COURTS OF RECORD.

In force July 1, 1872.

summons.

AN ACT in regard to practice in courts of record.

SECTION 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly, That the First process, first process in all actions to be hereafter commenced in any of the courts of record in this state shall be a summons, except actions where special bail may be required; which summons shall be issued under the seal of the court, tested in the name of the clerk of such court, dated on the day it shall be issued, and signed with his name, and shall be directed to the sheriff, (or, if he be interested in the suit, to the coroner of the county,) and shall be made returnable on the first day of the next term of the court in which the action may be commenced. If ten days shall not intervene between the time of suing out the summons and the next term of court, it shall be made returnable to the succeeding term. The plaintiff may, in any case, have summons made returnable at any term of the court which may be held within three months after the date thereof.

be brought.

Suits, where to § 2. It shall not be lawful for any plaintiff to sue any defendant out of the county where the latter resides or may be found, except in local actions, and except that in every species of personal actions, in law, when there is more than one defendant, the plaintiff commencing his action where either of them resides may have a writ or writs issued, directed to any county or counties where the other defendants, or either of them, may be found: Provided, that if a verdict shall not be found, or judgment rendered against the defendant or defendants, resident in the county where the action is commenced, judgment shall not be rendered against those defendants who do not reside in the county, unless they appear and defend the action. Actions against a railroad company may be brought in the county where its principal office is located, or in the county where the cause of action accrued, and into or through which its road may

run.

§ 3. It shall be the duty of the sheriff or coroner to serve all process of summons, or capias, when it shall be practicable, ten days before the return day thereof, and to make return of such process to the clerk who issued the same, by or on the return day, with an indorsement of his service, the time of serving it, and the amount of his fees: Provi ded, that when such process shall have been directed to a foreign county, the officer executing the same may make return thereof by mail; and the clerk may charge the postage, and tax the amount in his fee bill.

Incorporate

4. An incorporated company may be served with process, by leaving a copy thereof with its president, if he can company. be found in the county in which the suit is brought; if he shall not be found in the county, then by leaving a copy of the process with any clerk, secretary, superintendent, general agent, cashier, principal, director, engineer, conductor, station agent, or any agent of said company found in the county.

a county.

§ 5. Process against a county may be served by leaving Process against a copy thereof with the clerk or chairman of the county board, or clerk of the county court in counties not under township organization, until a board of county commissioners is elected, as provided in the constitution."

Sults against a

$6. In suits against a city, village or town, process may city, village or be served by leaving a copy thereof with the mayor or city town. clerk, in case of a city, and with the president of the board of trustees or clerk, in the case of a village, and with the supervisor or town clerk, in the case of a town.

7. If it shall not be in the power of the sheriff or coroner to serve a summons or capias ten days before the return day thereof, he may execute the same at any time before, or on the return day; but if not served ten days before the return day thereof, the defendant shall be entitled to a continuance, and shall not be compelled to plead before the next succeeding term.

Ten days be

fore return day.

found.

When

sum

mons is served on one or more

$ 8 Whenever it shall appear, by the return of the Defendant not sheriff or coroner, that the defendant is not found the clerk shall at the request of the plaintiff issue another summons or cupias, as the case may be, and so on until service is had. § 9. It a summons or capias is served on one or more, but not on all of the defendants, the plaintiff may proceed to trial and judgment against the defendant or defendants defendant. on whom the process is served, and the plaintiff may, at any time afterwards, have a summons, in the nature of scire facias, against the defendant not served with the first process, to cause him to appear in said court, and show cause why he should not be made a party to such judgment; and upon such defendant being duly served with such process, the court shall hear and determine the matter in the same manner as if such defendant had been originally summoned or brought into court, and such defendant shall also be allowed the benefit of any payment or satisfaction which may have been made on the judgment before recovered, and the judgment of the court against such defendant shall be that the plaintiff recover against such defendant, together with the defendant in the former judgment, the amount of his debt or damages, as the case may be.

§ 10. It shall not be necessary hereafter, in any action Mandamus or of mandamus or quo warranto, to set out the cause of action quo warranto. in the writ, but it shall be sufficient to summon the defendant

in a summons in the usual form, commanding the defenda

When

to appear and answer the plaintiff in an action of mandamus or quo warranto, as the case may be, and the issues shall be made up by answering, pleading or demurring to the petition as in other cases.

joint 11. When several joint debtors are sued and any one debtors are sued or more of them shall not be served with process, the pen

set.

Causes to be

To be tried in

dency of such suit or the recovery of a judgment against the parties served shall be no bar to a recovery on the original cause of action against such as are not served, in any suit which may be brought against them in any other place than in the county where the first suit is brought. This section shall not be so construed as to allow more than one satisfaction.

§ 12. If any sheriff or coroner to whom any summons, capias or subpena shall be delivered, shall neglect or refuse to make return of the same before or on the return day of such process, the plaintiff may enter a rule requiring said sheriff or coroner to make return of such process on a day to be fixed by the court, or to show cause on that day why he should not be attached for a contempt of the court; and the plaintiff shall, thereupon, cause a written notice of such rule to be served on such sheriff or coroner; and if good and sufficient cause be not shown to excuse such officer, the court shall adjudge him guilty of a contempt, and shall proceed to punish such officer as in other cases of contempt.

§ 13. The clerk of any court in which a suit is pending shall, from time to time, issue subpenas for such witnesses, and to such counties in the state, as may be required by either party; and every clerk who shall refuse so to do, shall be fined, at the discretion of the court, in any sum not exceeding one hundred dollars.

