(No. 720

Claim denied.)

#### Thomas D. Fitzgerald, Claimant, *vs.*State of Illinois, Respondent.

*Opinion filed May 14, 1924.*

Non-liability of *state*— forfeiture *of appearance hond.*There can be no legal liability against the State to refund to a surety of moneys paid by him into court upon a forfeited recognizance.

*Same*— conviction *of defendant no ground for refund.*The fact that the defendant was convicted and sentenced by the court creates no liability" or obligation on behalf of the State to refund to his surety moneys paid by him into court upon the forfeiture of the appearance bond.

Thomas D. Fitzgerald, for claimant.

Edward J. Brundage, Attorney General; George C. Dixon, Assistant Attorney General, for respondent.

Mr. Justice Leech

delivered the opinion of the court:

The declaration in this case was filed by Thomas D. Fitzgerald, claimant, setting forth that he is a resident of Franklin Park, Cook County, Illinois; that Thomas J. Fitzgerald, son of the claimant, was arrested in the County of DuPage, Illinois,' in the year of 1920 on charges of burglary and larceny, and that he was convicted, and' that on the 13th day of November, A. D. 1920, was sentenced to the Illinois State *12Reformatory; and that said defendant prayed an appeal from the Circuit Court of DuPage County, and that the defendant, Thomas J. Fitzgerald, did give a good and sufficient bond of One Thousand Dollars ($Í000.00) to the People of the State of Illinois to secure his appearance from time1 to time at the said court, with the United States Fidelity and Guaranty Company as surety.

■ It further appears from the declaration filed herein that Thomas D. Fitzgerald, claimant, and father of said Thomas J. Fitzgerald, -did at that time agree to idemnify the United States Fidelity and Guaranty Company and save it harmless from any loss it might sustain by virtue of becoming surety for his son, Thomas J. Fitzgerald; that in the circuit court of DuPage County, Illinois, on the 31st day 'of December, A. D. 1920, Thomas J. Fitzgerald was called three times and he failed to appear, and the bond was therefore declared to be forfeited; that on January 31, A. D. 1921, judgment was entered against Thomas J. Fitzgerald and the United States Fidelity and Guaranty Company in the amount of One Thousand Dollars ($1000.00), and execution was issued therefor; that Thomas D. Fitzgerald, father of Thomas J. Fitzgerald, by his agent, came and in open court, in the circuit court of DuPage County, Illinois, on the 3rd day of February, A. D. 1921, and did then and there satisfy the said judgment against said Thomas J. Fitzgerald and the United States Fidelity and Guaranty Company in the amount of $1000.00.

Thomas J. Fitzgerald, the accused and convicted, was apprehended in the'year 1922, and on the 1st day of February, 1923, was taken from the county jail at Wheaton, Illinois, to the Illinois State Reformatory at Pontiac, Illinois, and there incarcerated until the 1st day of January, A. D. 1923.

The Attorney General of Illinois files a demurrer to the declaration herein filed, and as a matter of law said demurrer is sustained by the court.

The court therefore disallows the claim, as there is no legal liability against the State of Illinois.