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estate, real and personal, conditioned as follows: “The condition of this obligation is such, that if the above bounden A. B., who has been appointed guardian for C. D., shall faithfully discharge the office and trust of such guardian according to law, and shall render a fair and just account of his said guardianship, to the court of probate for the county of from time to time, as he shall be thereto required by said court, and comply with all the orders of said court lawfully made, relative to the goods, chattels and moneys of such minor, and render and pay to such minor, all moneys, goods and chattels, title papers and effects, which may come to the hands or possession of such guardian, belonging to such minor, when such minor shall be thereto entitled, or to any subsequent guardian, should such court so direct, then this obligation shall be void ; otherwise to remain in full force and virtue:” which bond shall be taken to the people of the State of Illinois, for the use of such minor, and shall not become void upon the first recovery, but may be pat in suit from time to time, against all or any one or more of the obligors, in the name, and to the use and benefit of any person entitled, by a breach thereof, until the whole penalty shall be recovered thereon.
Sec. 6. Courts of probate shall have power, in their respective counties, with or without previous complaint, by an order duly made and served, to oblige all guardians of minors, from time to time, to render their respective accounts upon oath, touching their guardianship, to said courts for adjustment, and shall have power to compel such guardians to give supplementary security whenever it shall judge proper, and, in default thereof, to remove such guardians.
Sec. 7. The court of probate, in all cases, shall have power to remove guardians for good and sufficient reasons, which shall be entered on record, and to appoint others in their place, or in the place of those who may die, who shall give bond and security for the faithful discharge of their duties as heretofore prescribed in this chapter; and when any guardian shall be removed or die, and a successor be appointed, the court shall have power to compel such guardian, so removed, or the executors or administrators of a deceased guardian, to deliver up to such successor, all goods, chattles, moneys, title papers or other effects, belonging to such minor, which may be in the possession of such guardian, so removed, or of the executors or administrators of a deceased guardian, or on any other person or persons who may have the same, and upon failure, to commit the party offending to prison, until he, she or they comply with the order of the court.
Sec. 8. Guardians shall have power to demand, sue for and receive, all moneys belonging to their wards, from executors and administrators, as soon as the same may be collected; or of any other person or persons in whose hands or possession the same may be: and it shall moreover be their duty to put to interest the moneys of their wards upon mortgage security, to be approved by the court; which letting shall always be for one year, and at the end of each year, the interest shall be added to, and made part of the principal: and said guardians shall also have power to lease the real estate of the ward, upon such terms and for such length of time as the court of probate shall direct: Provided, Such leasing shall never be for a longer time than during the minority of the ward; and the minority of females shall cease at the age of eighteen years.
Sec. 9. The guardian shall have power, under the direction of the court of probate, to superintend the education and nurture of the ward; and for that purpose, may pay out such portions of the ward's money as the court of probate shall from time to time, by order, direct: Provided, That the rents and profits arising from his
estate, and next, the interest on the ward's money, shall always be first resorted to, for the education and nurture of the ward.
Sec. 10. The circuit court may, for just and reasonable cause, being satisfied that the guardian has faithfully applied all the personal estate, order the sale of the real estate of the ward, on the application of the guardian, by petition in writing, stating the facts, and having given notice to all persons concerned, of such intended application, in some public newspaper printed in this State, or by setting up written notices in three of the most public places in the county, at least three weeks before the sitting of the court. Such order may enable the guardians to sell and convey the real estate for the support and education of the ward, or to invest the proceeds in other real estate. The court, in such order, shall direct the time and place of sale, the notice thereof to be given, and may direct the sale to be made on reasonable credit, and require such security of the guardian and purchaser, as the interest of the ward may require. It shall be the duty of the guardian making such sale,
may be, to make return of such proceedings to the court granting the order, which, if approved by the court, shall be recorded, and shall vest in the pu
purchaser or purchasers, all the interest the ward had in the estate so sold : application for the sale of such real estate shall be made in the county where the ward shall reside, although the estate may lie in a different county: but if the ward do not reside in this state, such application shall be made to the court of the county where the whole or a part of the estate shall be situated.
Sec. 11. An account of all moneys received by any guardian for the sale of real estate of any minor, as aforesaid, shall be returned on oath by such guardian, to the court of probate of the county where letters of guardianship were obtained; and such moneys shall be accounted for, and shall be subject to the order of the court of probate, in like manner as other moneys belonging to such minor.
Sec. 12. Appeals shall be allowed in all cases, from the order or judgment of the court of probate to the circuit court, the same in manner as is provided by law relative to wills and testaments, executors and administrators, and the settlement of intestates' estates.
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 accure 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.
