTS. 
 
 Provisions of statute in relation to, 246 
 
 Form of, 247 
 
 Form of warrant for witness in case of, 247 
 
 Form of record in case of, 248 
 
 SECURITY FOR COSTS. 
 
 To be given in suits by non-residents, 54 
 
 Form of bond for, 55 
 
 To be given in suits on office bonds, 55 
 
 In what other actions to be given, 55 
 
 To be given by next friend in suit by minor, 57 
 
 Form of bond for, by next friend, 57 
 
 SET-OFF. 
 
 Party not bound to give credit for exact amount of, before trial, 28 
 
 To what amount Justice has jurisdiction in case of, 28 
 
 When may be proved by oath of defendant, 81 
 
 Form of oath of defendant to prove, 81 
 
 SIGNATURE. 
 
 Party not to deny except under oath, 106 
 
 Form of oath, 107 
 
 SPECIAL BAIL. 
 
 Defendant may give, when arrested on warrant, 49 
 
 Form of, 49
 
 454 INDEX. 
 
 I 
 
 SPECIAL BAIL. (Continued.) 
 
 Form of summons against, 50 
 
 Defendant may be surrended by, 51 
 
 May arrest principal on Sunday, 51 
 
 SPECIAL CONSTABLES. 
 
 When and how appointed, 375, 376 
 
 STATEMENT OF OFFENSES, FORMS OF. 
 
 For murder, 193, 194 
 
 For suspicion of murder, 194, 195 
 
 Against accessories, 195, 196 
 
 For manslaughter, 196 
 
 For suspicion of manslaughter, 196 
 
 For mother concealing death of bastard child, 196 
 
 For dueling, 197 
 
 For challenging a person to fight a duel, 197 
 
 For accepting a challenge to fight a duel, 197 
 
 For delivering a challenge, 198 
 
 For being present at the fighting of a duel as a second, 198 
 
 For attempt to murder by poisoning, 1 98 
 For administering poison to procure the miscarriage of a woman 
 
 with child, 198 
 
 For mayhem, 1 99 
 
 For a rape, 199 
 For having carnal knowledge of a female child under ten years 
 
 of age, 199 
 
 For sodomy, 1 99, 200 
 
 For an assault with intent to commit murder, 200 
 
 For an assault with intent to commit rape, 200 
 
 For an assault with intent to commit robbery, 200 
 
 For an assault with a deadly weapon, with intent to inflict a 
 
 bodily injury, 200 
 
 For false imprisonment, 201 
 
 For kidnapping, 201 
 
 For kidnapping free negroes, 201 
 
 For arson, 202 
 
 For suspicion of arson, 202 
 For setting fire to a storehouse, c., with intent to burn the same, 202 
 
 For burglary and larceny, 202 
 
 For suspicion of burglary and larceny, 203 
 
 For burglary, 203 
 
 For suspicion of burglary, 20."> 
 
 For robbery, 204 
 
 For larceny, 204 
 
 For suspicion of larceny, 204 
 
 For suspicion of stealing a horse, &c., 205 
 For suspicion of larceny in stealing writings relating to real estate, 205 
 
 For suspicion of larceny in stealing a promissory note. 205 
 
 For picking pockets or otherwise privately stealing from the 
 
 person, 205
 
 INDEX. 
 
 455 
 
 STATEMENT or OFFENSES, FORMS OF. (Continued.) 
 
 For larceny in stealing from a house in the 'day-time, 206 
 
 For receiving stolen goods, 206 
 
 For suspicion of receiving stolen goods, 206 
 
 For marking or branding a horse, &c., with intent to steal him, 206 
 
 For altering or. defacing marks or brands, 207 
 
 For officers embezzling money, &c., 207 
 
 For officers failing and refusing to pay over money, &c., 207 
 
 For fraudulently and maliciously destroying papers, &c., 208 
 
 For removing land-marks, 208 
 
 For embezzlement by a clerk, servant, &c., 208 
 
 For forging a will, 209 
 
 For suspicion of forging a deed of lands, 209 
 
 For forging a promissory note, 209 
 
 For suspicion of forging a promissory note, 210 
 
 For suspicion of forging a receipt, 210 
 
 For suspicion of forging bank notes, 210 
 
 For uttering a forged bank note, 211 
 
 For uttering an altered bank note, 21 1 
 
 For uttering a forged county order, 211 
 
 For counterfeiting coin, 21 1 
 
 For suspicion of counterfeiting coin, 212 
 
 For passing counterfeit coin, 212 
 
 For offering to pay counterfeit coin, 212 
 
 For having in possession counterfeit coin, with intent to ntter, 212 
 For having in possession forged bank bills, with intent to pass 
 
