AN ACT to revise the law in relation to costs. [Approved February 11, 1874. In force July 1, 1874.]

Security for costs. SEC. 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly, That in all actions in any court of record on official bonds for the use of any person, actions on the bonds of executors, administrators or guardians, qui tam actions, actions on a penal statute, and in all cases in law or equity, where the plaintiff, or persons for whose use an action is to be commenced, shall not be a resident of this State, the plaintiff, or person for whose use the action is to be commenced, shall, before he institutes such suit, file or cause to be filed, with the clerk of the court in which the action is to be commenced, security for costs, substantially in the following form:

A B. v. C D-(title of court.)

A. D. 18

Scam

I, (EF.) do enter myself security for all costs which may accrue in the above cause. Dated this day of (Signed) E F. [Security for costs before justice. See "Justices and Constables," ch. 79. §§ 15, 16: R. S. 1845, p. 126, § 1; Lewiston v. Proctor, 23 Ill. 534; Jacksonville v. Block, 36 Ill. 507; Caton v. Harmon, 1 Scam. 581: O'Connell v. Rea, 51 Ill. 306; Buckland v. Goddard, 36 Ill. 206; Lapointe v. Stewart, 16 Ill. 291; Phelps v. Funkhouser, 40 Ill.27; Adams v. Miller, 12 Ill. 27; Roberts v. Fahs, 32 Ill. 474; Buckmaster v. Beames, 3 Gilm. 97; Young v. Campbell, 4 Gilm. 156; Burger v. Belsley, 45 l. 73: Himes v. Blakesley, 21 . 509; King v. Thompson, 3 184; Clark v. Quackenboss, 28 Ill. 112; Town v. Moffatt, 42 Ill 49; Randolph v. Emerick, 13 Ill. 344; Dunning v. Dunning, 37 11. 306; People v. Cloud, 50 Ill. 439; Shaw v. Hawkluft, 21 Ill. 128 Ball v. Bruce, 27 III 332; Campbell v. Giblin, 19 Ill. 54; Courson v. Browning, 78 111. 209; Papineau v. Belgarde, 81 111. 61; Smith v. McLaughlin, 77 Ill. 596; Quincy v. Ballance, 30 Ill. 185; Trustees, etc., v. Walters, 12 Ill. 156; Smith v. Robinson, II Ill. 119; Wood v. Goss, 24 Ill. 626; Casey v. Horton, 36 Ill. 234; Farnsworth v. Agnew, 27 Ill. 42; Robertson v. County Com., 5 Gilm. 565; Adams v. Miller, 14 Ill. 71; Buck master v. Beames, 3 Gilm, 1; Henderson v. Welch, 3 Gilm. 340; Winslow v. New lan, 45 Ill. 145; Warnock v. Russell, 1 Sam. 383; Linn v. Buckingham, 1 Scam. 45; Whitehurst v. Coleen, 53 III 249; Waldo v. Averett, 1 Scam. 487; Edwards y. Helm, 4 Scam. 146; Frasure y Zimmerly, 25 Ill. 202; Yocum v. Waynesville, 39 Ill.220;

Ruckman v. Alwood, 40 Ill. 128; Leadbeatter v. Roth, 25 Ill. 587: Teague v. Wells, Breese, 377.

2. Approval-effect of bond. § 2. Such instrument shall be signed by some responsible person, being a resident of this State, to be approved by the clerk, and shall bind such person to pay all costs which may accrue in such action, either to the opposite party or to any of the officers of the court in which the action is commenced, or to which it is removed by change of venue or appeal. [R. S. 1845, p. 126, § 1.

3. Dismissal for want of security for costs. 3. If any such action shall be commenced without filing such instrument of writing, the court on motion shall dismiss the same, and the attorney of the plaintiff shall pay all costs accruing thereon, unless the security for costs shall be filed within such time as shall be allowed by the court, and when so filed it shall relate back to the commencement of the suit; the right to require security for costs shall not be waived by any proceeding in the

cause.