Sec. 14. Guardians shall educate their wards; and it is hereby made the duty of all civil county officers, to give information to the court of probate, neglect or omission of any guardian to his or her ward: Provided, When there are not moneys sufficient to teach the ward to read and write, and the ground rules of arithmetic, and the guardian refuses and neglects to have him so educated, the court shall have power to put out to any other person the ward, for the purpose of having the same so educated. The judge of probate shall, in all cases, when information is made of the neglect of any guardian to educate his or her ward, and on the facts being established, remove such guardian, and appoint a suitable person to act as guardian and superintend the education of such minor orphan.
Sec. 15. Guardians shall have power to loan out the moneys of their wards at interest, in sums not exceeding one hundred dollars, on personal security, to be approved by the judge of probate : Provided, It shall not be let for a longer time
than twelve months without a renewal, and an approval of the security by the court; and if neglected longer, it shall be at the responsibility of the guardian. In all cases of any person being appointed guardian for more than one ward at one time, the judge of probate shall include all in one bond.
Sec. 16. Guardians, on final settlement, shall be allowed such fees and compensation for their services as shall seem reasonable and just to the judge of probate, not exceeding what are, or shall be allowed by law, to administrators.
Sec. 17. Every father of sound mind and memory, of a child likely to be born, or of any living child, under the age of twenty-one years and unmarried, may, by his deed or last will duly executed, dispose of the custody and tuition of such child during its minority, or for any less time, to any person or persons in possession or remainder ; and every mother of sound mind and memory, being sole, may, in like manner, dispose of the custody and tuition of a child living, if a father has made no such disposition, or in any other manner restrained the right of the mother.
Sec. 18. Every such disposition, from the time it shall take effect, shall invest in the person or persons to whom it shall be made, all the rights and powers, and subject him or them to all the duties and obligations of a guardian of such minor, and shall be vaild and effectual against every other person claiming the custody or tuition of such minor: Provided, That the rights, powers, duties and obligations of such person or persons may be restrained and regulated by the person making such deed or last will as aforesaid.
Sec. 19. Any person to whom the custody of any minor is so disposed of, may take the custody and tuition of such ininor, and may maintain all proper actions for the wrongful taking or detention of the minor; he shall also take the custody and management of the real and personal estate of such minor, unless restrained by the deed or will as aforesaid, during the time for which such disposition shall have been made, and bring such actions in relation thereto, as a guardian appointed under the provisions of the laws of the State.
Sec. 20. Guardians appointed under the provisions of this chapter, shall be subject to removal upon complaint of any person in behalf of the minor, to the circuit court of the county in which such guardian may reside, and proof made of malconduct or misbehavior in the performance of his duties, or of a failure to perform his duties, and upon the removal of a guardian, the said court is hereby vested with the power to appoint another guardian, and to make all such orders as may be necessary to compel the guardian removed to deliver over to the successor the custody of the minor, and to account for the estate, and pay over all moneys belonging to the ward, and to compel such successor to execute a bond with good security, in such penalty, and with such conditions as the court may deem necessary for the security of the rights of the minor, and the said court shall also have power, upon application of any person in behalf of the minor, to require all guardians appointed under the provisions of this chapter, by the father or mother, or by the court, to give bond and security in such penalty, and with such conditions as the court may deem necessary for the security and protection of the minors, and of his or her estate.
APPROVED: March 3, 1845.
ted; by whom granted; mode of making ap-
obeyed and returned.
what proceedings had. 3. On return of writ, allegations shall be heard;
statement of grounds on which prisoner may
ance; witnesses to be recognized to appear
court; proceedings in case of second writ of
habeas corpus. 6. Power of judge under second writ, to admit pris
oner to bail, if offence is bailable, or if not
bailable, to commit to prison. 7. Person once discharged, not to be again com
mitted, unless again indicted, &c,; when he
may be again arrested, 8. Cases in which the writ of habeas corpus may
not be granted. 9. When prisoner may be discharged from custody
for want of prosecution ; continuance of cause
when witnesses can not be had. 10. Writ shall not be granted so as to delay trial in
certain cases. 11. Provisions as to removal of prisoner from one
place or one jail to another; penalty for im.
proper removal. 12. Penalty if judge fail or delay to issue writ. 13. Officer refusing to execute and return writ, pun
ished as for a contempt. 14. Officer having prisoner in custody, removing or
concealing him to evade service of writ, how
punished. 15. Officer having prisoner in custody, refusing to
give him copy of warrant of commitment, how
punished. 16. Penalty for re-arresting prisoner for same cause,
after one discharge. 17. Pecuniary penalties herein imposed, to go to
person for whose release writ issued. 18. General issue may be pleaded. 19. Recovery of penalties not to bar civil action for
damages. 20. Who may issue writ; for what purposes; writ
may run into any county; return of prisoner to proper custody; compensation of otficers.
