Matson v. Swanson

Mr. Justice Scholfield delivered the opinion of the Court: The Appellate Court reversed the judgment of the circuit court, as we learn from its opinion, (Swanson et al. v. Matson, 31 Ill. App.) on two grounds: First, that the judgment of Carlson v. Bodelsen is not stated in the declaration; and second, that the bond declared upon is void. However obnoxious the declaration may have been to demurrer on the first of these grounds, we are of opinion that ground is not tenable as an objection on motion in arrest. This objection is not, that that which is attempted to be stated is not a cause of action, but that a cause of action is defectively stated, and that can not be urged on motion in arrest of judgment. Gould’s PI. sec. 13, chap. 10, p. 496; 1 Chitty’s PL (7th Am. ed.) 710; 2 Tidd’s Pr. - (4th Am. ed.) pp. 918, 919. Moreover, if the ruling of the Appellate Court rested on that ground alone, the record should have been remanded to the circuit court, in order that the declaration might be amended, and there be a trial de novo upon the amended declaration. Rev. Stat. 1874, chap. 110, sec. 59. The reason expressed in the opinion, for which the bond is held to be void, is, there is no statute or common law authority for setting at liberty, temporarily, on any form of security, one in custody under valid final process in a civil case, except under the acts concerning insolvents. The statute of 23 Henry VI, chap. 9, recited in Bacon’s Abr. title “Sheriff, O,” and Sullivan v. Alexander, 19 Johns. 233, are cited in support of this position. The statute and the case referred to have reference exclusively to the action of the sheriff when acting of his own motion, and have no reference to cases wherein he is acting under the direct orders of a court of competent jurisdiction, as is clearly apparent from an examination of them. But our “Habeas Corpus act” makes it the duty of circuit courts, and of the judges thereof in vacation, upon proper petition, to issue writs of habeas corpus, and allows them to thereupon discharge from the custody of sheriffs, prisoners held by virtue of process from courts legally constituted, in seven enumerated classes of cases. Rev. Stat. 1874, chap. 65, sec. 22. The right to admit to bail after the return of the writ, pending the hearing, is conceded by counsel for appellees to be within the discretion of the court, but they insist that such right does not exist until after the return of the writ. But if there is power to issue writs of habeas corpus in certain cases, and power to admit to bail pending the hearing upon that writ, since, in this case, the petitioner was, by his petition, before the court, there was, at least so far as his rights were concerned, jurisdiction of the subject matter and of the person, and therefore, however erroneous the order to issue the writ of habeas corpus and admit to bail, it was not void; and the sheriff had no discretion, but was bound to obey the writ when he received it, and to admit the petitioner to bail when he tendered the prescribed bond. The moment the sheriff received the writ of habeas corpus, the custody of the petitioner by virtue of the writ of capias ad satisfaciendum, terminated, and his custody, by virtue of the writ of habeas corpus, began, because the authority of all other writs gives way and yields to the authority of that writ. The petitioner was not compelled to give bail, but he had the right to do so, under the order of the court, and he elected to avail of that right, and to be thereby relieved from imprisonment pending the hearing. When, therefore, the petitioner gave the bail, he was not held under the writ of capias ad satisfaciendum, but under the writ of habeas corpus, and so it was the act of the court in ordering the writ of habeas corpus, and not the act of the sheriff in admitting him to bail, that released him from custody under the former writ. In re Kaine, 14 How. 133; Barton v. Clise, 12 Wall. 400; Pomeroy v. Lappeus, 9 Ore. 363; Hurd on Habeas Corpus, p. 324; 9 Am. and Eng, Ency. of Law, p. 200, and cases cited. And had the prayer of the writ, on the hearing of the habeas corpus, been denied, the petitioner would have been simply remitted back to the custody of the sheriff, under the writ of capias ad satisfaciendum. (King v. Bethel, 5 Mod. 22.) Our conclusion therefore is, that the bond is not void. Counsel for appellees object that the bond was declared forfeited on the 12th of February, 1887, and that the record does not show that the habeas corpus was continued until that day. Under the statute, the case on the petition not having been disposed of, it was continued without any order of court, from term to term, until the forfeiture was taken. Norfolk v. People, 43 Ill. 11; Stokes v. People, 63 id. 489; Gallagher et al. v. People, 88 id. 335. The judgment of the Appellate Court is reversed, and the judgment of the circuit court is affirmed. Appellant will recover all costs made in the Appellate Court and this court, and execution will issue therefor from this court. Judgment reversed.