 them, 213 
 
 For having in possession fictitious notes, with intent to utter, 213 
 
 For having in possession apparatus for counterfeiting coin, 213 
 For having in possession apparatus for counterfeiting bank bills, 214 
 
 For perjury, 214 
 
 For subornation of perjury, 215 
 
 For acknowledging a deed in the name of another, 216 
 
 For resisting an officer in the discharge of his duty, 216 
 For rescues, 217, 218 
 
 For assisting a prisoner to escape, 218 
 
 Against an officer, for escape of prisoner, 219 
 
 For officer refusing to arrest, 219 
 
 For compounding offense, 220 
 
 For embracery, 220 
 
 For common barratry, 221 
 
 For maintenance, 221 
 
 For extortion, by a Justice, 221 
 
 For extortion, by Constable, 222 
 
 For disturbing the public peace, 223 
 
 For an unlawful assembly, 223 
 
 For a rout, 224 
 
 For a riot, 224
 
 456 INDEX. 
 
 STATEMENT OF OFFENSES, FORMS OF. (Continued.) 
 
 For bigamy, against the husband, 225 
 
 For bigamy, against the wife, 225 
 
 For marrying wife of another, 225 
 
 For incest, 225 
 
 Against a father, for cohabiting with his daughter, 225 
 
 For adultery, 225 
 
 For fornication, 226 
 
 For keeping a disorderly house, 226 
 
 For open lewdness, 226 
 
 For keeping a lewd house, 226 
 
 For keeping an open tippling house on the Sabbath, 227 
 
 For keeping a common gaming house, 227 
 For obstructions, 227, 228 
 
 For selling unwholesome provisions, 228 
 
 For defacing notices, 228 
 
 For having tools to break into dwelling-house, &c., 229 
 
 For having weapons with intent to assault, &c., 229 
 
 For disinterring the dead, 229 
 
 For voting more than once at an election, 230 
 
 For fraudulently conveying property, &c., 230 
 
 For swindling, 231 
 
 For obtaining goods, &c., by false pretenses, 231 
 
 For fraudulently selling land a second time, 231 
 
 For selling by false weights, &c.,' 232 
 
 For destroying a bridge, c., 232 
 
 For suspicion of girdling fruit trees, 232 
 For maliciously killing an ox, &c., . 233 
 
 For suspicion of maliciously disfiguring a horse, 233 
 
 For setting on fire prairie, &c., 233 
 
 SUBPCEXA. 
 
 When Justice shall issue, 79 
 
 General form of, 79 
 
 Form of subpoena duces tecum, 80 
 
 Form of, in assault and battery, 265 
 
 SUITS. 
 
 Manner of instituting before Justices, 40 
 
 When commenced by summons, 40 
 
 What considered commencement of, 40 
 
 By voluntary agreement of parties, 52 
 
 To be dismissed when plaintiff fails to appear, 58 
 
 SUMMONS. 
 
 General form of, 4 1 
 
 When made returnable, 41 
 To be served ut least three days before trial, 41, 377 
 
 Form of indorsement on, 41 
 
 Form of, in trespass on personal property, 43 
 
 Form of, in trover, 43
 
 INDEX. 
 
 457 
 
 SUMMONS. ( Continued. ) 
 
 Form of, in debt, 43 
 
 Form of, in debt by cutting timber, 44 
 
 Form of, in qui tarn actions, 45 
 
 Form of, against special bail, 50 
 
 General rules applicable to, 52-54 
 
 To be issued by circuit clerk in cases of appeal, 145 
 
 Form of, against garnishee, 155 
 
 Form of Constable's return on, 377, 378 
 
 SUNDAY. 
 
 Special bail may arrest his principal on, 51 
 
 SUPEESEDEAS. 
 
 To be issued by circuit clerk in case of appeals,. 144 
 
 SURETY OF THE PEACE. 
 