Section 1. If any person shall be committed or detained for any
criminal or supposed criminal matter, it shall and may be lawful for him to apply to the supreme or circuit courts in term time, or any judge thereof in vacation, for a writ of habeas corpus, which application shall be in writing, and signed by the prisoner, or some person on his or her behalf, setting forth the facts concerning his imprisonment, and in whose custody he is detained; and shall be accompanied by a copy of the warrant or warrants of commitment, or an affidavit that the said copy had been demanded of the person in whose custody the prisoner is detained, and by him refused or neglected to be given; the said court or judge to whom the said application shall be made, shall, forth with award the said writ of habeas corpus, unless it shall appear from the petition itself, or from the documents annexed, that the party can neither be discharged nor admitted to bail, nor in any other manner relieved. Which said writ, if issued by the court, shall be under the seal of the court; if by a judge, under the hand of a judge; and shall be directed to the person in whose custody the prisoner is detained, and made returnable forthwith; to the intent that no officer, sheriff, jailer, keeper or other person, to whom such writ shall be directed, may pretend ignorance thereof, every such writ shall be indorsed with these words, “by the habeas corpus act ;” and whenever the said writ shall by any person be served upon the sheriff, jailer, keeper or other person whatsoever, to whom the same shall be directed, or being brought to him, or being left with any of his under officers or deputies at the jail, or place where the prisoner is detained, he, or some
of his under officers or deputies shall, upon payment or tender of the charges of bringing the said prisoner, to be ascertained by the court or judge awarding the said writ, and indorsed thereon, not exceeding ten cents per mile; and upon sufficient security given to pay the charges of carrying him back, if he shall be remanued, make return of such writ, and bring, or cause to be brought, the body of the prisoner before the court or judge who granted the said writ; or in case of the adjournment of the said court, or absence of the judge, then before any other of the judges aforesaid, and certify the true cause of his imprisonment within three days thereafter, unless the commitment of such person be in a place beyond the distance of twenty miles from the place where the writ is returnable: if beyond the distance of twenty miles, and not above one hundred miles, then within ten days; and if beyond the distance of one hundred miles, then within twenty days after the delivery of the writ as aforesaid, and not longer.
Sec. 2. Where any person not being committed or detained for any criminal, or supposed criminal matter, shall be confined or restrained of his or her liberty, under any color or pretence whatever, he or she may apply for a writ of habeas corpus, as aforesaid: which application shall be in writing, signed by the party, or some person on his or her behalf, setting forth the facts concerning his or her imprisonment, and wherein the illegality of such imprisonment consists, and in whose custody he or she is detained; which application or petition, shall be verified by the oath or affirmation of the party applying, or some other person on his or her behalf; if the confinement or restraint is by virtue of any judicial writ or process, or order, a copy thereof shall be annexed thereto, or an affidavit made that the same had been demanded and refused; the same proceedings shall thereupon be had in all respects, as are directed in the preceding section.
Sec. 3. Upon the return of the writ of habeas corpus, a day shall be set for the hearing of the cause of imprisonment or detainer, not exceeding five days thereafter, unless the prisoner shall request a longer time. The said prisoner may deny any of the material facts set forth in the return, or may allege any fact to show, either that the imprisonment or detention is unlawsul, or that he is then entitled to his discharge ; which allegations or denials shall be made on oath. The said return may be amended, by leave of the court or judge, before or after the same is filed, as also may all suggestions made against it, that thereby material facts may be ascertained. The said court or judge shall proceed in a summary way to settle the said facts, by hearing the testimony and arguments, as well of all parties interested civilly, if any there be, as of the prisoner, and the person who holds him in custody, and shall dispose of the prisoner as the case may require. If it appear that the prisoner is in custody by virtue of process from any court, legally constituted, he can be discharged only for some of the following causes: first, where the court has exceeded the limits of its jurisdiction, either as to the matter, place, sum or person; second, where, though the original imprisonment was lawful, yet by some act, omission or event, which has subsequently taken place, the party has become entitled to his discharge; third, where the process is defective in some substantial form required by law; fourth, where the process, though in proper form, has been issued in a case, or under circumstances, where the law does not allow process, or orders for imprisonment or arrest to issue; fifth, where, although in proper form the process has been issued or executed by a person either unauthorized to issue or execute the same, or where the person having the custody of the prisoner under such process is not the person empowered by law to detain him; sixth, where the process appears to have been obtained by false pretence or bribery ; seventh, where there is