[R. S. 1845, p. 126, §2; Courson v. Browning, 78 Ill. 208; Papineau v. Belgarde, 81 Ill. 62; Ripley y. Morris, 2 Gilm. 381; Hickman v. Haines, 5 Gilm 20; Smith v. Robinson, 11 l. 119; Roberts v. Fahs, 32 Ill. 474; White v. Stafford, Breese, 68; Baker v. Palmer, 83 Ill. 568.

4. When plaintiff becomes non-resident or unable to pay, etc. § 4. If, at any time after the commencement of any suit by a resident of this State, he shall become non-resident; or, if in [*298] any case the court shall be satisfied that any plaintiff is unable to pay the costs of suit, or that he is so unsettled as to endanger the officers of the court with respect to their legal demands, it shall be the duty of the court, on motion of the defendant or any officer of the court, to rule the plaintiff, on or before a day in such rule named, to give security for the payment of costs in such suit. If such plaintiff shall neglect or refuse, on or before the day in such ru.e named, to file an instrument of writing of some responsible person, being a resident of this State, whereby he shall bind himself to pay all costs which have accrued, or may accrue in such action, the court shall, on motion, dismiss the suit; Provided, that the defendant or officer making such motion shall file therewith his affidavit, or the affidavit of some credible person, stating that he has reason to believe, and does believe, that in case such suit is prosecuted to a conclusion, a judgment will be rendered against such plaintiff for such costs.

[R. S. 1845, P 126, § 2; Frasure v. Zimmerly, 25 III. 202; Hamilton v. Dunn, 22 Ill. 259; Ball v. Bruce, 27 Ill 332 Shelby v. Hutchinson, 4 Gilm. 319; Gesford v. Critzer, 2 Gilm. 698; Parr v. Van Horne, 40 Ill. 122; Phelps v. Funkhouser, 40 Ill. 27.

5. Poor person. § 5. If any court shall, before or after the commencement of any suit, be satisfied that the plaintiff is a poor person, and unable to prosecute his suit, and pay the costs and expenses thereof, the court may, in its discretion, permit him to commence and prosecute his action, as a poor person; and thereupon such person shall have all the necessary writs, process and proceedings, as in other cases, without fees or charge. The court may assign to such person connsel, who, as well as all other officers of the court, shall perform their duties in such suit without any fees, charge or reward. If judgment be entered for the

plaintiff, there shall be judgment for his costs; which costs shall be col. lected for the use of the said officers.

[R. S. 1845, p. 126, 3. See Const., art. 2, § 19; Sterling Bridge Co v. Pearl, 80 Ill. 252; Clement v. Brown, 30 Ill. 43.

6. Affidavit. § 6. If, prior to the convening of any term of any court of record, a person desiring to commence suit in such court shall file with the clerk thereof an affidavit, stating that he is a poor person and unable to pay costs, and that his cause of action is meritorious, such clerk shall issue and the sheriff shall serve all necessary process without requiring costs; Provided, if judgment shall be entered against such plaintiff, it shall be for costs, unless the court shall otherwise order.

7. When plaintiff shall recover costs. § 7. If any person shall sue in any court of this State in any action, real, personal or mixed, or upon any statute, for any offense or wrong immediately personal to the plaintiff, and shall recover any debt or damage in such action, then the plaintiff or demandant shall have judgment to recover costs against the defendant, to be taxed, and the same shall be recovered, together with the debt or damages, by execution, except in the cases hereinafter mentioned. [R. S. 1845, p. 127, § 4.

8. When defendant shall recover costs. §. 8. If any person shall sue in any court of record of this State, in any action, wherein the plaintiff or demandant might have costs in case judgment be given for him, and he be non-pros'd, or suffer a discontinuance, or be nonsuited after appearance of the defendant, or a verdict pass against him, then the defendant shall have judgment to recover his costs against the plaintiff (except against executors or administrators prosecuting in the right of their testator or intestate) or demandant, to be taxed, and the same shall be recovered of the plaintiff or demandant, by like process as the plaintiff or demandant might have had against the defendant, in case judgment had been given for such plaintiff or demandant.