 In what it consists, 234 
 
 Form of mittimus for want of, 239 
 
 TRANSCRIPT. 
 
 Of Justice's judgment, when filed in circuit clerk's office, 141 
 
 When filed, to have effect of judgment in circuit court, 141 
 
 To be certified by Justice making same, 142 
 
 Form of, 142 
 
 TRESPASS . 
 
 On personal property, Justices have jurisdiction in cases of, 27 
 
 On real estate, Justices have jurisdiction in cases of, 28 
 
 Trespass generally, 36 
 
 Trespass on personal property, what it lies for, 36, 37 
 
 Injuries to real property defined, 37, 38 
 
 Form of summons in, 43 
 
 Warrant in action of, 47 
 
 Form of oath, for warrant in case of, 48 
 
 What may be given in evidence under general issue in. 73 
 
 TRIAL. 
 
 In the absence of defendant, 95 
 
 Before the Justice without a jury, 95, 96 
 
 Trial by jury, 96-103 
 
 When jury demanded, and how obtained, 96, 97 
 
 Proceedings on, 103-10!) 
 
 TROVER. 
 
 Of the action of, 39 
 
 Form of summons in, 43 
 
 Warrant in action of, 47 
 
 Form of oath, for warrant in case of, 48 
 
 What may be given in evidence, under general issue in, ~~2 
 
 VACANCIES. 
 
 In the office of Justice, how filled, 21 
 
 In the office of Constable, how filled, 369, 37<> 
 
 VARIOUS MISDEMEANORS. 
 
 Proceedings in relation to, 350 
 
 Provisions of statute, 250-252
 
 458 INDEX. 
 
 VENIRE. 
 
 When to be granted, 94 
 
 Form of oath for, 94 
 
 Duty of Justice on application for, 94 
 
 Form of Justice's certificate to accompany papers, 94 
 
 General form of, 97 
 
 New venire, when issued, 102 
 Service and return of, by Constable, 379, 380 
 
 Duty of Constable on receiving, 379 
 
 Form of return on, 379 
 VERDICT. 
 
 Manner of receiving, 109 
 VOIR DIRE. 
 
 Juror may be examined on, 102 
 
 Witness may be examined on, 105 
 
 Form of oath of, 105 
 WARRANT. 
 
 General forms of, in civil cases, 46 
 
 Justice to issue in action of trespass or trover, 47 
 
 Form of oath for, in cases for debt, 47 
 
 Form of oath for, in case of trespass or trover, 48 
 
 General rules applicable to, 52, 54 
 General requisites of, in criminal cases, 166-168 
 
 General form of, 168 
 
 Form of, to a private person, 168 
 
 Form of order on, to private person, 168 
 
 Form of, for larceny, 169 
 
 Form of, for burglary, 170 
 Form of, for hue and cry, 170-172 
 
 Form of, for the peace, 235 
 Form of, for good behavior, 236, 237 
 
 Form of, in case of fugitives from justice, 243 
 
 Form of, for witness, in case of search warrant, 247 
 Sen-ice and return of, by constable, 378, 379 
 Officer no right to break open dwelling-house, in serving, 378 
 But if defendant escape from officer, dwelling-house no 
 
 protection, 379 
 
 Defendant may give special bail when arrested on, 379 
 
 Form of special bail to be indorsed on, 379 
 
 Form of Constable's return on, 379 
 
 WILLS. 
 
 Forms for, 433-435 
 
 WITNESS. 
 
 Attachment against, in default of attendance, 82 
 
 Form of attachment, 83 
 
 Form of oath of, generally or in chief, 105 
 
 Form of oath of, on voir dire, 105 
 
 Form of oath of, to prove interest of another witness, 105
 
 INDEX. 459 
 
 WITNESSES. 
 
 Fees allowed to, 80 
 Competency of, 116-121 
 
 Examination of, 121 
 
 Fees of, 141 
 
 Who may be, in criminal cases, 161 
 
 Form of examination of, in case of fugitives from justice, 244 
 
 WORSHIPING ASSEMBLIES. 
 
 Forms of complaint in case of di*turbinr, 255, 256 
 
 Form of warrant, 257 
 
 Record of conviction, 257 
 
 Warrant of distress, 258

 
 n 
 
 S55