26 Ill. 28 | Ill. | 1861
This is an action commenced by scire facias upon a recognizance of record. The scire facias contains all the necessary averments, and requires the parties to appear and show cause why final judgment should not be entered against them, on failure of Marquet, the party indicted, to appear and answer to the indictment. The recognizance was to appear at the April term, 1857, of the Warren Circuit Court, and entered into at the November term, 1856. In the winter of 1856-7, the legislature changed the time of holding that court to March, at which term the recognizance was forfeited, and a conditional judgment entered against Marquet and his surety, Brown, and a scire facias ordered, to show cause at the next term why final judgment should not be entered against them. At the September term, 1857, there being no appearance of the parties, an alias sci. fa. was ordered, and an alias capias ordered to issue to the sheriff of Knox county, with bail indorsed of one thousand dollars. At the March term, 1859, a similar order was made. The scire facias commanded both Marquet and Brown to appear-and show cause at the October term, 1859, why final judgment should not be entered.
The special pleas presented by the defendant do not, in our opinion, show any suEcient reason why the appearance of the party indicted was not had at the March term, 1857, or at some subsequent term. The fact that he was arrested on a capias issued by the Circuit Court of Warren county, and executed in Knox county by the arrest there of the defendant, is no performance of .Brown’s undertaking, or any suEcient excuse for nonperformance. Non constat but that the surety could have had the body at the March term, 1857, of the Warren Circuit Court, or at some other term. The surety is the living prison of the party bailed, and he had the power, at any moment, on his own motion, to take, detain and surrender his principal. Chap. 30, Rev. Stat. 1845, sect. 196, p. 187. He was his keeper, and had him in a string, which he might pull whenever he pleased, and render him in his discharge. The surety could take him on any day, Sunday not excepted, and for that purpose break down doors and drag him from his bed at midnight. Commonwealth v. Brickett, 8 Pick. 138. And this power is coextensive with the limits of the State—it has no other bounds. If necessary, the surety could petition for and obtain a writ of habeas corpus ad subjiciendum. He is clothed with all the power necessary to enable him to fulfill his undertaking, and nothing can excuse him except the death of his principal. Hurd on Habeas Corpus, 67.
The pleas show no excuse for the non-surrender of the principal. The judgment of the Circuit Court is aErmed.
Judgment affirmed.