§ 14. The clerks of the courts shall keep a docket of all the causes pending in their respective courts, in which shall be entered the names of the parties, the cause of action, and the name of the plaintiff's attorney, and he shall furnish the judge and bar, at each term, with a copy of the same, in which all indictments and causes to which the people may be a party shall be first set down, after which shall be set down all cases in law, in order, according to the date of their commencement, and lastly, the suits in chancery. Where the business of the court shall be so large as to require it, separate dockets may be made of the criminal, law and chancery

cases.

§ 15. The clerk shall set and apportion the causes for as many days of the term as he may think necessary, or be directed by the judge; and all subpenas for witnesses shall be made returnable on the day on which the cause in which the witnesses are to be called is set for trial, or the first day of the term, when such day has not been fixed.

§ 16. All the canses shall be tried or otherwise disposed order docketed. of in the order they are placed on the docket, unless the court, for good and sufficient cause, shall otherwise direct.

§ 17. If the plaintiff shall not file his declaration, to- Continuance at gether with a copy of the instrument of writing or account cost of plaintiff. on which the action is brought, in case the same be brought on a written instrument or account, ten days before the court at which the summons or capias is made returnable, the court, on motion of the defendant, shall continue the cause at the cost of the plaintiff, unless it shall appear that the suit was commenced within ten days of the sitting of the court, in which case the cause shall be continued without costs, unless the parties shall agree to have a trial; and if no declaration shall be filed ten days before the second term of the court, the defendant shall be entitled to a judgment, as in case of a non suit: Provided, that in all suits by capias, where the defendant shall have been arrested, and in replevin and attachment, the plaintiff may be required to file his declaration at the first term, and the defendant may have a trial at such term, unless sufficient cause for a continuance is shown.

Instruments

18. Any deed, bond, note, covenant or other instrument under seal (except penal bonds), may be sued and de- under seal. clared upon or set-off as heretofore, or in any form of action in which such instrument might have been sued and declared upon or set off if it had not been under seal, and demands upon simple contracts may be set-off against demands upon sealed instruments, judgments or decrees.

instrument.

§ 19. It shall not be necessary, in any pleading, to make Profert of the profert of the instrument alleged; but in any action or defense upon an instrument in writing, whether under seal or not, if the same is not lost or destroyed, the opposite party may have oyer thereof, and proceed thereon in the same manner as if profert had been properly made according to the common law.

nal bonds.

§ 20. In actions brought on penal bonds, conditioned Actions on pefor the performance of covenant, the plaintiff shall set out the conditions thereof, and may assign in his declaration as many breaches as he may think fit; and the jury, whether on trial of the issue or of inquiry, shall assess the damages for so many breaches as the plaintiff shall prove, and the judgment for the penalty shall stand as a security for such other breaches as may afterwards happen, and the plaintiff may, at any time afterwards, sue out a writ of inquiry to assess damages for the breach of any covenant or covenants contained in such bond, subsequent to the former trial or inquiry; and whenever execution shall be issued on such judgment, the clerk shall indorse thereon the amount of damages assessed by the jury, with the costs of suit, and the sheriff or coroner shall only collect the amount so indorsed: Provided, that in all cases where a writ of inquiry of damages shall be issued for any such breaches subsequent to the first trial or inquiry, the defendant, or his agent or

Trespass.

Counts joined.

Amendments.

When defendant is added.

attorney, shall have at least ten days' notice, in writing, of the time of executing the same.

21. The distinctions between the actions of "trespass" and "trespass on the case" are hereby abolished; and in all cases where trespass or trespass on the case has been heretofore the appropriate form of action, either of said forms may be used, as the party bringing the action may elect.

22. Counts in trover and replevin may be joined in the same action.

§ 23. At any time before final judgment in a civil suit, amendments may be allowed on such terms as are just and reasonable, introducing any party necessary to be joined as plaintiff or defendant, discontinuing as to any joint plaintiff or joint defendant, changing the form of the action, and in any matter, either of form or substance, in any process, pleading or proceeding which may enable the plaintiff to sustain the action for the claim for which it was intended to be brought or the defendant to make a legal defense. The adjudication of the court allowing an amendment shall be conclusive evidence of the identity of the action.

24. In case another defendant is added, summons may issue against such defendant, returnable to the next term of court, and he may be proceeded against in the same manner as if he had been made a defendant at the commencement of the suit.

§ 25. No amendment shall be a cause for a continuance unless the party affected thereby, or his agent or attorney, shall make affidavit that in consequence thereof he is unprepared to proceed to or with the trial of the cause at that term, and that he verily believes that if the cause is continued, he will be able to make such preparation.

§ 26. It shall not be necessary to file a declaration in any scire facias to revive a judgment or foreclose a mortgage, in any court of record in this state.

$27 On the appearance of the defendant or defendants, the court may allow such time to plead as may be deemed reasonable and necessary.

§ 28. The defendant may plead as many matters of fact in several pleas as he may deem necessary for his defense, or may plead the general issue, and give notice, in writing, under the same, of the special matters intended to be relied on for a defense on the trial; under which notice, if adjudged by the court to be sufficiently clear and explicit, the defendant shall be permitted to give evidence of the facts therein stated, as if the same had been specially pleaded and issue taken thereon.

§ 29. The defendant in any action brought upon any contract or agreement, either expressed or implied, having claims or demands against the plaintiff in such action, may plead the same, or give notice thereof, under the general issue, or under the plea of payment; and the same, or such