[R. S. 1845, P. 127,5; Russell v. Hubbard, 59 Ill. 335; Beardsley v. Hill, or Ill. 354; People v. Cloud, 50 III. 439; Rosenthal v. Magee, 41 I. 370; Kinman v. Bennett, Scam. 326; McKinstry v. Pennoyer, 1 Scam. 319; Granjang v. Merkle, 22

Ill. 250.

9. Costs in avowry, etc. $9. Any person making avowry, justification or cognizance in replevin, if the same be found for him, or the plaintiff be non-suited, or non-pros'd, suffer a discontinuance, or be otherwise barred, then such person shall recover his damages and costs against the plaintiff, in like manner as the plaintiff would have done, if the same had been found against the defendant. [R. S. 1845, p. 127, § 6. 10. Costs on demurrer. § 10. If, in any action, judgment upon any demurrer, by either party to the action, shall be given against the plaintiff or demandant, the defendant shall recover costs against the plaintiff or demandant. If such judgment be given for the plaintiff or demandant, he shall recover costs against the defend[*299] ant; and the person so recovering costs shall have execution for the same. [R. S. 1845, p. 127, § 7.

11. When several matters pleaded. 11. Where any de fendant in any action, or plaintiff in replevin, shall plead several matters,

and any of such matters, upon demurrer joined, shall be adjudged insufficient, or if a verdict shall be found in any issue of the cause; for the plaintiff or demandant, costs shall be given at the discretion of the court. [R. S. 1845, p. 127. § 8.

12. When several counts. § 12. Where there are several counts in any declaration, and any one of them be adjudged insufficient, or a verdict on any issue joined thereon shall be found for the defendant costs shall be awarded in the discretion of the court. [R. S. 1845, p. 127, $9.

13. When several persons defendant. § 13. Where several persons are made defendants to any action, and any one or more of them shall, upon the trial, be acquitted by verdict, every person acquitted shall recover his costs of suit, in like manner as if such verdict of acquittal had been given in favor of all the defendants. [R. S. 1845, p. 127, § 10. 14. In scire facias and prohibition. 14. In all suits upon any writ of scire facias, or upon prohibition, the plaintiff obtaining judgment, or an award of execution, after plea pleaded, or demurrer joined therein, shall recover his costs of suit. If the plaintiff shall be nonsuited, non-pros'd, or suffer a discontinuance, or a verdict shall pass against him, the defendant shall recover his costs.

[R. S. 1845, p. 127, § 11; People v. McRoberts, 62 Ill. 38.

15. Number of witnesses' fees taxed. § 15. The court may limit the number of witnesses whose fees are to be taxed against any party to such number, not less than two, as shall appear to the court to have been necessary.

[R. S. 1845, p. 127, § 12; Smith v. Kinkaid, 1 Brad. 624; Peoria, etc., R. R. Co. v. Bryant, 15 Ill. 438; White v. Murtland, 71 Ill. 250.

16. Dismissal for irregularity, etc. 16. In all cases, where any action shall be dismissed for irregularity, or be non-pros'd, or nonsuited, by reason that the plaintiff neglects to prosecute the same, the defendant shall have judgment for his costs, to be taxed and have execution therefor.

[R. S. 1845, P. 127, 13: Skinner v. Jones, 4 Scam. 193; Morgan v. Griffin, 1 Gilm. 566; Schofield v. Settley, 31 Ill. 516.

17. In suits for people, etc. § 17. In all suits and actions commenced or to be commenced for and on behalf of the people of this State, or the governor thereof, or for or on behalf of any county of this State, or in the name of any person for the use of the people of this State, or any county, then and in every such case, if the plaintiff shall recover any debt or damages in such action or suit, the plaintiff shall recover costs as any other person in like cases; but if such plaintiff suffer a discontinuance, or be non-suited or non-pros'd, or verdict pass against such plaintiff, the defendant shall not recover any costs whatever. Nothing in this section contained shall extend to any popular action, nor to any action to be prosecuted by any person in behalf of himself and the people or a county, upon any penal statute.

[R. S. 1845. p. 128, § 14; Kitchell v. Madison, 4 Scam. 163; People v. Pierce, Gilm. 553; Edgar Co. v. Mayo, 3 Gilm. 82; Sangamon Co. v. Brown, 13 Ill. 210.